This page contains the Applicant’s Factum for Motion #2 in McLean v. TDHA et al, filed February 3, 2025 in the Divisional Court. The Factum advances a comprehensive legal and procedural argument supporting the Applicant’s urgent opposed motion under Rules 37.12(4) and 37.13(2)(a) of the Rules of Civil Procedure, seeking to convert the motion in writing into a motion for Judgment or, alternatively, to have the JRPA Application listed for hearing in February 2025 pursuant to Rule 68.05 and section 6(2) of the Judicial Review Procedure Act.
The Factum begins by addressing the Attorney General of Ontario’s waiver of participation, which strengthens the Applicant’s position that the JRPA Application may be heard by a single justice under section 6(2) of the JRPA. It then distinguishes the procedural pathways between a section 6(2) requisition and a Rule 37.13 conversion, emphasizing that the latter is triggered by the making of a notice of motion at least 14 days before the written hearing and is grounded in the Divisional Court’s authority to dispose of applications summarily where the record is complete and the issues are fully joined.
Critically, the Factum explains that at the time Motion #2 was brought, the Applicant did notknow that none of the Respondents had filed or delivered their Notices of Appearance in accordance with Rule 38.07 and Rule 1.03 (“deliver” meaning serve and file with proof of service). This procedural defect only became discoverable with the advent of the Ontario Courts Public Portal in October 2025, when litigants were finally able to verify the back‑end status of filings. The revelation that no Respondent had filed or delivered a Notice of Appearance fundamentally alters the procedural landscape, demonstrating that the Respondents were not properly before the Court and had not taken the mandatory steps required to participate in the JRPA proceeding. This omission reinforces the Applicant’s position that the matter is ripe for disposition and that the Tribunal’s prematurity objection is untenable.
The Factum outlines the statutory and jurisprudential framework governing motions in writing, including the obligations of responding parties under Rule 37.12.1(5), the timelines for responding material, and the circumstances in which oral argument may be requested. It then turns to the core legal test under Rule 37.13(2)(a), analyzing the meaning of “proper case,” “decision,” “dispose,” and “judgment,” and situating these terms within the Divisional Court’s supervisory jurisdiction over administrative decision‑makers. The Applicant argues that the Tribunal’s unprecedented failure to file even a single document from the Record of Proceeding under section 10 of the JRPA and section 20 of the SPPA creates a procedural vacuum that makes this matter a paradigmatic “proper case” for conversion to a motion for Judgment.
The Factum critiques the Tribunal’s prematurity objection, demonstrating that its reliance on Mansuri, Awada, and Heegsma is misplaced. It explains why Mansuri involved interlocutory relief, why Awada supports the Applicant’s position by confirming that final orders may arise at any stage of an administrative proceeding, and why Heegsma is irrelevant due to its focus on intervention under Rule 13.02 and jurisdictional limits on appeals from intervention decisions. The Factum reinforces the binding principles in Payne, Savone, CIBC Trust, Zurich v. Chubb, and the Divisional Court’s Judicial Review Guide, emphasizing that judicial reviews are determined on the record and that a statutory body cannot immunize itself from review by failing to file the record required by law.
The Factum further addresses the Tribunal’s technological and procedural failures, including its inability to amend party names in its e‑filing system, its discretionary and non‑legislative deadlines, its removal of counsel’s business address from the Law Society directory, and its pattern of stonewalling communications. These failures, combined with the Tribunal’s refusal to oppose NOM #1 while simultaneously failing to comply with its statutory duties, support the Applicant’s position that the Tribunal cannot raise prematurity or participate meaningfully in the JRPA proceeding until it files the complete Record of Proceeding.
This page forms part of LawCap’s public‑interest archive documenting judicial independence, procedural fairness, record‑integrity doctrine, statutory compliance, and the Divisional Court’s supervisory role in administrative law. It also reinforces the Applicant’s broader argument that the JRPA Application is ripe for determination and that the Divisional Court should exercise its authority to convert Motion #2 into a motion for Judgment to prevent further delay, procedural uncertainty, and potential failure of justice.