Canada: Fundamentally Different: Supreme Court Of Canada On Statutory Rights Of Appeal And Judicial Review

In discussing limited rights of appeal pertaining to questions of law, The Supreme Court of Canada ("SCC") in Yatar v. TD Insurance Meloche Monnex unanimously held that both the Divisional Court and Court of Appeal for Ontario erred when they respectively concluded that only in "exceptional circumstances" and "rare cases" would judicial review be available for questions of fact or mixed fact and law.¹

Facts

Ms. Yatar was injured in an automobile accident in February 2010 and sought income replacement benefits ("IRBs") under the Statutory Accident Benefits Schedule ("SABS") from her insurer, TD. Ms. Yatar received three letters from TD dated in January, February, and September of 2011. The January letter, accompanied by a dispute resolution form, stopped Ms. Yatar's IRBs subject to her compliance. Ms. Yatar complied, and as such, the February letter from TD, not accompanied by a dispute resolution form, reinstated her IRBs. TD's September letter, also not accompanied by a dispute resolution form, advised Ms. Yatar that her IRBs were denied.

Ms. Yatar elected mediation in late 2012. The mediator's report was released January 14, 2014. Ms. Yatar brought an application to the License Appeal Tribunal ("LAT") in March 2018.

Judicial History

LAT

The LAT adjudicator found that TD's January 2011 letter constituted a valid denial of benefits. This finding, along with the parties mediating the matter, led the LAT adjudicator to conclude that Ms. Yatar's claims were time-barred since April 2014. It was said that both the Insurance Act and the SABS provided a limitation period extension of 90 days following the release of the mediator's report. Ms. Yatar's request for a reconsideration of this finding was denied. Per s. 11(6) of the LAT Act, a right of appeal from an adjudicator's reconsideration decision was restricted to questions of law.

Divisional Court

Dismissing the appeal, the Court ruled that Ms. Yatar showed no errors of law pertaining to the LAT's reconsideration decision. Moreover, although the Court recognized they preserved jurisdiction to judicially review questions of fact and mixed fact and law,² the Court concluded that there were no "exceptional circumstances" in this case that would justify judicial review. In denying Ms. Yatar's judicial review application, the Court added that judicial review is a discretionary remedy, which could thus be declined when alternative remedies are adequate.³

Court of Appeal for Ontario ("ONCA")

The ONCA upheld the Divisional Court's ruling. Instead of "exceptional circumstances.," however, the ONCA outlined that only in "rare cases" would judicial review be exercised. Relying on legislative intent, the ONCA added that the Court's discretion with respect to judicial review applies to both undertaking the review and granting relief.⁴ Without granting judicial review, the ONCA deemed the LAT adjudicator's reconsideration decision reasonable.

Supreme Court of Canada

Judicial Review Analysis

Along with citing various caselaw outlining that a limited statutory right of appeal does not alter the availability of judicial review, the SCC affirmed that judicial review is intimately connected with the preservation of the rule of law.⁵ This is consistent with the protection afforded by s. 96 of the Constitution Act. Additionally, s. 2(1) of the Judicial Review Procedure Act preserves the right of litigants to seek a judicial review despite any right of appeal.

The discretion to hear an application on the merits and deny relief does not extend to decline to consider the application for judicial review.⁶ In considering the application, the Court should balance available alternative remedies and the suitability of judicial review in the circumstance, while accounting for the purpose and policy considerations underpinning the relevant legislative scheme. If the Court determines that one of the discretionary bases for refusing a remedy is present, as outlined in Strickland, they may decline to consider the merits of the judicial review application.⁷

The SCC held that both the Divisional Court and the ONCA erred in their application of Strickland by relying on a limited right of appeal for questions of law as indicative of legislative intent to restrict access to judicial review for questions of fact and mixed fact and law.

In addition to finding that no such inference is warranted, the SCC found that Ms. Yatar was not afforded an adequate alternative remedy. As the LAT's reconsideration decision was the subject of the review, the SCC found that it too could not have been an adequate alternative remedy. In properly applying Strickland, the SCC outlines that the Divisional Court should have exercised its discretion to undertake judicial review for issues not dealt with under the statutory right of appeal.

The LAT Adjudicator's Decision Was Unreasonable

A reasonable decision is one that both contains internally coherent reasoning and is justified in light of the factual and legal constraints.⁸ The SCC found that the LAT adjudicator failed to take into account relevant legal constraints and as such, their decision was unreasonable. This was due to whether the limitation period was ever triggered. The SCC found that the LAT adjudicator did not consider TD's reinstatement of IRBs to Ms. Yatar in their February 2011 letter, occurring after the January 2011 denial letter in which the adjudicator based their decision on. Furthermore, the SCC clarified that rather than a 90-day limitation period, the Insurance Act and SABS provided for an extension of the two-year limitation period from the date of the mediator's report. To conclude, the SCC noted that it is arguable that there still needed to be a valid denial of IRBs for the limitation period to commence, while reiterating that although administrative tribunals are not bound by their previous decisions, they must at least be considered. The matter was referred back to the LAT for reconsideration.

Takeaways

Doubling down on Vavilov, the SCC in Yatar provided clarity with respect to how judicial review should be approached. This includes that legislative intention to restrict statutory rights of appeal does not, on its own, affect the availability of judicial review for issues outside the legislature's scope. The Yatar holding makes concurrent appeal and judicial review proceedings arising from an administrative decision possible. Interestingly, the SCC noted that the legislature could have decided to restrict "all types of errors" in the right to appeal pertaining to Ms. Yatar but did not. With this said, the question surrounding privative clauses remains unanswered, as the SCC reserved their comments on the issue "for another day."

Greater certainty derives from the SCC's intent to move away from disguised correctness. In Yatar, the SCC heard oral submissions suggesting that certain matters of fact or mixed fact and law could be captured as questions of law, thus enabling them to be rendered under the purview of limited statutory appeal mechanisms and reviewed on a correctness standard. The SCC approached these submissions with caution, outlining that their intent with Vavilov was to limit disguised correctness. The SCC's view stemmed from historical considerations and is assumed to include when the judiciary maintained the ability to characterize or arguably mischaracterize issues as "jurisdictional questions" to hear them on a correctness standard, for example.⁹

While judicial review of administrative decisions remains difficult, the SCC has opened the door when fundamental issues of natural justice and fairness are at risk.

Footnotes

1. 2024 SCC 8 at para 4.

2. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 36.

3. Strickland v. Canada (Attorney General), 2015 SCC 37 at paras 37, 40.

4. Ibid at para 44.

5. Dunsmuir v. New Brunswick, 2008 SCC 9 at para 27.

6. Yatar, supra note 1 at para 49.

7. Ibid at paras 54, 56.

8. Vavilov, supra note 2 at para 101.

9. Dunsmuir v. New Brunswick, 2008 SCC 9; Canada (Attorney General) v. Mowat, 2011 SCC 53.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.