Top court considers judicial review for decision with statute-limited appeal rights
In a decision covering the proper approach to judicial review for administrative tribunals where governing legislation limits the right of appeal to questions of law only, the SCC unanimously found that it was an error for the lower courts to find judicial review should only be exercised in “exceptional or rare cases.”
In legislating a right of appeal on questions of law, a unanimous SCC said in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 that the legislature intended to subject appeals of those questions to a correctness review, not to restrict the review of other kinds of questions arising from the tribunal.
This case was about “whether or not the Supreme Court meant what it said in Vavilov,” says Sean Dewart, who represented the appellant. In Canada (Minister of Citizenship and Immigration) v Vavilov, the SCC noted that there was a “two-tiered” justice system in Canada and called for an enhanced review of administrative tribunal decisions.
Dewart says since administrative tribunals deal with a wide variety of issues, including employment rights, housing, police misconduct, and benefits for injured people, more Canadians participate in an administrative tribunal than the courts.
“If someone's going to tell you whether or not you're getting thrown out of your apartment or you're getting benefits as an injured person, it's not really too demanding to say that the decision has to be reasonable,” he says. “And the Supreme Court was instructing lower-level courts, in very clear terms, to apply that standard and not to duck.”
The case originated in Ontario, where the appellant, Ummugulsum Yatar, was injured in a motor vehicle accident in 2010. TD initially paid her various accident benefits but stopped after a few months.
Yatar challenged TD’s denial at the License Appeal Tribunal (LAT), but her application was dismissed for filing late. The LAT also dismissed her request for reconsideration. She appealed the LAT’s decision and brought an application for judicial review to the Divisional Court but was unsuccessful on both.
Under the License Appeal Tribunal Act, Yatar had a right to appeal the LAT’s decision, but her appeal was limited to alleged errors of law. Her judicial review involved questions of fact or mixed fact and law. The Divisional Court dismissed her appeal, finding she could not demonstrate an error of law on the part of the LAT adjudicator. The court also dismissed her judicial review application because it found no exceptional circumstances justified judicial review.
The Court of Appeal dismissed Yatar’s appeal, finding that she had an alternative remedy. Since the legislation provided a scheme for resolving disputes, the court said judicial review could be exercised only in rare cases. Even if the appeal court had considered the judicial review application, it would have denied it because it found that the LAT adjudicator’s decision was reasonable.
Writing the reasons for the SCC, Justice Malcolm Rowe said that his court held in Vavilov that a right of appeal does not prohibit a person from seeking judicial review on questions the appeal does not concern. Judges can decide whether to exercise discretion to grant relief on a judicial review. Still, that discretion does not extend to declining to consider the application in the first place.
The framework through which a judge decides whether to undertake a judicial review comes from the 2015 SCC decision in Strickland v. Canada (Attorney General). The judge determines whether judicial review is appropriate, examines the case to identify whether a discretionary basis for refusing the remedy is present, and the judge can refuse to grant the remedy even if they find the decision under review is unreasonable, said Rowe.
In Yatar, he said the Divisional Court should have undertaken a judicial review for the issues not dealt with under the statutory right of appeal. Yatar raised alleged errors of fact or mixed fact and law for which the statutory right to appeal and the adjudicator’s reconsideration decision were not adequate alternative remedies. Rowe also found the adjudicator’s reconsideration decision unreasonable.
