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| Sara Blake |
In Yatar v. TD Insurance Meloche Monnex 2024 SCC 8, the Supreme Court ruled that a statutory right of appeal restricted to a question of law does not preclude judicial review on other grounds. The court based its ruling on both section 2(1) of the JRPA and a brief obiter statement in Vavilov that the existence of a circumscribed right of appeal in a statutory scheme does not, on its own, preclude applications for judicial review of decisions on grounds that may not be appealed (Canada (Minister of Citizenship and Immigration) v. Vavilov 2019] S.C.J. No. 65). They left for another day the effect of an appeal provision combined with a privative clause that precludes judicial review on grounds that may not be appealed.
The case concerns the application of a statutory limitation period. Ummugulsum Yatar was injured in a car accident. Her insurer allowed, then denied, then reinstated, then revoked some insurance benefits. At the time of the first denial, it gave notice of her appeal rights but failed to give this notice when it revoked her reinstated benefits nine months later.
The Licence Appeal Tribunal (LAT) dismissed her appeal ruling that it was out of time. She sought both appeal and judicial review. The Ontario Court of Appeal ruled that the LAT decision was correct and dismissed the judicial review because the appeal was an adequate alternative remedy and, obiter, that the LAT decision was reasonable. The Supreme Court allowed the appeal and remitted the case to LAT, ruling that it had failed to address the unusual circumstances in determining whether and when the time limit began to run.
The right of appeal from LAT to the Divisional Court is restricted to questions of law. The question of whether Yatar’s appeal to LAT was out of time was a question of mixed fact and law. All courts agreed that this question is outside the scope of the right of appeal.
The Supreme Court of Canada ruled that, if there is no privative clause, a court may not dismiss an application for judicial rule solely on the ground that a statute grants a right of appeal. A judicial review may be dismissed without considering its merits on any of the established discretionary grounds including the existence of an adequate alternative remedy. However, in exercising its discretion, the court must consider all the circumstances of the case to determine whether the statutory right of appeal is an adequate alternative remedy to judicial review. The mere existence of a right of appeal is not enough.
The Supreme Court based its ruling on a presumption as to the legislative intention for enacting this statutory right of appeal. The court ruled that the intention was not to preclude judicial review but rather to require courts to apply a correctness standard of review to questions of law. That presumption is not based on historical analysis. In Hansard the right of appeal to court is mentioned, but there is no discussion of the legislative intention respecting its restriction to questions of law. In 2014, when it was enacted, the standard of review applied to questions of law in appeals to court from tribunal decisions was reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 37. And, at that time, Ontario courts typically exercised their discretion to dismiss judicial reviews in the face of a statutory right of appeal.
Nonetheless, in my view, the court has finally come to the right decisions on two issues. First, they ruled in Vavilov that the appellate standards of review should apply to all statutory rights of appeal. The court’s 14-year departure from this historical approach was corrected. Second, in this decision, they have given effect to the words “despite any right of appeal” in the JRPA in accordance with legislative intention. Better late than never.
The statutory right of appeal is restricted to a question of law. The court ruled that a question of mixed fact and law does not qualify as a question of law but did not address the broader question of what types of issues are “questions of law.” The most significant unresolved issue is how this restricted right of appeal should apply to a question of procedural fairness, which, in my view, is typically a question of mixed fact and law even though some courts treat it as a question of law subject to review on a correctness standard, even on judicial review.
The Supreme Court ruled that internal reconsideration does not constitute an adequate alternative remedy to judicial review in this case because Yatar’s appeal and judicial review were not from the original LAT decision, but rather from its dismissal of her request for reconsideration. The court left open the possibility that a right to request reconsideration might be an adequate alternative remedy in other circumstances but did not identify them. In my view, a party should not be required to seek reconsideration if, in the tribunal proceeding that led to the first decision, the issue was raised and decided. The primary purpose of this right is to correct errors, not to challenge the decision. A challenge to the decision should be permitted to proceed directly to appeal or judicial review.
In the result, the SCC overturned the decisions of the Ontario courts but did not address the procedures for concurrent appeal and judicial review of a tribunal decision. The Court of Appeal ruling on that issue continues in effect. It requires a party to bring both the appeal and the judicial review at the same time. I note that this is effectively required by the 30-day limitation periods for both proceedings. Also, the court ruled that a party bringing both proceedings must bring a motion for the two proceedings to be heard together, with a single appeal book/application record and factum covering both proceedings.
The law progresses one small step at a time.
Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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