In Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 (Yatar), released on March 15, 2024, the Supreme Court of Canada addressed the role that a limited statutory right of appeal plays in a court’s exercise of discretion to undertake judicial review. In a unanimous decision penned by Justice Malcolm Rowe, the Supreme Court confirmed that the availability of judicial review of an administrative decision is not limited by the existence of a statutory right of appeal.
In Yatar, the governing statute limited the right of appeal to questions of law. At its core, the dispute revolved around whether the appellant could seek judicial review on questions of fact or questions of mixed fact and law, in addition to appealing the decision on questions of law.
Background
Yatar, the appellant, was a claimant for insurance benefits whose claim was denied by the insurer in 2011. Yatar pursued mediation, as was required at the time by Ontario’s Insurance Act, RSO 1990, c I.8 (Insurance Act).The mediation concluded in January 2014, with the mediator issuing a report. At the time of Yatar’s accident, the Insurance Act imposed a two-year limitation period following the insurer’s refusal to pay benefits within which to challenge the denial. Additionally, the Act extended the limitation period to 90 days after the date the mediator provided their report. Yatar commenced legal proceedings before the Licence Appeal Tribunal (LAT) in March 2018. The LAT dismissed her application as time-barred, and her request for reconsideration was also denied.
Yatar appealed the LAT’s reconsideration decision on a question of law and sought judicial review regarding questions of fact or mixed fact and law. Under Ontario’s Licence Appeal Tribunal Act, 1999, SO 1999, c 12, Sch G (LAT Act) Yatar’s right of appeal from the LAT’s reconsideration decision is limited to questions of law. The Divisional Court dismissed the appeal, finding that Yatar did not show any errors of law and there were no exceptional circumstances to justify judicial review. The Court of Appeal upheld this decision, finding that the limited right of appeal reflected an intention to restrict recourse to the courts. As a result, the Court of Appeal found that judicial review would be available only in rare cases.
Findings
The Supreme Court found that the existence of a circumscribed right of appeal in the LAT Act does not, on its own, preclude or limit applications for judicial review. The Supreme Court reiterated its statement in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65,that the legislature’s choice to implement a circumscribed statutory right of appeal of administrative decisions does not, in and of itself, reflect an intention to limit the availability of judicial review.
The discretion of a court to grant a judicial review is exercised according to the framework set out in Strickland v. Canada (Attorney General), 2015 SCC 37 (Strickland). Under that framework, the court evaluates the suitability and appropriateness of judicial review, including the available alternatives to judicial review. Where relevant, this analysis should consider whether unexhausted remedies are available within the administrative tribunal. In the present case, Yatar raised errors of fact or mixed fact and law. Given that the LAT Act limits the right of appeal from the LAT’s decisions to questions of law, no appropriate alternative remedy existed. The Supreme Court also found that the availability of reconsideration by the LAT was not an adequate alternative remedy, in particular because in Yatar, the reconsideration decision was the decision under review. The Supreme Court noted that, “[a]lternatives do exist where internal review processes have not been exhausted or where there is a statutory right to appeal that is not restricted, such that questions of law, fact, and mixed fact and law could be considered on appeal. But, that is not so here.”[i]
The Supreme Court also rejected the argument that judicial review was not appropriate in the circumstances because the legislature intended to streamline dispute resolution and reduce costs by limiting appeals to questions of law. Justice Rowe for the Court noted that concerns about judicial economy must be balanced against the availability of meaningful and adequate process for challenging administrative decisions.
Takeaways
- A limited statutory right of appeal does not in itself reflect a legislative intention to limit applications for judicial review of administrative decision.
- A limited statutory right of appeal is not an adequate alternative remedy to judicial review, and neither is the availability of reconsideration by the administrative decision-maker where the reconsideration decision itself is under review.
- The Supreme Court noted recent jurisprudence from the Federal Court of Appeal on the question of the availability of judicial review in cases where the governing statute includes a privative clause, but left that question for another day. We can perhaps look forward to a decision on this question in the coming years.
For more information on this topic, please reach out to the authors, Abbie Buckman and Ana Qarri.
[i] Yatar, at para. 63.
