CANADA – ONTARIO – Administrative Law – Judicial review is available for matters not covered by a statutory right of appeal. Judicial review is available to challenge allegedly unreasonable or procedurally unfair decisions of administrative tribunals despite a limited statutory right of appeal on questions of law.

CANADA – ONTARIO – Administrative Law – Deference – Clarifying Vavilov, the law recognizes greater accountability on the part of administrative tribunals and the Supreme Court of Canada suggests a move away from unquestioning deference of administrative tribunal decisions.

CANADA – ONTARIO – Administrative Law – When exercising its discretion to undertake judicial review considering a limited right of appeal, the judge must determine if judicial review is appropriate in the circumstances and whether there are alternate remedies available such as unexhausted internal review processes or the right of appeal is not restricted such that questions of law, mixed fact and law and law can be considered on appeal.

Yatar v. TD Meloche Monnex and Licence Appeal Tribunal et al
2024 SCC 8 (CanLII) (March 15, 2024)
Supreme Court of Canada (Wagner CJ, Karakatsanis, Cóte, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ)

This was an appeal of an ONCA decision upholding the Ontario Licence Appeal Tribunal’s (“LAT”) denial of Yatar’s application for judicial review. The SCC held that a limited statutory right of appeal does not preclude judicial review for matters that are not the subject of appeal. For example, if there was a limited right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law.

Background

At issue were denials of Yatar’s accident benefits (income replacement and housekeeping) over a period of time related to an automobile accident. No dispute resolution forms were attached to the two last denial of benefits letters from the insurer.

Yatar’s rights of appeal were limited to questions of law pursuant to the Ontario Licence Appeal Tribunal Act 1999. Yatar brought an appeal on a question of law and sought judicial review on questions of fact or mixed fact and law. The Ontario Divisional Court dismissed the appeal on the basis the LAT adjudicator made no errors of law and because there were no exceptional circumstances justifying judicial review. (para.2)

The Ontario Court of Appeal dismissed Yatar’s appeal on the basis that: a) judicial review can only be exercised in rare cases when there is a statutory scheme for dispute resolution; b) Yatar had an alternative remedy; and c) the LAT adjudicator’s decision was reasonable and therefore judicial review would be denied.

The SCC allowed the appeal and remitted the matter to the LAT adjudicator.

Analysis

There were two issued before the SCC:

1. Did the ONCA err when it concluded that the legislature’s decision to limit appeals to questions of law restricted the availability of judicial review of the LAT decisions for errors of fact or of mixed fact and law?
2. Did the ONCA err when it concluded that the LAT adjudicator’s reconsideration decision was reasonable? (para. 30)

The SCC referred to the framework set out in Strickland v Canada ( Attorney General) 2015 SCC 37. It is a matter of discretion whether to undertake judicial review. (para.3 &  4 & 25)

Standard of Review

The ONCA’s and Divisional Court’s decisions not to undertake judicial review were exercises of discretion. Normally, an appellate court shows deference to discretionary decisions. However, the SCC held that an exercise of discretion can be set aside when a judge:

1. considered irrelevant factors.
2. failed to consider relevant factors; or
3. or reached an unreasonable conclusion. (para 41)

The SCC held that the ONCA and Divisional Court erred in their application of the Strickland case factors based on a wrong principle. (para. 41)

Once it is determined that it is appropriate to undertake judicial review of an administrative tribunal’s decision, whether the LAT adjudicator’s decision was reasonable is the issue. The applicable standard when a court reviews an administrative tribunal’s decision is reasonableness as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 “Vavilov”. (para. 42)

There are two different standards of review. The SCC held that, as set out in Vavilov, the standard of review on an appeal of a question of law is correctness. On judicial review of questions of fact and of mixed fact and law, the standard of review is reasonableness. (para. 48)

Referring to Vavilov, the SCC held that a right of appeal does not preclude an individual from seeking judicial review for questions outside the scope of the appeal. (paras. 3, 44, 47)

The SCC held that a person has a right to seek judicial review and to “give courts a discretion not to hear judicial review applications because of their perception on the quality and quantity of internal reconsiderations would allow judicial discretion to trump a constitutional principle.” The discretion does not extend to declining to hear the application for judicial review; the discretion extends to hearing the application and denying the relief. (para. 49)

A judge must consider an application for judicial review and determine at a minimum if judicial review is appropriate and if one of the discretionary factors to refuse judicial review exists. A judge may decline to grant a remedy, even if the underlying decision is unreasonable. (para. 54)

The exercise of the court’s discretion includes whether judicial review is appropriate in the circumstances, whether there is an alternative remedy, and balancing the purpose and policy consideration of the legislation in issue. (para. 56)

The SCC referred to s. 2(1) of the Judicial Review Procedure Act, which preserves the right of litigants to seek a judicial review despite any right of appeal. (para. 60). The SCC referred to its holding in Vavilov that “because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely.” (para. 61)

If the legislation ousts the jurisdiction of the courts by statute, there is a channel for oversight of the legality, rationality, and procedural fairness of the administrative decision by way of an alternate remedy. (para. 61)

The SCC held that the Divisional Court erred when it concluded that only in exceptional circumstances would judicial review be available where there is a limited right of appeal. The ONCA erred when it held that judicial review would be exercised only in rare cases and that Yatar had an alternative remedy. Both courts erred in applying the Strickland principles and holding that a limited scope of appeal indicates a legislative intent to restrict access to judicial review for questions of fact and mixed fact and law. (para. 4) (paras. 57–58)

There was no alternative remedy available to Yatar in this case. The SCC found that a right of appeal and the LAT adjudicators reconsideration decision were not alternative remedies. The courts should have conducted a balance of convenience analysis about whether there is an alternative remedy and whether judicial review is appropriate in the circumstances. (para. 64)

With respect to whether the LAT reconsideration decision was reasonable, the SCC referred to Vavilov again where the SCC held that two flaws can render a decision unreasonable: a) a failure of rationality internal to the reasoning process; and b) if the decision was in “some respect untenable in light of the relevant factual and legal constraints that bear on it” To assess if there has been a flaw, the court must review the LAT’s decision as an “organic whole”. (para. 71)

The SCC held that the LAT adjudicator’s reconsideration decision was unreasonable because it failed to consider the reinstatement of benefits on the limitation period. Once the benefits were reinstated, the limitation period was not triggered until the benefits were validly terminated again. (para. 74)

The appeal was allowed, and the matter was referred to the LAT adjudicator for reconsideration of the effect of the reinstatement of benefits on the validity of the initial denial and on the limitation period. (para.77)