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Judicial Review - SOR - Yatar. Yatar v. TD Insurance Meloche Monnex
In Yatar v. TD Insurance Meloche Monnex (SCC, 2024) the Supreme Court of Canada resolved issues regarding joint JR/appeal procedure, which arose where appeals were limited to 'questions of law' but the appellant still sought to challenge issues of fact or mixed fact and law [which a judicial review (JR) could conceivably have jurisdiction over]. In such cases the issue arose as to the role of the court's JR discretion, and - if applied to hear the JR - what standard of review applied.
Here the court states it's conclusions on the central issue of the viability of joint appeal-JR proceedings, and - if so - the applicable standard of review for JR issues of fact and mixed fact and law:I. Overview
[1] This case deals with a court’s exercise of discretion as to whether to undertake judicial review on the merits in light of a limited statutory right of appeal.
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[3] As per Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. In this case, despite the statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. It is then a matter of discretion whether to undertake judicial review, having regard to the framework for analysis set out in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713.
[4] 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 (2021 ONSC 2507, 157 O.R. (3d) 337, at para. 4); this ignored Strickland. The Court of Appeal for Ontario also erred when it held that only in “rare cases” judicial review would be exercised (2022 ONCA 446, 25 C.C.L.I. (6th) 1, at para. 42), and that in this case, Ms. Yatar had an appropriate alternative remedy. Both courts sought to apply Strickland, but erred in principle in doing so. They did so by relying on a statutory 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. No such inference is warranted. Properly applying Strickland, the Divisional Court should have exercised its discretion to undertake judicial review for issues not dealt with under the statutory right of appeal.
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IV. Issues on Appeal
[30] Ms. Yatar raises two questions on appeal: first, whether the Court of Appeal erred when it concluded that the legislature’s decision to limit the right of appeal from LAT decisions to “pure” questions of law restricted the availability of judicial review of LAT decisions for errors of fact or mixed fact and law to “rare” or “unusual” cases; and second, whether the Court of Appeal erred in concluding that the LAT adjudicator’s reconsideration decision was reasonable (A.F., at para. 28).
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A. Standard of Review
[41] The main issue in this appeal relates to the decision by the Divisional Court and the Court of Appeal not to undertake judicial review. As this is a discretionary decision, deference is to be shown (see Strickland, at para. 39). However, the exercise of discretion can be set aside when a judge “considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion” (Matsqui Indian Band, at para. 39). As I will explain, the Divisional Court and the Court of Appeal erred in their application of Strickland in that they acted on the basis of a “wrong principle” (Matsqui Indian Band, at para. 112, per Sopinka J.).
[42] Once it is determined that it is appropriate to undertake judicial review in this case, the issue arises whether the LAT adjudicator’s reconsideration decision was reasonable. Per Vavilov, there is “a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions” (para. 16). That presumption is not rebutted here.
B. The Existence of a Circumscribed Right of Appeal Does Not, on Its Own, Preclude Applications for Judicial Review
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[44] In the case at bar, the Divisional Court and the Court of Appeal held that a party can both exercise a statutory right of appeal and seek judicial review for questions outside the scope of the statutory right of appeal. Other courts have also determined that a statutory right of appeal does not alter the availability of judicial review (see Smith v. The Appeal Commission, 2023 MBCA 23, 479 D.L.R. (4th) 121; Wongkingsri v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2022 ABQB 545, 61 Alta. L.R. (7th) 170; Zarooben v. Workers’ Compensation Board, 2021 ABQB 232, 84 Admin. L.R. (6th) 96, aff’d 2022 ABCA 50, 95 Admin. L.R. (6th) 163).
[45] The question remains: what role does the right of appeal play in the exercise of discretion to undertake judicial review? In settling this question, it is important to have regard to first principles. In Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, this Court held that “[t]he principle that public authorities are subordinate to the supervisory power of the superior courts is the cornerstone of the Canadian and Quebec system of administrative law. Such judicial review is a necessary consequence of the rule of law” (p. 360).
[46] The importance of judicial review was affirmed by this Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 27:As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. [47] This Court held in Vavilov, at para. 52, that the legislative intent to restrict statutory rights of appeal does not, on its own, affect the availability of judicial review:... the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. [48] This Court’s precedent contemplates a person pursuing both a statutory appeal on questions of law and judicial review on questions of fact and mixed fact and law. In such an instance, as set out in Vavilov, at para. 37, the questions of law being appealed would be subject to review on a standard of correctness (see also Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235), and questions of fact and mixed fact and law would be subject to review on a standard of reasonableness on judicial review (see Vavilov).
[49] A person has a right to seek judicial review, and “[t]o give courts a discretion not to hear judicial review applications because of their perception of the quality and quantity of internal reconsiderations would allow judicial discretion to trump [a] constitutional principle” (P. Daly, A Culture of Justification: Vavilov and the Future of Administrative Law (2023), at p. 226, note 94). While there is discretion to hear the application on the merits and deny relief, this discretion does not extend to decline to consider the application for judicial review, as will be explained below.
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