Simon's Megalomaniacal Legal Resources

Judicial Review - Discretionary to the Court

. Yatar v. TD Insurance Meloche Monnex [Yatar]

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 're-normalizes' the law of JR discretion, for Yatar proceedings [esp. para 56] - citing Strickland:

C. The Exercise of Discretion To Grant Relief on Judicial Review

[51] While there is a right to seek judicial review, it is open to the judge before whom judicial review is sought to decide whether to exercise his or her discretion to grant relief. This Court stated in Strickland, at para. 37, quoting Minister of Energy, Mines and Resources, at p. 90:

Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief . . . . Declarations of right, whether sought in judicial review proceedings or in actions, are similarly a discretionary remedy: “. . . the broadest judicial discretion may be exercised in determining whether a case is one in which declaratory relief ought to be awarded” . . . . [Emphasis added.]

[52] In Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 135, Rothstein J. stated:

The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies: Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, at p. 364. As Harelkin [v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561,] affirmed, at p. 575, courts may exercise their discretion to refuse relief to applicants “if they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty”. As in the case of interlocutory injunctions, courts exercising discretion to grant relief on judicial review will take into account the public interest, any disproportionate impact on the parties and the interests of third parties. [Emphasis added.]

[53] In the case at bar, the Court of Appeal stated that “[t]he court’s discretion with respect to judicial review applies both to its decision to undertake review and to grant relief” (para. 44). This wording is unclear; thus, there is need for clarification.

[54] When an applicant brings an application for judicial review, a judge must consider the application: that is, at a minimum, the judge must determine whether judicial review is appropriate. If, in considering the application, the judge determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the judicial review application (Strickland, at paras. 1, 38 and 40; Matsqui, at para. 31). The judge also has the discretion to refuse to grant a remedy, even if they find that the decision under review is unreasonable (Khosa, at para. 135; Strickland, at para. 37, quoting Minister of Energy, Mines and Resources, at p. 90).

[55] The Court of Appeal initially found no reversible error in the Divisional Court’s decision to refuse to hear the judicial review application and agreed with the Divisional Court that: (i) there were alternative remedies, and (ii) the legislative scheme demonstrates “the legislative intent to limit access to the courts regarding these disputes” (para. 43). The Court of Appeal then went on to conduct a judicial review, as had the Divisional Court.

[56] Per Strickland, the exercise of discretion requires the court to determine the appropriateness of judicial review: “The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. . . . This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue . . .” (paras. 43-44).

[57] Respectfully, the Court of Appeal erred in its application of the Strickland factors. As I will explain, there is no proper basis to infer legislative intent to eliminate judicial review for issues (of fact and mixed fact and law) outside the scope of a statutory appeal. Furthermore, there was no adequate alternative remedy for Ms. Yatar on questions of fact and mixed fact and law.

[58] The Court of Appeal erred by holding that the limited right of appeal reflected an intention to restrict recourse to the courts on other questions arising from the administrative decision, and that judicial review should thus be rare. The legislative decision to provide for a right of appeal on questions of law only denotes an intention to subject LAT decisions on questions of law to correctness review. The idea that the LAT should not be subject to judicial review as to questions of facts and mixed facts and law cannot be inferred from this.

[59] The respondent TD Insurance argues that the legislative scheme and its amendments in 2016 reflects a policy choice by the legislature to severely limit the courts’ involvement in accident benefits disputes: “Section 11(6) of the LAT Act restricts appeals to questions of law. . . . For LAT decisions made under nearly twenty other statutes, the legislature has made appeals available on all questions” (R.F., at paras. 62‑63). TD Insurance further submits that “applying a deferential standard of review (reasonableness) to factual and mixed questions arising out of LAT decisions concerning SABS would not be appropriately respectful of the legislature’s institutional design choices” (para. 84).

[60] With respect, I do not agree. The legislature could have decided to encompass all types of errors in the right to appeal, but it did not. Moreover, s. 2(1) of the Judicial Review Procedure Act preserves the right of litigants to seek a judicial review “despite any right of appeal”. Errors of fact or mixed fact and law, thus, are not subject to a correctness standard of review. With that in mind, proceeding with judicial review of questions of fact or mixed fact and law is fully respectful of the legislature’s institutional design choices.

[61] In Vavilov, this Court held 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. 24). Professor Paul Daly argues that “[w]here the judicial review jurisdiction of the courts has been successfully ousted by statute ... the legislature has provided a particular channel for oversight of the legality, rationality and procedural fairness of administrative action” (Understanding Administrative Law in the Common Law World (2021), at p. 188 (emphasis in original)). In other words, there was an appropriate alternative forum or remedy.

[62] The statutory right to appeal and the LAT adjudicator’s reconsideration decision do not constitute adequate alternative remedies. The right to appeal under s. 11(6) of the LAT Act is restricted to errors of law only. Ms. Yatar raises errors of fact or mixed fact and law. Review of these questions is not available under the statutory right of appeal.

[63] The access to internal reconsideration cannot be an adequate alternative remedy, as the reconsideration decision itself is the subject of the review. Alternatives 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.

[64] This Court in Strickland, at para. 43, also emphasizes the appropriateness of judicial review in the circumstances, referring to a “balancing exercise”:

The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case: Matsqui, at paras. 36-37, citing [Minister of Energy, Mines and Resources], at p. 96. Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis: Khosa, at para. 36; TeleZone, at para. 56. As Dickson C.J. put it on behalf of the Court: “Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised. It is for the courts to isolate and balance the factors which are relevant . . .” [Minister of Energy, Mines and Resources], at p. 96). [Emphasis added.]

. Red N' Black Drywall Inc. v. Carpenters' District Council of Ontario

In Red N' Black Drywall Inc. v. Carpenters' District Council of Ontario (Div Court, 2024) the Divisional Court considered a 'successor employer' issue [LRA s.69], here in what may be characterized as 'union busting'.

Here the court alludes to the respondent union's argument that a judicial review may be dismissed on the court's JRPA 2(1) discretionary authority ["the court may"] for "admitted anti-union motivation and actions":

[31] The respondents submitted that this is one of the rare cases in which the court should exercise its discretionary authority to refuse to consider an application for judicial review in view of the admitted anti-union motivation and actions of the applicants and their owner. We do not rule out the potential for such an outcome. However, as the court is dismissing the proceeding on its merits, it is unnecessary for us to consider whether in these circumstances relief should not be granted on equitable grounds.

. Caruso v. The Law Society of Ontario

In Caruso v. The Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR by an Ontario paralegal challenging the accepted constitutional governage of immigration consultants, specifically whether LSO By-law 4 ['Licensing'] governed the issue as opposed to s.91(2) ['Representation or Advice'] of the Immigration and Refugee Protection Act.

In these quotes the court considers it's discretionary JR jurisdiction over a challenge to the LSO By-laws:

Court’s Jurisdiction

[29] In the ordinary course, this issue (the proper interpretation of By-Law 4) would come to the Divisional Court as an appeal under s. 49.38 (b) of the Law Society Act from a discipline proceeding against a paralegal who did not comply with the LSO’s interpretation of By-Law 4.

[30] In the present case, the parties have agreed that the matter can proceed to the Divisional Court, even though Mr. Caruso was not subject to a discipline proceeding.

[31] The enactment of By-Law 4 by the LSO was clearly an “exercise ... of a statutory power”, within the meaning of s. 2(1) 2 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (JRPA), and the remedy sought by the Applicant is a declaration in relation to that exercise of a statutory power, bringing the relief requested within the jurisdiction of the Divisional Court under ss. 2(1) and 6(1) of the JRPA.

[32] While there may be some circumstances where it would be preferable to wait for an appeal from a Law Society Tribunal discipline hearing before the Divisional Court weighs in on the merits of the declarations sought, I am satisfied that this is not such a case. Firstly, the Law Society’s interpretation of By-Law 4 has been made abundantly clear to its members. Second, that interpretation has already been accepted by the Law Society Tribunal in other discipline cases: Law Society of Upper Canada v. Ghaneshirazi, 2017 ONLSTH 208, at paras. 7 and 12; Law Society of Ontario v. Belovari, 2023 ONLSTH 33, at paras. 41 and 43. In these circumstances, it is neither necessary nor appropriate to require Mr. Caruso to violate the clear direction of the Law Society and invite disciplinary proceedings before permitting him to seek the declarations sought in this case.

. Bukaczewska v. Longmore-Crann

In Bukaczewska v. Longmore-Crann (Div Court, 2023) the Divisional Court cites a Ontario Court of Appeal case that limits JRs as a matter of discretion where an appeal is available:

[13] In addition, where the legislature has created a statutory decision-making regime with an appeal mechanism, courts will hear judicial review applications of such decisions only in exceptional circumstances: Toth Equity Ltd. v. Ottawa (City), 2011 ONCA 372, at para. 35. ...

. Bukaczewska v. Longmore-Crann

In Bukaczewska v. Longmore-Crann (Div Court, 2023) the Divisional Court importantly considered 'impecuniosity' as a JR discretionary factor:

[16] Moreover, in this case, the Applicant simply asserts that she and Mr. Kozuch, are impecunious. Other than a partial income tax return form for 2022, the Applicant has submitted no evidence of her income or assets, or that of Mr. Kozuch. Further, her assertions that she has been unable to borrow money are unparticularized. In Airside, at para. 8, this court did not accept bald assertions “entirely unsupported by any supporting documentation such as financial statements or specific details about the financial circumstances of the… employer” as justifying a conclusion that there were exceptional circumstances. The Applicant has failed to satisfy me that there are exceptional circumstances that would warrant a finding that judicial review is appropriate in this case.

. Bukaczewska v. Longmore-Crann

In Bukaczewska v. Longmore-Crann (Div Court, 2023) the Divisional Court considered cases where hearing a JR had been allowed (and denied) in "exceptional circumstances", under the court's JR discretion:

[15] The Applicant relies on Carillon Decorative Products Inc. v. Mellon, 2004 CanLII 1535 (Div. Ct.) to argue that there are exceptional circumstances warranting the availability of judicial review where the amount that a party is required to pay is extremely high. In that case, however, the amount was over $500,000, and the court found that there was apparent merit to the application. In this case, the order to pay was for $31,442.84. While the Applicant alleges that this would cause her significant hardship, it is not an amount that would result in a finding of exceptional circumstances. As this court held in Airside Securuity Access Inc. v. Manickhand-Hosein, 2015 ONSC 3419 (Div. Ct.), at para. 5, the administrative process under the ESA “is not meant to be readily avoided[.]”

. Yatar v. TD Insurance Meloche Monnex

In Yatar v. TD Insurance Meloche Monnex (Ont CA, 2022) the Court of Appeal considered the issue of whether, when a statute-limited appeal to 'questions of law' exists [here in LATA 11(6), but the same occurs in RTA 210 and the ODSPA 31(1)], that a party still has judicial review (JR) recourse when there were alleged errors with findings of matters of fact, or matters of fact and law. The Court of Appeal held that the 'questions of law' limitations - as they were a matter of statutory intention, something that Vavilov has re-affirmed respect for - were an intentional restriction in court review. While judicial review is still available where such a limited appeal existed, it was only available as a matter of JR discretion - which the doctrine of Strickland's 'adequate alternative remedy'(AAR) was an central aspect of. In finding AAR, the limited appeal and reconsideration were key 'remedial' factors:

[37] The Divisional Court was correct in concluding that the existence of an adequate alternative remedy was a valid reason not to exercise its discretion to hear and determine a judicial review application. In reaching that conclusion, the Divisional Court properly considered the various factors from Strickland. Those factors directed that result. I mention only a couple of those factors to reinforce the Divisional Court’s conclusion.

[38] First, it is evident from the amendments that the legislature made to the resolution of disputes over SABS that it intended to greatly restrict resort to the courts for the determination of those disputes. One can draw that conclusion from the fact that the legislature limited the statutory right of appeal to questions of law only. The result is that issues of fact or mixed fact and law are presumptively left to the Tribunal to determine, subject to the right to request a reconsideration. In this case, as the Divisional Court pointed out, there were no questions of law raised.

[39] Having said that, I recognize that the appellant still has the remedy of an application for judicial review available to her. That availability is clear from a number of sources, not the least of which is s. 280(3) of the Insurance Act. The section reads:

No person may bring a proceeding in any court with respect to a dispute described in subsection (1), other than an appeal from a decision of the Licence Appeal Tribunal or an application for judicial review.

[40] Nothing turns on the decision of the legislature to include a reference to judicial review in this section. The Judicial Review Procedure Act, R.S.O. 1990, c. J.1, already provides, in s. 2(1), that a “court may, despite any right of appeal, by order grant any relief” by way of judicial review. Further, the case law also makes it clear that “legislatures cannot shield administrative decision making from curial scrutiny entirely”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 24. Similarly, “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 aspects of decisions, to which the appeal mechanism does not apply”: Vavilov, at para. 52.

[41] The reference in s. 280(3) does not change the analysis nor does it change the fact that judicial review is a discretionary remedy. As Cromwell J. said in Strickland, at para. 37:

Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief. [Citation omitted.]

[42] In my view, when the Divisional Court said that it would only exercise its discretion to hear and determine an application for judicial review in exceptional circumstances, what it was attempting to communicate is that it would only be in rare cases that the remedy of judicial review would be exercised, given the legislated scheme for the resolution of disputes over SABS. Put another way, the Divisional Court was recognizing that there would have to be something unusual about the case to warrant resort to the discretionary remedy of judicial review, given the legislative scheme. That legislative scheme includes the right to reconsideration of the Tribunal’s preliminary decision and the statutory right of appeal from decisions of the Tribunal on questions of law.

[43] The decision of the Divisional Court recognizes the legislative intent to limit access to the courts regarding these disputes. This analysis is consistent with the principles regarding the centrality of legislative intent expressed in Vavilov. It also recognizes certain realities regarding the remedy of judicial review. One is the fact that judicial review is a discretionary remedy. Another is that a court is entitled to “refuse to grant any relief on an application for judicial review”: Judicial Review Procedure Act, s. 2(5). Yet another is that the existence of an adequate alternative remedy is, itself, a reason that justifies the exercise of the discretion to refuse to hear a judicial review application: Strickland, at para. 42.

[44] On that point, I do not accept the argument put forward by the appellant that the Divisional Court conflated its discretion to refuse relief with its standard of review analysis and erred by refusing relief without first considering the merits of the application for judicial review. The court’s discretion with respect to judicial review applies both to its decision to undertake review and to grant relief: see, e.g., Strickland, at para. 42; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 30.

[45] I also do not accept the argument advanced by the intervener, the Income Security Advocacy Centre, that the Divisional Court’s analysis of the legislative intent was “narrow and incomplete”. To the contrary, the Divisional Court correctly interpreted the legislative scheme as evincing an intention to limit recourse to the courts. It is inconsistent with the legislature’s decision to limit the right of appeal to questions of law alone to then hold that the remedy of judicial review is all‑encompassing. Rather, I agree with the Divisional Court’s approach, which essentially concluded that judicial review should be restricted to those rare cases where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case. What constitutes such a rare case is for the Divisional Court to determine on a case-by-case basis.

[46] Finally, I do not accept the thrust of the arguments advanced by the interveners, the Income Security Advocacy Centre and the Advocacy Centre for Tenants Ontario, that there must be a wide-ranging right to judicial review in cases such as this, or in cases involving tenants or social assistance recipients. That argument ignores the fact that the legislature has the right, through legislation, to restrict appeal rights. As the intervener, the Attorney General of Ontario, pointed out in its factum, “more checks on decision makers does not necessarily mean more justice.” It also ignores the salient fact that the remedy of judicial review is a discretionary one.

[47] Removing the requirement for exceptional circumstances does not change the rationale or result of the Divisional Court’s decision. It remains true that it will only be a rare case where the remedy of judicial review will be properly resorted to, given the alternative remedies that are available to an unsuccessful party. Those alternative remedies will be, in the vast majority of cases, “adequate in all the circumstances to address the applicant’s grievance”: Strickland, at para. 42.

[48] On this point, I accept that the Divisional Court’s statement, in the penultimate paragraph of its reasons, that judicial review is only available “if at all” in exceptional circumstances, was also unfortunate and unnecessary. It is clear, both from the legislative sources and from case law to which I have referred above, that judicial review is always available. The pertinent question is whether it is appropriate, in any given case, to exercise the discretion to hear and determine that judicial review.

. Riddell v. Huyhn

In Riddell v. Huyhn (Div Ct, 2021) the Divisional Court confirmed the discretionary nature of judicial review:

[15] ... As the Supreme Court of Canada recognized in Strickland v. Canada (Attorney General), 2015 SCC 37 (CanLII), [2015] 2 SCR 713 at para. 37:

Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief: see, e.g., D. J. Mullan, “The Discretionary Nature of Judicial Review”, in R. J. Sharpe and K. Roach, eds., Taking Remedies Seriously: 2009 (2010), 420, at p. 421; Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, at p. 575; D. P. Jones and A. S. de Villars, Principles of Administrative Law (6th ed. 2014), at pp. 686-87; Brown and Evans, at topic 3:1100…

. Makivik Corporation v. Canada (Attorney General)

In Makivik Corporation v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered the discretionary nature of judicial review:

[60] Both remedies on judicial review, and undertaking judicial review in the first place, are discretionary: Strickland v. Canada (Attorney General), 2015 SCC 37 at paras. 37-38; Bessette v. British Columbia (Attorney General), 2019 SCC 31 at para. 35. The categories of cases in which courts may exercise the discretion not to undertake judicial review are not closed. In my view, they include cases involving disputes under modern treaties, in which the Supreme Court has directed judicial forbearance and restraint. For a court to hear and decide a dispute under a modern treaty on the merits, and then exercise its discretion only at the remedy stage, risks sapping the Supreme Court’s directions to practise judicial forbearance and restraint of much of their force. Even where the reviewing court chooses not to grant declaratory relief, its reasons for judgment on the merits will be binding on the parties, the administrative decision-maker, and (depending on the judicial hierarchy) other courts: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 at paras. 105-106.

...

[153] The granting of declaratory relief, like the granting of any relief on judicial review, is discretionary: Ewert at para. 83; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 36; Strickland at paras. 37-38; Bessette at para. 35; Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(3). ...