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Judicial Review - Where Limited Appeal (2)

. South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al.

In South Junction Triangle Grows Neighbourhood Association v. 1423 Bloor Street West Inc. et al. (Div Court, 2023) the Divisional Court considered dual JR and (leave to) appeal proceedings as countenanced under the Yatar case, here against the OLT.

In these quotes the court characterizes (and agreeds) with the applicant's understanding of the 'dual proceeding' aspect of Yatar:
[3] In response to the r. 2.1 notice, the applicant submits that judicial review remains available to a party even when there is another statutory review mechanism. It states that this is one of the rare cases where the statutory remedy is insufficient to address the particular factual circumstances of the case. Further, in its submission, an appeal limited to questions of law cannot be an adequate alternative remedy for alleged factual errors.

[4] While I agree with the applicant’s statement of the law, as further discussed below, there are no particular circumstances that could justify judicial review in this case. The application is dismissed pursuant to r. 2.1.01 for the following reasons.

....

[6] In Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, leave to appeal granted, [2022] S.C.C.A. No. 310, the Court of Appeal held that a court should exercise its discretion to judicially review a decision of the Licence Appeal Tribunal (LAT) in “rare cases.” The legislature had limited the statutory right of appeal to questions of law only. Issues of fact or mixed fact and law were presumptively left to the LAT to determine subject to the right to request a reconsideration.

....

[9] In addition, all the grounds in the notice of application either raise alleged errors of law or directly repeat alleged breaches of procedural fairness found in the notice of motion. The notice of application does not contain any alleged errors of fact. Therefore, this is not a case where the applicant has made allegations that are outside the scope of an appeal on a question of law. In short, the applicant has not demonstrated any basis on which this court could find this to be one of the rare cases where an application for judicial review would proceed even though the motion for leave to appeal the same decision was dismissed.
. Sapershteyn et al v. 1821317 Ontario Limited et al

In Sapershteyn et al v. 1821317 Ontario Limited et al (Div Court, 2023) the Divisional Court [at para 31] highlights a feature of LTB appeal law [RTA 210] - ie. "the Board has the legal opportunity to be wrong in its application of the facts to the law". This point can be supplemented with the new 'Yatar' judicial review (JR) law, which provides the reviewing party with a 'reasonableness' SOR - if the party goes to the trouble a filing an additional JR:
[27] The crux of the appeal is the issue of the Board’s application of s. 135.1 to the circumstances presented. This raises the question of whether the issue raised by the appellant is a question of law or a question of mixed fact and law.

[28] The appellant framed the issue as whether the Board erred on the facts in deciding that the May 26, 2020 endorsement was a final determination per s. 135.1.

[29] To determine that issue, this Court would have to delve into the facts and determine whether the Board’s application of s. 135.1 to the facts was an error. I am of the view that such a determination is a question of mixed fact and law.[19] The appellant is asking this Court to substitute its decision of the application of the facts to s. 135.1 to that of the Board.

[30] It is undisputed that the Board has special knowledge and expertise as it concerns residential tenancies and its processes for addressing disputes. Deference must be given to the Board’s assessment of the factual matrix of issues and the application of the facts to the law. It is a clear intention of the legislature per s. 210 of the RTA that this Court is only to interfere with a Board’s decision on questions of law.

[31] Whether this Court would have come to the same conclusions as the Board on its application of the facts in this matter is not the issue. The Board has the legal opportunity to be wrong in its application of the facts to the law. As long as the Board utilized the right test, which the Board did in this circumstance, of whether there was a final determination of the issue of the validity of the rent increases before July 21, 2020, this Court has must not interfere with the Board’s assessment.
. Mansuri v. Dominion of Canada General Insurance Company

In Mansuri v. Dominion of Canada General Insurance Company (Div Court, 2023) the Divisional Court considers a JR against a LAT SABS interlocutory decision, wherein "the Tribunal dismissed the applicants’ interlocutory motion to disqualify Dominion’s counsel and its adjuster from handling the applicants’ accident benefits claims on the basis of conflict of interest and breach of duties of privacy and confidentiality".

In these quotes, the court considers the Yatar principle which governs parallel judicial review when an appeal is restricted to 'questions of law', here under LATA s.11(6):
A. Jurisdiction

[17] In support of their submissions on jurisdiction, the applicants rely on the Court of Appeal decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 [“Yatar CA”], leave to appeal allowed, [2022] S.C.C.A. No. 310. In that case, the appellant brought an unsuccessful application before the Tribunal to determine whether she was statute-barred from challenging a denial of her claims for accident benefits under SABS. The appellant brought both an appeal and a judicial review application before the Divisional Court, challenging the Tribunal’s decision.

[18] In its decision (reported at 2021 ONSC 2507;157 O.R. (3d) 337 (Div. Ct.)) [“Yatar DC”], the Divisional Court dismissed both the appeal and the judicial review application. At para. 24, the court noted that it had jurisdiction to hear the appeal on a question of law only: Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 112, Sched. G (“LAT Act”), s. 11(6). The court found that there was no error of law and dismissed the appeal on that basis: Yatar DC, at para. 32.

[19] With respect to the judicial review application, the Divisional Court recognized that a statutory appeal on questions of law “does not deprive this court of jurisdiction to consider other aspects of a decision in judicial review proceedings”: Yatar DC, at para. 36. However, the court decided to exercise its discretion to dismiss the judicial review application. In reaching that conclusion, the court considered the following factors:
a. The SABS statutory scheme, which included the Tribunal’s exclusive jurisdiction at first instance over disputes under SABS and a statutory appeal right restricted to questions of law: at para. 41;

b. The availability of an adequate alternative remedy, the Tribunal’s reconsideration power, that applied in that case (since the decision under review was a final decision) and provided an “internal standard of review that is akin to correctness”: at paras. 38-39, 42-43;

c. The nature of the alleged errors in that case, being alleged errors on questions of fact or mixed fact and law involving assessment of the evidence: at para. 44; and

d. Systemic difficulties associated with duplicative judicial reviews and appeals: at para. 45.
[20] Weighing those factors, the Divisional Court concluded that “judicial review of a LAT SABS decision is only available, if at all, in exceptional circumstances.” The court found that there were no exceptional circumstances and dismissed the judicial review application: at para. 46

[21] In Yatar CA, the Court of Appeal upheld the Divisional Court’s decision and dismissed the appeal. In doing so, the court considered whether the Divisional Court erred in limiting judicial review to “exceptional circumstances” in cases where there has been a statutory appeal from a Tribunal decision about SABS: Yatar CA, at para. 27. The court expressed the view that the use of the language “exceptional circumstances” was unfortunate in that context but went on to indicate that “it would only be in rare cases that the remedy of judicial review would be exercised”: Yatar CA, at para. 35. Put another way, “there would have to be something unusual about the case to warrant resort to the discretionary remedy of judicial review, given the [SABS] statutory scheme”, which 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”: Yatar CA, at para. 42.

[22] At para. 44, the court rejected the submission that the Divisional Court erred by exercising its discretion to refuse relief without first considering the merits of the judicial review application. The Court of Appeal found that the “court's discretion with respect to judicial review applies both to its decision to undertake review and to grant relief”, relying on previous case law that included Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 42.

[23] At para. 45, the Court of Appeal went on to state as follows:
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.
[24] At para. 47, the court also noted as follows:
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.
[25] At para. 48, the court also found that the Divisional Court’s use of the words “if at all” in exceptional circumstances was unfortunate and unnecessary, noting that in that context “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.”

[26] The applicants submit that the Divisional Court has jurisdiction to hear and determine the judicial review of the Initial Decision, given that the alternative remedies of reconsideration and appeal are not available with respect to an interlocutory decision of the Tribunal: see Common Rules, r. 18.1; Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874, 25 C.C.L.I. (6th) 305 (Div. Ct.), at para. 26[2]. There is no dispute that the Initial Decision is an interlocutory order, since it does not finally dispose of the underlying proceedings before the Tribunal or a substantive issue or claim in that proceeding: see Penney, at para. 6.

[27] There is also no dispute that the Divisional Court has jurisdiction to hear and determine this judicial review application, in its discretion: see Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2(1), 2(5), 6(1). The pertinent question is whether it is appropriate to exercise the discretion to hear and determine the judicial review in this case: Yatar CA, at para. 48.

...

IV. Analysis and conclusion

[34] The applicants submit that the facts and circumstances of this matter make it one of the rare cases in which judicial review of an interlocutory decision should be permitted to proceed. They say that the absence of alternative remedies of reconsideration and appeal leave no alternative to a judicial review application that would be sufficient to address the unique circumstances of this case. They also submit that deferring review of the Initial Decision until the underlying Tribunal applications are determined may result in the need to rehear and redetermine five applications for three applicants, resulting in needless delay and inefficiency. The applicants also argue that the continuing improper commingling and sharing of information by Dominion and its counsel and the continued involvement of conflicted persons would result in irreparable prejudice to the applicants that may be averted by hearing and determining the early judicial review of the Initial Decision.

[35] I do not agree.

[36] When an applicant seeks early judicial review of an interlocutory administrative decision, the burden is on the applicant to justify departure from the usual approach of waiting until the underlying proceedings are complete. The bar to be met is a high one, whether expressed as a “rare case” or “exceptional circumstances”. I have concluded that in either case, the applicant have not met that burden.

[37] Contrary to applicants’ submission, this is not a case where the applicants have no effective alternative to early judicial review. It is true that at this stage the applicants have no access to reconsideration (Common Rules, s. 18.1) or appeal (LAT Act, s. 11(6); Penney, at para. 26), but that is part of the SABS statutory scheme, which is entitled to deference: Yatar CA, at paras. 42-45; Vavilov v. Canada (Minister of Citizenship and Immigration), 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 24, 36. Once the underlying Tribunal applications are complete, the applicants will have access to reconsideration and to an appeal (on a question of law), consistent with the statutory scheme. The applicants would also have access to judicial review, subject to the court’s discretion in a “rare case” as outlined in Yatar CA, at paras. 45, 47.

[38] I am also not persuaded that early judicial review is justified in the interest of avoiding delay and inefficiency. As noted in Pafco, at para. 13, even if the impact of an interlocutory ruling is potentially material, that fact (if established) does not necessarily outweigh the benefits of allowing the underlying proceedings to run their course. While it is possible that a successful appeal may result in three Tribunal re-hearings in this case, I am not satisfied that result would outweigh the benefits of waiting until the underlying proceedings are complete before addressing the applicants’ challenge to the Initial Decision. In fact, there may not be any need for subsequent court proceedings at all, depending on the outcome of the Tribunal applications.
. Canada (Attorney General) v. Pier 1 Imports (U.S.)

In Canada (Attorney General) v. Pier 1 Imports (U.S.) (Fed CA, 2023) the Federal Court of Appeal considered a joint appeal-JR against a ruling of the CITT (Canadian International Trade Tribunal), here addressing the calculation of 'value for duty' for imported goods (custom rates).

The relevant Customs Act (CA) provisions [CA s.67] purported to bar JR (a privative clause), leaving the aggrieved party with only a 'question of law' appeal right [CA s.68], an situation that has attracted recent judicial attention (Yatar):
A. Observations Regarding the Concurrent Appeal and Application for Judicial Review

[28] The present case addresses both an appeal and an application for judicial review brought concurrently. Our Court recently discussed the issue as to whether an application for judicial review can be considered notwithstanding the statutory appeal mechanism contemplated by Parliament in subsection 68(1) of the Customs Act.

[29] More specifically, in Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, [2021] F.C.J. No. 848 (Best Buy), our Court was unanimous on the disposition of the appeal but split on the question of whether the limitation in section 18.5 of the Federal Courts Act excluded applications for judicial review on questions of fact. The minority reasoned that only the statutory appeal mechanism under subsection 68(1) of the Customs Act was available to the parties to review the decision—i.e., only errors of law could be reviewed by our Court (Best Buy at paras. 36–61). The majority, however, found that such a complete bar to judicial review would be incompatible with the rule of law. Hence, the majority concluded that both errors were reviewable—errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review (Best Buy at paras. 112, 120). Our Court has since confirmed that the ability to bring an application for judicial review in parallel with an appeal, though on limited grounds, has been settled by Best Buy (BCE Inc. v. Québecor Média Inc., 2022 FCA 152, 2022 A.C.W.S. 5773 at para. 58 (BCE)).

[30] The above rulings are binding. The concurrent filing of an appeal and an application for judicial review in the same proceeding nonetheless raises certain practical considerations that will briefly be addressed in conclusion of these reasons.

....

[47] In conclusion, a few additional observations are apposite with respect to concurrent proceedings—appeal and judicial review—where the legislative intent is to limit an appeal to questions of law, as is the case in section 68 of the Customs Act (Vavilov at paras. 33, 36).

[48] The interaction between a right of appeal and judicial review has recently garnered judicial and academic interest across the country (See Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446, 2022 A.C.W.S. 1702 (leave to appeal to SCC granted, 40348 (9 March 2023)) (Yatar); Smith v. The Appeal Commission, 2023 MBCA 23, 479 D.L.R. (4th) 121; Best Buy; BCE; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 (Canadian Council for Refugees); Neptune; Democracy Watch v. Canada (Attorney General), 2023 FCA 39, 2023 A.C.W.S. 707; Democracy Watch v. Canada (Attorney General), 2022 FCA 208, 2022 A.C.W.S. 5655; Paul Daly, “Vavilov on the Road” (2022) 35:1 Can. J. Admin. L. and Prac. 1; Paul Daly, “Rights of Appeal: Contracting or Expanding Judicial Review?” (3 October 2023), online (blog): Administrative Law Matters ˂www.administrativelawmatters.com/blog/2023/10/03/rights-of-appeal-contracting-or-expanding-judicial-review/˃; Mark Mancini, “Issue #71: Administrative Law Wrapped, 2022” (18 December 2022), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-71-administrative-law-wrapped˃; Mark Mancini, “Issue #45” (19 June 2022), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-45-june-19-2022˃; Mark Mancini, “Issue #4” (8 August 2021), online (blog): The Sunday Evening Administrative Review ˂sear.substack.com/p/issue-4-august-8-2021˃).

[49] The key issue emerging in this regard, except for Canadian Council for Refugees and the Democracy Watch cases, does not seem to be whether an application for judicial review remains available to a party concurrent to an appeal. Rather, the genuine issue is to what extent a judicial review application, which is by definition a discretionary remedy, should be entertained when filed concurrently with an appeal that has been expressly limited in scope.

[50] However trite, the duplication of proceedings has an impact on judicial economy (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 70). Recently, the Supreme Court in Vavilov reiterated the goal of judicial efficiency in administrative law (Vavilov at para. 29). The minority in Best Buy foresaw the consequences of the duplication of procedures, noting that the “process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone” (Best Buy at para. 68).

[51] The present circumstances are no different. This appeal and application for judicial review followed two sets of procedural requirements but were ultimately heard together (see Rule 301 and following and Rule 337 and following of the Federal Courts Rules, S.O.R./98-106). The parties, nonetheless, had to prepare and respond to two memoranda, which contained overlapping arguments. This may be explained by the fact that an application for judicial review must be filed within 30 days, whereas an appeal can be filed within 90 days (see s. 18.1(2) of the Federal Courts Act and s. 68(1) of the Customs Act). These timeline incongruences resulted in the parties including in their judicial review application memoranda arguments that should have fallen within the purview of the limited right of appeal. Consequently, at the hearing, the arguments were repetitive, or at best, repackaged and articulated differently in the context of either the appeal or the application for judicial review.

[52] The better approach to reflect Parliament’s intent and the rule of law might be the more restrictive stance adopted by the Ontario Court of Appeal, which reiterates that “judicial review is always available,” but mandates that courts ask themselves whether it is an “appropriate” exercise of their discretion, adding that this is so only in “rare cases” (Yatar at paras. 42, 48). However, the Ontario Court of Appeal did not expand on the meaning of “rare cases,” stating that they should be determined on a “case-by-case basis” (Yatar at para. 45). Perhaps because, as a matter of practice, and in the vast majority of cases, the statutory appeal will be sufficient to address the issue at hand, and the judicial review, although available, will be rendered superfluous (Yatar at para. 47; Best Buy at para. 129).



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Last modified: 18-12-23
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