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Judicial Review - Yatar
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. Luluquisin v Aviva Insurance Co. of Canada
In Luluquisin v Aviva Insurance Co. of Canada (Div Court, 2023) the Divisional Court considers whether it should exercise it's discretion to hear a JR (only), here of a LAT SABS ruling, where an appeal right exists but was not used (a Yatar issue):[12] The Applicant relies on the Court of Appeal’s decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446,[1] to argue that he is entitled to seek judicial review of the decisions, notwithstanding the existence of a statutory appeal. The Applicant’s rationale is that it is appropriate to proceed by way of an application for judicial review because the errors that he relies on are errors of mixed fact and law. The Applicant submits that he would not be able to pursue a statutory appeal under s. 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (the “LAT Act”), which limits appeals to questions of law.
[13] The Respondent submits that the Applicant ought to have been brought a statutory appeal, as provided under s. 11(6) of the LAT Act. The Respondent responded to the Applicant’s judicial review application as if it were a statutory appeal.
[14] Under s. 11(6) of the LAT Act, an appeal from a decision of the Tribunal relating to a matter under the Insurance Act is limited to questions of law. In Yatar, the Court of Appeal addressed the availability of judicial review in circumstances where the legislative scheme has provided a statutory appeal on questions of law. The Court of Appeal held that by restricting appeals to questions of law, the legislator has indicated an intent to leave issues of fact or mixed fact and law to the Tribunal to determine, subject to the right to request reconsideration: Yatar, at para. 38. On the availability of judicial review, Nordheimer J.A. stated as follows (at para. 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. [15] The existence of an adequate alternative remedy is a valid reason not to exercise the court’s jurisdiction to hear and determine a judicial review application: Yatar, at para. 37.
[16] In my view, in the circumstances of this case, this court should not exercise its discretion to hear the application for judicial review. Given the possibility of bringing a statutory appeal, the Applicant has failed to exhaust the available remedies. Unlike the situation in Yatar, where the applicant brought both a statutory appeal and an application for judicial review, in this case, the Applicant brought only an application for judicial review.
[17] It is unclear why the Applicant chose not to pursue a statutory appeal. At the hearing, counsel submitted that a statutory appeal was not pursued because all the alleged errors are errors of mixed fact and law and, as a result, the appeal would not be as to a question of law only, as required under s. 11(6) of the LAT Act. However, the notice of application for judicial review pleads a number of errors of law. Having alleged errors of law on the part of the Tribunal, the Applicant ought to have pursued a statutory appeal.
[18] Moreover, I find that the allegations raised in the notice of application for judicial review do not support a finding that this is one of the rare circumstances in which this court should exercise its discretion to hear the application for judicial review over the clear legislative direction limiting appeals to questions of law. There is nothing “unusual” about this case to warrant resort to the discretionary remedy of judicial review: Yatar, at para. 42. The import of the Court of Appeal’s decision in Yatar was not to give parties an option of pursuing an application for judicial review in every case where the alleged errors are errors of mixed fact and law.
[19] In addition, the notice of application for judicial review is in respect of the Reconsideration Decision. However, the Applicant seeks to have both the original Decision and the Reconsideration Decision quashed. In respect of the Decision, the application for judicial review was not filed in time: Judicial Review Procedures Act, R.S.O. 1990, c. J.1. While this court has discretion to extend the time to seek judicial review, no motion for an extension of time was brought.
[20] At the hearing, the panel inquired whether the parties agreed to have the matter proceed as a statutory appeal. The Applicant, despite initially taking the position that the matter should be heard as a judicial review application, requested that the panel exercise its discretion to decide the matter as a statutory appeal. Despite having responded to the application for judicial review as if it was a statutory appeal, Intact took the position that the application should not be converted into a statutory appeal.
[21] Leaving aside the issue of the court’s jurisdiction to convert an application for judicial review into a statutory appeal at the hearing stage, in any event, this is not an appropriate case to convert the application for judicial review into a statutory appeal.
[22] In Peel Standard Condominium Corporation No. 779 v. Rahman, 2021 ONSC 7113 (Div. Ct.) para. 42, this court dismissed a judicial review application without prejudice to any motion to extend time for appeal. The court expressly denied the applicant’s request to have the matter proceed as an appeal on the basis that the notice of application referred to the availability of statutory appeal. On this point, Kristjanson J. stated as follows, at para. 22:Referring to an available statutory appeal does not mean that it is a statutory appeal. This represents a misunderstanding of the importance of the failure to pursue the appropriate remedy. There are different requirements governing appeals and judicial reviews under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The powers of the court differ. The role of the CAT differs. I have determined that it would not be fair to the parties to proceed as if this were a properly constituted appeal, given the importance of the requirement that the statutory appeal be limited to (and properly framed as) questions of law. I also place weight on the significant difference that standard of review makes to the arguments, given that statutory appeals are subject to appellate standards of review. [23] At no time before the hearing did either party raise with the court the issue of whether the matter could properly proceed as an application for judicial review. As found in Peel Standard, the parties ought to have discussed whether the matter should proceed as a statutory appeal or an application for judicial review and raised the issue at a case conference. At a time when all matters before the Divisional Court are being case managed, there is simply no justification for failing to bring the issue to the court’s attention. Kristjanson J.’s comments in Peel Standard, at para. 13, would apply equally here:In a timely manner counsel could have discussed productive means of resolving concerns, which may have included a consent to abandon the judicial review, extend time for filing of the Notice of Appeal, and proceeding by way of appeal. The Condominium Corporation did not respond to the issue prior to the appearance in court today. It filed no materials and did not seek a Case Management attendance to file a reply factum, or to discuss whether, prior to attending before the panel, the application could be converted to an appeal. Any of these steps might have prevented what happened today and would have avoided a misuse of the resources of the clients and the court. [24] As a result, I decline to convert the application for judicial review into a statutory appeal. . Lengyel v. The Licence Appeal Tribunal et al.
In Lengyel v. The Licence Appeal Tribunal et al. (Div Court, 2023) the Divisional Court, following on the Yatar decision, allowed a combined statutory appeal (on questions of law only) and a judicial review (on questions of fact and law, and questions of fact) to proceed together:The Preliminary Issue: Should a Judicial Review be heard concurrently with the Appeal?
[7] The first and preliminary question is whether this matter should be heard as an appeal and as a judicial review.
[8] Starting with Ms. Lengyel’s appeal rights, I agree with LAT’s submission that s. 11(1) of the Licence Appeal Tribunal Act limits appeals to final orders on questions of law. This is consistent with prior findings of this court: Penney v. The Co-operators General Insurance Company, 2022 ONSC 3874 (CanLII). Thus, only the final decision of the LAT is subject to appeal here, and only on questions of law.
[9] For Ms. Lengyel’s request to simultaneously seek judicial review of both the interlocutory and final decisions of the LAT, the LAT submits that Ms. Lengyel must exhaust her appeal rights before embarking on a judicial review. Certas does not oppose her ability to argue both the appeal and judicial review at one proceeding, based on this court’s reasoning in Yatar v TD Insurance Meloche Monnex, 2021 ONSC 2507.1 In that decision, the court confirmed that in “exceptional circumstances” the court may decide to hear concurrent applications for judicial review with an appeal.
[10] The Judicial Review Procedure Act, R.S.O 1990, c. J.1, s. 2(1) (the “JRPA”), grants this Court jurisdiction to hear applications for judicial review notwithstanding an applicant’s ability to appeal the same decision.
[11] LAT submits that this court is nevertheless not compelled to undertake judicial review because by their nature such applications are for extraordinary or discretionary relief: see Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 70.
[12] Judicial review may be declined in circumstances where permitting review might undermine the statutory appellate scheme: see Worden v. Ontario Municipal Board, 2014 ONSC 7247 at para. 14. This concern is attenuated where the application is for concurrent proceedings on the same record.
[13] I would exercise discretion to hear Ms. Lengyel’s application for judicial review concurrently with the statutory right of appeal based on the nature of the decision which terminated her application for accident benefits, her interests as a self-represented litigant with health issues, and the desirability of reducing duplication of resources by the parties and the administration of justice. The parties have prepared a record and have been directed to be ready with oral submissions on both the appeal and the judicial review. It would be inefficient, unnecessarily costly, and impractical to sever the judicial review at this stage from the appeal.
[14] Ms. Lengyel’s application for judicial review of the interlocutory and final orders made by the LAT shall be heard concurrently with her appeal from the final order of the LAT on questions of law. . Alayche v. Landlord and Tenant Board (Ontario)
In Alayche v. Landlord and Tenant Board (Ontario) (Div Court, 2023) the Divisional Court considers another Yatar development. In this case an applicant applied for JR of an LTB ruling without also applying for an RTA s.210 appeal, while the Yatar decision (Ont CA, 2022) prescribed that in such cases the appellant-applicant could [the key passage is: "if a party intends to utilize both their right of appeal and their right to seek judicial review": para 55] apply for both. The LTB applied to dismiss the JR on prematurity, which I think is very questionable after the Yatar decision. Corbett J "direct(s) that the issue may be raised as a defence to the application" which should achieve his reasonable intention that the matter be heard by a full Divisional Court panel:[1] The applicant seeks judicial review of decisions of the Landlord and Tenant Board without first exhausting appeal rights pursuant to s.210 of the Residential Tenancies Act. The landlord and Tenant Board moves to quash the application on the basis that judicial review may not be sought where an applicant has not exhausted their statutory appeal rights.
[2] When this motion was initiated, the moving party relied on a long line of cases in which this court has required that statutory appeal rights be exhausted before recourse to an application for judicial review. The moving party also relied on the recent decision of this court affirming that long line of authority and making it clear that judicial review will rarely be available in a practical sense where there is a statutory right of appeal: Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507. Prior to argument of this motion, the Court of Appeal released its decision in Yatar (2022 ONCA 446). The Court of Appeal held that, not only may an application for judicial review be brought before appeal rights have been exhausted, but also that such an application shall be brought at the same time as and be heard at the same time as an appeal, to reduce delay and multiple proceedings. A motion for leave to appeal from this decision to the Supreme Court of Canada is pending (SCC docket 40348).
[3] Of course, an appeal from the LTB may be brought without an application for judicial review. Based on Yatar, an application for judicial review shall be brought at the same time as an appeal, not after appeal rights have been exhausted. Nothing in the Court of Appeal’s decision in Yatar establishes that it is a condition precedent to seeking judicial review that an appeal must also be brought. It is arguable that in providing a process to hear appeals and applications for judicial review at the same time, the principle that appeal rights must be asserted has been displaced. Yatar does not address this issue directly.
[4] In my view, the jurisprudential ground may have shifted so significantly as a result of the Court of Appeal’s decision in Yatar that it is now not clear that an application for judicial review may not be brought without also asserting appeal rights. This appears to be an arguable point and is important to practice in this court. It should be decided by a panel of this court. In the context of this case, I would not refer this motion to a panel, but rather would direct that the issue may be raised as a defence to the application.
[5] The motion to quash is dismissed, without prejudice to any party advancing this argument before the panel hearing the application. There shall be no order as to costs of the motion. . 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 mixed 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 a central aspect of. In finding AAR, the limited appeal and the availability of administrative 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. . Yatar v. TD Insurance Meloche Monnex
In Yatar v. TD Insurance Meloche Monnex (Ont CA, 2022) the Court of Appeal set out procedures for the exceptional circumstances where both an appeal and judicial review are advanced concurrently in the same case and for related issues:(3) Concurrent appeal and judicial review proceedings
[53] Before concluding, I will address one other issue that is raised by the parties and that is the reference by the Divisional Court to what it described as “the systemic difficulties associated with duplicative judicial reviews and appeals.” The Divisional Court identified these difficulties as one of the factors weighing against considering the judicial review application.
[54] I have already said that judicial review is available in these cases. As I have also said, there is a difference between the availability of judicial review and whether such relief will be granted. However, the fact that judicial review is available does raise the practical problem of how that application should be dealt with when there is also a statutory right of appeal. On that issue, I make two comments.
[55] First, if a party intends to utilize both their right of appeal and their right to seek judicial review, then those proceedings must be brought together. Put simply, a party cannot first exercise their right of appeal and then, if unsuccessful, bring a judicial review application. “Litigation is not to be conducted by instalment”: Shearer v. Oz, 2021 ONSC 7844, at para. 5.
[56] Second, once both proceedings are commenced, a motion must be brought for the two proceedings to be heard together with a single appeal book/application record and factum covering both proceedings. It would, of course, be open to the Divisional Court to adopt a Practice Direction that directs that this is the process to be followed, in an effort to avoid such motions. The Practice Direction could also address any issues with differing time periods for filing and like matters. Failing that, the time and expense of such a motion could be greatly reduced if counsel were to agree on the terms of an appropriate order with a further agreement that the motion could then be dealt with in writing.
[57] Simply put, the difficulties that the Divisional Court identified with concurrent proceedings can be minimized through appropriate Practice Directions and/or the co-operation of counsel. . Ladouceur v. Intact Insurance Company
In Ladouceur v. Intact Insurance Company (Div Court, 2022) the Divisional Court considered a judicial review (JR) from a LAT decision to deny a procedural time extension. An appeal lay to the Divisional Court but only on 'questions of law' (which this was not), thus the applicant sought to JR the LAT decision as an issue of mixed fact and law. The court exercised it's JR discretion to decline to hear the matter::[6] Judicial review is a discretionary remedy. Where an applicant has an adequate alternative remedy, the court may exercise its discretion to refuse judicial review (Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 at paras. 37, 41-44).
[7] Given the legislative regime, which provides for an appeal from a decision of LAT under the Insurance Act only on a question of law, as well as the right to seek reconsideration of the decision by the Tribunal, this Court will consider an application for judicial review of a LAT decision under the Insurance Act only in rare circumstances. As the Court of Appeal stated in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 at para. 45,… 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. [8] At para. 47, the Court of Appeal also stated,... 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. [10] As this Court said in Tipping v. Coseco Insurance Company, 2021 ONSC 5295 at para. 39, a decision rendered prior to the Court of Appeal’s decision in Yatar:In this case, the mere fact that Mr. Tipping may not be able to appeal the LAT’s findings of fact or findings of mixed fact and law is not an exceptional circumstance. Rather, precluding Mr. Tipping from proceeding with his application for judicial review on these issues is respectful of the legislature’s intention to limit the courts’ interference with LAT decisions to questions of law alone.
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