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Judicial Review - Yatar (3). Kaloczi v. Wawanesa Mutual Insurance Company
In Kaloczi v. Wawanesa Mutual Insurance Company (Div Court, 2024) the Divisional Court dismissed an appeal, here from a LAT SABS ruling that "found that the Appellant did not sustain a catastrophic impairment (“CAT” impairment) as a result of a motor vehicle accident".
Here the court considers a situation where Yatar may have been thought appropriate by the appellant, but was procedurally too late:[12] As stated previously, this Court’s jurisdiction on appeal is limited to questions of law. During oral argument, counsel for the Appellant was pressed on whether his submissions fall outside the permitted scope of appeal by virtue of raising questions of fact or mixed fact and law. Relying on Yatar v. TD Insurance Meloche Monnex, SCC 2024 8, counsel suggested that if these questions are determined to be factual in nature, then an appropriate course would be to proceed by way of judicial review. This would allow the court to consider questions of fact on a reasonableness standard.
[13] It was not open for counsel to suggest this course of action this late in the proceeding. The practice relating to concurrent judicial reviews and appeals requires parties to bring both proceedings together. A motion must also be brought for the two proceedings to be heard together with a single appeal book/application record and factum: Yatar v. TD Insurance Meloche Monnex, 2024 ONCA 446, at paras. 55-56, rev’d on other grounds 2024 SCC 8; see also Humberplex Developments Inc. v. Ontario (Attorney General), 2024 ONSC 2335, at para. 88; Shearer v. Oz, 2024 ONSC 1723, at para. 30. . Achaia-Shiwram v. Intact Insurance Co.
In Achaia-Shiwram v. Intact Insurance Co. (Div Court, 2024) the Divisional Court dismissed a LAT SABS appeal, here for "no-fault accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”)" for "catastrophic psychological impairment".
Here, in an appeal where the appellant struggled with the inconsistent law surrounding when a fact error constituted a legal error (and that of extricable errors contained in mixed errors of fact and law), the appellant left the Yatar JR option too late:[38] At the end of oral argument, the applicant asked the court to consider granting leave to bring a judicial review application if the appeal was unsuccessful. Such an application would be over a year late and the request for leave was not the subject of a proper motion. In the circumstances, and in the absence of Intact’s consent (which was not provided), I would not be prepared to grant the requested leave. . Traders General Insurance Company v. Rumball
In Traders General Insurance Company v. Rumball (Div Court, 2024) the Divisional Court allowed a motion to extend time for a LAT SABS auto insurance judicial review [JRPA 5(1)], here in unusual circumstances where there was an earlier statutory appeal and as well the Yatar case came down in the SCC (2024) while pending:[3] Since a judicial review of the interlocutory decisions would have been premature, in addition to other potential obstacles, all parties have focused on the date of the Final LAT Decision. As of that decision in 2020, a judicial review had to be commenced within 30-days, as set out in s. 5 of the Judicial Review Procedure Act, R.S.O. 1990, c. 11. There was no prescribed time period prior to 2020.
[4] The moving party therefore needs an extension of time, which may be provided under s. 5(2) of the Act. This motion was brought and a preliminary issue was raised about the affidavit delivered in support of this motion as containing problematic statements such as argument. I have disregarded the contentious contents of that affidavit.
[5] This motion arises in highly unusual circumstances. The Final LAT Decision was the subject of an appeal and cross-appeal to this Court.[1] The limitation period issue was the subject of the appeal and was dismissed because it was not a question of law. It was a question of mixed fact and law. There was therefore no right of appeal. The cross-appeal related to the denial of post-104 IRBs. It was also dismissed. The Court of Appeal denied leave from the decision on the appeal but granted leave from the decision on the cross-appeal. Upon being advised of this motion, the Court of Appeal vacated the hearing date regarding the cross-appeal pending these proceedings.
[6] Under s. 5(2) of the Act, I may grant an extension of time if I am satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result due to the delay. The length of the delay and explanation for the delay are also relevant considerations: Unifor v. Scepter Canada Inc., 2022 ONSC 5683 (Div. Ct.), at para. 18.
[7] The moving party relies on Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, to explain the timing of the proposed application for judicial review. The moving party submits that prior to this decision, released in March 2024, it would have had to meet a high hurdle to pursue judicial review. The moving party moved promptly after the above decision to bring this motion.
[8] The recent decision in Yatar is a relevant consideration on this motion but it is not determinative.
[9] On the apparent grounds for relief, the moving party submits that the prior appeal does not undermine the merits because this Court found the appeal on this issue was not a question of law. It therefore did not address the issues. There is some obiter in that decision that I have considered but the decision was that there was no right of appeal. The moving party submits that it is plain on the face of the termination letter that it was clear and unequivocal. The moving party submits that once the letter is reasonably interpreted, settled Court of Appeal jurisprudence will determine the limitation issue in its favour. I need not conclude that these apparent grounds of relief have a strong chance of succeeding.
[10] On the issue of prejudice, the moving party submits that it has both paid Ms. Rumball all the IRBs that were already awarded by the LAT and has agreed not to claim them back if successful. The moving party’s focus is on not paying any more IRBs, which brings the outstanding Court of Appeal proceedings into consideration. If the limitation period ruling is overturned, that appeal becomes moot. Ms. Rumball submits that is prejudicial to her. However, should that transpire it would mean that there would be no legal entitlement to the post-104 IRBs. I have also considered the implied prejudice that arises from the passage of time, but it is diluted by the ongoing proceedings in the Court of Appeal.
[11] I agree with the submissions of LAT that finality is a central principle in the administration of justice and a compelling consideration in assessing prejudice. Moving party’s counsel fairly conceded that the recent decision in Yatar is not enough and, on prejudice, emphasized that in this unusual case the issues are still live issues between the parties.
[12] This is an unusual case. Without the outstanding appeal hearing at the Court of Appeal, arising from the same Final LAT Decision and about the same benefits (IRBs), I would not grant the motion. . Khan v. Allstate
In Khan v. Allstate (Div Court, 2024) the Divisional Court dismisses a motion to extend time to commence a Yatar JR (here against SABS decisions of the LAT) - this in conjunction with a LAT SABS appeal:[2] Mr. Khan initiated both an appeal and an application for judicial review of the Tribunal decisions on March 7, 2023 but states he subsequently discontinued the application because of an adverse costs award in another case in which the court relied on the Court of Appeal decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446. Yatar was subsequently reversed by the Supreme Court of Canada: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8. Whereas the Court of Appeal had stated, given the existing statutory right of appeal, judicial review was reserved for “rare cases,” the Supreme Court concluded a person has a right to seek judicial review in spite of the statutory right of appeal.
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Analysis
[6] Subsection 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 requires an applicant to file an application for judicial review within 30 days of the decision. Subsection 5(2) authorizes the court to extend this time “if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.” In considering whether an extension of time should be granted, it may also be relevant for the court to consider the length of the delay and any explanation offered for it: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 (Div. Ct.), at paras. 17-18.
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B. Prejudice and Length of the Delay
[15] The length of the delay also weighs against granting an extension of time. I acknowledge that Mr. Khan acted promptly after the release of the Supreme court’s decision in Yatar. On the other hand, he filed this motion not only after a lengthy delay from the initial decisions, but after the respondent the appeal was dismissed. Mr. Khan filed this motion over a year after the Tribunal’s reconsideration decision and 18 months after the Tribunal’s initial decision. He had already withdrawn his first application for judicial review and the respondent already successfully defended the appeal in this court and motion for leave to appeal at the Court of Appeal.
[16] Although the respondent has not alleged specific prejudice arising from the delay, I accept the Tribunal’s submission that a relevant consideration is the principle of finality. This court has maintained that there comes a time when parties must be able to say “this matter has been decided.” This is the core of the finality principle, which is a central principle in the administration of justice: Mihundukulasuriya v. Aramark Food Services Ltd., 2022 ONSC 4563 (Div. Ct.), at para. 17; Marché D’Alimentation Denis Thériault Ltée v. Giant Stores Limited, 2007 ONCA 695, at para. 37.
[17] In the circumstances of this case, the length of delay and principle of finality are not determinative on their own, but they weigh against an extension of time.
Disposition
[18] Taking all the factors into consideration and especially the lack of any apparent grounds of relief, the court will not exercise its discretion to grant an extension. The motion therefore is dismissed. . Hamad v. Dominion of Canada General Insurance Company
In Hamad v. Dominion of Canada General Insurance Company (Div Court, 2024) the Divisional Court permitted an appellant to file a (Yatar) JR in a LAT appeal:[4] Decisions of the Tribunal can only be appealed on a question of law: Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched G., s. 11. Many of the issues raised by Mr. Hamad are not legal errors. However, the Supreme Court of Canada recently ruled that a statutory right of appeal limited to questions of law does not preclude an individual from seeking judicial review of a decision of the Tribunal on other issues: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, at para. 3.
[5] After the decision in Yatar was released, Mr. Hamad filed a supplementary factum in which he argued the Tribunal made errors of fact and mixed fact and law. An appellant who wants to raise new issues based on the Supreme Court of Canada’s decision in Yatar should bring a motion to extend the time within which to file a Notice of Application to Divisional Court for Judicial Review and to join the Judicial Review Application with the Appeal. Filing a motion for leave to add a Judicial Review application to an existing appeal will ensure the parties are given proper notice of and adequate time to respond to the new issues.
[6] We exercised our discretion to allow Mr. Hamad to argue the errors of fact and errors of mixed fact and law articulated in his supplementary factum even though he did not seek leave to file a Notice of Application for Judicial Review. We did so because counsel for both Respondents said they were prepared to address the issues raised in Mr. Hamad’s supplementary factum. We, therefore, permitted Mr. Hamad to argue the new issues to avoid delay and to ensure the effective use of judicial resources. To be clear, however, other appellants should not expect the court to adopt a similarly informal approach in other cases that fall in the transition period post-Yatar. . Nouracham v. Aviva General Insurance Company
In Nouracham v. Aviva General Insurance Company (Div Court, 2024) the Divisional Court dismissed an adjournment request, here where the appellant wished to add a dual-JR proceeding (as per Yatar) but it was late as per JRPA s.5 limitation provisions:[3] The week before the hearing of this appeal, the appellant sought an adjournment. The appellant wanted to bring a late application for judicial review because of the recent decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8. A lengthy extension of time would be needed to bring an application for judicial review from the above Tribunal decisions. The adjournment request was contested.
[4] In response to the adjournment request, the appellant was required to deliver a notice of application and motion showing the grounds for the proposed judicial review and for the necessary extension of time. The adjournment request was then argued at the outset of the appeal. It was taken under reserve.
[5] The adjournment is denied. We are satisfied with the explanation for the delay, given the timing of Yatar and the hearing of this appeal. However, as set out in s. 5(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, to get an extension of time the appellant would also have to show that there are apparent grounds for relief and no substantial prejudice or hardship. The respondent insurer submits there is prejudice, however, we do not rely on it. In this case we are not persuaded to exercise our discretion to grant the adjournment because of the grounds for relief in the proposed application for judicial review. We are not persuaded that those grounds would lead to relief that is not already addressed by the issues in the appeal. . Humberplex Developments Inc. v. Ontario (AG)
In Humberplex Developments Inc. v. Ontario (AG) (Div Court, 2024) the Divisional Court dismissed a JR, here of "O.Reg. 382/19, which amended O.Reg. 303/19: Transition for Planning Act Appeals" under the Local Planning Appeal Tribunal Act, 2017 on ultra vires grounds. "The amending regulation reimposed the more restrictive procedural regime that previously applied to appeals of municipal planning decisions heard by the Ontario Land Tribunal (the “Tribunal”). Under the amending regulation, the more restrictive regime was reimposed only on appeals solely by third party appellants."
Here the court finds that a JR would be premature as there was an 'adequate alternative remedy' in the form of a pending related leave to appeal motion for an OLT appeal. The court alluded in this respect to the recently-established Yatar doctrine that countenances dual JR/appeal proceedings:VII. Prematurity/procedural fairness
[86] The Attorney General and Vaughan also raise the issue of prematurity.
[87] In addition to their judicial review application, the applicants bring a Notice of Motion for Leave to Appeal the Tribunal’s Final Decision to this court. At the applicants’ request, the leave motion is being held in abeyance while the judicial review application is proceeding. If leave is granted, the appeal would be only on a question of law: OLTA, s. 24. The basis for the applicants’ motion for leave includes that the Tribunal erred in law in the conduct of the appeal, such as by failing to afford procedural fairness to the applicants in its rulings.
[88] In the context of case management, the parties were advised that if judicial review and an appeal were both being pursued in the same matter, the Divisional Court’s practice is for the judicial review and the appeal to be heard together. The rationale for that practice is to avoid “the systemic difficulties associated with duplicative judicial reviews and appeals” by addressing all legal issues arising from the underlying matter at the same time: see Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 (“Yatar CA”), at paras. 55-56, rev’d 2024 SCC 8 (“Yatar SCC”). While in Supreme Court reversed the result in Yatar CA on other grounds (as discussed further below), Yatar SCC did not call into question the Divisional Court’s practice relating to management of concurrent judicial reviews and appeals. The practice was described in Yatar CA, at paras. 55-56:55. 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 proceeding. [89] At the applicants’ request (with the other parties’ concurrence), the judicial review application proceeded first in this case, to allow determination of the threshold issue of the regulation’s vires. In these circumstances, however, the parties were aware that proceeding in this fashion may raise the issue of prematurity.
[90] The Attorney General and Vaughan submit that to the extent the judicial review application raises questions of law relating to the hearing itself as opposed to the vires of the regulation, those aspects of the application should be dismissed as premature. They say that those questions are more appropriately addressed in the applicants’ motion for leave to appeal and (if leave is granted) the appeal, which they say provides an adequate alternative remedy to address those questions: see Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at para. 42.
[91] In the course of the applicants’ submissions relating to the regulation’s vires, the applicants also challenge the procedural fairness of Bill 139 regime under which the planning appeals were conducted, suggesting that lack of procedural fairness before the Tribunal provides an alternative basis for voiding the Final Decision. However, the grounds for the application set out in the applicants’ amended Notice of Application for Judicial Review focus on the vires of the challenged regulation. The Notice of Application describes the differences between the hearing procedures under the Bill 139 regime and the Bill 108 regime but, unlike the Notice of Motion for Leave to Appeal, it does not allege that the Tribunal erred in law in the conduct of the hearing by failing afford procedural fairness to the applicants in its rulings.
[92] Consistent with the applicants’ originating documents in this court, I have concluded that the issue of breach of procedural fairness should be addressed in the context of the applicants’ leave to appeal motion and (if leave is granted) the appeal, which is confined to questions of law and provides an adequate alternative remedy to address that issue.
[93] In reaching that conclusion, I have considered the Supreme Court’s recent decision in Yatar SCC, in which the court, at para 4, found that the Divisional Court and the Court of Appeal erred in concluding that only in “exceptional circumstances” or in “rare cases” would judicial review be available where there is a right of appeal limited to questions of law only. Strickland, at paras. 43-44 (quoted in Yatar SCC, at para. 56), indicates that the exercise of discretion to decline to undertake judicial review based on the existence of an adequate alternative remedy 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 ... [94] The conclusion that the motion for leave to appeal and appeal provide an adequate alternative remedy is consistent with the applicable statutory scheme, under which the applicants have the opportunity to address questions of law (including procedural fairness) in the context of an appeal, and have indeed raised the same procedural fairness questions in their leave motion as in their submissions on this application. In these circumstances, Yatar SCC is distinguishable and this court is justified in declining to determine procedural fairness issues in the context of the applicants’ judicial review application. . Casa Loma Residents Association v. 555 Davenport Holdings Ltd.
In Casa Loma Residents Association v. 555 Davenport Holdings Ltd. (Div Court, 2024) the Divisional Court held a case conference where the appellant/applicant filed for both an appeal (actually it was a motion for leave to appeal) [under s.24(1) of the Ontario Land Tribunal Act, 2021] and a JR (under the relatively new doctrine of Yatar), here of an OLT decision.
Here the court considers some of the practicalities of a dual Yatar proceeding:[1] I am asked to schedule an appeal and an application for judicial review from a single decision of the Ontario Land Tribunal. The recent decision of the Supreme Court of Canada in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 (CanLII), may make both proceedings viable.
[2] In the normal course, where an appeal and a judicial review proceeding both lie from the same decision, it is likely to be most efficient to hear both proceedings together. Time will tell how efficiently the court will be able to tease out the different standards of review on different issues presented in those cases.
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[23] The developer submits that to keep the leave to appeal motion separate form the appeal, the court could order that the leave motion proceed first and at the same time as the application for judicial review. Then, if leave to appeal is granted, a later hearing could be held strictly limited to the issues of law relied upon by the applicant as its grounds for appeal.
[24] While I agree with Mr. Dunn, for the developer, that the leave motion should be kept distinct form the appeal itself, linking it to the judicial review application leads only to confusion in my view. If leave to appeal is granted, then the appeal and the judicial review should be conducted together. The issues of law and mixed fact and law overlap. The remedies in an appeal and a judicial review may or may not be different. Keeping the two substantive decisions together ensures that there is one hearing into all the issues concerning the merits of the board’s decision and protects against inconsistent holdings and remedies.
[25] The bigger issue for me is whether to join the leave motion to the main hearings and do everything all at once. This will certainly be the most efficient manner of proceeding. But I agree with Mr. Dunn’s submission that joining leave with an appeal essentially undermines the leave decision. It is always possible for a panel to hear the merits and then to deny leave to appeal. But if the panel is persuaded on the merits, how likely is it to say that leave is denied even if leave would likely have been denied if heard first? There are many cases of leave to appeal being denied in this court where judges may question the correctness of the underlying decision. The applicable tests for leave to appeal anticipate this very likelihood and focus on other issues like conflicting decisions and public importance for example. A leave to appeal requirement is made to weed out cases which could be overruled on appeal but which should not be heard for other reasons.
[26] Yatar is still new. We do not have much jurisprudence yet on the relationship between appeals and applications for judicial review on the same tribunal decision. While Yatar seems to have allowed judicial review proceedings relating to issues of fact, for example, Vavilov suggests that such cases will be limited. Whether this case presents an example where an appeal will preclude judicial review or not is an open question. I am not trying to prevent the hearing of any issues in making scheduling decisions.
[27] I do think it is important to give effect to the legislative deference implicit in the leave to appeal requirement. Moreover, a decision by this tribunal that a proceeding before it is not, “based on a valid land use planning ground,” is, “not based on demonstrably substantive evidence,” and has, “no reasonable prosect of success,” is hardly a poster child for leave to appeal. That does not mean that the applicants will not be able to show serious concerns with the merits and that there is sufficient importance to this use of the board’s summary dismissal power to warrant leave to appeal. But I am convinced that there is independent content to the leave to appeal requirement in this case.
[28] If leave to appeal is granted, a comprehensive hearing on all substantive and remedial issues will be held before a panel. If leave to appeal is not granted, the remaining judicial review proceeding will be much simplified.
[29] I do not rule out the use of combined hearings of motions for leave to appeal and the appeal in future cases. This is the norm, for example, in the Superior Court of Justice on appeals from commercial arbitration where leave to appeal is required. However, before I simply opt for the most affordable route, I need to be satisfied that the combined hearing still does justice to the legislative deference afforded to this particular tribunal. It seems to me that once we have developed a body of jurisprudence concerning combining appeals with judicial review proceedings under Yatar, this issue may be ripe for review.
[30] There are many dates available for a two-hour motion for leave to appeal before a single judge in June. There are also many dates for a one-half day application before a panel in September. Counsel are directed to send an email to the Divisional Court office to obtain agreeable dates and then to agree on a schedule fo exchanging materials on both proceedings. Some modest amount of time will need to be left in the schedule to allow the judge who hears the leave to appeal motion to make a decision. . Shearer v. Oz
In Shearer v. Oz (Div Court, 2024) the Divisional Court dismissed an appeal in an extended RTA struggle that continued years after the tenant had "moved out of the house about eighteen months later [SS: after the tenants taking possession], on July 26, 2019".
Here the court applied the Yatar doctrine of dual appeal-judicial review proceedings, where appeals are limited to questions of law only:[30] Where a party wishes to pursue both an appeal and an application for judicial review from the same decision, the appropriate course is to pursue both proceedings and for them to be heard and decided by the same panel of this court: Yatar v. TD Meloche Monnex, 2022 ONCA 446 [rev’d on other grounds 2024 SCC 8].
[31] In respect to the appeal, the standard of review for questions of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. For questions of procedural fairness, the standard of review is correctness (sometimes referred to as “fairness”). There is no appeal in respect to questions of fact or questions of mixed fact and law, except where there is an extricable legal question, which may be reviewed in this court on a correctness standard: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29. The issue of reasonable apprehension of bias is considered a question of procedural fairness and may be pursued as part of an appeal: Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2005 CanLII 24217, para. 70 (ON CA).
[32] In respect to the application for judicial review, this court will not entertain the application to the extent that its substance is addressed adequately by another process. In this case, the “other process” is the appeal. The only issues before us that could form a basis for judicial review that this court will entertain, therefore, are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion, all of which are reviewed on a standard of reasonableness in an application for judicial review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
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