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Appeals - Standard of Review (SOR) - Questions of Law Only. Jiang v. The Co-operators General Insurance Company
In Jiang v. The Co-operators General Insurance Company (Div Court, 2024) the Divisional Court considered two appeals (one a reconsideration) of LAT SABS rulings, here in the unusual context of a driver being assaulted by a passenger.
Here the court considers that a Divisional Court appeal from LAT rulings are on 'questions of law' only [LATA S.11], which attract a 'correctness' SOR:[19] Under the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, ss. 11(1) and 11(6), the Divisional Court has jurisdiction to hear this appeal on a question of law only.
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[21] The Supreme Court of Canada wrote in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (S.C.C.) at paragraph 54:When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker's determination or to substitute its own view: Dunsmuir, at para. 50. While it should take the administrative decision maker's reasoning into account—and indeed, it may find that reasoning persuasive and adopt it—the reviewing court is ultimately empowered to come to its own conclusions on the question. [22] The Supreme Court instructs us that the tribunal is presumed to know the law with which they work, day in and day out[5] and an appellate court must take care not to substitute its own view of the facts for that of the trial judge or in this case, the Tribunal.[6] . Pelletier v. Bloorston Farms Ltd.
In Pelletier v. Bloorston Farms Ltd. (Div Court, 2023) the Divisional Court held that the LTB's 'failure to consider facts' that it properly should have, constituted an 'error of law' - not only an error of fact:[11] In applying this section on a motion for relief from eviction, the Board is required to examine the facts and circumstances surrounding the making of the agreement and the broad context of the dispute between the parties: Pinto v. Regan and White v. Regan, 2021 ONSC 5502 at paras. 28-29. Failure to consider facts it was bound to consider under these provisions will constitute an error in law by the Board. . Creglia v. Mathews
In Creglia v. Mathews (Div Court, 2023) the Divisional Court considers an SOR issue:[23] Findings of fact which support a legal available outcome are not subject to challenge on appeal on a question of law alone: Sandgecko Inc. v. Ye, 2020 ONSC 7245 (Div. Ct.) at para. 34. . Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal [Stratas JA, sitting alone] considered a motion to quash a JR, but defers and leaves the motion to a full panel. The larger case here lays at the heart of executive politics versus the judiciary - being that of judicial review of fact, and mixed fact and law, decisions of the Conflict of Interest and Ethics Commissioner under the Conflict of Interest Act where appeal is limited to 'issues of law'. In this extended quote Stratas JA muses on matters of justiciability, privative clauses, the increasing frequency of such limited administrative appeals (ie. "questions of law only"). These quotes are a thoughtful contribution to this very important current issue, and as well acknowledge the recent Ontario Court of Appeal decision in Yatar (that can allow JR in such cases) as this [see paras 25-56].
. 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. . Warren v. Licence Appeal Tribunal
In Warren v. Licence Appeal Tribunal (Div Court, 2022) the Divisional Court notes that where a statutory appeal is limited to 'questions of law', that an appeal still may be heard on a 'extricable question' drawn from a question of fact, or mixed law and fact:[3] The Licence Appeal Tribunal Act, 1999, S.O. 1999, c 12, Sch G (“LAT Act”), section 11(6) provides a right of appeal to the Divisional Court from a decision of the LAT relating to a matter under the Insurance Act, R.S.O. 1990, c. I.8 (“Insurance Act) but only on a question of law. The standard of review of that question of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. There is no appeal on questions of fact, or questions of mixed fact and law without an extricable question of law: Oliver v. Brant Mutual Insurance Company, 2018 ONSC 3716 (Div. Ct.) at para. 17.
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