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Appeals - Standard of Review (SOR) - Questions of Law Only. Thompson v. Homestead Land Holdings Limited.
In Thompson v. Homestead Land Holdings Limited. (Div Court, 2024) the Divisional Court quashed an appeal, here on grounds that none of the issues raised were 'questions of law' [as reqired by RTA 210(1)], and abuse of process.
With respect to the court, the 'first ground' arguments have been held to constitute questions of law, and the second and third grounds - which are quite thin on reasoning - appear vulnerable on a further appeal argument for inadequate reasons. While there may be an abuse of process argument against the tenant/appellant, this would not justify treating the grounds of appeal improperly - rather the court must decide clearly whether any abuse of process justifies effectively striking some or all of the grounds of appeal:[15] Mr. Thompson’s appeal is devoid of merit because it does not raise an issue of law.
[16] Questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), at para. 35.
[17] Mr. Thompson’s first ground – that “the Board/Landlord erred in law by ignoring relevant evidence, relying on irrelevant evidence and making findings in the absence of supporting evidence” – is a bald allegation that attacks the LTB’s evidentiary findings. It does not raise a question of law.
[18] Mr. Thompson’s second ground – that “the Board/Landlord breached procedural fairness by among other ways, improperly relying upon hearsay evidence in support of an absent landlord’s application with the board” – does not raise a question of law. The LTB is permitted to rely on hearsay evidence: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15(1).
[19] Mr. Thompson’s third ground – that “the Board/Landlord erred in law by falsifying documents and paperwork, to the board in favour of the landlord and the board failed to withdraw said documents and applications” – is a vexatious allegation that attacks the veracity of the evidence at the hearing. Mr. Thompson ought to have raised this allegation at the LTB hearing. This ground, too, does not raise a question of law.
[20] The appeal is quashed because it is devoid of merit. . Yusheng Cheng v. Toronto Community Housing Corporation
In Yusheng Cheng v. Toronto Community Housing Corporation (Div Court, 2024) the Divisional Court dismissed a motion to extend time to commence an RTA social housing appeal, here focussing on the legislature's choice to limit RTA appeal to questions of law:[20] Under s. 210 of the Residential Tenancies Act, 2006, this court’s jurisdiction on appeals is limited to hearing questions of law. The Divisional Court cannot hear appeals based on questions of fact or mixed fact and law (unless there is an extricable question of law presented). Last week Justice Stratas wrote about recognition of limits on an appeal court’s jurisdiction in similar circumstances to this case.
[21] In Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 (CanLII), the court was asked to hear an appeal from an administrative tribunal. As is the case here, the right of appeal to the Federal Court of Appeal was subject to a statutory limit. Justice Stratas wrote:[8] But even where we grant leave, this issue always remains live: whether we have a “question of law or of jurisdiction” before us under subsection 64(1) goes to our subject-matter jurisdiction. We cannot take on things that Parliament forbids us from taking: See Emerson at para. 9, citing Green v. Rutherforth (1750), 27 E.R. 1144, 1 Ves. Sen. 462, at page 471; Penn v. Lord Baltimore (1750), 27 E.R. 1132, 1 Ves. Sen. 444, at page 446; Attorney General v. Lord Hotham (1827), 38 E.R. 631, 3 Russ. 415; Thompson v. Sheil (1840), 3 Ir. Eq. R. 135. And of even longer standing is the principle of legislative supremacy, one corollary of which is that Parliament’s laws bind courts, just like everyone else: Re: Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, 125 D.L.R. (3d) 1 at 805-806 S.C.R.; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, 161 D.L.R. (4th) 385 at paras. 71–72; Ref. re Remuneration of Judges of the Prov. Court of P.E.I.; Ref. re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, 150 D.L.R. (4th) 577 at para. 10.
[9] In considering our jurisdiction in cases like this, we must remain on high alert. The say-so of a party that a “legal test” or “the Act” is involved is not enough. “Skilful pleaders” who are “armed with sophisticated wordsmithing tools and cunning minds” can express grounds in such a way as to make them sound like legal questions “when they are nothing of the sort”: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 49. Put another way, “the mere say-so of a party that a ‘legal test’ is implicated” or the expression of grounds of appeal “in an artful way to make them appear to raise legal questions when they do not” is “insufficient to found an appeal”: Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, [2021] 3 F.C.R. 206 at para. 51.
[10] Instead, we must look at the substance of what is being raised, not the form. See generally JP Morgan at paras. 49-50, cited in Emerson at para. 29; British Columbia Broadband at para. 51.
[11] In this appeal, Halton offers a number of grounds for setting aside the Agency’s decision and phrases them as legal issues—for example, adequacy of the Agency’s reasons—to try to get past the limitation in subsection 41(1). However, in my view, Halton’s real concern is mere disagreement with the Agency’s weighing of various factors and its conclusion that the location of the railway line is reasonable, matters we are powerless to address.
[Emphasis added.] . Davis v. Aviva General Insurance Co.
In Davis v. Aviva General Insurance Co. (Div Court, 2024) the Divisional Court allowed an insured's LAT SABS appeal, here where the insurer paid several years of claims but then successfully denied coverage on the basis that there was no 'accident'.
Here the court considers the SOR for questions of law, including both misapprehensions of evidence and where fact errors can constitute errors of law:[51] Questions of law are generally questions about whether the correct legal test was applied, or an approach prescribed by statute was followed. In contrast, questions of fact are questions about what actually took place between the parties. Questions of mixed fact and law are questions which involve applying a legal standard to a set of facts: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at para. 43; Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.
[52] This court had an opportunity to further expand on what constitutes a question of law on a statutory appeal in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), aff’d 2022 ONCA 446, reversed on other grounds, 2024 SCC 8, 489 D.L.R. (4th) 191. In that case, Kristjanson J. of this court explained as follows, at para. 28:[28] On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385(SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25). [53] The appeal turns on whether the LAT applied the correct law in respect to each issue, or otherwise made an error of law on applying the relevant test. . 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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