|
Appeals - Standard of Review (SOR) - Questions of Law Only. R. v. Consolidated Homes Ltd.
In R. v. Consolidated Homes Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown leave to appeal application (which would be the second appeal), here against an earlier appeal acquittal against a conviction under the Endangered Species Act.
Here the court considers the meaning of 'questions of law', although specific to this quasi-criminal context:[15] As Doherty J.A. noted in R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 48, “[i]t can be difficult to distinguish between errors of law alone and errors of mixed fact and law. At times, the distinction seems purely semantic”. In R. v. Ul-Rashid, 2013 ONCA 782, 309 C.C.C. (3d) 468, at para. 20, Weiler J.A. explained:[A] holistic approach should be taken to the leave requirements in POA matters. What constitutes a question of law must be considered concurrently with the requirement that it be essential that the matter be resolved in the public interest or for the due administration of justice. The two parts of the test for leave under s. 139 of the POA are inextricably linked: questions that raise issues requiring resolution in the public interest or for the due administration of justice can properly be viewed as raising questions of law. [16] Some guidance on the meaning of “question of law alone” can be found in the case law dealing with jurisdictional limits in criminal appeals. In R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 24-32, Cromwell J. explained that there are at least four established situations “when the trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to a Crown appeal of an acquittal”, namely:i) When the trial judge makes a finding of fact for which there is no evidence;
ii) When the trial judge fails to give proper legal effect to findings of fact or to undisputed facts;
iii) When the trial judge assesses evidence based on a wrong legal principle; and
iv) When the trial judge fails to consider all of the evidence on the ultimate issue of guilt or innocence. [17] In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 19-27, the Supreme Court of Canada held further that when a criminal conviction is set aside by an appellate court on the basis that it is “unreasonable or cannot be supported by the evidence” pursuant to s. 686(1)(a)(i) of the Criminal Code, this decision is deemed to be a “question of law” for the purpose of determining whether the Crown has a further right of appeal. As Arbour J. explained at paras. 22-23, this rule is based on policy considerations, even though the question of whether a verdict is properly supported by the evidence will very often depend on the particular facts of that case:The sole purpose of the exercise here, in identifying the reasonableness of a verdict as a question of fact, law or both, is to determine access to appellate review. One can plausibly maintain, on close scrutiny of any decision under review, that the conclusion that a verdict was unreasonable was reached sometimes mostly as a matter of law, in other cases predominantly as a matter of factual assessment. But when that exercise is undertaken as a jurisdictional threshold exercise, little is gained by embarking on such a case-by-case analysis. Rather, it is vastly preferable to look at the overall nature of these kinds of decisions, and of their implications. Ideally, threshold jurisdictional issues should be as straightforward and free of ambiguity as possible. Otherwise, as these and many similar cases illustrate, courts spend an inordinate amount of time and effort attempting to ascertain their jurisdiction, while their resources would be better employed dealing with the issues on their merits.
Whether a conviction can be said to be unreasonable, or not supported by the evidence, imports in every case the application of a legal standard. The process by which this standard is applied inevitably entails a review of the facts of the case. I will say more about the review process below. As a jurisdictional issue of appellate access, the application of that legal standard is enough to make the question a question of law. It is of no import to suggest that it is not a “pure question of law”, or that it is not a “question of law alone”. ....
[26] However, I do not agree with CHL that this means that any error the appeal judge made was one of mixed fact and law, and thus not a “question of law alone” for the purposes of s. 131 of the POA. In criminal cases, Biniaris holds that when an appellate court finds a guilty verdict at trial to be unreasonable or not supported by the evidence under s. 686(1)(a) of the Criminal Code, this is deemed to be a “question of law” for the purpose of determining further Crown rights of appeal. I see no reason to take a different approach in POA appeals, particularly since the powers of an appellate court under s. 120(1)(a) of the POA are identical to the powers in s. 686(1)(a) of the Criminal Code.
[27] The Crown’s first two proposed grounds of appeal both seek to challenge the appeal judge’s conclusion that the evidence at trial did not support CHL’s conviction. I am satisfied that these grounds raise issues which Biniaris deems to be questions of law, such that the first requirement for granting leave under s. 131 of the POA is satisfied. . Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health)
In Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health) (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal, this from a decision of the HSARB that upheld decisions of the Minister of Health that required the appellant "to reimburse the Minister for payments totalling over $1.1 million for facility fees that Dixie billed to the Minister for radiology services".
Here the court held the procedural fairness to be a 'question of law':[3] The Divisional Court has jurisdiction to hear an appeal from the Decision, but only on a question of law. Questions of law include issues of procedural fairness. ...
....
[32] Whether there has been a breach of the duty of procedural fairness is a question of law, subject to correctness review on appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30, 129, 169, 179. .... . Giffen v. TM Mobility Inc. [HRC and Charter tribunal jurisdiction]
In Giffen v. TM Mobility Inc. (Fed CA, 2024) the Federal Court of Appeal allowed an appeal, this from a denial of the Federal Court of a judicial review, this that "sought to set aside the ... decision of Adjudicator Michael Horan" that "determined that he had no jurisdiction to consider the appellant’s complaint that she had been unjustly dismissed following her return from maternity leave due to the limitation set out in paragraph 242(3.1)(a) of the Canada Labour Code" ... "(t)hat paragraph of the Code precluded an adjudicator from hearing an unjust dismissal complaint where a complainant was laid off because of a lack of work or discontinuance of a function."
The court cites the wide legal authority of a tribunal granted jurisdiction over 'questions of law', though HRC jurisdiction in labour tribunals is still uncertain:[56] Returning to the result in MacFarlane, the Federal Court upheld the adjudicator’s decision only in part, finding that the adjudicator should have retained jurisdiction to hear the complaint if the Commission declined to hear Ms. MacFarlane’s discrimination complaint. In reaching this conclusion, the Federal Court relied on Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, where the Supreme Court of Canada held that statutory tribunals empowered to decide questions of law are required to apply the whole law (including, notably, human rights statutes) to the issues before them.
[57] That said, the Federal Court also concluded that even where no complaint is filed with the Commission, an adjudicator sitting under Division XIV of Part III of the Code lacks jurisdiction to hear a complaint if it is in essence a complaint that alleges that a complainant was terminated for discriminatory reasons in violation of the CHRA. Thus, according to MacFarlane, as between the two procedures, the primary procedure to remedy a claim that an employee was terminated for discriminatory reasons is under the CHRA; redress is available under Division XIV of Part III of the Code only where the Commission decides the complaint would be more appropriately dealt with under the Code.
[58] Similar to MacFarlane, in Joshi v. Canadian Imperial Bank of Commerce, 2014 FC 722, aff’d 2015 FCA 105, 474 N.R. 215, leave to appeal to SCC refused, 36440 (24 September 2015), the complainant was dismissed for performance issues and filed complaints of both unjust dismissal and discrimination that were found to be substantially similar. Likewise, in Geetha Kumari Kommepalli v. BMO Financial Group, 2020 CIRB 938 [Geetha], Ronald Brown v. Warren Gibson Limited, 2020 CIRB 948 [Brown], and Bryan Hayes v. The Royal Bank of Canada, 2021 CIRB 961 [Hayes], the CIRB declined jurisdiction in accordance with paragraph 242(3.1)(b) of the Code. In Geetha, the alternative remedy was found in Part II of the Code, while Brown and Hayes were situations where the complainants alleged that they had been terminated for discriminatory reasons in violation of the CHRA and thus were found to have a procedure for redress through the Commission. . Highfields Farm Corp. v. Francis
In Highfields Farm Corp. v. Francis (Div Court, 2024) the Ontario Divisional Court considered the RTA s.210 'question of law' SOR, which must be found on a holistic assessment of the case:[21] In determining whether the proposed appeal raises a question of law, the analysis must be based on the totality of the tribunal’s decision, not one isolated paragraph or phrase. It is not appropriate to select fragments of the decision and parse them under microscopic scrutiny to the detriment of an overall analysis of the decision as a whole: Marquis Manors Ltd. v. Kennedy, 2023 ONSC 1134, at para. 8. . 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.
....
[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.
|
