The Supreme Court of Canada (SCC) last week in Yatar v. TD Insurance Meloche Monnex (Yatar) clarified the right to seek judicial review of administrative decisions in tandem with pursuing statutory rights of appeal. The SCC also affirmed its earlier decision in Canada (Minister of Citizenship and Immigration) v. Vavilov (Vavilov), which held that a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. In Yatar, the SCC held that, where there is a statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. In so doing, the SCC clarified that parallel statutory appeals and applications for judicial review are permissible.
This bulletin briefly summarizes the background of the case and important aspects and implications of the SCC’s decision.
Background. The appellant (Yatar) was injured in a car accident and denied insurance benefits. Following mediation, Yatar contested the denial of insurance benefits, but the Ontario Licence Appeal Tribunal (LAT) dismissed her application as being time-barred. Yatar’s right of appeal from the LAT decision was restricted solely to questions of law pursuant to the Licence Appeal Tribunal Act, 1999. Yatar consequently pursued an appeal on questions of law, and simultaneously sought judicial review on questions of fact or mixed fact and law. The Divisional Court dismissed Yatar’s appeal as well as her application for judicial review. The Ontario Court of Appeal agreed with the decision of the Divisional Court, holding that it would only be in “rare cases” that the remedy of judicial review would be exercised, given the available statutory scheme for the resolution of such disputes.
Decision. In a unanimous decision, the SCC held that it was an error for the courts below to find that, where there is a limited right of appeal, judicial review should only be exercised in rare cases. The SCC determined that the legislative decision to provide for a right of appeal on questions of law only denotes an intention, on behalf of the legislature, to subject LAT decisions on questions of law to correctness review, and proceeding with judicial review on questions of fact or mixed fact and law is “fully respectful” of the legislature’s institutional design choices. Where there is a statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. Parallel statutory appeals and applications for judicial review are therefore permitted.
The SCC affirmed that the discretion to undertake judicial review should be exercised by having regard to the framework set out in Strickland v. Canada (Attorney General), including consideration of whether there is an adequate alternative forum or remedy, which would not be the case if the appellant could not have questions of fact or mixed law and fact judicially reviewed.
The SCC also referred to but did not decide the issue and constitutionality of the availability of judicial review where the relevant statute contains a privative clause that seeks to bar or restrict judicial review. This issue was not before the SCC in this case and was left for another day.
Implications. Yatar represents the latest SCC pronouncement on judicial review following Vavilov, the landmark 2019 decision that clarified how courts should determine and apply the standard of review. We anticipate that more appellants will consider availing themselves of parallel statutory appeals and applications for judicial review in appropriate circumstances. We note that there are several provincial and federal statutes that provide appeal rights that are limited to questions of law only (or, in some cases, questions of law and jurisdiction only).
For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com.
