The Supreme Court of Canada recently released its highly anticipated decision in Yatar v. TD Insurance Meloche Monnex,[1] providing its latest substantial commentary on judicial review in Canada. The Court endorsed the opportunity for parties to proceed with parallel statutory rights of appeal and judicial review. Despite recent pronouncements about the importance of upholding judicial economy and avoiding multiplicities of proceedings, Yatar leaves the door open for litigants to "fight on two fronts" against administrative decisions in limited circumstances.
The Facts
Ummugulsum Yatar was injured in a car accident in 2010 and sought statutory accident benefits from her insurer, TD Insurance Meloche Monnex. Although TD initially provided Ms. Yatar with benefits, they subsequently proceeded to deny benefits over the course of three letters in 2011.[2]
In 2014, Ms. Yatar applied for mandatory mediation to dispute TD's denial of her benefits. At the time of her accident, the Ontario Insurance Act contemplated a two-year limitation period for contesting a denial of benefits, which was extended by 90 days after the mediator provided a report. Ms. Yatar commenced her application before the License Appeal Tribunal (the “LAT”) in March 2018.[3] The LAT adjudicator dismissed her application on the basis that it was time-barred and further dismissed her request for reconsideration.[4]
Procedural History
Following the LAT’s dismissal, Ms. Yatar exercised her statutory right of appeal to the Divisional Court under the Ontario License Appeal Tribunal Act, 1999, which right of appeal was restricted to questions of law. She also applied to the Court for judicial review on questions of fact or mixed fact and law.[5]
The Divisional Court dismissed Ms. Yatar's appeal, holding that she had not demonstrated any errors of law on the part of the LAT adjudicator. It also dismissed Ms. Yatar's application for judicial review, ruling that, although the limited right of appeal under the License Appeal Tribunal Act did not preclude reviewing other issues from the adjudicator's decision, there were no exceptional circumstances here to warrant such review.[6]
Ms. Yatar further appealed to the Court of Appeal for Ontario. The Court of Appeal dismissed the appeal, ruling that the remedy of judicial review would only be available in rare cases, given the legislative scheme for the resolution of such disputes and the fact that Ms. Yatar had an appropriate alternative remedy. It also noted that, even if the application ought to have been considered, it would have been denied on the basis that the LAT adjudicator's decision was reasonable.[7] Ms. Yatar finally appealed to the Supreme Court.
The Supreme Court's Decision
The Supreme Court unanimously ruled that the appeal be allowed and that Ms. Yatar's matter be remitted back to the LAT.
The Court ruled that the lower courts had erred in deciding that judicial review should be limited to exceptional or rare circumstances in cases where there is also a limited right of appeal. The limited right of appeal contemplated by the License Appeal Tribunal Act did not reflect an intention by the legislature to restrict recourse to the courts on other questions arising from a decision maker. The legislative decision to allow for statutory rights of appeal on questions of law only denoted an intention to subject LAT decisions on questions of law to a correctness review. However, parties could still seek judicial review of questions of fact or mixed fact and law, reviewable on a reasonableness standard.[8]
As recognized in Canada (Minister of Citizenship and Immigration) v. Vavilov, a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal.[9] The judge hearing the application for judicial review has the discretion to decide whether or not to grant the applicant's relief, but such discretion does not extend to declining to consider the application altogether. However, the Supreme Court left for another day the question of whether judicial review is available where there is a privative clause (a clause barring or restricting judicial review), which remains a contentious issue among lower courts.[10]
In exercising their discretion on whether to grant the application for judicial review, the application judge should consider not only whether there is an available alternative, but also whether judicial review is appropriate in the circumstances.[11] If, in considering the circumstances, the judge determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the application for judicial review. They also maintain the discretion to refuse to grant the remedy even if finding the underlying decision was unreasonable.[12]
The Court reiterated that the reviewing court should, in exercising its discretion to determine whether to grant an application for judicial review, consider the suitability and appropriateness of judicial review in the circumstances, available alternatives, and the purposes and policy considerations underpinning the legislative scheme at issue. Alternative remedies will be available where there are internal review processes that have not been exhausted or there is a statutory right of appeal that is not restricted, such that questions of law, fact, and mixed fact and law could be considered on appeal. But access to internal reconsideration by a decision maker cannot be such an adequate alternative remedy.[13]
It was an error to rule that only in rare or exceptional circumstances would judicial review be available where there is a limited right of appeal. Judicial review is a critical right for litigants, given that the subordination of public authorities to the supervisory power of the superior courts is the "cornerstone" of Canadian and Quebec administrative law.[14]
The Supreme Court ruled that Ms. Yatar's statutory right to appeal and the LAT adjudicator's reconsideration decision did not constitute an adequate alternative remedy to judicial review. Ms. Yatar had raised errors of fact or mixed fact and law, which were not reviewable under her statutory right of appeal.[15] The lower courts ruling otherwise was an error. In light of Ms. Yatar's right to parallel avenues for relief, the LAT adjudicator's decision was unreasonable, given that he had failed to consider circumstances around the initial reinstatement of income replacement or earlier tribunal decisions around the consequences of this reinstatement.[16] On this basis, the matter was referred back to the LAT adjudicator for reconsideration.
Implications
The Supreme Court's decision in Yatar has left the door open for parties to challenge the decision of a public or administrative decision maker through concurrent review processes. Although the Court has already clarified in past decisions (including in Vavilov) that a statutory right of appeal does not necessarily preclude an application for judicial review, Yatar confirms the parties' rights in such circumstances and re-emphasizes the courts' supervisory role over public and administrative decisions.
Although courts have recently placed increasing emphasis on judicial economy (particularly in the face of significant backlogs), the Supreme Court has, nevertheless, through Yatar, preserved the rights of litigants to commence multiple proceedings against a public or administrative decision maker where one procedural avenue alone is not adequate.
The Supreme Court refrained from commenting on how statutory restrictions, like private clauses, will impact parties' rights to commence concurrent proceedings against an administrative decision, but Yatar nevertheless recognizes a litigant's right to fight such decisions "on two fronts". This decision will have important implications for administrative litigation strategy moving forward.
About the Author
Alex Evangelista is a litigation associate with Fogler, Rubinoff LLP. He is developing a broad commercial litigation practice, with experience in contract, shareholder and partnership, construction, real property, insolvency, fraud and administrative disputes. He regularly appears before the courts of Ontario (including the Commercial List in Toronto) and has experience before the Federal Court of Canada, the British Columbia Supreme Court, administrative tribunals and private arbitrators. Alex is a public affairs liaison with the OBA Young Lawyers Division (Central) Executive.
[11] Strickland v Canada (Attorney General), 2015 SCC 37; Yata, supra at para 64.
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