When a statute provides for a limited right of appeal from an administrative decision, is judicial review of the non-appealable aspects of the decision available only in rare or unusual cases?
In Yatar v. TD Insurance Meloche Monnex, the Supreme Court of Canada (SCC) clarified that limited rights of appeal do not restrict the availability of judicial review. The SCC explained that a limited statutory appeal is not an adequate alternative remedy for issues outside the scope of the appeal and does not reflect legislative intent to restrict judicial review of those issues.
Yatar reverses a trend of some lower courts that had significantly restricted the availability of judicial review in cases where a statutory appeal was available. Parties may now appeal decisions on the limited questions permitted by statute and concurrently seek judicial review on other issues. Under the SCC’s earlier decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, appellate standards of review will apply to the former while the latter will be subject to administrative law standards, as Yatar confirms.
Background
Following the denial of her request for statutory accident benefits under Ontario’s Insurance Act by her insurer, Ms. Yatar commenced an application before the Licence Appeal Tribunal (Tribunal). The Tribunal dismissed Ms. Yatar’s application as time-barred. She sought reconsideration of the Tribunal’s decision under the Licence Appeal Tribunal Act (LATA), which was also dismissed.
Ms. Yatar appealed the reconsideration decision under the LATA’s limited right of appeal on questions of law and simultaneously sought judicial review on questions of fact or mixed fact and law, both before the Divisional Court.
The Divisional Court dismissed Ms. Yatar’s appeal on the basis that it did not disclose an error of law. It also refused to exercise its discretion to undertake judicial review, finding that the limited appeal right in the LATA reflected legislative intent to restrict court review of the Tribunal’s accident benefit decisions. Considering the factors discussed in Strickland v. Canada (Attorney General), the Divisional Court concluded that the limited appeal and the Tribunal’s reconsideration power provided Ms. Yatar an adequate alternative remedy. It also held that in such circumstances, judicial review would be available only in “exceptional circumstances,” which were absent.
On further appeal, the Ontario Court of Appeal broadly agreed that, in such circumstances, courts would exercise discretion to undertake judicial review only in rare or unusual cases. It upheld the Divisional Court’s application of the Strickland factors and refusal to undertake judicial review. Alternatively, it held that if judicial review were available, the Tribunal’s decision was reasonable, and Ms. Yatar’s application would have been dismissed.
The SCC Decision
In a unanimous decision authored by Justice Rowe, the SCC began its analysis by emphasizing two fundamental principles. First, it reaffirmed its comments in Vavilov that the existence of a limited right of appeal does not, on its own, preclude judicial review. Second, it highlighted the “cornerstone” principle that “public authorities are subordinate to the supervisory power of the superior courts” and that “[s]uch judicial review is a necessary consequence of the rule of law.”
The SCC then addressed the role of a limited right of appeal in the exercise of discretion to undertake judicial review. A limited right of appeal does not reflect legislative intent to eliminate judicial review for issues of fact or mixed fact and law. Moreover, where a statutory right of appeal does not include all types of errors, judicial review of questions that are not appealable is “fully respectful of the legislature’s design choices.” Therefore, the SCC held that the Divisional Court and the Court of Appeal erred in concluding that an appeal on questions of law was an adequate alternative remedy under Strickland.
The SCC rejected the argument that the legislature intended to streamline the dispute resolution mechanism and reduce costs. It observed that judicial economy does not outweigh the need for meaningful and adequate means to challenge the reasonableness of administrative decisions. Finally, the SCC held that the Tribunal’s internal reconsideration power was not an adequate alternative remedy in this case since the reconsideration decision itself was the subject of the judicial review application.
The Court also clarified that, in a concurrent appeal on questions of law and judicial review on questions of fact or mixed fact and law, the appeal would be subject to correctness, following appellate standards of review, and the judicial review would be subject to the administrative law standard of reasonableness.
On the merits of the judicial review, the Court held the Tribunal’s decision unreasonable because it failed to consider relevant tribunal decisions on the limitation period at issue in Ms. Yatar’s case. The Court remitted the case back to the Tribunal.
Key Takeaways
- A limited right of appeal does not reflect legislative intent to restrict judicial review of issues not subject to the appeal and is not an adequate alternative remedy for such issues.
- In a concurrent appeal and judicial review, the appeal is subject to appellate standards of review while the judicial review is subject to administrative law standards of review.
- A decision-maker’s failure to consider relevant administrative precedents can render its decision unreasonable.
- The SCC left “for another day” the availability of judicial review in the face of a privative clause that expressly seeks to bar or restrict judicial review.
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