*There is case law on this subject and the commentary may have changed.*
In Ladouceur v. Intact Insurance Company, 2022 ONSC 5206, the applicant sought judicial review of a decision and subsequent reconsideration decision made by the Licence Appeal Tribunal (“LAT”). She made the strategic decision to seek judicial review, on the basis that an appeal to Divisional Court is limited to questions of law alone, and the basis for the review was an issue of mixed fact or law, so it was anticipated that an appeal would be unsuccessful. In a unanimous decision of a three judge panel consisting of justices Aston, Swinton and Sheard, the Divisional Court declined to exercise its discretion to hear the application for judicial review on the merits, on the grounds that only in rare circumstances will the remedy of judicial review be properly resorted to in the accident benefits context.[1]
In this instance, the alternative remedies available to the applicant were adequate to address her grievances. Only when the alternatively available remedies are insufficient for justice to be done, will the court exercise its discretion to hear an application for judicial review.
What is Judicial Review?
Judicial review is a process which allows courts to make sure that the decisions of administrative bodies are fair, reasonable and lawful. In the context of an accident benefits dispute, a party makes an application to a three-judge panel of the Divisional Court to change or set aside a decision made by the Licence and Appeal Tribunal on the grounds that an error was made by the decision maker that warrants action by the court. Judicial review is an opportunity to show that an administrative decision maker failed to properly exercise their decision making powers, not an opportunity to re-litigate the case.[2]
Furthermore, it is a remedy of last resort. While not always the case, courts will generally not consider applications for judicial review if other legal remedies have not been exhausted.[3]
Finally, judicial review is a discretionary remedy. This discretion applies to both the decision to undertake to review a decision and to grant relief. Even if an applicant makes out a case for review on the merits, the reviewing court has the discretion to refuse the relief. The relief will usually be sending the matter back to the previous decision making body to be decided again, but can also involve the reviewing court making its own decision.[4]
Judicial Review of a decision made by the LAT
The Insurance Act provides that a decision of the LAT may be appealed only on a question of law alone. An appeal may not be made where issues of fact are involved. However, the Court of Appeal for Ontario has confirmed that this limitation on appeals does not prohibit judicial review when dealing issues of fact or issues of mixed law and fact.[5]
Therefore, in theory, a crafty litigant could sidestep the limitation on appeals by bringing an application for judicial review. This was the applicant’s strategy in Ladouceur. However, the Divisional Court firmly rejected this approach, holding that the legislative intent of the relevant Insurance Act provisions was to limit the right of appeal in accident benefits matters. Judicial review is not appropriate just because the Applicant wants to appeal but the right to do so in the circumstance is prohibited by statute. It is only where the alternative remedies are not sufficient to adequately address a grievance should judicial review be considered. Such cases will be very rare and for the Divisional Court to determine on a case-by-case basis.
Zach Berg is the author of this blog. If you have a question about this blog or a similar decision, please contact Eric at [email protected].
[1] Ladouceur v. Intact Insurance Company, 2022 ONSC 5206.
[2] Ontario Courts Website, Ontario Superior Court of Justice Guide to Judicial Review in Division Court, https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-review-EN.pdf
[3] Strickland v. Canada (Attorney General), 2015 SCC 37.
[4] Mcmull v. Ministry of Health, 2021 ONSC 6569.
[5] Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446.
