With its recent decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, the Supreme Court of Canada has underscored the importance of judicial review to administrative law, and provided guidance for judges and litigants in circumstances where judicial review is sought even where there is also a statutory right of appeal from an administrative decision.
Overturning the Ontario Court of Appeal in a unanimous and lengthy decision, the Supreme Court emphasized the critical role of judicial review in upholding the rule of law, as separate and distinct from any statutory right of appeal. Where the two lower courts had held that judicial review was not an appropriate remedy in the absence of “exceptional” or “rare” circumstances respectively, the Supreme Court disagreed, signaling a course correction for appellate courts in this regard.
By way of procedural history, Ms. Yatar applied for and received statutory accident benefits from TD Insurance. Following the termination of certain benefits, she applied for dispute resolution before the Licence Appeal Tribunal (“LAT”), at which point TD asserted a limitation defence, claiming that Ms. Yatar had applied for dispute resolution outside the applicable two-year limitation period to do so. The LAT adjudicator agreed with TD that the claim was statute-barred and upheld his determination on reconsideration.
Central to the LAT adjudicator’s decision was his finding that a particular letter sent by TD Insurance to Ms. Yatar in January of 2011 constituted a clear and unequivocal denial of benefits sufficient to trigger the running of the limitation period for her to dispute TD’s decision. This finding was made notwithstanding TD’s subsequent reinstatement and later denial of the same benefits, undertaken without providing Ms. Yatar with proper notice of her right to dispute at that time, contrary to the requirement set out by the Supreme Court in Smith v. Co-operators General Insurance Co., 2002.
Ms. Yatar sought to challenge the LAT’s decision both by exercising her statutory right of appeal on a question of law (pursuant to s. 11(6) of the Licence Appeal Tribunal Act, 1999), and by seeking judicial review pursuant to s. 280(3) of the Insurance Act, and s. 2(1) of the Judicial Review Procedure Act. Where an appeal on a question of law is subject to a correctness standard, Ms. Yatar also alleged that there had been errors of fact or mixed fact and law that she sought to have the court review on a standard of reasonableness.
The Divisional Court declined to even undertake judicial review, informed in part by what it viewed to be the legislative intent to limit judicial oversight of the LAT relative to accident benefits matters, and held that there were no “exceptional” circumstances that the Court believed would be necessary to justify its intervention. The Court instead reviewed the matter as an appeal and found that where the right of appeal was limited to questions of law, there was no basis to interfere with the LAT’s decision.
Ms. Yatar sought and was granted leave to the Ontario Court of Appeal on the question of whether “the Divisional Court err[ed] in limiting judicial review, in cases where there has been a statutory appeal… to ‘exceptional circumstances’” and further on the question of whether the LAT’s reconsideration decision was reasonable.
The Court of Appeal took issue with the Divisional Court’s language in setting out a threshold of “exceptional circumstances” that would have to be established before judicial review would be available, but did agree that the legislated scheme for resolving disputes concerning statutory accident benefits reflected a “legislative intent to limit access to the courts regarding these disputes”, meaning that it would be a “rare” case in which the remedy of judicial review would be appropriate. In such cases, the Court of Appeal set out that the proper approach would be to advance the statutory appeal and the application for judicial review concurrently, as Ms. Yatar had done, in order to preserve judicial resources.
On further appeal to the Supreme Court, Ms. Yatar asserted that the Court of Appeal had “erred when it concluded that the legislature’s decision to limit the right of appeal from LAT decisions to “pure” questions of law restricted the availability of judicial review of LAT decisions for errors of fact or mixed fact and law to “rare” or “unusual” cases.” She further alleged that the court had erred in finding that the LAT adjudicator’s decision was reasonable, which finding was made even though the Court of Appeal had agreed with the Divisional Court that judicial review should not even have been considered in this case.
Informed by its prior decisions in the cases of Vavilov and Strickland, the Supreme Court’s analysis was diametrically opposed to that of the courts below, in essence finding that a statutory right of appeal and access to judicial review are complementary remedies and not mutually exclusive.
In Ms. Yatar’s case, she sought to have the LAT’s decision judicially reviewed on a reasonableness standard with respect to the adjudicator’s findings of fact and mixed findings of fact and law. The Supreme Court observed that this is precisely the situation that was contemplated in Vavilov where separate standards of review were established for questions of law versus questions of fact or mixed fact and law.
Contrary to the rulings of the courts below, the Supreme Court was unambiguous in upholding the right of a person to seek judicial review of an administrative decision, stating at paragraph 49 that “[w]hile there is discretion to hear the application on the merits and deny relief, this discretion does not extend to decline to consider the application for judicial review…”.
Further, the Supreme Court did not agree that there was any legislative intent to limit judicial oversight of the LAT to issues of law that would arise on a statutory appeal, finding instead that “[t]he legislature could have decided to encompass all types of errors in the right to appeal, but it did not.”
That the statutory right of appeal on questions of law is subject to a standard of correctness, while judicial review on questions of fact or mixed fact and law is subject to a reasonableness standard, speaks to the different roles of each type of judicial oversight, but does not mean that the latter is unavailable. Further, because the remedies are not the same (and in this case, questions of fact or mixed fact and law were central to Ms. Yatar’s request for the court’s intervention), a statutory right of appeal does not constitute an “adequate alternative remedy”.
Having concluded that the components of LAT’s reconsideration decision that were not subject to the right of appeal should be judicially reviewed, the Supreme Court then turned its attention to the decision itself, concluding that it was not reasonable, and that the adjudicator had failed to give consideration to key facts and earlier tribunal decisions dealing with similar fact cases.
The question of whether there had been a valid denial sufficient to start the running of a limitation period against Ms. Yatar was ultimately remitted back to the LAT to decide again at first instance.
As suggested by the diverse and numerous parties who obtained intervenor status before the Supreme Court in this matter, the guidance provided by this decision has application far beyond the LAT and the world of statutory accident benefits and speaks to the important place of judicial review in the administration of justice generally. This decision would seem to encourage a more robust role for the court, whether by way of review of the substance of a decision not covered by a statutory right of appeal in this instance, or in reviewing the procedural fairness or legality of an administrative decision more broadly. While judicial review is a discretionary remedy, when Yatar is read together with the prior decisions of the Court in Vavilov and Strickland, the Supreme Court has now provided guidance as to the circumstances in which the exercise of that discretion is warranted.
Although the Supreme Court left the question of how this ruling would apply in the presence of a privative clause for “another day”, elements of this decision would suggest that the court’s oversight of administrative tribunals can only be limited by statute where there is an appropriate alternative means to ensure that the administrative body discharges its statutory function in accordance with the rule of law.
Ultimately, and as it relates to accident benefits cases decided by the LAT, the Supreme Court of Canada’s decision in Yatar would appear to be a game changing decision for those who practice in this area (and likely for those who practice before many other administrative tribunals, including WSIAT, which does not provide for a statutory right of appeal). Whereas prior to its release, it was thought that court oversight of decisions coming out of the LAT was effectively limited to appeals on questions of law on the correctness standard, the Supreme Court appears to have endorsed a more liberal approach to judicial intervention, opening the door to more frequent challenges regarding the reasonableness of findings of fact or mixed fact and law – or in relation to any other applicable grounds for judicial review.
Jennifer Griffiths is the author of this article and a member of the firm’s Appellate Advocacy practice group. If you have questions about this decision or another file where JR is sought, please contact Jennifer at 416-777-5245.
