Manitoba Court of Appeal rules that appeal right does not preclude right to judicial review

A statutory right to an appeal does not preclude the appellant from also seeking judicial review of the same decision in the same proceeding, according to a recent Manitoba Court of Appeal (the “MBCA” or the “Court”) ruling.

The MBCA’s decision in Smith v The Appeal Commission, 2023 MBCA 23[1] opens the door for those seeking to overturn an administrative decision to attack that decision on more than one front.  Further, the Court has made clear that where a statute describes a decision as final and not being subject to appeal, this provision does not necessarily prohibit judicial review. Judicial review is the inherent power of a superior court to review the decision of an administrative decision-maker to determine if the decision was reasonable or correct (depending on the standard of review[2] that applies in a given case).

In this decision, the Court encouraged the Legislature to reform judicial review in Manitoba. Given the recency of this decision, it remains to be seen whether the Legislature will do so.


The appellant, Smith, was prescribed medical cannabis, which was supplied to Smith in accordance with federal regulations. Smith submitted an application for compensation under the Manitoba Compensation for Victims of Crime Program (the “Program”) for reimbursement of the cost of the medical cannabis in treating her PTSD. The Program Director denied the claim based on a medical consultant’s opinion that there is little evidence as to the efficacy of medical cannabis to treat PTSD. Smith applied for reconsideration and the claim was again denied by the Director based on information provided by the medical consultant.

Smith appealed the decision denying reconsideration to the Appeal Commission, which denied the appeal (the “Decision”).

Smith appealed the Decision to the Court of King’s Bench in accordance with s. 67 of The Victims’ Bill of Rights (Manitoba) (the “VBR”), which provides as follows:

Appeal to King’s Bench
67(1)  A person who receives notice under section 66 may, within 30 days, appeal the decision of the appeal board to the Court of King’s Bench.

Grounds for appeal
67(2)  An appeal may be taken only on a question of law or jurisdiction.

Within the same proceeding, Smith also sought judicial review of the Decision on the basis that the Decision was unreasonable. However, Smith withdrew the statutory appeal at the hearing of the matter in favour of proceeding with the judicial review.

The Application Judge found it was inappropriate for Smith to abandon her statutory appeal, determining that Smith had not been “appropriately respectful of the statutory framework and normal processes provided by that framework.”

The Application Judge found that section 67 of the VBR was a privative clause that prohibited judicial review of any decision where the issue was a question of fact or mixed fact and law. In the alternative, he found that judicial review should be refused on the basis that the statutory appeal mechanism represented an adequate alternative remedy and on the basis that the judicial review was premature because the statutory appeal had not been exhausted.

The MBCA allowed the appeal. It set aside the decision of the Director denying coverage and ordered that Smith was entitled to compensation for her medical cannabis.

The MBCA’s reasoning

The Availability of Judicial Review in the Circumstances

The parties conceded that the issue of whether s. 67 of the VBR prevented judicial review was a question of statutory interpretation, such that the standard of review was correctness.

The Court discussed the nature of privative clauses, described three forms of privative clauses and provided examples of each type of clause in appendices to the decision:

  1. A “true” privative clause sets out that a decision of the administrative decision-maker is final and that no appeal or judicial review lies from the decision, and therefore “ousts the inherent jurisdiction” of superior courts to judicially review an administrative decision-maker’s decision. Examples of a “true” privative clause include, inter alia:

The Fatality Inquiries Act, CCSM c F52:
Decision final
31(6) An order made under subsection (2) is final and is not subject to judicial review or appeal.

The Red River Floodway Act, CCSM c R32:
No court proceedings about declaration
9(5) No person may commence or maintain court proceedings to set aside or appeal a declaration made under this section or to have a declaration judicially reviewed.

The Residential Tenancies Act, CCSM c R119:
No review by court
188 A decision or order of the director or the commission is not subject to appeal or review by any court.

  1. A “limited” privative clause that does not have the preclusive effect of a “true” privative clause but may create some restrictions on appeal or judicial review of a given decision. Examples of a “true” privative clause include:

The Human Rights Code, CCSM c H175:
Application for judicial review
50(1) Any party to an adjudication may apply to the court for a review of any decision or order made by the adjudicator with respect to the adjudication, solely on the ground that
(a) the adjudicator committed an error of jurisdiction with respect to the adjudication; or
(b) there was a breach of the principle of natural justice or the principle of fairness in the course of the adjudication; or
(c) there is an error of law on the face of the record of the proceedings in respect of which the decision or order under review was made.

The Crown Lands Act, CCSM c C340:
Decision final and binding
7.6(9) The decision of the appeal tribunal is final and binding on the parties and is not subject to appeal.

  1. Statutory provisions that describe an administrative decision as final but are silent as to whether judicial review or an appeal remain available. The Court did not comment on these types of clauses on the basis that they were outside the scope of the appeal before it. An example of such a clause is:

Decision final
94(7)  The decision of the minister in an appeal under this section is final.

The subject statutory appeal clause restricted the nature of statutory appeals that could be made from a decision of the Appeal Commission, but was silent on its effect on judicial review rights; it was therefore a “limited” privative clause.

Relying on the Supreme Court’s decision in Vavilov[3], the Court held that the existence of a limited right of appeal in statute does not preclude or limit the availability of judicial review – the limitations in the statute applied only to appeals and not to judicial reviews. The Court emphasized that the right to have administrative decisions judicially reviewed is based on the rule of law and has constitutional dimensions, such that a Court cannot interpret a privative clause as removing a right of judicial review unless there is clear language to that effect.

The Court was clear that it was correct for Smith to combine her appeal and judicial review in the interests of efficiency and judicial economy. Had the Application Judge considered both the appeal and the judicial review, he would have been required to sort the issues into appeal or judicial review. Those issues that were permitted to be appealed by the statute (questions of law and jurisdiction) were to be considered under the appeal and its associated standard of review, and any other issues (questions of fact or mixed fact and law) were to be considered under the judicial review and its associated standard of review. However, the Court noted that its decision leads to the result that, in some cases, an individual challenging an administrative decision may have the right of judicial review by the Court of King’s Bench of some issues while the applicable statute requires that other issues be appealed to the MBCA. The Court described the resulting bifurcating of the challenge as unfortunate and encouraged the Manitoba Legislature to reform judicial review in Manitoba.

The appeal mechanism was held to not constitute an adequate alternative remedy because the appeal provision limited the scope of the appeal. Further, since Smith had abandoned her statutory appeal, the Court held that there was no basis to say that the application was premature. This statement raises the question of whether a Court can refuse to consider an application for judicial review on the basis of prematurity if there is still an active statutory appeal. We expect that this issue will be resolved in later cases.

The Court found that the Decision was unreasonable, set aside the decision of the Director denying coverage and ordered that Smith was entitled to compensation for her medical cannabis.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

[1] Smith v The Appeal Commission, 2023 MBCA 23

[2] In other words, the way that a Court will consider if a decision is “wrong” and should be overturned.

[3] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65