On March 15, 2024, the Supreme Court of Canada released its decision in Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (“Yatar”).
In Yatar, the Supreme Court confirmed that, even where a statute gives a statutory right of appeal from an administrative decision, a person may still bring a parallel judicial review challenging the same decision.
In its 2019 decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the Supreme Court of Canada confirmed that a limited right of appeal does not necessarily prevent a person from bringing an application for judicial review of other aspects of a decision. Since Vavilov, the issue of parallel appeal and judicial review proceedings has been subject to debate and conflicting lower and appellate court decisions. The decision in Yatar provides much needed clarity on this issue but also leaves open questions for future decisions.
Background
Ms. Yatar was injured in a car accident in 2010 and TD Insurance Meloche Monnex, her insurer, initially accepted her request for accident benefits. TD Insurance later denied the benefits to Ms. Yatar and she sought to challenge that decision.
Ms. Yatar commenced a proceeding for accident benefits before the License Appeal Tribunal (the “LAT”). The LAT dismissed her claim and also dismissed a subsequent request for reconsideration.
Ms. Yatar then challenged the LAT’s decision before the Divisional Court of the Ontario Superior Court of Justice. Because the Ontario legislation only allowed her to appeal the LAT’s decision on a question of law, Ms. Yatar pursued two proceedings: (1) an appeal on questions of law; and (2) judicial review regarding questions of fact or mixed fact and law. The Divisional Court dismissed Ms. Yatar’s appeal and declined to hear her application for judicial review.
Judicial review is a discretionary remedy. Courts may decline to hear applications for judicial review where there is an adequate alternative remedy available, such as a statutory right of appeal. The Divisional Court concluded that, while judicial review was available, it should be declined because the right of appeal on questions of law was an alternative remedy. The Court also determined there were no exceptional circumstances that would otherwise justify judicial review.
Ms. Yatar appealed that decision to the Ontario Court of Appeal. Like the Divisional Court, the Court of Appeal concluded that judicial review is available where there is a limited statutory right of appeal – but that judicial review is discretionary, and will only be granted in rare cases due to the existence of a right of appeal. It also found that the LAT’s decision was reasonable.
Court decision
Ms. Yatar appealed the Court of Appeal’s decision to the Supreme Court of Canada. Apart from challenging the LAT’s decision, her appeal raised one broad issue:
Did the legislature’s decision to limit the right of appeal from LAT decisions to “pure” questions of law restrict the availability of judicial review of LAT decisions for errors of fact or mixed fact and law to “rare” or “unusual” cases?
The Supreme Court of Canada first confirmed that a person can pursue two proceedings simultaneously: (1) a statutory appeal on questions of law; and (2) judicial review on questions of fact and mixed fact and law. The Court went on to clarify that while a judge faced with these proceedings must hear the application for judicial review, that judge still exercises a discretion over whether to grant relief in the judicial review. This involves considering whether judicial review is appropriate – which is not answered by the existence of a limited right of appeal or concerns for judicial economy.
However, in reaching this conclusion, the Supreme Court did not address whether judicial review is available where the legislation contains a “privative clause.” Privative clauses are provisions in statutes that seek to bar or restrict a party’s ability to seek judicial review of a decision. The statute in Yatar did not contain a privative clause. The Court flagged the existence of case law on this issue – and declined to address the issue, leaving the question for another day.
Implications going forward
What is perhaps most notable about the Yatar decision is what it does not say. The Court specifically chose not to address whether judicial review remains available where there exists a privative clause in the legislation – i.e. a provision stating that judicial review is not available or is restricted. This is an issue of considerable importance for litigants, as many statutes across Canada contain privative clauses. Yatar leaves this significant question open and for a future court to resolve “another day.”
That said, the Yatar decision does confirm that parties with a limited right of appeal have three options. Where a party has a limited right of appeal, such as on a question of law, the first option is to exercise that right of appeal. The second option that party has is to seek judicial review on matters that are not included within the scope of the right of appeal. The third and final option is to do both: exercise the right of appeal and simultaneously seek judicial review of the decision.
Each of the options vary significantly, and should be carefully considered before commencing proceedings challenging a decision. For example, courts generally apply a less deferential standard of review to questions of law in an appeal than they do to questions of law raised on judicial review. Filing both an appeal and a judicial review will also trigger two different sets of procedures. As an example, the legislation may contemplate that a party appeal to a different court than where they would typically commence a proceeding seeking judicial review. These are practical issues and their implications should be carefully considered before commencing proceedings challenging a decision.
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 of opinion. Readers should consult a legal professional for specific advice in any particular situation.