The Supreme Court recently provided much-needed clarification on the availability of judicial review when there is a statutory right of appeal. In its unanimous decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, the Supreme Court of Canada clarified that judicial review remains available for issues not dealt with under a statutory right of appeal. In other words, contrary to the lower courts’ holdings, judicial review is not limited to “exceptional” or “rare” circumstances when there is a statutory right of appeal. The Supreme Court referred the matter back to the Licence Appeal Tribunal adjudicator for reconsideration.
Facts
Ms. Yatar was injured in a car accident in 2010 and applied for insurance benefits from her insurer. She initially received benefits, but her insurer later denied them. Ms. Yatar challenged the denial of benefits before an administrative tribunal (the Licence Appeal Tribunal), but her application was dismissed because she ran out of time.
The legislative scheme for the Licence Appeal Tribunal allowed for an individual to appeal to a court on questions of law alone. Ms. Yatar appealed to the Divisional Court on an issue of law, but also sought judicial review on questions of fact or mixed fact and law.
Lower Court Decisions
Ms. Yatar was unsuccessful at both the Divisional Court and in her subsequent appeal to the Court of Appeal for Ontario.
With respect to the appeal on a question of law, the Divisional Court held that there were no legal errors. With respect to the judicial review on questions of fact and mixed fact and law, the Divisional Court held that the Court had discretion to undertake judicial review, but the discretion should only be exercised in “exceptional circumstances”.
The Court of Appeal dismissed Ms. Yatar’s appeal. It held that it would be “rare” for judicial review to be exercised, given the legislative scheme that allowed for appeals on questions of law from the Licence Appeal Tribunal. The Court of Appeal also held that even if judicial review ought to be considered, the Tribunal’s decision was not unreasonable.
Supreme Court Decision
A unanimous Supreme Court allowed the appeal. Justice Rowe wrote for the Court.
Justice Rowe held that the existence of a circumscribed right of appeal does not, on its own, preclude applications for judicial review. In other words, even though the legislature restricted appeals to questions of law alone, one could not infer from this that the legislature intended to limit the availability of judicial review for questions of fact and mixed fact and law.
Justice Rowe noted that there are decisions from the Federal Court of Appeal that address the impact of a privative clause (a clause that seeks to bar or restrict judicial review) on the availability of judicial review. However, because there was no privative clause at issue in Yatar, he left this issue to be decided in another case.
After concluding that judicial review was available for the elements of the decision that were not covered by the right of appeal, Justice Rowe concluded that the standard of review was reasonableness. He held that the decision was unreasonable because the adjudicator failed to take into account relevant legal considerations.
Implications
The Supreme Court has now clarified that judicial review remains available even when there is a limited right of appeal under the relevant statute. This means that depending on the scope of the right of appeal and the issues raised, it may be necessary to bring both an appeal and an application for judicial review.
While Yatar helpfully clarified the impact of a statutory right of appeal, it expressly left open the impact of a privative clause. A privative clause is arguably a much clearer expression of legislative intent to limit the role that courts play in the administrative scheme. However, courts have long been suspicious of privative clauses that seek to oust the court’s ability to review delegations of power to administrative tribunals. It will not be long before the Supreme Court is called upon to address this issue.
