Commercial Litigation and Dispute Resolution Blog

Administrative decision-makers, like judges, can get the facts wrong. When a tribunal’s enabling legislation restricts appeals to questions of law alone, are participants precluded from asking the courts to review errors of fact or mixed fact and law? In a recent decision, the Supreme Court of Canada confirmed in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 that a limited statutory right of appeal does not, on its own, preclude judicial review of other aspects of a decision.

Depending on the particular facts, this finding may significantly expand judicial oversight of decisions from various tribunals in British Columbia that are subject to limited statutory appeals, including the Property Assessment Appeal Board.

Background

Ms. Yatar contested the denial of her insurance benefits following an accident. The Ontario Licence Appeal Tribunal (“LAT”) dismissed her application as being time-barred. Ms. Yatar’s request for reconsideration was also dismissed. The applicable statute, Ontario’s Licence Appeal Tribunal Act (“LAT Act”), limited Ms. Yatar’s right of appeal from the decision to questions of law alone. As Ms. Yatar believed the LAT had made errors of fact, or mixed fact and law, she pursued both an appeal and judicial review.

The Divisional Court dismissed Ms. Yatar’s appeal, on the basis that it involved a question of mixed fact and law. It then considered whether it should entertain her application for judicial review. While the Court noted that the limited statutory appeal right in the LAT Act does not preclude an application for judicial review, it nonetheless found that it should only hear such an application in “exceptional circumstances”. In particular, the Court concluded that an adequate alternative remedy was available to Ms. Yatar (the statutory appeal), which justified the Court exercising its discretion to decline to entertain her application for judicial review.

The Ontario Court of Appeal upheld this decision, finding that courts have discretion both in deciding to undertake judicial review, and in granting relief. Upholding the Divisional Court’s application of the “adequate alternative remedy” doctrine, the Court of Appeal agreed that the LAT Act demonstrated “legislative intent to limit access to the courts regarding these disputes”. On this basis, the Court of Appeal agreed that the existence of an adequate alternative remedy justified a decision to decline to hear Ms. Yatar’s application for judicial review. The Court of Appeal found that judicial review will only be entertained in “rare cases” in the face of a limited statutory right of appeal.

Prior to the Supreme Court of Canada’s hearing of Ms. Yatar’s appeal, the availability of judicial review in these circumstances was unclear. While Vavilov^[1]recognized that the existence of a circumscribed right of appeal does not preclude applications for judicial review on other questions, appellate courts across Canada had applied this principle inconsistently. Some, like Ontario in Yatar, held that a limited statutory right of appeal justifies the court exercising its discretion to refuse to hear an application for judicial review. Others, like Manitoba in Smith v The Appeal Commission^[2], held that a limited statutory right of appeal is not a basis for the court to refuse to consider an application for judicial review.

The Supreme Court of Canada’s Decision

Ultimately, in Yatar, the Supreme Court of Canada ruled that the Ontario Courts erred in holding that, where there is a limited right of appeal, judicial review should only be exercised in exceptional or rare cases. In reaching this conclusion, Justice Rowe, writing for a unanimous Court, first confirmed that the existence of a circumscribed right of appeal does not, on its own, preclude applications for judicial review, citing Vavilov.

Justice Rowe then discussed the discretionary nature of judicial review, citing Strickland^[3]as requiring that a court determine the appropriateness of judicial review by considering both the available alternatives and the purposes and policy considerations underlying the legislative scheme in issue. If a discretionary basis to refuse a remedy is present, the court may decline to consider the merits of the judicial review application or refuse to grant relief. Justice Rowe found that the Court of Appeal erred in its application of Strickland in two ways. First, there was no proper basis to infer legislative intent to eliminate judicial review for issues falling outside the scope of the statutory appeal, and second, there was no adequate alternative remedy on such questions.

In reaching this decision, Justice Rowe explained that a limited statutory right of appeal does not denote legislative intention to restrict recourse to the courts on other questions. Rather, it simply demonstrates an intent to subject questions of law to correctness review (as opposed to the more deferential reasonableness standard typically applied on judicial review). Additionally, the statutory appeal in the LAT Act did not provide any remedy at all for Ms. Yatar with respect to the errors of fact and mixed fact and law that she alleged. As a result, there was no basis for the Court to decline to undertake Ms. Yatar’s application for judicial review.

Takeaways

This decision settles the law in Canada on the role that statutory appeal rights play in the availability of judicial review: courts have no discretion to decline to undertake judicial review on the basis of a limited statutory appeal right governing other questions. Courts do, however, retain discretion to decline to grant relief.

Notably, the Supreme Court of Canada based its decision on notions of legislative intent, not a constitutional right of judicial review. The Court declined to consider the availability of judicial review where the applicable statute also contains a privative clause (i.e., a clause that expressly seeks to bar or restrict judicial review), as this was not at issue in Yatar. It therefore remains to be seen whether judicial review will be available in the face other indicators that the Legislature intended to preclude recourse to the courts beyond a limited statutory appeal.

For now, Yatar tells us that participants who disagree with administrative decisions that are subject to limited statutory appeal rights may want to consider bringing both a statutory appeal and judicial review to challenge other aspects of the decision. These two avenues will proceed in different manners: the court will review appeals on questions of law on a standard of correctness (meaning, the decision must be correct in law), but will typically consider judicial reviews on the more deferential standard of reasonableness (meaning, the tribunal’s decision need only be reasonable). In BC, there are also different procedural requirements for commencing a statutory appeal and a petition for judicial review.

As noted, depending on the particular facts, this may affect decisions of the Property Assessment Appeal Board, whose decisions are subject to statutory appeal on questions of law alone, among other tribunals. As to the Assessment Appeal Board, Yatar justifies asking the court to entertain judicial review of questions of fact and mixed fact and law arising from the Board’s decisions, to the extent not addressed in a stated case appeal. If you are considering asking the court to review a property assessment appeal or other tribunal decision, please reach out to the authors or any member of our Litigation and Dispute Resolution Group for assistance.

^{[1] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.}

^{[2] Smith v The Appeal Commission, 2023 MBCA 23.}

^{[3] Strickland v. Canada (Attorney General), 2015 SCC 37.}