Supreme Court Of Canada Confirms Availability Of Judicial Review Despite Limited Statutory Appeal Rights – Trials & Appeals & Compensation

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 Vavilov¹
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
Commission², 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 Strickland³ 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.

Footnotes

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.

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