Yatar: circumscribed right of appeal does not preclude judicial review

In Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, the Supreme Court of Canada recently clarified that where a statute creates a circumscribed right of appeal from an administrative decision, this does not restrict judicial review of questions beyond the scope of the appeal. Practically, this means that a party may have an appeal on certain issues (e.g., questions of law) and a parallel application for judicial review on residual issues (e.g., questions of fact and mixed fact and law).^[1] The judicial review application is not limited to “rare” or “exceptional” situations.

Background

Ummugulsum Yatar commenced a proceeding before the Licence Appeal Tribunal (LAT) for accident benefits following denial of her insurance claim. The LAT adjudicator dismissed her claim as time-barred, and later confirmed this decision following a request for reconsideration.

Since Ms. Yatar’s appeal from the LAT decision was restricted to questions of law under the Licence Appeal Tribunal Act, 1999 (the LAT Act), Ms. Yatar pursued an appeal of the decision on questions of law and sought judicial review of the decision on questions of fact and mixed fact and law.

The Divisional Court concluded that on judicial review, with respect to questions of fact and mixed fact and law, the limited right of appeal in the LAT Act did not preclude the court from reviewing other aspects of the decision. However, the Divisional Court declined to exercise its discretion to judicially review the LAT decision on the basis that the legislative intent to limit an appeal of a LAT decision to questions of law alone restricted the availability of judicial review to “exceptional circumstances”, which the Divisional Court found were not present in this case.

The Court of Appeal dismissed the appeal, concluding that there was a “legislative intent to limit access to the courts regarding these disputes” and that judicial review should thus be “rare”. The Court of Appeal affirmed the Divisional Court’s refusal to undertake judicial review, and held, in the alternative, that the LAT’s decision was reasonable.

The Supreme Court’s decision

The Supreme Court unanimously allowed the appeal. The Court held that the circumscribed right of appeal in the LAT Act does not, on its own, restrict judicial review of questions beyond the statutory appeal. Where a person pursues both a statutory appeal on questions of law and judicial review on factual matters, the questions of law would be subject to review on a standard of correctness, while questions of fact and mixed fact and law would be subject to judicial review on the standard of reasonableness.

According to the unanimous Court, the legislative choice to provide a circumscribed right of appeal does not demonstrate a legislative intention to restrict judicial review for issues beyond the scope of the appeal. Proceeding with a statutory appeal and an application for judicial review in parallel respects legislative design choices. In Ontario, for example, section 2(1) of the Judicial Review Procedure Act preserves the right of litigants to seek a judicial review “despite any right of appeal”.

Yatar also clarifies the discretion afforded to courts hearing a judicial review application. While reviewing courts have the discretion to deny relief on the merits of a judicial review application, this discretion does not extend to decline to consider the application for judicial review. As such, the Court of Appeal erred in its conclusion that “[t]he court’s discretion with respect to judicial review applies both to its decision to undertake review and to grant relief”. According to the Supreme Court, the application judge must, at a minimum, determine whether judicial review is appropriate, either by (1) declining to consider the merits of a judicial review application if one of the discretionary bases for refusal of judicial review from Strickland is present or (2) declining to grant a remedy, even if the decision under review is unreasonable, in appropriate circumstances.

Allowing the appeal, the Court concluded that judicial review was available and appropriate, and that the LAT’s reconsideration decision was unreasonable. The Court sent the matter back to the LAT adjudicator for reconsideration in light of the Court’s reasons.

Key takeaways

Yatar clears up confusion around the availability of judicial review where there is a circumscribed right of appeal. The Court previously addressed this point in its watershed decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (discussed by this Blog). It has long been the law, as reflected in Vavilov, that “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal” (Vavilov at para. 52). Yatar confirms and strengthens this existing law.

The Court’s decision in Yatar is consistent with the nature of appeals. As has been stated many times in this Blog, appeals are creatures of statute.^[2] The legislature may limit the scope of the appeal (e.g., appeals limited to law alone), which is simply a reflection of the parameters of the statutorily created right. It cannot be inferred from these parameters (on their own) that the legislature intended to limit judicial review of administrative decision-making beyond the scope of the appeal. The parameters of a statutory appeal and limits on judicial review are fundamentally different concepts. Yatar appreciates the distinction. As the Court held in Yatar, the creation of a statutory right of appeal limited to certain questions does not indicate a legislative intent to restrict access to judicial review for questions that fall beyond the parameters of an appeal.