Facts:
G suffered a workplace injury. The Workers’ Compensation Board found that injury to be compensable and determined his compensation rate, permanent clinical impairment rating, and disability status. G appealed the compensation decision to the Board’s internal Dispute Resolution and Decision Review Body. Still unsatisfied, G appealed again to the external Appeals Commission. The Commission confirmed the Board’s decisions as to G’s permanent clinical impairment rating and non-economic loss entitlement.
G appealed the Commission’s decision to the Alberta Court of King’s Bench under the appeal provision in s. 13.4 of the Workers’ Compensation Act,1 which allows appeals on questions of law or jurisdiction. He also applied for judicial review.
The chambers judge found that the procedural fairness grounds raised in G’s appeal were questions of law on which an appeal was available but concluded that the Commission’s procedures were fair. G did not show any errors in the interpretation of the Act or the Board’s policies. On the judicial review application, the chambers judge found the Commission’s analysis and ultimate decision were reasonable. G appealed.
Decision:
Appeal dismissed (per Feehan and Kirker JJ.A.; Slatter J.A. concurring).
The majority found that the chambers judge made no reviewable error in refusing to reweigh the medical evidence that was before the Commission. Judicial review is not a de novo reassessment of the decision under review. It was not unreasonable for the Commission to prefer one body of expert evidence or over another. Conclusory allegations that the Commission or the chambers judge failed “to appropriately consider the evidentiary record and factual matrix” are not sufficient to demonstrate a reviewable error.
The concurrence agreed with the majority’s reasons for dismissing the appeal but focused on the appropriateness of the appellant’s judicial review application, brought in parallel to the statutory appeal.
As a general rule, a statutory right of appeal from the decision of an administrative tribunal is intended to exhaust the remedies available to the applicant. In the end, the availability of judicial review is a matter of statutory interpretation, but there is generally no right to supplement the statutory right of appeal with common law judicial review.
The legislature has a wide jurisdiction to determine the procedures by which administrative decisions are to be reviewed by the superior courts. Although the legislature cannot complete insulate administrative decisions from judicial review,2 the legislature has a very wide mandate to define the nature and availability of judicial review as illustrated in various ways, such as legislation governing the availability, procedures and remedies of judicial review, statutory limitation periods on judicial review and legislated standards of review. There is no constitutional reason why a legislature cannot provide that the exclusive method of challenging a particular administrative decision will be through a statutory appeal, not common law judicial review, and there is no reason why the legislature cannot limit judicial review to questions of law.
Whether a statutory right of appeal is intended to be the exclusive remedy for reviewing administrative decisions must always be a question of statutory interpretation. When conducting that analysis, one must not assume that statutory rights of appeal and common law judicial review are two separate processes. They are two procedural alternatives of accomplishing the same thing: judicial review of administrative decisions.
The existence of a statutory right of appeal is relevant but not conclusive on the issue of whether judicial review is available; the statute as a whole must be interpreted. Further, judicial review is discretionary and relief can be denied when there are alternative effective remedies.
Here, the Workers’ Compensation Act deals with both judicial review and statutory appeals. It grants a right of appeal limited to questions of law or jurisdiction, and it has a full privative clause for other types of questions. On a proper interpretation of the statute, the statutory appeal right was intended to exclude judicial review by any other process.
The legislature expressly provided for appeals on questions of law and jurisdiction, thereby excluding any appeals on questions of fact or mixed fact and law. It is inconsistent with this legislative intention to conclude that review of questions of fact or mixed fact and law is not prohibited, but is merely to be conducted through a separate procedure—a judicial review application—even though that procedure is expressly excluded by the privative clause. The scheme of the statute is that the Appeals Commission has the final say on questions of fact and mixed fact and law. In the view of the concurring judge, it is not open to challenge factual decisions of the Commission by applications for judicial review.
Commentary:
With his concurrence, Justice Slatter adds his voice to the chorus of judges who have weighed in on the thorny issue of whether and to what extent judicial review is available where a party wants to challenge an administrative decision on grounds that fall outside the scope of a limited statutory appeal right. Several of these judicial opinions have come from appellate courts and no two have been entirely aligned.
The debates in this area emerge from paragraphs 45 and 52 of Vavilov, which note, without analysis, that the extensive of a circumscribed right of appeal does not preclude judicial review of aspects of a decision falling outside the appeal right.
The appellate decisions and opinions broadly reflect three approaches:
- Those who are of the view that a limited appeal right demonstrates a legislative intention to limit court review to only those issues that may be the subject of an appeal. Judicial review is not available for other aspects of a decision.3
- Those who are of the view that judicial review is always available, without restriction, for issues that cannot be raised through a circumscribed appeal mechanism.4
- Those who are of the view that judicial review is available where there is limited appeal right but that the court will only rarely exercise its discretion to grant the remedy of judicial review.5
The Supreme Court will soon weigh in on these divergent views. In November 2023, it heard oral argument in the appeal from the Ontario Court of Appeal’s decision in Yatar v TD Insurance Meloche Monnex.6 The Court of Appeal favoured approach #3 above. Although Ontario’s Judicial Review Procedure Act,7 which expressly allows for judicial review “despite any right of appeal”, is not mirrored in most other provinces or the Federal Courts Act, we do not anticipate that legislation to be determinative in the Supreme Court’s analysis. While the Supreme Court may emphasize (as did Slatter JA in Georgopoulos) that statutory interpretation must play a key role, we anticipate that in the same spirit as Vavilov (and other cases decided since then), the Supreme Court will seek to remove complexity by setting out an approach that is meant to apply generally—even if it may result in strained statutory construction from time to time.8
We eagerly await the decision.
- RSA 2000, c W-15. ↩︎
- Crevier v Québec (Attorney General),[1981] 2 SCR 220 ↩︎
- See, for example, the opinion of Near JA in Canada (Attorney General) v Best Buy, 2021 FCA 161, which is reviewed in Issue No. 31 of this newsletter. ↩︎
- See, for example, the majority opinion of Gleason JA in Canada (Attorney General) v Best Buy, 2021 FCA 161, and the decision in Smith v The Appeal Commission, 2023 MBCA 23, which is reviewed in Issue No. 35 of this newsletter. ↩︎
- Yatar v TD Insurance Meloche Monnex, 2022 ONCA 446, which is reviewed in Issue No. 33 of this newsletter. ↩︎
- 2022 ONCA 446. ↩︎
- RSO 1990, c J.1. ↩︎
- See, for example, the discussion of the majority’s reasons in Mason v Canada (Citizenship and Immigration), 2023 SCC 21, above. ↩︎