Statutory appeal provisions do not limit judicial review on issues outside their scope: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8

Facts: 

Y was injuredin an automobile accident in February 2010 and sought benefits under the Statutory Accident Benefits Schedule.¹ In a letter sent in January 2011, her insurer, TD, denied her application for three categories of benefits as a result of her failure to submit a completed disability certificate. Y then attended two examinations by TD’s chosen assessor, after which TD again denied her claim for two of the benefits for which she had applied.  TD initially confirmed that she was eligible for the third form of benefits: income replacement. However, a few months later TD deemed Y ineligible for income replacement benefits too.

Y initiated various forms of dispute resolution that were available at the time under the SABS and the Insurance Act.² In 2018, and following extensive amendments to the Insurance Act and the SABS, Y made an application to the Licence Appeal Tribunal. The LAT held a preliminary hearing to determine whether Y was precluded from proceeding with her application because she missed the statutory two-year limitation. The LAT adjudicator found that the January 2011 letter contained a clear and unequivocal denial of benefits. As a result, the limitation period started to run at that time and expired several years before Y initiated the application. The adjudicator dismissed the application. The same adjudicator dismissed Y’s request for reconsideration.

Y appealed to the Divisional Court under s. 11(6) of the Licence Appeal Tribunal Act, 1999³ which grants a right of appeal from a decision of the LAT relating to a matter under the Insurance Act on a question of law only. Y also sought judicial review in the event the Court determined that LAT’s errors were errors of fact or mixed fact and law. 

The Divisional Court dismissed the appeal, as well as Y’s application for judicial review, on the basis that there were “no exceptional circumstances” that would justify judicial review, particularly given the legislative intent to limit judicial review to questions of law only.  The Court of Appeal dismissed Y’s appeal, holding that it would only be in “rare cases” that the remedy of judicial review would be exercised given the presence of a statutory appeal route.

Decision: 

Appeal allowed and matter remitted to the LAT adjudicator (per Rowe J. for a unanimous court).

There is no proper basis to infer a legislative intent to eliminate judicial review of issues outside the scope of the statutory appeal route (i.e. for questions of fact or mixed fact and law). The legislative decision to provide for a right of appeal on questions of law only denotes an intention to subject such questions to correctness review.  Section 2(1) of the Judicial Review Procedure Act preserves the right of litigants to seek judicial review “despite any right of appeal”.  Errors of fact or mixed fact and law, thus, are not subject to correctness review — and proceeding with a judicial review on these questions is fully respectful of the legislature’s institutional design choices.

In addition, the availability of a statutory appeal under the LAT Act cannot be considered an adequate alternative remedy for a judicial review. The right of appeal is restricted to errors of law only. Y is raising errors of fact or mixed fact and law, which cannot be pursued under the statutory right of appeal.

Accordingly, Y’s judicial review application should proceed and the LAT adjudicator’s decision should be assessed on the reasonableness standard. 

The decision was unreasonable as it failed to take into account relevant legal constraints. In particular, the adjudicator failed to consider the legal effect of the fact that Y’s income benefits were reinstated between February and September 2011 (after Y received the letter advising she would not receive further benefits in January 2011) — and that some earlier tribunal decisions have held that when such reinstatement occurs, the limitation period can only be triggered when they are validly terminated again.  It is arguable that there still needs to be a valid denial of Y’s benefits to start the clock running.  This is a question properly to be decided by LAT.

Commentary: 

This hotly anticipated decision definitively resolves what had been an ongoing dispute in the jurisprudence regarding the role of limited statutory appeal provisions.  We now know that such appeal rights do not oust—or even weaken—the ability to seek judicial review.  As the Court tells us, the limits of what can be inferred from statutory appeal provisions is simply that whatever falls outside of those provisions may be subject to judicial review.  In other words, the legislative intent of a limited statutory appeal provision is restricted to what the majority decided in Vaviliov: appellate standards of review ought to apply to those questions. 

The Court has now reaffirmed and clarified its earlier statement 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” (para. 52).

This approach of ‘rolling out the welcome mat’ to judicial reviews will have practical consequences.  Many tribunals operate on the basis of a statutory scheme with limited appeal rights. Yatar sends a clear signal that any aspect of these underlying decisions may now be challenged, whether via an appeal or by way of a judicial review proceeding in tandem with that appeal (or, as may be the case, standing alone).  Whatever reticence might have been caused by the uncertainty surrounding this issue post-Vavilov — and, at least in Ontario, the chill brought over parallel judicial reviews after the Divisional Court’s decision in Yatar — has now dissipated.  Simply put, we can expect more judicial review applications in a post-Yatar world.

Counsel seeking to challenge tribunal decisions subject to a limited statutory right of appeal are well advised to bring both an appeal and a judicial review application if they seek to challenge the decision on multiple grounds (i.e. both questions of law and questions of fact or mixed fact and law). This will ensure that the court can address all of the arguments.

While Yatar brings welcome clarity to what can be inferred from a statutory appeal provision when it comes to judicial review applications on issues outside the scope of that provision, it expressly avoids pronouncing on the thornier question of whether, and to what extent, legislatures may restrict judicial review.  Courts have long ignored wholesale privative clauses seeking to fully insulate decision-makers from judicial review, finding such attempts to be unconstitutional.⁴  But what if a legislative scheme merely restricts judicial review while also providing a limited right of statutory appeal or review on certain questions?  The Court notes conflicting recent case law on this point, yet decides to “leave that question for another day” (para 50).

In fairness, resolving that question was not strictly necessary in Yatar, given that the statutory scheme included only an appeal provision and no privative clause.  But an answer will be required sooner rather than later, given the ongoing jurisprudential uncertainty on this very question, particularly in the federal courts.⁵ 

1. Accidents on or After November 1, 1996, O Reg. 403/96 (“SABS”) ↩︎
2. RSO 1990, c I.8  ↩︎
3. SO 1999, c 12, Sched. G ↩︎
4. See, for example, Crevier v. AG (Quebec), [1981] 2 SCR 220. ↩︎
5. See, for example, Democracy Watch v. Canada (Attorney General), 2023 FCA 39. ↩︎