Appeal or judicial review decision made under statute? | Sara Blake

By Sara Blake

Law360 Canada (March 15, 2023, 12:37 PM EDT) --
Sara Blake
Sara Blake
If a right of appeal is restricted to a question of law, in what circumstances may a party seek judicial review of other issues? On this question, the Supreme Court of Canada has granted leave to appeal from the decision in Yatar v. TD Insurance Meloche Monnex  2022 ONCA 446. The primary issue is likely to be the discretionary nature of judicial review in the context of a statutory provision that restricts a right of appeal to a question of law.

The factual context presented by Yatar primarily concerns a limitation period. Ummugulsum Yatar had suffered injuries in an accident and, initially, her insurer paid accident benefits. The insurer later stopped paying all benefits except income replacement. Yatar sought mediation, which was unsuccessful. The statute allowed a proceeding to be commenced within 90 days after delivery of a mediator’s report respecting a failed mediation or two years after the insurer’s denial of a claim. The statute does not authorize any extension of time. Four years after the mediation report, Yatar appealed to the Licence Appeal Tribunal who dismissed the appeal as statute-barred.

Yatar filed both an appeal and a judicial review of the tribunal decision, which were heard together in the Divisional Court. The Court of Appeal ruled that a party must bring both the appeal and the judicial review at the same time. They may not await the outcome of an appeal before commencing the judicial review. I note that this is effectively required by the 30-day limitation periods for both proceedings. Also, the court ruled that a party bringing both proceedings must bring a motion for the two proceedings to be heard together, with a single appeal book/application record and factum covering both proceedings, and recommended that this be required by a Divisional Court Practice Direction.

The Divisional Court ruled that, if the statute grants a right of appeal, a party may bring a judicial review of the same decision only in exceptional circumstances. First, they dismissed the appeal because Yatar did not raise a question of law. The question of whether the appeal to the tribunal was commenced within the limitation period was a question of mixed fact and law, which may not be appealed. Second, they exercised their discretion to dismiss her judicial review because the right of appeal, restricted to a question of law, is an adequate alternative remedy to judicial review. The case did not present exceptional circumstances.

The Court of Appeal granted Yatar leave to appeal but dismissed her appeal upholding the decision of the Divisional Court. They quibbled with the use of the term “exceptional circumstances” but upheld the application of the “adequate alternative remedy” principle. The primary reason is the legislative intention, expressed in the appeal provision, to restrict resort to the courts to questions of law. They noted the privative clause, which explicitly recognizes a party’s right to apply for judicial review, and the recognition in Vavilov that the existence of a circumscribed right of appeal does not, on its own, preclude applications for judicial review of decisions, or aspects of decisions, to which the appeal mechanism does not apply (Vavilov v. Canada (Citizenship and Immigration) [2016] 2 F.C.R. 39). The Court of Appeal ruled that this does not affect the discretion of a court to dismiss an application for judicial review for reasons unrelated to the merits.

I am hoping the court will address related questions, including: what types of issues are categorized as questions of law that may be appealed? Historically when judicial review was restricted to an error of law on the face of the record (more than 40 years ago), everything was characterized as an error of law, including unreasonable findings of fact. Legislatures enacted statutes restricting judicial review or appeal to questions of jurisdiction. Then the courts found everything to be a question of “jurisdiction.” This caused the Supreme Court to abandon the term, though it is still used in some statutory rights of appeal.

Since Vavilov, some courts draw a bright line between questions of law and questions of mixed fact and law, ruling that the latter may not be appealed. I do not think such a bright line can be drawn. Even if the factual findings may not be appealed, some cases might present an extricable question of statutory interpretation as to whether the statute should be applied to the circumstances or in the manner that it has been applied.

Many courts categorize a question of procedural fairness as a question of law, even though it is typically a question of mixed fact and law. What procedure was followed and why the decision maker followed that procedure are usually questions of fact. Whether those circumstances meet the Baker standard of procedural fairness, in light of the statutory mandate and constraints, could be categorized as a question of law (Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817).

Underlying Yatar’s limitation period issues, are the merits of the dispute, which include an issue as to whether the insurer gave her a dispute resolution form, as required under statute, and issues as to her entitlement to continuation of the benefits.

Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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