In Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, the Supreme Court of Canada held that, where there is a statutory right of appeal that is limited to questions of law, judicial review remains available for questions of fact or mixed fact and law. The Ontario courts had held that judicial review should only be undertaken in parallel to a limited statutory appeal in exceptional or rare cases. The Supreme Court ruled that this was an error, as a limited right of appeal does not reflect a legislative intention to restrict recourse to the courts on questions beyond the scope of the statutory appeal right.

The Supreme Court also considered whether the reconsideration decision of the administrative tribunal in this case (the License Appeal Tribunal) was unreasonable. The Tribunal had concluded that Ms. Yatar’s application was out of time. The Supreme Court held that this decision was unreasonable. It referred the matter back to the Tribunal adjudicator for reconsideration.

Yatar provides important guidance to courts, litigants, and legislators on the implications of limited statutory appeal provisions for access to judicial review.

Background

The appellant, Ummugulsum Yatar, was injured in an automobile accident in 2010. TD Insurance paid Ms. Yatar accident benefits, in particular income replacement benefits (“IRBs”) and housekeeping and home maintenance benefits.

In January 2011, Ms. Yatar failed to file a completed disability certificate. TD Insurance advised Ms. Yatar that her benefits had been stopped and enclosed a form outlining Ms. Yatar’s dispute resolution options (a “dispute resolution form”).

Ms. Yatar underwent medical assessments related to her claim. In February 2011, TD Insurance advised Ms. Yatar that she continued not to be entitled to housekeeping and home maintenance benefits, but that her IRBs were reinstated. A dispute resolution form was found not to have been enclosed with the February 2011 letter.

Ms. Yatar underwent further medical assessments. In September 2011, TD Insurance advised Ms. Yatar that she was not entitled to IRBs. A dispute resolution form was found not to have been enclosed with the September 2011 letter.

Ms. Yatar applied for mediation in September 2012. The mediation was not successful and the mediator’s report was released on January 14, 2014.

On March 15, 2018, more than four years after the release of the mediator’s report, Ms. Yatar commenced an application to the License Appeal Tribunal (“LAT”) in respect of her accident benefits.

The LAT adjudicator found that Ms. Yatar’s application was out of time: the two-year limitation period had begun to run when TD Insurance denied Ms. Yatar’s benefits in January 2011, and the time to commence an application had expired in April 2014, 90 days after the mediator’s report was released. On reconsideration, the LAT adjudicator confirmed this aspect of his decision.

The Divisional Court declined to undertake judicial review

Ms. Yatar brought both a statutory appeal and an application for judicial review to the Divisional Court. Both were dismissed.

The Divisional Court had jurisdiction to hear an appeal only on a question of law under section 11(6) of the Licence Appeal Tribunal Act. On appeal, Ms. Yatar argued that the January 2011 letter was not a valid denial of benefits and that it therefore did not start the two-year limitation period. On this basis, Ms. Yatar argued, the LAT had erred in concluding that her claim was out of time. The Divisional Court held that Ms. Yatar had failed to raise a question of law and dismissed the statutory appeal.

The Divisional Court also declined to exercise its discretion to undertake judicial review of the LAT’s decision. Applying the principles in Strickland v. Canada (Attorney General), 2015 SCC 37, the Divisional Court held that the statutory appeal process as well as the reconsideration powers of the LAT provided an adequate alternative remedy to a judicial review application.

The Divisional Court also considered the legislative intent to improve the convenience and efficacy of the review process for accident benefits disputes by making LAT decisions appealable as of right only on questions of law. The Divisional Court concluded that it would only exceptionally exercise its discretion to consider a judicial review of a LAT decision regarding accident benefits.

The Court of Appeal dismissed the appeal

The Court of Appeal for Ontario dismissed the appeal. The Court of Appeal held that the Divisional Court correctly concluded that the existence of an adequate alternative remedy was a valid reason not to exercise its discretion to hear and determine her judicial review application.  The Court of Appeal upheld the Divisional Court’s analysis of the Strickland factors and confirmed the Divisional Court’s conclusion that the legislature intended to limit resort to the courts for the determination of accident benefits disputes to questions of law only.

The Court of Appeal found that, instead of discretion being exercised only in “exceptional circumstances”, the Divisional Court should have held that “it would only be in rare cases that the remedy of judicial review would be exercised, given the legislated scheme for the resolution for disputes”. The Court of Appeal explained that what constitutes such a “rare case” should be for the Divisional Court to determine on a case-by-case basis.

In the alternative, the Court of Appeal held that Ms. Yatar had failed to demonstrate that there was anything unreasonable in the LAT’s decision below.

The Supreme Court of Canada concludes that judicial review ought to have been undertaken

The Supreme Court affirmed that an applicant has a right to seek judicial review, as “a necessary consequence of the rule of law”. The Supreme Court also affirmed that courts have the discretion not to hear judicial review applications. The Supreme Court explained that a court must at least consider the application for judicial review for the purpose of determining whether judicial review is appropriate. If, in considering the application, the judge determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the judicial review application.

The Supreme Court expressly declined to consider whether a privative clause may effectively preclude judicial review on questions of fact and of mixed fact and law. The Court did, however, recognize that this issue has been canvassed in decisions of the Federal Court of Appeal. This could indicate that the Court could take up this issue in a future case in which, unlike in this case, a privative clause is engaged.

The Supreme Court confirmed that Strickland provided the framework for determining whether to undertake judicial review in a particular case. However, according to the Supreme Court, Strickland does not support the conclusion that judicial review is inappropriate in circumstances like Ms. Yatar’s, for two reasons: (1) the existence of the limited statutory appeal right does not establish that the Ontario legislature intended to foreclose judicial review on factual and mixed questions; and (2) Ms. Yatar did not have an adequate alternative remedy on such questions because her appeal was limited to questions of law, and the LAT’s reconsideration process cannot be an adequate alternative remedy when the reconsideration decision itself is the intended subject of review.

The Supreme Court held that the LAT adjudicator’s reconsideration decision was unreasonable on the basis that the LAT did not have regard to the effect of the reinstatement of Ms. Yatar’s IRBs between February and September 2011 on the commencement of the two-year limitation period for bringing an application to the LAT. The Court queried whether there needed to be another valid denial of Ms. Yatar’s IRBs benefits in order to trigger the two-year limitation period when Ms. Yatar’s IRBs were restarted. However, the Court explicitly did not decide this question as “it is one properly to be decided by the LAT.” As such, the Court remitted the matter to the LAT adjudicator for determination in the first instance.

Bottom line

Yatar affirms the role of judicial review in policing exercises of statutory authority by administrative decision-makers. Despite a limited statutory appeal right – and a legislative record that, according to the Ontario courts, indicated an intention to limit the courts’ role in this particular administrative regime – the Supreme Court affirmed the availability of judicial review. This is a clear signal that, where an administrative decision is subject to a limited right of appeal, judicial review will generally be available on questions that are not subject to appeal.

McCarthy Tétrault represented the respondent TD Insurance Meloche Monnex, with a team led by Christine Lonsdale that included Adam Goldenberg, Erin Chesney, Steven Marchand, and Foti Vito.

Case Information

Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8

Docket: 40348

Date of Decision: March 15, 2024