This case stemmed from a motor vehicle collision in 2010. Three denial letters with respect to Income Replacement Benefits (IRBs) and housekeeping benefits were sent to the insured throughout 2011 but no dispute resolution forms were attached to the last two denials. As part of the FSCO process, the insured applied for mediation which concluded by January 2014 giving the insured an extension of 90 days following the mediator’s report.
The insured did not apply to the Licence Appeal Tribunal (LAT) until March 2018 and as such, her application was dismissed due to being time-barred since April 2014. The LAT adjudicator noted there was an implicit acceptance of the denials effective January 2011 which constituted a valid denial of benefits. The request for reconsideration was also dismissed.
In May 2020, the insured applied to the Divisional Court by way of appeal and also commenced a judicial review application. Both the appeal and judicial review were considered together. The appeal was dismissed as not having raised a question of law.
The Divisional Court found that judicial review is a discretionary remedy and that it would exercise that discretion only in “exceptional circumstances.” It considered whether there was an adequate alternative remedy that would preclude resort to judicial review. It noted that the Supreme Court’s decision in Strickland v. Canada (Attorney General), 2015 SCC 37 at para. 42 had said that “neither the process nor the remedy need be identical to those available on judicial review” for the alternative to be considered adequate.
The Divisional Court considered four factors: (i) the legislative intent to limit judicial review of LAT decisions on statutory accident benefits to questions of law only, (ii) the breadth of the LAT’s reconsideration power, (iii) the nature of the alleged errors, and (iv) the systemic difficulties associated with dealing judicial review and appeal.
Because there was a statutory right of appeal, the Divisional Court determined this was an adequate alternative remedy. The court found that there were no exceptional circumstances in this case that would lead it to exercise its discretion to judicially review questions of fact and mixed fact and law.
The insured then appealed to the Court of Appeal which also dismissed the appeal, holding that, only in rare cases would the remedy of judicial review be justified. It held that a limited statutory right of appeal does not preclude judicial review, which is a discretionary remedy. However, it further held that even if judicial review had been considered, it would have been denied as the LAT’s decision was reasonable. The fact that Yatar did not commence her LAT application until March 16, 2018 meant it was outside the limitation period.
The Supreme Court previously held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. Judicial review is available for questions of fact or mixed fact and law.
At issue before the Supreme Court in Yatar, were (i) whether the Court of Appeal erred in concluding that the legislature’s decision was to restrict judicial review to rare or unusual cases and (ii) whether the Court of Appeal erred in concluding the LAT adjudicator’s reconsideration decision was reasonable.
Both the Divisional Court and Court of Appeal confirmed that parties can exercise both a statutory right of appeal and seek judicial review for questions outside the scope of appeal. The question remaining was what role the right of appeal would play in the exercise of discretion to undertake judicial review.
Citing Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court affirmed the importance of judicial review as being intimately connected with the preservation of the rule of law and the foundational democratic principle. This Court also stated in Vavilov at para. 37 that questions of law are subject to review on a standard of correctness and questions of mixed fact and law are subject to review on a standard of reasonableness on judicial review.
The Supreme Court allowed the appeal and held that, it was an error for the courts below to find that judicial review can only be exercised in exceptional or rare cases given that there is a limited right of appeal under the LAT Act to only questions of law. This limited right of appeal did not reflect an intention by the legislature to restrict further recourse to the courts on other questions arising from the LAT’s decision. Put simply, where questions of fact or mixed fact and law arise from an administrative decision, an insured can apply for judicial review since a right of appeal on questions of law does not preclude an individual from seeking judicial review that cannot be dealt with on appeal. The Supreme Court further found the LAT adjudicator’s reconsideration decision was unreasonable and remitted the matter back to the LAT for reconsideration.
The Supreme Court directed that the discretion on whether to undertake judicial review should be exercised with regard to the framework set out in Strickland v. Canada (Attorney General), 2015 SCC 37 at para. 37:
“Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief… Declarations of right, whether sought in judicial review proceedings or actions, are similarly a discretionary remedy: “…the broadest judicial discretion may be exercised in determining whether a case is one in which declaratory relief ought to be awarded”… [Emphasis in original]
Had the Divisional Court properly applied Strickland, it should have exercised its discretion to undertake judicial review for issues that were not dealt with under the appeal. The Court found, at a minimum, that when a judicial review application is brought, the judge must determine whether judicial review is appropriate. If one of the discretionary bases for refusing a remedy is present, they can decline to consider the merits of the application. The judge also has discretion to refuse to grant a remedy even if they find the decision under review is unreasonable.
As per Strickland, the Court confirmed that the exercise of discretion in determining the appropriateness of judicial review as achieving a balance – the balance to be achieved is considering the suitability and appropriateness of judicial review with the purpose and policy considerations underpinning the legislative scheme in issue. Alternative remedies exist, for example, where internal review processes have not been exhausted or where there is an unrestricted statutory right of appeal such as to more than just questions of law. Absent that, it would ignore Strickland principles to conclude that judicial review is only available in exceptional or rare circumstances.
In this case, the lower courts erred because the statutory right of appeal and the LAT’s reconsideration decision did not constitute adequate alternative remedies thereby erring in their application of the Strickland factors. The insured raised errors of fact or mixed fact and law which were not reviewable on appeal. In addition, the reconsideration decision was not an adequate alternative remedy as the LAT adjudicator failed to consider the effect of reinstatement of income replacement benefits following the initial denial. Earlier tribunal decisions have held that when benefits are reinstated, the limitation period is not triggered until a valid termination is provided.
The Supreme Court found that the legislature could have encompassed all types of errors in the right to appeal but it did not. Section 2(1) of the Judicial Review Procedure Act preserves the right of litigants to seek judicial review despite any right of appeal. And, in Vavilov, this Court held that judicial review is protected by s. 96 of the Constitution Act, 1867 where legislatures cannot shield administrative decision making from crucial scrutiny entirely. Section 11(6) of the LAT Act restricts appeals to errors of law only. Where errors of mixed fact and law are raised, the statutory right of appeal and access to internal reconsideration are not adequate alternative remedies and therefore, judicial review must be considered.
The Supreme Court went on to consider whether the LAT’s decision was reasonable. Despite the initial denial of income replacement and housekeeping benefits in January 2011, there was a reinstatement of IRBs later that year before the next two denials which did not outline the dispute resolution process. The LAT adjudicator relied upon the January 2011 denial as being an implicit acceptance of all denials claiming the application was time-barred. This was considered unreasonable and the matter was remitted back to the LAT to consider the effect of reinstatement of IRBs on the validity of the initial denial and on the limitation period.
