An Appealing Analysis: Yatar v TD Insurance Meloche Monnex, 2024 SCC 8

On Friday, the Supreme Court of Canada handed down its much-anticipated decision in Yatar v TD Insurance Meloche Monnex, 2024 SCC 8. As expected (by me at any rate), the Court reversed the approach below and (correctly, in my view) described the role of discretion in judicial review proceedings.

In reasons written by Rowe J, the Court thereby confirmed that the fact that a right of appeal is limited to questions of law does not prevent an individual from judicially reviewing factual and other issues that would not fall within the scope of the right of appeal. Moreover, although the Court did not grapple with some of the other issues related to limited rights of appeal, such as privative clauses, its overall analysis gives me the impression that, when confronted with these issues, the justices will favour judicial review.

At root, Yatar is a case about accident benefits. There is a right of appeal on questions of law from decisions of the Licence Appeal Tribunal. But Yatar wanted to raise an issue of fact or mixed fact and law. Accordingly, she sought judicial review. Readers will recall that the Court of Appeal (and the Divisional Court) held that given the existence of a limited right of appeal, and the evident desirability of efficient resolution of accident benefits claims, judicial review should only be permitted in rare cases.

This was the central issue on appeal to the Supreme Court of Canada, which resoundingly restated the importance of judicial review. One of the “first principles” of Canadian public law (at para. 45) is the “importance” of judicial review (at para. 46). Accordingly, “[w]hile there is discretion to hear the application on the merits and deny relief, this discretion does not extend to decline to consider the application for judicial review (at para. 49)”. Judicial review is always available:

When an applicant brings an application for judicial review, a judge must consider the application: that is, at a minimum, the judge must determine 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 (Strickland, at paras. 1, 38 and 40; Matsqui, at para. 31). The judge also has the discretion to refuse to grant a remedy, even if they find that the decision under review is unreasonable (Khosa, at para. 135; Strickland, at para. 37, quoting Minister of Energy, Mines and Resources, at p. 90) (at para. 54).

An interesting question here is whether some grounds for the exercise of discretion might preclude consideration of the merits of a judicial review application (see Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139, at para. 28(1)). Rowe J’s analysis would suggest not, though there may be some cases where it is plain and obvious that a remedy could not possibly be available.

Beyond this, a limited right of appeal does not, on its own, communicate any legislative intention to restrict access to the courts:

The Court of Appeal erred by holding that the limited right of appeal reflected an intention to restrict recourse to the courts on other questions arising from the administrative decision, and that judicial review should thus be rare. The legislative decision to provide for a right of appeal on questions of law only denotes an intention to subject LAT decisions on questions of law to correctness review. The idea that the LAT should not be subject to judicial review as to questions of facts and mixed facts and law cannot be inferred from this (at para. 58).

This is very much in keeping with the narrow approach to legislative intent (under the rubric of “institutional design”) in Vavilov. Where a legislature uses certain magic words, like “appeal”, or “patent unreasonableness”, courts must give effect to them in the way prescribed by Vavilov. But more thoroughgoing contextual analyses of legislative intent are forbidden (see also Mason, discussed here).

Rowe J accepted that, where there is an adequate alternative remedy, a judge may exercise discretion to refuse to grant relief in judicial review proceedings. For judicial review to be ousted, however, there must be “an appropriate alternative forum or remedy” (at para. 61). Here, there was no such appropriate alternative. The right of appeal was limited to questions of law, making it impossible for Yatar to put in issue the factual questions and mixed questions of fact and law she wished to put in issue. And the possibility of an internal reconsideration was not an alternative either:

The access to internal reconsideration cannot be an adequate alternative remedy, as the reconsideration decision itself is the subject of the review. Alternatives do exist where internal review processes have not been exhausted or where there is a statutory right to appeal that is not restricted, such that questions of law, fact, and mixed fact and law could be considered on appeal. But, that is not so here (at para. 63).

This is, surely, absolutely right. A final decision is always reviewable regardless of the quality or quantity of internal processes of reconsideration or review (albeit, of course, that when these function well they might weed out unreasonable or procedurally unfair decisions).

To the argument that judicial economy provided a good reason for exercising discretion not to entertain applications for judicial review except in rare cases, Rowe J had a firm response:

Judicial economy is a legitimate concern. However, the countervailing consideration is to ensure that those whose interests are being decided by a statutory delegate have a meaningful and adequate means to challenge decisions that they consider to be unreasonable having regard to their substance and justification, or were taken in a way that was procedurally unfair (at para. 65).

The thread running through this analysis and culminating in the passage just quoted is that judicial review is a constitutional fundamental. It is critically important that individuals have the ability to challenge administrative decisions that are alleged to be unreasonable or procedurally unfair.

Now, the Court left for another day the proposition that a privative clause might, in combination with a limited right of appeal, preclude judicial review. But the emphasis on judicial review as a fundamental feature of the Canadian public law landscape suggests that the presence of a privative clause — unconstitutional, let us not forget, per the Court’s decision in Crevier v. A.G. (Québec) et al., [1981] 2 SCR 220 — will not change the analysis in any meaningful way. As I have demonstrated, privative clauses were no absolute bar to judicial review historically and there is no reason today to deviate from tradition or the first principles asserted in Crevier. Moreover, the fact that Rowe J poured cold water on the judicial economy rationale for restricting judicial review would strongly suggest that the concerns underlying the enactment of privative clauses should not sway Canadian courts either.

For similar reasons, I would suggest that the Court’s analysis bodes ill for other restrictions on judicial review, like s. 18.5 of the Federal Courts Act. This provision has been invoked in the context of economic regulation of telecommunications and transportation but might now also bar access to judicial review to judges disciplined by the Canadian Judicial Council (see here). The question there will be the extent to which the Federal Court of Appeal’s important decision in Canadian National Railway Company v. Scott, 2018 FCA 148 is consistent with Vavilov and Yatar. (Note that my client in Yatar took the position that s. 18.5 does have to be revisited in light of Vavilov.)

On the merits, the decision was unreasonable and the matter remitted to the Tribunal:

It is not in question that Ms. Yatar initiated mediation in September 2012. The mediation took place between June 18, 2013 and January 14, 2014. On January 14, 2014, the mediator released his report. However, s. 281.1(2)(b) of the Insurance Act and s. 51(2) of the SABS (as they existed at the time) do not trigger a 90-day limitation period from the release of the mediator’s report. Rather, they provide for an extension of the two-year limitation period from the mediator’s report. In other words, it is arguable that there still needed to be a valid denial of the IRBs to start the clock running. I do not purport to decide this question; it is one properly to be decided by the LAT (at paras. 74-75).

Rowe J described this as a breach of “legal constraints” (at para. 76), which might prompt one to wonder whether the matter should have been treated as falling within the appeal clause in any event. For my part I do not think anything turns on whether Vavilov’s contextual constraints are described as legal or factual (other than to facilitate analysis): the key point here was that the adjudicator’s decision lacked justification, intelligibility and transparency on factually suffused questions.

This content has been updated on March 17, 2024 at 16:22.