On Friday March 15, the Supreme Court of Canada (“SCC”) released a long-awaited administrative law decision, Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (“Yatar”).
Yatar stands for the proposition that judicial review is available for questions of fact, or mixed fact and law, even where legislation provides an appeal lies on “a question of law only”. In Yatar, an applicant to the License Appeal Tribunal (“LAT”) did not obtain insurance benefits. She both appealed the decision on a question of law to the divisional court and sought judicial review of the decision on a matter of mixed fact and law. While the SCC held judicial review remains a discretionary remedy of the Divisional Court, that remedy is not blocked by legislation that provides for a right of appeal.
This decision was informed by the fact that judicial review is a constitutional principle, and its availability is therefore central to the rule of law.
How does this affect Appeals of Ontario Land Tribunal Decisions?
The Ontario Land Tribunal (“OLT”) Act provides at s. 24(1) that “Unless another Act specifies otherwise, an order or decision of the Tribunal may be appealed to the Divisional Court, with leave of that court on motion in accordance with subsection (3), but only on a question of law” (emphasis added).
Much like the statute governing the License Appeal Tribunal in Yatar, this provision was previously interpreted to suggest an appeal on a question of law was the only route through which an OLT decision could be reconsidered. Yatar means that the potential routes available to a party that is dissatisfied with an OLT decision have now expanded.
Does this mean judicial review will always be granted?
Judicial review is still a discretionary remedy. The availability of judicial review is distinct from the court’s determination of its appropriateness or granting of relief. The court may refuse to grant relief on an application for judicial review but cannot decline to consider the application based on an appeal clause alone.
The court’s discretion in deciding whether to grant relief afforded by a judicial review, (i.e., mandamus, certiorari, prohibition, declaration, injunction) is guided by the following factors from the SCC case Strickland v. Canada (Attorney General), 2015 SCC 37:
- The parties’ conduct.
- Undue delay.
- The existence of adequate alternative remedies.
Adequate alternative remedies do not include statutory rights of appeal, or the presence of internal review mechanisms if it is the review of a decision that is being challenged. Adequate alternative remedies must be those that provide a forum for oversight on all grounds including questions of law, mixed law and fact, and fact alone.
The court’s determination of whether to grant judicial review should also be guided by whether judicial review is appropriate, not merely what the alternative is. Similar to interlocutory injunctions, the SCC provided that the adequacy of a judicial review can be assessed by “[taking] into account the public interest, any disproportionate impact on the parties and the interests of third parties”. Courts may decline to grant a remedy on one of the above bases, but the presence of an appeal clause does not warrant this. Judicial economy (i.e. the efficient management of litigation to minimize duplicate proceedings and avoid wasting the Court’s time and resources) is also not a factor in determining whether to decline the granting of relief.
Courts may also hear the application on its merits and decline relief, even where of the opinion that the decision under review is unreasonable.
Limitations
The SCC did not make a ruling regarding privative clauses that restrict the grounds of judicial review entirely. Existing privative clauses, like those in section 213 of the City of Toronto Act, or section 272 of the Municipal Act 2001 which provide those by-laws “passed in good faith under any Act shall not be quashed or open to review in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law” are still in effect.
Furthermore, while decisions before the OLT may now be eligible for judicial review, the legislature may respond to this decision by enacting new privative clauses for judicial review on questions of fact or mixed fact and law.
Davies Howe will continue to monitor any legal developments in this area. If you have a question, please feel free to reach out to Nikolas Koschany.
