By: Michael A. Valdez
Introduction
The Supreme Court of Canada in Yatar v. TD Insurance Meloche Monnex[1] confirmed the courts have discretion to review administrative decisions. Insurers appearing before such administrative bodies and seeking to rely on administrative decisions ought to take note of this decision as it means that decisions of administrative bodies, such as LAT, may be subject to judicial review on their merits, including whether to deny relief, as the SCC has held that the exercise of judicial discretion does not extend to declining consideration of the application for judicial review altogether. This overturns the previously held belief that issues of fact or mixed fact of law would only be reviewed in the rarest of cases. This impacts the belief that LAT decisions are final and as such may impact time and expense of SAB administrative litigation.
Factual Background
Ms. Yatar, injured in a 2010 car accident, sought income replacement, housekeeping, and home maintenance benefits from her insurer TD Insurance Meloche Monnex, (“TD”) pursuant to the Statutory Accident Benefits Schedule (“SABS”).[2] TD initially considered Ms. Yatar’s claim for benefits valid, but later changed to a denial. [3] Following TD’s denial, Ms. Yatar filed for mediation on September 30, 2012 which process ended January 14, 2014. Ms. Yatar commenced her LAT proceeding on March 2018.
At the time of the MVA, policyholders had a two-year limitation period after their insurer’s refusal to pay benefits to start a proceeding [4] with provisions for mandatory mediation, extending the limitation period to 90 days following provision of the mediator’s report. By the time Ms. Yatar commenced her Application, the SABs were redesigned giving the LAT exclusive jurisdiction over SABs disputes and eliminating mandatory mediation. Further, LAT decisions were amended to provide for appeals only on questions of law.[5] [6]
LAT found Ms. Yatar first received the denial in January 2011 and after considering the applicable two year limitation period and the mediation extension, ruled that she ought to have commenced her Application by April 2014. AS such, LAT dismissed Ms. Yatar’s application.[7]
Ms. Yatar appealed to Divisional Court on questions of law and questions of mixed fact and law. That ourt refused to undertake judicial review and hence, dismissed the appeal, holding she showed no errors of law made by the LAT and instead made mere unsubstantiated allegations.[8] In so doing the Court concluded judicial review of ‘mixed fact and law’ would require the exercise of judicial discretion available only in “exceptional circumstances’”, which did not exist in this case.[9]
In dismissing her appeal, the Court of Appeal held a limited statutory right of appeal does not preclude judicial review as same is always available, but does not “change the fact judicial review is a discretional remedy” [10] thus correcting the Divisional Court’s language regarding “exceptional circumstances” to that judicial review would be exercised only in “rare cases,” particularly if a statute legislated a limited right of appeal. Accordingly the Court of Appeal agreed with the Divisional Court that a limited statutory right of appeal does not preclude judicial review of unaddressed questions but echoed the Divisional Court’s point about legislative intent as being an influence on the decision to grant judicial review, and hence, refused to grant judicial review.[11]
It should be noted, that the Court of Appeal did provide that even had the judicial review application been considered, it would have failed because she did not show that the LAT’s decision was unreasonable, nor did she demonstrate that the underlying denial of her benefits, which triggered the running of the limitation period, was unreasonable.[12]
The Supreme Court of Canada
The main issue before the SCC was the lower courts decisions not to undertake judicial review. Then, if it was determined appropriate to undertake judicial review, to consider whether the LAt adjudicators decision was reasonable.
The SCC allowed the appeal, finding the Court of Appeal erred when “holding that the limited right of appeal reflected an intention to restrict recourse to the courts on other question arising from the administrative decision, and that judicial review should this 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 question 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.”[13]
In so doing the SCC specifically referenced s. 2(1) of the Judicial Review Procedures Act [14]as preserving litigants rights to seek judicial review ‘despite any right of appeal”. As well as the Federal court of Appeal decision in Vavilov[15], where that judicial review is protected by s. 96 of the Constitution Act, 1867 which establishes “the principle that public authorities are subordinate to the supervisory power of the superior courts is the cornerstone of the Canadian and Quebec system of administrative law. Such judicial review is a necessary consequence of the rule of law.”[16] The Supreme Court further commented that “judicial review is intimately connected with the preservation of the rule of law.”[17]
The Supreme Court added that “A person has a right to seek judicial review, and “[t]o give courts a discretion not to hear judicial review applications because of their perception of the quality and quantity of internal reconsiderations would allow judicial discretion to trump [a] constitutional principle.” In other words, “While 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.”[18]
Accordingly, the Supreme Court held that at minimum, a judge must consider the application, which means that the judge must determine whether judicial review is appropriate. The judge can then decline to consider the merits based on the existence of appropriate alternatives, or refuse to grant a remedy even if the decision under judicial
The Supreme Court stressed that balance is required and that accordingly, courts should still consider the appropriateness and suitability of judicial review even in cases where valid alternatives are present.[19]
The Supreme Court then went into the factual context, concluding that the Court of Appeal also erred in holding that the LAT decision was reasonable. The SCC held the LAT adjudicator failed to consider issues relating to Ms. Yatar’s temporary reinstatement of benefits as per the second letter which would have reset the running of the limitation period until another valid denial was made. As a result, the Supreme Court sent the matter back to the LAT for consideration.[20]
Takeaways
Yatar reinforces the continued “supervisory power of the superior courts”[21] . It’s finding that judicial review of administrative decisions remains available even in presence of legislative language and even after a party has already exercised a limited statutory right of appeal overturns the previously held belief that issues of fact or mixed fact of law would only be reviewed in the rarest of cases. While it is early yet, the decision may result in more applications for judicial review and hence may well impact the time and expense of parties involved in SAB administrative litigation.
[1] Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8
[2] Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O Reg 403/96
[3] Yatar, supra note 1 at at paras 6-7.
[4] Insurance Act, R.S.O. 1990, c. I.8
[5] Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G s. 11(6)
[6] Yatar, supra note 1 at paras 8-9.
[7] Ibid at para 16.
[8] Ibid at para 19.
[9] Ibid at paras 20-22.
[10] Ibid at para 25, quoting Appeal Court para 41
[11] Ibid at para 24-26.
[12] Ibid at paras 27-29.
[13] Ibid para 58
[14] RSO 1990, c.J.1
[15] Vavilov v. Canada (Citizenship and Immigration), [2018] 3 FCA 75
[16] Ibid at para 45.
[17] Ibid at para 46.
[18] Ibid at para 49.
[19] Ibid at para 64.
[20] Ibid at para 74-77.
[21] Ibid at para 45.
