Yatar: Supreme Court of Canada allows judicial review despite alternative appeal routes

In its much-anticipated decision in Yatar,¹ the Supreme Court of Canada clarified the scope of a court’s discretion to judicially review an administrative decision in light of a limited statutory right of appeal. Writing for a unanimous court, Rowe J. held that neither a limited right of appeal nor a tribunal’s internal reconsideration process precludes a court’s discretion to undertake judicial review.

The tribunal decision 

The appellant, Ms. Yatar, was injured in a motor vehicle accident and submitted claims for statutory benefits to the respondent insurer. After providing benefits to Ms. Yatar for a period of time, the respondent discontinued them. Ms. Yatar contested the respondent’s denial of benefits before Ontario’s Licence Appeal Tribunal (the LAT). The LAT dismissed her application because the applicable limitation period had expired. Ms. Yatar’s application to the LAT for reconsideration was also dismissed. 

The LAT’s governing statute permits appeal only on questions of law and is silent on the availability of judicial review. In a single proceeding in the Ontario Divisional Court, Ms. Yatar brought both an appeal of the LAT’s decision under the applicable statute and an application for judicial review. 

The lower courts’ decisions

The Divisional Court dismissed Ms. Yatar’s statutory appeal on the basis that her appeal raised questions of mixed fact and law. The court also dismissed her application for judicial review, holding that both the existence of the statutory right of appeal, together with the LAT’s own broad reconsideration powers, indicated a legislative intent to limit judicial review to “exceptional circumstances.” Ms. Yatar appealed. 

On appeal, the Ontario Court of Appeal upheld the Divisional Court’s decision to dismiss Ms. Yatar’s application for judicial review, agreeing that the legislative scheme as evinced an intention to limit recourse to the courts. The Court of Appeal held that the phrase “exceptional circumstances” was potentially confusing, but concurred that, in principle, judicial review should be limited to “rare cases” where alternative remedies are insufficient to address the factual circumstances of a proceeding. 

The Supreme Court’s decision 

The Supreme Court allowed Ms. Yatar’s appeal, finding the Divisional Court had erred by concluding that only in exceptional circumstances would judicial review be available where there is a limited right of appeal and the Court of Appeal had erred by concluding that the discretion to undertake judicial review should be exercised only in “rare cases.” According to Rowe J., the lower courts had erred in principle by failing to properly apply the Supreme Court’s decision in Strickland and by relying on a statutory right of appeal for questions of law as indicative of legislative intent to restrict access to judicial review for questions of fact and mixed fact and law when no such inference is warranted. 

As Rowe J. explained, where a tribunal’s internal reconsideration mechanisms have not been exhausted, or where a statutory right of appeal is unrestricted, a court may decline to hear an application for judicial review because an adequate alternative remedy exists. However, in Ms. Yatar’s case, neither scenario applied. The Supreme Court declined to address the availability of judicial review in the face of a privative clause that expressly restricts judicial review, leaving this question for another day. 

Key takeaways

Despite the direction to wait and see what happens in a privative clause context, Yatar still has implications for the law of judicial review in Canada.

First, the Supreme Court reaffirmed the importance of the availability of judicial review in most contexts, including in the face of statutory alternatives to challenging administrative decisions.

Second, the court clarified that the mere existence of a limited appeal right is not a sufficient indication of the legislature’s intention to bar access to judicial review. 

Third, by emphasizing the concept of “adequate” alternatives from Strickland, the court has reminded litigants and lower courts that undertaking judicial review is a balancing exercise that must consider the purposes and policy considerations underpinning the legislative scheme in issue. 

Finally, Yatar nonetheless continues the recent trend in administrative law toward increasing the availability of judicial oversight of administrative decisions and decreasing deference to decision makers with independent technical expertise.

The authors would like to thank Conor Lillis-White, articling student, for his contribution to preparing this legal update.