Yatar: SCC gives green light to parallel judicial reviews and appeals

Some statutes provide limited appeal rights from administrative decision-makers. A typical example is appeals that are limited to questions of law. But what happens if a party has no question of law to appeal, and their complaint is about the way an administrator answered a mixed question of law and fact, or even a pure question of fact? Do they still have the option of seeking judicial review? In Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, the Supreme Court addressed this question, concluding that an applicant may seek judicial review for questions not dealt with in the right of appeal.

What you need to know

• Parallel statutory appeals and judicial review are permitted. A statutory right of appeal, on its own, does not restrict an applicant’s ability to pursue a parallel judicial review for matters outside the scope of the appeal right. But judicial review remains a discretionary remedy.
• Effect of privative clauses on judicial review remains an open question. The Court left for another day the question of whether judicial review can be barred or restricted by a privative clause.

Background

Ms. Yatar was injured in a car accident in 2010 and subsequently sought statutory insurance benefits. Although she initially received benefits, they were later denied. She contested the denial of her benefits before the Licence Appeal Tribunal, which dismissed the claim as time barred. The Licence Appeal Tribunal Act provides a right to appeal tribunal decisions only on questions of law. Ms. Yatar challenged the decision through two separate but parallel proceedings: an appeal on a question of law (i.e., the statutory right of appeal) and a judicial review on questions of fact and mixed law and fact.

The key issue before the courts below was whether Ms. Yatar’s statutory appeal limited her right to bring a judicial review. The lower courts concluded that while a limited statutory right of appeal does not preclude judicial review, it signals a legislative intent to limit access to the courts regarding these disputes. Thus, the Court of Appeal held that, when there is a limited statutory appeal right, judicial review should only be entertained in “rare” cases.

SCC: opening the door for parallel judicial reviews

The Supreme Court of Canada reversed the lower court decisions. It held that a statutory right of appeal does not restrict the availability of judicial review. It was concerned that precluding judicial review over questions of fact or mixed law and fact would leave a party without a remedy. In doing so, the Court emphasized the importance of the rule of law: it is a “cornerstone” principle of Canadian administrative law that “public authorities are subordinate to the supervisory power of the superior courts.”

The Court further highlighted that, historically, judicial review has only been successfully barred by statute when the legislature has provided a particular channel for oversight of the legality, rationality, and procedural fairness of the administrative action. Here, the statutory right of appeal was inadequate because it does not permit review for errors of fact or mixed fact and law.

The court leaves privative clauses for another day

There is currently an active debate in the lower courts about whether a legislature can preclude judicial review when a statute contains both: (a) a limited right of appeal; and (b) a privative clause (i.e., a clause that seeks to bar or restrict judicial review). This issue raises further foundational constitutional law questions about the rule of law and access to the courts. But because the statute in Yatar contains no privative clause, the Supreme Court expressly decided to leave this question for another day. It therefore remains unsettled whether an applicant’s right to judicial review could—as a matter of constitutional law—be limited or restricted by a privative clause in a statute.

Implications

Yatar gives a green light to applicants to bring parallel judicial reviews and statutory rights of appeal when challenging administrative decisions. While this may lead to further proceedings, the Court’s concern for judicial economy was outweighed by the interest in ensuring an adequate means to challenge decisions. Despite opening the door to parallel proceedings, the Court reiterated the discretionary nature of judicial review. Even if a court is required to consider an application for judicial review, it can decline to grant a remedy when it considers judicial review to be inappropriate in the circumstances.

Yatar also represents the latest Supreme Court decision addressing one of the many questions left unanswered by Vavilov (which Torys has been monitoring in previous publications¹). Since the Court left open the constitutional question of whether a privative clause can fully preclude judicial review, we will be watching carefully for further developments.