Judicial Review and Limited Rights of Appeal (Again)
With the Supreme Court of Canada set to hear the appeal in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446 next week, courts and commentators alike continue to weigh in on the scope of rights of appeal that are limited to questions of law or jurisdiction.
Slatter JA made a typically thoughtful contribution in Georgopoulos v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2023 ABCA 285. The Commission had granted G less compensation than he had claimed. G appealed on a question of law or jurisdiction and also sought judicial review of the Commission’s decision. At first instance, the superior court dismissed the appeal as no legal error or breach of procedural fairness had been made out and also dismissed the application for judicial review on the reasonableness standard. For the majority of the Court of Appeal, Feehan JA was content to dismiss the appeal on the basis that G had failed to reveal any error in the superior court’s analysis.
However, Slatter JA went further in concurring reasons. Noting that the legislation contains a strong privative clause along with the circumscribed appeal on questions of law or jurisdiction (at para. 22), he concluded that G could not apply for judicial review at all:
In this situation the Legislature has expressly provided for appeals on questions of law and jurisdiction, thereby excluding any appeals on questions of fact or mixed fact and law. It is inconsistent with this legislative intention to conclude that review of questions of fact or mixed fact and law is not prohibited, but is merely to be conducted through a separate procedure, even though that procedure is expressly excluded by s. 13.1. The scheme of the statute is that the Appeals Commission has the final say on questions of fact and mixed fact and law, including assessment of the expert medical evidence (at para. 24).
In the alternative, he endorsed the Ontario Court of Appeal’s conclusion in Yatar that “even if there was theoretically a parallel right to judicial review, in the face of the limited statutory appeal it would require exceptional circumstances, directly engaging the rule of law, to allow that judicial review to proceed” (at para. 27).
Slatter JA reached this position having reflected on the “very wide mandate that the Legislature has to define the nature and availability of judicial review” (at para. 16) and the “general rule” that “a statutory right of appeal from the decision of an administrative tribunal is intended to exhaust the remedies available to the applicant” (at para. 13).
As to the wide mandate of the legislature, the lynchpin of Slatter JA’s constitutional analysis was his proposition that, historically, there was no judicial review of factual errors: “At common law, certiorari was limited to review of jurisdictional errors and errors of law on the face of the record; factual errors were not in play” (at para. 17). With respect, I do not think this is correct. Certiorari has long been available to correct errors on questions of jurisdictional fact: Bunbury v. Fuller (1853), 9 Ex. 109; R. v. Licence Commissioners of Point Grey (1913), 14 DLR 721; R. v. Nat Bell Liquors Limited (1922), 65 DLR 1; see also Green v. Alberta Teachers’ Association, 2016 ABCA 237. As I have observed previously, “nominal finality on matters of fact, did not exclude the possibility of certiorari being used to quash a decision where a reviewable error had been established…” The availability of certiorari on issues of jurisdictional fact was part and parcel of keeping administrative decision-makers within the boundaries of their lawful authority, a core function of the superior courts (that privative clauses simply may not interfere with). For this reason I cannot accept Mark Mancini’s argument that it is permissible to limit judicial oversight to questions of law, as his analysis equates the broad concept of lawful authority with the much narrower concept of questions of law.
As to the general rule of exhaustion of remedies, this rule has only ever applied to remedies that are adequate and effective (Fooks v. Alberta Association of Architects (1982), 139 DLR (3d) 445). An appeal that is limited to questions of law cannot, evidently, be an adequate and effective remedy for alleged factual errors. Accordingly, I think Slatter JA has overstated the case for indirect ouster of judicial review. A better view, I suggest, can be found in the recent Federal Court of Appeal decision in Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209. Here, Boivin JA suggested, having reviewed the current controversy, that “as a matter of practice, and in the vast majority of cases, the statutory appeal will be sufficient to address the issue at hand, and the judicial review, although available, will be rendered superfluous” (at para. 52). For Boivin JA, an appeal may be an adequate and effective remedy (and, indeed, may often be so) but one cannot be categorical about this. Again, if an appeal is confined to questions of law, but an applicant for judicial review seeks to impugn a finding of fact, it is difficult to see how the appeal can be an adequate and effective remedy.
Here, I do agree in part with Slatter JA: appeals and judicial reviews are mechanisms for ensuring meaningful judicial oversight of the lawfulness of public administration (at para. 18). Although they mostly run on parallel tracks, however, they may overlap. And where they do, courts and litigants have procedural tools at their disposal to ensure that any overlaps are manageable. As I mused shortly after Vavilov, “it might be wise to make [an] application for judicial review and an appeal (or application for leave to appeal) simultaneously, with the judicial review stayed pending the disposition of the appeal (if leave is granted)”. Put simply, the best way to know if a right of appeal is an adequate and effective remedy is to exercise it.
All of the contributions mentioned above are thoughtful and considered. But I think the starting point must be provided by the constitutional foundations of judicial review and the well-established role of the superior courts in ensuring the lawfulness (broadly understood) of administrative action.
This content has been updated on November 7, 2023 at 22:42.