Limited Rights of Appeal: Discretion Advocates

For the opening post in this series, see here.

Those in the discretion camp do not take sides as between legislative intentionalists and constitutional traditionalists. Rather, they would use the remedial discretion of the superior courts to refuse to grant a remedy for factual error in most cases. In that way, respect can be paid to legislative intent by restricting access to judicial review remedies but without making judicial review unavailable, as such. There is no doubt that remedial discretion has long been a feature of the law of judicial review of administrative action but those in the discretion camp advocate a new departure, in order to stake out a position between the legislative intentionalists and constitutional traditionalists.

The leading case for those in the discretion camp is the decision of the Ontario Court of Appeal in Yatar. This decision is currently on reserve at the Supreme Court of Canada. (I appeared for the intervener Canadian Telecommunications Association.)

In Yatar v. TD Insurance Meloche Monnex,[1] the Divisional Court refused to entertain a concurrent appeal and application for judicial review of a decision of the Licence Appeal Tribunal refusing an application for statutory accident benefits. For Kristjanson J, the appeal could not be entertained, as it raised questions of mixed fact and law falling outside the scope of the appeal on questions of law only. And the judicial review application should not be entertained: judicial review is discretionary and, where there is a right of appeal, should be entertained only in exceptional circumstances. She gave four reasons justifying the refusal to entertain the judicial review application.

First, the legislature had plainly intended to limit oversight of factual matters in the statutory accident benefits field, implementing a suite of reforms “designed to provide a streamlined response, prioritizing access to justice in a quicker and more efficient manner” (at para. 41). Second, there is an internal reconsideration power, exercisable on a basis “akin” to the correctness standard (at para. 43). Third, the nature of the alleged errors — on questions of fact or mixed questions of law and fact involving the assessment of evidence — was such that any judicial review would be conducted on a “high standard of deference” (at para. 44). Fourth, concurrent appeals and judicial reviews create “systemic difficulties” (at para. 45). Accordingly, judicial review would only be available in “exceptional circumstances” which were not present here (at para. 46).

The Ontario Court of Appeal affirmed for slightly different reasons: Yatar v. TD Insurance Meloche Monnex.[2] Nordheimer JA held that judicial review of a reconsideration decision would only be available in “rare” cases, as the courts could exercise their residual discretion not to hear the application for judicial review (at para. 47). This was because the legislature intended there to be swift and efficient resolution of benefits disputes (at para. 38).

In my view and with respect (and with the caveat that my client in the Yatar appeal sought to doubt Nordheimer JA’s analysis), this decision should not be followed. Consider the legislative intent point first. It must be pointed out that the power of reconsideration in this case was not contained in the relevant parent statute. Rather, it is contained in the Tribunal’s own rules. There is a general provision in the Statutory Powers Procedure Act, permitting tribunals to make rules relating to internal review of decisions.[3] But this general provision can hardly indicate a specific legislative intent in respect of the benefits disputes regime. In this instance at least, the legislative intent argument rests on shaky foundations.

Beyond this, as long as we have had judicial review, it has been the case that courts can judicially review any final administrative decision, whether or not there was an elaborate internal process leading up to that decision. To 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 constitutional principle. The quality and quantity of internal reconsiderations might have a bearing on how much deference is due to the decision-maker, but it should not have a bearing on whether the individual challenging a decision is entitled to their day in court. There are principled grounds for refusing a remedy – prematurity, mootness, lack of standing, failure to exhaust alternative remedies – but the one mentioned in Yatar is not one of them. Notwithstanding the creative approach of Kristjanson J and Nordheimer JA (and again with the caveat that my client in the Yatar appeal has an interest), I am unconvinced.

Discretion featured in a slightly different way in Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc..[4] 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. In my view, discretion relating to remedies can be pushed no further than this in resolving the jurisprudential dispute about the effect of limited rights of appeal. In particular, 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.

[1] 2021 ONSC 2507.

[2] 2022 ONCA 446.

[3] RSO 1990, c S.22, s. 22.2(1).

[4] 2023 FCA 209.

This content has been updated on March 13, 2024 at 12:43.