To Review or Not to Review, That is No Longer the Question? A Case Comment on Yatar v TD Insurance Meloche Monnex
By Jillian Van Allen,[1] Peter Yoo, and Brandon Orct
Download PDF Beard Winter Defender – April 2024
The Supreme Court of Canada’s recent decision in Yatar v TD Insurance Meloche Monnex confirms that judicial review on questions of fact and mixed fact and law remains available despite statutory rights of appeal of administrative decisions being limited to questions of law.[2] Yatar will have an important impact on litigating disputes beyond the Licence Appeal Tribunal (“LAT”) in the future, especially in the accident benefits context. The purpose of this piece is to summarize Yatar and to briefly discuss some important consequences arising from this decision.
The LAT’s Decision and Reconsideration Decision
Ms. Yatar was involved in a motor vehicle accident in 2010 and sought statutory accident benefits from her insurer, TD Insurance. For a time her insurer paid Ms. Yatar income replacement benefits (“IRBs”) and housekeeping and home maintenance benefits. On January 7, 2011, her insurer “stopped” these benefits effective January 4, 2011 because it had not received the updated Disability Certificate (OCF-3) it had requested. Her insurer also requested Ms. Yatar’s attendance at two insurer’s medical examinations (“IE”).
In January 2011, Ms. Yatar attended the IEs.
On February 16, 2011, after receiving the IE assessment the insurer reinstated Ms. Yatar’s IRBs, but maintained the denial of her housekeeping and home maintenance benefits.
In September 2011, Ms. Yatar attended a third IE. On September 19, 2011 after receiving the IE assessment, the insurer wrote to Ms. Yatar that her IRBs were again denied and that payments would cease. There were no dispute resolution forms attached to the insurer’s February and September 2011 letters.
Ms. Yatar brought an application to the LAT to challenge the denial of her insurance claims in 2018. The issue before the LAT was whether the insurer had properly denied Ms. Yatar’s benefits and triggered the commencement of the limitation period.
In the first instance, the LAT Adjudicator concluded that the January 7, 2011 denial letter constituted a valid denial of her claims for IRBs and housekeeping and home maintenance benefits because the Dispute Resolution Form was attached and that this triggered commencement of the two-year limitation period. As such, the LAT dismissed Ms. Yatar’s application as being time-barred. The LAT Adjudicator also found that the Dispute Resolution Form was not attached to either the February 16, 2011 or September 19, 2011 denial letters.
Ms. Yatar requested a reconsideration of the LAT’s decision. The LAT Adjudicator affirmed his previous finding and confirmed that the January 7, 2011 letter constituted a valid denial of Ms. Yatar’s claims for IRBs and housekeeping and home maintenance benefits.
Appeal and Judicial Review before the Divisional Court and Court of Appeal
Ms. Yatar pursued an appeal of the LAT’s reconsideration decision to the Divisional Court under the Licence Appeal Tribunal Act, 1999 (“the Act”). Section 11(6) of the Act restricted the right of appeal from the LAT’s decisions to questions of law only. Consequently, at the same time, Ms. Yatar brought a judicial review application for review of the LAT’s decision on questions of mixed fact and law.
The Divisional Court dismissed Ms. Yatar’s appeal, concluding that Ms. Yatar failed to demonstrate that the LAT made any errors of law. The Divisional Court also dismissed Ms. Yatar’s application for judicial review. Relying on the Supreme Court of Canada’s decision in Strickland v Canada (AG),[3] the Court held that judicial review remains a discretionary remedy and should be declined when alternative remedies are adequate. The Divisional Court declined to exercise its discretion to undertake judicial review of the LAT’s reconsideration decision, concluding that there were “no exceptional circumstances” that would justify judicial review in Ms. Yatar’s case.
Ms. Yatar appealed to the Ontario Court of Appeal. The Court of Appeal disagreed with the Divisional Court’s use of the language “exceptional circumstances” with respect to the availability of judicial review. However, the Court of Appeal held that what the Divisional Court “was attempting to communicate is that it would only be in rare cases that the remedy of judicial review would be exercised, given the legislated scheme for the resolution of disputes” over accident benefits.[4] The Court of Appeal found no error in the Divisional Court’s consideration of the Strickland factors and observed that there were alternative remedies and that there was legislative intent to limit access to the courts regarding these disputes. In any event, Ms. Yatar had failed to show that the LAT’s reconsideration decision was unreasonable.
The Supreme Court overturns the lower courts’ decisions
The Supreme Court disagreed with the lower courts and unanimously held that judicial review was available to Ms. Yatar. There was no proper basis to infer legislative intent to eliminate judicial review for issues outside the scope of the Act’s statutory appeal. There was also no adequate alternative remedy for Ms. Yatar on questions of fact and mixed fact and law.[5]
Relying on Canada (Minister of Citizenship and Immigration) v Vavilov,[6] the Supreme Court observed that the existence of a circumscribed right of appeal under the Act did not, on its own, preclude an application for judicial review of the LAT’s reconsideration decision.[7] While a reviewing court has discretion to hear an application for judicial review on the merits and deny relief, this discretion does not extend to decline to consider the application for judicial review.[8] It remains open to the reviewing court to decide whether to exercise its discretion to grant relief.[9] When an applicant brings an application for judicial review, a judge must consider the application and determine whether judicial review is appropriate by balancing a variety of factors.[10]
The legislative decision to provide a right of appeal on questions of law only denotes an intention to subject LAT decisions on questions of law to correctness. This does not extend to legislative intent to restrict judicial review of LAT decisions on questions of fact and mixed fact and law, nor can such intent be inferred.[11] Moreover, the statutory appeal and the LAT’s reconsideration decision did not constitute adequate alternative remedies. The statutory appeal failed to review questions not available under this right (i.e., fact and mixed fact and law).[12] The LAT’s reconsideration decision is also not an adequate alternative remedy, as this decision is itself the subject of review.[13]
After concluding that judicial review was available, the Supreme Court also unanimously held that the LAT’s reconsideration decision was unreasonable. The LAT Adjudicator failed to take into account the relevant legal constraints. The LAT Adjudicator failed to have regard to the effect of the insurer re-instating the IRBs between February and September 2011. The LAT adjudicator also did not consider earlier tribunal decisions that held the limitation period can only be triggered after benefits are reinstated when the insurer validly terminates the benefits again.[14] As such, it was arguable that there still needed to be a valid denial of the IRBs to start the limitations clock.[15]
The Supreme Court allowed the appeal and sent the matter back to the LAT to consider the issue of the effects of the reinstatement of benefits on the validity of the initial denial and thus the limitation period.
Post-Yatar and Accident Benefits Litigation Going Forward
Yatar reconfirms that a circumscribed statutory appeal does not preclude judicial review of questions beyond the scope of the statutory appeal. Judicial review of the LAT’s decisions on accident benefits remains available, as well as the statutory appeal on questions of law. As such, we are likely to see a greater influx of simultaneous statutory appeals and judicial reviews of the LAT’s decisions in accident benefits adjudication going forward, at least in the short term.
Yatar also appears to limit which Strickland factors may persuade the court to decline to judicially review a LAT decision. A statutory appeal for questions of law does not militate against judicial review when the questions at issue fall outside the scope of the statutory appeal. The statutory appeal and the LAT’s reconsideration functions are also not sufficient alternative available remedies to applicants.
Yatar also suggests that judicial economy itself may not be sufficient to decline to judicially review a decision. While judicial economy is a legitimate concern, there are countervailing considerations a court must consider.[16] Specifically, to ensure that those whose interests are being decided by a statutory delegate have “a meaningful and adequate means to challenge decisions that they consider to be unreasonable” or “were taken in a way that was procedurally unfair”.[17]
One challenge litigants will need to address with simultaneous appeals and judicial reviews is limiting duplication and maintaining procedural efficiency. The Divisional Court in Yatar was concerned about “the systemic difficulties associated with duplicative judicial reviews and appeals”.[18] The Court of Appeal held that both procedures were available but was also concerned about how this issue should be dealt with and made two comments. First, if a party intends to utilize both their right of appeal and their right to seek judicial review, then those proceedings must be brought together.[19] Second, once both proceedings are commenced, a motion must be brought for the two proceedings to be heard together with a single appeal book/application record covering both proceedings.[20] The Court of Appeal also stated that it would be open to the Divisional Court to adopt a Practice Direction that directs that this is the procedure to be adopted. In fact, this the exact procedure that was adopted by counsel for Yatar when the appeal and the application for judicial review were brought before the Divisional Court.[21]
In sum, Yatar not only reaffirms the availability of judicial review in the accident benefits litigation context, but that it may become more difficult to challenge such judicial reviews at the outset. While a review court must still consider the Strickland factors when exercising its discretion whether to undertake judicial review, these factors may not be as salient post-Yatar when reviewing the LAT’s decision regarding accident benefits.
[1] Jillian acted as Ms. Yatar’s counsel in all proceedings before the Licence Appeal Tribunal and at the Divisional Court.
[2] 2024 SCC 8 [Yatar SCC].
[3] 2015 SCC 37.
[4] 2022 ONCA 446 at para 42 [Yatar ONCA].
[5] Yatar SCC, supra note 2 at para 57.
[6] 2019 SCC 65.
[7] Yatar SCC, supra note 2 at para 47.
[8] Ibid at para 49.
[9] Ibid at para 51.
[10] Ibid at para 54.
[11] Ibid at para 58.
[12] Ibid at para 62.
[13] Ibid at para 63.
[14] Ibid at para 74.
[15] Ibid at para 75.
[16] Yatar SCC, supra note 2 at para 65.
[17] Ibid at para 65.
[18] 2021 ONSC 2507 at para 45.
[19] Yatar ONCA, supra note 4 at para 55.
[20] Ibid at para 56.
[21] See the Case Management Endorsement of Favreau J. dated September 8, 2020.