Volume. 8 Issue. 12 – March 27, 2024
The Supreme Court of Canada ruling involved a matter regarding a 2010 accident that was subject of a Tribunal decision and reconsideration, a Division Court decision and finally a decision of the Ontario Court of Appeal. All decisions found against the Applicant. The Court’s renderings evidence errors having been made by each body, such that the matter is remanded back to the Tribunal for a further reconsideration.
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Supreme Court Takes Issue with Tribunal, Divisional Court & Court of Appeal
Supreme Court Weighs In – The Applicant Yatar, injured in a 2010 accident, received accident benefits until January 2011, at which time they were stopped, as there was no disability certificate. A dispute resolution form was attached to the letter. In February 2011, following a medical assessment the income replacement benefit (IRB) was reinstated however housekeeping and home maintenance remained denied. Then, in September 2011, IRB was denied, however no dispute resolution forms were attached as required. Yatar applied for mediation as required at that time, with the process ending in January 2014 with the publication of the mediator’s report. Ultimately, Yatar commenced proceedings before the Tribunal in March 2018, with said application ultimately being dismissed as time barred, and the request for reconsideration also being dismissed.
Seeks Judicial Appeal and Judicial Review
Yatar then pursued an appeal on questions of law, and also sought judicial review regarding questions of fact or mixed fact and law. However, the Divisional Court “dismissed the appeal, holding that Yatar showed no errors of law made by the LAT adjudicator. It also dismissed Yatar’s application for judicial review, on the basis that there were no exceptional circumstances that would justify judicial review.” The Court of Appeal also dismissed Yatar’s claim, “holding 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 such disputes, and that Yatar had an appropriate alternative remedy. It also concluded that even if the judicial review application ought to have been considered, it would have been denied as the LAT adjudicator’s decision was reasonable.”
The Supreme Court
In Yatar v. TD Insurance Meloche Monnex, an appeal to the Supreme Court raised two questions being ” whether the Court of Appeal erred when it concluded that the legislature’s decision to limit the right of appeal from LAT decisions to “pure” questions of law restricted the availability of judicial review of LAT decisions for errors of fact or mixed fact and law to “rare” or “unusual” cases; and second, whether the Court of Appeal erred in concluding that the LAT adjudicator’s reconsideration decision was reasonable.” The Court framed the matter as a case that “deals with a court’s exercise of discretion as to whether to undertake judicial review on the merits in light of a limited statutory right of appeal.” Accordingly, “the main issue in this appeal relates to the decision by the Divisional Court and the Court of Appeal not to undertake judicial review.”
Court Allows Appeal
The Court allowed the appeal, finding that “It was an error for the courts below to hold that, where there is a limited right of appeal, judicial review should only be exercised in exceptional or rare cases. The limited right of appeal from LAT decisions to pure questions of law does not reflect an intention by the legislature to restrict recourse to the courts on other questions arising from the LAT’s administrative decision. The legislative decision to provide for a right of appeal on questions of law only denotes an intention to subject LAT decisions on questions of law to correctness review, and proceeding with judicial review on questions of fact or mixed fact and law is fully respectful of the legislature’s institutional design choices.” Further, the “LAT adjudicator’s reconsideration decision was unreasonable, as he failed to take into account relevant legal constraints. The matter should be referred back to the LAT adjudicator for reconsideration.”
Courts Ought to Have Undertaken Judicial Review
The Court reasoned that as per the Court in Vavilov, “a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. Where there is a statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. However, while there is a right to seek judicial review, it is open to the judge before whom judicial review is sought to decide whether to exercise his or her discretion to grant relief — although this discretion does not extend to decline to consider the application for judicial review.”
It was further noted that “It would be ignoring Strickland to conclude that only in exceptional circumstances would judicial review be available where there is a limited right of appeal. It would also be an error to hold that judicial review should only be exercised in rare cases.” Accordingly, the Divisional Court “should have exercised its discretion to undertake judicial review for issues not dealt with under the statutory right of appeal.” It was noted that “Both courts sought to apply Strickland, but erred in principle in doing so. They did so 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. No such inference is warranted. Properly applying Strickland, the Divisional Court should have exercised its discretion to undertake judicial review for issues not dealt with under the statutory right of appeal.”
Tribunal Decision Not Reasonable
In addition, the “LAT adjudicator’s reconsideration decision is unreasonable, as he failed to have regard to the effect of the reinstatement of the income replacement benefits between February and September 2011 on the validity of the initial denial. In addition, he did not consider earlier tribunal decisions, some of which had held that when an applicant’s benefits are reinstated, the limitation period can only be triggered when they are validly terminated again. It is arguable that there needed to be a valid denial of the income replacement benefits to start the clock running on the limitation period, and this question is one to be properly decided by the LAT.”
Matter Referred Back to Tribunal
Therefore, “in this case, the elements of the reconsideration decision that are not covered by the limited right of appeal should be judicially reviewed…the LAT adjudicator failed to take into account relevant legal constraints. In light of this, his decision is unreasonable.” As a result, having “concluded that the reconsideration decision is unreasonable, I send the matter back to the LAT adjudicator to consider the issue of the effects of the reinstatement of benefits on the validity of the initial denial and, thus, on the limitation period… As Ms. Yatar succeeded on the jurisprudential question relating to the exercise of discretion to undertake judicial review when there is a limited statutory right of appeal, and in the judicial review, she is awarded her costs in this Court and the courts below payable by TD Insurance.”
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