The Supreme Court has expanded Canadians’ rights to have courts review vast numbers of tribunal decisions, giving hope to individuals battling government agencies but adding to the pressures on an overburdened legal system struggling to cope with large numbers of judicial vacancies.
The case before the court involved a woman injured in a car accident, who was denied benefits by her insurer. When the woman, Ummugulsum Yatar, challenged the denial at an administrative tribunal – Ontario’s Licence Appeal Tribunal – it rejected her claim, saying she had brought her challenge after a statute of limitations expired.
Canada has hundreds of administrative tribunals, covering everything from landlord and tenant matters to telecommunications. But provincial laws put strict limits on the right to appeal the decisions of many of these tribunals.
Ms. Yatar attempted to go to court for a judicial review, in which a judge determines whether a decision of an administrative tribunal was reasonable and procedurally fair. Judicial review is a way for individuals to challenge the rulings of government decision makers. At the same time, Ms. Yatar also appealed the tribunal’s ruling to a court – a process separate from a judicial review.
Ontario’s Divisional Court said a provincial law limits appeals of the tribunal’s decisions to errors of law, not factual or procedural matters. This law, it said, was a signal from legislators that judicial review was to be reserved for extraordinary cases only – and Ms. Yatar’s case did not meet that standard. Ontario’s Court of Appeal largely upheld that ruling. And both said the Licence Appeal Tribunal had made a reasonable decision, in any event, and that there was no legal error involved.
The Supreme Court unanimously disagreed with the two lower courts about judicial review. It said the provincial legislators expressed no intention to constrain judicial review. The Supreme Court stressed the importance of judicial review of the decisions of government authorities. Justice Malcolm Rowe called it “a necessary consequence of the ‘rule of law,’” in a 9-0 ruling, citing previous court precedent. (The court left for another day what it would say if legislators pass laws to limit judicial review.)
Justice Rowe also said the tribunal had treated Ms. Yatar unreasonably, because applying the statute of limitations was not nearly as straightforward as the tribunal made it seem. He ordered the Licence Appeal Tribunal to reconsider her case against the insurer, TD Insurance Meloche Monnex.
He said Canadians can seek to overturn administrative decisions in appeals and judicial review at the same time if they wish.
The insurance company and the Licence Appeal Tribunal had argued that preserving scarce judicial resources was an important consideration in the case.
But “the SCC chose principle over practicality,” said lawyer Jeremy Opolsky, who was not involved in the case.
“Because questions of law are so narrow and relatively rare,” the ruling “significantly expands the ability of courts to review government actions.”
Federally appointed courts such as the superior courts of the provinces have such a long list of vacancies (now 68) that a judge recently told the Canadian government it was failing to uphold its constitutional duty.
These are the courts tasked with providing oversight of the government agencies that make decisions affecting Canadians’ everyday lives, on everything from housing, employees’ rights, police misconduct and benefits for injured persons, said Sean Dewart, a lawyer for Ms. Yatar.
“These tribunals adjudicate more disputes than courts, but largely fly under the radar,” Mr. Dewart said. “The Supreme Court unanimously affirmed that the pendulum has swung away from unquestioning deference of these administrative bodies.”
He added that the court’s endorsement of greater oversight of tribunals “is yet another reason for the federal government to fulfill its responsibilities to appoint judges on an urgent basis.”
Arif Virani, federal Justice Minister, told The Globe and Mail’s editorial board on Thursday that he has appointed judges at a faster rate than any justice minister in recent memory – 74 judges in about seven months.
“Appointing judges is something that is critical, but it’s also something that takes a lot of time,” he said, noting that the government is appealing the court ruling that it breached its constitutional duty.
Tribunal decisions often affect vulnerable groups. In Manitoba, for instance, the Social Services Appeal Board rules on matters involving social assistance, child-care subsidies, housing and disability benefits. But a law similar to Ontario’s limits appeals of the board’s decisions.
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“The lives of vulnerable individuals are already intertwined with administrative law in some of its most intrusive forms,” said Allison Fenske, a lawyer who represented two intervenor groups at the Supreme Court, the Aboriginal Council of Winnipeg and the Social Planning Council of Winnipeg.
“Restricting a person’s access to judicial review does nothing to improve access to justice, and the Supreme Court’s affirmation that a person has a right to seek judicial review is an important one,” she said.
Limited rights of appeal are common, especially for complex regulatory matters such as energy, telecommunications, transportation and broadcasting, said Paul Daly, a University of Ottawa law professor and author on administrative law who represented an intervenor in the case, the Canadian Telecommunications Association.
“Some of the most important regulators in Canada – the utilities regulators in the provinces and the CRTC federally – are subject to limited rights of appeal,” he said.
A spokeswoman for TD Insurance Meloche Monnex said it has no comment at this time.
Sean Fine