Statutory Accident Benefit Claims and Judicial Review: SCC Grants Leave in Yatar v TD Insurance
In Yatar v TD Insurance Meloche Monnex, 2022 ONCA 446 [Yatar], the Ontario Court of Appeal (“ONCA”) considered the scope of appellants’ right to the remedy of judicial review in cases regarding disputes over statutory accident benefit claims. After considering the relevant factors, it concluded that courts should only grant judicial reviews sparingly in the rarest of cases which warrant the remedy. On March 9, 2023, the Supreme Court of Canada (“SCC”) granted the application for leave to appeal in this case.
Facts and Background
On February 7, 2010, Ms. Ummugulsum Yatar was injured in a motor vehicle accident (Yatar, para 3). Soon afterwards, Ms. Yatar submitted an Application for Accident Benefits to TD Insurance, her insurer (Yatar, para 4). In her Application, she elected to claim Income Replacement Benefits (“IRBs”), as well as housekeeping and home maintenance benefits (Yatar, para 4).
TD Insurance initially paid the three benefits requested by Ms. Yatar (Yatar, para 5). However, on January 7, 2011, it sent a letter to Ms. Yatar to notify her that it had stopped paying all benefits to her because she had not completed a disability certificate within the time requested in a previous letter (Yatar, para 5). TD Insurance attached a dispute resolution form to the January 7, 2011 letter (Yatar, para 15).
TD Insurance also required Ms. Yatar to attend medical examinations to determine her entitlement to benefits (Yatar, para 5). After she attended two medical examinations in January 2011, TD Insurance wrote a letter to Ms. Yatar, dated February 16, 2011, to deny her claim for housekeeping and home maintenance benefits while allowing her claim for IRBs (Yatar, para 7). This letter did not have a dispute resolution form attached (Yatar, para 7).
After Ms. Yatar attended a third medical examination in September 2011, TD Insurance wrote another letter to her, dated September 19, 2011, to advise that it would stop payment of her IRBs (Yatar, paras 8-9). Again, a dispute resolution form was not attached to this letter (Yatar, para 9).
Ms. Yatar and TD Insurance attempted mediation at the Financial Services Commission of Ontario between June 18, 2013 and January 14, 2014 (Yatar, para 10). About two years later, between March and April of 2016, Ms. Yatar filed a Notice of Action and a Statement of Claim in the Ontario Superior Court of Justice (Yatar, para 11). The court dismissed her action through a consent order dated March 27, 2017 (Yatar, para 11). In March 2018, Ms. Yatar commenced an application before the License Appeal Tribunal (“Tribunal”), claiming entitlement to IRBs and housekeeping and home maintenance benefits (Yatar, para 11).
The Tribunal’s Decisions
In the preliminary decision, the adjudicator found that the applicable limitation period expired in April 2014 (Yatar, para 13). Because TD Insurance had attached a dispute resolution form to the letter dated January 7, 2011, Ms. Yatar was required to initiate any disputes regarding her benefits within two years of that date under s. 281.1(1) of the former Insurance Act, R.S.O. 1990, c. I.8, and s. 51 of the former Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg 403/96 [SABS] (Yatar, para 13). However, because Ms. Yatar had requested mediation within those two years and mediation concluded on January 14, 2014, the mediation extended the limitation period (Yatar, para 16). Under the applicable process at the time, Ms. Yatar had 90 days from the last day of mediation to challenge TD Insurance’s decision to deny benefits (Yatar, para 16). As Ms. Yatar commenced her application at the Tribunal well outside of that 90-day period, her claim was barred by the limitation period.
Ms. Yatar sought a reconsideration of the adjudicator’s decision, arguing that the adjudicator made several errors in his decision (Yatar, para 18). The same adjudicator conducted the reconsideration and dismissed Ms. Yatar’s request (Yatar, paras 18-19). He reiterated that TD Insurance had attached a dispute resolution form to the letter dated January 7, 2011, which meant that Ms. Yatar was aware of the dispute resolution process and the letter constituted a valid denial of benefits (Yatar, para 20). This, in turn, meant that the limitation period started on January 7, 2011, and Ms. Yatar’s application at the Tribunal was well outside of the limitation period (Yatar, para 21).
The Divisional Court
At the Divisional Court, Ms. Yatar both appealed the Tribunal’s decision and applied for a judicial review of the decision. Regarding her appeal, the court noted that section 11(6) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G [LATA] only permitted questions of law on an appeal (Yatar, para 22). Since Ms. Yatar did not show an error of law in the Tribunal’s decision, the Divisional Court dismissed her appeal (Yatar, para 23).
On Ms. Yatar’s application for judicial review, the Divisional Court first emphasized that judicial review was a discretionary remedy and that the court should consider judicial review applications “only in exceptional circumstances” where there has been a statutory right of appeal from a decision of the Tribunal (Yatar, para 24). The court then considered whether the existence of adequate alternative remedies would weigh against allowing access to judicial review (Yatar, para 25). The Divisional Court ultimately found that the processes for review available through the Tribunal and the limited right of appeal under the LATA supported the notion of making judicial review available only in exceptional circumstances (Yatar, para 26). As there were no exceptional circumstances in Ms. Yatar’s case, the Divisional Court also dismissed her application for judicial review (Yatar, para 26).
Ms. Yatar subsequently appealed the Divisional Court’s decision to the ONCA.
The Ontario Court of Appeal
At the ONCA, Ms. Yatar argued that the Divisional Court erred in limiting judicial review in cases where there has been a statutory appeal from a Tribunal decision about SABS disputes to exceptional circumstances (Yatar, para 27). While the ONCA acknowledged that the use of the language “exceptional circumstances” could give rise to confusion, it unanimously concluded that the Divisional Court did not err in holding that the court could choose not to exercise its discretion to hear and determine a judicial review application based on the existence of an adequate alternative remedy (Yatar, para 37). The ONCA inferred that the legislature intended to restrict resort to the courts for determining SABS disputes because the legislature limited the statutory right of appeal to questions of law, leaving questions of fact or mixed fact and law to the Tribunal (Yatar, para 38). The Divisional Court’s ruling was consistent with the principles regarding the centrality of legislative intent affirmed in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] (Yatar, para 43).
The ONCA clarified that the remedy of an application for judicial review is always available, but courts should only exercise the remedy of judicial review in rare and unusual cases, given the legislative scheme (Yatar, paras 39 and 42). For further clarification, access to judicial review should be restricted to cases “where the adequate alternative remedies of reconsideration, together with a limited right of appeal, are insufficient to address the particular factual circumstances of a given case” (Yatar, para 45).
Ms. Yatar also argued that the adjudicator unreasonably concluded that TD Insurance’s January 7, 2011 letter constituted a valid denial of benefits in his reconsideration decision (Yatar, para 49). The ONCA did not accept this argument, finding that Ms. Yatar failed to demonstrate anything unreasonable in the adjudicator’s decision (Yatar, para 52). Like the Divisional Court, the ONCA highlighted the dispute resolution form that TD Insurance had attached to the January 7, 2011 letter, which showed that Ms. Yatar should have been aware of the dispute resolution process, even when TD Insurance did not attach a dispute resolution form to the two subsequent letters (Yatar, para 50). As the adjudicator correctly held that the limitation period began on January 7, 2011, Ms. Yatar was well outside of the limitation period when she commenced her application to the Tribunal in 2018 (Yatar, para 51).
As the ONCA did not accept either of Ms. Yatar’s arguments, it unanimously dismissed her appeal (Yatar, para 58).
In deciding whether to limit judicial review in cases like Yatar, the ONCA had to address a number of critical considerations. The first was the nature of judicial review. As the ONCA noted, a court is “entitled to refuse to grant any relief on an application for judicial review” (Yatar, para 43, citing Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(5); emphasis added). Given the highly discretionary nature of judicial review, courts should be free to exercise their judgment over whether they should agree to undertake judicial review and, if they do so, whether to grant relief.
The question to resolve then becomes in what circumstances courts should refuse to grant an application for judicial review. A salient point to consider is the availability of the right to reconsideration of the Tribunal’s preliminary decision and the statutory right of appeal on questions of law; before accessing the remedy of judicial review, potential appellants first have access to these other remedies. These two remedies should act as the “default” remedies for appellants, and judicial review should only come into play if the right to reconsideration and the statutory right of appeal cannot address all of the relevant factors in a particular case and ensure that all parties have access to justice. Otherwise, undertaking judicial review applications on a broad scope would have a duplicative effect and may unnecessarily strain court resources.
Two intervenors in Yatar, the Income Security Advocacy Centre and the Advocacy Centre for Tenants Ontario, argued that the right to judicial review must be wide-ranging in cases such as this and cases involving tenants or social assistance recipients (Yatar, para 46). While access to justice for vulnerable persons like tenants and social assistance recipients is always a concern, courts should not expand the scope of judicial review simply for this reason. The nature of judicial review, the intent of the legislature, and the consideration of limited court resources all support limiting the scope of judicial review to rare and unusual cases. As the ONCA noted, citing the factum of the intervenor, the Attorney General of Ontario, “more checks on decision makers does not necessarily mean more justice” (Yatar, para 46). The presumptive standard of review of reasonableness affirmed in Vavilov is in place to ensure that decision makers are sufficiently kept in check (Vavilov, para 16). Furthermore, courts can always grant the remedy of judicial review in particular cases if reconsideration at the Tribunal and statutory appeal are not enough. This framework should appease access to justice concerns.
Overall, the ONCA appropriately considered the relevant factors and found that they supported limiting the scope of judicial review in cases where there has been a statutory appeal from a Tribunal decision about SABS disputes. As such, when Yatar comes before the SCC, it should affirm the ONCA’s decision and ensure that the remedy of judicial review is reserved only for cases where courts cannot achieve access to justice without judicial review.