Simon's Megalomaniacal Legal Resources

Judicial Review - SOR - Yatar

. Canadian National Railway Company v. Alberta Pacific Forest Industries Inc.

In Canadian National Railway Company v. Alberta Pacific Forest Industries Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, here against a decision of the Canadian Transportation Agency which "concluded that CN failed to meet the level of service obligations it owed to the respondent, Alberta Pacific Forest Industries Inc".

Here the court extensively considers appeal, JR and Yatar issues (ie. appeal routes, JR availability, JR exhaustion doctrine and related SOR issues), this in a combined CTA and FCA context:

[12] The case law of this Court and of the Supreme Court of Canada establishes that normal appellate rules apply in statutory appeals: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov] at para. 37. See also Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15 at para. 25; Dow Chemical Canada ULC v. Canada, 2024 SCC 23 at para. 83; Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8 [Yatar] at para. 48; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, [2021] 3 SCR 176 at para. 25; Emerson at paras. 23–26. Thus, in a statutory appeal, questions of law are reviewable for correctness whereas questions of fact or of mixed fact and law, which do not contain an extricable legal issue, are reviewable for palpable and overriding error.

[13] Conversely, in an application for judicial review, determinations of both law and fact made by the administrative decision-maker are generally reviewable for reasonableness: Vavilov at paras. 89–90 and 99.

[14] In Vavilov and Yatar, the Supreme Court of Canada held that the existence of a limited right to appeal questions of law, in and of itself, does not foreclose the right to judicially review factual findings that fall outside the scope of the limited statutory appeal: Yatar at paras. 3 and 60–63; Vavilov at para. 45.

[15] In paragraph 24 of Vavilov, the majority noted that "“because judicial review is protected by s. 96 of the ""Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely”". The majority added at paragraph 52 of Vavilov that:

... statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism.

[16] In Yatar, the Supreme Court expanded on the foregoing observations and confirmed that a court cannot refuse to hear a judicial review application challenging factual determinations of an administrative decision-maker merely because there is a limited right to appeal on questions of law arising from the decision of such a decision-maker. In so deciding, the Supreme Court noted that it had stated in Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, "“that “[t]he principle that public authorities are subordinate to the supervisory power of the superior courts is the cornerstone of the Canadian and Quebec system of administrative law. Such judicial review is a necessary consequence of the rule of law” (p. 360)”" (Yatar at para. 45). It also cited with approval, at paragraph 46 of Yatar, the following passage from paragraph 27 in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:

As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers.

[17] The Supreme Court further noted in Yatar that judicial review is a discretionary remedy and that, in determining whether to exercise its discretion to hear an application for judicial review, a reviewing court should apply the principles set out in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 [Strickland]: Yatar at paras. 3 and 51. These allow the reviewing court to consider whether judicial review is appropriate, which, in turn, requires the court to consider the adequacy of any available alternatives to judicial review: Strickland at para. 40. The Supreme Court held that a limited right of appeal on questions of law is not an adequate alternative to an application for judicial review, challenging factual determinations, as a statutory appeal on legal issues does not allow for review of the decision-maker’s factual determinations. However, it found that adequate alternative remedies do exist where an internal review process has not been exhausted or where there is a full statutory right of appeal that allows for appeal of questions of both fact and law.

[18] In Yatar, the Supreme Court left open the issue of whether similar conclusions would apply where there is a privative clause in the administrative decision-maker’s constituent statute.

[19] This Court has held that factual issues may be judicially reviewed, where a limited right of appeal on questions of law or jurisdiction is provided in an administrative decision-maker’s constituent statute where that statute contains a privative clause: Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161 [Best Buy]. See also Best Buy Canada Ltd. v. Canada (Border Services Agency), 2025 FCA 45 at para. 10; Democracy Watch v. Canada (Attorney General), 2024 FCA 158 at paras. 95–96 [Democracy Watch]; Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375), 2023 FCA 93 at paras. 115–17; Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209 at paras. 29–30; BCE Inc. v. Québecor Média Inc., 2022 FCA 152 at para. 58. I note that this approach has been questioned by Chief Justice de Montigny, in obiter or non-binding comment, in Democracy Watch at paras. 58–78.

[20] The Supreme Court’s holding in Yatar that an internal administrative review that has not been exhausted is an adequate alternate remedy that can lead a court to decline to hear an application for judicial review has been variously characterized in previous case law as the doctrine of exhaustion, the doctrine of adequate alternate remedy, the rule against the bifurcation of administrative proceedings, the principle preventing interlocutory judicial reviews, and an objection to premature judicial review. As noted by Justice Stratas, writing for this Court at paragraphs 30–32 of C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61 (CanLII), [2011] 2 FCR 332:

[30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrative process have been exhausted. The importance of this rule in Canadian administrative law is well demonstrated by the large number of decisions of the Supreme Court of Canada on point: Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3; Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929; R. v. Consolidated Maybrun Mines Ltd., 1998 CanLII 820 (SCC), [1998] 1 S.C.R. 706, at paragraphs 38-43; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at paragraphs 31 and 34; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at paragraphs 14–15, 58 and 74; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141; Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146, at paragraphs 1–2; Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257, at paragraphs 38–55; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667, at paragraph 96.

[31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

[32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway: see, e.g., Consolidated Maybrun, above, at paragraph 38; Greater Moncton International Airport Authority v. Public Service Alliance of Canada, 2008 FCA 68, at paragraph 1; Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 CanLII 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.). Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience: see, e.g., Consolidated Maybrun, above, at paragraph 43; Delmas v. Vancouver Stock Exchange (1994), 1994 CanLII 3350 (BC SC), 119 D.L.R. (4th) 136 (B.C.S.C.), affd (1995), 1995 CanLII 1305 (BC CA), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians of Ontario (1991), 1991 CanLII 7126 (ON SC), 5 O.R. (3d) 439 (Gen. Div.). Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision makers who, like judges, have decision- making responsibilities to discharge: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 48.

. Yatar v. TD Insurance Meloche Monnex

In Yatar v. TD Insurance Meloche Monnex (SCC, 2024) the Supreme Court of Canada resolved issues regarding joint JR/appeal procedure, which arose where appeals were limited to 'questions of law' but the appellant still sought to challenge issues of fact or mixed fact and law [which a judicial review (JR) could conceivably have jurisdiction over]. In such cases the issue arose as to the role of the court's JR discretion, and - if applied to hear the JR - what standard of review applied.

Here the court states it's conclusions on the central issue of the viability of joint appeal-JR proceedings, and - if so - the applicable standard of review for JR issues of fact and mixed fact and law:

I. Overview

[1] This case 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.

....

[3] As per Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, a right of appeal does not preclude an individual from seeking judicial review for questions not dealt with in the appeal. In this case, despite the statutory right of appeal limited to questions of law, judicial review is available for questions of fact or mixed fact and law. It is then a matter of discretion whether to undertake judicial review, having regard to the framework for analysis set out in Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713.

[4] The Divisional Court erred when it concluded that only in “exceptional circumstances” would judicial review be available where there is a limited right of appeal (2021 ONSC 2507, 157 O.R. (3d) 337, at para. 4); this ignored Strickland. The Court of Appeal for Ontario also erred when it held that only in “rare cases” judicial review would be exercised (2022 ONCA 446, 25 C.C.L.I. (6th) 1, at para. 42), and that in this case, Ms. Yatar had an appropriate alternative remedy. 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.

....

IV. Issues on Appeal

[30] Ms. Yatar raises two questions on appeal: first, 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 (A.F., at para. 28).

....

A. Standard of Review

[41] The main issue in this appeal relates to the decision by the Divisional Court and the Court of Appeal not to undertake judicial review. As this is a discretionary decision, deference is to be shown (see Strickland, at para. 39). However, the exercise of discretion can be set aside when a judge “considered irrelevant factors, failed to consider relevant factors, or reached an unreasonable conclusion” (Matsqui Indian Band, at para. 39). As I will explain, the Divisional Court and the Court of Appeal erred in their application of Strickland in that they acted on the basis of a “wrong principle” (Matsqui Indian Band, at para. 112, per Sopinka J.).

[42] Once it is determined that it is appropriate to undertake judicial review in this case, the issue arises whether the LAT adjudicator’s reconsideration decision was reasonable. Per Vavilov, there is “a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions” (para. 16). That presumption is not rebutted here.

B. The Existence of a Circumscribed Right of Appeal Does Not, on Its Own, Preclude Applications for Judicial Review

....

[44] In the case at bar, the Divisional Court and the Court of Appeal held that a party can both exercise a statutory right of appeal and seek judicial review for questions outside the scope of the statutory right of appeal. Other courts have also determined that a statutory right of appeal does not alter the availability of judicial review (see Smith v. The Appeal Commission, 2023 MBCA 23, 479 D.L.R. (4th) 121; Wongkingsri v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2022 ABQB 545, 61 Alta. L.R. (7th) 170; Zarooben v. Workers’ Compensation Board, 2021 ABQB 232, 84 Admin. L.R. (6th) 96, aff’d 2022 ABCA 50, 95 Admin. L.R. (6th) 163).

[45] The question remains: what role does the right of appeal play in the exercise of discretion to undertake judicial review? In settling this question, it is important to have regard to first principles. In Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, this Court held that “[t]he principle that public authorities are subordinate to the supervisory power of the superior courts is the cornerstone of the Canadian and Quebec system of administrative law. Such judicial review is a necessary consequence of the rule of law” (p. 360).

[46] The importance of judicial review was affirmed by this Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 27:

As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers.

[47] This Court held in Vavilov, at para. 52, that the legislative intent to restrict statutory rights of appeal does not, on its own, affect the availability of judicial review:

... the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.

[48] This Court’s precedent contemplates a person pursuing both a statutory appeal on questions of law and judicial review on questions of fact and mixed fact and law. In such an instance, as set out in Vavilov, at para. 37, the questions of law being appealed would be subject to review on a standard of correctness (see also Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235), and questions of fact and mixed fact and law would be subject to review on a standard of reasonableness on judicial review (see Vavilov).

[49] A person has a right to seek judicial review, and “[t]o 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 [a] constitutional principle” (P. Daly, A Culture of Justification: Vavilov and the Future of Administrative Law (2023), at p. 226, note 94). While there is discretion to hear the application on the merits and deny relief, this discretion does not extend to decline to consider the application for judicial review, as will be explained below.