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Review - Appeal-JR Combined (Yatar) (4). Voices of Willowdale Inc. v. City of Toronto
In Voices of Willowdale Inc. v. City of Toronto (Ont Divisional Ct, 2025) the Divisional Court dismissed a JR, this against an OLT decision "to adopt a zoning by-law to permit the construction of a three-story apartment building for people leaving homelessness. The new development would be in addition to the existing four-story building on the property, which houses 600 senior citizens.":
Here the issue was whether the court should exercise it's discretion to hear a JR after a leave to appeal application [under OLTA s.24] was dismissed (unusually, the OLTA has a leave requirement at the first level of court appeal):Should we exercise our discretion to hear the judicial review application in light of the ruling on the motion for leave to appeal?
[19] VOW brought a motion for leave to appeal under s. 24 of the OLTA, which permits an appeal to this Court, with leave, on questions of law.
[20] On May 17, 2024, the motion for leave to appeal was dismissed. As is the practice in this Court, no reasons were provided.
[21] The City argues that VOW should not be permitted to proceed with judicial review on issues of law it raised in its notice of application for leave to appeal. The City argues VOW had a route to appeal errors of law and is now estopped from raising the same issues for which they were denied leave. The City submits that judicial review is a remedy of last resort and this Court should not exercise its discretion to hear the judicial review application because VOW had a full opportunity to raise any legal errors in its leave application.
[22] The Tribunal also submits that the Applicant should not be permitted to raise the same issues in their judicial review application that were raised in its leave motion.
[23] In Vavilov, the Supreme Court of Canada held that a right of appeal on a question of law does not preclude an individual from seeking judicial review for questions not dealt within the appeal.
[24] This Court was faced with a decision whether to consider an application for judicial review even though a statutory appeal had been filed, in Shearer v. Oz, 2024 ONSC 1723. In Shearer, both the appeal and the application for judicial review were before the same Divisional Court panel. The Court heard the appeal on a question of law. The Court also exercised its jurisdiction to hear the application for judicial review on questions of fact or mixed fact and law. Corbett J., stated at para. 32 that:In respect to the application for judicial review, this court will not entertain the application to the extent that its substance is addressed adequately by another process. In this case, the "other process" is the appeal. The only issues before us that could form a basis for judicial review that this court will entertain, therefore, are questions of fact, mixed fact and law (where there is no extricable question of law) and exercises of discretion, all of which are reviewed on a standard of reasonableness in an application for judicial review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. [25] This Court dismissed VOW's motion for leave to appeal without reasons. In oral argument during this application hearing, the City conceded that some of the issues raised in the motion for leave to appeal were ones of mixed fact and law and, therefore, outside the scope of a statutory appeal. I am satisfied that all the issues raised in this application for judicial review are either questions of fact, or questions of mixed fact and law with no extricable questions of law. Those issues could not have been dealt with in an appeal under s. 24 of the OLTA. Judicial review is still available to VOW on issues of fact, or mixed fact and law and the principle of issue estoppel does not arise. As a result, I find that this is an appropriate case in which to exercise our discretion to hear the application for judicial review notwithstanding the unsuccessful application for leave to appeal: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713. . Best Buy Canada Ltd. v. Canada (Border Services Agency)
In Best Buy Canada Ltd. v. Canada (Border Services Agency) (Fed CA, 2025) the Federal Court of Appeal dismisses a joint appeal/JR application, here seeking to "set aside the decision of the Canadian International Trade Tribunal".
Here Stratas JA interestingly considers the Federal Court system's equivalent issue to the Ontario system's 'Yatar' recent dual appeal-JR procedure. He concludes that the federal system largely tolerates such a procedure, but that it is rare that it is tactically required [as most issues can be characterized as legal] - ending with (what I read as) a costs warning [para 16] against parties using it unnecessarily:[1] The appellant/applicant asks this Court to set aside the decision of the Canadian International Trade Tribunal dated November 8, 2023 in file AP-2022-015. It does so by way of an appeal on questions of law under section 68 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and a separate application for judicial review under subsection 28(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. For the following reasons, we will dismiss both with costs.
....
B. The separate judicial review
(1) Can a judicial review be brought in the face of a statutory appeal provision that restricts the grounds the Court can consider?
[8] There are many statutory appeal provisions that restrict an appellant to "“questions of law”" or "“questions of jurisdiction”" or impose a leave-to-appeal requirement, or some combination of these things: see, e.g., Canada Transportation Act, S.C. 1996, c. 10, s. 41(1); Broadcasting Act, S.C. 1991, c. 11, s. 31(2); Telecommunications Act, S.C. 1993, c. 38, s. 64(1); Competition Act, R.S.C. 1985, c. C-34, ss. 30.24(2) and 34(3); Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 68(1)(c). Can a judicial review be brought in the face of these statutory appeal provisions?
[9] This Court has given two answers to that question:(1) Statutory appeal provisions that impose restrictions do not prevent a party from bringing a judicial review as of right on any administrative law grounds: see Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161.
(2) Statutory appeal provisions sometimes restrict a court to considering "“questions of law”" or "“questions of jurisdiction”" or can require that the appellant obtain leave to appeal. Provided that the restriction furthers "“a pressing and valid government objective”" (legislation normally binding courts) and leaves the judiciary able to decide "“whether state action conforms with [the law,] the Constitution, and the requirement of fair and impartial administration of justice”", the restriction will be upheld and a separate judicial review disobeying the restriction will be precluded: Democracy Watch v. Canada (Attorney General), 2023 FCA 39 at para. 5. While courts can ignore total restrictions on review, such as those contained in a classic privative clause, they cannot ignore partial ones that are valid on the above principles: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at paras. 102-103 (and the Supreme Court cases cited therein). [10] Speaking only for myself, I think the Best Buy decision overlooked the controlling authorities mentioned in the preceding paragraph. But multiple majorities of this Court have either approved Best Buy or left it in place: see Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375), 2023 FCA 93 at paras. 115-117; BCE Inc. v. Québecor Média Inc., 2022 FCA 152 at para. 58; Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209; Democracy Watch v. Canada (Attorney General), 2024 FCA 158. This Court’s repeated affirmation of Best Buy outweighs the personal views of any individual judge: Janssen Inc. v. Canada (Attorney General), 2021 FCA 137; Miller, above. Thus, Best Buy is the law in this Court until the Supreme Court says otherwise. The Supreme Court has expressly left open whether Best Buy is valid: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191 at para. 50.
[11] But just because Best Buy says parties can bring a separate application for judicial review doesn’t mean they should. In fact, in most cases they shouldn’t. Why? Just about anything that can be raised in a separate application for judicial review can be raised in a statutory appeal where only "“questions of law”" can be raised:. Alleged legal errors by the administrative decision-maker, whether they be found in the Constitution, legislative provisions, common law principles or administrative law principles. This includes questions of law that are extricable from (i.e., taint or dominate) questions of mixed fact and law: Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573; Canadian National Railway Company v. Canada (Transportation Agency), 2016 FCA 266 at para. 22; Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151 at para. 15.
. Procedural fairness concerns: Emerson Milling at paras. 18-19.
. Sufficiency of reasons or inadequate reasons on a key point: Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 at paras. 21-33.
. Errors that seem factual but are really legal errors or failures to follow legal principles governing fact-finding. For example, a decision-maker that wrongly takes judicial notice (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458), wrongly finds facts without any supporting evidence (Canada (Border Services Agency) v. Danson Décor Inc., 2022 FCA 205 at para. 14), wrongly draws a factual inference or finds facts contrary to the law of evidence (e.g., Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161 and the cases cited therein; Garvey v. Canada (Attorney General), 2018 FCA 118 at para. 6), or wrongly finds facts contrary to a statutory provision (Walls v. Canada (Attorney General), 2022 FCA 47 at para. 41; Page v. Canada (Attorney General), 2023 FCA 169 at para. 79). [12] Sometimes parties bring applications for judicial review to get the Court to reweigh the evidence. But we never do that under the reasonableness standard: see, e.g., Pier 1 Imports at para. 45; and many other authorities.
[13] As for leave-to-appeal requirements in some statutory appeal provisions, they do not stop arguable issues from coming before the Court. Quite the opposite. If the issues are "“fairly arguable”", we grant leave: Emerson Milling at para. 56; Canadian Pacific Railway Co. v. Canada (Transportation Agency), 2003 FCA 271, [2003] 4 F.C.R. 558 at para. 17; and on the meaning of "“fairly arguable”", see Lukács v. Swoop Inc., 2019 FCA 145 at para. 15. No one has a right to bring or prosecute a case that is not "“fairly arguable”".
[14] Judicial reviews and statutory appeals are the same as far as administrative law remedies are concerned: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at paras. 139-142; and with specific regard to s. 52 of the Federal Courts Act, see Cathay Pacific Airways Limited v. Air Miles International Trading B.V., 2015 FCA 253 and Punniamoorthy v. Canada (Minister of Employment and Immigration) (1994), 1994 CanLII 10959 (FCA), 113 D.L.R. (4th) 663, 20 Admin. L.R. (2d) 73.
[15] In light of the above, this much is true: rare are the times a party really needs to bring a separate judicial review.
[16] A needless judicial review should never be brought. It subverts judicial economy, burdens the Registry, drives up costs, and undermines simplicity and efficiency in administrative law: Vavilov at para. 29; Pier 1 Imports at para. 51; Best Buy at para. 68. If brought, it should be immediately discontinued: Federal Courts Rules, S.O.R./98-106, Rule 165. If not discontinued, a respondent should move to dismiss it. And the Court, on its own motion, can dismiss it too: Dugré v. Canada (Attorney General), 2021 FCA 8 at paras. 19-24 and cases cited therein (plenary powers of the Court and Rule 74). If a separate judicial review has been brought and is truly needed, it must be consolidated with the statutory appeal under Rule 105. . Collins-Neely v. 2540507 Ontario Inc. et al
In Collins-Neely v. 2540507 Ontario Inc. et al (Ont Divisional Ct, 2025) the Divisional Court dismissed a s.210 RTA appeal, here where the central issue was "the validity of an agreement executed by the parties to terminate the tenancy" alleged to have been signed by the tenant under duress.
Here the court notes important aspects of the RTA s.210 'question of law' appeal jurisdiction:[14] As a result, this court lacks jurisdiction under the Residential Tenancies Act to intervene on appeal based on questions of fact, even where an appellant claims a factual determination resulted from palpable and overriding error: see Shannon v Selim, 2024 ONSC 6576 (Div. Ct.), at para. 8. . Byrne v. Canada (Border Services Agency)
In Byrne v. Canada (Border Services Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, this against a CITT dismissal of an appeal, that brought when the "Canada Border Services Agency prohibited the entry of the pistol into Canada, finding that it was a "“prohibited weapon or device”" as it met the definition of a replica firearm under subsection 84(1) of the Criminal Code".
Here the court declines to hear purely legal issues (holding that only issues of fact and issues of mixed fact and law could be heard) on a JR where there was an unused appeal on "any question of law" available [under s.68(1) Customs Act]:[2] .... To the extent that Mr. Byrne alleges that the CITT committed errors of law, his recourse was through appeal to this Court under subsection 68(1) of the Customs Act, R.C.S. 1985, c. 1 (2nd Supp.): Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209 at para. 29. This Court’s jurisdiction on an application for judicial review such as this is confined to reviewing errors of fact or mixed fact and law.
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