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Review - Appeal-JR Combined (Yatar) (5). Du Carmur v. Sickinger
In Du Carmur v. Sickinger (Ont Div Ct, 2026) the Ontario Divisional Court considers, here in an R2.1 ['frivolous or vexatious or abusive proceedings'] context, the attempted Yatar-like advancement of both a JR and a leave to appeal to the Divisional Court, these of an interlocutory order "declining to grant summary judgment". This court (Corbett J) dismissed the JR on exhaustion grounds, holding that the potential appeal offered a full Strickland 'adequate alternative remedy' (AAR):[1] This court directed the Registrar to give notice to the Moving Party pursuant to r. 2.1 in respect to leave to appeal proceedings commenced in Toronto, and regarding this application for judicial review commenced in Brampton, both arising from a decision of Derkstine J. dated May 30, 2025, declining to grant summary judgment (unreported).
[2] By decision dated May 6, 2026, this court declined to dismiss the Toronto leave to appeal proceedings and gave scheduling directions for completion of materials for that leave motion (2026 ONSC 2715).
[3] The Applicant’s submissions in response to the r. 2.1 notices made mention of this application for judicial review but did not include submissions as to why this application should not be dismissed. The court afforded the Applicant an opportunity to deliver further submissions, which were provided by way of a letter from counsel dated May 26, 2026. I have considered both the initial submissions, by way of background, and the submissions contained in counsel’s letter of May 26th.
[4] The impugned decision of Derkstine J. is an interlocutory decision of a Superior Court judge. It dismisses a motion for summary judgment on the basis that a trial is required to adjudicate the claims.
[5] That Applicant argues in his submissions that there are grounds for judicial review distinct from potential grounds of appeal, and thus that both an appeal (with leave) and an application for judicial review should be available. Specifically, the Applicant argues:The proposed appeal is directed principally to the correctness of the Honourable Justice Derstine’s disposition of the summary judgment motion, including whether the motion judge erred in concluding that the record disclosed genuine issues requiring a trial and whether partial summary judgment or a narrower Rule 20 determination ought to have been made. The judicial review application, by contrast, is directed to the fairness and legality of the adjudicative process itself. In particular, it challenges the alleged reliance on late-filed materials, the refusal to exercise available Rule 20 powers despite the state of the record, and the failure to address uncontroverted evidence and unanswered Requests to Admit. Those are process-based complaints going to procedural fairness and the integrity of the hearing, not merely appellate disagreement with the result.
Put differently, the appeal asks whether the motion judge reached the wrong conclusion on the record before him. The judicial review asks whether the procedure by which that conclusion was reached was itself unfair and legally defective. That distinction is material. The application is therefore not simply a second route to the same relief on the same basis. It raises a supervisory concern that is qualitatively different from an ordinary appeal on the merits. [6] I do not accept these submissions. Where there is a full right of appeal, as would be the case here if leave were granted, the scope of the appeal would cover all grounds that could be available on an application for judicial review, subject to an equal or more probing standard of review. Issues of procedural fairness may be raised in an appeal. Adjudication of an appeal on a “appellate standard of review” would address every issue that could be raised on an application for judicial review and in particular, every issue raised in the instant application for judicial review.
[7] The leave requirement derogates from a “full right of appeal” but not in a manner that would lead this court to entertain an application for judicial review from an interlocutory decision of a Superior Court judge. Availability of interlocutory appeals has been substantially limited by the Legislature in the same manner that judicial review of interlocutory administrative orders are generally considered “premature”: interlocutory reviews and appeals tend to fragment and delay proceedings, and the parties will have full rights of appeal from the final disposition of the case.
[8] Accordingly, on a Strickland analysis, I find that the availability of a right of appeal, with leave, combined with the availability of a final decision on the merits in the court below, which is subject to a full right of appeal (likely to the Court of Appeal), provides an adequate and effective alternative recourse to an application for judicial review. I would therefore dismiss this application for judicial review pursuant to r. 2.1.[1]. . Irene Starr v. Intact Insurance Company
In Irene Starr v. Intact Insurance Company (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a SABS JR (not an appeal), here brought against a dismissal a LAT appeal of a denial of "an application for a determination that she was catastrophically impaired under Criterion 7 of the Schedule".
Here the court briefly considered the court's sole where a JR is brought in a 'question-of-law only' context [under the Yatar doctrine]:[16] Pursuant to Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, the existence of a right of appeal limited to questions of law does not, in itself, amount to a discretionary bar nor preclude an application for judicial review for questions of fact or mixed fact and law. The Court must determine at a minimum whether judicial review is appropriate, and if it is not, may refuse to hear the application on its merits or to grant a remedy.
[17] The issues raised in this application are questions of fact or mixed fact and law, making judicial review appropriate. The standard of review on the application for judicial review with respect to findings of fact and mixed fact and law, is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
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