Overview
The Supreme Court of Canada released its decision in Yatar v. TD Insurance Meloche Monnex in March of this year and the Ontario Divisional Court has already begun grappling with the procedural fallout.[1] In a unanimous decision, the Supreme Court rejected the Divisional Court’s approach to streamlining the concurrent applications for judicial review and statutory appeals that frequently appear on its docket.
As is often the case when the Supreme Court releases a new administrative law decision, lawyers across the country quickly published online updates summarizing Yatar, disseminating the Court’s new gospel and highlighting its key takeaways.[2] However, little has been said about how courts like the Ontario Divisional Court should manage concurrent applications for judicial review and statutory appeals going forward.
This article reviews the Yatar saga critically through the lens of judicial economy, and suggests that while legislative changes may be required to restore efficiency to the process, there are steps that the Divisional Court could take now to reduce the burden of concurrent proceedings on parties, counsel and the court.
Hold On, I’m an Environmental Lawyer
What does Yatar have to do with environmental law?
The Divisional Court is one of the busiest appellate courts in Canada.[3] More than a hundred different provincial statutes funnel litigants to the Divisional Court for judicial redress,[4] including legislation that matters most to Ontario environmental lawyers, such as the EPA, the EAA and others.[5]
Accordingly, environmental lawyers who represent clients seeking to challenge or defend administrative decisions in this province have a vested interest in the day-to-day management of cases in the Divisional Court and therefore a good reason to take the time to consider Yatar and its procedural implications.
At first blush, the key lesson from Yatar is relatively clear: a statutory right of appeal on questions of law is not a substitute for judicial review. This means that if a party takes issue with a decision of the LAT – or any other tribunal whose governing statute contains a limited right of appeal – it will usually make sense to commence two concurrent proceedings in the Divisional Court challenging the same decision.
The lasting effects of Yatar are murkier. By eliminating a practice that was supported by precedent and grounded in legitimate concerns about judicial economy – for reasons which, in the author’s view, do not bare sustained scrutiny – the Supreme Court has injected uncertainty into the Divisional Court’s handling of concurrent proceedings. This means more complexity for litigants and less efficiency for justice system.
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