An important case concerning access to judicial review of administrative tribunal decisions is scheduled for November 15th before the Supreme Court of Canada.
Social assistance recipients have a statutory right to appeal certain decisions about their benefits to the Social Benefits Tribunal on questions of law. However, there are some decisions that they cannot appeal. For example, decisions about access to “discretionary benefits” to cover dental, medical, and other expenses cannot be appealed, nor can decisions that refuse an extension of time for reconsideration of an OW or ODSP decision. Social Benefits Tribunal decisions of mixed fact and law, such as the accuracy of overpayment calculations, also cannot be appealed. These decisions can only be judicially reviewed.
The Supreme Court of Canada’s decision in Yatar v. TD Insurance Meloche Monnex could have a significant impact on social assistance recipients in Ontario because it may determine their ability to challenge administrative decisions about their basic health, survival, and dignity. Individuals who disagree with a decision about their eligibility for social assistance income and benefits, but who have no right of appeal, need meaningful access to judicial review.
Background on the case
Ms. Yatar was injured in a car accident. Initially, her insurer paid accident benefits but later denied all benefits. Ms. Yatar applied to the Licencing Appeal Tribunal to dispute the insurer’s denial. However, the Tribunal found that her application was late and statute-barred based on a two-year limitation period. Ms. Yatar commenced an appeal and a judicial review application together before the Divisional Court. The legislation contains a right of appeal on questions of law only.
The main issue before the Supreme Court is whether judicial review will only be available in “rare cases” where the legislation contains a limited right of appeal. How the Supreme Court of Canada decides this appeal will impact Ontario social assistance recipients. This is because social assistance legislation, like the legislation governing the Licence Appeal Tribunal, provides a statutory right of appeal that is restricted to questions of law.
Why we’re intervening
Many individuals will have few (if any) alternative options for income support if social assistance is denied. Social assistance decisions can therefore have a serious impact on the health, dignity, and lives of individuals living in poverty. Because the stakes are so high, administrative decision makers have a heightened responsibility to ensure that their reasons demonstrate that they have considered the consequences of a decision, and that those consequences are justified in light of the facts and law. The Supreme Court previously stated that decisions with harsh consequences for the most vulnerable must be transparent, intelligible, and justified to the individuals they impact – consistent with the principle of “responsive justification”.
ISAC, together with our co-counsel from the CRO, will argue that if vulnerable individuals can challenge unreasonable determinations of fact and mixed fact and law only in rare circumstances, then what is the point of responsive justification? Restricting judicial review in statutory schemes that contain limited rights of appeal will create additional barriers for social assistance recipients, perpetuate their disadvantage, and threaten their dignity and access to the basic necessities they need to survive.
ISAC’s factum can be found in our Publications section here and is also posted on the Supreme Court of Canada’s website here.