Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.

Latest News

  1. The SCC will release its judgment in Yatar v. TD Insurance Meloche Monnex on Friday, March 15, 2024. The case concerns the limitation of judicial review when there has been a statutory appeal of an administrative decision.
  2. On March 8, 2024, the SCC released R. v. Kruk, 2024 SCC 7. The Court allowed the two appeals and restored the sexual assault convictions. The Court declined to recognize that the rule against ungrounded common‑sense assumptions gives rise to an error of law.
  3. 🔮91% correctly predicted the result.

Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the cases below.

Cases to Predict: Limiting Judicial Review

Appeal by leave from Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446

SCC factums and webcast

What Happened?

Background: The appellant Ummugulsum Yatar was injured in a motor vehicle accident. Ms. Yatar applied to her insurer, TD Insurance Meloche Monnex, for benefits. TD initially paid those benefits, but a year later and after insurance medical examinations, TD denied Ms. Yatar’s claims. Ms. Yatar brought an application before the Licence Appeal Tribunal (LAT) to challenge the denial. The LTA dismissed the application. She requested a reconsideration of the LAT decision, which was also dismissed.

Divisional Court: Ms. Yatar brought an appeal on questions of law and an application for judicial review of the LAT reconsideration decision before the Divisional Court. The Divisional Court dismissed the appeal concluding that the appellant had not identified any issue of law and that only a question of law was permitted on an appeal. The Divisional Court also dismissed the judicial review and concluded that there were “no exceptional circumstances here” that would lead the Court to consider a judicial review application when there was a statutory right of appeal.

Court of Appeal: The Court of Appeal dismissed Ms. Yatar’s further appeal of only the Divisional Court’s refusal to exercise its discretion to consider the judicial review application. The Court of Appeal said it was unfortunate that the Divisional Court used the language “exceptional circumstances” as that may create confusion in cases involving other administrative decision-makers. However, it confirmed that the Divisional Court was correct in concluding that the existence of an adequate alternative remedy was a valid reason not to exercise its discretion to hear and determine a judicial review application.

What Was Argued at the SCC?

Appellant: The appellant argued that the courts below disregarded the changes brought about by Vavilov, which called for a more robust form of review of adminstrative decisions. The decisions below create a situation where decisions that are factually wrong become close to being immune from challenge by way of judicial review if the legislature has limited available appeal rights.

Respondent: TD argued that the Ontario legislature intended to limit the courts’ involvement in SABS disputes and the Divisional Court did not err in exercising its discretion to refuse to hear the judicial review application. The other respondent, the LAT, argued that the Court of Appeal was correct in holding that the discretion to entertain judicial review on questions falling outside the scope of a statutory appeal should be exercised only in rare cases. This does not create an overly deferential standard of review and is consistent with Vavilov.

What Else Should You Know Before Making a Prediction?

This decision is coming out at about 3 months since the hearing date, which is two months ahead of the 5 month overall average and well ahead of how long it takes for the Court’s more significant decisions. Administrative law decisions that come to mind are Dunsmuir (almost 10 months), Vavilov (over 12 months), Mason (almost 10 months), and Abrametz (8 months & it was about lengthy delays). So while this is a decision that many have been looking forward to, I suspect Paul Daly’s Iron Law will apply: “the more you look forward to a Supreme Court of Canada decision on administrative law, the less consequential it is likely to be.” I could see the SCC, in light of Vavilov, potentially adding some factors to or clarifying the test from Strickland v. Canada (Attorney General), 2015 SCC 37 which guides courts in exercising their discretion to refuse to hear a judicial review application on its merits. However, I don’t see the result changing here. I’m leaning towards appeal dismissed.

Previous Prediction: Common-sense Assumptions

On March 8, 2024, the SCC released its decision in R. v. Kruk, 2024 SCC 7.

Held (6:1, Rowe J. concurring): Appeal allowed and convictions restored. The rule against ungrounded common-sense assumptions should not be recognized as a new basis for appellate courts to review credibility and reliability findings by trial judges.

Key Points:

  • The proposed rule against ungrounded common-sense assumptions treats any and all factual assumptions drawn in the course of testimonial assessments as errors of law and thereby represents an unjustified departure from well‑established principles governing testimonial assessment and appellate standards of review.
  • The faulty use of common‑sense assumptions in criminal trials should continue to be controlled by existing standards of review and rules of evidence.
  • Like with other factual findings, credibility and reliability assessments, common‑sense assumptions will be reviewable only for palpable and overriding error.
  • The proposed rule is not a logical extension of the prohibition against myths and stereotypes about sexual assault complainants. Instead, it could open a back door to prohibited twin‑myth reasoning by drastically expanding the scope of permissible questioning into a complainant’s sexual history.

Predictions: 91% of players correctly predicted that the appeals would be allowed.

-Tom Slade

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