r v. TD Insurance Meloche Monnex, 2023 ONSC 338

CITATION : Alayche v. Landlord and Tenant Board (Ontario), 2023 ONSC 338 DIVISIONAL COURT FILE NO.: 796/21 DATE: 20230112 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: KAMAL ALAYCHE v. LANDLORD AND TENANT BOARD BEFORE: D.L. Corbett J. Jason Tam , for the Landlord and Tenant Board Nolan Wilson , for the Applicant HEARD: September 23, 2022 REASONS FOR DECISION [ 1 ] The applicant seeks judicial review of decisions of the Landlord and Tenant Board without first exhausting appeal rights pursuant to s.210 of the Residential Tenancies Act .

The landlord and Tenant Board moves to quash the application on the basis that judicial review may not be sought where an applicant has not exhausted their statutory appeal rights. [ 2 ] When this motion was initiated, the moving party relied on a long line of cases in which this court has required that statutory appeal rights be exhausted before recourse to an application for judicial review.

The moving party also relied on the recent decision of this court affirming that long line of authority and making it clear that judicial review will rarely be available in a practical sense where there is a statutory right of appeal: Yatar v. TD Insurance Meloche Monnex , 2021 ONSC 2507 . Prior to argument of this motion, the Court of Appeal released its decision in Yatar ( 2022 ONCA 446 ).

The Court of Appeal held that, not only may an application for judicial review be brought before appeal rights have been exhausted, but also that such an application shall be brought at the same time as and be heard at the same time as an appeal, to reduce delay and multiple proceedings. A motion for leave to appeal from this decision to the Supreme Court of Canada is pending (SCC docket 40348). [ 3 ] Of course, an appeal from the LTB may be brought without an application for judicial review.

Based on Yatar , an application for judicial review shall be brought at the same time as an appeal, not after appeal rights have been exhausted. Nothing in the Court of Appeal’s decision in Yatar establishes that it is a condition precedent to seeking judicial review that an appeal must also be brought. It is arguable that in providing a process to hear appeals and applications for judicial review at the same time, the principle that appeal rights must be asserted has been displaced.

Yatar does not address this issue directly. [ 4 ] In my view, the jurisprudential ground may have shifted so significantly as a result of the Court of Appeal’s decision in Yatar that it is now not clear that an application for judicial review may not be brought without also asserting appeal rights. This appears to be an arguable point and is important to practice in this court. It should be decided by a panel of this court.

In the context of this case, I would not refer this motion to a panel, but rather would direct that the issue may be raised as a defence to the application. [ 5 ] The motion to quash is dismissed, without prejudice to any party advancing this argument before the panel hearing the application. There shall be no order as to costs of the motion. _______________________________ D.L. Corbett J. January 12, 2023