August 24, 2022
In our article What is judicial review? we explained the difference between judicial review and an appeal. A judicial review is also not an action for damages.
Choosing the correct procedural path can avoid getting stuck in thorny issues of civil procedure and administrative law.
Chartrand v. Healthcare of Ontario Pension Plan is a recent Divisional Court decision that emphasizes the importance of understanding the difference between a public decision, which is subject to judicial review, and a private decision, to which judicial review cannot apply. Confusion may arise where the issue involves interpretation of a statute by what a party which can be confused with a government agency.
The dispute in that case involved a claim for survivor benefits under a HOOPP pension. Mrs. Chartrand, the registered beneficiary of the pension plan, sued in Superior Court seeking damages but then abandoned that action against HOOPP and applied for judicial review of the decision. The Superior Court action was then dismissed as an improper collateral attack on the decision in which the same issue – whether the other claimant was the spouse of the deceased – had to be decided as in the judicial review. Ms. Chartrand acted on her own behalf.
As the Divisional Court found, HOOPP is a private pension plan, even though it provides pension benefits regulated by statute to public employees. This makes it a private decision, and not subject to judicial review. The Divisional Court therefore dismissed her application. Assuming she did not appeal the Superior Court dismissal, she is left without a remedy. Even with an appeal, she has wasted valuable time and costs. She may have missed a time limit.
Even if she was able to pursue a judicial review, damages are not an available remedy, and the other claimant to the money would not be a party, so she would have a hard time recovering monies paid to him.
Her rights were never determined on the merits, because of this procedural thicket.
Since our justice system is supposed to put a priority on resolving matters on their merits, whatever Mrs. Chartrand’s rights may have been, she deserved a better opportunity to prove them.
This case illustrates some of the dangers of being self represented. Mrs. Chartrand’s claim may have seemed simple and straightforward to her but if she had consulted a lawyer knowledgeable about Civil Procedure and administrative law, she would likely have had an opportunity to pursue her claim through to a determination on the merits.
WHAT WEILERS LLP MAY DO FOR YOU
Not every lawyer or law firm is experienced in both Civil Procedure and administrative law. The Weilers LLP team is familiar with both areas. We are used to analyzing complex fact situations and making recommendations to clients about the most cost effective pathway to the best legal result. We work with clients of all sorts, from multinationals to individuals with problems like Mrs. Chartrand. Whether a court proceeding has already been started, or whether you need advice what proceeding is appropriate, we would be happy if you give us a call to discuss whether Weilers LLP are the right lawyers or you.