Manitoba Court Of Appeal Rules That Appeal Right Does Not Preclude Right To Judicial Review

• Law Firm: MLT Aikins LLP
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Cannabis & Hemp, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Author: Ms Helga D. Van Iderstine, Katelyn Jones and Jennifer Sokal
• Published date: 28 April 2023

A statutory right to an appeal does not preclude the appellant from also seeking judicial review of the same decision in the same proceeding, according to a recent Manitoba Court of Appeal (the "MBCA" or the "Court") ruling.

The MBCA's decision in Smith v The Appeal Commission, 2023 MBCA 23¹ opens the door for those seeking to overturn an administrative decision to attack that decision on more than one front. Further, the Court has made clear that where a statute describes a decision as final and not being subject to appeal, this provision does not necessarily prohibit judicial review. Judicial review is the inherent power of a superior court to review the decision of an administrative decision-maker to determine if the decision was reasonable or correct (depending on the standard of review² that applies in a given case).

In this decision, the Court encouraged the Legislature to reform judicial review in Manitoba. Given the recency of this decision, it remains to be seen whether the Legislature will do so.

Background

The appellant, Smith, was prescribed medical cannabis, which was supplied to Smith in accordance with federal regulations. Smith submitted an application for compensation under the Manitoba Compensation for Victims of Crime Program (the "Program") for reimbursement of the cost of the medical cannabis in treating her PTSD. The Program Director denied the claim based on a medical consultant's opinion that there is little evidence as to the efficacy of medical cannabis to treat PTSD. Smith applied for reconsideration and the claim was again denied by the Director based on information provided by the medical consultant.

Smith appealed the decision denying reconsideration to the Appeal Commission, which denied the appeal (the "Decision").

Smith appealed the Decision to the Court of King's Bench in accordance with s. 67 of The Victims' Bill of Rights (Manitoba) (the "VBR"), which provides as follows:

Appeal to King's Bench

67(1) A person who receives notice under section 66 may, within 30 days, appeal the decision of the appeal board to the Court of King's Bench.

Grounds for appeal

67(2) An appeal may be taken only on a question of law or jurisdiction.

Within the same proceeding, Smith also sought judicial review of the Decision on the basis that the Decision was unreasonable. However, Smith withdrew the statutory appeal at the hearing of the matter in favour of proceeding with the judicial review.

The Application Judge found it was inappropriate...