The Supreme Court of Canada, in its recent decision in
"R. v. Conway", has removed any lingering doubts
that administrative tribunals have the authority to grant
"Charter" remedies. Whereas it was previously
permitted for an administrative tribunal, proceeding on a
"remedy by remedy" analysis, to award a Charter
remedy, the Supreme Court has now made it easier for these
adjudicative bodies to ascertain their authority to award
Charter remedies. By turning the inquiry about
jurisdiction into an institutional one, the result will almost
certainly be an increase in the number of cases and areas in which
Charter remedies are sought.
The Supreme Court, in Cooper v. Canada (Human Rights
Commission), found that the Charter belongs to the
people and that, to be meaningful, the Charter must find
its expression in the decisions of administrative tribunals.
Reiterating that the denial of early access to remedies is a denial
of an appropriate and just remedy, the Supreme Court of Canada, in
R. v. Conway, took this expression one step further, and
held that there was no reason why an administrative tribunal should
not be considered a "court of competent jurisdiction" to
grant Charter remedies, provided that this does not offend
its enabling statute.
At issue in R. v. Conway was an application before the
Ontario Review Board ("ORB") by Mr. Conway, a patient at
CAMH, for (among other things) an absolute discharge pursuant to s.
24(1) of the Charter. The ORB concluded that it had no
jurisdiction to consider Mr. Conway's Charter claim.
On appeal, the Ontario Court of Appeal confirmed that the ORB was
not a court of competent jurisdiction for the purpose of granting
an absolute discharge under s. 24(1) of the Charter. The
question for the Supreme Court, therefore, was whether the ORB
possessed the necessary jurisdiction to grant remedies pursuant to
s. 24(1) of the Charter.
Writing for a unanimous court, Justice Abella answered the
question before the court in the positive, but ultimately dismissed
Mr. Conway's appeal.
According to the court, existing case law establishes that
expert administrative tribunals should play a primary role in
determining Charter issues that fall within their
specialized jurisdiction and that in exercising their statutory
functions, and in fact have the authority – and the duty
– to consider and apply the Constitution. Accordingly, it
was appropriate and consistent with the court's gradual
expansion of the relationship between administrative tribunals and
the Charter to adopt a merger of the three distinct
constitutional streams flowing from the Mills,
Slaight, and Cuddy Chicks cases.
Therefore, when a remedy under s. 24(1) of the Charter
is sought from an administrative tribunal, the tribunal must first
determine whether it has the jurisdiction, explicit or implied, to
decide questions of law. If it does, and there is no clear evidence
that the legislature intended to exclude the Charter from
the tribunal's jurisdiction, the tribunal can consider and
apply the Charter and Charter remedies. Once this
preliminary inquiry has been resolved in the affirmative, the
remaining question is whether, in light of the relevant statutory
scheme, the tribunal can grant the particular remedy sought. This
is a question of legislative intent, and "what will always be
at issue is whether the remedy sought is the kind of remedy that
the legislature intended would fit within the statutory framework
of the particular tribunal", keeping in mind the
tribunal's statutory mandate, structure, and function.
This decision broadens the power of administrative tribunals to
award Charter remedies, which had already been found to
exist in the jurisprudence, by changing the focus of the inquiry
into jurisdiction from a "remedy by remedy" approach to
an institutional one. However, the court was careful to point out
that administrative tribunals remain creatures of statute, and that
Parliament could constrain their jurisdiction to grant
It will be interesting, in the coming months, to monitor not
only the frequency with which administrative tribunals are called
upon to grant Charter remedies, but also to see how
generous administrative tribunals will be in interpreting their
enabling statutes for the purposes of determining legislative
intent with respect to the granting of constitutional remedies. One
can surmise that this decision will result in an increase in
Charter claims before administrative tribunals, with the
concomitant delays and increase in costs. Furthermore, one would
expect that, at least for the early cases, there will be an
increase in the frequency with which courts are asked to review the
decisions of administrative tribunals in that respect, thereby
leading to additional delays and costs.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).