Administrative Law – Charter –
Remedies – Jurisdiction of Administrative
Mr. Conway, a patient at CAMH, brought an application before the
Ontario Review Board (the "ORB") 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.
Existing case law establishes that expert administrative
tribunals should play a primary role in determining Charter issues
that fall within their specialized jurisdiction while exercising
their statutory functions. Such tribunals, 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
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. While the ORB was a court of competent jurisdiction
for the purpose of awarding Charter remedies, Parliament had
specifically removed from it the jurisdiction to grant an absolute
discharge in circumstances like those at hand.
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.
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