Understanding Tribunals, Charter Rights, and Remedies in Canadian Administrative Law

 
 
Anatoly Dvorkin & Sara R. Cohen
Raviele Vaccaro LLP
969 Eglinton Avenue West
Toronto, ON, M6C 2C4
www.rvlaw.ca
 
The Commons Institute
Experts Sessions on Administrative Law: Practice Primers for 2012
March 22 & 23, 2012
 
Tribunals and the Charter pre 
R. 
v. 
Conway
 
Section 52(1) of the 
Constitution Act
Section 24(1) of the 
Charter
 
R. 
v. 
Conway
The Decision
How the law changed?
The Impact
Potential problems
 
Recent Tribunal Decisions and the Application of
Conway
 
Practice Tips
 
Section 52(1) of the 
Constitution Act
The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the
provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.
 
Section 24(1) of the 
Charter
Anyone whose rights or freedoms, as guaranteed by this
Charter, have been infringed or denied, may apply to a
court of competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the
circumstances
 
If an applicant submitted
that the tribunal should find
a 
legislative provision
constitutionally invalid or
inapplicable
 
 
Section 52(1) analysis
applied
Nova Scotia (Workers’
Compensation Board) 
v
.
Martin
, 2003 SCC 54
(S.C.C.)
 
If an applicant requested
that the tribunal provide a
personal remedy 
on the
basis that his/her 
Charter
remedies had been
infringed
 
Section 24(1) analysis
applied
Mills
 v. 
The Queen
, [1986] 1
SCR 863 (S.C.C.)
 
“when a law produces an unconstitutional
effect, the usual remedy lies under s.
52(1)…Section 24(1), by contrast, is generally
used as a remedy, not for unconstitutional
laws, but for unconstitutional government
acts committed under the authority of legal
regimes which are accepted as fully
unconstitutional” (paras. 59-60)
 
The Martin Test (under s. 52):
Does the administrative tribunal have jurisdiction, explicit or
implied, to decide questions of law?
Applying only valid laws
Explicit jurisdiction is found in the enabling legislation
Implied jurisdiction requires examination of statute as a
whole
If so, presumption that tribunal has jurisdiction
Has the presumption been rebutted?
An explicit withdrawal of authority; or
An examination of the statutory scheme clearly leads to
conclusion that the legislature intended to exclude the
Charter from the scope of the questions of law to be
addressed by the tribunal
 
The 
Mills
 Test (s.24):
Mills 
was a 1986 decision by the SCC that found
that a preliminary inquiry judge  was a court of
competent jurisidiction
A court of competent jurisdiction must possess:
1.
jurisdiction over the person;
2.
Jurisdiction over the subject matter; and
3.
Jurisdiction to grant the remedy sought
In 1995, 
Weber
 v. 
Ontario Hydro 
(SCC) held that the
Mills
 test applied to administrative tribunals as well
 
The 3
rd
 part of the test determinative was
determinative in most cases
3
rd
 part – whether tribunal has power to grant
a particular remedy
A functional and structural analysis
Examine the function of the tribunal
Examine the structure
 
Background:
1984: Mr. Conway found not guilty of sexual
assault with a weapon by reason of insanity
2006: ORB’s annual review of Mr. Conway’s
detention
Mr. Conway asked the ORB to exercise its statutory
powers to impose conditions on his detention at
CAMH and applied for s. 24 
Charter
 remedy for
alleged breach of rights 
 absolute discharge
ORB declined to hear 
Charter
 application because
not a “court of competent jurisdiction”
 
Appealed on 2 grounds:
ORB erred by making mere suggestions to CAMH
rather than imposing conditions
C of A unanimously agreed ORB erred
ORB erred in holding that not a “court of competent
jurisdiction”
C of A split:
Majority: ORB not court of competent jurisdiction wrt
remedy of absolute discharge
Minority (Lang J.A.) – nature of remedy sought ought not
be construed in “unduly narrow manner”
 
Abella J. widely framed issue: relationship
between the 
Charter
, its remedial provisions and
administrative tribunals
Review of history of jurisdiction of administrative
tribunals:
Mills
 – whether “court of competent jurisdiction” under s.
24(1)
Slaight Communications 
– exercise of statutory
discretion is subject to Charter and Charter values
Cuddy Chicks 
trilogy – specialized tribunals with
expertise and authority to decide questions of law are in
best position to hear and decide constitutional questions
related to their statutory mandate (this formed the
underpinning for 
Martin
 test)
 
2 part test to determine whether
administrative tribunal can apply 
Charter
:
 
Part I:
does the tribunal have jurisdiction, explicit or
implicit, to decide 
questions of law
? If it does, and
unless it is clearly demonstrated that the legislature
intended to exclude the 
Charter
 from the tribunal’s
jurisdiction, the tribunal = court of competent
jurisdiction and can apply 
Charter
 and 
Charter
remedies when resolving matters properly before it
[para. 81];
 
If yes to Part I, then
“…the remaining question is 
whether the tribunal can
grant the particular remedy sought
, given the
relevant statutory scheme. Answering this question is
necessarily an exercise in discerning 
legislative
intent
. On this approach, 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.” [para
82]
 
SCC disagreed that s. 24 of 
Charter
 freed ORB
from statutory limits on its jurisdiction 
frustrate board’s mandate and would
contradict Parliament’s intention
 
Tribunals can vindicate 
Charter
 rights by
exercising regular statutory powers and
processes in ways that are in line with 
Charter
values
 
[101] “ A finding that the Board is entitled to
grant Mr. Conway an absolute discharge
despite its conclusion that he is a significant
threat to public safety, or to direct CAMH to
provide him with a particular treatment, would
be a clear contradiction of Parliament’s intent.
Given the statutory scheme and the
constitutional considerations, the Board cannot
grant these remedies to Mr. Conway.”
 
In 
Conway, 
the decision that ORB could
not grant the charter remedy sought
hinged on the following:
Criminal Code, the statutory scheme
under which the ORB operates, does
not permit an absolute discharge in
circumstances where the accused
continues to pose a significant threat
to the safety of the public
 
Tribunals to play primary role in determining
Charter issues falling within their jurisdiction
Most important inquiry = whether tribunal can
consider questions of law (remedy = secondary
concern)
Charter
 values (instead of 
Charter
 rights)
Investigative vs. adjudicative tribunals
Remedies available to tribunal 
 
Charter
 doesn’t
enhance powers of tribunal; remedy must be one
available to tribunal itself
Conway
 doesn’t change that tribunals do not
have authority to grant declarations of
constitutional invalidity
 
Let’s take a look…
 
Health Services Appeal and Review Board
Part of remedy sought was finding that s. 6(3) of
MHARBA contrary to Charter and of no effect
s. 6.(3) of 
Ministry of Health and Long-Term Care
Appeal and Review Board’s Act
, 1998, S.O. 1998
“…does not allow the Board to even “inquire” into
the constitutional validity of an Act or Regulation”
Enacting statutory provisions specifically
prohibit analysis
Needs to be answered in another forum
 
 
Most post-
Conway
 decisions have held that
tribunals have jurisdiction to hear 
Charter
 or
constitutional arguments
 
 
Argument that Hellenic society was
unconstitutional based on discrimination re
ancestry, ethnicity
HRTO has jurisdiction to decide questions of
law and therefore can apply Charter
However, the specific remedy being sought
was against legislative intent 
 specifically
dealt with in section 18 of Human Rights
Code
 
LSUC hearing panel held that it certainly has
jurisdiction to make findings of law, and has
power to decide constitutional issues
BUT notes that in Conway, cannot declare any
part of an Act invalid
Candidate was seeking remedy re governance
of LSUC as a whole 
 panel declined, finding
such a matter more appropriately dealt with
before court of original jurisdiction
 
Relying on 
Conway
, held that Discipline
Committee of CPSO has jurisdiction to determine
Charter issues
[184] “The effect of 
Conway
 is that an
administrative tribunal with the authority to apply
s. 
52
 of the 
Constitution Act, 1982
 will also have
the authority to grant remedies under s. 24(1) of
the 
Charter
. The only limit to this power is if the
remedy sought is not the kind of remedy that the
Legislature intended the tribunal to grant.”
Div. Ct. declined to interfere with findings of
tribunal
 
Ontario Information and Privacy Commission
held that it had jurisdiction to determine
constitutional arguments
Quoted para. 78 
Conway
,
… administrative tribunals with the power to
decide questions of law, and from whom
constitutional jurisdiction has not been clearly
withdrawn, have the authority to resolve
constitutional questions that are linked to
matters properly before them.
 
Examples of tribunals that have
explicitly
 held (or it has been
held) that they can address
Charter
 issues:
ORB (Conway, SCC)
Discipline Committee of CPSO
(
Sazant
, Div. Ct.)
Ontario Information and Privacy
Commission (
Port Hope
)
Immigration Divison Board
(
Stables
, Federal Court)
Child and Family Services Review
Board (
S.I.
 v. 
Youthdale
)
Law Society Hearing Panel (
Kopyto
)
Human Rights Tribunal of Ontario
(
Kostiuk
)
Durham Regional Police Services
Board (
J.N.
 v. 
Durham Regional
Police Service
, Ont. SCJ)
 
Examples of tribunals that have
explicitly held that they cannot
address 
Charter
 issues:
iss
Health Services Appeal Review
Board (
E.H
.)
 
If you think there is a 
Charter
 or constitutional
argument to be made make it at the Tribunal
level
See 
Stables 
case
Consider seeking 
Charter
 remedy, or, further and
in the alternative, a remedy in line with 
Charter
values
Remember that tribunal cannot grant declaration
of invalidity, only can choose not to enforce or
apply
BUT 
Charter
 challenge made to tribunal
considerably more expeditious, less time
consuming and less expensive
 
Please feel free to direct any follow up
questions to either:
Anatoly Dvorkin at 
anatoly@rvlaw.ca
 or
@
DvorkinLaw
; or
Sara R. Cohen at 
sara@rvlaw.ca
 or
@
fertilitylaw
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Exploring the implications of Section 52(1) of the Constitution Act and Section 24(1) of the Charter on administrative law in Canada. Discussing how tribunals handle potential constitutional issues, provide personal remedies, and analyze the impacts of legal decisions. Dive into the complexities of constitutional law applications within the realm of administrative tribunals.


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  1. Anatoly Dvorkin & Sara R. Cohen Raviele Vaccaro LLP 969 Eglinton Avenue West Toronto, ON, M6C 2C4 www.rvlaw.ca The Commons Institute Experts Sessions on Administrative Law: Practice Primers for 2012 March 22 & 23, 2012

  2. Tribunals and the Charter pre R. v. Conway Section 52(1) of the Constitution Act Section 24(1) of the Charter R. v. Conway The Decision How the law changed? The Impact Potential problems Recent Tribunal Decisions and the Application of Conway Practice Tips

  3. Section 52(1) of the Constitution Act The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Section 24(1) of the Charter Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied, may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances

  4. If an applicant submitted that the tribunal should find a legislative provision constitutionally invalid or inapplicable If an applicant requested that the tribunal provide a personal remedy basis that his/her Charter remedies had been infringed legislative provision constitutionally invalid or inapplicable personal remedy on the Charter remedies had been infringed Section 24(1) analysis applied Mills v. The Queen, [1986] 1 SCR 863 (S.C.C.) Section 52(1) analysis applied Nova Scotia (Workers Compensation Board) v. Martin, 2003 SCC 54 (S.C.C.)

  5. when a law produces an unconstitutional effect, the usual remedy lies under s. 52(1) Section 24(1), by contrast, is generally used as a remedy, not for unconstitutional laws, but for unconstitutional government acts committed under the authority of legal regimes which are accepted as fully unconstitutional (paras. 59-60)

  6. The Martin Test (under s. 52): Does the administrative tribunal have jurisdiction, explicit or implied, to decide questions of law? Applying only valid laws Explicit jurisdiction is found in the enabling legislation Implied jurisdiction requires examination of statute as a whole If so, presumption that tribunal has jurisdiction Has the presumption been rebutted? An explicit withdrawal of authority; or An examination of the statutory scheme clearly leads to conclusion that the legislature intended to exclude the Charter from the scope of the questions of law to be addressed by the tribunal

  7. The Mills Test (s.24): Mills was a 1986 decision by the SCC that found that a preliminary inquiry judge was a court of competent jurisidiction A court of competent jurisdiction must possess: 1. jurisdiction over the person; 2. Jurisdiction over the subject matter; and 3. Jurisdiction to grant the remedy sought In 1995, Weber v. Ontario Hydro (SCC) held that the Mills test applied to administrative tribunals as well

  8. The 3rd part of the test determinative was determinative in most cases 3rd part whether tribunal has power to grant a particular remedy A functional and structural analysis Examine the function of the tribunal Examine the structure

  9. Background: 1984: Mr. Conway found not guilty of sexual assault with a weapon by reason of insanity 2006: ORB s annual review of Mr. Conway s detention Mr. Conway asked the ORB to exercise its statutory powers to impose conditions on his detention at CAMH and applied for s. 24 Charter remedy for alleged breach of rights absolute discharge ORB declined to hear Charter application because not a court of competent jurisdiction

  10. Appealed on 2 grounds: ORB erred by making mere suggestions to CAMH rather than imposing conditions C of A unanimously agreed ORB erred ORB erred in holding that not a court of competent jurisdiction C of A split: Majority: ORB not court of competent jurisdiction wrt remedy of absolute discharge Minority (Lang J.A.) nature of remedy sought ought not be construed in unduly narrow manner

  11. Abella J. widely framed issue: relationship between the Charter, its remedial provisions and administrative tribunals Review of history of jurisdiction of administrative tribunals: Mills whether court of competent jurisdiction under s. 24(1) Slaight Communications exercise of statutory discretion is subject to Charter and Charter values Cuddy Chicks trilogy specialized tribunals with expertise and authority to decide questions of law are in best position to hear and decide constitutional questions related to their statutory mandate (this formed the underpinning for Martin test)

  12. 2 part test to determine whether administrative tribunal can apply Charter: Part I: does the tribunal have jurisdiction, explicit or implicit, to decide questions of law unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal s jurisdiction, the tribunal = court of competent jurisdiction and can apply Charter and Charter remedies when resolving matters properly before it [para. 81]; questions of law? If it does, and

  13. If yes to Part I, then the remaining question is whether the tribunal can grant the particular remedy sought relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. [para 82] whether the tribunal can grant the particular remedy sought, given the legislative intent. On this approach, what will always be at issue

  14. Part I = similar to Martin (s. 52) Part II = similar to Mills Conway test

  15. SCC disagreed that s. 24 of Charter freed ORB from statutory limits on its jurisdiction frustrate board s mandate and would contradict Parliament s intention Tribunals can vindicate Charter rights by exercising regular statutory powers and processes in ways that are in line with Charter values

  16. [101] A finding that the Board is entitled to grant Mr. Conway an absolute discharge despite its conclusion that he is a significant threat to public safety, or to direct CAMH to provide him with a particular treatment, would be a clear contradiction of Parliament s intent. Given the statutory scheme and the constitutional considerations, the Board cannot grant these remedies to Mr. Conway.

  17. In Conway, the decision that ORB could not grant the charter remedy sought hinged on the following: Criminal Code, the statutory scheme under which the ORB operates, does not permit an absolute discharge in circumstances where the accused continues to pose a significant threat to the safety of the public

  18. Tribunals to play primary role in determining Charter issues falling within their jurisdiction Most important inquiry = whether tribunal can consider questions of law (remedy = secondary concern) Charter values (instead of Charter rights) Investigative vs. adjudicative tribunals Remedies available to tribunal Charter doesn t enhance powers of tribunal; remedy must be one available to tribunal itself Conway doesn t change that tribunals do not have authority to grant declarations of constitutional invalidity

  19. Lets take a look

  20. Cant apply Charter remedies because can t decide questions of law Can decide questions of law and Charter applications, but can t provide remedy sought Can decide questions of law but Charter excluded How have tribunals applied Conway? Can decide questions of law, apply Charter and can provide remedy sought

  21. Health Services Appeal and Review Board Part of remedy sought was finding that s. 6(3) of MHARBA contrary to Charter and of no effect s. 6.(3) of Ministry of Health and Long-Term Care Appeal and Review Board s Act, 1998, S.O. 1998 does not allow the Board to even inquire into the constitutional validity of an Act or Regulation Enacting statutory provisions specifically prohibit analysis Needs to be answered in another forum

  22. Most post-Conway decisions have held that tribunals have jurisdiction to hear Charter or constitutional arguments

  23. Argument that Hellenic society was unconstitutional based on discrimination re ancestry, ethnicity HRTO has jurisdiction to decide questions of law and therefore can apply Charter However, the specific remedy being sought was against legislative intent specifically dealt with in section 18 of Human Rights Code

  24. LSUC hearing panel held that it certainly has jurisdiction to make findings of law, and has power to decide constitutional issues BUT notes that in Conway, cannot declare any part of an Act invalid Candidate was seeking remedy re governance of LSUC as a whole panel declined, finding such a matter more appropriately dealt with before court of original jurisdiction

  25. Relying on Conway, held that Discipline Committee of CPSO has jurisdiction to determine Charter issues [184] The effect of Conway is that an administrative tribunal with the authority to apply s. 52 of the Constitution Act, 1982 will also have the authority to grant remedies under s. 24(1) of the Charter. The only limit to this power is if the remedy sought is not the kind of remedy that the Legislature intended the tribunal to grant. Div. Ct. declined to interfere with findings of tribunal

  26. Ontario Information and Privacy Commission held that it had jurisdiction to determine constitutional arguments Quoted para. 78 Conway, administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them.

  27. Examples of tribunals that have explicitly held (or it has been held) that they can address Charter issues: ORB (Conway, SCC) Discipline Committee of CPSO (Sazant, Div. Ct.) Ontario Information and Privacy Commission (Port Hope) Immigration Divison Board (Stables, Federal Court) Child and Family Services Review Board (S.I. v. Youthdale) Law Society Hearing Panel (Kopyto) Human Rights Tribunal of Ontario (Kostiuk) Durham Regional Police Services Board (J.N. v. Durham Regional Police Service, Ont. SCJ) Examples of tribunals that have explicitly held that they cannot address Charter issues:iss Health Services Appeal Review Board (E.H.)

  28. If you think there is a Charter or constitutional argument to be made make it at the Tribunal level See Stables case Consider seeking Charter remedy, or, further and in the alternative, a remedy in line with Charter values Remember that tribunal cannot grant declaration of invalidity, only can choose not to enforce or apply BUT Charter challenge made to tribunal considerably more expeditious, less time consuming and less expensive

  29. Please feel free to direct any follow up questions to either: Anatoly Dvorkin at anatoly@rvlaw.ca or @DvorkinLaw; or Sara R. Cohen at sara@rvlaw.ca or @fertilitylaw

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