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Administrative Tribunals and Charter Relief

Published in the June 2010 issue of Litigation Notes - View Article

The Supreme Court of Canada concludes that the Ontario Review Board is a “court of competent jurisdiction” and can therefore grant relief under Canada’s Charter of Rights and Freedoms.

The Supreme Court of Canada recently released a decision with potentially serious consequences for administrative tribunals in Canada. The matter related to Paul Conway, who was found not guilty by reason of insanity on a charge of sexual assault with a weapon in 1984. He has been detained in various mental health facilities ever since, primarily the maximum secure unit at Penetanguishene Mental Health Centre.

At his mandatory annual review hearing before the Ontario Review Board (“ORB”) in 2005, Mr. Conway was ordered transferred from Penetanguishene to a medium secure unit at the Centre for Addiction and Mental Health (“CAMH”) in Toronto.

Prior to his annual review hearing in 2006 Mr. Conway sent a Notice of Constitutional Question to the ORB, CAMH and the Attorneys General of Ontario and Canada, alleging various breaches of the Charter of Rights and Freedoms (“Charter”). These alleged breaches related primarily to the unsatisfactory environment at CAMH and to the manner in which he was treated by staff. He claimed that the appropriate remedy for these alleged Charter breaches was an absolute discharge. Section 24(1) of the Charter states that “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”. The ORB concluded that Mr. Conway continues to represent a significant threat to the safety of the public and ordered that he continue to be detained at CAMH. The Board also concluded that it was not a “court of competent jurisdiction” within the meaning of section 24(1) of the Charter and did not have the jurisdiction to consider Mr. Conway’s Charter claims. The Board’s decision was upheld by the Ontario Court of Appeal and Mr. Conway appealed to the Supreme Court of Canada.

Writing for a full and unanimous bench in the Supreme Court of Canada, Justice Abella begins by stating that “we do not have one Charter for the courts and another for administrative tribunals”. She goes on to consider three separate lines of cases which have addressed the Charter jurisdiction of administrative tribunals. The first relevant wave of cases commenced with Mills v. The Queen in 1986. In Mills, it was determined that a provincial court judge sitting as a preliminary inquiry court was not a “court of competent jurisdiction” for the purpose of ordering a stay of proceedings for an alleged Charter violation. The case established a test for determining whether or not a court was able to grant Charter relief. Relief was available if the court had jurisdiction over the parties, jurisdiction over the subject matter and the ability to grant the remedy sought.

In Weber v. Ontario Hydro, the Supreme Court of Canada concluded that a labour arbitrator appointed under the Ontario Labour Relations Act was a court of competent jurisdiction for the purpose of granting damages and Charter relief. In that case Chief Justice McLachlin concluded that “while the informal processes of… tribunals might not be entirely suited to dealing with constitutional issues, clear advantages to the practice exist. Citizens are permitted to assert their Charter rights in a prompt, inexpensive, informal way. The parties are not required to duplicate submissions on the case in two different fora, for determination of two different legal issues. A specialized tribunal can quickly sift the facts and compile a record for the reviewing court. The specialized competence of the tribunal may provide assistance to the reviewing court”.

The following year, the Supreme Court decided Mooring v. Canada (National Parole Board). In that case the court concluded that the National Parole Board was not a court of competent jurisdiction for the purpose of excluding evidence under the Charter. Justice Major, with Chief Justice McLachlin concurring, wrote a vigorous dissent in which he criticized the “implicit resurrection of the idea, rejected in Weber, that only courts could be ‘courts of competent jurisdiction’”.

In summarizing the Mills line of cases Justice Abella points out that the Supreme Court has previously accepted that the Mills test applies to courts as well as to administrative tribunals. She also points out that the first two steps of the three-pronged Mills test, namely “jurisdiction over the parties” and “jurisdiction over the subject matter” have almost never been relied upon. The inquiry has almost always turned on whether the court or tribunal had jurisdiction to award the particular remedy sought.

The second line of cases considered by the Court were those following Slaight Communications Inc. v. Davidson. The upshot of this line of cases can be summarized in the words of Justice Abella as standing for the principle that “…statutory discretion must be exercised in accordance with the boundaries imposed by the statute, the principles of the rule of law and of administrative law, the fundamental values of Canadian society, and the principles of the Charter”. As Justice Lamer stated in Slaight:

“The adjudicator is a statutory creature: he is appointed pursuant to a legislative provision and derives all his powers from the statute. As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied…. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. Accordingly, an adjudicator exercising delegated powers does not have the power to make an order that would result in an infringement of the Charter, and he exceeds his jurisdiction if he does so. [Emphasis in original; pp. 1077-78.]”

The third line of cases is known as the “Cuddy Chicks Trilogy”, so named after the 1991 case of Cuddy Chicks Ltd. v. Ontario (Labour Relations Board). As stated by Justice Abella, these cases dealt with “whether administrative tribunals could decide the constitutionality of the provisions of their own statutory schemes and decline to apply them because they are ‘of no force or effect’ under section 52(1) of the Constitution Act, 1982.

Justice Abella points out that the main principles emerging from the Cuddy Chicks Trilogy were affirmed and synthesized by Justice Gonthier in Nova Scotia (Workers Compensation Board) v. Martin in which he stated that the following determines whether it is within an administrative tribunal’s jurisdiction to subject a legislative provision to Charter scrutiny:

Under the tribunal’s enabling statute, does the administrative tribunal have jurisdiction, explicit or implied, to decide questions of law arising under a legislative provision? If so, the tribunal is presumed to have the jurisdiction to determine the constitutional validity of that provision under the Charter.
Does the tribunal’s enabling statute clearly demonstrate that the legislature intended to exclude the Charter from the tribunal’s jurisdiction? If so, the presumption in favour of Charter jurisdiction is rebutted.”

Summarizing these three lines of jurisprudence, Justice Abella makes the following observations:

1. 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.

2. They must act consistently with the Charter and its values when exercising their statutory functions.

3. Two decades of jurisprudence has confirmed the practical advantages and constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals.

4. The denial of early access to remedies is a denial of an appropriate and just remedy.

5. A scheme that favours bifurcating claims is inconsistent with the well-established principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal’s specialized statutory jurisdiction.

6. If expert and specialized tribunals with the authority to decide questions of law are in the best position to decide constitutional questions when a remedy is sought under section 52 of the Constitution Act, 1982, there is no reason why such tribunals are not also in the best position to assess constitutional questions when a remedy is sought under section 24(1) of the Charter.

Justice Abella then goes on to conclude that:

1. When a remedy is sought from an administrative tribunal under section 24(1) of the Charter, the proper initial inquiry is whether the tribunal can grant Charter remedies generally.

2. To make this determination, the first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law.

3. If it does and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter – and Charter remedies – when resolving the matters properly before it.

4. Once the threshold question has been resolved in favour of Charter jurisdiction, 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 would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal’s statutory mandate, structure and function.

Justice Abella then went on to apply these principles to the specific facts of the Conway case. She concluded that the ORB is a court of competent jurisdiction because it is authorized to decide questions of law. The remedy sought by Mr. Conway for the alleged Charter breaches was an absolute discharge. The Court concluded that the statutory scheme under which the ORB operates, namely the Criminal Code, does not permit an absolute discharge in circumstances where the accused continues to pose a significant threat to the safety of the public. The Court therefore concluded that the remedy was not available and the appeal was dismissed.

R. v. Conway, 2010 SCC 22