Toronto lawyer Marlys Edwardh was counsel for the appellant in a landmark Supreme Court decision expanding Charter jurisdiction to more administrative boards and tribunals. [Photo by Paul Lawrence for The Lawyers Weekly]
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In a landmark 9–0 decision, the Supreme Court has revised the framework for analyzing when administrative boards and tribunals can resolve constitutional issues, including granting Charter remedies.
Justice Rosalie Abella’s June 11 ruling in R. v. Conway is a must-read for administrative law practitioners because its effect may be to extend Charter powers to a significant, but as yet unknown, number of administrative boards and tribunals which currently claim they don’t (or have been held by courts not to) have jurisdiction to resolve constitutional issues, including granting Charter remedies.
In the wake of Conway, “there is a strong presumption that tribunals can apply the Charter and issue Charter remedies — nevertheless legislatures can still specifically reject such jurisdiction,” suggests University of Toronto law professor Kent Roach, co-counsel for the intervener Criminal Lawyers’ Association.
Notably, Conway scraps the three-pronged Mills test in favour of a more streamlined litmus test for discerning whether a board or tribunal is generally a “court of competent jurisdiction” to grant remedies under s. 24(1) of the Charter.
“It liberalizes it,” opines David Mossop, counsel for the intervener Community Legal Assistance Society of Vancouver.
Toronto’s Marlys Edwardh told The Lawyers Weekly the decision will enable people to use the Charter to obtain remedies from administrative boards and tribunals that are not expressly barred by the relevant statutory schemes.
It will “open up Charter relief in many kinds of administrative tribunals which have not had it, or not exercised it,” predicted Edwardh, counsel for Paul Conway, the appellant who unsuccessfully sought Charter remedies from the Ontario Review Board.
Whatever its future fallout, Conway certainly is a clear and succinct primer on the past 25 years of intense judicial debate at the Supreme Court about the scope of Charter jurisdiction of administrative boards and tribunals.
Remarkably, that debate seems to be over for now. Speaking with one voice, all the judges endorsed Justice Abella’s “merger” of the major strands of the court’s administrative law jurisprudence emanating from three lines of cases: Mills v. The Queen,  1 S.C.R. 863; Slaight Communications v. Davidson,  1 S.C.R. 1038; and Cuddy Chicks Ltd. v. OLRB,  2 S.C.R.
“A merger of the three distinct constitutional streams flowing from this court’s administrative law jurisprudence calls for a new approach that consolidates this court’s gradual expansion of the scope of the Charter and its relationship with administrative tribunals,” Justice Abella explained.
“The jurisprudential evolution has resulted in this court’s acceptance not only of the proposition that expert tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction, but also that in exercising their statutory discretion, they must comply with the Charter.”
In a nutshell, the Supreme Court ruled that administrative tribunals with explicit, or implied, authority to decide questions of law — and whose Charter jurisdiction has not been clearly withdrawn by Parliament or the legislatures — are “courts of competent jurisdiction” to apply the Charter to matters within the proper exercise of their statutory functions.
The availability of an appeal from a board’s decision on a question of law is “indicative of the board’s power to decide legal questions,” the court elaborated.
Notably, the court also ruled that whether a particular board or tribunal is competent, as a general matter, to grant remedies under s. 24(1) of the Charter is something to be decided once. It is no longer a matter to be determined (potentially differently) each time a different Charter remedy is sought.
Counsel told The Lawyers Weekly the court’s new approach means many more boards and tribunals than was previously thought may be clothed with general Charter jurisdiction.
However it is too early to say whether more Charter remedies will actually be granted by boards and tribunals because Charter claimants still have to clear the hurdle of proving that the constitutional remedies they seek are, in the words of the Supreme Court, “the kinds of remedies that [legislators]…anticipated would fit within the [board or tribunal’s] statutory scheme.”
The Supreme Court dismissed the appeal of Conway, a man physically and sexually abused as a child by close relatives who has been held in secure mental health facilities since 1984 when he was found not guilty by reason of insanity of repeatedly raping his aunt. The Supreme Court affirmed that the Ontario Review Board, which annually reviews the status of detainees found not criminally responsible, could not give Conway, who remains a serious threat to public safety, the absolute discharge and treatment remedies he sought under s. 24(1) of the Charter. The court said Parliament made clear in the Criminal Code that absolute discharges are not available to dangerous detainees. The Code expressly prohibits the board from prescribing or imposing treatment.
Although the board may not grant those two remedies, which are barred under its statutory scheme, the Supreme Court ruled that the board is generally a “court of competent jurisdiction” under s. 24(1) and may therefore grant Charter remedies that are consistent with its statutory mandate. The Supreme Court rejected the board’s position that it did not have general Charter jurisdiction.
“We feel it’s a victory,” Edwardh said. “It will add a significant amount to both the discretion the board exercises, and what values inform it. I also think it will add a great deal in terms of remedial tools to the board if they are confronted with something that can’t be dealt with in the ordinary dispositions they make, and that needs additional jurisdiction, which can be the Charter jurisdiction.”
By way of example, she cited a patient-detainee who might want to participate in certain religious activities, or read certain materials that are barred by hospital authorities.
She added that under the Conway analytical scheme some boards, such as the National Parole Board, may be found in future to have Charter jurisdiction, notwithstanding previous court decisions to the contrary.
Counsel for the Ontario Review Board, Stephen Moreau of Toronto’s Cavalluzzo Hayes, said the ruling certainly means that all provincial review boards have Charter jurisdiction.
He suggested all boards which do not have express powers to decide questions of law and “who may historically have felt that their only role was to apply the law and not decide questions of law” should carefully review the decision. “The potentially new aspect of this case,” he said, “could be seen to be that the court is signaling, with more fervour than ever, that every one of the justices of that court believes that tribunals should be dealing with Charter issues, absent express provision saying they shouldn’t. But I don’t agree that this decision is somehow a major retelling of the Charter story.”
Mossop noted that British Columbia’s Administrative Tribunals Act expressly bars some tribunals, such as dispute resolution offices under the Residential Tenancies Act and the Employment and Assistance Appeal Tribunal (which hears welfare appeals) from hearing Charter issues.
He predicted Conway will spur further litigation up to the Supreme Court about the breadth of boards’ Charter powers (for example, do review boards ordering conditional discharges for not-criminally responsible detainees have the power to order governments to supply community housing?). Another issue is the standard of review to be applied to tribunals’ findings in constitutional cases.
Simon Fothergill, counsel for the intervener Attorney General of Canada told The Lawyers Weekly “it remains to be seen whether this results in more tribunals being found to be courts of competent jurisdiction to grant Charter remedies.”
He added, “while the court has clearly modified the Mills test, the branch of the test that has usually been determinative of whether an administrative tribunal has jurisdiction to grant Charter remedies appears to remain, i.e., whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. In the words of the court, ‘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.’ ”
Fothergill also highlighted the court’s observation that tribunals can vindicate claimants’ Charter rights by exercising their regular statutory powers and processes in accord with Charter values, without turning to their Charter jurisdiction.
Roach agreed the decision tells tribunals “they need not invoke [s.] 24(1) if they can exercise their statutory jurisdiction in accordance with the Charter.”
He suggested the decision “rationalizes previous decisions, but is not revolutionary. It boils down the separate tests for remedies under s. 24 of the Charter and s. 52 of the Constitution to a holistic question of whether a tribunal can apply the Charter, and rejects the necessity of establishing jurisdiction on a remedy-by-remedy basis.”
The court propounded tests for determining (1) whether a tribunal has jurisdiction under s. 24(1) of the Charter to apply the Charter (i.e. whether it can grant Charter remedies generally) and if so (2) whether the tribunal is empowered to give the particular remedy requested in light of its statutory scheme.
At step one a board or tribunal will be found to be a “court of competent jurisdiction” capable of granting Charter remedies in relation to Charter issues arising from its discharge of its statutory mandate if it has explicit, or implied, jurisdiction to decide questions of law, “unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction.”
Once a tribunal is found to be a court of competent jurisdiction, the second question becomes whether the tribunal’s statutory scheme enables it to grant the particular remedy sought.
“Answering this question is necessarily an exercise in discerning legislative intent, namely whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations include the tribunal’s statutory mandate and function,” Justice Abella explained.
She said this new approach — which she described as a “merger” of existing jurisprudence — had the benefit of attributing Charter jurisdiction to a tribunal as an institution, rather than requiring Charter claimants to re-litigate, remedy by remedy, whether a tribunal is a “court of competent jurisdiction.”
In so ruling, the top court appears to have dropped the established Mills test, which stipulates that in order for a tribunal to qualify as a “court of competent jurisdiction under s. 24(1) of the Charter, the board must possess (1) jurisdiction over the person; (2) jurisdiction over the subject matter; and (3) jurisdiction over the remedy.”
R. v. Conway,  S.C.J. No. 22.
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