Administrative Tribunals & The Availability of Charter - PowerPoint Presentation

Slide1

Administrative Tribunals & The Availability of Charter Remedies

Anatoly Dvorkin & Sara R. CohenRaviele Vaccaro LLP969 Eglinton Avenue WestToronto, ON, M6C 2C4www.rvlaw.ca

The Commons Institute

Experts Sessions on Administrative Law: Practice Primers for 2012

March 22 & 23, 2012Slide2

Tribunals and the Charter pre R. v.

ConwaySection 52(1) of the Constitution ActSection 24(1) of the Charter R. v. ConwayThe DecisionHow the law changed?The ImpactPotential problemsRecent Tribunal Decisions and the Application of Conway

Practice Tips

Our Agenda Slide3

Section 52(1) of the Constitution ActThe 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 CharterAnyone 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 circumstancesLet’s Review:Administrative Tribunals and the Charter Pre ConwaySlide4

If an applicant submitted that the tribunal should find a legislative provision constitutionally invalid or inapplicable…

Section 52(1) analysis appliedNova 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 appliedMills

v.

The Queen

, [1986] 1 SCR 863 (S.C.C.)

Which test applied?Slide5

“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)In R. v. Ferguson, 2008 SCC 6 CanLIISlide6

The Martin Test (under s. 52):Does the administrative tribunal have jurisdiction, explicit or implied, to decide questions of law?

Applying only valid lawsExplicit jurisdiction is found in the enabling legislationImplied jurisdiction requires examination of statute as a wholeIf so, presumption that tribunal has jurisdictionHas the presumption been rebutted?An explicit withdrawal of authority; orAn 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 tribunalComparing the Martin and Mills TestsSlide7

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

jurisidictionA court of competent jurisdiction must possess:jurisdiction over the person;Jurisdiction over the subject matter; andJurisdiction to grant the remedy soughtIn 1995, Weber v. Ontario Hydro (SCC) held that the Mills test applied to administrative tribunals as wellComparing the Martin and Mills Test – Slide 2Slide8

The 3rd part of the test determinative was determinative in most cases3rd

part – whether tribunal has power to grant a particular remedyA functional and structural analysis Examine the function of the tribunalExamine the structureThe Mills Test ContinuedSlide9

Background:1984: Mr. Conway found not guilty of sexual assault with a weapon by reason of insanity2006: 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 dischargeORB declined to hear Charter application because not a “court of competent jurisdiction” R. v. Conway, [2010] S.C.J. No. 22Slide10

Appealed on 2 grounds:ORB erred by making mere suggestions to CAMH rather than imposing conditionsC of A unanimously agreed ORB erredORB 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 dischargeMinority (Lang J.A.) – nature of remedy sought ought not be construed in “unduly narrow manner”R. v. Conway, C of ASlide11

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 valuesCuddy 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)R. v. Conway, SCCSlide12

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]; Conway TestSlide13

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]Part II of Conway TestSlide14

New test to determine whether tribunal has jurisdiction to consider

Charter issues:Slide15

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 valuesR. v. Conway, SCC cont’dSlide16

[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.”SCC found that although ORB was “court of competent jurisdiction”…Slide17

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 ImportantSlide18

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 tribunalsRemedies available to tribunal  Charter doesn’t enhance powers of tribunal; remedy must be one available to tribunal itselfConway doesn’t change that tribunals do not have authority to grant declarations of constitutional invalidityTake Away Points re ConwaySlide19

So how has Conway been applied?

Let’s take a look…Slide20
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Health Services Appeal and Review BoardPart of remedy sought was finding that s. 6(3) of MHARBA contrary to Charter and of no effects. 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 analysisNeeds to be answered in another forumEH v Ontario (Health Insurance Plan), 2011 CanLII 67509 (ON HSARB)Slide22

But…

Most post-Conway decisions have held that tribunals have jurisdiction to hear Charter or constitutional arguments Slide23

Argument that Hellenic society was unconstitutional based on discrimination re ancestry, ethnicityHRTO 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 CodeKostiuk v. Toronto Community Housing Corporation, 2012 HRTO 388 (CanLII)Slide24

LSUC hearing panel held that it certainly has jurisdiction to make findings of law, and has power to decide constitutional issuesBUT notes that in Conway, cannot declare any part of an Act invalidCandidate was seeking remedy re governance of LSUC as a whole

 panel declined, finding such a matter more appropriately dealt with before court of original jurisdictionKopyto v. LSUCSlide25

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 tribunalSazant v. The College of Physicians and Surgeon, 2011 ONSC 323 (CanLII) (Div. Ct.)Slide26

Ontario Information and Privacy Commission held that it had jurisdiction to determine constitutional argumentsQuoted 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.ORDER M0-2570 – Port Hope (Municipality) 2010 Canlii 70806 (ON IPC)Slide27

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

.)

Tribunals and their Relationship to the

Charter

post-

ConwaySlide28

If you think there is a Charter or constitutional argument to be made make it at the Tribunal levelSee

Stables caseConsider seeking Charter remedy, or, further and in the alternative, a remedy in line with Charter valuesRemember that tribunal cannot grant declaration of invalidity, only can choose not to enforce or applyBUT Charter challenge made to tribunal considerably more expeditious, less time consuming and less expensivePractice TipsSlide29

Please feel free to direct any follow up questions to either:Anatoly Dvorkin at

anatoly@rvlaw.ca or @DvorkinLaw; orSara R. Cohen at sara@rvlaw.ca or @fertilitylawThank you!