Statute is Silent

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Date Retrieved:	2024-04-30
CLNP Page ID:	2196
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Citation:	Statute is Silent, CLNP 2196, <>, retrieved on 2024-04-30
Editor:	Sharvey
Last Updated:	2023/05/09

Re Sidley, 1938 CanLII 68 (ON SC)

...

The law that is applicable is the common law of England, superimposed upon which is the statute, and where the statute conflicts with the common law, the statute must prevail, and where the statute is silent on any matter, the common law should prevail.

...

Cross v. Sullivan, 2003 CanLII 44082 (ON SC)

[13] I also note that the National Defence Act creates no civil remedy for any breach thereof. As the statute is silent as to civil remedies, this court should not create one. (see The Queen (Can.) v. Saskatchewan Wheat Pool, 1983 CanLII 21 (SCC), [1983] 1 S.C.R. 205.

[14] I conclude that to the extent that the claim by the Plaintiff is based upon breach of statutory duty, it is not tenable at law. Therefore, to the extent that the proposed amendments by the Plaintiffs to the Amended Statement of Claim refer to the breach of a statutory duty, leave to amend the Amended Statement of Claim is not granted.

Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 SCR 22

The present case concerns the Board of Referees established under the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, (now R.S.C., 1985, c. U-1) ("the Act"). As La Forest J. observes at p. 000 of his reasons, the Board of Referees is an administrative tribunal whose legal jurisdiction is not specifically articulated in the Act. I agree with him that, in general, the mandate given to a board by the legislature will usually be the most salient factor in determining whether the tribunal has the power to decide questions under the Canadian Charter of Rights and Freedoms. My colleague concludes on this point (at p. 000):

Therefore, where the legislature has already spoken definitively on the question, that will normally be the end of the inquiry. Where it has not, it will be necessary to examine other factors as well.

I agree with this statement. At the same time, however, I would like to leave explicitly open the question of what "other factors" might be relevant to the determination of a tribunal's jurisdiction over subject matter, particularly in the absence of other related tribunals established under the same legislation which are permitted to interpret the Charter. Like Wilson J., I do not believe that the legislation will necessarily be determinative of the administrative tribunal's jurisdiction over the constitutional subject matter argued. Where the statute is silent or unclear, there are many "other factors" to be considered when determining whether the constitutional subject matter should properly be considered by an administrative tribunal. Among the possibilities, as Wilson J. notes, would be an approach similar to that taken by this Court in McLeod v. Egan, 1974 CanLII 12 (SCC), [1975] 1 S.C.R. 517. These "other factors" may be taken up in an appropriate case.