A Court of Competent Jurisdiction

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-06-26
CLNP Page ID:	2359
Page Categories:	[Canadian Charter of Rights and Freedoms (Annotated)]
Citation:	A Court of Competent Jurisdiction, CLNP 2359, <>, retrieved on 2024-06-26
Editor:	Sharvey
Last Updated:	2024/03/21

R. v. Conway, 2010 SCC 22 (CanLII), [2010] 1 SCR 765

[20] We do not have one Charter for the courts and another for administrative tribunals (Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, per McLachlin J. (in dissent), at para. 70; Dunedin; Douglas College; Martin). This truism is reflected in this Court’s recognition that the principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals. It is also reflected in the jurisprudence flowing from Mills and the Cuddy Chicks trilogy according to which, with rare exceptions, administrative tribunals with the authority to apply the law have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions.

[21] 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.

[22] All of these developments serve to cement the direct relationship between the Charter, its remedial provisions and administrative tribunals. In light of this evolution, it seems to me to be no longer helpful to limit the inquiry to whether a court or tribunal is a court of competent jurisdiction only for the purposes of a particular remedy. The question instead should be institutional: Does this particular tribunal have the jurisdiction to grant Charter remedies generally? The result of this question will flow from whether the tribunal has the power to decide questions of law. If it does, and if Charter jurisdiction has not been excluded by statute, the tribunal will have the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate (Cuddy Chicks trilogy; Martin). A tribunal which has the jurisdiction to grant Charter remedies is a court of competent jurisdiction. The tribunal must then decide, given this jurisdiction, whether it can grant the particular remedy sought based on its statutory mandate. The answer to this question will depend on legislative intent, as discerned from the tribunal’s statutory mandate (the Mills cases).

[23] This approach has the benefit of attributing Charter jurisdiction to the tribunal as an institution, rather than requiring litigants to test, remedy by remedy, whether it is a court of competent jurisdiction. It is also an approach which emerges from a review of the three distinct constitutional streams flowing from this Court’s jurisprudence. As the following review shows, this Court has gradually expanded the approach to the scope of the Charter and its relationship with administrative tribunals. These reasons are an attempt to consolidate the results of that expansion.

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[34] More recently, the Court has had two further opportunities to consider the Mills test. In Dunedin, the issue was whether a provincial court judge with jurisdiction under Ontario’s Provincial Offences Act, R.S.O. 1990, c. P.33, was a court of competent jurisdiction for the purpose of ordering costs against the Crown for failure to comply with the Charter. McLachlin C.J., writing for a unanimous Court, again confirmed that applying the Mills test is, first and foremost, a matter of discerning legislative intent. The question in each case is whether the legislature intended to give the court or tribunal the power to apply the Charter:

[W]here a legislature confers on a court or tribunal a function that involves the determination of matters where Charter rights may be affected, and furnishes it with processes and powers capable of fairly and justly resolving those incidental Charter issues, then it must be inferred, in the absence of a contrary intention, that the legislature intended to empower the tribunal to apply the Charter. [para. 75]

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[44] In the 1997 case of Eaton, the Ontario Special Education Tribunal, acting pursuant to the Education Act, R.S.O. 1990, c. E.2, had ordered that Emily Eaton, a child with cerebral palsy, be placed in a special classroom for students with disabilities. The Eatons alleged discrimination, arguing that their daughter’s education should take place in the mainstream schools. Lamer C.J. wrote brief reasons to clarify what he had said in Slaight:

[S]tatutory silences should be read down to not authorize breaches of the Charter, unless this cannot be done because such an authorization arises by necessary implication. I developed this principle in the context of administrative tribunals which operate pursuant to broad grants of statutory powers, and which can potentially violate Charter rights. Whatever section of the Act or of Regulation 305, R.R.O. 1990, grants the authority to the Tribunal to place students like Emily Eaton . . . Slaight Communications would require that any open‑ended language in that provision (if there were any) be interpreted so as to not authorize breaches of the Charter. [para. 3]

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[50] La Forest J., writing for the Court on this issue, concluded that the jurisdiction lay with the arbitrator. Under the Industrial Relations Act, the arbitrator had express authority to “provide a final and conclusive settlement of a dispute”. To fulfill this mandate, arbitrators acting under the Act could interpret and apply any statute that regulated employment. This included the Charter. La Forest J. noted that arbitrators were bound by the same Constitution as the courts. Accordingly, if a collective agreement was illegal or unconstitutional, an arbitrator must decline to apply it just as a court would.

[51] La Forest J. rejected the College’s argument that the informal arbitration process was unsuited to litigating a Charter issue, concluding that any disadvantages of allowing administrative tribunals to decide constitutional questions were outweighed by the “clear advantages” of granting them this jurisdiction. In his view, such jurisdiction promotes respect for the Constitution because “[t]he citizen, when appearing before decision-making bodies set up to determine his or her rights and duties, should be entitled to assert the rights and freedoms guaranteed by the Constitution” (p. 604). Constitutional issues should be raised at an early stage in the context in which they arise, without the claimant having to first resort to an application in superior court, which is more expensive and time-consuming than the administrative process. In addition, a “specialized competence can be of invaluable assistance in constitutional interpretation” (p. 605). Specialized arbitrators and agencies can sift through the facts and quickly compile a record for the benefit of a reviewing court. In this way, the parties (and the reviewing courts) benefit from the arbitrators’ expertise. This practice also allows for all related aspects of a matter to be dealt with by the most appropriate decision maker. As La Forest J. pointed out, “it would be anomalous if tribunals responsible for interpreting the law on the issue were unable to deal with the issue in its entirety, subject to judicial review” (p. 599).