Talk:A Court of Competent Jurisdiction

Aminal Care Review Board

• Is it a court of Competent Jurisdiction?

E.S. v. Joannou, 2017 ONCA 655 (CanLII)

[83] I reach this conclusion in light of the fact that s. 52(1) jurisdiction was removed, but also for several other reasons: the strict timelines under which the Board operates; the limited dispositions available to the Board; the composition and expertise of the Board; the provisions for the appeal of the Board’s decisions; and the fact that, in making its decisions, the Board can and does take Charter rights into account. I will address each of these in turn.

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[94] The Board’s function is primarily forward-looking and non-adversarial. Nothing in the relevant statutes suggests that the Board is to review and assess prior misconduct. For example, s. 41(1) of the Mental Health Act provides that upon an application the Board is to determine whether or not the conditions for involuntary status “continue to be met at the time of the hearing”. The issue is not, therefore, whether the original determination was correctly made but rather whether the patient still meets the conditions. The process is more inquisitorial than fault- or blame-based.

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[96] Appeals from decisions of the Board are to the Superior Court pursuant to an expedited procedure. This further supports a legislative intention to limit the Board to the functions assigned to it by statute and to exclude s. 24(1) Charter jurisdiction. Significantly, on an appeal from the Board under the Health Care Consent Act or Mental Health Act, the Superior Court can receive new or additional evidence as it considers just: Health Care Consent Act s. 80(9); Mental Health Act s. 48(3). This is somewhat akin to the two-stage process discussed in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), 1991 CanLII 12 (SCC), [1991] 2 S.C.R. 22. The appeal structure allows a party who appeals a Board decision to introduce additional evidence on the appeal, with the court’s consent. The issues before the Superior Court could potentially be broadened to include alleged Charter breaches and remedies sought.

[97] If necessary, it is open to an appellant to combine the appeal with an originating application to the Superior Court seeking Charter remedies. This ability to rapidly appeal to the Superior Court and introduce fresh evidence is in contrast to the procedure for appealing decisions of the ORB, which was found to have s. 24(1) jurisdiction in Conway. An appeal from the ORB is directly to the Court of Appeal, which is not a court of inherent jurisdiction, and the admission of fresh evidence is circumscribed by s. 672.73 of the Criminal Code.

Pryde, Spottiswood and Pierce v. Chief Animal Welfare Inspector, 2021 ONACRB 33 (CanLII)

[29] On the submissions before me on this motion, I agree with the respondent and find that the Board is not a court of competent jurisdiction for the purposes of s. 24 of the Charter and, therefore, does not have jurisdiction to grant Charter remedies. While the parties do not take issue with the Board being able to decide questions of law which, in turn, creates the presumption that the Board is a court of competent jurisdiction for the purposes of s. 24(1) of the Charter according to Conway, the respondent submitted that the Board fails on the second stage of the three-step process set out in Conway and I agree. Despite the Act not expressly excluding the Board’s ability to grant Charter remedies, I agree with the respondent that the Act clearly implies that the Board does not have Charter jurisdiction for the following reasons:

(a) Since the decision in Johnson, which I am not bound by, the governing legislation of the Board has changed from the OSPCA Act to the Act. While the strict deadlines have not changed in terms of the Board being required to fix a date for the hearing not more than ten business days of an appeal being received, the Act now states that the hearing shall be dealt with on an expedited basis and this language was not included in the OSPCA Act;[24]

(b) The strict timelines under the Act for a Board hearing to begin are similar to the strict timelines of the Consent and Capacity Board under consideration in the E.S. decision. In E.S., the court held that delays were contrary to the objective of the governing legislation and that the tight timelines to commence a hearing were understandable and necessary given the nature of the matters that are decided upon by the Consent and Capacity Board.[25] Similar to the Consent and Capacity Board, the Board is mandated to ensure efficient and timely resolutions of the merits of proceedings before it[26] and are directed to expedite proceedings. Also similar to the E.S. decision, the tight timelines under the Act are understandable and necessary given that the appeals before the Board involve relatively urgent situations of animals alleged to be in distress;

(c) I share the concerns raised in E.S. regarding the necessary delays that the task of enquiring into and deciding Charter remedies can lead to in light of the tight timeframes and directions to expedite matters under the Act. Indeed, this hearing was originally scheduled to begin over a month ago, but evidence still has yet to be called as the Board must deal with the numerous motions before it including those addressing the Charter. This matter is a clear example of the resulting inability to exercise the Board’s statutory function properly and promptly when required to address Charter grounds. Moreover, the Board’s argument in Johnson in favour of the Board having Charter jurisdiction that once the Board becomes familiar with Charter proceedings it would take the Board a fraction of the time to resolve a Charter issue over the time that it would take to go through a court proceeding[27] does not address how Charter proceedings significantly slow down what otherwise should be an expedited hearing process;

(d) Like the distinction made in E.S. from the Conway decision, the Board does not schedule hearings well in advance like the Ontario Review Board which was the tribunal at issue in Conway. Here, and similar to the Consent and Capacity Board, hearings are scheduled on very short notice and, as discussed above, the Board must fix a date for the hearing not more than ten business days of an appeal being received. Therefore, like the Consent and Capacity Board, this short timeline does not allow for compliance with Rule 11 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the “Rules”) which requires the giving of a Notice of a Constitutional Question 15 days in advance of a hearing; and

(e) The Board is not empowered to grant a broad array of relief under s. 24(1) of the Charter. For example, it is likely, similar to the Consent and Capacity Board, that if requested, the Board would not be found to have the power to grant remedies such as costs or damages resulting from a Charter breach given that costs may only be awarded by the Board upon a finding that a party has acted unreasonably, frivolously, vexatiously, or in bad faith,[28] and there is no provision for the Board to award damages in the Act. As highlighted in E.S., if a tribunal did not have the power to grant the remedy sought as a result of a Charter breach then an appellant would be required to bring a proceeding in the Superior Court to obtain the requested remedy.[29] Therefore, when a tribunal, such as the Board, is limited in the type of remedy that it can grant pursuant to s. 24(1) of the Charter, there is a significant risk of bifurcated proceedings and uncertainty as to which decision-making body, the Board or the Superior Court, should carry out the fact-finding necessary to determine whether there was a Charter breach.[30] I agree with the court in E.S. that it is unlikely that the legislature would have intended such a result.[31]