Jurisdiction of Administrative Tribunals under the Canadian Charter of Rights and Freedoms

• Author: Paul Cavalluzzo
• Profession: Cavalluzzo Hayes Shilton Mclntyre & Cornish
• Pages: 275-292

Turisdiction

of

Administrative

Paul

Cavalluzzo*

A.

INTRODUCTION

The

debate

in the

jurisprudence over

whether,

and to

what

extent,

administrative tribunals have authority

to

deal with issues arising

under

the

Canadian Charter

of

Rights

and

Freedoms

(hereinafter

Charter)

provides

a

range

of

perspectives

on two

interesting

and

important ques-

tions.

One

question relates

to the

central role played

by

administrative

tribunals

in our

system

of

government. Administrative

tribunals

carry

out a

number

of

functions, ranging

from

purely administrative

to

imple-

menting regulatory

and

social policy regimes, including

the

adjudica-

tion

of

rights

in a

quasi-judicial

forum.

The

second question relates

to

the

role

of the

Charter

in our

society

and the

extent

to

which rights estab-

lished

by the

Charter

should permeate

our

administrative justice system.

Prior

to the

Charter,

the

courts held that administrative tribunals

had the

authority

to

decide constitutional questions relating

to

division

of

powers

in the

context

of

determining their jurisdiction over

the

mat-

ter

before

them.

For

example, labour relations boards were

and are

required

from

time

to

time

to

determine whether

a

particular employer

comes within provincial

or

federal

jurisdiction

for

labour relations pur-

poses.

The

courts have

not

only held that labour relations boards have

authority

to

decide this question; they also held that

it is

preferable

for

Of

Cavalluzzo Hayes Shilton

Mclntyre

&

Cornish.

275

Tribunals under

the

Canadian

Charter

of

Rights

and

freedoms

*

276

Paul Cavalluzzo

this constitutional issue

to be

decided

in the

first

instance

by the

board

with specialized expertise

in

labour relations

law and

policy.1

In

this

context,

the

tribunal would

not be

asked

to

consider whether

the law

was

invalid

but

only whether

the law

applied

to the

proceeding under

which

it had

authority

to

act.

The

legal underpinning

of the

tribunal's

authority over this type

of

constitutional question

was its

general

authority

and

obligation

to

address challenges

to its

jurisdiction

to

deal

with

a

matter brought before

it.

Constitutional

issues arising under

the

Charter

raise

different

con-

siderations. Under

the

Charter,

both federal

and

provincial legislative

provisions

may be

declared invalid

if

they

are

found

to

violate

a

right

or

freedom

guaranteed

by the

Charter

and

cannot

be

justified

under section

1.

In

addition,

a

citizen

may

seek other types

of

remedies, including

the

exclusion

of

evidence

from

a

proceeding,

for an

alleged violation

of

rights

and

freedoms under

the

Charter.

Issues relating

to the

authority

of

administrative tribunals

to

address

Charter

issues have

therefore

brought into play sections 52(1)

and

24(1)

of the

Charter,

which provide:

52(1)

The

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.

24(1)

Anyone whose rights

or

freedoms,

as

guaranteed

by

this Charter,

have been infringed

or

denied

may

apply

to a

court

of

competent juris-

diction

to

obtain such remedy

as the

court considers appropriate

and

just

in the

circumstances.

Where

the

statutory

framework

within which

the

tribunal operates

includes

express provisions that allow

for

quasi-judicial

or

adjudicative

decision

making,

the

tribunal

is one

that

can

determine

Charter

chal-

lenges

to

legislation. Such tribunals

are

also likely

to be

considered

a

court

of

competent jurisdiction

for

purposes

of

determining whether

a

Charter

right

has

been infringed

and

granting

a

remedy

for the

violation.

However,

there

is an

ongoing debate

in the

jurisprudence

as to

what,

if

any,

authority under

the

Charter

can be

exercised

by a

tribunal that

does

not

have these types

of

statutory powers.

The

different

points

of

view

expressed

in the

jurisprudence

reflect

different

approaches

to the

role

of

administrative

tribunals

and of the

Charter

itself.

1

This

point

is

noted

by the

Supreme

Court

of

Canada

in

Douglas/Kwantlen

Faculty

Assn.

v.

Douglas

College

(1990),

77

D.L.R.

(4th)

94

(S.C.C.)

[hereinafter

Douglas

College]

at

121-123.