Justifying true questions of jurisdiction.

• Author: Lipton, Thomas
• Position: Canada

Table of Contents I. INTRODUCTION II. JURISDICTION IN ADMINISTRATIVE LAW A. Jurisdiction is Everywhere B. The Peculiar History of Jurisdiction in Administrative Law III. THE CONCEPTUAL AND CONSTITUTIONAL SPACE FOR TRUE QUESTIONS OF JURISDICTION A. Comparison to the "Competing Tribunals" Exception B. The Jurisdiction Neighbourhood C. Judicial Review of Administrative Action is a Constitutional Requirement D. Revisiting Crevier: Colouring in Jurisdiction IV. APPLYING THE REFINED "TRUE QUESTION OF JURISDICTION" EXCEPTION A. The Promulgation Cases B. The Adjudication Cases V. CODA: RIGHTING REASONABLENESS REVIEW VI. CONCLUSION I. INTRODUCTION

In Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, (1) the Supreme Court of Canada grappled once again with the issue of when the "true question of jurisdiction" exception to reasonableness review applies when conducting judicial review (2) of an administrative tribunal's decisions. (3) The majority, written by Justice Rothstein, questioned the continued viability of the exception which has bedeviled Canadian administrative lawyers, in one form or another, for many decades. The majority suggested that "it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review." (4) Yet, the majority decided to forego this reconsideration given the lack of argument on the issue. Thus, the Court signalled its openness to hearing challenges to the "true question of jurisdiction" exception.

This article seeks to defend the exception by narrowing it and offering a theoretical and constitutional justification for this narrower version of the exception. Part II will explain the continued relevance of the concept of "jurisdiction" to administrative law. Despite the controversy around the concept, it remains fundamental to our understanding of administrative law. Part III will explain the proper place of the "true question of jurisdiction" exception by comparing it to the "competing tribunals" exception to reasonableness review articulated by the Court in Dunsmuir v New Brunswick. (5) That part will also examine how the concept of jurisdiction fits within the constitutional framework which underpins administrative law. Part IV will attempt to refine the "true question of jurisdiction" exception with reference to the existing jurisprudence. I will posit that the exception actually covers two sub-categories: promulgation cases and adjudication cases. Promulgation correctness review occurs only when a litigant challenges a tribunal's ability to make a general rule, as opposed to challenging the application of that general rule. Adjudication correctness review, which is far more common, occurs when a litigant challenges the application of a general rule by a tribunal. Part V urges courts to recommit to respectful yet attentive reasonableness review so that, together with a narrowed "true question of jurisdiction" exception, judicial review can provide robust protections to litigants in the administrative system.

2. JURISDICTION IN ADMINISTRATIVE LAW

   1. Jurisdiction is Everywhere

      Jurisdiction has become a contested concept in administrative law, and for good reason, but the concept itself is fundamental to our understanding of the proper exercise of public power. The rule of law requires that "all exercises of public authority must find their source in law." (6) This principle takes on particular importance in Canada where public power is far from unitary. Any exercise of public power must satisfy three distinct criteria in order to be valid.

      First, sections 91 and 92 of the Constitution Act, 1867 (7) impose a division of powers among the federal government and the provincial governments. (8) Only Parliament may, for example, make laws about the running of the postal service, the coining of money or patents. (9) Only the provinces may, for example, make laws about the solemnization of marriage or property and civil rights within the province. (10) Thus, to be valid, an exercise of public power must be performed by the proper level of government because only then does the exercise respect the division of powers.

      Second, there is the constitutionally-mandated separation of powers whereby, classically, the executive, legislature, and judiciary all have different, important roles to play. (11) The legislature makes the law, the executive enforces the law, and the judiciary interprets the law. (12) Each must "show proper deference for the legitimate sphere of activity of the other." (13) Thus, to be valid, an exercise of public power must be performed by the proper branch of government because only then does the exercise respect the separation of powers. (14)

      Third, the exercise of power must not violate the Charter, the Constitution Act, 1867, and any other constitutional documents which protect individuals' rights. (15) Justice Bertha Wilson, in her concurring opinion in R v Morgentaler (16) described the Charter as "erect[ing] around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass." (17) If the state does trespass, then its actions are unconstitutional, and hence contrary to the rule of law.

      Together, then, there are three fences which any exercise of public power must not cross to be legally valid. First, the correct level of government must exercise the power. Second, the correct branch (of the correct level) of government must exercise the power. Third, the government actor must not violate the constitutional rights of the persons it affects through its exercise of public power. Only then may an exercise of public power be upheld in a court of law. (18)

      "Jurisdiction" is the word that Canadian courts typically use to describe the space within which a person or entity may validly exercise public power--the space within all these fences. The word is used so often--more than 3,498 times by the Supreme Court of Canada alone (19)--that, in all areas of law except for administrative law, it is an unnoticed part of the legal background. For example, in R v Punko, (20) the Court referred to acts that could constitute criminal offences, some of which "fell within the prosecutorial jurisdiction of the provincial Crown, while others fell within that of the federal Crown." (21) Or, in RP v RC, (22) the Court noted that, in the context of divorce agreements, "parties cannot oust the jurisdiction of the court to make a variation under s. 17 of the Divorce Act." (23) Or, in United Transportation Union v Central Western Railway Corp, the Court framed the issue at hand as "whether the provincial or the federal government has jurisdiction, for the purposes of labour relations, over a 105 mile railway line situated wholly within the province of Alberta." (24) Jurisdiction is everywhere.

      It is this broad sense of the word "jurisdiction" that the Supreme Court identified in Alberta Teachers' Association, an administrative law case in which it stated that, "[i]n one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged." (25) But the Court could have gone further. Using this broad sense of jurisdiction, any exercise of public power by any government body raises a question of jurisdiction. Canada is not a unitary state run by, say, a monarch who is the sole person authorized by law to exercise public power. Because, as explained above, public power is circumscribed in three overlapping ways, every exercise of power could raise a question about whether it is valid: did the proper person or entity exercise a power validly assigned to it without violating any individuals' rights under the constitution? Moreover, in theory, almost every exercise of public power can be judicially reviewed in court. (26) Thus, the potential reach of the concept of jurisdiction is virtually unlimited. Given the omnipresence of jurisdictional questions, the anxiety about the concept in administrative law cannot be explained by the concept per se. Instead, we must look to the particular history of the term in administrative law to understand the peculiar concerns it raises.

   2. The Peculiar History of Jurisdiction in Administrative Law

      Jurisdiction became a four-letter word in administrative law because of a long-running conflict created by the birth of the administrative state in Canada. To put it mildly, the courts were less than pleased when the federal and provincial governments began to create administrative tribunals. The administrative state was founded when labour relations boards were created during the First and Second World Wars to stave off labour unrest. (27) The courts saw the creation of administrative bodies as an encroachment of the legislature and executive on their proper sphere of authority, since administrative decision-makers were now resolving disputes that would otherwise have come before the courts. To fight back, the courts put the broad concept of jurisdiction discussed above to us. They concluded that administrative tribunals' actions were legal as long as those actions were within the tribunal's jurisdiction. (28) But, as noted above, any exercise of public power can be discussed in jurisdictional terms. As a result, any administrative decision could be judicially reviewed by a court. The vast majority of this "judicial review" concerned whether the administrative tribunal had correctly interpreted the provisions in its enabling statute. (29) The supremacy of the courts over administrative tribunals--long asserted and debated--was cemented when the Court made this supremacy a constitutional necessity in Crevier v AG (Quebec), (30) declaring that no legislature could completely immunize an administrative tribunal from judicial review...