In a landmark decision, authored by Justice Rosalie Abella, the Supreme Court of Canada has unanimously declared that all regulatory tribunals that are empowered to decide questions of law – which include arbitrators, labour relations boards and other tribunals in the fields of labour, employment and human rights – have the same jurisdiction as courts to apply the Canadian Charter of Rights and Freedoms and to order whatever remedies they find appropriate, with the exception only of any remedies that are expressly precluded by the legislation under which they operate.

The specific subject matter of the case decided by the Court on June 11, R. v. Conway, involved a claim by an accused sexual offender found not guilty by reason of insanity in 1984 that his continued detention in a mental hospital violated his Charter rights and that the appropriate remedy was absolute discharge by the Ontario Review Board. The Supreme Court disagreed, as he was still considered dangerous. However, the Court took the occasion to issue a sweeping ruling affirming the Charter jurisdiction of administrative tribunals in general.

Writing for a nine-member Court, Justice Rosalie Abella focused on the jurisdiction of administrative tribunals to order remedies under s.24(1) of the Charter, which states that "[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

Asserting that "[w]e do not have one Charter for the courts and another for administrative tribunals," Abella explained: "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."

Building on these principles, Justice Abella declared on behalf of the Court that "when a remedy is sought from an administrative tribunal under s.24(1), the proper initial inquiry is whether the tribunal can grant Charter remedies generally. To make this determination, the first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law. If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal's jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter – and Charter remedies – when resolving the matters properly before it. Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function."

Abella based this declaration on her review of a "jurisprudential evolution" that, she said, led to two conclusions: "first, that administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutional questions that are linked to matters properly before them. And secondly, they must act consistently with the Charter and its values when exercising their statutory functions."

In Abella's view, based on this jurisprudence, it was "somewhat unhelpful, therefore, to subject every such tribunal from which a Charter remedy is sought to an inqury asking whether it is 'competent' to grant a particular remedy within the meaning of s.24(1).... If, as in the Cuddy Chicks trilogy, expert and specialized tribunals with the authority to decide questions of law are in the best position to decide constitutional questions when a remedy is sought under s.52 of the Constitution Act, 1982, there is no reason why such tribunals are not also in the best position to assess constitutional questions when a remedy is sought under s.24(1) of the Charter." In unambiguous terms, Abella outlined the approach to be taken: "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."

Having earlier commented that "[t]his 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," Justice Abella concluded that "[o]ver two decades of jurisprudence has confirmed the practical advantages and constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals.... The denial of early access to remedies is a denial of an appropriate and just remedy.... And a scheme that favours bifurcating claims is inconsistent with the well-established principle that an administrative tribunal is to decide all matters, including constitutional questions, whose essential factual character falls within the tribunal's specialized statutory jurisdiction."

Comment:

It is not yet clear whether this decision will in any way expand the role of administrative tribunals in the fields of labour and employment including arbitrators and labour relations boards, as such tribunals have already been exercising broad Charter powers on the basis of past jurisprudence. In Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the Supreme Court established that a labour arbitrator appointed under the Ontario Labour Relations Act was a court of competent jurisdiction for the purpose of granting damages and a declaration under s.24(1) of the Charter in relation to disputes which in their essential character arose out of the collective agreement between the parties. In Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, the Supreme Court ruled that a labour arbitrator, governed by British Columbia's Industrial Relations Act and appointed under the parties' collective agreement, had the jurisdiction to determine the Charter constitutionality of a mandatory retirement clause in the collective agreement, because the express authority under the Act to "provide a final and conclusive settlement of a dispute" permitted arbitrators to interpret and apply any statute that regulated employment including the Charter. In Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, the Supreme Court held that the Ontario Labour Relations Board could determine whether a provision of Ontario's Labour Relations Act that excluded agricultural workers from the protections of the Act should be declared unconstitutional and of no force and effect as a breach of the Charter.

R. v. Conway
Supreme Court of Canada
Justices Rosalie Abella, Beverley McLachlin, Ian Binnie, Louis LeBel, Marie Deschamps, Morris Fish, Louise Charron, Marshall Rothstein and Thomas Cromwell
June 11, 2010

Read the full text of the Supreme Court of Canada's decision in R. v. Conway.