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DETERMINING JURISDICTION TO HEAR CASES
(Prepared for the Training Program for Tribunal Members offered
by the Council of Canadian Administrative Tribunals in collaboration
with the Heads of Federal Administrative Tribunals Forum -
November 5 – 9, 2012)
TABLE OF CONTENTS
The Expansion of Administrative Tribunals and Agencies
Courts and Administrative Tribunals
What is included in the executive branch?
The Distinct Nature of Administrative Tribunals
Public Servants Disclosure Protection Tribunal
El-Helou 2011 PT 01: Arguments
Reasons for Decision On Jurisdiction: Historical Overview of Legislation
Reasons for Decision On Jurisdiction: Quasi-Constitutional Status
Reasons for Decision On Jurisdiction: Scope of Tribunal’s Powers and Jurisdiction
Reasons for Decision On Jurisdiction: Essential Character of Dispute
Reasons for Decision On Jurisdiction: Other Comments
Overview
- The role of tribunals in government.
- The evolution of tribunals, definitions and where tribunals belong.
- The meaning of “jurisdiction”.
- The use of statutory interpretation in determining jurisdiction.
- Examples.
The Expansion of Administrative Tribunals and Agencies
- Late 19th century and early 20th century: courts viewed tribunals as autocratic by nature.
- Post WW I: expanded role in regulation of Canadians.
- Post WWII: by 1979, many if not most aspects of the economic life of Canada was regulated.
- Since 2000: even greater expansion, and reflections on the role of administrative tribunals.
Definitions
- Boards, commissions, appeal committees and other administrative bodies created by government to assist in carrying out its decision-making responsibilities.
- Administrative justice agencies that provide specialized forums for decision-making and dispute resolution, separate from day-to-day operations of government departments.
Legislative Branch
- Parliament, the elected law-making branch of government.
- Has the power and responsibility to create laws.
- Tribunals are not part of the legislative branch, but…
- Statutes create tribunals.
Judicial Branch
- Courts.
- Decides cases in accordance with law, facts.
- Administers justice by interpreting and applying the law.
- Includes judges and the courts and operates independently from the other branches of government.
- Administrative tribunals are not part of the judicial branch but play an essential role in the resolution of disputes.
Courts and Administrative Tribunals
Courts
- Judicial branch.
- Authority to govern their operations by virtue of their status as courts.
- Use formal rules of evidence in their hearing processes.
- Formality in their processes with complex rules.
- Apply procedures that must be followed, making the court system difficult for the average person to use without the assistance of a lawyer.
Administrative Tribunals
- Executive branch.
- Must find the authority to govern their operations within their governing statute. Tribunals have only those powers that are set out in their statute or that are reasonably necessary to carry out those powers.
- Not bound by the formal rules of evidence used in the court system. Evidence must be relevant and reliable, in keeping with procedural fairness principles.
Executive Branch
- Operates, implements and enforces all the laws created by the legislative branch.
- It is composed of the Queen (represented by the Governor General), the Cabinet (a body of high-ranking members of government that includes the prime minister) and the administration.
What is included in the executive branch?
- Government departments, the armed forces, Crown corporations and other bodies.
- Administrative tribunals are “creatures of statute” and receive their jurisdiction entirely from their statutes.
- Administrative tribunals, agencies, boards are considered to be part of the executive.
The Distinct Nature of Administrative Tribunals
- Administrative tribunals, boards and agencies:
- must maintain complete neutrality;
- are distinct from government departments and operate independently (“firewalls”) from them;
- they are also distinct from other arm’s length public bodies such as Crown corporations, policy advisory bodies, community boards and grant funding agencies.
- Have some of the attributes of courts, if they are quasi-judicial in scope.
- Are often considered to have expertise in the interpretation of their statutes. In theory, and on the ground, they may be afforded some deference.
Tribunals and the Rule of Law
- The rule of law provides that the law is the highest authority.
- No one is above the law and everyone is equal before the law.
- Tribunals are subject to the rule of law, which means that they must operate within it.
- Tribunals are governed by several sources of law including:
- The Canadian Constitution;
- The statute that creates the tribunal;
- Any accompanying regulations (governing statute);
- Principles of interpretation;
- Judge made law (precedents);
- Principles of fairness and equity.
The Question of Jurisdiction
- Empowering statute
- Interpretation Act
- Constitution Acts
- Legislative History
- Text of Statute in the other official language
- Headings within statute
- Presumptions in criminal or regulatory statutes
- Presumption against retroactivity
- Presumption against redundancy
- Presumption against triviality
Recent Example
El-Helou v Courts Administration Service 2011 PT 01
Public Servants Disclosure Protection Tribunal
- First decision of the Public Servants Disclosure Protection Tribunal (PSDPT) on a question of jurisdiction.
- Two-tiered process for complaints of reprisal resulting from the disclosure of wrongdoing.
- Application filed before the PSDPT only included one of the original allegations brought by the complainant when he filed complaint with the Public Sector Integrity Commissioner (Commissioner).
- Multiple parties involved.
El-Helou 2011 PT 01: Arguments
Arguments on jurisdiction included:
- Act has quasi-constitutional status;
- Tribunal has discretion as “master of its proceedings” to ensure fairness and impartiality;
- Essential character of the dispute.
Reasons for Decision On Jurisdiction: Historical Overview of Legislation
- C-11, C-25, C-2.
- Represents a different approach from traditional models for redress.
- Expanded definition of wrongdoing.
- Creation of new, specialized and independent tribunal, with expertise.
- The federal framework confirms that the Act was implemented only after careful thought and study. It was neither unplanned, nor created on the spur of the moment. The issues raised in this motion must be examined within this context.
Reasons for Decision On Jurisdiction: Quasi-Constitutional Status
- Preamble of the Public Servants Disclosure Protection Act.
- Interpretation Act, section 13: “the preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purpose and object”.
- The Tribunal recognizes that it must play its role to ensure that this new legislative scheme not be “enfeebled”. The Act should be given a large and liberal interpretation, in light of its objectives, preamble and remedial nature.
- Quasi-constitutional status not addressed: a broad interpretation of the Act does not preclude the application of the ordinary rules of statutory interpretation - especially true when the language of the Act and the intent of Parliament are clear.
Reasons for Decision On Jurisdiction: Legislative Framework of Public Servants Disclosure Protection Act
- Parliament clearly intended a gate-keeping function.
- Provisions of the Act clearly confer jurisdiction to decide reprisal complaints to the PSDPT, but only upon receipt of an “Application” from the Commissioner.
- Not a direct access tribunal.
- Looked to other jurisprudence (including similar models such as the Canadian Human Rights Tribunal).
Reasons for Decision On Jurisdiction: Examination of Act in Relation to Role of Commissioner and Tribunal
Look to the decisions that Commissioner must make:
- Is the complaint admissible?
- If so, should there be an investigation?
- If an investigation is conducted, then is an Application to the PSDPT warranted?
- If so, what is the scope of the Application before the PSDPT? (one or more allegations, individual respondents, sanctions, etc.)
Statutory Interpretation
- Paragraph 78 of decision on section 20.4 of the Public Servants Disclosure Protection Act.
- Tribunal observes that the wording in French and English is somewhat different.
- Refers to the headings of the statute for interpretive assistance.
- The subtitles in both languages make it clear that the reference in section 20.4 refers to the process of bringing an Application.
Reasons for Decision On Jurisdiction: Scope of Tribunal’s Powers and Jurisdiction
- Tribunal acknowledges it is master of its own proceedings.
- Broad scope of powers of the Tribunal under the Inquiries Act to decide whether or not reprisal has taken place.
- The four screening decisions that the Commissioner must make are an expression of the role of the Commissioner as a “gate-keeper”. They are more limited under the Inquiries Act, but are final in nature.
- Nothing in the legislation allows for a reconsideration of the decisions in the screening process. The only way to challenge the Commissioner’s decisions is through an application for judicial review before the Federal Court.
- The steps in the Commissioner’s decision-making process may or may not lead to an Application. The third and fourth steps of this process may lead to the referral of an Application embracing all the allegations from the initial complaint filed with Office of the Public Sector Integrity Commissioner, or only some of them.
Reasons for Decision On Jurisdiction: Essential Character of Dispute
- The Tribunal recognizes the subtle ways in which measures of reprisal might surface in the workplace.
- The Tribunal must remain faithful to Parliament’s intention.
- No ambiguity in the Act that would invite the PSDPT to take an integrated approach and become the forum of “exclusive jurisdiction”.
- The Act clearly provides for a two-tiered process.
Reasons for Decision On Jurisdiction: Other Comments
- The iron clad protection of public servants who disclose wrongdoing is a prerequisite for the functioning of the disclosure regime. The development of this framework arose, in part, from the considerable recognition that without effective protection, public servants may very well be reluctant to proceed with making a disclosure of wrongdoing. (Para 92)
- There is the possibility therefore, that evidence related to the initial complaint and all of its allegations may be considered at the hearing, once tested through legal principles such as admissibility, relevance and weight. There was agreement from all of the parties on this point. It is premature however, to embark on any determinations as to evidence in this motion. (Para 97)
Other Examples
- Implicit Powers
- Bell Canada v Canada (Canadian Radio-Television and Telecommunication Comm.) [1989] 1 S.C.R. 1722 (Bell Canada)
[… ] The powers of any administrative tribunal must of course be stated in its enabling statute but they may also exist by necessary implication from the wording of the Act, its structure and its purpose. Although courts must refrain from unduly broadening the powers of such regulatory authorities through judicial lawmaking, they must also avoid sterilizing these powers through overly technical interpretations.