[ql06] Re: PUBLIC: SCC on chronic-pain issue
- From: Sheldon Erentzen <sheldon.erentzen@xxxxxxxxxxxx>
- To: ql06@xxxxxxxxxxxxx
- Date: Mon, 06 Oct 2003 19:26:17 -0400
Yeah sorry about the lack of credit. The article was taken from the
online globe and mail (Friday Oct 3rd) who credited the source as the
canadian press, which I think is similar to Reuters. You'd know better
than me, Ken.
>Also -- the short decision you included does deal with the Charter
>aspects... but would you be so kind as to clip and paste the sections
>dealing with a tribunal's right to interpret the Charter?
>
you're giving me some extra work here Ken as I just took the clipping
straight from the announcement I received through the SCC listserv.
But...here's the most significant quote from the case. The judgement is
144 pages long so i'm sure there's more in the sections I haven't read
yet.
Taken from Quicklaw.
To allow an administrative tribunal to decide Charter issues does not
undermine the role of the courts as final arbiters of constitutionality
in Canada. Administrative tribunal decisions based on the Charter are
subject to judicial review on a correctness standard. In addition, the
constitutional remedies available to administrative tribunals are
limited and do not include general declarations of invalidity. A
determination by a tribunal that a provision of its enabling statute is
invalid pursuant to the Charter is not binding on future
decision-makers, within or outside the tribunal's administrative scheme.
Only by obtaining a formal declaration of invalidity by a court can a
litigant establish the general invalidity of a legislative provision for
all future cases.
The Court of Appeal erred in concluding that the Appeals Tribunal
did not have jurisdiction to consider the
constitutionality of the challenged provisions of the Act and the
Regulations. Administrative tribunals which have jurisdiction, explicit
or implied, to decide questions of law arising under a legislative
provision are presumed to have concomitant jurisdiction to decide the
constitutional validity of that provision. In applying this approach,
there is no need to draw any distinction between "general" and "limited"
questions of law. Explicit jurisdiction must be found in the terms of
the statutory grant of authority. Implied
jurisdiction must be discerned by looking at the statute as a whole.
Relevant factors will include the statutory mandate of the tribunal in
issue and whether deciding questions of law is necessary to fulfilling
this mandate effectively; the interaction of the tribunal in question
with other elements of the administrative system; whether the tribunal
is adjudicative in nature; and practical considerations, including the
tribunal's capacity to consider questions of law. Practical
considerations, however, cannot override a clear implication from the
statute itself. The party alleging that the tribunal lacks jurisdiction
to apply the Charter may rebut the presumption by pointing to an
explicit withdrawal of authority to consider the Charter; or by
convincing the court that an examination of the statutory scheme clearly
leads to the conclusion that the legislature intended to exclude the
Charter (or a category of questions that would include the Charter, such
as constitutional questions generally) from the scope of the questions
of law to be addressed by the tribunal. Such an implication should
generally arise from the statute itself, rather than from external
considerations. To the extent that Cooper v. Canada (Human Rights
Commission), [1996] 3 S.C.R. 854, is inconsistent with this approach,
it should no longer be relied upon.
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