Remedies Notes

Remedies

Overview

Remedies Ordered by Tribunal

CH Remedies

Enforcing Tribunal Remedies Challenging Tribunal Remedies

Internal Agency Mechanisms External Non Ct Mechanisms Ct Mechanisms Private Law Remedies

-e.g. ombudsperson

Stat Appeals JR

Remedies ordered by Tribunal

Types

• Discretionary- e.g. HRT

• Order fees, fines, etc.

• Declaratory

• CH > but must meet Conway or Martin test

Requirements

-1) although remedial powers may be very broad; must be enabled by the statute (no inherent jurisdiction) (Inuit Tapirisat)

-rationale: intended to be prospective and account for complexity and diversity

-e.g. HRT can do “anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act”

-2) where enabling statute not clear, can argue must have remedial power to execute purposes of the statute (although need specific statutory authority for payments of money)

Framework: Can Admin Body apply a CH Remedy?

Can tribunal assess constitutional validity of legislation? (s 52 Remedies) (Martin)

1) Is the administrative tribunal a court of competent jurisdiction?

-yes, if:

- (i) authorized to decide ?s of law based on Martin analysis:

-presumption: tribunals have authority to determine questions of law (must be rebutted)

-rationale: want to make CH accessible w/o requiring parallel proceedings in the cts

-usually, there is an explicit grant of authority in the statute

-if not, assess if there is implicit authorization to determine Qs of law?:

1. Guiding ? is legislative intent: but this inquiry doesn’t depend

upon if govt intended for tribunal to apply the CH

2. Instead assess if empowering legislation grants the tribunal jurisdiction to assess ?s of law

Consider statute as a whole: necessary to fulfill

mandate of tribunal?

-1^st level or appellate level?

-Interaction of tribunal w other parts of admin system

-comprehensive scheme replacing another area of law (like workers’ comp replaces tort)?

-Practical considerations such as efficiency (although are not determinative)

-These characteristics usually rest w adjudicative body but need not be determinative

-can be rebutted through:

-explicit or implicit statutory provision saying do not have authority

-rely on statute itself, not external factors

-onus rests on party asserting tribunal lacks jurisdiction

2) If so, then a remedy can be granted but:

- s. 52: tribunal remedy is to simply not apply the provision: suspend provision but cannot make declaration of invalidity (not binding precedent)

-only courts may apply a CH remedy and strike down legislation (binding)

-often will be quashed and sent back for rehearing (mandamus and ceritori)

S 24 Remedies (Conway)

1) Is the administrative tribunal a court of competent jurisdiction?

-yes, if:

- (i) authorized to decide ?s of law based on Martin analysis:

-presumption: tribunals have authority to determine questions of law (must be rebutted)

-rationale: want to make CH accessible w/o requiring parallel proceedings in the cts

-usually, there is an explicit grant of authority in the statute

-if not, assess if there is implicit authorization to determine Qs of law?:

-i. guiding ? is legislative intent: but this inquiry doesn’t depend upon if govt intended for tribunal to apply the CH

ii. instead assess if empowering legislation grants the tribunal

jurisdiction to assess ?s of law

-consider statute as a whole: necessary to fulfill

mandate of tribunal?

-1^st level or appellate level?

-Interaction of tribunal w other parts of admin system

-comprehensive scheme replacing another area of law (like workers’ comp replaces tort)?

-Practical considerations such as efficiency (although are not determinative)

-These characteristics usually rest w adjudicative body but need not be determinative

-can be rebutted through:

-explicit or implicit statutory provision saying do not have authority

-rely on statute itself, not external factors

-onus rests on party asserting tribunal lacks jurisdiction

- (ii) has not been excluded from Charter jurisdiction by statute

-if yes to i) and ii), the tribunal is a ct of competent jurisdiction as per s 24

2) Does the tribunal have the statutory authority to grant the particular remedy at issue?

-yes, if the scope and nature of the tribunal’s statutory mandate and functions provide authority to grant a particular remedy

-look to legislative intent: mandate, structure and function

-if yes then individual relief can be granted

-in Conway, although it was held it was a court of competent jurisidiction, remedy not available to ORB bc of reqmts under enabling statute: C still a danger to public> to grant an absolute discharge would be beyond the boards authority

Criticisms:

-this approach is described as beneficial bc its institutionally focused as opposed to putting onus on litigants to test remedy by remedy> but practically this might not be the case

-as applicant must prove remedy available under tribunal, and then assess substance of violation, can result in applicant never getting to hear merits of case:

-here, bc the remedy is unavailable, C never gets to hear the merits of his case> would need to go to ct

-thus no bifurcation of proceedings; access to justice issue

-suggests that applicants are entitled to petition boards only for remedies already available under the statute

-yet, scope of tribunals to have jurisdiction over CH and remedies has broadened> may give rise to JR of admin granting remedies not already available under the statute

Tribunal Structure to Implement Remedies

-i) public/private partnerships

-ii) independent 3^rd party who tries to develop and implement remedial measures:

-e.g. ON Correctional Services > McKinnon

Enforcing Tribunal Remedies against Parties

-enforcement becomes possible immediately if no one challenges order

i) Tribunal Seeks to Enforce its own Order

-few tribunals can enforce own their own remedies:

-e.g. professional licensing bodies, federal competition tribunal

-ability to self-enforce must flow from enabling statute and be constitutional

-more commonly, tribunal applies to a court:

-remedy or order assumed to be correct if not appealed or appeal unsuccessful

-ON Stat Powers Pro Act allows tribunals to apply to Div Ct for contempt – e.g. McKinnon

-if successful, order enforced as would a court judgment

-can occur until JR or appeal

-must be clear violation of enforcement

ii) Party Seeks To Enforce Tribunal Order

-e.g. teachers seeking to enforce arbitrators order

-a private party: must show court it should intervene, even though there may be stat authority to do so

iii) Criminal Prosecution

-statutes provide for quasi crim prosecution, e.g. Securities or Fisheries Act

-fed CC can be used to enforce if no punishment provision is in tribunals enabling statute

Court Imposed Remedies

Difference bw Statutory Appeals and JRs

Stat Appeals	JRs
-more common	-more rare
-source: enabling statute -not inherent: without statute, no inherent right of appeal	-source: inherent supervisory power of cts over inferior admin bodies which is protected under s 96 BNA (Crevier) (prov); for fed matters: FCA
-guaranteed: indicative of legislative intent to allow right of appeal	-discretionary in terms of occurrence: leave needs to be granted
-narrower in scope: can only address final dispositions or substantive holdings (no interlocutory proceedings, e.g. jurisdiction, bias or evidentiary issues)	-broader in scope: can address interlocutory proceedings, e.g. jurisdiction, bias or evidentiary issues
-constrained by parameters of statute: outcome easier to predict	-unpredictable in terms of outcome
-outcome is broader: can be change in substance of decision, thus more preferable for litigant -could issue a CH remedy	-as merely supervisory role, outcome does not result in change of substance of decision: arguably less beneficial -remedies issued: -prerogative writs -private law remedies (declarations and injunctions) -CH

Framework: Is there a Statutory Right of Appeal?

a) Does the Tribunal’s Enabling Statute Provide for a Right of Appeal?

-cts have no inherent appellate jurisdiction over admin tribunals

-right to appeal must be found in enabling statute or by JR

-no right to appeal on interlocutory proceedings (e.g. jurisdiction, bias, evidentiary issues) > to be appealable, it must be a final disposition/ substantive holding

-enabling statute sets out which ct to appeal to:

-fed issues: FC or FCA

-prov: div ct

b) What Is the Scope of the Available Appeal?

-determined by enabling statute: e.g. de novo, or from previous records proceedings

-often determined by how closely tribunals subject matter mirrors the mandate and expertise of courts

-statutes more likely to have right of appeal where CL or HR rights affected

- e.g. HRT, prof discipline boards; while expert tribunals., e.g. LR often cannot be reviewed

-even where appeal rights are broad, cts will show some deference to a tribunals findings of fact

-Dunsmuir framework applies to stat appeal

-but, unlike JR, cts not expected to defer simply bc they are the decision makers of first instance

c) Is an Appeal Available as of Right, or is Leave Required? If Leave is Required, Who Can Grant It?

-appeal as of right = no application

-leave> either from original decision maker or ct, sometimes there may be additional stat criteria

-FCA does not require leave for JR unless under IRPA scheme

d) Is Stay of Proceedings Automatic or Does One Need to Apply?

-varies from jurisdiction and tribunal

-enabling statutes may empower tribunals or cts to stay enforcement of order pending appeal

- ON SPPA: default rule that an appeal operates as a stay of proceedings

-FC: stays are discretionary

-legislatures decision to grant an automatic stay reflects balancing of due process, efficiency, tribunal expertise and judicial oversight

Framework: Is Judicial Review Available?

*NB: discretionary

1. Authorization of Power

-s 96 of Constitution: provides inherent role of sup cts in reviewing inferior tribunals and this role cannot be usurped by a prov tribunal (Crevier; MacMillian)

2. Qualify for Judicial Review?

   1. Only Public Bodies Subject to Review

-public when have power conferred by statute; but not always clear

1. Test: (McDonald)

   1. Source of power public? Perform a public function?

-consider:

• (a) the source of the board’s powers

• (b) the functions and duties of the body

• (c) whether govt action has created the body, or whether, but for the body, the government would directly occupy the area, such that there is an implied devolution of power

• (d) the extent of the government’s direct or indirect control over the body

• (e) whether the body has the power over the public at large, or only those persons who consensually submit to its jurisdiction

• (f) the nature of the body’s members and how they are appointed

• (g) how the board is funded

• (h) the nature of the board’s decisions – does it seriously affect individual rights and interests

• (i) whether the body’s constituting documents, or its procedures, indicate that a duty of fairness is owned

• (j) the body’s relationship to other statutory schemes or other parts of government such that the body is woven into the network of government

-e.g. in McDonald: policing found to be a public function, source came from an Exercise prerogative power to enter into agreement

• Function: Policing is a public function

2. Which Court to Apply to for JR?

   1. Look to the enabling statute for information

   2. If nothing, look to provincial or federal statutes such as FCA or JRPA

      1. If federally created bodies, and nothing in statute, then see FCA Original Jurisdiction below (s.18(1))

      2. If provincially created body, and nothing in statute, then send to Superior Provincial Court

3. Does the Party have Standing?

-s. 18.1, FCA: standing granted to AG and any paties affected by proceeding

1. Yes, if actual parties to the action

2. Yes, if public interest standing (MiningWatch)

- Cdn Council of Churches: 3 part test:

i) show that serious issue has been raised

-encompasses both the importance of the issues and likelihood of case’s succhess

ii) must have genuine or direct interest in outcome of the litigation

-related to party’s experience and expertise re issue

iii) no reasonable and effective way to bring matter to court

-is there a more appropriate applicant?

4. Are deadlines met?

i. FCA: must be made w/in 30 days after decision if challenging a decision and

not scheme as a whole, but can be extended

5. Ensure exhausted all other adequate means of recourse (internal review)? (Harelkin)

   1. Note: exhaustion is not always required (cite Dickson in dissent in Harelkin as internal recourse was...

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