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...

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