CIVE 463 Lecture Notes - Lecture 20: A. V. Dicey, Law Society, Trinity Western University
25 May 2018
School
Department
Course
Professor
Class 20: Agency jurisdiction to apply the Charter; Charter remedies
Determining whether an administrative tribunal has the authority to apply the Charter and
remedies available under the Charter
Issue arose as the Charter was implemented
Trilogy
• A series of 3 cases: Douglas, Trinity Western- whether an administrative tribunal has
authority to apply Charter to its own enabling statute
• TEST - If legislature has given an agency legal power to interpret questions of law, the
Charter is a question of law so admin agencies can have jurisdiction over the issue.
Legislature itself gave the executive the power to do so.
• Lamer J: no because in the Diceyan world/orthodox view of law giving - watertight silos
: legislature makes the law, the executive apply the law and judiciary interpret the law. So
if executive bodies interpret the legislature, the executive is telling the legislature whether
or not it will implement the legislation.
Cooper
• As in Mossop, HRs codes have a list of prohibited grounds of discrimination. S 15(c) HR
Codes: carve out: if asked to retire at the normal age of retirement this will not offend the
prohibition of discrimination on the basis of age.
• Pilots asked that HR commission should not treat s 15(c) of HR Codes as operative =
remedy
• Q: the way the court had described the capacity to interpret Q of law in old trilogy: large
interpretation. In Cooper: because the HR Commission has no authority to interpret and
apply issues of law, no enabling authority to interpret Charter. Authority over the whole
matter: jurisdiction with respect to subject matter, parties, and remedies. Because
HR Commission has no authority over the remedy, cannot determine Q of law.
o Ex. HR tribunal, might have authority → but if the commission does not have
authority, a tribunal cannot be created!!
• Dissent (McLachlin et al): the Charter is not a wholly grail - the Charter belongs to the
people - to willfully hamstring our jurisprudence on the simple contingent features of the
institutional composition of the HR commission.
General Critique: too formalist
New trilogy & Martin
• New test: it is still the case that admin agency has the authority to interpret Q of
law, but no difference between restrained and general Q of law anymore.
• Has to have authority to determine Q of law arising from statutory provision(s) giving
rise to the dispute. Ex. workers’ compensation & chronic pain. In Nova Scotia, such
workers would be put on 4 weeks program - but not entitled to usual benefits. The Board:
this program offends s 15. SCC: agreed with the board and set out the condition under
which the agency has authority to apply Charter to their statute
• TEST from the SCC:
o 1) Question of law arising from legislative provision
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Class 20: agency jurisdiction to apply the charter; charter remedies. Determining whether an administrative tribunal has the authority to apply the charter and remedies available under the charter. Charter is a question of law so admin agencies can have jurisdiction over the issue. Legislature itself gave the executive the power to do so: lamer j: no because in the diceyan world/orthodox view of law giving - watertight silos. : legislature makes the law, the executive apply the law and judiciary interpret the law. So if executive bodies interpret the legislature, the executive is telling the legislature whether or not it will implement the legislation. Cooper: as in mossop, hrs codes have a list of prohibited grounds of discrimination. In cooper: because the hr commission has no authority to interpret and apply issues of law, no enabling authority to interpret charter. Authority over the whole matter: jurisdiction with respect to subject matter, parties, and remedies.
