Constitution Act, 1982, 1982, c. 11 (U.K.), Schedule B

Primacy of Constitution of Canada

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Human Rights Code, [R.S.B.C. 1996] c. 210.

Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570

I come then to the application of these principles to the present case.  The question here is whether an arbitrator in deciding a grievance under a collective agreement may apply the Charter and grant the relief sought for its breach.  I have no doubt that he can.  The arbitrator is under s. 98 of the Labour Code, supra, expressly granted authority "to provide a final and conclusive settlement of a dispute arising under a collective agreement" (emphasis added), and it gives a wide range of appropriate remedies for that purpose.  In accomplishing his task, the arbitrator is empowered by s. 98(g) to interpret and apply any Act intended to regulate employment.

It is clear that the arbitrator has jurisdiction over the parties.  The issue to be decided is whether he also has authority over the subject matter and the remedy sought.  Clearly the grievance raised by the association is based not on the terms of the collective agreement alone, but is premised upon the application of s. 15(1) of the Charter.  In my view, s. 98(g) allows the arbitrator to apply the Charter.  "Act", as referred to in s. 98(g), must include the Charter.  It is true that a qualifying element in s. 98(g) is that the act in question must be intended to regulate employment relationships, and that this is not the sole purpose of the Charter.  However, it is certainly one type of relationship intended to be covered by s. 15(1).

I recognize (and I shall have more to say about this later) that applying the Charter will further complicate the tasks confronting an arbitrator.  Arguments of practicality and convenience, although not determinative of the question, must be taken into account.  The college makes a strong argument that the relatively informal arbitration process is not well suited to the volume or nature of evidence that would be led in Charter claims.  While I agree that there is some merit to this argument, I cannot accept the college's contention that the interpretation and application of the Charter is vastly different from the application of ordinary statutes for which arbitrators are responsible.  For example, there is little difference in certain provisions of the Human Rights Codes which arbitrators may hold to override provisions in collective agreements.

...

A fortiori, I think, there cannot be a Constitution for arbitrators and another for the courts.

Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5

In rejecting the employer’s argument that the superior court, not the Labour Board, should deal with the constitutional question, and drawing on his reasons in Douglas College, La Forest J.’s “overarching consideration” was that where administrative bodies like the Labour Board have specialized expertise, that expertise makes them the appropriate forum for assessing Charter compliance:

It is apparent, then, that an expert tribunal of the calibre of the Board can bring its specialized expertise to bear in a very functional and productive way in the determination of Charter issues which make demands on such expertise.  In the present case, the experience of the Board is highly relevant to the Charter challenge to its enabling statute, particularly at the s. 1 stage where policy concerns prevail.  At the end of the day, the legal process will be better served where the Board makes an initial determination of the jurisdictional issue arising from a constitutional challenge.  In such circumstances, the Board not only has the authority but a duty to ascertain the constitutional validity of s. 2(b) of the Labour Relations Act. [Emphasis added; p. 18.]

After citing a number of cases in which labour boards were found to have the jurisdiction  to consider constitutional questions relating to their own jurisdiction, such as Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031, La Forest J. observed:

What these cases speak to is not only the fundamental nature of the Constitution, but also the legal competence of labour boards and the value of their expertise at the initial stages of complex constitutional deliberations.  These practical considerations have compelled the courts to recognize a power, albeit a carefully limited one, in labour tribunals to deal with constitutional issues involving their own jurisdiction.  Such considerations are as compelling in the case of Charter challenges to a tribunal’s enabling statute.  Therefore, to extend this “limited but important role” of labour boards to the realm of the Charter is simply a natural progression of a well established principle.

Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22

As I have stressed in both Douglas College and Cuddy Chicks, supra, s. 52(1) does not, in itself, confer the power to an administrative tribunal to find a legislative provision to be inconsistent with the Charter.  Rather, the inquiry must begin with an examination of the mandate given to the particular tribunal by the legislature.

Whereas in Cuddy Chicks, the Ontario Labour Relations Board was expressly empowered under s. 106(1) of the Labour Relations Act, R.S.O. 1980, c. 228, "to determine all questions of fact or law that arise in any matter before it . . .", the Board of Referees is given no such explicit authority in this case.  The express mandate given to a particular tribunal by the legislature will normally be the most important factor in determining whether the tribunal has the power to find a legislative provision to be inconsistent with the Charter. 

In the instant case, although the Unemployment Insurance Act, 1971 does not specifically address the issue whether the Board of Referees has jurisdiction to consider all relevant law, such jurisdiction is expressly conferred upon the umpire, to whom an appeal from the Board of Referees may be made.  Section 96 of the Act (later s. 81), in relevant part, provides that:

96. An umpire may decide any question of law or fact that is necessary for the disposition of any appeal . . . and may dismiss the appeal, give the decision that the board of referees should have given . . . confirm, rescind or vary the decision of the board of referees in whole or in part.  [Emphasis added.]

Further, as Lacombe J. pointed out, s. 70(4) of the Unemployment Insurance Regulations, C.R.C., c. 1576, as am. by SOR/82-1046, which dates from November 26, 1982, specifically contemplates the possibility of an umpire's finding a provision of the Act or regulations unconstitutional….  That provision reads:

70. . . .

                     (4)  Where, in respect of a claim for benefit, an umpire has declared a provision of the Act or these Regulations to be ultra vires and an application is made by the Commission in accordance with the Federal Court Act to review the decision of the umpire, benefits are not payable in respect of any claim for benefit made subsequent to the decision of the umpire until the final determination of the claim under review, where the benefit would not otherwise be payable in respect of any such subsequent claim if the provision had not been declared ultra vires.

Taken together, these two provisions provide a strong indication that the legislature intended that the umpire have power to find provisions of the Act or its accompanying regulations inconsistent with the Charter.  It is significant that the umpire has been expressly provided with this power, while the Board of Referees has not.

Applying the test set forth in Douglas College and Cuddy Chicks, I find that, while the Board of Referees had jurisdiction over the parties in this case, it did not have jurisdiction over the subject matter and the remedy.  The subject matter before the Board concerned not simply the determination of the respondent's eligibility for benefits, but also the determination of whether s. 31 of the Unemployment Insurance Act, 1971 violated s. 15 of the Charter.  Similarly, the remedy would have required the Board to disregard s. 31 when awarding the respondent benefits, assuming it found s. 31 to be inconsistent with the Charter.  As I indicated above, under the legislative scheme described in the Act, such a determination rested within the jurisdiction of the umpire, not the Board of Referees.

Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854:

Section 15(c) of the Canadian Human Rights Act, R.S.C. 1985, reads as follows:

15. It is not a discriminatory practice if…

(c) an individual's employment is terminated because that individual has reached the normal age of retirement for employees working in positions similar to the position of that individual;

45. 45. In three previous cases, Douglas College, supra, Cuddy Chicks, supra, and Tétreault-Gadoury, supra, this Court has had the opportunity to address the principles underlying an administrative tribunal’s jurisdiction to consider the constitutionality of its enabling statute.  These authorities make it clear that no administrative tribunal has an independent source of jurisdiction pursuant to s. 52(1) of the Constitution Act, 1982.  Rather, the essential question facing a court is one of statutory interpretation -- has the legislature, in this case Parliament, granted the administrative tribunal through its enabling statute the power to determine questions of law? 

52. 52. With the exception to be noted later, there is no explicit provision in the Act giving to the Commission power to determine questions of law.  Nor is there anything in the scheme of the Act to imply that the Commission has this power.  Looking at the Act as a whole it is evident that the role of the Commission is to deal with the intake of complaints and to screen them for proper disposition. 

53. 53. The Commission is not an adjudicative body; that is the role of a tribunal appointed under the Act.  When deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission fulfills a screening analysis somewhat analogous to that of a judge at a preliminary inquiry.  It is not the job of the Commission to determine if the complaint is made out.  Rather its duty is to decide if, under the provisions of the Act, an inquiry is warranted having regard to all the facts.  The central component of the Commission’s role, then, is that of assessing the sufficiency of the evidence before it. 

55. 55. Notwithstanding the general scheme of the Act, there are specific provisions, notably ss. 27, 40 and 41, that both the appellants and the Commission fastened upon as indicating anintent by Parliament to have the Commission determine questions of law.  However, these sections amount to no more than that the Commission has power to interpret and apply its enabling statute.  It does not follow that it then has a jurisdiction to address general questions of law.  Every administrative body, to one degree or another, must have the power to interpret and apply its own enabling statute.  If this were not the case, it would be at the mercy of the parties before it and would never be the master of its own proceedings.  The power to refuse to accept a complaint, or to turn down an application, or to refuse to do one of the countless duties that administrative bodies are charged with, does not amount to a power to determine questions of law as envisaged in Douglas/Kwantlen, Cuddy Chicks and Tétreault-Gadoury.  To decide otherwise would be to accept that all administrative bodies and tribunals are competent to question the constitutional validity of their enabling statutes, a position this Court has consistently rejected

58. 58. The role of the Commission as an administrative and screening body, with no appreciable and adjudicative role, is a clear indication that Parliament did not intend the Commission to have the power to consider questions of law.  There is simply nothing in the Act indicating that the Commission has the mandate which the appellants and the Commission would wish it to have.  A second and more telling problem in the case of the Commission is its lack of expertise.  In Tétreault-Gadoury, supra, I pointed out, at p. 34, that an Umpire under the Unemployment Insurance Act was a Federal Court judge which would ensure that a complainant received “a capable determination of the constitutional issue”.  Similarly in both Douglas/Kwantlen and in Cuddy Chicks, supra, the expertise of labour boards and the assistance they could bring to bear on the resolution of constitutional issues was recognized.  In contrast this Court has made clear in Mossop, supra, at pp. 584-85, and reiterated in Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, at pp. 599-600, that a human rights tribunal, unlike a labour arbitrator or labour board, has no special expertise with respect to questions of law.  What is true of a tribunal is even more true of the Commission which, as was noted in Mossop, is lacking the adjudicative role of a tribunal.

62. 62. To my mind the relevant practical considerations do not argue in favour of having the Commission consider Charter Without question there is on the surface an attraction and efficiency, at least for the complainant, in having the constitutional matter first heard by the Commission.  That will always be so, however, and in the present situation I am of the view that the reality would in fact be different.  It is likely that in a case such as the one presently before us the decision of the Commission on the validity of a provision of the Act under the Charter would be the subject of judicial review proceedings in the Federal Court.  It would be more efficient, both to the parties and to the system in general, to have a complainant seek a declaration of constitutional invalidity in either the Federal Court or a provincial superior court.  In such a setting the question can be debated in the fullness it requires and the proper expertise can be brought to bear on its resolution.

In dissent, McLachlin J. (L’Heureux-Dubé J. concurring) reinforced the view expressed in the trilogy that “administrative tribunals empowered to decide questions of law may consider Charter questions” (para. 81), and once again confirmed that in light of the doctrine of constitutional supremacy:

70. In my respectful view, the majority approach depreciates the language of s. 52 of the Constitution Act, 1982, makes it more difficult for the Human Rights Commission to fulfil its mandate, and places burdens on the victims of discrimination in their fight for equality that Parliament cannot have intended.  If this is the clear effect of the Act and the law, then these results, however illogical, unjust and inconvenient they may be, must be accepted.  But, unlike the majority, I do not find this to be the clear effect of the law.  In my view, every tribunal charged with the duty of deciding issues of law has the concomitant power to do so.  The fact that the question of law concerns the effect of the Charter does not change the matter.  The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people.  All law and law-makers that touch the people must conform to it.  Tribunals and commissions charged with deciding legal issues are no exception.  Many more citizens have their rights determined by these tribunals than by the courts.  If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals.  If Parliament makes it clear that a particular tribunal can decide facts and facts alone, so be it.  But if Parliament confers on the tribunal the power to decide questions of law, that power must, in the absence of counter-indications, be taken to extend to the Charter, and to the question of whether the Charter renders portions of its enabling statute unconstitutional.

Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54

Gonthier J., writing for a unanimous Court, expressly rejected the 1996 ratio of the majority in Cooper:

It must be emphasized that the process of Charter decision making is not confined to abstract ruminations on constitutional theory.  In the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical. . . . The informed view of the Board, as manifested in a sensitivity to relevant facts and an ability to compile a cogent record, is also of invaluable assistance. [para. 30, citing Cuddy Chicks, at pp. 16-17]

Based on these principles, Gonthier J. concluded that the following determines whether it is within an administrative tribunal’s jurisdiction to subject a legislative provision to Charter scrutiny:

48. 48. The current, restated approach to the jurisdiction of administrative tribunals to subject legislative provisions to Charter scrutiny can be summarized as follows: (1) The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision. (2)(a) Explicit jurisdiction must be found in the terms of the statutory grant of authority. (b) 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. (3)  If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this  power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter.  (4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by (a) pointing to an explicit withdrawal of authority to consider the Charter; or (b) 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.

Administrative Tribunals Act, [SBC] 2004 c. 45:

Tribunal without jurisdiction over constitutional questions

44 (1) The tribunal does not have jurisdiction over constitutional questions.

(2) Subsection (1) applies to all applications made before, on or after the date that the subsection applies to a tribunal.

Tribunal without jurisdiction over Canadian Charter of Rights and Freedoms issues

45  (1) The tribunal does not have jurisdiction over constitutional questions relating to the Canadian Charter of Rights and Freedoms.

(1.1) Subsection (1) applies to all applications made before, on or after the date that the subsection applies to a tribunal.

(2) If a constitutional question, other than one relating to the Canadian Charter of Rights and Freedoms, is raised by a party in a tribunal proceeding

(a) on the request of a party or on its own initiative, at any stage of an application the tribunal may refer that question to the court in the form of a stated case, or

(b) on the request of the Attorney General, the tribunal must refer that question to the court in the form of a stated case.

Definitions

"constitutional question" means any question that requires notice to be given under section 8 of the Constitutional Question Act;

Constitutional Question Act, [R.S.B.C. 1996] CHAPTER 68

Notice of questions of validity or applicability

8  (1) In this section:

"constitutional remedy" means a remedy under section 24 (1) of the Canadian Charter of Rights and Freedoms other than a remedy consisting of the exclusion of evidence or consequential on such exclusion;

"law" includes an enactment and an enactment within the meaning of the Interpretation Act (Canada).

(2) If in a cause, matter or other proceeding

(a) the constitutional validity or constitutional applicability of any law is challenged, or [i.e, section 52]

(b) an application is made for a constitutional remedy [i.e, section 24(1)],

the law must not be held to be invalid or inapplicable and the remedy must not be granted until after notice of the challenge or application has been served on the Attorney General of Canada and the Attorney General of British Columbia in accordance with this section.

(3) If in a cause, matter or other proceeding the validity or applicability of a regulation is challenged on grounds other than the grounds referred to in subsection (2) (a), the regulation must not be held to be invalid or inapplicable until after notice of the challenge has been served on the Attorney General of British Columbia in accordance with this section

Accessing Section 7 of the Charter:

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

What is immediately striking about this section is the inclusion of "security of the person" as opposed to "property".  This stands in contrast to the classic liberal formulation, adopted, for example, in the Fifth and Fourteenth Amendments in the American Bill of Rights, which provide that no person shall be deprived "of life, liberty or property, without due process of law".  The intentional exclusion of property from s. 7, and the substitution therefor of "security of the person" has, in our estimation, a dual effect.  First, it leads to a general inference that economic rights as generally encompassed by the term "property" are not within the perimeters of the s. 7 guarantee.  This is not to declare, however, that no right with an economic component can fall within "security of the person".  Lower courts have found that the rubric of "economic rights" embraces a broad spectrum of interests, ranging from such rights, included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter, to traditional property -- contract rights.  To exclude all of these at this early moment in the history of Charter interpretation seems to us to be precipitous.  We do not, at this moment, choose to pronounce upon whether those economic rights fundamental to human life or survival are to be treated as though they are of the same ilk as corporate-commercial economic rights....

Criminal Protections (Charter sections 10-11) before administrative tribunals:

1. v. Wigglesworth, [1987] 2 S.C.R. 541

14     The breadth of the opening words of s. 11 "any person charged with an offence" suggests that the section may well apply to non-criminal proceedings. A few cases support this interpretation, holding that the rights guaranteed by s. 11 of the Charter are available to those "charged" with disciplinary offences. In Re Nash and The Queen (1982), 70 C.C.C. (2d) 490 (Nfld. Prov. Ct.), it was submitted before Kennedy Prov. Ct. J. that an internal disciplinary panel of the Royal Newfoundland Constabulary contravened s. 11(d) of the Charter because it was not an independent and impartial tribunal. In considering the meaning of the word "offence" in s. 11(d), Kennedy Prov. Ct. J. stated at p. 494:

The word "offence" is broad enough to apply to any breach or charge whereby an accused can be punished. "Offence" is broad enough to apply to any of the actions taken against members of self-governing professional groups and associations and is also applicable to offences involving breaches of codes of conduct for such groups as police forces and members of the armed services.

15     An equally broad interpretation of the word "offence" appears in Re Lazarenko and Law Society of Alberta (1983), 4 D.L.R. (4th) 389 (Alta. Q.B.), at p. 398 (subsequently disapproved by the Alberta Court of Appeal in Re Fang and College of Physicians & Surgeons of Alberta, supra). In R. v. B & W Agricultural Services Ltd. (1982), 3 C.R.R. 354 (B.C. Prov. Ct.), the accused was charged with a violation of the Aeronautics Act even although his licence had already been suspended for 30 days by an Air Transport Committee. Shupe Prov. Ct. J., noting that the term "offence" in s. 11 of the Charter was much broader than the term "criminal offence" in s. 2(f) of the Canadian Bill of Rights, R.S.C. 1970, [page554] App. III, granted the accused's request for a stay of proceedings based on s. 11(h) of the Charter. There is also some academic support for the broader interpretation of the word "offence" in s. 11. Morris Manning in Rights, Freedoms and the Courts: A Practical Analysis of the Constitution Act, 1982 (1983) states at p. 362 that the breach of a law which carries a penalty is a "penal matter" and is thus an "offence". He adds that the absence of the word "criminal" is indicative of the intent of the framers of the Charter to have s. 11 apply to more than purely criminal offences. At page 83 in his text on Legal Rights in the Canadian Charter of Rights and Freedoms: A Manual of Issues and Sources (1982), McDonald J. states:

... "offence" may include... "offences which may be committed only by persons who are members of certain organizations, such as the Armed Forces and the Royal Canadian Mounted Police.... The word "offence", which signifies "a breach of law" or "an infraction of law", may be so broad as to include conduct which constitutes a ground upon which, by statute, a professional body may impose discipline upon its members, by disqualification, suspension or a fine.

16     It is my view that the narrower interpretation of s. 11 favoured by the majority of the authorities referred to above is in fact the proper interpretation of the section. The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the State for public offences involving punitive sanctions, i.e., criminal, quasi-criminal and regulatory offences, either federally or provincially enacted. A number of factors impel me to this conclusion.

21     While it is easy to state that those involved in a criminal or penal matter are to enjoy the rights guaranteed by s. 11, it is difficult to formulate a precise test to be applied in determining whether specific proceedings are proceedings in respect of a criminal or penal matter so as to fall within the ambit of the section. The phrase "criminal and penal matters" which appears in the marginal note would seem to suggest that a matter could fall within s. 11 either because by its very nature it is a criminal proceeding or because a conviction in respect of the offence may lead to a true penal consequence. I believe that a matter could fall within s. 11 under either branch.

23     In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is the kind of matter which falls within s. 11. It falls within the section because of the kind of matter it is. This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited private sphere of activity: see, for example, Re Law Society of Manitoba and Savino, supra, at p. 292, Re Malartic Hygrade Gold Mines (Canada) Ltd. and Ontario Securities Commission (1986), 54 O.R. (2d) 544 (H.C.), at p. 549, and Re Barry and Alberta Securities Commission, supra, at p. 736, per Stevenson J.A. There is also a fundamental distinction between proceedings undertaken to promote public order and welfare within a public sphere of activity and proceedings undertaken to determine fitness to obtain or maintain a licence. Where disqualifications are imposed as part of a scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of "offence" proceedings to which s. 11 is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of "offence" proceedings to which s. 11 is applicable. But all prosecutions for criminal offences under the Criminal Code and for quasi-criminal offences under provincial legislation are automatically subject to s. 11. They are the very kind of offences to which s. 11 was intended to apply.

24     This is not to say that if a person is charged with a private, domestic or disciplinary matter which is primarily intended to maintain discipline, integrity or to regulate conduct within a limited private sphere of activity, he or she can never possess the [page561] rights guaranteed under s. 11. Some of these matters may well fall within s. 11, not because they are the classic kind of matters intended to fall within the section, but because they involve the imposition of true penal consequences. In my opinion, a true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity....

25     Before turning to the application of the law to the facts of this case, I want to emphasize that nothing in the above discussion takes away from the possibility that constitutionally guaranteed procedural protections may be available in a particular case under s. 7 of the Charter even although s. 11 is not available. The appellant in this case has chosen to base his case solely on s. 11 of the Charter. In view of this I make no comment on the applicability of s. 7.

What about Human Rights jurisdiction?

Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14:

3.1.3   Conclusion on Jurisdiction

40        I therefore conclude that the SBT has jurisdiction to consider the Code.  The ODSPA and OWA confirm that the SBT can decide questions of law.  It follows that the SBT is presumed to have the jurisdiction to consider the whole law.  More specifically, when it decides whether an applicant is eligible for income support, the SBT is presumed able to consider any legal source that might influence its decision on eligibility.  In the present appeal, the Code is one such source.

41        There is no indication that the legislature has sought to rebut this presumption.  To the contrary, the legislature has announced the primacy of the Code and has given itself clear directions for how this primacy can be eliminated in particular circumstances.  The legislature has indeed prohibited the SBT from considering the constitutional validity of enactments, or the vires of regulations, but it did nothing to suggest that the SBT could not consider the Code.  I cannot impute to the legislature the intention that the SBT ignore the Code when the legislature did not even follow its own instructions for yielding this result.

Administrative Tribunals Act (BC)

Discretion to decline jurisdiction to apply the Human Rights Code

46.1  (1) The tribunal may decline jurisdiction to apply the Human Rights Code in any matter before it.

(2) Without limiting the matters the tribunal may consider when determining whether to decline jurisdiction under subsection (1), the tribunal may consider whether, in the circumstances, there is a more appropriate forum in which the Human Rights Code may be applied.

Limited jurisdiction and discretion to decline jurisdiction to apply the Human Rights Code

46.2  (1) Subject to subsection (2), the tribunal may decline jurisdiction to apply the Human Rights Code in any matter before it.

(2) The tribunal does not have jurisdiction over a question of whether there is a conflict between the Human Rights Code and any other enactment.

(3) Without limiting the matters the tribunal may consider when determining whether to decline jurisdiction under subsection (1), the tribunal may consider whether, in the circumstances, there is a more appropriate forum in which the Human Rights Code may be applied.

(4) This section applies to all applications made before, on or after the date that this section applies to a tribunal.

Tribunal without jurisdiction to apply the Human Rights Code

46.3  (1) The tribunal does not have jurisdiction to apply the Human Rights Code.

(2) Subsection (1) applies to all applications made before, on or after the date that the subsection applies to a tribunal.

Concurrent Human Rights Jurisdiction

British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52

27(1)(f) of the BC Human Rights Code provides: 

27 (1)   A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:

(a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal…

(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;

[22]      The question then arises: when two bodies share jurisdiction over human rights, what ought to guide the Tribunal under s. 27(1)(f) in deciding when to dismiss all or part of a complaint that has already been decided by the other tribunal?

[25]      I agree with Pitfield J.’s conclusion that s. 27(1)(f) is the statutory reflection of the collective principles underlying those doctrines, doctrines used by the common law as vehicles to transport and deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness.  They are vibrant principles in the civil law as well (Civil Code of Québec, S.Q. 1991, c. 64, art. 2848; Boucher v. Stelco Inc., 2005 SCC 64, [2005] 3 S.C.R. 279; Rocois Construction Inc. v. Québec Ready Mix Inc., [1990] 2 S.C.R. 440, at p. 448).

[27]      The three preconditions of issue estoppel are whether the same question has been decided; whether the earlier decision was final; and whether the parties, or their privies, were the same in both proceedings…. Parties should be able to rely particularly on the conclusive nature of administrative decisions, he noted, since administrative regimes are designed to facilitate the expeditious resolution of disputes (para. 50).  All of this is guided by the theory that “estoppel is a doctrine of public policy that is designed to advance the interests of justice” (para. 19).

[28]      The rule against collateral attack similarly attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings.  It prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route….

[31]      And finally, we come to the doctrine of abuse of process, which too has as its goal the protection of the fairness and integrity of the administration of justice by preventing needless multiplicity of proceedings, as was explained by Arbour J. in Toronto (City)….

[33] Even where res judicata is not strictly available, Arbour J. concluded, the doctrine of abuse of process can be triggered where allowing the litigation to proceed would violate principles such as “judicial economy, consistency, finality and the integrity of the administration of justice” (para. 37)....

[34] At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process”…. Their common underlying principles can be summarized as follows:

[35]      These are the principles which underlie s. 27(1)(f).  Singly and together, they are a rebuke to the theory that access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice.

[54]      Because the Tribunal based its decision to proceed with these complaints and have them relitigated on predominantly irrelevant factors and ignored its true mandate under s. 27(1)(f), its decision, in my respectful view, is patently unreasonable. 

Reconsiderations

Chandler v. Alberta Association of Architects, [1989] S.C.J. No. 102

18     I am, however, of the opinion that the application of the functus officio principle is more appropriately dealt with in the context of the following characterization of the current state of the Board's proceedings. The Board held a valid hearing into certain practices of the appellants. At the conclusion of the hearing, in lieu of considering recommendations and directions, it made a number of ultra vires findings and orders which were void and have been quashed. In these circumstances, is the decision of the Board final so as to attract the principle of functus officio?

Functus Officio

19     The general rule that a final decision of a court cannot be reopened derives from the decision of the English Court of Appeal in In re St. Nazaire Co. (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:

1. where there had been a slip in drawing it up, and,

2. where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186.

20     I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.

21     To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

22     Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra.

24     In this appeal we are concerned with the failure of the Board to dispose of the matter before it in a manner permitted by the Architects Act. The Board intended to make a final disposition but that disposition is a nullity. It amounts to no disposition at all in law. Traditionally, a tribunal, which makes a determination which is a nullity, has been permitted to reconsider the matter afresh and render a valid decision.

25     If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. Cases such as Ridge v. Baldwin, [1964] A.C. 40 (H.L.); Lange v. Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 B.C.L.R. 232 (S.C.B.C.) and Posluns v. Toronto Stock Exchange, [1968] S.C.R. 330, referred to above, are in this category. They involve a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect.

BC Administrative Tribunals Act

Amendment to final decision

53  (1) If a party applies or on the tribunal's own initiative, the tribunal may amend a final decision to correct any of the following:

(a) a clerical or typographical error;

(b) an accidental or inadvertent error, omission or other similar mistake;

(c) an arithmetical error made in a computation.

(2) Unless the tribunal determines otherwise, an amendment under subsection (1) must not be made more than 30 days after all parties have been served with the final decision.

(3) Within 30 days of being served with the final decision, a party may apply to the tribunal for clarification of the final decision and the tribunal may amend the final decision only if the tribunal considers that the amendment will clarify the final decision.

(4) The tribunal may not amend a final decision other than in those circumstances described in subsections (1) to (3).

(5) This section must not be construed as limiting the tribunal's ability, on request of a party, to reopen an application in order to cure a jurisdictional defect.