About the Charter, Pierre Trudeau poignantly remarked, “I saw the Charter as an expression of my long-held view that the subject of law must be the individual human being; the law must permit the individual to fulfil himself or herself to the utmost.”
Ostensibly, the Charter expanded an individual’s ability to seek civil remedies against the state.
Nevertheless, its drafters did not delineate the specific forums in which such a claim could be brought. Rather, s. 24(1) was left to state that “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction . . .” The provision’s open-ended wording calls for a competenz-competenz inquiry to determine which venues are, in fact, a court of competent jurisdiction.
Since the Charter came into force, numerous Supreme Court decisions have considered what constitutes a court of competent jurisdiction sufficient to award Charter remedies.
In Mills v. The Queen, the court held that a court or administrative tribunal was a court of competent jurisdiction for the purposes of s. 24(1) merely if it had jurisdiction over the person, subject matter and remedy sought. Slaight Communications Inc. v. Davidson, a 1989 decision, took an even broader stance by concluding that any exercise of statutory discretion is subject to the Charter and its values. Subsequently, in a trilogy of cases highlighted by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), the court concluded that specialized tribunals with both the expertise and authority to decide questions of law are best positioned to consider Charter remedies related to their statutory mandate.
In 2010, the Supreme Court in R. v. Conway was again asked to consider whether an administrative tribunal can render Charter remedies. Conway concerned the Ontario Review Board’s jurisdiction to hear allegations of Charter violations against a criminal accused when he was detained in a mental health facility. The court appeared most concerned with devising a scheme where individuals could systemically bring Charter claims in the most accessible forum available.
The court aimed to avoid bifurcating proceedings in which statutory breaches fall under the jurisdiction of administrative tribunals and Charter claims under Superior Court jurisdiction. The court consolidated its previous decisions and devised a new approach to Charter claims before administrative tribunals. It outlined a two-part test to determine when an administrative tribunal can render a Charter remedy. The initial inquiry is whether the tribunal can grant Charter remedies generally. This inquiry considers whether the tribunal has the implicit or explicit mandate to decide questions of law. If the initial inquiry is answered in the positive, the tribunal is a court of competent jurisdiction and can consider and apply Charter remedies in matters properly before it. The second inquiry then is whether the tribunal can grant the particular remedy sought under its statutory scheme.
Conway authorizes administrative tribunals to award Charter remedies so long as they can decide questions of law and have the statutory authority over the remedy sought. Under that rubric, provincial human rights tribunals should be able to award Charter remedies. Confoundingly, the Human Rights Tribunal of Ontario has ignored Conway and refused to consider Charter claims outside of those alleging that the Human Rights Code breaches a Charter provision. For instance, in Hendershott v. Ontario (Community and Social Services), a 2011 decision issued less than six months after Conway, a tribunal arbitrator held that “[w]ith respect to the Charter, the complainant is not challenging a provision of the Code itself under the Charter and therefore my jurisdiction is limited to adjudicating this matter in accordance with the provisions of the Code.”
Cases after Hendershott have concluded that the tribunal does not have the jurisdiction to hear stand-alone Charter claims, e.g., claims outside of those asserting that the Code violates the Charter. The tribunal’s decisions rejecting its jurisdiction over these claims all cite back to Barber v. South East Community Care Access Centre, a decision rendered prior to Conway.
Therefore, the tribunal has ignored Conway’s consolidated approach to Charter claims before administrative tribunals and persisted in jurisprudence that contradicts the Supreme Court. This has resulted in what the court was trying to avoid — a bifurcated system where statutory claims are brought before administrative tribunals and Charter claims brought before Superior Courts. The tribunal would be a welcome forum for applicants contemplating stand-alone Charter claims as it does not have costs consequences.
Pursuant to Conway, administrative tribunals can and should consider stand-alone Charter claims. Anything less restricts an applicant’s ability to access Charter remedies by forcing them to commence claims in Superior Court, an approach that may result in costs consequences. Compensatory, equitable or punitive damages claimed through s.24(1) are remedies over and above what the statutory schemes of some administrative tribunals provide.
Conway’s consolidated test is ripe to be applied by administrative tribunals across the country rather than the restrictive approach previously taken toward stand-alone Charter claims. Arbitrators are duly qualified (and obligated under Conway) to undertake Charter analyses to determine violations and damages remedies. This is corroborated by the tribunal’s pre‑Conway jurisprudence that allowed arbitrators to determine whether the Code is in violation of the Charter. In the end, restricting a tribunal’s ability to adjudicate stand-alone Charter claims falls short of its purpose of identifying the individual as the subject of the law able to fulfil himself or herself to the utmost.
Hassan M. Ahmad is a human rights lawyer and doctoral candidate in the Faculty of Law, University of Toronto.