Law Times

PAGE 4 NEWS June 21, 2010 • Law Times SCC tribunals ruling to have broad impact BY MICHAEL McKIERNAN Law Times to find and remedy Charter of Rights and Freedoms violations could have long-term implica- tions for that part of the justice system, according to an expert in the field. In the short term, many law- A yers expect the unanimous deci- sion in R. v. Conway to result in a surge of Charter claims to tribunals. But in the long term, Ron Ellis, a lawyer who teaches administrative law at Osgoode Hall Law School, says it may force changes in the way boards appoint their members. "On the one hand, Conway emphasizes the role and status of administrative tribunals as an integral component of the justice system," he notes. "The thing about the justice system is it's supposed to be composed new Supreme Court of Canada ruling that allows administrative tribunals of adjudicators who are inde- pendent and impartial. On the other hand, you have the well- known fact that our adjudicative tribunals are not independent." Ellis says Ontario's new Adju- dicative Tribunals Accountability, Governance, and Appointments Act, which came into effect in April, gives the government a tight grip on tribunals. But at the same time, he argues that bring- ing Charter issues into the realm of tribunals, where members must back up judgments with reasonable and defensible rea- sons, requires legal expertise often absent on boards. "You can't in good conscience choose someone who doesn't have the qualifications to allow them to deal with that sort of issue. All of this coming together changes the nature of the tribunals as we have previously understood them." But Lisa Braverman, an as- sociate at Steinecke Maciura LeBlanc, says there are ways to help tribunals without there's no lawyers on the tri- bunal doesn't mean we should take away the ability to decide Charter issues. Ultimately, if they get it wrong, on appeal or judicial review to a court, the court can make it right." Since he was found not guilty 'This makes it much easier to bring claims,' says Lisa Braverman, who's expecting a wave of Charter challenges. changing their composition. "Maybe they can have in- dependent legal counsel to advise them," says Braverman, whose firm focuses on profes- sional regulation. "Just because of sexual assault by reason of in- sanity in 1984, Paul Conway has remained in mental-health facilities and been diagnosed with a number of disorders. In 2006, he told the Ontario Review Board his detention breached his rights. In its deci- sion, the board rejected his re- quest for an absolute discharge on the grounds he posed a threat to public safety. But it also asserted it had no jurisdiction to consider his Charter claims. In the latest decision, Supreme Court Justice Rosalie Abella agreed Conway shouldn't be re- leased but devised a new test for deciding whether tribunals can consider Charter issues. The new test makes the review board and almost all tribunals a "court of competent jurisdiction" under s. 24 of the Charter, which empow- ers adjudicators to grant a broad range of orders and awards. Abella said the relation- ship between the Charter and administrative tribunals was a "blank slate" when it came into force in 1982. But, she noted, 25 years of case law had af- firmed "the practical advantages and the constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available." "We do not have one Char- ter for the courts and another for administrative tribunals," she wrote. The old three-part test origi- nated in a 1986 decision that re- quired tribunals to have jurisdic- tion over "the parties, the subject matter, and the remedy sought," which resulted in a case-by-case determination of whether they could hear the complaint. The new test allows all tribunals to consider Charter issues and grant the remedy sought as long as the legislation governing them doesn't prohibit it. Stephen Moreau, the Cavalluzzo Hayes Shilton McIn- tyre & Cornish LLP lawyer who represented the review board, says the effect of the shift may be limited because, while tribunals will have a greater ability to hear claims, the remedies available to them are still restricted. "The work was always done at the jurisdiction to give a remedy stage," he says. "That's still where the case will be decided. The leg- islature sets the remedial scope." But Braverman expects a sharp increase in the number of claims. "With the old test, if you look at the case law, there wasn't much on what it means to have jurisdiction over a person or sub- ject matter," she says. "People who were bringing applications didn't know what it meant, and tribu- nals didn't either. This makes it much easier to bring claims, and you will see some pretty interest- ing, wide-ranging, and creative Charter challenges trying to test this decision and see what kind of remedies can be granted." Braverman also expects ad- ministrative tribunals to be- come the first port of call for many people dealing with po- tential Charter breaches. "They are in every facet of a person's life. Human rights, employment standards, prisons, mental-health facilities, the list goes on. Now, there are a whole host of remedies open to appli- cants. It talks about a remedy that is appropriate and just in the circumstances, so the whole potential universe is open to Charter applicants." In the meantime, Ellis says the new jurisdiction could put pres- sure on tribunals already dealing with limited resources. "That is the issue that the tribunals chairs and members are always concerned about. The Supreme Court is putting upon them this constitutional role that compli- cates their life in a way they would probably prefer it didn't." LT OttawaPolice_LT_June21_10.indd 1 www.lawtimesnews.com 6/16/10 2:27:40 PM

• Cover
• Charter Rights
• Dodging A Bullet
• Focus On Family Law