Tribunal Jurisdiction Over Charter Remedies: Now You See it, Now You Don't
Charter, R v Conway, Administrative Tribunal, Remedies
The Supreme Court's decision in R. v. Conway (reported ante p. 201) simplifies the test for deciding whether an administrative tribunal has jurisdiction to grant Charter remedies. At least in principle, it heralds a broader approach to allowing litigants to seek such remedies at the earlier stage of a proceeding, rather than waiting for a review before a court or pursuing a parallel action. The attitude behind Conway signals a greater willingness to allow administrative tribunals to grant Charter remedies.
The test on the key question of whether a tribunal has jurisdiction over a particular remedy is still essentially the same: discerning legislative intent, as illustrated by factors like the tribunal's statutory mandate, structure and function. However, in the past one would have been undertaking this analysis to decide whether jurisdiction over a particular remedy has been given. Under the Conway approach, it will already have been determined that the tribunal has Charter jurisdiction generally, and so the analysis of legislative intent will be aimed at deciding whether jurisdiction over a particular remedy has been removed. This might lead to different conclusions, at least in close cases.
Steve Coughlan, "Tribunal Jurisdiction Over Charter Remedies: Now You See it, Now You Don't" (2010) 75 CR (6th ed) 238.