Section 96, Statutory Tribunals and Judicial Review

My preoccupation with the internal standard of review issue has led me to wonder whether it would even be constitutionally permissible for a Canadian legislature to require an administrative body to conduct judicial reviews. The idea is not entirely far-fetched: the UK’s new tribunal system has just this feature, with the Upper Tribunal required on occasion to apply judicial review principles.

But in Canada, s. 96 of the Constitution Act, 1867, puts a potential hurdle in the way of any such legislative effort (my understanding is that a similar hurdle exists between Australia’s constitution and its Administrative Appeals Tribunal, which engages in “merits review”, a concept developed to avoid the conclusion that the Tribunal exercises judicial functions). Judicial review is a core feature of the inherent jurisdiction of the superior courts. It presumably cannot be exercised by an administrative body.

Sure enough, there are cases condemning statutory tribunals that were given court-like functions: Séminaire de Chicoutimi v. La Cité de Chicoutimi, [1973] SCR 681, Attorney General (Que.) et al. v. Farrah, [1978] 2 SCR 638 and Crevier v. A.G. (Québec) et al., [1981] 2 SCR 220. Whether these features can be vested in administrative bodies is judged by a three-part test which asks whether the functions formed part of the superior courts’ inherent jurisdiction in 1867; whether the functions are truly “judicial” in the administrative setting; and whether the functions are merely accessory to the administrative body’s mandate (Re Residential Tenancies Act, [1981] 1 SCR 714).

It is hard to conceive of a stand-alone judicial review function as being accessory. Certainly, a body like the Refugee Appeal Division – which has until recently exercised a judicial review role – does nothing else than sit in judgment of the Refugee Protection Division (although both bodies form part of the Immigration and Refugee Board, which might give rise to the imaginative suggestion that the Division’s judicial review powers are accessory to the Board’s overall role). Based, then, on the Residential Tenancies Reference, one might conclude that a statutory judicial review function is unconstitutional.

Not so fast. Although there are contradictory dicta in the decisions, in Crevier and Farrah the constitutional infirmity was due in essence to the purported exclusion of judicial review. When a statutory tribunal conducts judicial review, however, the jurisdiction of the superior court to conduct a subsequent judicial review is left intact. Moreover, in a subsequent case, MacMillan Bloedel Ltd. v. Simpson, [1995] 4 SCR 725, the problem was said to lie in the transfer of a judicial function to an administrative body on an exclusive basis (here, the power to hold someone in contempt of court). A statutory judicial review jurisdiction would not amount to an exclusion of judicial review, at least as a legal matter.

Much depends on how one characterizes the ratio decidendi of these s. 96 cases — and we could argue day and night about how to do so. It does bears noting, however, that Macmillan Bloedel leaves intact the three-part test from Residential Tenancies Reference. Thus, if a statutory judicial review jurisdiction is not accessory to the mandate of an administrative decision-maker, the exclusion issue will not arise at all.

Nonetheless, assuming for the sake of argument that some sort of exclusion of judicial oversight is necessary to give rise to a s. 96 problem, vesting judicial review functions in statutory tribunals remains problematic. At the very least, it becomes practically impossible for the superior court to exercise its judicial review function when it finds itself reviewing a judicial review. Rather than asking whether the initial administrative decision-maker’s decision was clearly understandable and fell within a range of reasonable outcomes, it must ask if the appellate body’s review of the initial decision was clearly understandable and within the zone of reasonableness. This borders on the nonsensical and poses serious rule-of-law problems by potentially shielding egregious errors from challenge. As a practical matter, then, part of the superior court’s core function has been impeded by the exercise by a statutory body of judicial review powers.

To my mind, those administrative tribunals that have turned their appellate jurisdictions into judicial review functions have raised significant constitutional issues.

This content has been updated on November 18, 2014 at 22:05.