Justice Abella’s Administrative Law Jurisprudence: Empowering Administrative Decision-makers

This is the latest in a series of posts on Justice Abella’s administrative law jurisprudence (see also here and here). What I find distinctive is her commitment to administrative autonomy, which I describe in this post. Tune in tomorrow to hear more!

Justice Abella’s jurisprudence was, however, not all about protecting administrative decision-makers. On another level, Justice Abella sought to actively promote the autonomy of administrative decision-makers, by empowering them to decide issues of constitutional law and legal doctrine in the context of their particular specialized domains of expertise. Rather than shielding them from judicial oversight, she sought to arm administrative decision-makers, providing them with swords to carve out larger areas of operation. Of course, the shield and the sword would function in tandem, as these larger areas of operation would be shielded by virtue of judicial restraint.

British Columbia (Workers’ Compensation Board) v. Figliola[1] is a good place to start. Mr. Figliola had made a battery of complaints about the Workers’ Compensation Board’s approach to chronic pain. One of these was a complaint under the provincial human rights legislation. This complaint was rejected by a review officer. Before Mr. Figliola could bring his complaint to the Workers’ Compensation Appeal Tribunal, the legislature changed the law so as to deny the Tribunal the authority to treat Mr. Figliola’s complaint. Finding that avenue blocked off, Mr. Figliola made a complaint to the Human Rights Tribunal.

At issue in Figliola was whether the Human Rights Tribunal should hear the complaint at all. Under s. 27(1)(f) of the B.C. Human Rights Code, the Tribunal had the authority to dismiss a complaint that “has been appropriately dealt with in another proceeding”.[2] The case turned on the interpretation of this provision as applied to the treatment of Mr. Figliola’s human rights complaint by the workers’ compensation review officer.

For the majority, Justice Abella held that this provision incorporated the underlying principles of the common law doctrines of issue estoppel, collateral attack and abuse of process. It was “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”.[3]

These underlying principles were embraced by s. 27(1)(f), though not codified: “the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them” (at para. 36). Justice Abella endorsed lower-court jurisprudence to the effect that “s. 27(1)(f) does not call for the technical application of any of the common law doctrines — issue estoppel, collateral attack or abuse of process — it calls instead for an approach that applies their combined principles”.[4]

Justice Abellawent on to hold that the tribunal had exercised the discretion granted by s. 27(1)(f) unreasonably:

Because I see s. 27(1)(f) as reflecting the principles of the common lawdoctrines rather than the codification of their technical tenets, I find the Tribunal’s strict adherence to the application of issue estoppel to be an overly formalistic interpretation of the section, particularly of the phrase “appropriately dealt with”.  With respect, this had the effect of obstructing rather than implementing the goal of avoiding unnecessary relitigation.[5] 

Rather, the BC Human Rights Tribunal ought to have asked itself three questions:

[W]hether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself.[6]

I previously described Justice Abella’s approach in this case as “reverse formalism”: rather than have an administrative decision-maker apply a judge-made doctrine in a rigid fashion, she would have the decision-maker apply a similarly rigid framework (which happened to be the invention of a judge…) I am not prepared to recant entirely from this criticism, as I continue to think that an administrative decision-maker should be free to decide whether to adopt judge-made doctrine wholesale, piecemeal or not at all. But I think describing her approach as “reverse formalism” was a little bit unfair: what Justice Abella was attempting to do was to actively encourage administrative decision-makers to take judge-made doctrines and meld them to the ends of their specialized domains, relying on their expertise to do so.

My reading of Figliola is supported by a series of decisions in which Justice Abella sought to empower administrative decision-makers on constitutional issues.

First, in R. v. Conway,[7] Justice Abella extended the Supreme Court’s generous approach to administrative decision-makers’ ability to consider questions of constitutionality to the issuing of constitutional remedies. The locus classicus of the contemporary approach to administrative tribunals’ jurisdiction over constitutional issues is found in the aphorism of McLachlin J (as she then was) issued in dissent in Cooper v. Canada (Human Rights Commission): the constitution is “not some holy grail which only judicial initiates of the superior courts may touch”.[8] Rather, as the Supreme Court held less than a decade later (endorsing McLachlin J’s Cooper dissent), once an administrative decision-maker is vested with the express or implied power to determine any question of law, it is empowered to determine constitutional questions, barring express legislative exclusion of the authority to consider constitutional questions.[9] Accordingly, most administrative decision-makers have the jurisdiction to determine whether a provision of “law” is consistent with the Constitution and to treat unconstitutional provisions as having no force and effect under s. 52 of the Constitution Act, 1982 (the so-called supremacy clause).

Section 52 is only one of the constitution’s remedial provisions: the other is s. 24, which permits a “competent” court to issue a remedy for an individualized violation of the Constitution. To the question “is an administrative decision-maker a ‘competent’ body for issuing constitutional remedies”, Justice Abella provided as resounding a “yes” as possible:

Over  two decades of jurisprudence has confirmed the practical advantages and constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available, without the need for bifurcated proceedings between superior courts and administrative tribunals…If…expert and specialized tribunals with the authority to decide questions of law are in the best position to decide constitutional questions when a remedy is sought under s. 52 of the Constitution Act, 1982, there is no reason why such tribunals are not also in the best position to assess constitutional questions when a remedy is sought under s. 24(1) of the Charter…Building on the jurisprudence, therefore, when a remedy is sought from an administrative tribunal under s. 24(1), the proper initial inquiry is whether the tribunal can grant Charter remedies generally.  To make this determination, the first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law.  If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, the tribunal is a court of competent jurisdiction and can  consider and apply the Charter —  and Charter remedies — when resolving the matters properly before it.[10]

This “threshold question” is posed in terms as friendly as possible to administrative decision-makers: it maximizes the scope for the granting of Charter remedies.

However, the administrative decision-maker must go on to determine “whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal”.[11] In Conway itself, the remedy of an absolute discharge would be inconsistent with the statutory framework and was, accordingly, unavailable (absent a challenge to the constitutionality of the statutory framework itself).

Second, in Doré, Justice Abella set out an informal approach to constitutional interpretation.[12] Here, the applicant was a lawyer who was reprimanded by his regulatory association for writing an intemperate letter to a trial judge with whom he had locked horns. The dispute between the two was extremely heated, but the letter was not made publicly available. The lawyer did not challenge the validity of the Code of Ethics under which he was punished by a disciplinary tribunal, but challenged the decision as a violation of his right to freedom of expression.

There are two aspects to Justice Abella’s reasons in Doré, an administrative justice aspect and a judicial review aspect. As for judicial review, I and others have criticized Doré for replacing the hard-edged proportionality test set out in R v Oakes[13]with the more deferential standard of reasonableness and leading to under-powered judicial review of alleged Charter infringements. But there is also an administrative justice aspect, as Justice Abella set out the analytical approach front-line officialsshould take in Charter cases:

How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives…Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives…[14]

This approach recognizes that it would be unrealistic and inappropriate to require administrative officials to have Professor Hogg’s loose-leaf Constitutional Law of Canada text to hand whenever they encounter a human rights issue and Ruth Sullivan’s text on the interpretation of statutes on the shelf in case a knotty interpretive problem arises in the course of their work. It deformalizes the process of decision-making by front-line officials. Rather than the Charter, they are directed towards Charter values; rather than statutory text, they are directed towards statutory objectives. And they are directed to balance Charter values against statutory objectives, having regard to “the specific facts of the case”.[15]

Justice Abella’s approach recognizes that front-line officials should take the Charter seriously. The document is not “some holy grail which only judicial initiates of the superior courts may touch” but one which belongs to the people and, as a result, “law and law-makers that touch the people must conform to it”.[16] There is no free pass for front-line officials: they must make a good faith, conscientious attempt to apply the Charter and respect the human rights of those citizens with whom they come into contact. This does not require them to engage in a detailed proportionality analysis (the so-called “Oakes test”) but to balance Charter values with their statutory objectives.

Third, in her dissent in Canada (Public Safety and Emergency Preparedness) v Chhina,[17] Justice Abella again sought to empower administrative decision-makers to decide on constitutional issues. This was a case about a relatively technical issue: can a detainee in immigration detention pending removal from Canada challenge the lawfulness of the detention via habeas corpus in provincial superior court or is the Federal Court the proper forum? The scheme at issue in Chhina is set out in the Immigration and Refugee Protection Act.[18] Immigration officials may detain suspected unlawful immigrants who pose a danger to the public or are unlikely to appear at a formal hearing.[19] A review must be conducted by the Immigration Division of the Immigration and Refugee Board within 48 hours, once more within the next 7 days and every 30 days thereafter.[20] At a review, the detainee must be released unless they satisfy a set of statutory criteria.[21] There are, further, a detailed set of considerations to be taken into account in accordance with the Immigration and Refugee Protection Regulations.[22]

For the majority, Karakatsanis J took the view that this scheme was not equivalent to habeas corpus.[23] The fundamental difficulty, she thought, was that the scheme favoured continued detention, as it would be difficult for immigration adjudicators to justify releasing someone whose detention was found to be justified just 48 hours, 7 days or 30 days previously. Her proposed solution was to permit Mr. Chhina and others to apply for habeas corpus in provincial superior court, where there would be no bias in favour of ongoing detention.

However, one might ask, why prefer a procedural solution to a substantive problem, which could be resolved by a more vigorous interpretation of the scheme?  In her dissent, Justice Abella dealt squarely with the substantive problem. As she aptly summarized her reasons:

The better approach is to continue to read the language of IRPA in a manner that is as broad and advantageous as habeas corpus and ensures the complete, comprehensive and expert review of immigration detention that it was intended to provide, as all of this Court’s previous jurisprudence has done. It is far more consistent with the purposes of the scheme to breathe the fullest possible remedial life into the Act than to essentially invite detainees to avoid the exclusive scheme and pursue their analogous remedies elsewhere.[24]

The solution, as she recognized, is not to create a procedural solution to a substantive problem, but to ensure that detention reviews, and subsequent judicial reviews, are equal to the task of robustly examining detention reviews. Adjudicators should bear the principles of the Charter of Rights and Freedoms in mind, particularly the guarantees relating to personal liberty, when assessing the appropriateness of immigration detention:

[I]n carrying out their duties under the IRPA scheme, members of the Immigration Division must ensure the fullest possible review of immigration detention. This includes, and has always included, an obligation to weigh the purposes served by immigration detention against the detained individual’s ss. 7, 9 and 12Charter rights. The Immigration Division’s inquiry into the lawfulness of detention must take into account the detained individual’s s. 7 Charter right not to be deprived of liberty except in accordance with the principles of fundamental justice, his or her s. 9 right not to be arbitrarily detained or imprisoned, and the s. 12 right not to be subjected to cruel and unusual treatment or punishment.[25]

On this approach, the regular detention reviews are a feature, not a bug: “The Immigration Division obtains an accurate picture of the detention every 30 days. It can assess progress over time by reviewing past proceedings and anticipating pending proceedings to guard against a violation of the detainee’s Charter rights.”[26] Justice Abella’s seems to me to be a much more compelling reading of the scheme, as one designed to vindicate individual rights, not to perpetuate dubious detentions.


[1] 2011 SCC 52, [2011] 3 SCR 422.

[2] RSBC 1996, c 210.

[3] British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 SCR 422, at para. 26.

[4] British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 SCR 422, at para. 44.

[5] British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 SCR 422, at para. 46.

[6] British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 SCR 422, at para. 37.

[7] 2010 SCC 22, [2010] 1 SCR 765.

[8] [1996] 3 SCR 854, at para. 70.

[9] Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 SCR 504, at paras. 36, 41.

[10] R. v. Conway, 2010 SCC 22, [2010] 1 SCR 765, at paras. 79-81.

[11] R. v. Conway, 2010 SCC 22, [2010] 1 SCR 765, at para. 82.

[12] Here I draw liberally from Paul Daly, “The Inevitability of Discretion and Judgement in Front-Line Decision-Making in the Administrative State” (2020) 2 Journal of Commonwealth Law 100.

[13] [1986] 1 SCR 403.

[14] [2012] 1 SCR 395 [55-56].

[15] Ibid, [54], emphasis original.

[16] Cooper v Canada (Human Rights Commission) [1996] 3 SCR 854 [70] per McLachlin J.

[17] 2019 SCC 29.

[18] SC 2001, c 27.

[19] Immigration and Refugee Protection Act, SC 2001, c 27, s 55 [IRPA].

[20] Ibid, s 57.

[21] Ibid, s 58(1).

[22] SOR/2002-227.

[23] See also Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 OR (3d) 401.

[24] Chhina, supra note 98 at para 74.

[25] Ibid at para 130.

[26] Ibid at para 137, Abella J.

This content has been updated on September 22, 2022 at 20:27.

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