Jurisdiction or Access to Administrative Justice? How the Supreme Court of Canada Missed the Point in Tranchemontagne

Administrative law is often obscure, but the Supreme Court over the past year or two has been embroiled in a particularly technical administrative law question around which tribunals have jurisdiction over which kinds of disputes and whether more than one tribunal may have jurisdiction over the same dispute. Like many technical questions in administrative law, however, there is a basic question of fairness and justice underlying the debate. The stakes for Canadians who encounter the justice system (and far more of this group do so before administrative tribunals than before courts), could not be higher.

While there have been five or six decisions since 2005 on the issue of exclusive and concurrent jurisdiction in administrative tribunals, the one which illustrates the underlying issues best is Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14.

Issues and Background

The issue in the case was relatively simple. The appellants were denied benefits under Ontario’s disability support plan because they were alcoholics and a provision of the applicable legislation provided that disability supports would not be available to applicants whose condition resulted from substance abuse. The appellants contended that such a provision was discriminatory and at odds with Ontario’s Human Rights Code, RSO 1990, c H.19 [the Code]. They sought to raise this argument in the context of a Social Benefits Tribunal proceeding, which is where applicants go who have been denied benefits.

While the provision may also have constituted a Charter violation, the legislation governing the Social Benefits Tribunal had specifically removed from the Tribunal its Charter jurisdiction. (When this Tribunal had Charter jurisdiction, it used it most memorably in Falkiner v Ontario (Minister of Community and Social Services) (2002), 59 OR (3d) 481, to argue the then spouse-in-the-house rule in Ontario was inconsistent with the Charter’s equality rights.) The legislation excluding Charter review by the Social Benefits Tribunal was silent on the Human Rights Code and the Code, in turn, indicates it will override statutory provisions which are inconsistent with it unless the offending statute has a provision excluding the application of the Code.

As with so much of administrative law, all this circuitous business of interpreting what the Tribunal can and cannot do becomes relevant because the central question for the Court is deciphering statutory interpretation. What did the legislature intend? The Court had to opine on the question of whether, based on the statutory provisions in context, the Social Benefits Tribunal had jurisdiction to apply the Code, and if the answer was that it did, whether this was ousted by an intent by the legislature that the Human Rights Tribunal be the exclusive arbiter of human rights disputes.

The Court’s Decisions

Tranchemontagne is one of those strange decisions where the majority and the dissent both get it right and each miss the point. The majority gets it right by concluding that any Tribunal which has the power to decide questions of law must be able to decide questions of human rights violations. Whatever doubt exists should be resolved in favour of the widest possible application of quasi-constitutional protections of the kind found in the Code.

The legislature can always restrain the exuberance of Tribunals by expressly excluding application of the Code where it is deemed in the public interest to do so. The dissent is right to highlight that to scatter the application of the Code across many tribunals with uneven capacities and expertise may risk a coherent and effective human rights system in Ontario. There is a reason, after all, that the Human Rights Tribunal was established with jurisdiction over nothing else except applications of the Code.

Yet, while each judgment in Tranchemontagne is persuasive, neither judgment engages the frailty of the administrative justice system that this case exposes. Each treats the manifest lack of capacity on the part of the SBT to deal with complex human rights issues as a subsidiary issue to their task of interpreting the legislation. For the majority of four justices, Bastarache J. simply observes:

The practical constraints that burden the SBT are of an entirely different character than those facing applicants. It is true that the efficient functioning of tribunals is important. And the presence of another tribunal with greater institutional capacity may indeed signal that this other forum is more appropriate to deal with the case at hand: see Paul, at para. 39. But tribunals should be loath to avoid cases on the assumption that the legislature gave them insufficient tools to handle matters within their jurisdiction. (para. 51)

For the three justices in dissent, Abella J. deploys the Social Benefits Tribunal’s practical challenges to justify why, as a matter of statutory interpretation, they should not be found to have jurisdiction to decide the applicability of the Human Rights Code:

The Director does not hold hearings or receive evidence beyond that filed by an applicant. An appeal to the Tribunal from the Director’s decision is commenced by filing with the Tribunal a notice of appeal form on which an applicant is simply asked to explain what he or she disagrees with in the Director’s original decision and why. The Director has the option of making only written submissions before the Tribunal. Following receipt of an applicant’s notice of appeal form, the Director has 30 days to file any written submissions in response.

The Tribunal’s decisions are not publicly available. The hearings are informal and private. Most hearings last no longer than one and a half hours.

The Tribunal is meant to be an efficient, effective, and quick process. Yet it seems to be having difficulty meeting this mandate. In 2004-2005, the Tribunal had a backlog of 9,042 cases and received 11,127 new appeals under the OWA and the ODSPA. This Court recognized in Tetreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, at p. 34, that administrative bodies responsible for ensuring the payment of monetary benefits to eligible applicants would undoubtedly be impeded from this important and time-sensitive undertaking if they were asked to decide constitutional challenges.

Imposing Code compliance hearings on the [Social Benefit] Tribunal will similarly and inevitably impact its ability to assist the disabled community it was established to benefit in a timely way. It will be difficult to explain to the thousands of disabled individuals waiting for their appeals to be heard – many without any interim support – that there is any public benefit in the Tribunal hearing a complex, lengthy, and inevitably delaying jurisprudential issue with no precedential value. That is the real access issue in this case.” (para. 88-91)

Whichever judgment you favour, the applicants lose. The issue in Tranchemontagne should have been framed as the unacceptable choice foisted on applicants – whether to pursue a complaint before the Social Benefits Tribunal which lacks the ability to deal with it, or to fragment the proceedings, incur additional delays, and pursue a human rights challenge through the Commission, and if it gets that far, to the Human Rights Tribunal.

Both the majority and dissent pay homage to legislative intent. But the lack of capacity of the Social Benefits Tribunal and the chronic delay associated with the Human Rights Commission and Tribunal are not matters of legislative choice. They are matters of executive discretion, whether in the sense of how the tribunals are budgeted, who is appointed and what resources of expertise are provided. Having established adjudicative tribunals such as those at issue in this case, the rule of law ought to dictate that they be funded and administered in a fashion sufficient to their legislative mandate and responsive to the needs of vulnerable applicants who come before them. This case should not have been about technical points of jurisdiction. It should have been about a fundamental right of access to administrative justice.