Tribunal Jurisdiction Over Charter Remedies: Now You See it, Now You Don't

Criminal Reports, Vol. 75, No. 6, p. 238, 2010

3 Pages Posted: 22 Aug 2012

See all articles by Steve Coughlan

Steve Coughlan

Dalhousie University - Schulich School of Law

Date Written: 2010

Abstract

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.

Keywords: Charter, R v. Conway, administrative tribunal, jurisdiction, remedies

Suggested Citation

Coughlan, Steve, Tribunal Jurisdiction Over Charter Remedies: Now You See it, Now You Don't (2010). Criminal Reports, Vol. 75, No. 6, p. 238, 2010 , Available at SSRN: https://ssrn.com/abstract=2133515

Steve Coughlan (Contact Author)

Dalhousie University - Schulich School of Law ( email )

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Halifax, Nova Scotia B3H 4H9
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