Both appellants suffered from chronic pain attributable to a work-related injury. After being denied claims for compensation, a claim was brought to the Workers’ Compensation Appeals Tribunal stating that the government's exclusion of chronic pain sufferers from the purview of the regular workers' compensation system violates s. 15 of the Charter and is unconstitutional. The Workers' Compensation Board appealed stating that the Tribunal did not have jurisdiction to hear constitutional questions, which the Court of Appeal agreed with.
- Do provincial administrative tribunals have jurisdiction to consider constitutional questions?
Gonthier, writing for a unanimous court, states that the unconstitutionality of a statute does not arise from a court's decision – it is technically unconstitutional from the time that it is passed if it violates the Constitution. He focuses on the idea that Canadians should be able to assert their Charter rights whenever they need to, as it was created for the people. He acknowledges that Charter challenges do not happen in isolation – they take place in the midst of other legal proceedings, and often the findings of tribunals in these cases are extremely helpful upon judicial review. Finally, the fact that administrative tribunal decisions with respect to constitutional issues are subject to judicial review means that a superior court can always correct mistakes of law.
The general approach for determining whether a tribunal can hear a constitutional issue is that the tribunal can do so only if the subject matter of the case and remedies fall under the tribunal's jurisdiction. Administrative tribunals that have been given the power to interpret law have the power to determine whether that law is constitutionally valid.
In this process, you must determine whether the tribunal has been granted either explicit or implicit jurisdiction to answer questions of law. If the tribunal has the authority to answer questions of law under a certain statute, then it has the authority to determine whether the legislation is constitutional. If this power to answer questions of law is not given explicitly, then it might have been granted implicitly. There are several factors to examine when looking for this, including interpreting the statute as a whole, looking at the mandate of the tribunal, asking whether answering questions of law is necessary to meet this mandate, asking whether the tribunal is adjudicative in nature, etc. It does not matter if a tribunal is found to have explicit or implied jurisdiction – they have the same result.
If a tribunal is found to have the authority to answer questions of law then it is assumed to have the power to answer constitutional questions. This assumption may only be rebutted by the party alleging that the tribunal does not have the authority by proving that there has been an explicit withdrawal of this authority, or a clear implication to the same effect. They must prove that the legislation clearly concludes that the legislature intended to exclude the Charter from the scope of law that the tribunal could hear.
Using this analysis, Gonthier decides that the Board does have jurisdiction to hear constitutional issues relating to workers' compensation.
When asking whether an administrative tribunal has the jurisdiction to handle constitutional questions:
- Determine whether the tribunal has jurisdiction, either express or implied, to answer questions of law arising under the challenged provisions.
- Explicit jurisdiction is found by looking in the authority-granting statute; implicit jurisdiction is found by looking at the statute as a whole and considering factors such as the tribunal's mandate and whether answering questions of law is necessary in order to meet this mandate.
- If the tribunal is found to have jurisdiction to answer questions of law relating to the challenged provisions, there is an assumption that it has jurisdiction to determine the constitutionality of those provisions under the Charter.
- The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by:
- pointing to an explicit withdrawal of this authority in legislation, or;
- convincing the court that this withdrawal is implied in the legislation.