The Road to the Promised Land Runs Past Conway: Administrative Tribunals and Charter Remedies
In the 30 years since the Canadian Charter of Rights and Freedoms was proclaimed, one of the most litigated issues has been the role of administrative tribunals in deciding Charter claims. Early Supreme Court jurisprudence suggested that only the provincial superior courts had the jurisdiction to decide Charter claims and remedy a Charter breach. Over time, and in concert with the expansion of the administrative state in Canada, the Supreme Court recognized that administrative tribunals could in fact decide Charter questions. However, the issue of whether they could remedy a Charter breach became bogged down by the test from Mills v. R.: tribunals and courts had to analyze the tribunal’s jurisdiction on a case-by-case basis by examining the remedy being sought, as opposed to analyzing jurisdiction on an institutional basis, which would examine the tribunal's statutory mandate and function.
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