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Report No. 272

D. Tribunal System in Canada

2.16 The administrative justice sector in Canada is very large and well-established. Tribunal system, having distinct character and voice are considered as one of the two pillars of Canada's justice system.34 But the emergence of the Tribunal sector is a recent phenomenon which was established to regulate the aspects related to expanding economy, administration of social programs etc.35

34 Supra note 20 at 7.

35 Id. at 9.

2.17 Administrative Tribunals in Canada make decisions on behalf of the federal and the provincial Governments when it is impractical or inappropriate for such Government to do so. Tribunals are set up by the federal or provincial legislation, known as "empowering legislation." Tribunals are commonly known as 'Commissions' or 'Boards', and make decisions about a wide variety of issues, including disputes between people or between people and the Government. Their decisions may be reviewed by the Courts. Because Tribunals engage in fact-finding and have the power to impact personal rights, they are often seen as "quasi-judicial."36

36 Administrative Tribunals in Canada, available at:
http://www.thecanadianencyclopedia.ca/en/article/administrative-tribunals/ (last visited on 31-07-2017).

2.18 Administrative Tribunals are independent and specialised Governmental agencies established under the federal or provincial legislation to implement the legislative policy. Appointment to such agencies is usually by Order-in-Council. Members are ordinarily chosen for their expertise and their experience in the particular sector which is regulated by the legislation.

2.19 Different kinds of Administrative Tribunals and Boards deal with disputes relating to the interpretation and application of laws and regulations, such as entitlement to employment insurance or disability benefits, refugee claims, and human rights. Administrative Tribunals are less formal than Courts and are not part of the Court system. However, they play an essential role in resolving disputes in the Canadian society. Decisions of Administrative Tribunals may be reviewed by the Court to ensure that the Tribunals act fairly and according to the law.37

37 Canada's Court System DJC 12 (2015).

2.20 Many Administrative Tribunals have a hearing process to determine conflicting rights and obligations or to assign rights or entitlements between the disputing parties. Many Tribunals have wide powers to summon witnesses and records and to take evidence under oath. These Tribunals get their powers either directly from their enabling legislation, or indirectly by general laws about the Tribunal process. Some Tribunals may be governed by multiple statutes or rules of procedure. For example, the Ontario Child and Family Services Review Board gets its powers from the Child and Family Services Act, 1990, the Inter-country Adoption Act, 1998 and the Education Act, 1990.

2.21 Even where no right of appeal is provided or when a Statute specifically forbids it, it is a principle of the Canadian Constitution that superior Courts have jurisdiction to review any Administrative Tribunal's function i.e., judicial review, and usually they do not focus on whether the decision made by the Tribunal is a right decision or not but whether the decision is made in a correct manner and within the scope of its empowering legislation. The Courts review administrative decisions based on their reasonableness.

If a Tribunal acts outside its jurisdiction or fails to act reasonably, a superior Court may set aside its decision and send the matter back for redetermination; in some cases it may substitute the Tribunal's finding with its own. However, if a decision is made properly i.e., following the procedure, considering the facts fairly and within the Tribunal's power, Courts will not overturn a Tribunal's finding of fact and will only overturn a decision if it made an error of law or acted unfairly while deciding the matter. The Federal Court of Canada, which is just below the Supreme Court of Canada in the hierarchy, hears the appeals against the decisions made by the Tribunals.

2.22 In In re: Residential Tenancies Act Case, 1981 (1) S.C.R. 714 38 the Canadian Supreme Court held that Tribunals could not take away the core functions and judicial power vested in the judiciary. When the dispute is primarily civil in nature, the case has to be heard only by the judiciary and not by quasi-judicial Tribunals.

38 See also, Massey-Ferguson Indust. Ltd. v. Sask., 1981 (2) S.C.R. 413.

2.23 Administrative Tribunals perform a wide range of functions, including research and recommendation (e.g., law reform commissions), rule-making and policy development (e.g., the Canadian Radio-Television and Telecommunications Commission and provincial securities commissions), grant allocation (e.g., the Canada Council for the Arts and regional development agencies), adjudication (e.g., labour relations boards, landlord and tenant boards, immigration and refugee boards, municipal boards and human rights tribunals) and standard setting (e.g., environmental assessment boards, workers' compensation boards and health and safety commissions). In addition to such permanent agencies, there are ad hoc Administrative Tribunals, such as arbitrators and inquiry commissions, mandated to deal with a specific subject matter. Some of the Acts and the Tribunals functioning thereunder are set out herein below:

Name of Acts

Tribunals

1. The Canadian Agricultural Products Act, 1983 Canadian Agricultural Review Tribunal
2. The Canadian Human Rights Act, 1977 Canadian Human Rights Tribunal
3. The Civil Resolution Tribunal Act, 2012 Civil Resolution Tribunal
4. The Protecting Canadian Condominium Act, 2015 Ontario Canadian Condominium Authority
5. The Residential Tenancies Act, 2006 Landlord and Tenant Board
6. The Ontario Energy Board Act, 1998 Ontario Energy Board
7. The Ontario Labour Relations, Employment Act, 1995 Ontario Labour Relation Board
8. The Ontario Securities and the Commodity Future's Act, 1990 Ontario Securities Commission
9. The Public Service of Ontario Act, 2006 Public Service Grievance Board
10. The Workplace Safety and Insurance Act, 1998 Workplace Safety and Insurance Appeals Tribunal
11. Child and Family Services Act, 1990; Inter-country Adoption Act (1998) and The Education Act (1990) Ontario Child and Family Services Review Board
12. The Ontario Heritage Act, 1990 The Conservation Review Board


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