"The Truth About 'True Questions of Jurisdiction' in Administrative LawAlberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61,  3 SCR 654
A persistent myth plagues Canadian administrative law, namely, that there is no such thing as "true" questions of jurisdiction or vires. But this is legally incorrect, as the Supreme Court of Canada's own jurisprudence demonstrates.
In Alberta Teachers Association, Justice Rothstein openly questioned whether the category of true questions of jurisdiction or vires even exists, and whether it should be excised from the standard of review analysis: at paras. 34, 38-42. Rothstein J.'s skepticism was reiterated in, inter alia, SODRAC, at para. 39; ATCO Gas at para. 27; Edmonton East (Capilano), at paras. 25-26; Guerin, at paras. 33-6, 67-68; and Canadian Human Rights Commission (2018), at paras. 31-34, 37-38. Professor David Mullan has also identified this as an "unresolved issue" in Canadian administrative law.
But Rothstein J's view in ATA, and the subsequent jurisprudence adopting it, are based on the view that the Court has yet to identify any true question of vires or jurisdiction since Dunsmuir: at para. 33. With great respect, I believe this last assertion is mistaken. A comprehensive review of the post-DunsmuirÂ jurisprudence reveals that three types of questions of this nature have been identified. The category should be maintained, if only for those three types. This will keep this category of questions narrow, which is exactly what Dunsmuir (para. 59) and ATA (para. 33) sought to do. The three types are:
Type # 1: Constitutional Remedies
Under R. v. Conway: whether an administrative tribunal or other decision-maker is a court of competent jurisdiction under s. 24(1) of the Charter, and may order CharterÂ remedies in a given case, is a true question of jurisdiction.
In the same category is the question of whether an administrative decision-maker may order constitutional remedies for breaches of s. 35(1) of the Constitution Act, 1982: Clyde River (Hamlet), paras. 36-37. In either case, we are dealing with a true question of jurisdiction because it requires the decision-maker to determine whether they have constitutional jurisdiction: Clyde River, at para. 36.
As concerns the Charter, only administrative tribunals with the power to decide questions of law have the authority to apply the Charter and grant Charter remedies that are linked to matters properly before them: Doré, at para. 30, citing Conway, at paras. 78-82. As noted in Conway, at para. 22: "the question... should be institutional: Does this particular tribunal have the jurisdiction to grant Charter remedies generally? The result of this question will flow from whether the tribunal has the power to decide questions of law."
This is different from Doré, which requires all decision-makers to balance Charter protections with the objective of their statutory mandate or home statute (Loyola, at para. 3) but does not endow the decision-makers with jurisdiction to order Charter remedies per se. This remains to be determined under the Conway framework.
Type # 2: Duty to Consult
The Court expressly recognized a question of jurisdiction subject to the correctness standard in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council (2010). In that case, the Court held that "whether consideration of the [constitutional] duty to consult was within the mandate of the Commission. . .[is] an issue of jurisdiction," and that the standard of review at common law is correctness at para. 67.
Indeed, "the duty on a tribunal to consider consultation and the scope of that inquiry depends on the mandate conferred by the legislation that creates the tribunal. Tribunals are confined to the powers conferred on them by their constituent legislation": Rio Tinto, at para. 55, citing Conway.
In Clyde River (Hamlet), para. 30, the Court held: "Whether, however, the Crown... may rely on steps undertaken by a regulatory agency to fulfill the duty to consult... in whole or in part, depends on whether the agency's statutory duties and powers enable it to do what the duty requires in the particular circumstances", citing Rio Tinto, at paras. 55, 60. See generally Clyde River (Hamlet), at paras. 1, 4, 21-23, 30-34, 41-44.
Also, in Chippewas of the Thames, at para. 32: "The Crown may rely on a regulatory agency ... to fulfill its duty to consult... so long as the agency possesses the statutory powers to do what the duty to consult requires...", citing Rio Tinto, at para. 60; and Clyde River, at para. 30.
Type # 3: : "Jurisdictional Lines between Two or More Competing Specialized Tribunals"
"Questions regarding the jurisdictional lines between two or more competing specialized tribunals" are true questions of jurisdiction or vires. Where there is legal uncertainty as to whether one or more tribunals hold concurrent or exclusive jurisdiction over a particular matter or statute, the question concerns which tribunal(s) truly has (or have) jurisdiction over that matter.
As the cases show, it is possible for two or more tribunals to have jurisdiction over a given matter or statute: National Gallery of Canada, at paras. 13, 24 (Copyright Board and Canadian Artists and Producers Professional Relations Tribunal); all administrative tribunals have jurisdiction to interpret and apply the relevant human rights legislation (Tranchemontagne (2006); Caron (2018)).
There are, in addition, innumerable examples of when a tribunal or other administrative decision maker will have exclusive jurisdiction over a matter - for example, where the relevant legislation expressly identifies the decision maker. Another arises where the Supreme Court or other binding authority has conclusively held that a given matter falls within the exclusive jurisdiction of a specialized decision maker.
A good example is the exclusive authority of labour arbitrators over any matter arising from the interpretation or application of a collective agreement: see e.g., St. Anne Nackawic, at pp. 718-19, Weber, at paras 41, 52; Goudie v Ottawa (City). If a claimant seeks to bring a grievance directly to the Superior Court, it is truly a question of jurisdiction as to whether the particular issue falls within the exclusive ken of the relevant labour arbitration regime. As noted in Goudie, at para. 23, this principle "is based on legislative intent." Another example arises (indirectly) in Canada (House of Commons) v Vaid, where the Court held that the Parliament of Canada is the exclusive arbiter of the scope and exercise of parliamentary privilege, to the exclusion of administrative tribunals like the Canadian Human Rights Commission. Note that the scope of this true question of jurisdiction may have been narrowed in the Court's recent decision in Chagnon (2018).
On the other hand, it is also possible for an administrative tribunal and the courts to have "concurrent jurisdiction at first instance": Mowat, at paras. 19, 23; Rogers Communications, at paras. 13-15, 19; McLean, at paras. 22-24; Mouvement laique, at paras. 46, 51; SODRAC, at para. 35. All of these things are, in my view, "true questions of jurisdiction."
It is, therefore, a mistake to conceptualize such questions as being distinct from the "true questions" paradigm. It is unclear why Rothstein J. himself did not draw this conclusion in Alberta Teachers or why the majority in Dunsmuir identified these two categories of questions as separate and distinct (paras. 59, 61). Questions regarding the jurisdictional lines between two or more competing specialized tribunals are one species of true questions of jurisdiction. As illustrated by Types 1 and 2, however, such questions are not exhaustive of that category.
This Unacknowledged Typology is Principled
The proposed typology emerges from a review of the SCC's post-Dunsmuir jurisprudence. It does not, however, formally appear in any of the Court's judgments. But the typology is nevertheless principled. The first two types of true questions of jurisdictions identified above respectively concern questions of constitutional jurisdiction.
Type # 1 concerns whether the decision-maker's statutory authority empowers to it to grant constitutional remedies under ss. 24(1) of the Charter and 52(1) of the Constitution Act, 1982.
Type # 2 concerns whether the decision-maker's statutory authority empowers it to perform the constitutional function of fulfilling the duty to consult owed to Indigenous peoples under s. 35 of the Constitution Act, 1982.
Type # 3 does not concern constitutional jurisdiction, but forms a separate type of true questions of jurisdiction. This type obtains its justification from the rule of law concerns arising where one or more statutory bodies claim to exercise exclusive or concurrent jurisdiction over a matter. In such cases, the question truly is about jurisdiction.
These relatively unique types of legal questions, which do not often arise, further share the common advantage: heeding Dickson J.'s famous cautionary note to avoid branding as jurisdictional that which is doubtfully so: C.U.P.E., at p. 233, cited in, inter alia, Dunsmuir, at paras. 35, 59; ATA, at para. 33; Guerin, at para. 32, Canadian Human Rights Commission (2018), at para. 31.
In sum, "true" questions of jurisdiction or vires exist. This is a matter of empirical fact demonstrable in the SCC's own post-Dunsmuir jurisprudence. Any attempts to excise this category of questions from the realm of judicial review of administrative action should correspondingly be rejected.
NOTE: The views expressed in this article do not necessarily represent the views of the Department of Justice (Canada), the Government of Canada, or the University of Ottawa. These views are entirely my own, and are expressed in a private, scholarly capacity