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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Appeal Court Dicta

Administrative - Jurisdiction

. 1386146 Ont. Inc. v. 2520650 Ont. Inc. et al.

In 1386146 Ont. Inc. v. 2520650 Ont. Inc. et al. (Div Court, 2022) the Divisional Court considered the appeal of an interlocutory order from the Local Planning Appeal Tribunal (LPAT) under the Aggregate Resources Act. The court commented on a tribunal's lack of inherent jurisdiction, which - in this case - required a separate statutory provision to allow the tribunal to infer that it had jurisdiction by 'necessary implication':
[22] Statutory bodies may exercise only those powers granted to them expressly, or impliedly, by Parliament or the provincial legislation.

R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 26.

[23] When reviewing a statute to determine the jurisdiction of the Tribunal, the words of the governing legislation are to be read in their entire context and in their grammatical and ordinary sense. They are to be interpreted harmoniously with the scheme of the legislation, the object of the legislation, and the intention of Parliament.

Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21; ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 37.

[24] As noted above, section 18(8) of the Aggregate Act provides only two explicit options to the Tribunal when considering a licence transfer:
(1) The Tribunal may direct the Minister to carry out the proposal; or

(2) The Tribunal may direct that the Minister rescind the proposal.
Given the foregoing jurisprudence and given the absence of an explicit power to impose conditions on a licence transfer, in order for the Tribunal to consider the financial impacts of said transfer, the Tribunal must derive that power as a result of the doctrine of necessary implication.

Necessary Implication

[25] Necessary implication may be acquired when the following conditions are met:
(a) the jurisdiction sought is necessary to accomplish the objectives of the legislative scheme and is essential to the Board fulfilling its mandate;

(b) the enabling act fails to explicitly grant the power to accomplish the legislative objective;

(c) the mandate of the Board is sufficiently broad to suggest a legislative intention to implicitly confer jurisdiction;

(d) the jurisdiction sought must not be one which the Board has dealt with through use of expressly granted powers, thereby showing an absence of necessity; and

(e) the legislature did not address its mind to the issue and decide against conferring the power upon the Board.

ATCO Gas & Pipelines Ltd., at para. 73.
[26] In determining whether implied powers exist, the legal provision in question must be considered in relation to other provisions in the legislation. The ultimate goal is to determine the clear intent of the legislature.

ATCO Gas & Pipelines Ltd., at paras. 49 and 77.

[27] The court may not simply ground implied powers as a result of only coherence, logic or desirability. Rather, the Supreme Court of Canada has held that implied power must be necessary for the administration of the terms of the legislation. A gap in the range of remedies provided in a statute does not mean that the legislature necessarily intended that the unstated remedies be incidental.

Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626 at paras. 16 and 18.

[28] Finally, the function of a statutory body is of principal importance in assessing whether it is vested with an implied power to grant the remedy sought.

R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575 at para. 71.
. Canadian Merchant Service Guild v. Algoma Central Corporation

In Canadian Merchant Service Guild v. Algoma Central Corporation (Fed CA, 2022) the Federal Court of Appeal made the important point that parties may not impose jurisdiction on a tribunal (or a court) by their agreement:
[8] Fourth, the Guild argues that the Board unreasonably refused to grant the order sought on the consent of the parties, based on the submissions of the non-party interveners, the Seafarer’s International Union and Unifor. It is true that, as a matter of labour relations policy, effect will ordinarily be given to agreements negotiated between the parties, and parties are encouraged to resolve their differences amicably - a value that is reflected in the Code itself. That said, the Board must nevertheless satisfy itself that it has the statutory authority necessary to grant the relief sought, and jurisdiction cannot be conferred on judicial or quasi-judicial bodies by the agreement of the parties: see, for example, Hillier v. Canada (Attorney General), 2019 FCA 44 at para. 4; Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 218 at paras. 6-7.
. Hershkovitz v. Canada (Attorney General)

In Hershkovitz v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal states the administrative doctrine of 'jurisdiction by necessary implication':
[8] Second, the applicant also argues that the Tribunal had jurisdiction to hear an issue of natural justice and procedural fairness under the doctrine of jurisdiction by necessary implication to ensure that the applicant was not deprived of his right to contest the violation. However, this argument is misconceived as the doctrine of jurisdiction by necessary implication finds no application in this case. Indeed, the purpose of this doctrine, as described by Justice Bastarache in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 [ATCO], is to ensure that:
... the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature… (at para. 51).
[9] The doctrine may be applied in circumstances where the Court is satisfied that the jurisdiction sought is essential to the administrative body fulfilling its statutory mandate and is not one to which the legislature has clearly addressed its mind (ATCO, at paras. 51, 73). Here, the legislative language is clear that paying the penalty puts an end to the proceeding and precludes the possibility of review in the circumstances of this case. In deciding as it did, the Tribunal did just that: accomplished its statutory mandate given by Parliament.


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