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Administrative - Tribunal Jurisdiction. Midnight Building Corp. v Tarion Warranty Corp.
In Midnight Building Corp. v Tarion Warranty Corp. (Div Ct, 2025) the Divisional Court allowed an application, this regarding a finding of liability "by Tarion, for the cost to construct a retaining wall incident to construction of a swimming pool (the “impugned finding”), pursuant to the Ontario New Home Warranties Plan Act".
The court considers when an administrative decision is functus officio (aka final), here where an advisory report was changed resulting in a subsequent material change in decision:(a) LAT’s Jurisdiction Over “Reconsideration” Requests
[7] The Applicant argued that Tarion had no jurisdiction to change its initial disposition on the retaining wall issue. I would restate the Applicant’s position as follows: once Tarion makes a decision on an item of claim, Tarion has exhausted its jurisdiction, and a homeowner’s remedy is an appeal to the LAT.
[8] I agree with the Applicant that once Tarion makes a “decision” it will generally be functus officio in respect to the matter decided. However, “decision” in this context is a final decision. The Conciliation Assessment Report dated January 12, 2023 is not, itself, a final decision. It is more like a provisional disposition of issues, part of an ongoing conciliation process. Until Tarion issues a formal decision, it is open to Tarion to re-open an issue it has provisionally disposed of – provided it does so following a fair process.
[9] Tarion does not have a formal reconsideration process. However, it does not need to have such a process to re-open an issue that has not yet been decided on a final basis.
[10] Finally, I would not wish to be taken to have established a firm “rule” precluding Tarion from “revisiting” its own “decisions” in some circumstances. Correcting minor or agreed errors, or engaging in a formal reconsideration, are processes that Tarion could follow, in appropriate cases. Permitting revised or fresh claims in light of changed circumstances is also something that could be available, in appropriate cases, so long as these revised or fresh claims are in accordance with the statutory scheme. Tarion is master of its own processes, and this court will defer to Tarion’s procedural choices so long as the process followed is fair to both sides. . GCT Canada Limited Partnership v. International Longshore and Warehouse Union Ship and Dock Foremen, Local 514 [legal error corrected]
In GCT Canada Limited Partnership v. International Longshore and Warehouse Union Ship and Dock Foremen, Local 514 (Fed CA, 2025) the Federal Court of Appeal considered CLC CIRB 'direction' appeal jurisdiction.
Here the court considered the tribunal's jurisdiction to correct (vary) a ruling wrt an earlier error in citing a provision:[23] Before the Board, it was not in dispute that the Direction referred to the wrong statutory provision. The Direction found a contravention of paragraph 136(5)(g) of the Code, which applies to workplaces with fewer than 20 employees or where a health and safety committee is not required. There was no dispute that neither of these criteria applied to GCT. Rather, the equivalent provision that applied to GCT is paragraph 135(7)(e) of the Code.
[24] The preliminary issue raised by GCT is whether the Board erred when it determined that it had the power to vary the Direction to refer to paragraph 135(7)(e) of the Code as the provision that had been contravened. GCT submits this exceeded the Board’s authority.
[25] GCT submits that this issue is subject to correctness review. I disagree. Whether the Board erred in interpreting its enabling statute and thereby exceeded its authority is subject to reasonableness review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov) at paras. 65-68. There is no basis to apply the correctness standard of review. In particular, this application for judicial review is not a statutory appeal and GCT has not given any grounds to think that the Board has violated its rights to procedural fairness. Therefore, I will apply the reasonableness standard of review.
....
[27] An appeal of a direction can be made by an aggrieved employer to the Board pursuant to subsection 146(1) of the Code:"146 (1) An employer, employee or trade union that feels aggrieved by a direction issued by the Head under this Part may appeal the direction to the Board, in writing, within 30 days after the day on which the direction was issued or confirmed in writing."
"146 (1)"" Tout employeur, employé ou syndicat qui se sent lésé par des instructions données par le chef sous le régime de la présente partie peut, dans les trente jours qui suivent la date où les instructions sont données ou confirmées par écrit, interjeter appel de celles-ci par écrit au Conseil." [28] If such an appeal is brought, the general power of the Board to vary a direction is provided for in subsection 146.1(1) of the Code:"146.1 (1) If an appeal is brought under subsection 129(7) or section 146, the Board shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may"
"146.1 (1)"" Saisi d’un appel interjeté en vertu du paragraphe 129(7) ou de l’article 146, le Conseil mène sans délai une enquête sommaire sur les circonstances ayant donné lieu à la décision ou aux instructions, selon le cas, et sur la justification de celles-ci. Il peut:"
"(a) vary, rescind or confirm the decision or direction; and"
"(a)"" soit modifier, annuler ou confirmer la décision ou les instructions;"
"(b) issue any direction that the Board considers appropriate under subsection 145(2) or (2.1)."
"(b)"" soit donner, dans le cadre des paragraphes 145(2) ou (2.1), les instructions qu’il juge indiquées." [29] The question in this application concerns the Board’s interpretation of the extent of its power to vary a direction. As explained below, the Board concluded that its power was broad enough to vary the Direction to correct the Code provision applicable to GCT.
[30] The Board first considered the applicable legal principles. Based on the jurisprudence, the Board concluded that it could correct the relevant Code provision if the alleged contravention was based on the same facts and circumstances (Decision at para. 41).
[31] The Board outlined its reasoning in the application of that principle. In particular, the Board found that the nature of the contravention was equivalent under either paragraph 135(7)(e) or paragraph 136(5)(g) since the content of these provisions is "“substantially the same”". The Board noted that the "“key concern”" specifically referenced in the Complaint was the fact that GCT was not inviting or allowing members of the Committee to participate in all vessel inspections. Unfortunately, both the employee who filed the Complaint and the ministerial delegate who issued the Direction erred by citing the wrong provision of the Code. In these circumstances, the Board concluded that the reference to a wrong section "“should not serve as a barrier to … the [Board’s] consideration of the direction.”" Accordingly, the Board concluded that it had the authority to vary the Direction in these circumstances by correcting the applicable provision of the Code. (Decision at paras. 42-43).
[32] There is no dispute that the reasons of the Board were logical and coherent, and took into account the relevant factual constraints. Rather, the thrust of GCT’s argument is whether the Board unreasonably failed to consider significant legal constraints that bore on the Decision (Vavilov at paras. 101, 105-106).
[33] As mentioned, the Board’s legal analysis is set out in paragraphs 40-42 of the Decision. The principal judicial authority referred to is the Federal Court of Appeal’s decision in Martin v. Canada (Attorney General), 2005 FCA 156 (Martin). The Board identified some relevant principles emanating from Martin and subsequent jurisprudence interpreting Martin. First, an application to appeal before the Board is a de novo proceeding. Second, the Board may vary a direction to provide for what, in the Board’s view, the ministerial delegate should have directed, or to include other contraventions that should have been identified for correction in the original. Further, there is a limitation on the power to vary in that any resulting direction "“must be related to the matter under appeal and that was investigated by the ministerial delegate”" (Decision at para. 40).
[34] What the Board’s legal analysis fails to mention is that the jurisprudence it cites all predates amendments to the Code made shortly before GCT’s appeal was heard by the Board. While these amendments did not materially alter the language in subsection 146.1(1), GCT points out that these amendments did remove the wide powers of the appeals officer previously listed in section 146.2 of the Code, such as the power to summon and enforce the attendance of witnesses. GCT argues that since these wide powers existed at the time of Martin and subsequent authorities referred to by the Board, it was unreasonable for the Board to rely on the above legal principles. Rather, GCT submits that if the Board had considered the recent Code amendments, it would have realized that the Board now has a narrower scope of intervention in an appeal. In particular, GCT argues, the amendments signal that the Board’s authority is now "“a purely appellate authority, not a ""de novo review”" and, accordingly, that the Board can address only the contravention in the direction issued and has no authority to vary a direction to find a contravention of a different section of the Code.
[35] As mentioned, Vavilov instructs that GCT has the burden to show that the Decision is unreasonable. In this case, the question is whether GCT has shown that the Board’s silence concerning the recent Code amendments renders the Decision unreasonable.
[36] Notably, GCT did not raise these arguments about the recent amendments before the Board. However, the question remains whether the Board’s failure to mention the amendments on its own initiative is enough to cause a loss of confidence in the outcome reached: Vavilov at para. 106. Although it may have been preferable if the Board had mentioned the amendments, perfection is not the standard and in my view this omission does not make the Decision unreasonable.
[37] Although there may be an open question about the current state of the law regarding the extent of the Board’s powers on appeal, including the scope of its ability to vary a direction, it was reasonable for the Board to rely on Martin on the facts of this case. In Martin, the Federal Court of Appeal considered the relevant statutory scheme applicable to an appeal of a direction before an appeals officer. The Court concluded that an appeals officer had a very broad power to vary directions that were deficient. The circumstances considered in Martin are far removed from the present facts which involve a highly restrictive use of the power to vary to correct what was essentially a technical oversight in both the Complaint and the subsequently issued Direction. Accordingly, there was no reason for the Board to consider the full extent of its power to vary under the current scheme. In any event, I would underscore that the Board does not have fewer powers than the appeals officer did at the time of Martin as a result of the repeal of section 146.2 of the Code. This is a consequence of the existing powers that the Board has elsewhere in the Code (See, for example, section 16 of the Code). Accordingly, I reject GCT’s submission that the Board’s power to vary a direction is narrower than the power previously given to appeals officers.
[38] In conclusion, I find that GCT has not shown that the Board’s reliance on Martin as the leading case was unreasonable in accordance with Vavilov above. Accordingly, I find that the Board did not err in determining to vary the Direction. . Giffen v. TM Mobility Inc. [HRC and Charter tribunal jurisdiction]
In Giffen v. TM Mobility Inc. (Fed CA, 2024) the Federal Court of Appeal allowed an appeal, this from a denial of the Federal Court of a judicial review, this that "sought to set aside the ... decision of Adjudicator Michael Horan" that "determined that he had no jurisdiction to consider the appellant’s complaint that she had been unjustly dismissed following her return from maternity leave due to the limitation set out in paragraph 242(3.1)(a) of the Canada Labour Code" ... "(t)hat paragraph of the Code precluded an adjudicator from hearing an unjust dismissal complaint where a complainant was laid off because of a lack of work or discontinuance of a function."
The court cites the wide legal authority of a tribunal granted jurisdiction over 'questions of law', though HRC jurisdiction in labour tribunals is still uncertain:[56] Returning to the result in MacFarlane, the Federal Court upheld the adjudicator’s decision only in part, finding that the adjudicator should have retained jurisdiction to hear the complaint if the Commission declined to hear Ms. MacFarlane’s discrimination complaint. In reaching this conclusion, the Federal Court relied on Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, where the Supreme Court of Canada held that statutory tribunals empowered to decide questions of law are required to apply the whole law (including, notably, human rights statutes) to the issues before them.
[57] That said, the Federal Court also concluded that even where no complaint is filed with the Commission, an adjudicator sitting under Division XIV of Part III of the Code lacks jurisdiction to hear a complaint if it is in essence a complaint that alleges that a complainant was terminated for discriminatory reasons in violation of the CHRA. Thus, according to MacFarlane, as between the two procedures, the primary procedure to remedy a claim that an employee was terminated for discriminatory reasons is under the CHRA; redress is available under Division XIV of Part III of the Code only where the Commission decides the complaint would be more appropriately dealt with under the Code.
[58] Similar to MacFarlane, in Joshi v. Canadian Imperial Bank of Commerce, 2014 FC 722, aff’d 2015 FCA 105, 474 N.R. 215, leave to appeal to SCC refused, 36440 (24 September 2015), the complainant was dismissed for performance issues and filed complaints of both unjust dismissal and discrimination that were found to be substantially similar. Likewise, in Geetha Kumari Kommepalli v. BMO Financial Group, 2020 CIRB 938 [Geetha], Ronald Brown v. Warren Gibson Limited, 2020 CIRB 948 [Brown], and Bryan Hayes v. The Royal Bank of Canada, 2021 CIRB 961 [Hayes], the CIRB declined jurisdiction in accordance with paragraph 242(3.1)(b) of the Code. In Geetha, the alternative remedy was found in Part II of the Code, while Brown and Hayes were situations where the complainants alleged that they had been terminated for discriminatory reasons in violation of the CHRA and thus were found to have a procedure for redress through the Commission. . Marrone v. Ontario Securities Commission
In Marrone v. Ontario Securities Commission (Div Court, 2024) the Divisional Court dismissed an appeal from an OSC hearings panel "that he breached his duty as a registered mutual fund salesperson".
Here the court considers whether the OSC has jurisdiction to decide issues of breach of regulations by a separate but related body:Analysis of the Issues
I) Did the Merits Panel lack jurisdiction to make findings concerning breaches of MFDA and IPC Rules?
[20] Mr. Marrone submits that the MFDA had sole jurisdiction to determine questions of breach of its Rules, by virtue of s. 21.1(3) of the Securities Act, which provides:21.1.(3) A recognized self-regulatory organization shall regulate the operations and the standards of practice and business conduct of its members and their representatives in accordance with its by-laws, rules, regulations, polies, procedures, interpretations and practices. [21] Mr. Marrone submits that the Merits Panel’s jurisdiction is limited to only making orders arising from breaches of “Ontario securities law” pursuant to ss. 127 and 127.1 of the Securities Act. He submits that the definition found in section 1 of the Securities Act of “Ontario securities law” does not include rules enacted by self-regulatory organizations such as the MFDA.[3] Thus, he argues that the MFDA is the only body empowered to make findings as to the scope and extent of its rules.
[22] We disagree. First, Ontario securities law as defined includes Commission Rule 31-505, which requires registrants to deal fairly honestly and in good faith with their clients. This was the overarching allegation before the Merits Panel, and it found that Mr. Marrone breached this Rule. He did so by failing to follow MFDA Rules and IPC policies in a manner that the Merits Panel found was serious and that in all the circumstances amounted to a breach of Rule 31-505. The question of his breach of the duty within Rule 31-505 was intertwined with the underlying facts and his obligations under the Rules to which he was subject. This was squarely within the Merits Panel’s jurisdiction.
[23] Second, in what we are told are unusual, if not unique, factual circumstances in this case, the Merits Panel heard evidence that after receiving the complaint about Mr. Marrone’s conduct, the MFDA sought the assistance of the Commission. The MFDA sought that assistance to compel the estates lawyer who drafted the will and POAs to produce MU’s client file. The MFDA did not have the power to compel production of that file. The MFDA and the Commission worked together to address the issues of misconduct before the Merits Panel and the Tribunal.
[24] This choice aligns with the regulatory scheme by which self-regulatory organizations such as the MFDA are “recognized” by the Commission pursuant so s. 21.1(1) of the Securities Act and made subject to terms and conditions imposed by the Commission, as part of its legislative mandate. Further, within that same section, the Commission is specifically empowered to “make any decision, if it is satisfied that to do so would be in the public interest, make any decision with respect of any by-law, rule, regulation, policy, procedure, interpretation or practice of a recognized self-regulatory organization.” This subsection gives the Commission jurisdiction to take the steps it did here as part of its mandate under the Securities Act.
[25] This interpretation of s. 21.1 accords with the purposes of the legislation as defined in s. 1.1 of the Securities Act, which are:(a) to provide protection to investors from unfair, improper or fraudulent practices;
(b) To foster fair, efficient and competitive capital markets and confidence in capital markets;
(b.1) to foster capital formation; and
(c) to contribute to the stability of the financial system and the reduction of systemic risk. [26] In addition, the MFDA’s regulatory functions were governed by the Commission’s Order recognizing the MFDA as an SRO in accordance with ss. 21.1(1) and (2) of the Securities Act. The MFDA Recognition Order is consistent with our finding that the MFDA and the Commission have concurrent and overlapping jurisdiction with respect to the MFDA’s regulatory functions:7. Compliance by Members with MFDA Rules
(A) The MFDA shall enforce, as a matter of contract between itself and its members, compliance by its members and their Approved Persons with the rules of the MFDA and, to assist the Commission with carrying out its regulatory mandate, the MFDA shall cooperate with the Commission in ensuring compliance with applicable securities legislation relating to the operations, standards of practice and business conduct of members and Approved Persons, without prejudice to any action that may be taken by the Commission under securities legislation [Emphasis added]. [27] Further, among the fundamental principles that the Commission is to consider in pursuing these purposes, are the requirements for “the maintenance of high standards of fitness and business conduct to ensure honest and responsible conduct by market participants.”: Securities Act, s. 2.1. 2. By definition, a registrant such as Mr. Marrone is a “market participant”: Securities Act, s. 1(1).
[28] We conclude that none of the purposes, principles or statutory framework suggest that the legislature intended to create a bifurcated, exclusive jurisdiction for a self-regulatory organization (“SRO”) independent of the Commission. This ground of appeal must fail. . Zoghibi v. Air Canada
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a complaint by an airline passenger seeking 'financial relief' for alleged discrimination.
Here the court noted a change in law that decided that a tribunal (the CHRC) had jurisdiction to consider general questions of law:(2) Did the Commission have jurisdiction or reasonably find that it has jurisdiction to interpret the Montreal Convention and the Carriage by Air Act?
[41] The appellant submits that the Commission cannot determine questions of law beyond its enabling statute. Instead, it is limited to assessing the sufficiency of the evidence before it. It cites Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, 140 D.L.R. (4th) 193 at para. 53.
[42] On this issue, the Federal Court held (at paras. 30-39) that the Commission was not so limited. I agree with the Federal Court, for the reasons it gave. In this regard I also substantially agree with the submissions of the Commission, which intervened on this issue.
[43] As the Federal Court noted, the Supreme Court revisited Cooper in Martin, above, and, substantially overturned it. Martin stands for the proposition that if an administrative decision-maker has the authority to decide questions of law, either expressly or implicitly as a matter of legislative interpretation, it can deal with legal questions before it. As Martin suggests, this includes issues of constitutional law.
[44] In Martin, the Supreme Court stated that its particular holding in Cooper—that the Commission had no implicit or explicit authority to decide questions of law under a now-repealed provision of the Canadian Human Rights Act (s. 15(c))—remained valid. But it continued by stating that "“[t]o the extent that [Cooper] is incompatible with [Martin]…the ratio of the majority judgment in ""Cooper"" is no longer good law""”" (at para. 47).
[45] In Cooper, the Supreme Court attached significance to whether the question of law was general and limited or whether the administrative decision-maker was adjudicative, rather than just performing a screening function. In light of Martin, that is no longer the law. In Martin (at para. 47), the Supreme Court specifically ruled that adjudicative nature of the administrative decision-maker counts for very little. The clear implication is that screening bodies, such as the Commission, do have the power to consider questions of law necessary to fulfil their screening function.
[46] The notion of implicit jurisdiction or jurisdiction as a matter of legislative interpretation in Martin deserves closer examination. At paragraph 41, the Supreme Court in Martin observes that heed must be paid to, among other things, the "“statutory mandate of the tribunal”", "“whether deciding questions of law is necessary to fulfilling this mandate effectively”", and whether "“depriving the tribunal of the power to decide questions of law would impair its capacity to fulfill its intended mandate”". This is not unlike the identification of the implicit powers of tribunals the Supreme Court usefully explored in Chrysler Canada Ltd. v. Canada (Competition Tribunal), 1992 CanLII 68 (SCC), [1992] 2 S.C.R. 394, 92 D.L.R. (4th) 609.
[47] In this case, the Commission’s function under the Canadian Human Rights Act is to act as a screening body, to winnow out complaints that cannot possibly succeed on the facts or the law. A complaint that cannot possibly succeed on the facts or the law should not be sent to the Tribunal for a time-consuming, resource intensive hearing. The purpose of this is to ensure the wise use of resources and the efficient disposition of complaints. To find that the Commission cannot look at whether some law makes a complaint doomed to fail is to frustrate that statutory purpose.
[48] For good measure, this Court has thrice decided that the Commission, when conducting its screening function, has a large amount of latitude, including the ability to measure a complaint against applicable law to see whether it can potentially succeed: Canada (Attorney General) v. Ennis, 2021 FCA 95, [2021] 4 F.C.R. 154 at para. 61; Gregg v. Air Canada Pilots Association, 2019 FCA 218 (dissenting reasons but not opposed by the majority on this point); Bell Canada v. Communications, Energy and Paperworkers Union of Canada, 1998 CanLII 8700 (FCA), [1999] 1 F.C. 113, 167 D.L.R. (4th) 432 (C.A.) at para. 38; see also Northcott v. Canada (Attorney General), 2021 FC 289. On other occasions, it has had to decide whether other administrative decision-makers should handle a complaint, which requires it to examine and interpret the governing statutes of those administrators: Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667 at para. 99; Eadie v. MTS Inc. 2015 FCA 173, 475 N.R. 174 at paras. 96-105; MacFarlane v. Day & Ross Inc., 2010 FC 556, [2011] 4 F.C.R. 117 at paras. 73-74.
[49] In this case, the Commission determined whether remedies were legally available for the alleged breach of the appellant’s human rights in light of the Carriage by Air Act and the Montreal Convention. It did not adjudicate the merits of the appellant’s complaint but rather assessed whether the complaint should be dealt with using objective benchmarks including relevant law and precedent. It concluded that this task fell within the powers, duties and functions conferred upon it by s. 41 of the Canadian Human Rights Act.
[50] The Federal Court held that the Commission’s conclusion was reasonable. I agree for the foregoing reasons and the reasons the Federal Court gave. . 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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