PDF version: True Questions of Jurisdiction: Administrative Law’s Unicorns?
Decision considered: Alberta (Information and Privacy Commissioner) v Alberta Teachers Association, 2011 SCC 61
Introduction
In its recent decision reversing the Alberta Court of Appeal’s decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association (Teachers’ Association), 2010 ABCA 26, the Supreme Court of Canada made significant statements with respect to issues of administrative law. In particular, a majority of the Court held:
- When an issue is not raised before an administrative decision-maker it may nonetheless be raised in an application for judicial review. A court may, however, exercise its “discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so” (para 22).
- In such cases deference may still be granted: “Where the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear because the issue was not raised before the tribunal” (para 50).
- In order to be deferential in such circumstances, the court may take into account the reasons that the administrator could have given had the issue been put before it. If a “reasonable basis for the decision is apparent to the reviewing court” then that will suffice (para 55). The court may also look at reasons offered by the administrative decision-maker on the issue in other cases to determine whether the decision-maker’s approach to the issue is reasonable. In some circumstances the court may remit the matter to the decision-maker to allow reasons to be prepared.
- Finally, and most significantly, a majority of the Court, in reasons prepared by Justice Rothstein, called into question the ability to identify a “true question of jurisdiction” to which deference should not be granted. Justice Rothstein stated that he was “unable to provide a definition of what might constitute a true question of jurisdiction” (para 42).
- Justice Rothstein held that when an administrative decision-maker interprets its home statute it is presumptively entitled to deference (para 34). Deference will not be offered where the interpretation raises constitutional questions, a question regarding the jurisdictional lines between tribunals or a question of law “that is of central importance to the legal system as a whole and that is outside the adjudicator’s expertise” (para 43). If a party claims that deference is not owed because the matter is a true question of jurisdiction, that party will “be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness” (para 39).
- Finally, Justice Rothstein held that once a deferential standard has been identified, it is not necessary to question further how deferential the court should be: “Once it is determined that a review is to be conducted on a reasonableness standard, there is no second assessment of how intensely the review is to be conducted” (para 47).