Decisions of the Nova Scotia Court of Appeal reversed by the Supreme Court of Canada - October 3, 2003

Fellow CCAT members:

Two decisions of the Nova Scotia Court of Appeal were reversed today (October 3, 2003) by the Supreme Court of Canada. The SCC decision is of interest to members of CCAT in that it may shed light on the court's future approach to the powers of administrative tribunals to apply the Charter. The court said, in part:

"..... this appeal concerns the constitutional validity of s. 10B of the Nova Scotia Workers' Compensation Act, S.N.S. 1994-95, c. 10, as amended by S.N.S. 1999, c. 1 (the "Act"), and of the Functional Restoration (Multi-Faceted Pain Services) Program Regulations, N.S. Reg. 57/96 (the "FRP Regulations") adopted under that Act. These provisions exclude chronic pain from the purview of the regular workers' compensation system and provide, in lieu of the benefits normally available to injured workers, a four-week Functional Restoration (Multi-Faceted Pain Services) Program (the "Functional Restoration Program") beyond which no further benefits are available. A preliminary issue is whether the Nova Scotia Workers' Compensation Appeals Tribunal (the "Appeals Tribunal"), an administrative tribunal set up to hear appeals from decisions of the Workers' Compensation Board of Nova Scotia (the "Board"), had jurisdiction to decline to apply the challenged provisions to the appellants on the ground that these provisions violate the Charter.

.... In my view, the Nova Scotia Court of Appeal erred in concluding that the Appeals Tribunal did not have jurisdiction to consider the constitutionality of the challenged provisions of the Act and the FRP Regulations. I am of the view that the rules concerning the jurisdiction of administrative tribunals to apply the Charter established by this Court in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, ought to be reappraised and restated as a clear set of guidelines. Administrative tribunals which have jurisdiction -- whether explicit or implied -- to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. This presumption may only be rebutted by showing that the legislature clearly intended to exclude Charter issues from the tribunal's authority over questions of law. To the extent that the majority reasons in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, are inconsistent with this approach, I am of the view that they should no longer be relied upon."

The full decision appears here:

http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2003scc054.wpd.html

Contributed by:

Wayne D. Cochrane, Q.C.