Figliola: Competing Jurisdiction, Shared Governance, and Protecting Human Rights in the Canadian Administrative State

Abstract

How should jurisdictional questions be addressed by administrative bodies and reviewing courts when fundamental human rights are at stake? In the process of elaborating a new approach to determining standards of review, the Supreme Court of Canada’s landmark decision of Dunsmuir v. New Brunswick 2008 SCC 9 also re-ignited interest in the concept of “jurisdictional questions. This article focuses on the issue of jurisdictional concurrence and exclusivity between administrative decision-making bodies when more than one decision-maker seemingly has authority to decide the issue(s) at hand. The majority of exclusive and concurrent jurisdiction cases concern human rights decision-makers and human rights issues. In asserting a correctness standard for the review of these “questions regarding the jurisdictional lines between two or more competing specialized tribunals, the Court in Dunsmuir acknowledged a burgeoning line of cases that has rightfully come to pre-occupy litigants and their counsel, front-line administrative actors, and reviewing courts. This article provides an overview of the jurisprudence on exclusive and concurrent jurisdiction and concurrent tribunal finality. It examines the central cases of Morin, Charette and Tranchemontagne and pays particular attention to the recent Supreme Court case of Figliola which focuses on how a tribunal with concurrent jurisdiction should determine whether a matter has already been appropriately dealt with by a neighbouring tribunal. This article argues that the current Canadian administrative law jurisprudence has neglected to develop a methodology for deciding competing jurisdiction claims that pays respect to the expertise of administrative bodies and to their powers to fashion appropriate remedies in their specialized fields. Through a critique of recent Supreme Court of Canada case law, a new approach is proposed that aims not only to accord deference to expert human rights decision-making but also, more globally, to preserve subject-matter and remedial expertise in the Canadian administrative state.