Articles of Interest

The Implications of the Charter of Rights and Freedoms in RCMP Grievance and Disciplinary Proceedings

by Virginia Adamson, Legal Counsel
December 2004

Over the last twenty years, the Charter of Rights and Freedoms ("the Charter") has had a major effect on employment rights and labour relations. Its influence on both the grievance and disciplinary procedures under the RCMP Act, and on the work of the RCMP External Review Committee ("the Committee") has been significant. Committee recommendations that have examined Charter issues are highlighted in this article¹. Recent Supreme Court of Canada ("SCC") jurisprudence is also discussed in relation to the power of administrative tribunals to adjudicate Charter issues.

Provisions of the Charter that will be discussed in this article include areas such as freedom of expression (section 2), legal rights (sections 7 to 14), and the right to equality (section 15). In some examples, section 1 and section 24 are also raised. Section 1 of the Charter states that a violation of a right is not allowed unless the restriction or limitation can be shown to be justifiable in a free and democratic society. It is commonly raised in defence of a violation of a Charter right. The enforcement of the Charter is provided for under section 24, which states that an individual who believes his or her rights or freedoms have been violated can go to a "court of competent jurisdiction" and apply for a remedy. A special remedy is provided under subsection 24(2). If a government receives evidence through a breach of the Charter, then a court may order that the evidence not be used if it would "bring the administration of justice into disrepute²."

2. Fundamental Freedoms: Freedom of expression (section 2 of the Charter)

In the Committee's disciplinary recommendation ERC 2000-02-004 (D-081), a member provided information to the public with regard to the Force's handling of an investigation into corruption. At the disciplinary hearing, the Board found that the member had violated the oath of secrecy that he took when he joined the Force and ordered his resignation, failing which he would be dismissed. The Board addressed the right to freedom of expression which is covered in section 2 of the Charter. It stated that the Force could discipline members for violating the oath of secrecy because that guarantee was subject to section 1: "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." An exception might arise in circumstances where the disclosure was made for the purpose of denouncing "serious illegal acts or policies that put at risk the life, health or safety of the public." On appeal, the Committee found that the RCMP oath of secrecy can be considered a reasonable limit to an RCMP member's freedom of expression if it is enforced in a manner that is designed to protect legitimate interests. However, it cannot apply to prevent public scrutiny of wrongdoing on the part of the Force. The Committee recommended allowing the appeal of the Board's finding on the allegations of misconduct. The Commissioner delegated the decision-making on this appeal to a deputy Commissioner due to arguments that had been made with regard to an apprehension of bias. The Assistant Commissioner's decision dismissed the appeal against the Board's findings. (This matter is under judicial review before the Federal Court.) (For a summary of the Committee recommendation, see the July-September 2003 Communiqué; update in the January-March 2004 Communiqué).

In an earlier recommendation, ERC 2900-01-001 (D-076), the Committee examined similar issues to D-081 but came to a different conclusion. Here, confidential documents shared by the member were reproduced in a book which accused the RCMP of engaging in "dirty tricks." One of the member's arguments was that his actions were designed to draw attention to a matter of legitimate public concern. The Board found that one allegation of misconduct against the member had been established and ordered his resignation. On appeal, the Committee stated that with regard to freedom of expression, the member's disclosure did not raise a matter of legitimate public concern because his conclusions were unsubstantiated and the disclosure had been recklessly made. It recommended that the appeal be dismissed. The Commissioner agreed with the Committee's findings and recommendation and dismissed the appeal. The member brought an application for judicial review to Federal Court. The Court (Stenhouse v. Canada 2004 FC 375) concluded that the "whistle-blowing" defence did not apply because the disclosure of the confidential documents by the applicant was not for the purpose of exposing an illegal act by the RCMP or a policy which would jeopardize the life, health or safety of the public. However, the Court stated that the Commissioner's decision must be set aside because there was a reasonable apprehension of bias. (D-076 and the Federal Court decision is also discussed below with regard to the issue of disclosure. ) (Summary of the Committee's recommendation in D-076 provided in the April-June 2002 Communiqué; update in the January-March 2004 Communiqué)

3. Equality Rights (Section 15 of the Charter)

Section 15 of the Charter guarantees and protects equality regardless of race, religion, national or ethnic origin, colour, sex, age or physical or mental disability. Grounds that are not specified in the provision, such as sexual orientation, may also be protected under section 15. Some Committee recommendations that have examined the effect of section 15 on the employment rights of an individual are examined below.

Disability

In ERC 2300-00-001( G-266) and ERC 2900-01-002 (G-267), the issue of medical discharge and bona fide (legitimate) occupational requirements was raised by two members of the Force. The Committee referred to the Supreme Court of Canada's decision in British Columbia (Public Service Employee Relations Committee) v. BCGSEU, [1999] 3 S.C.R. 3 (the "Meiorin" decision), which reconsidered the test for what constitutes a bona fide requirement in light of the equality rights provisions (section 15 ) of the Charter. The Committee remarked that this decision had significantly changed the test for establishing a bona fide requirement. The new test imposes a higher standard to the duty to accommodate, requiring proof that the Force would experience an undue hardship if it had to accommodate the needs of the member. The Committee found that the processes utilized by the Force to fulfill the duty to accommodate fell short of the new Supreme Court of Canada standard. In both cases, the Committee recommended that the grievances be allowed. The Commissioner's decision included a detailed examination of the issue of medical discharge and the RCMP's duty to accommodate medically-restricted regular members. It agreed with the Committee that the RCMP's efforts to integrate the duty to accommodate did not yet meet all the new legal requirements. Although the Commissioner allowed the grievance in G-266, he denied G-267.

The member who grieved in G-267 later succeeded in an application for judicial review to Federal Court (Muldoon v. Canada 2004 FC 380). The Court stated that it agreed with the Committee that the internal process followed by the RCMP focussed too much on determining the physical restrictions of the member, and too little on what duties he was still able to perform. The Court noted that the duty placed upon an employer to accommodate is far more extensive than the RCMP's own internal policy recognized. The decision of the RCMP Commissioner was set aside and the matter was sent back for reconsideration and redetermination. (Summary of the Committee's recommendations in G-266 and G-267 are in the January-March 2002 Communiqué; update in the July-September 2002 Communiqué; update on Federal Court decision in the April-June 2003 Communiqué)

Sexual Orientation

In ERC 2000-95-005 (G-184) a member who was in a same-sex relationship grieved the refusal of compassionate leave to care for her common-law partner. She argued that it was discriminatory on the basis of sexual orientation, contrary to the Charter. The Committee recommended allowing the grievance. It noted that the RCMP could have interpreted the leave provision in a non-discriminatory fashion, on the basis of the Charter. The Commissioner followed the Committee recommendation. (Summary provided in the January-March 1997 Communiqué)

Age

In a recent grievance, ERC 3300-04-001( G-325), a member challenged the refusal of his application for an extension of his service, after being forced to retire. He argued that provisions of the RCMP Superannuation Regulations, which require mandatory retirement at age 60, violated the Charter. The Committee found that the application was not sent to the appropriate decision-maker within the RCMP and recommended allowing the grievance. The Committee acknowledged that older cases had allowed mandatory retirement. However, it also suggested that the mandatory retirement provision may no longer be lawful in light of more recent court decisions about what constitutes a bona fide (legitimate) work requirement. The applicable test is now whether the Force would experience an undue hardship if it retained the Grievor. The Commissioner has not yet rendered his decision in this matter.(Summary of G-325 provided in the July-September 2004 Communiqué)

4. Legal Rights (Sections 7 to 14 of the Charter)

Sections 7 to 14 of the Charter refer to several protections designed to ensure that individuals are treated fairly in the conduct of legal proceedings. These include the right to basic principles of justice (section 7) , the right to be protected against unreasonable search or seizure (section 8), protections upon being arrested or detained (section 10), procedural rights upon being charged with an offence (section 11), the right not to be subjected to any cruel and unusual treatment or punishment (section 12), the right to be protected from self-incrimination (section 13), the right to be assisted by an interpreter in court proceedings (section 14).

Standard of Proof Required in Disciplinary Context

In ERC 2200-95-005 (D-044) the member argued that the application of the civil standard of proof for discipline under the RCMP Act (balance of probabilities) was contrary to section 7 of the Charter. He also argued that the methods of investigation used in this particular case were contrary to section 7 of the Charter. On appeal, the Committee found that section 7 of the Charter could apply to RCMP proceedings, but rejected the member's arguments that the standard of proof under the RCMP Act violated the Charter. The Committee also found that the member's Charter rights were not violated by the methods of investigation that were used. The member withdrew his appeal before the Commissioner could render his decision. (Summary provided in the July-September 1996 Communiqué; update in the April-June 1997 Communiqué)

Disclosure

In D-076, discussed above, the member relied upon a number of Supreme Court of Canada cases to argue that a stay of proceedings should be granted in accordance with section 7 of the Charter. In particular, he submitted that there was a failure to disclose pertinent evidence in a timely manner and that the investigation was biased. The Board conceded that there had not been a model investigation, but found no bias on the part of the investigator. With regard to disclosure, the Board referred to R. v. Stinchcombe [1991] 3 S.C.R. 326, which had been relied upon by the member on the issue of disclosure: all relevant statements, notes and information are to be disclosed before the proceeding and the obligation is a continuing one. A landmark Charter decision, Stinchcombe had confirmed that the common law right to disclosure acquired new vigor by virtue of its inclusion in Section 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice³, and that the right to make full answer and defence is one of the pillars of criminal justice. The Board stated that the RCMP Act and policy provides for a level of disclosure that is less than Stinchcombe, but cases over the years have expanded the scope of disclosure to an almost identical level. The Board noted that discipline law has generally followed this trend. However, here, the member failed to prove that the lack of or late disclosure impaired the member's right to make full answer and defence. On appeal, the Committee found that the member had not been deprived of the opportunity to make full answer and defence before the Board. On judicial review, the Federal Court found that had all the documents been disclosed, they would not have affected the outcome of the case, with one exception. One memo might have affected the outcome with respect to sanction. Therefore, the RCMP had failed in its disclosure obligations.

Timeliness

In ERC 3100-92-001(D-024), a member was subject to disciplinary proceedings due to allegations of sexual harassment. The member appealed the Board's finding of disgraceful conduct and the sanction. The Committee recommended denying the appeal but also expressed concern with the length of time it took for the case to go to a hearing before the Adjudication Board. Through its reference to case law, the Committee suggested that undue delay in bringing disciplinary proceedings could deprive the security of the person, and violate section 7 of the Charter. Delay can produce unneeded anxiety, strain on family life, disruption of one's professional practice, the loss of self esteem and uncertainty as to the final outcome, amongst other problems. Because delay was not raised at the hearing or on appeal, the Committee did not recommend that the delay affect the outcome of the appeal. (Summaries and updates provided in the September and October/November 1992 Communiqué)

Unlawful Search and Seizure

In ERC 3300-90-001 (D-013) the member was subject to disciplinary proceedings, after allegedly not reporting certain items at Customs. In its findings, the Committee recommended that only one of the allegations against the member be found to be established. It found that the member had been detained by the police and was not advised of his right to counsel, contrary to section 10 of the Charter. The Committee recommended that evidence ought to be excluded in accordance with section 24(2) and that one of the allegations be dismissed on that basis. The Commissioner followed the Committee's recommendation. (Summary of recommendation provided in the June-July 1990 Communiqué) (See also ERC 2200-93-003 (D-030) where the Committee came to a different conclusion on the exclusion of evidence under section 24(2) of the Charter. A Summary of D-030 is found in the April-May 1994 Communiqué and an update is found in the October-November 1994 Communiqué)

Section 13 Self Incrimination

In ERC 2200-90-005 (D-016), the Committee commented in detail about the scope of section 40 of the RCMP Act, which mandates a member to answer any question relating to a matter under investigation when required to do so. A member cannot refuse on the ground that the answer to the question may show that he or she has committed a crime or may subject the member to any proceeding or penalty. However, section 40(3) states that the answers are not receivable in any criminal, civil or administrative proceeding. There is one exception and that is where the statement shows that the witness has intended to mislead or lie in making the statement. The Appropriate Officer tried to enter into evidence a statement made by the member under section 40, in order to show a contradiction or inconsistency between that statement and an earlier statement. The Board refused to receive the more recent statement, ruling that under subsections 40(2) and 40(3) of the Act, no answer given within the context of an internal investigation could be deemed to be voluntary. On an appeal by the Appropriate Officer, the Committee examined several aspects of section 40 including the question as to whether a member being asked questions in a disciplinary investigation was obliged to invoke the protection of subsection 40(3) by making an objection to the question before answering. The Committee referred to section 13 of the Canadian Charter of Rights and Freedoms in its interpretation of sections 40(2) and (3) of the RCMP Act. The Committee stated that the Charter provision has been found to protect witnesses whether they object to questions or not. The actual wording of section 40, like the Charter, does not specify that an objection is necessary. Therefore, section 40 of the RCMP Act must be interpreted along the lines of the Charter provision to protect members' answers regardless of whether they object to the questions. The Committee recommended that the Appropriate Officer's appeal against the Board's decision to exclude the internal investigation statements be dismissed. The Commissioner agreed with the Committee's Findings and Recommendation in D-016 and also with the Committee's reasoning. (Summary of D-016 provided in the September-October 1990 Communiqué. See also a similar discussion in ERC 2400-95-006( D-049) but with a different result in the April-June 1997 Communiqué; update in the July-November 1997 Communiqué)

5. The Authority of Tribunals to Address the Charter

The examples above demonstrate that the application of the Charter can have striking consequences on RCMP grievance and disciplinary proceedings. In addition, judicial interpretation of the Charter by the courts is constantly evolving, and this can always have an effect on decisions made in future administrative proceedings in the area of grievances, discipline and discharge. However, the degree to which administrative tribunals have authority to consider Charter of Rights and Freedoms challenges has been a matter of intense judicial debate⁴. The Supreme Court of Canada (SCC) recently revisited and clarified this issue in Martin v. NS Workers Compensation Board; Laseur v. NS Workers Compensation Board [2003] 2 SCR 504 ("Martin"). This decision has a direct and significant bearing on the administrative machinery that operates in grievance disputes and disciplinary hearings and appeals and Charter arguments before the RCMP External Review Committee. A summary of this SCC decision, and a brief history of the judicial debate as to the ability of administrative tribunals to rule on Charter issues is provided below.

The Martin decision revised the test to be applied to determine whether administrative tribunals can apply the Charter. Historically, it had been argued that administrative tribunals should not be able to rule on constitutional and Charter questions and that only the courts should have this authority. Because administrative boards are created by governments through the enactment of statutes, it was thought that important judicial functions should not be delegated to them⁵. Concerns had also been expressed that the expertise within administrative tribunals varies, that some tribunal members may lack legal training and may not be able to properly address Charter issues, which are often challenging and complicated. On the other side of this debate, it was submitted that ensuring access to asserting Charter rights at the administrative agency level guarantees that those rights are "meaningful and effective.⁶" Greater access by administrative tribunals helps "to ensure that the Constitution is universally respected and upheld in any legal context in which it is relevant.⁷" It "bears directly on how accessible Charter rights will be to ordinary Canadians.⁸" If administrative agencies were not able to address Charter issues, proceedings could be put on hold until a superior court has addressed the Charter issue. Consequently, the process could be encumbered with costs, delay and fragmentation.

In the 1990s, the Supreme Court of Canada debated these questions. In three cases sometimes referred to as the trilogy⁹, the SCC wrote that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for recourse in parallel court proceedings. As noted by Justice La Forest in examining labour arbitration boards and the Charter, there "is not one law for arbitrators and another for the court, but one law for all¹⁰", and there "cannot be a Constitution for arbitrators and another for courts.¹¹" In addition, the expertise of the tribunal that addresses the Charter challenge, as well as its factual findings and record, will often be invaluable to a reviewing court. The SCC also explained that unlike the courts, an administrative board cannot strike down or declare a provision invalid. When an administrative agency that has the power to rule on Charter issues decides a case, it can simply ignore a provision that violates the Charter. In addition, an administrative agency's findings are not binding on future decision-makers. Furthermore, an error of law by an administrative tribunal interpreting the Charter can be reviewed fully by a superior court. The courts remain the "final arbiters.¹²" The trilogy recognized the importance of access to the ability to argue Charter issues before some boards and tribunals¹³. However, a few years later, another SCC decision¹⁴ appeared to back away from this position, narrowing or restricting the number of tribunals that could claim jurisdiction to consider Charter issues¹⁵.

The Supreme Court of Canada subsequently revisited these decisions in the Martin decision. In this case, provisions of provincial workers compensation laws and regulations excluded chronic pain from the regular compensation system. Two individuals with work related chronic pain were refused benefits and they appealed the Board's decisions to the Workers' Compensation Appeals Tribunal on the ground that these provisions violated equality rights under the Canadian Charter of Rights and Freedoms. The Board challenged the Tribunal's ability to hear the Charter argument. However, the Appeals Tribunal found that it could apply the Charter and in both cases ruled that parts of the workers compensation scheme violated equality rights under the Charter and did not constitute a reasonable limit under section 1.

This issue eventually made its way up to the Supreme Court of Canada. In revisiting the jurisdiction of administrative tribunals to hear Charter challenges, the SCC distinguished between the test set out in the trilogy and the newly adopted test. In prior decisions, the SCC stated that whether an administrative tribunal can rule on Charter issues depends upon its mandate and whether the law creating it gives it the jurisdiction to decide questions of law and Charter issues. This test could restrict the number and type of tribunals that could hear Charter issues. The revised and new test in Martin indicated that the first question to be addressed was simply whether the tribunal has the express or implied jurisdiction to decide any question of law, not whether Parliament or the legislature intended that the tribunal apply the Charter. If the tribunal is found to have the jurisdiction to interpret or decide questions of law, then it is already presumed to have jurisdiction to interpret the Charter¹⁶.

The restated approach to the jurisdiction of an administrative tribunal to examine legislative provisions under the lens of the Charter was set out in a four step test¹⁷:

Step (1):

Does the administrative tribunal have explicit or implied authority to decide questions of law?

Step (2):

(a) Explicit jurisdiction must be determined by looking at the terms of the statute.

(b) Implied jurisdiction is found by examining the statute as a whole, looking at factors such as:

• the statutory mandate of the tribunal and whether deciding questions of law is necessary to effectively fulfill this mandate;
• the interaction of the tribunal in question with other parts of the administrative scheme;
• the scope of the tribunal's decision making power; whether it is adjudicative in nature;
• practical considerations, including the tribunal's capacity to consider questions of law, but these considerations do not override a "clear implication from the statute itself. "¹⁸

Step (3):

If it is determined that the tribunal can decide questions of law, it is presumed that this includes jurisdiction to address the validity of the provision under the Charter.

Step (4):

That presumption may be rebutted by the party alleging that the tribunal lacks jurisdiction to apply the Charter. Generally, the presumption may only be removed by an express or implied withdrawal of such an authority, arising from the statute itself.

The SCC noted that the legislature expressly gave the Workers Compensation Appeals Tribunal the authority to decide questions of law. Wording in the Act provided that it may "determine all questions of fact and law arising pursuant to this Part" and that the Tribunal "may confirm, vary or reverse the decision of a hearing officer." Other provisions allowed cases involving "important or novel questions or issues of general significance" or issues of "law and general policy" to be directed to the Appeals Tribunal for consideration, and provided for a further appeal to the Court of Appeal "on any question of law". In addition, there was nothing in the Act that suggested that the legislature intended to exclude the Charter from the scope of the Appeals Tribunal's authority. Therefore, the presumption that the Tribunal could apply questions of law had not been rebutted.

The SCC noted that the legislature expressly gave the Workers Compensation Appeals Tribunal the authority to decide questions of law. Wording in the Act provided that it may "determine all questions of fact and law arising pursuant to this Part" and that the Tribunal "may confirm, vary or reverse the decision of a hearing officer." Other provisions allowed cases involving "important or novel questions or issues of general significance" or issues of "law and general policy" to be directed to the Appeals Tribunal for consideration, and provided for a further appeal to the Court of Appeal "on any question of law". In addition, there was nothing in the Act that suggested that the legislature intended to exclude the Charter from the scope of the Appeals Tribunal's authority. Therefore, the presumption that the Tribunal could apply questions of law had not been rebutted.

The SCC also found that the exclusion of chronic pain from the application of the general compensation provisions of the Act violated the equality rights provision of the Charter, by imposing unequal treatment upon injured workers suffering from chronic pain. This violation could not be justified under section 1 of the Charter.

6. Implications for the RCMP External Review Committee

The Martin decision clarifies and simplifies the test to apply to determine if an administrative tribunal can address Charter issues before it. If the decision making process includes the jurisdiction to decide any question of law, then it also includes the jurisdiction to decide upon any constitutional issue. To rebut this presumption takes strong language to the contrary. At the Committee level and within the grievance process itself, it is clear that in many instances, grievances present questions of law. Likewise, disciplinary boards and the appeal process frequently present questions of law. In addition, nothing in the RCMP Act suggests that the Committee should not address Charter and constitutional issues that arise before it. According to the recent pronouncements from the SCC, the Committee's jurisdiction to address these issues would continue and may even be more clearly defined. As one commentator has noted, the Martin decision will have far reaching effects because all "administrative tribunals that have the power by statute to determine questions of law will have the jurisdiction to determine the constitutional validity of a provision before it.¹⁹"

Endnotes

1. A brief synopsis of Charter issues raised in ERC recommendations was also provided in the October-December 1996 Communiqué.

2. The recommendations summarized below address only the Charter issues analysed. References are provided in parenthesis to the edition of the Communiqué that contains the longer summary of the case discussed. Summaries can also be accessed through the search engine on the ERC Internet site.www.erc-cee.gc.ca. In addition, a helpful lay person's review of the Charter of Rights and Freedoms is provided in "Your Guide to the Canadian Charter of Rights and Freedoms, Government of Canada, 2002". See Internet site http://www.pch.gc.ca/progs/pdp-hrp/canada/guide/guarantee_e.cfm.

3. At page 336, of Stinchcombe decision.

4. See discussions in Cavalluzzo, Paul, Jurisdiction of Administrative Tribunals Under the Canadian Charter of Rights and Freedoms, Special Lectures 2001 Constitutional and Administrative Law, the Law Society of Upper Canada, Toronto, 2001. McCaulay and Sprague, Practice and Procedure Before Administrative Tribunals, Thomson Carswell, Toronto, 2004. See also, Braverman, Lisa, Administrative Tribunals, A Legal Handbook, Canada Law Book Inc. Aurora, Ontario 2001 at pp 108 to 112. And Crane, M.C. Administrative Tribunals, Charter Challenges, and the "Web of Institutional Relationships", Saskatchewan Law Review, (1998) 61 Sask.L.Rev. 495.

5. A detailed discussion of this debate is reviewed in Crane, M.C. at note 4, at page 8, para 22 to 24.

6. Crane, M.C. at note 4, at p. 6 para 16.

7. Crane, M.C. at note 4, at p. 6 para 16.

8. Crane, M.C., at note 4, at page 1 para 2. This article provides an excellent review of the various concerns and arguments.

9. Each decision related to an employment issue: mandatory retirement provisions in a collective agreement before a grievance arbitration board ( Douglas/Kwantlen Faculty Assn. v. Douglas College [1990]3S.C.R. 570); whether the exclusion of a group of workers under the provincial labour relations scheme violated section 2(d)(Freedom of Association) of the Charter ( Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)[1991]2 S.C.R.5 ); and whether a board of referees under unemployment insurance legislation could consider a section 15 equality rights Charter challenge where benefits were denied to persons over the age of sixty-five.( Tétreault-Gadoury v. Canada (Employment & Immigration Commission)[1991]2 S.C.R. 22(SCC).

10. Citing Taylor(David) & Son v. Barnett[1953]1 All E.R. 843(C.A.).

11. Douglas/Kwantlen Faculty Association v. Douglas College [1990] 3SCR570, at page 597, para 43.

12. See NS Workers Compensation Board v. Martin; N.S.Workers Compensation Board v. Laseur [2003]2S.C.R.504 at pp 528-531;(2003)231DLR(4th)385 at pp 406 to 408, writing for the Court, Gonthier, J provides a summary of the policy adopted by the Supreme Court through the Trilogy. At para. 31 the Court discusses the concept of curial deference.

13. See discussions in Cavalluzzo, P , at note 4 at pp 2-4; Crane, MC, at note 4 at pp 9- 10, para 26 to 28.

14. Cooper v. Canada ( Human Rights Commission); Bell v. Canada (Human Rights Commission) [1996]3 S.C.R.854.

15. See discussion in Crane, MC, supra at note 4, at p. 16, para 45. At issue was whether the Canadian Human Rights Commission or a tribunal appointed by it to investigate a complaint could determine whether a provision of its enabling statute violated the Charter. The provision in question permitted mandatory retirement provisions if employment was terminated at the normal age of retirement for employees working in similar positions. The majority of the SCC found that the Canadian Human Rights Commission had no statutory jurisdiction to scrutinize its enabling statute's provisions through the lens of the Charter.

16. Martin v. Workers Compensation Board of Nova Scotia; Laseur v. Workers Compensation Board of Nova Scotia ,[2003] 2 S.C.R. 504 pp 532-534, paras 35-37.

17. Martin v. Workers Compensation Board of Nova Scotia; Laseur v. Workers Compensation Board of Nova Scotia ,[2003] 2 S.C.R. 504 pp 532-534, paras 35 - 37 and para 48.

18. Ibid

19. Anand, Raj and Hurley, Blake 2003 Conference of Boards and Agencies: Update on Administrative Law, 2003 Conference of Boards and Agencies, Toronto, Nov 7, 2003 at pp 13 to 15.