Two Tribunals Enter…

Admin bodies and jurisdictional conflicts

Two Tribunals Enter…

When most practitioners think of administrative law, a few major topics usually come to mind. Standard of review is likely first amongst these, with natural justice and procedural fairness not far behind. The jurisdiction of an administrative body is also a common topic, but usually in terms of the agency’s authority within its legislative scheme. A topic that might come to mind less frequently is when there is conflict between administrative bodies, either in terms of jurisdiction or subject matter.

There are many instances where two or more administrative bodies might intersect, such as the subject matter or the object of regulation. There is also often an intersection between administrative bodies at the federal and provincial level. For the most part, the diverse and multitudinous number of agencies are able to work with little conflict.

However, the explosion in the number of administrative agencies, bodies, tribunals, and other governmental bodies in the last 75 years has resulted in overlapping responsibilities and jurisdiction. This has given rise to an array of challenging and noteworthy cases in which the courts have worked to resolve these conflicts.

Sometimes legislation addresses priorities. This does not always preclude conflict, as seen in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52. In that case, the WorkSafeBC Review Division determined a Board policy regarding chronic pain was not offside BC’s Human Rights Code, RSBC 1996, c 210 (“Code”). Unsatisfied, the workers took the matter to the BC Human Rights Tribunal. WorkSafeBC objected, arguing the Code barred the Tribunal from proceeding, as the matter had been “appropriately dealt with” (s. 27(1)(f) of the Code) by the Review Division.

Ultimately, the Supreme Court of Canada agreed with WorkSafeBC, stating that the provision of the Code had imported the common law principals of issue estoppel, collateral attack, and abuse of process that precluded one administrative body from conducting a “judicial review” of another body’s decision. The court said that once an agency’s decision is final, it is to be treated as such by other administrative bodies. While not described as such, this reflects the concept of comity as it is used in conflicts of law (private international law) cases.

This concept is not unlimited. It is often forgotten that the Office of the Ombudsperson is also an administrative body, but perhaps not in the traditional sense as it does not make merit decisions regarding a party’s entitlement to governmental benefits or entitlements. Notwithstanding the fact a government agency might have made a final decision, the Ombudsperson has the power to scrutinise the processes and decisions of other administrative bodies, as notably discussed in British Columbia Development Corporation v. Friedmann (Ombudsman), 2011 SCC 52.

When it comes to conflicts between agencies at different levels of government, the courts have developed a number of different tests to resolve the matter. Sometimes the subject matter is the same, such as labour relations. For those kinds of cases, there is the two-part test as described in NIL/TU,O Child and Family Services Society v. BC Government and Service Employees’ Union, 2010 SCC 45.

Sometimes the subject matter differs, such as environmental regulation on one hand and bankruptcy on the other, as seen in the recent Orphan Well Association v. Grant Thornton Ltd. 2019 SCC 5 decision. It revisited the three-part test regarding a provincial regulator’s ability to impose an environmental obligation on a bankruptcy and a trustee’s rights under the Bankruptcy and Insolvency Act, RSC 1985, c B-3. There was no corresponding federal administrative body in the case, but it helps illustrate the limitations facing an agency even when it operates within its subject matter.