Simon's Legal Resources

Administrative - Exclusive Tribunal Jurisdiction

. Hopkins v. Kay [issue is exclusive jurisdiction of PHIPA v privacy tort]

In Hopkins v. Kay (Ont CA, 2015) the Ontario Court of Appeal dismissed an appeal, here brought against the dismissal of the appellant's R21 motion "to dismiss the claim on the ground that the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sch. A ("PHIPA" or the "Act") is an exhaustive code that ousts the jurisdiction of the Superior [page484] Court to entertain any common law claim for invasion of privacy rights in relation to patient records", this in a class proceedings context:

[11] The issue on appeal is whether the respondent is, or should be, in the discretion of the court, precluded from bringing a common law claim for intrusion upon seclusion in the Superior Court because PHIPA creates an exhaustive code. The Ontario Hospital Association ("OHA") intervenes to support the position of the appellants. The Information and Privacy Commissioner (the "commissioner") intervenes to support the position of the respondent.

....

[28] My analysis is twofold. First, I consider whether a legislative intention to create an exhaustive code can be inferred from the language of PHIPA. Second, I address the jurisprudence raised by the appellants in support of their contention that PHIPA ousts the jurisdiction of the Superior Court. [page489]

(i) Did the legislature intend to create an exhaustive code?

[29] Ruth Sullivan, in Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), at para. 17.20, explains the characteristics of an exhaustive code as follows: "The key feature of a code is that it is meant to offer an exclusive account of the law in an area; it occupies the field in that area, displacing existing common law rules and cutting off further common law evolution." She notes, at para. 17.34, that "if legislation constitutes a complete code, resort to the common law is impermissible". See, also, Beiko v. Hotel Dieu Hospital St. Catharines, [2007] O.J. No. 4785, 2007 ONCA 860, at para. 4; Cuthbertson v. Rasouli, [2013] 3 S.C.R. 341, [2013] S.C.J. No. 53, 2013 SCC 53, at paras. 2-4. If PHIPA does constitute an exhaustive code, the court has no jurisdiction to entertain the claim advanced by the respondent and it must be struck.

[30] An intention to create an exhaustive code may be expressly stated in the legislation or it may be implied. As there is nothing explicit in PHIPA dealing with exclusivity, the question is whether an intent to exclude courts' jurisdiction should be implied. In Pleau v. Canada (Attorney General), [1999] N.S.J. No. 448, 1999 NSCA 159, 182 D.L.R. (4th) 373, leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 83, Cromwell J.A. explained, at para. 48: "Absent words clear enough to oust court jurisdiction as a matter of law, the question is whether the court should infer . . . that the alternate process was intended to be the exclusive means of resolving the dispute."

[31] Cromwell J.A. identified three factors that a court should consider when discerning whether there is a legislative intent to confer exclusive jurisdiction. First, a court is to consider "the process for dispute resolution established by the legislation" and ask whether the language is "consistent with exclusive jurisdiction". Courts should look at "the presence or absence of privative clauses and the relationship between the dispute resolution process and the overall legislative scheme": Pleau, at para. 50 (emphasis in original).

[32] Second, a court should consider "the nature of the dispute and its relation to the rights and obligations created by the overall scheme of the legislation". The court is to assess "the essential character" of the dispute and "the extent to which it is, in substance, regulated by the legislative . . . scheme and the extent to which the court's assumption of jurisdiction would be consistent or inconsistent with that scheme": Pleau, at para. 51 (emphasis in original). [page490]

[33] The third consideration is "the capacity of the scheme to afford effective redress" by addressing the concern that "where there is a right, there ought to be a remedy": Pleau, at para. 52 (emphasis in original).

[34] These three factors provide a useful framework for considering the question posed on this appeal.

(a) The language of PHIPA and the process it establishes

[35] There can be no doubt that PHIPA lays down an elaborate and detailed set of rules and standards to be followed by custodians of personal health information. I accept former Commissioner Ann Cavoukian's description of PHIPA as a "comprehensive set of rules about the manner in which personal health information may be collected, used, or disclosed across Ontario's health care system": Commissioner's PHIPA Highlights (Toronto: Information and Privacy Commissioner/Ontario, March 2005).

[36] PHIPA also includes among its purposes the "independent review and resolution of complaints with respect to personal health information" and the provision of "effective remedies for contraventions" of the Act. The Act gives the commissioner certain powers in this regard.

[37] While PHIPA does contain a very exhaustive set of rules and standards for custodians of personal health information, details regarding the procedure or mechanism for the resolution of disputes are sparse. At para. 28 of the commissioner's factum, the review process is described as "inquisitorial in nature". The Act essentially leaves the procedure to be followed to the discretion of the commissioner. Reviews are generally conducted in writing. There is no requirement to hold an oral hearing, and therefore the fundamental features of an adversarial system, such as cross-examination, are absent. The Act gives complainants no procedural entitlements beyond the right to make representations. Pursuant to s. 59(1) of the Act, the usual procedural rights pertaining to administrative hearings granted by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 do not apply.

[38] The nature of the process established by PHIPA indicates that it was designed to facilitate the commissioner's investigation into systemic issues. While that process can be triggered by an individual complaint, the procedure is not designed for the resolution of all individual complaints. This coincides with the commissioner's policy, discussed in greater detail below, to give priority to complaints raising systemic issues. [page491]

[39] I now turn to the specific language of the Act. Section 57(4)(b) provides that one of the factors to be considered by the commissioner when deciding whether or not to investigate a complaint is whether "the complaint has been or could be more appropriately dealt with, initially or completely, by means of a procedure, other than a complaint under this Act". On its face, s. 57(4)(b) specifically contemplates the possibility that complaints about the misuse or disclosure of personal health information may properly be the subject of a procedure that does not fall within the reach of PHIPA. In my view, the language of s. 57(4)(b) is difficult to reconcile with the proposition that the complaint procedure under PHIPA is exhaustive and exclusive.

[40] The appellants argue that s. 57(4)(b) contemplates proceedings such as complaints to a professional college where a doctor or nurse has misused patient information. No doubt, professional complaints of that nature are covered by s. 57(4)(b). However, the very fact that PHIPA contemplates the resolution of disputes regarding personal health information by other tribunals undermines the argument in favour of exclusivity. Moreover, the appellants offer no explanation as to why we should limit the language of s. 57(4)(b) to one kind of tribunal and exclude the Superior Court, especially in relation to a claim that is not based on any rights conferred by PHIPA.

[41] I also read s. 71, the immunity provision, as explicit recognition that there could be proceedings relating to improper use or disclosure of personal health information other than those specifically contemplated by PHIPA. That provision provides immunity in an "action or other proceeding for damages" where there has been an attempt at good faith compliance with the provisions of the Act. In my view, this language indicates that the legislature did contemplate the possibility of a common law action for damages in the courts.

[42] Further, to the extent PHIPA does provide for individual remedies, it turns to the courts for enforcement. The commissioner has no power to award damages. It is only by commencing a proceeding in the Superior Court following an order of the commissioner that an individual complainant can seek damages, pursuant to s. 65.

[43] The appellants and the OHA argue that s. 65 demonstrates that the legislature turned its attention to the role of the courts and specifically limited their jurisdiction to assessing damages, hearing appeals on points of law and entertaining applications for judicial review. [page492]

[44] I disagree. In my view, the only conclusion that can be drawn from the role recognized for the courts under s. 65 is that the commission was not intended to play a comprehensive or expansive role in dealing with individual complaints.

[45] I conclude that PHIPA provides an informal and highly discretionary review process that is not tailored to deal with individual claims, and it expressly contemplates the possibility of other proceedings.

At paras 46-53 the court usefully considers "the "essential character" of the claim", and at paras 54-61 "whether PHIPA's dispute resolution procedure provides effective redress." It concludes:

[73] For these reasons, I conclude that the language of PHIPA does not imply a legislative intention to create an exhaustive code in relation to personal health information. PHIPA expressly contemplates other proceedings in relation to personal health information. PHIPA's highly discretionary review procedure is tailored to deal with systemic issues rather than individual complaints. Given the nature of the elements of the common law action, I do not agree that allowing individuals to pursue common law claims conflicts with or would undermine the scheme established by PHIPA, nor am I satisfied that the review procedure established by PHIPA ensures that individuals who complain about their privacy in personal health information will have effective redress. There is no basis to exclude the jurisdiction of the Superior Court from entertaining a common law claim for breach of privacy and, given the absence of an effective [page498] dispute resolution procedure, there is no merit to the suggestion that the court should decline to exercise its jurisdiction.

. Resler v. Anglin

In Resler v. Anglin (SCC, 2026) the Supreme Court of Canada dismissed a defendant's SCC appeal, this brought against an Alberta CA ruling that allowed an appeal where the Alberta QB struck the plaintiff's "amended statement of claim in its entirety, finding that it amounted to an abuse of process, disclosed no reasonable cause of action and, in any case, the allegations had no reasonable chance of success given Resler’s common law and statutory immunities".

Here the court considers the determination of 'exclusive jurisdiction', here of an Alberta election statute:

[63] A contextual and purposive analysis also supports the conclusion that the Election Act does not bar civil claims for acts performed in bad faith. Regarding context, the scheme of the Election Act does not impliedly exclude Anglin’s claim. Anglin noted that the Ontario Court of Appeal identified three factors that courts should consider in determining whether a civil claim is impliedly excluded by statute:

(i) whether the “process for dispute resolution established by the legislation” is “consistent with exclusive jurisdiction”;

(ii) the “nature of the dispute” and the “extent to which the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme”; and

(iii) “the capacity of the scheme to afford effective redress” on the basis that “where there is a right there [ought to be] a remedy.”

(R.F., at para. 75, citing Hopkins v. Kay, 2015 ONCA 112, 124 O.R. (3d) 481, at paras. 31-33 (emphasis deleted).)

[64] With respect to the first consideration, Anglin made three points. First, the controverted elections provisions of the Election Act only allow “the candidate whose election is challenged” to be named as a respondent in the petition challenging the election results (s. 186(2)). The amended statement of claim is not against the person who won the election nor against any other candidates. Second, the petition contesting the election must be filed within 30 days of the election (s. 185(2)(b)). The amended statement of claim included conduct that occurred well after 30 days post-election. Third, while the controverted elections provisions ultimately require the determination of the issue to be made by a judge, the CEO is an integral part of the process of implementing the judge’s decision (s. 195(1)). This would have the effect of putting Resler in charge of implementing the judge’s decision.

[65] With respect to the second consideration, Anglin noted that as regards the nature of the dispute, the controverted elections provisions do not contemplate the nature of his personal claim nor does he seek to overturn the election results. The controverted elections provisions only contemplate a determination of who should be recognized as winning the election, which is not in issue. Anglin’s claim therefore does not fit within the procedural framework of the Election Act as his claim for damages is not against the candidate who won the seat. As Anglin noted, if he is limited to a public remedy, then there is no personal accountability whatsoever for individuals who commit torts against candidates.

[66] With respect to the third consideration, Anglin noted that the controverted elections provisions “would shift Resler’s personal liability for his actions to a process that provides no remedy whatsoever” (R.F., at para. 82).

[67] I find Anglin’s arguments addressing the considerations set out in Hopkins to be compelling. The controverted elections provisions of the Election Act are neither designed nor suited to address individual harms alleged to have been committed by or on behalf of a CEO during the election process.

[68] The Election Act also only contemplates one remedy — a declaration that the election is void by reason of the “undue return or undue election of a candidate” as the MLA (s. 185(1)). That is the only jurisdiction carved out for the courts to remedy alleged defects in the conduct of an election. However, if the only possible remedial action was through the mechanism of a controverted election, it would not make sense for s. 5.1(1) to grant the CEO specific immunity for his actions as an individual public officer.

[69] Turning to the purpose of s. 5.1(1), if a civil claim does not challenge the validity of the election, leaving room for it strengthens the accountability of public officers and provides relief for victims of tortious conduct. This is a logical basis for the Election Act’s silence on bad faith actions and its express immunity for the CEO’s good faith actions.

[70] I find that, based on the text, context and purpose of s. 5.1(1), Anglin is entitled to claim a personal remedy based on his allegations of bad faith and tortious conduct, the usual remedy for which is damages, including punitive damages where warranted. I note that the Chief Electoral Officer of Quebec, an intervener in this appeal, recognized that, in principle, an election officer is not prevented from being pursued in civil proceedings for bad faith or gross negligence if it caused real prejudice to the claimant:

[translation] . . . subject to their relative immunity for any act or omission in good faith in the performance of their duties, an election administrator may in principle be the subject of a civil suit for bad faith or gross negligence if this could have caused actual harm to the plaintiff, for example an injury or other material damage.

(Chief Electoral Officer of Quebec’s condensed book, at p. 2)

I agree.

. Canada v. Hirschfield [IMPORTANT]

In Canada v. Hirschfield (Fed CA, 2025) the Federal Court of Appeal allowed an appeal, this from a granted certification decision regarding RCMP officers who both were eligible for a disability pension and civil damages, and to whom Veterans Affairs Canada (VAC) "offset a portion of ... civil damages award against his pension benefits".

Here the court usefully sets out criteria for determining when a tribunal has exclusive procedural jurisdiction over a matter, and when "the essential character of a claim renders it subject to that machinery":

[52] ... In my view, both errors are rooted in the failure of the motion judge to fully address the terms of the regulatory scheme governing the benefits in issue—in particular, the exclusive jurisdiction that it confers on the VRAB—and the "“essential character”" (or, as it is sometimes expressed, the "“essential nature”") of Mr. Hirschfield’s claim.

[53] As the Supreme Court stated in Vaughan v. Canada, 2005 SCC 11 at para. 26, "“[w]hen a benefit is conferred by statute or regulation, the conferring legislature is entitled to specify the machinery for its administration [...], subject to a dissatisfied party having recourse to judicial review”" (citation omitted).

[54] Where the legislature has so specified, and the essential character of a claim renders it subject to that machinery, it is through that machinery that the claim should be determined. "“[T]hat an administrative tribunal should decide all matters whose essential character falls within the tribunal’s specialized statutory jurisdiction, is now a well-established principle of administrative law:”" R. v. Conway, 2010 SCC 22 at para. 30 (emphasis in original).

[55] As discussed in detail above, here Parliament has specified "“machinery”" to govern entitlement to the disability pension benefits in issue: it has specified that the benefits are to be administered in the first instance by VAC, and then, if necessary to resolve a dispute, by the VRAB—fully and exclusively—subject only to judicial review.

[56] Therefore, as stated in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14 at para. 39,

[t]he key question […] is whether the essential character of [the] dispute, in its factual context, arises either expressly or inferentially from a statutory scheme. In determing this question, a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction not intended by the legislature.

[57] This test has been applied in a wide variety of contexts, including, among others, in labour relations (where the seminal case is Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 SCR 929 at paras. 52-53); in taxation matters (see Merchant Law Group v. Canada Revenue Agency, 2010 FCA 184); in the immigration context (see Leahy v. Canada (Citizenship and Immigration), 2020 FCA 145); in workers’ compensation matters (see Gill v. WorkSafeBC, 2017 BCCA 239); and in the context of statutory insurance benefits (see Stegenga v. Economical Mutual Insurance Company, 2019 ONCA 615). It applies whether the claim is put forward in a proposed class proceeding or in an individual action: see, for example, Merchant at para. 40; Canada (Attorney General) v. Scow, 2022 BCCA 275 at para. 85.

[58] The rationale in the labour cases "“involves the recognition by the courts that they ought not intervene in the field of labour relations, where specialized tribunals have been established by legislators for settlement of disputes”": Canada v. Greenwood, 2021 FCA 186 at para. 129, leave to appeal refused, 2022 CanLII 19060.

[59] A similar rationale prevails in the cases—Merchant being one example—in which the question to be considered has been whether, given their essential character, the claims in issue were properly within the purview of the ordinary courts or of the Tax Court of Canada. For example, in Canada v. Addison & Leyen Ltd., 2007 SCC 33, where a taxpayer attempted to circumvent the jurisdiction of the Tax Court by launching an application for judicial review in the Federal Court, the Supreme Court held (at para. 11) that the application could not succeed: the taxpayer was obliged to seek relief within the system of tax assessments and appeals that Parliament has established:

The integrity and efficacy of the system of tax assessments and appeals should be preserved. Parliament has set up a complex structure to deal with a multitude of tax-related claims and this structure relies on an independent and specialized court, the Tax Court of Canada.

[60] Similar considerations apply where a claimant under a statutory benefit scheme attempts to bypass a tribunal established as part of that scheme and resort to the ordinary courts. For example, in Davis v. Workers’ Compensation Appeal Tribunal, 2013 BCCA 418 at paras.10-11, the Court of Appeal for British Columbia rejected the appellant’s contention that she had a right to have her compensation claim determined by a civil jury. It noted that the right to compensation "“is statutory, and it is the statute that determines how benefits are to be assessed. The statute prescribes a detailed administrative scheme for assessment of compensation, and specifically provides […] that the WCAT has exclusive jurisdiction to review compensation decisions […].”"

[61] How then is the essential character or nature of a claim to be determined?

[62] In Canada v. Domtar Inc., 2009 FCA 218 at para. 28, this Court answered that question as follows:

The correct approach to the determination of the essential nature of a claim is established by the decision of this Court in Canada v. Roitman, 2006 FCA 266, [leave to appeal refused, 2006 CanLII 41274]. That case stands for the proposition that in determining whether a court has the jurisdiction to entertain a claim [or whether jurisdiction rests with another court or tribunal], the question of the essential nature of the dispute must be based on a realistic appreciation of the practical result sought by the claimant. This was explained by Justice Décary, writing for this Court in Roitman (at paragraph 16):

A statement of claim is not to be blindly read at its face meaning. The judge has to look beyond the words used, the facts alleged and the remedy sought and ensure himself that the statement of claim is not a disguised attempt to reach before the Federal Court a result otherwise unreachable in that Court.

[63] In Roitman, the claimant brought an action in the Federal Court, framed as a claim for damages for misfeasance in public office. The claimant alleged that the Minister of National Revenue had deliberately issued a notice of assessment of income tax knowing that the assessment was based on an incorrect interpretation of the law. The claim was struck out because despite its form as a claim for damages, it was essentially a challenge to the legal correctness and validity of an income tax assessment, a matter that, by statute, was within the exclusive jurisdiction of the Tax Court of Canada.

[64] This Court followed Roitman in Domtar. There Domtar had commenced an action in the Federal Court for a declaration that a provision of federal legislation enacted as part of the settlement of the softwood lumber dispute with the United States was unconstitutional, and an order requiring the Crown to repay Domtar the some $37 million it had paid under that provision, together with interest and costs. The legislation provided a procedure for claiming a refund of an amount paid, and a notice of assessment, objection, and appeal procedure similar to the procedure for claiming a refund of income tax paid. The appeal was to the Tax Court of Canada. Domtar did not file an application for a refund before the time provided for doing so expired.

[65] The Crown moved to strike out Domtar’s statement of claim, submitting that the claim was essentially for recovery of the money Domtar had paid under the legislation. In response, Domtar argued that its claim was in essence for a declaration of unconstitutionality, and that the monetary claim was only an ancillary remedy.

[66] The Court held (at para. 28) that Roitman had set out the correct approach to the determination of the essential nature of a claim—it must be "“be based on a realistic appreciation of the practical result sought by the claimant.”" Applying that approach, it went on (at para. 30):

[T]here is no doubt that Domtar’s principal objective is to receive a return of the amount it paid pursuant to [the statutory provision]. There is no reason to believe that Domtar would be pursuing its claim unless it had the prospect of recovering that money. For that reason, I accept the argument of the Crown that essentially, Domtar is asserting a claim for a refund of money paid under the [Act]. That is the essential nature of its claim even though the claim is based on a constitutional challenge.

[67] Given that conclusion as to the essential nature of the claim, the Court concluded that the Tax Court had exclusive jurisdiction in respect of it under the Tax Court of Canada Act, R.S.C. 1985, c. T-2, which ousted the jurisdiction of the Federal Court over matters arising under the softwood lumber legislation.

[68] This Court’s decision in Merchant is also helpful in considering the essential character of the claims here. Merchant was a proposed class action, brought in the Federal Court by two law firms and four of their clients. They alleged that the Canada Revenue Agency should not have required the law firms to collect or remit GST on certain disbursements. They sought repayment of the amounts of GST that they alleged they should not have had to pay. They pleaded two common law causes of action, misfeasance in public office and restitution, and also claimed aggravated and punitive damages.

[69] The Federal Court struck out their statement of claim, for several reasons. One was that the cause of action in restitution was not available: Part IX of the Excise Tax Act, R.S.C. 1985, c. E-15, established a scheme for obtaining rebates of tax that was not payable, and that scheme ousted any common law cause of action. A second was that the claim had been brought in the wrong court: while the action was commenced in the Federal Court, the Tax Court had been given exclusive jurisdiction to hear appeals relating to the recovery of money collected as GST.

[70] This Court upheld the Federal Court’s decision on both grounds. It found that the proposed class action was properly characterized as an attempt to recover GST outside Part IX of the Excise Tax Act, and was therefore barred. In coming to this conclusion, the Court compared the compensatory relief sought in the proposed class action to the compensatory relief obtainable under the statute. It found it to be the same. It then considered whether the claim for aggravated and punitive damages affected the correctness of that conclusion. It found that it did not. The appellants were not seeking compensatory damages for the misconduct that they alleged. Their claim "“[still sought] the recovery of GST outside of the Act, but with an added penalty due to the respondents’ conduct”" (Merchant at para. 26).

[71] The Supreme Court has approved and adopted the essential character test for purposes of determining the jurisdiction of the Federal Court: Windsor (City) v. Canadian Transit Co., 2016 SCC 54 at paras. 26-27. In doing so it compendiously restated the test as follows (citations omitted):

The essential nature of the claim must be determined on “a realistic appreciation of the practical result sought by the claimant” […]. The “statement of claim is not to be blindly read at its face meaning” […]. Rather, the court must “look beyond the words used, the facts alleged and the remedy sought and ensure ... that the statement of claim is not a disguised attempt to reach before the Federal Court a result otherwise unreachable in that Court”.

....

[74] Roitman and the other cases discussed above tell us that in determining the essential character of a claim, we must look beyond the words used, the facts alleged, and the remedy sought. When we do so here, it is apparent in my view that the essential character of Mr. Hirschfield’s claims is to recover amounts that, it is asserted, should have been paid and should continue to be paid under the Pension Act, but (as in Merchant), "“with an added penalty due to the respondents’ conduct.”"

[75] It is also apparent, in my view, that Parliament has sought to confer on the VRAB, in sections 18 and 26 of the VRAB Act, a broad authority—described as "“full and exclusive jurisdiction”—"to deal with applications and appeals brought in pursuit of claims of this kind, and "“all matters related to”" those applications and appeals.

[76] Mr. Hirschfield did not suggest in argument that the word "“exclusive”" as enacted by Parliament in the VRAB Act bears any meaning other than its ordinary meaning. That ordinary meaning includes "“excluding (some other) from participation”" in English ((Oxford English Dictionary (December 1, 2024), sub verbo "“exclusive”", online: ) and "“qui appartien[t] à une seule personne”" in French (Le Robert Dico en ligne, (December 1, 2024), sub verbo "“exclusif”", online: < https://dictionnaire.lerobert.com/definition/exclusif >).

[77] While contextual factors must, of course, still be considered, I see no contextual factors here that call for expanding or limiting the ordinary meaning of "“exclusive.”"

[78] It follows that Mr. Hirschfield’s claims and those of other proposed class members come within the" “full and exclusive jurisdiction”" of the VRAB, and that they may not be adjudicated—except by way of judicial review following a decision of the VRAB—in the Federal Court. It is self-evident that a procedure the Court has no jurisdiction to hear and determine cannot be a preferable procedure. In concluding (at paras. 69 to 75 of his reasons) that a class action would be the preferable procedure and that the VRAB would not be an adequate alternative, the motion judge erred in law in failing to address the breadth and exclusivity of Parliament’s conferral of authority on the VRAB, and their consequences for the jurisdiction of the Federal Court. Those consequences, in my view, are dispositive of this appeal.