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Administrative - Jurisdiction by Necessary Implication

. Hershkovitz v. Canada (Attorney General)

In Hershkovitz v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal states the administrative doctrine of 'jurisdiction by necessary implication':
[8] Second, the applicant also argues that the Tribunal had jurisdiction to hear an issue of natural justice and procedural fairness under the doctrine of jurisdiction by necessary implication to ensure that the applicant was not deprived of his right to contest the violation. However, this argument is misconceived as the doctrine of jurisdiction by necessary implication finds no application in this case. Indeed, the purpose of this doctrine, as described by Justice Bastarache in ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 [ATCO], is to ensure that:
... the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature… (at para. 51).
[9] The doctrine may be applied in circumstances where the Court is satisfied that the jurisdiction sought is essential to the administrative body fulfilling its statutory mandate and is not one to which the legislature has clearly addressed its mind (ATCO, at paras. 51, 73). Here, the legislative language is clear that paying the penalty puts an end to the proceeding and precludes the possibility of review in the circumstances of this case. In deciding as it did, the Tribunal did just that: accomplished its statutory mandate given by Parliament.


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