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Charter - Administrative (9). Chalifour-Racine v. Canada (Attorney General) [charter jurisdiction on JR]
In Chalifour-Racine v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal allows a Charter s.15 ['discrimination'] JR, this brought against a ruling by the Appeal Division of the Social Security Tribunal supporting provisions of the EI Act which require that claimants "are not entitled to receive some or all of the regular employment insurance (EI) benefits that they otherwise would have been entitled to receive when they lose their employment shortly before, during, or shortly following their maternity and parental leaves".
Since tribunals have no Charter s.52(1) declaratory 'strike down' jurisdiction, when a Charter issue is raised successfully before a tribunal it can only order that the Charter violation be in the case before it. But what about when the case on review (appeal or JR, but here a JR) faces the same Charter issue in turn - does the reviewing court have strike-down jurisdiction? This is the issue that the court considers here:[170] Administrative decision-makers, like the General Division, that are empowered to decide questions of law, are required to apply the Constitution and may grant remedies personal to applicants under subsection 24(1) of the Charter, absent a clear legislative withdrawal of that authority: Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 [Martin] at paras. 28–31; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at paras. 77–82. However, they may not issue formal declarations of invalidity, including suspended declarations, under subsection 52(1) of the Charter: Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5 [Cuddy Chicks] at p. 17; see also the concurring reasons of the Chief Justice and Justice Côté in Société des casinos at para. 157, citing Cuddy Chicks at p. 17; Martin at para. 33; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257 at paras. 44–45; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 at para. 153.
[171] In a case such as this, had it been commenced before a Court, the most appropriate remedy would be a suspended declaration of invalidity, given the intricate nature of the EI Act and the intertwined nature of the impugned provisions with other provisions in the legislation. The form and timing of a declaration of invalidity require a court to balance the protection of Charter rights with other constitutional principles, including the public interest in the continued operation of legislation and respect for the legislature’s institutional role: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 at para. 1. See also Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679 [Schachter] at pp. 695–97, 715–24; Ontario (Attorney General) v. G, 2020 SCC 38 [G] at paras. 84–116, 198–199.
[172] Those considerations have particular force where the impugned provisions form part of a comprehensive statutory benefits scheme. Parliament is entitled to consider how best to amend an intricate contributory insurance regime in a manner that is constitutionally compliant while remaining coherent with the broader legislative framework. That exercise will require consideration of complex and interwoven issues affecting the overall administration of the scheme, requiring time and careful consideration.
[173] This Court has held that it possesses the jurisdiction to grant declaratory relief in respect of the constitutionality of the legislation underlying a federal board’s decision in judicial review proceedings: Moktari v. Canada (Minister of Citizenship and Immigration) (C.A.), 1999 CanLII 9385 (FCA), [2000] 2 F.C. 341 [Moktari] at para. 4. It has also held that it has the jurisdiction to decide constitutional issues in judicial review proceedings from a tribunal, even when the tribunal itself cannot entertain such issues: see, for example, Gwala v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 9349 (FCA), [1999] 3 F.C. 404 at para. 4; Moktari at para. 4.
[174] Additionally, in Moretto v. Canada (Citizenship and Immigration), 2019 FCA 261 [Moretto], Justice de Montigny (as he then was) noted that the jurisdiction of the Court on judicial review extends beyond reviewing the legality of a federal board’s decision to include authority to determine the constitutionality of the statutory provisions underlying that decision. Indeed, the availability of declaratory relief in judicial review proceedings has been at least implicitly recognized in the jurisprudence of both the Federal Court and the Federal Court of Appeal, confirming that constitutional questions concerning the validity of legislation may be resolved by the reviewing court on judicial review notwithstanding the absence of a constitutional determination by the administrative tribunal: Moretto at para. 38, citing Ramnanan v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 404, 325 F.T.R. 248 at para. 55; Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153; Jodhan v. Canada (Attorney General), 2012 FCA 161, [2014] 1 F.C.R. 185; Bilodeau-Massé v. Canada (Attorney General), 2017 FC 604, [2018] 1 F.C.R. 386.
[175] In light of these authorities, I conclude that this Court may issue a declaration of invalidity as, indeed, both parties agree would be the appropriate remedy. ....
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