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Fairness - Failure to Consider Argued Issue. Zoghibi v. Air Canada
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a complaint by an airline passenger seeking 'financial relief' for alleged discrimination.
Here the court considers practice when a tribunal fails to consider an argued issue - that is, can it be argued as a fresh law issue on review (appeal/JR), or should it be remitted back to the tribunal for re-hearing on that issue (it's the latter):[29] Issue (6) was raised before the Commission but, as mentioned above, the Commission never dealt with it. The Federal Court dealt with it on its merits. On the authority of Alberta Teachers, it should not have done so: see paragraphs 26-27, above, in these reasons.
[30] The fact that issue (6) is a constitutional issue does not change the situation. Where the issue is one of constitutional law and the administrative decision-maker has the jurisdiction to deal with it, the administrative decision-maker, as the merits-decider, is the forum to raise it. In those circumstances, an applicant on judicial review cannot bypass the power of a tribunal to decide an issue, and proceed directly to the reviewing court: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257 at paras. 28-55.
[31] Where, as here, the administrative decision-maker failed to deal with a constitutional issue placed before it and an applicant submits that the administrative decision-maker had jurisdiction to decide it, an applicant should attack that failure and ask for the constitutional issue to be remitted back for redetermination. The Commission, not a reviewing court, has the power to consider whether it has jurisdiction to assess the constitutional issue and, if so, whether the constitutional issue, along with any other issues, should be sent to the Tribunal for adjudication. ....
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