The Supreme Court of Canada has held that an administrative body which is expressly empowered by its enabling legislation to interpret or apply "all law" necessary to reach its findings, has the power to apply the Charter in order to determine whether a particular section of the legislation is without force or effect. Since the Employment Insurance Act does not expressly provide a Board of Referees with the power to consider all relevant law, the Board has no jurisdiction to address the application of the Charter. That jurisdiction is expressly conferred upon the Umpire.
Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570 (S.C.C.) File No. 20800
Tetreault-Gadoury v. C.E.I.C., [1991] 2 S.C.R. 22 (S.C.C.) File No. 21222 A-760-86
Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5 (S.C.C.) File No. 21675
In cases of this nature, the possible remedy in favour of a claimant would be a determination by the Umpire that the Board of Referees relied on an unconstitutional law in upholding a refusal of benefits by the Commission. The Umpire then has the power to render the decision the Board should have made to be consistent with constitutional law.
Nishri v. Canada, December 9, 1997, F.C.J. No. 1846 (F.C.A.) A-216-96
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2009-04-29