T-2473-03
2005 FC 171
Attorney General of Canada (Applicant)
v.
Sam Lévy et Associés Inc., Trustee in Bankruptcy and Samuel S. Lévy, Trustee in Bankruptcy (Respondents)
Indexed as: Canada (Attorney General) v. Sam Lévy et Associés Inc. (F.C.)
Federal Court, Martineau, J.--Toronto, January 18; February 3, 2005.
Administrative Law -- Judicial review seeking to set aside interlocutory decision in trustees' professional conduct hearing -- Superintendent of Bankruptcy's delegate ruling having jurisdiction to hear preliminary motion to have statutory provisions declared inoperative on ground Bankruptcy and Insolvency Act containing no guarantee trustees' hearing held before independent, impartial tribunal -- Delegate also ruling having jurisdiction to order stay of disciplinary proceedings against trustees -- Delegate relying on Supreme Court of Canada decision in Nova Scotia (Workers' Compensation Board) v. Martin to conclude having implicit jurisdiction to determine questions of law raised in case since delegate responsible for applying statutory provisions regarding disciplinary proceedings -- Suspension, revocation of trustee's licence culmination of quasi-judicial process, comparable to role of tribunal -- S. 14.02(1) to (3) providing trustee having right to receive notice, right to be heard at hearing prior to imposition of disciplinary measures -- Under s. 14.02(2)(b), tribunal not bound by legal, technical rules of evidence in conducting hearing -- Tribunal's power to examine questions of law depending on whether enabling statute conferring power -- S. 14.01(1) imposing on tribunal duty to determine questions of fact, mixed law and fact, questions of law regarding trustee's conduct -- Determination under s. 14.01(1)(b) whether trustee violating Act, etc. question of law -- Delegate's decision not containing reviewable error.
Bankruptcy -- Delegate of Superintendent of Bankruptcy ruling having jurisdiction to hear preliminary motion by trustees to have statutory provisions declared inoperative, order stay of disciplinary proceedings -- Under Bankruptcy and Insolvency Act, s. 5(2), Superintendent of Bankruptcy having mandate to supervise administration of all estates, matters to which Act applies -- Superintendent, or appointed delegate, having power to investigate conduct of trustee, impose disciplinary measures (i.e. cancel, suspend trustee's licence, etc.) -- Superintendent's duties when trustee violating Act, etc. involving determination of questions of law (s. 14.01(1)) -- Concomitant power to determine constitutional validity of enabling legislation.
Constitutional Law -- Fundamental Principles -- Nova Scotia (Workers' Compensation Board) v. Martin reaffirming principle under Constitution Act, 1982, s. 52(1) of supremacy of Constitution and invalidity of any law inconsistent therewith -- Constitutional remedies available to administrative tribunals limited, not including general declarations of invalidity -- Presumption tribunal empowered to determine questions of law having concomitant power to determine constitutional validity of enabling legislation -- Bankruptcy and Insolvency Act giving Superintendent's delegate power to determine questions of law -- Nothing in Act overturning presumption -- Delegate correct in ruling having jurisdiction to determine constitutional validity of enabling statute -- Decisions of administrative tribunals on constitutional questions not binding, reviewable by superior court.
This was an application for judicial review seeking to have the interlocutory decision of the Superintendent of Bankruptcy's delegate in a hearing into the professional conduct of the trustees set aside. The hearing involved the trustees' administration of certain estates governed by the Bankruptcy and Insolvency Act (Act). The delegate ruled that he had jurisdiction to hear the trustees' preliminary motion to have the statutory provisions declared inoperative in their regard on the ground that the provisions contained no structural guarantee that they would be given a hearing before an independent and impartial tribunal and to obtain an order to stay the disciplinary proceedings against them. After making the impugned decision, the delegate dismissed the trustees' motion and stated that he was ready to hear the case on its merits, a decision also under review. The delegate relied on the Supreme Court of Canada's decision in Nova Scotia (Workers' Compensation Board) v. Martin to conclude that, since he was responsible for applying the statutory provisions regarding disciplinary proceedings, he implicitly had jurisdiction to determine any question of law that might be raised in the case, including issues regarding the independence and impartiality of the tribunal. The issue was whether the delegate, as an administrative tribunal, in fact had such jurisdiction.
Held, the application should be dismissed.
As a multifunctional agency of supervision, investigation and adjudication, the Superintendent of Bankruptcy must supervise the administration of all estates and matters to which the Act applies (subsection 5(2)). The Superintendent, or his appointed delegate, has investigative powers regarding the conduct of a trustee in bankruptcy and may take disciplinary or economic measures against trustees, such as cancelling or suspending a trustee's licence. However, under subsections 14.02(1) to (3) of the Act, a trustee must be given prior notice of such measures and an opportunity to be heard at a conduct hearing. The suspension or revocation of a trustee in bankruptcy's licence is the culmination of a quasi-judicial process, and the role the Superintendent or his delegate exercises is comparable to that of a tribunal. Paragraphs 14.02(2)(b) and (c) of the Act provide that in conducting the hearings, the tribunal is not bound by any legal or technical rules of evidence and shall deal with matters as informally and expeditiously as the circumstances and a consideration of fairness permit. The applicant failed to persuade the Court that the delegate's decision contained a reviewable error.
The delegate correctly interpreted and applied the Martin judgment, which applied in this case. That decision clearly and unanimously affirmed the desire to reassess and reformulate the rules concerning the jurisdiction of administrative tribunals in matters involving the Canadian Charter of Rights and Freedoms. It also eliminated the distinction, previously established, between general and specific questions of law. Martin also reaffirmed three fundamental principles: the principle under subsection 52(1) of the Constitution Act, 1982, of the supremacy of the Constitution and the invalidity of any law inconsistent therewith; the relevance of the contextual role performed by administrative tribunals; and the limited scope of the orders that an administrative tribunal may issue and the review role retained by the superior courts in their regard. The Martin decision moreover stated that an administrative tribunal, which has been conferred the power to interpret law, is presumed to hold a concomitant power to determine whether that law is constitutionally valid. Once an administrative tribunal is empowered to determine questions of law, the complexity of the question is not an obstacle. Unlike the judgments of a court, the decisions of an administrative tribunal on constitutional questions do not create any precedents and cannot be declaratory of the validity of any law--the constitutional remedies available are therefore limited. The decisions are also reviewable on a standard of correctness in a superior court on judicial review.
A tribunal's power to examine questions of law will depend on whether its enabling statute gave it that power, expressly or implicitly. Thus, based on a contextual analysis of sections 14.01 and 14.02 of the Act and recent case law on disciplinary proceedings, the Superintendent or his delegate (tribunal) does indeed have the power and responsibility to determine questions of law arising out of the application of the Act. Subsection 14.01(1) imposes a duty to determine questions of law when a trustee is charged with having violated the Act, the General Rules, directives of the Superintendent or any law with regard to the proper administration of any estate. In those cases, the Superintendent may, for instance, suspend or revoke the trustee's licence. These measures may also be taken when a trustee has not properly performed its duties and if "it is in the public interest to do so". Therefore, subsection 14.01(1) refers not only to the review of questions of fact but also to the determination of mixed questions of fact and law, and tangentially of questions of law. Furthermore, given the tribunal's authority to hold in camera proceedings (new subsection 14.02(3) of the Act), the tribunal has the implied authority to rule on questions of law. Finally, there was nothing in the Act overturning the presumption that, because the tribunal has jurisdiction to determine any question of law arising from the application of its enabling statute, it has the concomitant power to determine its constitutional validity. The tribunal therefore had the power to rule on the constitutional validity of the provisions at issue.
statutes and regulations judicially
considered
| Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 1 (as am. by S.C. 1992, c. 27, s. 2), 5(2) (as am. idem, s. 5), (3)(e) (as am. by S.C. 1997, c. 12, s. 4), 14.01 (as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 12), 14.02 (as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 13; 2002, c. 8, s. 182(1)(b)), 14.03 (as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 14; 1999, c. 31, s. 18(E)); 14.04 (as enacted by S.C. 1992, ch. 27, s. 9). |
| Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2. |
| Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. |
| Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35. |
| Forest Practices Code of British Columbia, R.S.B.C. 1996, c. 159, s. 131(8). |
| Inquiries Act, R.S.C., 1985, c. I-11 |
cases judicially considered
not followed:
Laflamme v. Canada (Superintendent of Bankruptcy), [1995] 3 F.C. 174; (1995), 35 C.P.R. (3d) 230; 96 F.T.R. 200 (T.D.).
applied:
Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584; (1996), 42 C.B.R. (3d) 245; 116 F.T.R. 173 (T.D.) (as to approach taken to determine whether tribunal has power to determine questions of law); Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] 2 S.C.R. 504; (2003), 217 N.S.R. (2d) 301; 231 D.L.R. (4th) 385; 4 Admin. L.R. (4th) 1; 29 C.C.E.L. (3d) 1; 110 C.R.R. (2d) 233; 310 N.R. 22; 2003 SCC 54.
considered:
Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585; (2003), 213 D.L.R. (4th) 449; [2003] 11 W.W.R. 1; 187 B.C.A.C. 1; 18 B.C.L.R. (4th) 207; 5 Admin. L.R. (4th) 161; 3 C.E.L.R. (3d) 161; [2003] 4 C.N.L.R. 25; 310 N.R. 122; 2003 SCC 55; In the Matter of the Disciplinary Hearing of the Trustee Ronald McMahon, February 16, 2001, Marc Mayrand.
referred to:
Blais v. Basford, [1972] F.C. 151 (C.A.); 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; (1996), 140 D.L.R. (4th) 577; 42 Admin. L.R. (2d) 1; 205 N.R. 1; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; (1996), 140 D.L.R. (4th) 193; 43 Admin. L.R. (2d) 155; 26 C.C.E.L. (2d) 1; 40 C.R.R. (2d) 81; 204 N.R. 1; Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; MacBain v. Lederman, [1985] 1 F.C. 856; (1985), 22 D.L.R. (4th) 119; 16 Admin. L.R. 109; 6 C.H.R.R. D/3064; 85 CLLC 17,023; 18 C.R.R. 165; 62 N.R. 117 (C.A.); Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404; (1999), 3 Imm. L.R. (3d) 26; 242 N.R. 173 (C.A.); Métivier c. Mayrand, [2003] R.J.Q. 3035; (2003), 18 Admin. L.R. (4th) 14; 50 C.B.R. (4th) 153 (C.A.); Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; (1990), 77 D.L.R. (4th) 94; [1991] 1 W.W.R. 643; 52 B.C.L.R. (2d) 68; 91 CLLC 17,002; 118 N.R. 340; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 50 Admin. L.R. 1; 36 C.C.E.L. 117; 91 CLLC 14,023; 4 C.R.R. (2d) 12; 126 N.R. 1; R. v. Stinchcombe, [1995] 1 S.C.R. 754; (1995), 162 A.R. 269; 96 C.C.C. (3d) 318; 38 C.R. (4th) 42; 178 N.R. 157; In the Matter of the Disciplinary Hearing of the Trustees Henry Sztern and Henry Sztern et Associés inc., May 29, 2001, Benjamin J. Greenberg; In the Matter of the Disciplinary Hearing of the Trustees Segal & Partners Inc. and Todd Y. Sheriff, September 3, 2002, Marc Mayrand; In the Matter of the Disciplinary Hearing of the Trustees Segal & Partners Inc. and Todd Y. Sheriff, September 12, 2003, Marc Mayrand.
APPLICATION for judicial review to set aside an interlocutory decision of the delegate of the Superintendent of Bankruptcy ruling that the delegate had jurisdiction to hear a preliminary motion by the trustees to have the statutory provisions declared inoperative in their regard and to obtain an order to stay the disciplinary proceedings against them. Application dismissed.
appearances:
Bernard Letarte and Robert Monette for applicant.
Daniel DesAulniers, Jean-Philippe Gervais and R. Michel Décary for respondents.
solicitors of record:
Deputy Attorney General of Canada for applicant.
Grondin, Poudrier, Bernier, Québec, and Gervais & Gervais, Montréal, and Stikeman, Elliott, LLP, Montréal, for respondents.
The following is the English version of the reasons for order and order rendered in English by
[1]Martineau J.: The respondents Samuel S. Lévy and Sam Lévy et Associés Inc. (the trustees) are currently the object of disciplinary proceedings in relation to their administration of certain estates governed by the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, as amended [s. 1 (as am. by S.C. 1992, c. 27, s. 2)] (the Act).
[2]As a multifunctional agency of supervision, investigation and adjudication, the institution of the Superintendent of Bankruptcy (the Superintendent) shall, as its general mandate, supervise the administration of all estates and matters to which the Act applies (subsection 5(2) of the Act [as am. idem, s. 5]). Accordingly, the Superintendent may investigate or request an investigation into the conduct of a trustee in bankruptcy and cancel or suspend the trustee's licence, as well as order the trustee to make restitution to the estate for the amount of money it had lost as a result of the trustee's conduct (paragraph 5(3)(e) [as am. by S.C. 1997, c. 12, s. 4] and subsection 14.01(1) [as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 12] of the Act). However, such disciplinary or economic measures cannot be taken against a trustee without prior notice and without having given the trustee the opportunity to be heard at a hearing properly convened for that purpose (subsections 14.02(1) to (3) of the Act [ss. 14.02(1) (as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 13(E)), (2) (as enacted by S.C. 1992, c. 27, s. 9), (3) (as enacted idem; 1997, c. 12, s. 13)]).
[3]Before going further, I should explain that the parties agree that the suspension or revocation of a trustee in bankruptcy's licence is the culmination of a quasi-judicial process, and that the role exercised in this regard by either the Superintendent himself (previously the Minister of Industry, Science and Technology and his predecessors), or the delegate he appoints pursuant to subsection 14.01(2) [as enacted by S.C. 1992, c. 27, s. 9;p 1997, c. 12, s. 12) of the Act, is comparable to that of a tribunal (Blais v. Basford, [1972] F.C. 151 (C.A.), at page 164; Laflamme v. Canada (Superintendent of Bankruptcy), [1995] 3 F.C. 174 (T.D.), at pages 181-182; Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584 (T.D.), at page 591; 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919, at pages 947-949). Also, for the purposes of the present reasons for decision, when the Superintendent or the delegate he may appoint pursuant to subsection 14.01(2) [as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 12] of the Act exercise or claim to exercise their jurisdiction under sections 14.01 [(3) (as enacted by S.C. 1992, c. 27, s. 9)], 14.02 [(4) (as enacted idem; 1997, c. 12, s. 13), (5) (as enacted by S.C. 1992, c. 27, s. 9; 2002, c. 8, s. 182(1)(b)] and 14.03 [as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 14; 1999, c. 31, s. 18(E)] of the Act (the statutory provisions at issue), I will use the term "tribunal". This being said, the statutory provisions at issue provide that the tribunal is not bound by any legal or technical rules of evidence in conducting the hearing, and that it shall deal with the matters set out in the notice of the hearing as informally and expeditiously as the circumstances and a consideration of fairness permit (paragraphs 14.02(2)(b) and (c) of the Act). Furthermore, various conservatory measures may be taken for the protection of an estate prior to the final decision by the tribunal (section 14.03 of the Act). The statutory provisions at issue are reproduced in an appendix to these reasons.
[4]In the case at bar, the applicant, the Attorney General of Canada, has filed this application for judicial review, requesting that an interlocutory decision, dated December 4, 2003, by the Honourable Fred Kaufman, Q.C., the delegate of the Superintendent of Bankruptcy (the delegate), in the context of the hearing into the professional conduct of the trustees (the impugned decision), be set aside. The delegate ruled that he had jurisdiction to hear a preliminary motion by the trustees, on the one hand, to have the statutory provisions declared inoperative in their regard on the ground that they contain no structural guarantee that they will be given a hearing before an independent and impartial tribunal and, on the other hand, to obtain an order to stay the proceedings in their regard on the ground that the implementation of these provisions is no greater guarantee to them of a hearing before an independent and impartial tribunal. Be that as it may, after making the impugned decision, the delegate, in a second decision, dated December 19, 2003, dismissed the trustees' motion and told the parties that he was ready to hear the case on its merits (the second decision). The latter decision is also the subject-matter of an application for judicial review, this one filed by the trustees (docket T-75-04).
[5]Although the review application by the Attorney General of Canada appears to me, prima facie, to be moot, or to some degree academic, I will not base the dismissal of the application on this ground. Since the parties have had an opportunity to argue fully the issue of the tribunal's jurisdiction, and the applicability of the Court's previous decisions in Laflamme and Pfeiffer merits clarification in light of the more recent jurisprudence of the Supreme Court and certain amendments to the legislation, I have decided to rule today on the issue of the tribunal's jurisdiction (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342).
[6]The impugned decision is essentially based on the October 3, 2003 judgment by the Supreme Court of Canada in Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compenstion Board) v. Laseur, [2003] 2 S.C.R. 504 (the Martin judgment). Since he is responsible for applying the statutory provisions at issue, the delegate concluded that he implicitly had jurisdiction to determine any question of law that might be raised in the case, which therefore includes the question of the independence and impartiality of the tribunal, especially since any error of law may ultimately be corrected by the Federal Court, which has jurisdiction to review any decision of the tribunal (subsection 14.02(5) of the Act).
[7]In my opinion, the delegate correctly interpreted and applied the Martin judgment, which is applicable in this case. The Attorney General has failed to persuade me that the impugned decision contains a reviewable error of law. The Martin judgment is decisive. It affirms the desire, clearly expressed by the Supreme Court of Canada in a unanimous opinion, to reassess and reformulate, in the form of clear guidelines, the rules concerning the jurisdiction of administrative tribunals in matters involving the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter). In doing so, the Supreme Court also eliminated the distinction between general and specific questions of law, which had been created in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854.
[8]At paragraph 3 of the judgment, Gonthier J. lays down the following general rule:
Administrative tribunals which have jurisdiction--whether explicit or implied--to decide questions of law arising under a legislative provision are presumed to have concomitant jurisdiction to decide the constitutional validity of that provision. This presumption may only be rebutted by showing that the legislature clearly intended to exclude Charter issues from the tribunal's authority over questions of law. To the extent that the majority reasons in Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, are inconsistent with this approach, I am of the view that they should no longer be relied upon.
[9]On the other hand, three fundamental principles were reaffirmed in the Martin judgment. The first concerns the principle of the supremacy of the Constitution [Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (paragraphs 28-29):
First, and most importantly, the Constitution is, under s. 52(1) of the Constitution Act, 1982, "the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect". The invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1). Thus, in principle, such a provision is invalid from the moment it is enacted, and a judicial declaration to this effect is but one remedy amongst others to protect those whom it adversely affects. In that sense, by virtue of s. 52(1), the question of constitutional validity inheres in every legislative enactment. Courts may not apply invalid laws, and the same obligation applies to every level and branch of government, including the administrative organs of the state. Obviously, it cannot be the case that every government official has to consider and decide for herself the constitutional validity of every provision she is called upon to apply. If, however, she is endowed with the power to consider questions of law relating to a provision, that power will normally extend to assessing the constitutional validity of that provision. This is because the consistency of a provision with the Constitution is a question of law arising under that provision. It is, indeed, the most fundamental question of law one could conceive, as it will determine whether the enactment is in fact valid law, and thus whether it ought to be interpreted and applied as such or disregarded.
From this principle of constitutional supremacy also flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts: see Douglas College, supra, at pp. 603-4. In La Forest J.'s words, "there cannot be a Constitution for arbitrators and another for the courts" (Douglas College, supra, at p. 597). This accessibility concern is particularly pressing given that many administrative tribunals have exclusive initial jurisdiction over disputes relating to their enabling legislation, so that forcing litigants to refer Charter issues to the courts would result in costly and time-consuming bifurcation of proceedings. As McLachlin J. (as she then was) stated in her dissent in Cooper, supra, at para. 70:
| The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. [Emphasis added.] |
[10]The second principle identified in the Martin judgment focuses on the relevance of the contextual role performed by administrative tribunals (at paragraph 30):
Second, Charter disputes do not take place in a vacuum. They require a thorough understanding of the objectives of the legislative scheme being challenged, as well as of the practical constraints it faces and the consequences of proposed constitutional remedies. This need is heightened when, as is often the case, it becomes necessary to determine whether a prima facie violation of a Charter right is justified under s. 1. In this respect, the factual findings and record compiled by an administrative tribunal, as well as its informed and expert view of the various issues raised by a constitutional challenge, will often be invaluable to a reviewing court. [Emphasis added.]
[11]The third principle adopted in Martin draws attention to the limited scope of the orders that may be issued by an administrative tribunal and the review role retained by the superior courts in their regard (at paragraph 31):
Third, administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard: see Cuddy Chicks, supra, at p. 17. An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court. In addition, the constitutional remedies available to administrative tribunals are limited and do not include general declarations of invalidity. A determination by a tribunal that a provision of its enabling statute is invalid pursuant to the Charter is not binding on future decision makers, within or outside the tribunal's administrative scheme. Only by obtaining a formal declaration of invalidity by a court can a litigant establish the general invalidity of a legislative provision for all future cases. Therefore, allowing administrative tribunals to decide Charter issues does not undermine the role of the courts as final arbiters of constitutionality in Canada. [Emphasis added.]
[12]Once he had set out the above principles, Gonthier J., in Martin [at paragraph 34], went on to say that "[t]hus, as a rule, `an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid'. . . . If a tribunal does have the power to consider questions of law, then it follows by the operation of s. 52(1) [of the Constitution Act, 1982] that it must be able to address constitutional issues, including the constitutional validity of its enabling statute." In passing, I note here that, as a quasi-constitutional instrument, the Canadian Bill of Rights, S.C. 1960, c. 44, reproduced in R.S.C., 1985, Appendix III (the Bill of Rights) remains in full force and effect (Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at page 224; MacBain v. Lederman, [1985] 1 F.C. 856 (C.A.), at pages 875-879). In this regard, section 2 of the Bill of Rights provides that "[e]very law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared" (emphasis added).
[13]The rules developed in the Martin judgment were in fact applied in Paul v. British Columbia (Forest Appeals Commission), [2003] 2 S.C.R. 585, also decided the same day. In that case the Supreme Court of Canada held unanimously that the Forest Appeals Commission (the Commission), a provincial administra-tive agency, could determine incidentally a question of Aboriginal rights falling within federal statutory jurisdiction. The Court held that while there are distinctions between administrative tribunals and courts, both are part of the justice system. Viewed properly, then, the justice system encompasses the ordinary courts, federal courts, statutory provincial courts and administrative tribunals. In short, in applying their enabling legislation, administrative agencies must take into account all applicable legal rules, both federal and provincial. But the power to decide a question of law is the power to decide by applying only valid laws. The law in question in Paul, the Forest Practices Code of British Columbia, R.S.B.C. 1996, c. 159 [subsection 131(8)], allowed a party to "make submissions as to facts, law and jurisdiction". The existence of the latter provision, conjoined with the fact that the Commission's decision could be appealed on a question of law or jurisdiction, made it impossible to sustain the argument that the Commission, an adjudicative body, determined purely factual matters.
[14]On the other hand, the complexity of the question to be determined is not an obstacle once it has been established that the administrative tribunal is empowered to decide questions of law. In Paul, the Supreme Court decided that there was no basis for distinguishing the rights contemplated in section 35 of the Constitution Act, 1982, from other constitutional questions. This being the case, unlike the judgments of a court, the decisions of an administrative tribunal on constitutional questions do not create any precedents and could not be declaratory of the validity of any law. Furthermore, the rulings would be reviewable, on a correctness basis, in a superior court on judicial review (Paul, at paragraphs 22, 23, 33 and 39). In the instant case, in the context of reviewing the tribunal's second decision, the Court may conduct a full review of the institution responsible for punishing the derogatory conduct of the trustees in bankruptcy, from the standpoint of both administrative law arguments and constitutional law arguments raised by the trustees (Gwala v. Canada (Minister of Citizenship and Immigration), [1999] 3 F.C. 404 (C.A.), at paragraphs 4 and 5; Métivier c. Mayrand, [2003] R.J.Q. 3035 (C.A.), at paragraphs 7, 10, 11, 21, 31 and 45).
[15]Be that as it may, in this case the Attorney General of Canada argues that the tribunal--whether the Superintendent himself or the delegate he designates-- has no jurisdiction to decide constitutional questions on the basis of the decisions delivered by this Court in 1995 and 1996 in Laflamme and Pfeiffer. These two decisions are based on the general principles that the Supreme Court of Canada had previously laid down in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22, but that Noël J. and Tremblay-Lamer J. interpreted and applied somewhat differently.
[16]In Laflamme, Noël J. (as he then was) held that the tribunal had implied power to interpret and apply any statutory provision that was applicable to that case. He therefore answered the question stated in Martin in the affirmative. However, in his view, this is not sufficient to give the tribunal the power to determine whether those provisions are valid, "constitutionally" speaking. Here is what he said, at page 184:
I note first that the mere fact that a tribunal has the power to interpret and apply its enabling legislation does not as such mean that Parliament intended to confer on that tribunal the power to consider any point of law involving the Charter. Every tribunal is required to apply legislation and as such must interpret it. If the analysis were to stop at that point the lengthy discussion undertaken by the Supreme Court in both Tétreault-Gadoury, supra, and in Cuddy Chicks, supra, as well as in Douglas/Kwantlen, supra, would be superfluous. It seems clear that the legislative grant of authority must not only give the tribunal the power to interpret its enabling legislation, jurisdiction over the subject-matter resulting from reliance on the Charter and the remedy sought must also be found in the enabling legislation and be part of the powers which Parliament intended to confer on it.
What the applicant is seeking in the case at bar is the destruction of the entire legislative scheme put in place by section 7 and subsection 14(2) of the Act. In fact, he is asking the Hon. Fred Kaufman to hear an application the end result of which will be to simply abolish his legislative mandate. I cannot find any legislative intent whatever in the Act that the Minister or his representative should be able to declare the legislation creating their position constitutionally invalid. As such neither the subject-matter nor the remedy sought is contained in the enabling legislation. [Emphasis added.]
[17]Clearly, the "integral" approach recommended above is contrary to Martin. Moreover, the Attorney General of Canada acknowledges that the legal correctness of the approach taken by Noël J. in Laflamme was subsequently questioned by Madam Justice Tremblay-Lamer in Pfeiffer. She states, at paragraphs 26 and 31:
While I have reached the same conclusion as Mr. Justice Noël, I shall not follow the same route as my colleague did. In my view, this is the approach that must be taken when the issue is whether the tribunal in question is a court of competent jurisdiction within the meaning of subsection 24(1) of the Charter. This analysis is not required when the issue is the power of an administrative tribunal to examine the constitutionality of its enabling statute under section 52 of the Constitution Act, 1982.
. . .
In my opinion, we must determine whether Parliament gave the tribunal, in its enabling statute, expressly or by implication, a duty to examine questions of law. This is the approach taken by the Trial Division in Canada (Attorney General) v. Gill, and by me in Canada (Attorney General) v. Racette-Villeneuve. [Emphasis added.]
[18]I prefer, then, the approach suggested by Madam Justice Tremblay-Lamer in Pfeiffer, which in my view is more consistent with the current state of the law, although I would use the word "power" and not the word "duty" in reference to the examination of questions of law by the tribunal. It is necessary, therefore, to find out whether Parliament gave the tribunal, in its enabling statute, expressly or by implication, the power to determine questions of law.
[19]This being the case, Tremblay-Lamer J., in Pfeiffer, came to the conclusion that the tribunal did not have the power to determine questions of law. Her conclusion is essentially based on the following considerations:
(a) The fact that the tribunal must apply its enabling statute is not sufficient for us to conclude that it has the power to determine questions of law (Pfeiffer, at paragraph 33);
(b) The decision to suspend or cancel the licence of a trustee is made when the tribunal "considers . . . it is in the public interest to do so" [emphasis added] (Pfeiffer, at paragraph 32);
(c) The process for hearings under the Act is informal. Thus, the tribunal is not bound by the rules of evidence. Furthermore, "[m]atters must be dealt with as the circumstances and a consideration of fairness permit" (Pfeiffer, at paragraph 35);
(d) Parliament did not deem it advisable to grant the panel certain powers of investigation under the Inquiries Act, R.S.C., 1985, c. I-11 (Pfeiffer, at paragraph 35);
(e) In particular, the tribunal's lack of authority to hold hearings in camera (such a finding necessarily involves points of law, she says) is no reason to infer that the tribunal has the implied authority to rule on questions of law (Pfeiffer, at paragraphs 36-37).
[20]I am unable to reach the conclusion, as Madam Justice Tremblay-Lamer did in Pfeiffer, that the tribunal has no jurisdiction to determine the questions of law arising out of the application of the statutory provisions at issue. If I read her reasons clearly, she seems to assume that the tribunal's decision to suspend or revoke a trustee's licence is essentially made in terms of the public interest, as the circumstances and a consideration of fairness permit. Accordingly, the tribunal would never be required to determine some questions of law. If this is the case, the premise on which the rest of Madam Justice Tremblay-Lamer's reasoning in Pfeiffer is based is clearly wrong. Thus, a contextual analysis of sections 14.01 and 14.02 of the Act and the more recent case law on disciplinary proceedings would allow us to conclude that the tribunal does indeed have the power and the responsibility to determine questions of law arising out of the application of the Act.
[21]It appears that the conclusion in Pfeiffer that the tribunal has no jurisdiction to determine questions of law is largely based on a reading of what is not included in section 14.02 of the Act. However, there is no reference to section 14.01 of the Act, which in my opinion imposes a duty to determine questions of law when a trustee is charged with having violated the Act, the General Rules, directives of the Superintendent or any law with regard to the proper administration of any estate. Indeed, the suspension or revocation of a licence if "it is in the public interest to do so" [my emphasis] is not the only ground under subsection 14.01(1) of the Act. The latter provision refers not only to the review of questions of fact by the tribunal but also to the determination of mixed questions of fact and law, and tangentially of questions of law. Such is the case when the tribunal must, for example, determine whether the trustee has not fully complied with the Act, the General Rules, directives of the Superintendent or any law with regard to the proper administration of any estate. In any event, given the wording of the new subsection 14.02(3) of the Act, by which it is now possible for the tribunal to order an in camera proceeding (that determination necessarily implies some questions of law according to Pfeiffer, at paragraph 36), I am of the opinion that the Pfeiffer decision, must now be interpreted in favour of the trustees.
[22]I note as well that since 1996 a number of decisions handed down by the tribunal have dealt with questions of law arising in the context of the application of the statutory provisions at issue. On the one hand, the tribunal had to rule on the nature and extent of the applicable burden of proof and the application of the duty of disclosure established by the Supreme Court in R. v. Stinchcombe, [1995] 1 S.C.R. 754; on the other hand (In the Matter of the Disciplinary Hearing of the Trustees Henry Sztern and Henry Sztern et Associés inc., May 29, 2001, Benjamin J. Greenberg; In the Matter of the Disciplinary Hearing of the Trustees Segal & Partners Inc. and Todd Y. Sheriff, September 3, 2002, Marc Mayrand; In the Matter of the Disciplinary Hearing of the Trustees Segal & Partners Inc. and Todd Y. Sheriff, September 12, 2003, Marc Mayrand). In a 2001 decision, the tribunal also had to determine a difficult question of law, namely: could a derogatory act committed by a trustee in bankruptcy as a receiver appointed pursuant to a provincial statute constitute an offence warranting the filing of a disciplinary complaint under the Act? The tribunal engaged in a lengthy analysis of the applicable provisions of the Act and the relevant case law, explained the legal principles that would provide appropriate guidance to its deliberations, and concluded that it had jurisdiction to hear and determine this complaint (In the Matter of the Disciplinary Hearing of the Trustee Ronald McMahon, February 16, 2001, Marc Mayrand).
[23]For the reasons set out above, I am of the opinion, therefore, that the tribunal has jurisdiction to determine any question of law arising from the application of the statutory provisions at issue. Consequently, the tribunal is presumed to have the concomitant power to rule on the constitutional validity of the provisions of its enabling legislation. Furthermore, in my opinion, there is no provision in the Act that overturns this presumption. Thus the tribunal has the power to rule on the constitutional validity of the provisions at issue.
[24]This application must therefore fail. In view of the result, the trustees will be entitled to costs.
ORDER
THE COURT ORDERS that the application for judicial review of the decision dated December 4, 2003, in the respondents' case be dismissed with costs.
APPENDIX
Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3
14.01 (1) Where, after making or causing to be made an investigation into the conduct of a trustee, it appears to the Superintendent that
(a) a trustee has not properly performed the duties of a trustee or has been guilty of any improper management of an estate,
(b) a trustee has not fully complied with this Act, the General Rules, directives of the Superintendent or any law with regard to the proper administration of any estate, or
(c) it is in the public interest to do so,
the Superintendent may do one or more of the following:
(d) cancel or suspend the licence of the trustee;
(e) place such conditions or limitations on the licence as the Superintendent considers appropriate including a requirement that the trustee successfully take an exam or enrol in a proficiency course, and
(f) require the trustee to make restitution to the estate of such amount of money as the estate has been deprived of as a result of the trustee's conduct.
(1.1) This section and section 14.02 apply, in so far as they are applicable, in respect of former trustees, with such modifications as the circumstances require.
(2) The Superintendent may delegate by written instrument, on such terms and conditions as are therein specified, any or all of the Superintendent's powers, duties and functions under subsection (1), subsection 13.2(5), (6) or (7) or section 14.02 or 14.03.
(3) Where the Superintendent delegates in accordance with subsection (2), the Superintendent or the delegate shall
(a) where there is a delegation in relation to trustees generally, give written notice of the delegation to all trustees; and
(b) whether or not paragraph (a) applies, give written notice of the delegation of a power to any trustee who may be affected by the exercise of that power, either before the power is exercised or at the time the power is exercised.
14.02 (1) Where the Superintendent intends to exercise any of the powers referred to in subsection 14.01(1), the Superintendent shall send the trustee written notice of the powers that the Superintendent intends to exercise and the reasons therefor and afford the trustee a reasonable opportunity for a hearing.
(2) At a hearing referred to in subsection (1), the Superintendent
(a) has the power to administer oaths;
(b) is not bound by any legal or technical rules of evidence in conducting the hearing;
(c) shall deal with the matters set out in the notice of the hearing as informally and expeditiously as the circumstances and a consideration of fairness permit; and
(d) shall cause a summary of any oral evidence to be made in writing.
(3) The notice referred to in subsection (1) and, where applicable, the summary of oral evidence referred to in paragraph (2)(d), together with such documentary evidence as the Superintendent receives in evidence, form the record of the hearing and the record and the hearing are public, unless the Superintendent is satisfied that personal or other matters that may be disclosed are of such a nature that the desirability of avoiding public disclosure of those matters, in the interest of a third party or in the public interest, outweighs the desirability of the access by the public to information about those matters.
(4) The decision of the Superintendent after a hearing referred to in subsection (1), together with the reasons therefor, shall be given in writing to the trustee not later than three months after the conclusion of the hearing, and is public.
(5) A decision of the Superintendent given pursuant to subsection (4) is deemed to be a decision of a federal board, commission or other tribunal that may be reviewed and set aside pursuant to the Federal Courts Act.
14.03 (1) The Superintendent may, for the protection of an estate in the circumstances referred to in subsection (2),
(a) direct a person to deal with property of the estate described in the direction in such manner as may be indicated in the direction, including the continuation of the administration of the estate;
(b) direct any person to take such steps as the Superintendent considers necessary to preserve the books, records, data, including data in electronic form, and documents of the estate;
(c) direct a bank or other depository not to pay out funds held to the credit of the estate except in accordance with the direction; and
(d) direct the official receiver not to appoint the trustee in respect of any new estates until a decision is made under subsection 13.2(5) or 14.01(1).
(2) The circumstances in which the Superintendent is authorized to exercise the powers set out in subsection (1) are where
(a) an estate is left without a trustee by the death, removal or incapacity of the trustee;
(b) the Superintendent makes or causes to be made any investigation pursuant to paragraph 5(3)(e);
(c) the Superintendent exercises any of the powers set out in section 14.01;
(d) the fees referred to in subsection 13.2(2) have not been paid in respect of the trustee's licence;
(e) a trustee becomes insolvent;
(f) a trustee is convicted of an indictable offence or has failed to comply with any of the conditions or limitations to which the trustee's licence is subject; or
(g) a circumstance referred to in paragraph 13.2(5)(c) or (d) exists and the Superintendent is considering cancelling the licence under subsection 13.2(5).
(3) A direction given pursuant to subsection (1)
(a) shall state the statutory authority pursuant to which the direction is given;
(b) is binding on the person to whom it is given; and
(c) is, in favour of the person to whom it is given, conclusive proof of the facts set out therein.
(4) A person who complies with a direction given pursuant to subsection (1) is not liable for any act done by the person only to comply with the direction.
14.04 The court, on the application of any interested person, may for cause remove a trustee and appoint another licensed trustee in the trustee's place.