Administrative tribunals can sub-delegate authority, says Federal Court

  • April 27, 2018
  • Christopher Wirth and Alex Smith

In Best v Canada (Attorney General), 2017 FC 1145, the Federal Court held that an administrative body, the Canadian Judicial Council, was entitled to sub-delegate to its executive director the authority to summarily dismiss complaints through an early screening process, and that its decision to summarily dismiss a complaint was reasonable.


A corporation controlled by the applicant sued 62 defendants in the Ontario Superior Court of Justice. Its action was stayed and several defendants obtained costs orders against the applicant personally, which he failed to pay. In 2010 Justice Shaughnessy found the applicant to be in civil contempt and issued a warrant for his arrest and imprisonment. The 2010 warrant was stayed until 2013, when Justice Shaughnessy lifted the stay and ordered the applicant to be incarcerated. The applicant alleged that Justice Shaughnessy changed the original 2010 warrant by adding “no remission,” thus increasing the length of his sentence, and made a complaint concerning Justice Shaughnessy’s conduct to the CJC. The executive director of the CJC dismissed the complaint in an early screening process. The applicant then sought to judicially review the executive director’s decision to the Federal Court, arguing that the early screening of complaints was unconstitutional and an unlawful delegation of the CJC’s authority.

The decision

The Federal Court rejected this argument and upheld the executive director’s decision. The court noted that s. 63(2) of the Judges Act provides that the CJC may investigate complaints, meaning that it is not always obligated to do so. The CJC is not a court or an adjudicative tribunal tasked with adjudicating complainants’ rights. Even though judges sit as members of the CJC, they are doing so as members of an administrative tribunal and not in their judicial capacity. For this reason, it did not matter that the executive director who conducted the early screening and dismissed the applicant’s complaint was not a judge.

The CJC’s Procedures for the Review of Complaints or Allegations About Federally Appointed Judges allows for early screening of complaints and was not an unlawful delegation of authority. While administrative bodies that have been delegated discretionary power should generally exercise that power personally, the law is “generally permissive of sub-delegation of administrative functions, as opposed to a delegation of legislative, judicial or quasi-judicial functions.” The early screening of complaints is an administrative function because it does not decide any legal rights, duties, or responsibilities. Furthermore, the sub-delegation of administrative functions arises out of the necessity to assist administrative tribunals in fulfilling their statutory duties and purposes. The court therefore found that the CJC was permitted to sub-delegate the early screening of complaints to its executive director.

The court then found that the executive director’s dismissal of the applicant’s complaint was reasonable. While a judge’s conduct in the course of judicial decision-making can constitute judicial misconduct, this will typically only occur where there is a substantiated allegation that the decision was tainted by an improper motive or bad faith. In this case, the evidence did not support any such finding.

The court noted that it is open for a judge to amend a previously issued warrant for contempt. The 2010 warrant was silent on the issue of remission, so the 2013 warrant and its added specification of “no remission” could be interpreted in different ways. On the one hand, it could be simply putting into words Justice Shaughnessy’s original intentions when he issued the 2010 warrant. It could also be seen as an amendment to the 2010 warrant that effectively increased the applicant’s sentence without fair notice. Even if that were the case however, the proper remedy was to appeal, not to submit a complaint to the CJC. In this case the Ontario Court of Appeal had already dismissed the applicant’s appeal, and leave to appeal to the Supreme Court of Canada had also been denied.

As a result, the court dismissed the applicant’s application for judicial review, finding that the executive director of the CJC was entitled to dismiss the applicant’s complaint and his decision to do so in this case was reasonable.

Christopher Wirth is a partner and Alex Smith is an articling student with Keel Cottrelle LLP