The Lawyers Weekly - June 25, 2010

“court of competent jurisdiction” to grant remedies under s. 24(1) of the Charter.

“It liberalizes it,” opines David
Mossop, counsel for the inter-
vener Community Legal Assist-
ance Society of Vancouver,
Toronto’s Marlys Edwardh told
The Lawyers Weekly the decision
will enable people to use the
Charter to obtain remedies from
administrative boards and tribu-
nals that are not expressly barred
by the relevant statutory schemes.

It will “open up Charter relief in many kinds of administrative tribunals which have not had it, or not exercised it,” predicted Edwardh, counsel for Paul Conway, the appellant who unsuccessfully sought Charter remedies from the Ontario Review Board.

Whatever its future fallout, Conway certainly is a clear and succinct primer on the past 25 years of intense judicial debate at the Supreme Court about the scope of Charter jurisdiction of administrative boards and tribunals.

Remarkably, that debate seems to be over for now. Speaking with one voice, all the judges endorsed Justice Abella’s “merger” of the major strands of the court’s administrative law jurisprudence emanating from three lines of cases: Mills v. The Queen, [1986] 1 S.C.R. 863; Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038; and Cuddy Chicks Ltd. v. OLRB, [1991] 2 S.C.R.

“A merger of the three distinct
constitutional streams flowing
from this court’s administrative
law jurisprudence calls for a new
approach that consolidates this
court’s gradual expansion of the
scope of the Charter and its rela-
tionship with administrative tri-
bunals,” Justice Abella explained.
“The jurisprudential evolution
has resulted in this court’s accept-
ance not only of the proposition
that expert tribunals should play
a primary role in the determina-
tion of Charter issues falling
within their specialized jurisdic-
tion, but also that in exercising
their statutory discretion, they
must comply with the Charter.”
In a nutshell, the Supreme
Court ruled that administrative
tribunals with explicit, or implied,
authority to decide questions of
See Conway Page 28

Supreme Court expands admin. boards’ Charter powers

In a landmark 9–0 decision, the Supreme Court has revised the framework for analyzing when administrative boards and tribunals can resolve constitutional issues, including granting Charter remedies.

Justice Rosalie Abella’s June
11 ruling in R. v. Conway is a
must-read for administrative law
practitioners because its effect
may be to extend Charter powers
to a significant, but as yet
unknown, number of administra-
tive boards and tribunals which
currently claim they don’t (or
have been held by courts not to)
have jurisdiction to resolve con-
stitutional issues, including
granting Charter remedies.

Securities commission should take leadership role in corporate social disclosure, says York U report

CHRISTOPHER GULY

To help companies improve the way they disclose their social practices, the Ontario Securities Commission (OSC) should clarify existing disclosure obligations to indicate the need to consider the relevance of social issues to managerial and investors’ decisions and long-term corporate performance, according to a report released last week.

The 72-page report, entitled Corporate Social Reporting Initiative, was prepared by York University’s Jay and Barbara Hennick Centre for Business and Law and Toronto-based environmental, social and governance research firm, Jantzi-Sustainalytics Inc., for Ontario Finance Minister Dwight Duncan.

Among the recommendations, the report calls on the OSC to facilitate continued dialogue between issuers, investors, industry associations, regulators and other relevant stakeholders regarding the materiality and modalities of social disclosure, and to support a shift toward more standardized, indus-try-specific performance indicators and reporting in the area of corporate social reporting, which applies to such topics as human and labour rights, employee health and safety, local community development and product safety.

“This process of engagement, coupled with active monitoring of disclosure trends and periodic review of issuer disclosure practices, should foster an iterative process that will enhance reporting and governance practices over time,” says the report.

That process would also reflect
“growing recognition of how tightly
interconnected these issues are,
which raises a whole bunch of
questions as to how you define
stakeholders, how you think about
risk and materiality—all of which
is creating some intellectual and
operational discomfort, not only for
boards and management, but also
for investors,” says Ed Waitzer, dir-
ector of the Hennick Centre, and a
partner with and former chairman
of Stikeman Elliott LLP in Toronto,
where he practises corporate law.

The Corporate Social Reporting Initiative report is the result of a consultation held last December in response to a private member’s resolution by Ontario Liberal MPP Laurel Broten (currently the province’s Minister of Children and Youth Services) in April 2009, which was passed unanimously in the Ontario legislature. It called on the OSC to conduct a consultation into best practices on corporate social responsibility, and environmental, social and governance reporting standards.

Following the non-binding resolution, which urged the OSC to, in part, “ensure corporate disclosures are understandable, comparable and outcome-focused,” the Hennick Centre helped the commission organize a roundtable on environmental and governance issues last September, the results of which appeared in a letter to Duncan and was published in a staff notice last December.

That month also saw about 50 representatives from the federal and Ontario governments, non-profit organizations such as the Social Investment Organization, as well as the mining, energy and banking sectors holding a one-day meeting at the downtown Toronto office of Stikeman Elliott to discuss the scope for regulation of social reporting and challenges facing issuer companies in disclosing such information. The results of that roundtable are captured in the recently released report.

It followed the release of another report in May on global trends in voluntary and mandatory approaches to sustainability reporting by a quartet of partners, including KPMG, the United Nations Environment Programme and the non-profit organization, Global Reporting Initiative.

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