Administrative Tribunals and the Power to Fill Legislative Gaps

Today's Ontario Court of Appeal decision in Oliveira v. Ontario (Disability Support Program Director), 2008 ONCA 123 deals with the narrow question of income support for dependant children in the context of joint custody. While important in that area the case discusses the power of a tribunal to deal with situations not anticipated by legislation -- the legislative gap issue.

The Court held that gaps can, subject to judicial review, properly be filled and the language of the Court is useful. Especially where society is changing faster than legislation, the power to fill gaps is very important.

The Court writes:

[26] I disagree with this view. Where the legislation in question does not expressly confer a power, gaps in legislation may be filled when doing so is necessary to the operation of the legislative scheme: Sullivan, supra, pp.137-38. For example, in Pointe-Claire (City) v. Quebec ( Labour Court), [1997] 1 S.C.R. 1015, the Labour Court had to make a decision that a person was or was not an employee in order for the legislative scheme to operate. A person was sent by an employment agency to work temporarily for the City. The union submitted she was an employee of the City for the purposes of s. 39 of Quebec's Labour Code. The Code defined an "employee" as "a person who works for an employer and for remuneration". The Supreme Court upheld the Labour Court's decision that the woman was an employee of the City because her work was directed by the City, even though she was paid by the employment agency. Lamer C.J. wrote at para. 62:

I am aware that the arrangement is not perfect. However, it must not be forgotten that the relationship in question here is not a traditional bipartite relationship but a tripartite one in which one party is the employee and the other two share the usual attributes of an employer. In such a situation, it is natural that labour legislation designed to govern bipartite situations must be adjusted in some ways.

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[30] The Act and Regulation contain no mechanism for calculating income support on anything other than a monthly basis. The same result would, however, be achieved by paying the full basic needs component to the appellant when she is in receipt of the CCTB for six months and nothing afterwards when she is not incurring this variable cost and is not eligible for CCTB. Providing half of basic needs to the appellant throughout the year makes her income more consistent and does not affect the overall result.

[31] The wording of s. 2(3) does not specifically envisage the increasingly popular option of joint custody. In such circumstances, I am of the opinion that the Tribunal had jurisdiction to make the order it did and, indeed, the respondent supports this interpretation. After analyzing the legislation, I conclude that there is a basis for the Tribunal's decision to order payment of fifty per cent of the amount of the basic needs component of income support in the Act and the Regulation, and the Tribunal's conclusion does not constitute an error of law.