Absent statutory authority, inferior tribunals cannot require the Attorney General to make payment to, for example, counsel or other necessary or expedient third parties?

Today’s decision in Ontario (Attorney General) v. Taylor, 2010 ONCA 35 holds that the Ontario Review Board, being a creature of statute, cannot order the Attorney General to make payments for independent psychiatric reviews.

While the specific issue is narrow the broader analysis is significant.  Ontario Court of Justice judges and judicial officers, for example, are creatures of statute.  Taylor suggests that, absent statutory authority, inferior tribunals (in the sense of inferior to Superior Court) cannot find jurisdiction to award payment to, for example, independent counsel or other necessary or expedient experts.

The Court says:

[12]        The Attorney General and the MHCP share the position that the absence of express statutory language in the Criminal Code is determinative of the Board’s lack of authority to order the Attorney General to pay.  Nor, according to the Attorney General, is it clear that the use by the Board of its own budget for this purpose would not compromise its ability to make independent, impartial decisions.  This submission is bolstered by the representations of the MHCP that the Board has been offered funding by the Ministry of Health and Long Term Care (“MOHLTC”) to ensure expenses associated with independent psychiatric assessments are covered.  The Attorney General and the MHCP submit that the application judge was correct in his reasons and result, and that the appeal ought to be dismissed.

[13]        The application judge held that, in making the assessment order at issue, the Board assumed jurisdiction that it did not have, either expressly or impliedly.  In arriving at this result he found that costs are a substantive matter, that there is no provision under Part XX.1 of the Criminal Code authorizing the Board to order any party to pay the costs of an assessment, and that the case did not involve any values under the Canadian Charter of Rights and Freedoms.  

[14]        Having found that the Board is a “creature of statute”, which is not authorized to require a party to pay costs without express statutory authority, the application judge concluded that the Board had the power to hire and pay its own experts. The issue, therefore, distilled further to whether the cost associated with independent assessments should be paid by the Board through its budget allocated by the MOHLTC or directly by the MOHLTC.  The application judge captured the point succinctly, at para. 29, when he stated “[i]n effect, the ORB is asking this court to adjudicate on its own budgetary interests…” as opposed to the rights of any party or person subject to the Board’s jurisdiction.

[15]        There was no evidence that the MOHLTC had refused, or was likely to refuse, the funding of assessments required by the Board to ensure that it was able to meet its statutory mandate under Part XX.1 of the Criminal Code. As such, the application judge found that the Board should deal with the cost of independent assessments through its own budget.  I agree.

[16]        The standard of review to be applied by this Court is correctness.  The application judge committed no error in reaching his determination.