Conservatism in the Supervision of Federal Tribunals:
The Trial Division of the Federal Court Considered
Norman M. Fera*
Introduction
During the Second and Third Sessions of the Twenty-Eighth
Parliament considerable concern was expressed both in Committee
and in the House about the provisions in Bill C-172 I dealing, inter
alia, with judicial review of federal boards and commissions. The
Bill, however, without undergoing any significant alteration, received
final approval in the House of Commons in October of 1970 and
was brought into force by proclamation on June 1, 1971 as the
Federal Court Act.2
Those interested in and concerned with administrative law have
found a number of troublesome subsections in the Act. Indeed,
what has been put forth as the “preliminary stages for a code of
public administrative law in this country” 3 is, at best, minimally
defined, poorly qualified and often confusingly ambiguous in signifi-
cant places. Section 28(1), for example, reads:
Notwithstanding section 18 or the provisions of any other Act, the Court
of Appeal has jurisdiction to hear and determine an application to review
and set aside 4 a decision or order,5 other than a decision or order of an
administrative nature not required by law to be made on a judicial or
* B.A. (Laurentian), B.A., M.A. (Carleton).
‘During
the Second Session of that Parliament, the Bill was numbered
C-192.
2 S.C.1970-71-72, c.1.
3 Words of the then Minister ( f Justice, the Honourable Mr John Turner in
Debates House of Commons Canada, 3d Sess., 28th Parl., vol. I, October
28, 1970, 678.
4The term “set aside” is not defined in the Statute. In 1972, Mr N.A.
Chalmers, Director of the Toronto Regional Office for the Department of
Justice in a published article wrote: “Exactly what the legal position is when
a decision has merely been set aside has not yet been clarified, but it is
submitted that the position is the same as if the decision of a tribunal had
been quashed on certiorari under the previous practice, i.e., the government
department or agency concerned is free to commence proceedings again on
a proper basis”; see The Federal Court as an Attempt to Solve Some Problems
of Administrative Law in the Federal Area (1972) 18 McGill L.J., 206, 215.
5 The term “decision or order” is not defined in the Act.
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THE TRIAL DIVISION OF THE FEDERAL COURT
quasi-judicial basis, made by or in the course of proceedings6 before a
federal board, commission or other tribunal,7 upon the ground that the
board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted
beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the
error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the
material before it.8
In contrast, section 18 –
to the point:
at least 18(a) –
is, on the face, clear and
The Trial Division has exclusive original jurisdiction
to issue an injunction, writ of certiorari, writ of prohibition, writ
(a)
of mandamus or writ of quo warranto, or grant declaratory relief, against
any federal board, commission or other tribunal; and
to hear and determine any application or other proceeding for
(b)
relief in the nature of relief contemplated by paragraph (a), including
any proceeding brought against the Attorney General of Canada, to obtain
relief against a federal board, commission or other tribunal.9
In the Federal Court Act, there is no clarification of the expression “in
the course of proceedings”. Jackett C.I. in National Indian Brotherhood v.
Juneau [No. 1] [1971] F.C. 66, 78 suggests that judicial review under s.28 does
hot apply to the myriad of decisions or orders that a tribunal makes in the
course of the decision-making process such as decisions as to adjournment or
admissibility of evidence. In Attorney-General of Canada v. Cylien [1973]
F.C. 1166, the Federal Court of Appeal held that the conclusion of a board as
to the nature of its statutory duty is not a decision that may be reviewed
under s.28. See also the ruling to the same effect in B.C. Packers v. Canada
Labour Relations Board [1973] F.C. 1194.
7 S.2(g) of the Federal Court Act says a “‘federal board, commission
or other tribunal’ means any body or any person or persons having, exercising
or purporting to exercise jurisdiction or powers conferred by or under an
Act of the Parliament of Canada, other than any such body constituted or
established by or under a law of a province or any such person or persons
appointed under or in accordance with a law of a province or under s.96 of
the British North America Act, 1867”.
8To many, s,28(1)(c)
is the most troublesome provision in the Act.
It has been discussed briefly in another article I have written, see Review of
administrative decisions under the Federal Court Act (1970) (1971) 14 Cana-
dian Public Administration 580, 588-589.
9 It might be argued that s.18(b) creates a new kind of proceeding in
relation to decisions of administrative agencies not previously available in
some courts. In The Federal Court of Canada –
A Manual of Practice,
Ottawa: Information Canada (1971), 18, the author, W.R. Iackett, says s.18(b)
“does not seem to create a new kind of proceeding in relation to such matters;
any such proceeding in the Trial Division under the Federal Court Act must,
I should have thought, be a proceeding that would have been available in some
court even if that Act had not come into force”.
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There is nothing in section 18 or in any other part of the statute
which expressly requires the Trial Division to give the extraordinary
remedies 10 a meaning previously given by any particular court.
G.F. Henderson, Q.C., has noted:
The Exchequer Court of Canada has not had any jurisdiction to fetter
it in defining the scope of application of [the extraordinary remedies] …
against federal … tribunals. There are no definitions limiting their scope.
There is nothing in the [Federal Court] Act expressly requiring the Court
to give these terms a meaning given by the courts in any other jurisdiction.
The opportunity exists to give each of these writs and the grant of a
declaratory order a wide meaning to ensure a realistic protection of the
subject against the bureaucratic action of the state.1
As will be shown in this article, however, the Trial Division of the
Federal Court of Canada has not been at all imaginative in this
regard. It has continued to issue the remedies in accordance with
well established principles, and in some instances, to prefer those
precedents that lead to a conservative rather than a liberal approach.
Federal Court – Trial Division
As noted above, the Federal Court – Trial Division 12 has exclu-
sive original jurisdiction to issue the writs of certiorari, prohibition,
mandamus and quo warranto, and to grant injunctive and declara-
tory relief.13 The question of when it is appropriate to approach the
Trial Division and when to approach the Court of Appeal is a
complicated one and stems largely from the effect section 28(3)
has on the “exclusive original jurisdiction” 14 of the Trial Court to
issue the various remedies. For the purpose of this article, however,
it is not necessary to, delve into all the niceties of that issue. It is
sufficient to examine the grounds on which the remedies have so
far issued from the Trial Court and to make the appropriate
12 This
10 As used in this article, the term will be a convenient way of referring
to all the remedies enumerated in s.18(a) of the Federal Court Act.
11 G. F. Henderson, “Federal Administrative Tribunals in Relation to the
New Federal Court of Canada” in Special Lectures of the Law Society of
Upper Canada (1971), 68.
is
the full official name. See s.4 of
the Federal Court Act.
Henceforth in the text the Court will be referred to simply as “Trial Division”
or “Trial Court”.
13Historically, the writs of “certiorari, prohibition and mandamus were
evolved by’the courts of common law. The injunction [on the other hand] is
an equitable remedy [while] the declaration is a nineteenth century inter-
loper, akin to an equitable remedy but not fitting into any neat category”. See
S. A. de Smith, Constitutional and Administrative Law (1971), 577.
‘4 Federal Court Act, supra, note 2, s.18(a).
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THE TRIAL DIVISION OF THE FEDERAL COURT
comparisons. It might be useful, however, to note that certiorari,
as it relates to decisions of administrative tribunals made after the
Federal Court Act came into force, may no longer be available.
While it is true that certiorari was available to quash improper
decisions or orders made prior to June 1, 1971,15 the combined
effect of sections 61(1) and 28(3) of the Federal Court Act may be to
destroy that jurisdiction with reference to decisions made after that
date. 6 In M.N.R. and The Queen v. Creative Shoes Ltd,17 the main
issue raised was whether certiorari proceedings lay to remove into
the Trial Division the record relating to the making of certain
prescriptions by the Minister of National Revenue. Mr Justice Thur-
low, delivering the judgment of the Court of Appeal, made it quite
clear that
.., with respect to decisions or orders of federal boards, commissions or
tribunals, as defined in section 2(g) of the Federal Court Act, made on or
after June 1, 1971, section 28(3) of that Act applies to oust the jurisdiction
of the trial division which otherwise would arise under section 18 of
the Act to grant relief in respect of such decisions or orders ….
It should be emphasized, however, that authority to make a
declaration”) or to grant injunctive2 0 or prohibitory relief21
is
definitely still with the Trial Division irrespective of when the
decision was made.22 Similarly with mandamus,
the jurisdiction
of the Trial Division to issue that prerogative remedy does not
appear to have been ousted by the jurisdiction given to the Court of
18
I5 See Media-Data Inc. v. Attorney-General of Canada [1972] F.C. 469, 496-497
per Walsh J.
10 See my article Judicial Review Under Sections 18 and 28 of the Federal
Court Act (1975) 21 McGillL. . 255.
17 [1972] F.C. 993.
18 Ibid., 998.
19 In general, a declaration lies to question the validity of a decision
rendered by any administrative agency.
20 In administrative law, injunctions are most frequently granted on the
grounds that what the agency proposes or plans to do would be ultra vires.
2 1 Prohibition is similar in scope to certiorari, but looks ahead instead of
back at what the tribunal has already decided or done.
2 2 In Canadian Radio-Television Communications v. Teleprompter Cable
Communications Corp. [1972] F.C. 1265, esp. 1270. See also Wardair Canada
Ltd v. Canadian Transport Commission [1973] F.C. 597 at 602 where Walsh J.
expresses the view that the Trial Division has jurisdiction by way of pro-
hibition or injunction. Now and then the Trial Court has tried to avoid the
issue of whether it has jurisdiction to issue a remedy: See e.g., The Centre-for
Public Interest Law v. Canadian Transport Commission [1974] F.C. 276, 290
per Kerr J.
2 3 In general, mandamus is used to command an administrative body to carry
out a public duty imposed on it by law.
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Appeal by section 28 of the Federal Court Act. In passing, it might
be noted that habeas corpus has not been transferred by any
provision in the Federal Court Act to either the Trial or Appeal
Division. Thus, as it applies to federal administrative agencies, it is
still available in the provincial superior courts.24
Certiorari in the Trial Division
As noted above, certiorari, as it applies to decisions made after
June 1, 1971, may not be available in the Federal Court –
Trial
Division. So far, that remedy has issued from the Trial Court only
against decisions made before that date. It might therefore be
argued that the few certiorari cases heard could be virtually ignored
in an article of this scope. There are, however, several reasons for
considering the certiorari decisions of the Trial Court. To begin
with, there is at least one case 25 (discussed below) which casts
some doubt on the assertion that the certiorari jurisdiction of the
Trial Division is now virtually defunct. Furthermore, certiorari has
traditionally been considered substantively similar to prohibition.
By considering the decisions relating to the former proceeding some
light may be shed on the applicability of the latter remedy. Equally
important, in these early certiorari cases there is revealed the
“temperament” and “approach” of the Court which is quite relevant
to the thesis of this article. In these judgments, a cautious, con-
servative stare decisis approach becomes readily apparent.
Review dependent on type of decision
In National Indian Brotherhood v. Juneau [No. 31,2″ the Trial
Court in an application to review the proceedings of the C.R.T.C.2
7
found that the decision of the Executive Committee of that Com-
mission not to hold a public hearing into a complaint was administra-
tive in nature.8 There is nothing in the holding to cause much
concern, but an additional statement is somewhat disconcerting,
that is, if it was intended as the expression of a general principle.
Walsh J. said:
24 See Armstrong v. State of Wisconsin and U.S.A. [1972] F.C. 1228; Ex parte
Marcotte (1974) 13 C.C.C. (2d) 114; Cavanaugh v. Commissioner of Peniten-
tiaries [1974] F.C. 515, 522; and Sadique v. Minister of Manpower and Immi-
gration [1974] 1 F.C. 719, 724 per Cowan D.J.
25 Millward v. Public Service Commission [1974] 2 F.C. 531.
26National Indian Brotherhood v. Juneau [No. 3] [1971] F.C. 498.
27Canadian Radio-Television Commission.
2 8 Supra, note 26, 516.
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THE TRIAL DIVISION OF THE FEDERAL COURT
This was an administrative decision and the right to make it has been
conferred by Parliament on the Executive Committee …. There is
nothing to indicate that it was ever intended that it could or should be
reviewed by the Court,29 nor does the law relating to prerogative writs3 o
permit judicial review of a decision of this nature.3 ‘
Mr Justice Walsh supported his view by reference to the decision
of Thorson P. in Pure Spring Co. v. M.N.R.3 2 which dealt with the
discretionary powers of the Minister of National Revenue. 3 At the
same time, however, he conceded that more recent jurisprudence,
including the prior Supreme Court decision in the Wrights’ case,34
would extend the right of the Court to review the exercise of
Ministerial discretion much further than did Thorson P.5
In a subsequent case, Mr Justice Walsh seemingly mollified his
position. In Creative Shoes Ltd v. M.N.R.,38 he made reference to
Ridge v. Baldwin 37 and the rule that in making a “purely administra-
tive decision affecting private rights 38 a tribunal must not infringe
on the rules of natural justice. 9 With reference to certiorari, he
said in this case:
Specifically in order for [that writ] to be applicable, the decision attached
[sic] must be one which affects the rights of subjects and in which the
error of law appears on the face of the proceedings. 40
29 In part, s.19 of the Broadcasting Act, R.S.C. 1970, c.B-11, reads: “A
public hearing shall be held by the Commission if the Executive Committee is
satisfied that it would be in the public interest to hold such a hearing, in
connection with … a complaint by a person with respect to any matter
within the powers of the Commission”.
30 Certiorari, prohibition, mandamus and quo warranto are among the
prerogative writs.
31 Supra, note 26, 517 (emphasis added).
32[1946] Ex. C.R. 471.
3 3 See National Indian Brotherhood v. Juneau [No. 3), supra, note 26, 518.
34 Wrights’ Canadian Ropes Ltd v. M.N.R. [1946] S.C.R. 139.
35 Supra, note 33.
.3 [1972) F.C. 115.
37 [1964) A.C. 40.
-8 Supra, note 36, 138.
39 For the person whose private rights or interests may be extinguished or
modified, this includes a right to be heard and to be given a fair opportunity
for correcting or contradicting what is alleged against him before an order
is made: See Randolph v. The Queen [1966] Ex. C.R. 157.
40Supra, note 36, 143 (emphasis added). Walsh J. supported his view with
reference to R. v. London Committee of Adjustment Ex Parte Weinstein
[1960) O.R. 225 which approved of a statement made by AtkinLJ. in Rex
v. Electricity Commissioners [1924] 1 K.B. 171, 204-205.
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Giving reasons
In Creative Shoes, Walsh J. also expressed the view that a court,
in certiorari proceedings, might inquire as to the reasons41 for
the decision of a tribunal or similar body given quasi-judicial dis-
cretionary powers to decide and “that unless such reasons are
given then there is no means whereby the Court may know whether
is was made on a proper judicial or quasi-judicial basis”.4 2 To
support that last contention, Walsh J. cited the Wrights’ decision4 3
and The King v. Noxzema Chemical Co. of Canada, Ltd.44
In Britain, irrespective of the type of decision involved, there
is no general rule which requires a tribunal to give reasons for its
decisions.4 5 Indeed, where a tribunal is not under a statutory
obligation to give reasons and chooses not to do so, the court
usually cannot infer on that ground alone that the (unstated)
reasons of the tribunal are bad in law.46 In Canada, however, apart
from decisions rendered by the Federal Court (or the Exchequer
Court before it), there is some authority for the view that where
a tribunal fails to state the reasons for its decision –
even where
none are required by statute –
the courts may make adverse
inferences 7 Even in Britain, where a prima facie case of misuse
41 It was the view of Walsh J. that such an inquiry would serve to determine
if the figures in the instant case were arrived at after a proper judicial or
quasi-judicial consideration of the evidence before the Minister at the time
the determinations were made; Creative Shoes Ltd v. M.N.R., supra, note
36, 143.
42 Ibid., 138.
43 Supra, note 34.
44 [1942] S.C.R. 178. It should be noted that since the two cases cited involved
appeals rather than applications for certiorari or the like, Mr Justice Walsh felt
compelled to draw on Nicholson Ltd v. M.N.R. [1945] Ex. C.R. 191. In that case,
Thorson J., then a Judge of the Exchequer Court, noted that where a Minister’s
quasi-judicial discretion is involved, the court owes a duty of supervision over
the manner of its exercise and that the appellate jurisdiction of the court
did not alter the nature of the principles to be applied in its duty of supervision
as these were the same as those applied in certiorari and mandamus cases.
Presumably, Walsh J. wished to point to the converse: Judicial supervision
of quasi-judicial discretion by way of the writs is similar in scope to the
statutory appeal jurisdiction given to the superior courts on like issues.
Therefore, ‘a rule enunciated in an appeal may often apply in certiorari
proceedings.
-45 S.A. de Smith, Judicial Review of Administrative Action 3d ed. (1973) 128.
46 Ibid., 359.
47 “Even where [reasons] are not statutorily required, a tribunal that fails
to state them must be prepared to accept adverse inferences.” R. F. Reid,
Administrative Law and Practice 3d ed. (1971), 253. See Re Ross and Board
of Police Commissioners [1953] O.R. 556; Re Henry’s Drive-In Ltd [1960] O.W.N.
468 and Re Commercial Taxi v. Highway Traffic Board [1951] 1 D.L.R. 342, 348.
1976]
THE TRIAL DIVISION OF THE FEDERAL COURT
of power is established and the administrative agency chooses to be
silent, the courts are now readier to draw the inference that the
tribunal’s reasons are legally wrong or that its purpose is legally
inadmissible.4 8 Moreover, in certain other situations, Professor de
Smith notes:
[T]here may be an implied duty to state the reasons or grounds for a
decision. A person prejudicially affected by a decision must be adequately
notified of the case he has to meet in order to exercise any right he may
have to make further representations or to appeal.49
In Creative Shoes, Walsh J. expressed the view that the statutory
authorization given the Minister to determine normal value or
fair market value 50 did not give him a free hand to prescribe
percentage figures without any explanation as to how they were
arrived at. The plaintiffs, he felt, were entitled to an explanation
as to how they were arrived at and should have been given an
opportunity to dispute them before a decision was reached.51 The
Court therefore granted the plaintiffs’ application for certiorari
and prohibition against the Minister of National Revenue. Citing
failure to provide reasons for the decision and a failure to observe
a principle of natural justice, Walsh J. quashed the Minister’s
prescriptions.
Where appeal is available
In that same case – Creative Shoes Ltd v. M.N.R. – Walsh J.
reestablished another common law principle, namely, that certiorari
and prohibition may issue despite the fact that appropriate relief
is also available by way of statutory appeal. 2 In Britain, it can now
be said that the existence of a right of appeal from a tribunal’s
decision does not, in many instances, bar the aggrieved party from
being granted prohibition or certiorari.53 And in Canada, prior
48 de Smith, supra, note 45, 39 and 139.
49 Ibid., 129.
80 See s.11 of the Anti-dumping Act, R.S.C. 1970, c.A-15 and S.40 of the
Customs Act, R.S.C. 1970, c.C-40.
58 Supra, .note 36, 143.
Z2Ibid., 137-138. In arriving at its decision, the Trial Court considered the
fact that the statutes authorizing the appeal procedures did not specifically
deny supervisory review under the extraordinar-y remedies. In Canada “[a]n
accepted ground for the refusal to exercise the discretion [of the court to
issue some forms of relief] is recognition of exclusive jurisdiction in another
tribunal”. See Reid, supra, note 47, 403.
53 de Smith, supra, note 45,-,375 and 374-376., Compare with J. F. Garner,
Administrative Law (1970), 171.
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to the creation of the Federal Court, there were a significant number
of cases showing that the existence of a right of appeal was not
in itself a bar to relief by way of the traditional remedies. 5
Attorney-General may bring proceedings
A number of important issues arose in In re Anti-dumping
Tribunal,5 5 heard in the Trial Division. One of these had to do with
whether the Attorney-General, under the provisions of section 18
of the Federal Court Act, is authorized to bring certiorari proceedings.
Noting that at common law there is no question that an Attorney-
General may institute proceedings by way of the prerogative writs,
Cattanach 1. made the same holding in the case at hand. He added:
[I]t is well established by long standing authority that … certiorari is
granted as of course on application of the Attorney-General acting on
behalf of the Crown … [but] whether the order of the inferior court is
quashed.., remains … for the Court to decide on the merits …. 56
Bias
The central issue in that same case was whether or not there
had been bias on the part of a member of the Anti-dumping
Tribunal. The “objectivity” of the recently appointed Chairman of
the Tribunal was in doubt with reference to a particular inquiry
which had been made. For several years prior to his appointment,
the Chairman, Mr W.W. Buchanan, had been employed as a con-
sultant by two Canadian manufacturers of sheet glass.57 In his
consultative capacity, Mr Buchanan had made several representa-
tions to governmental authorities with regard to alleged dumping
of imported sheet glass into Canada. On his appointment to the
Tribunal, however, Mr Buchanan terminated his employment with
the two companies. A few months later, the same firms brought
a complaint before the Tribunal about the dumping of sheet
glass on the Canadian market. At this point, Mr Buchanan reiterat-
ed his former association with the two firms and assigned the
conduct of the hearing to the other members of the Tribunal.
The two remaining members heard the case and decided that anti-
dumping duties should be assessed against certain sheet glass that
had been imported from East European countries. The Chairman
54 Reid, supra, note 47, 351. For a case example, see R. v. Saskatchewan College
of Physicians and Surgeons, ex parte Samuels (1966) 58 D.L.R. (2d) 622.
55 (19721 F.C. 1078.
56 Ibid., 1124.
57The two companies were Canadian Pittsburg Industries and Pilkington
Brothers (Canada) Ltd.
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then returned, read the decision, made three grammatical changes
and signed the decision along with the other members. This was
then forwarded to the Deputy Minister of Customs and Excise,
and an unsigned copy of the order retained in the records of the
tribunal. Aware of the possibility of bias on the part of the
Chairman, the Attorney-General subsequently applied to the Federal
Court for certiorari to quash the decision. Judgment was eventually
rendered in August of 1972 by Mr Justice Cattanach. Citing several
precedents, 58 the Trial Court held that the Chairman was indeed
disqualified from participating in the decision-making because his
prior relationship to the complainants gave rise to reasonable
apprehension of bias. 9 The Court also held that by signing the
Order of the Tribunal, the Chairman “presumably” 60 participated
in making the decision. In arriving at that conclusion, Mr Justice
Cattanach applied the Hughes case.6′
However, despite such findings, the Court felt compelled to
dismiss the application to quash the decision of the Anti-dumping
Tribunal, the dismissal turning on a “technicality”. Very simply,
the copy of the Tribunal’s order which was retained in its own
records and subsequently removed into the Trial Court was unsigned.
Cattanach J. stated:
In my opinion the preponderance of authority,6 2 which I am compelled to
followP 3 is that it is to the face of the record of the Tribunal that I must
look to determine whether certiorari to quash should be granted. It has
been established that the record of the Tribunal does not contain a
decision that was signed by Mr Buchanan. That being so, it follows that
he did not participate in making the decision. 64
If one considers the fine points of reasoning, the judgment is
generally coherent, but it does little to sustain the principle that
justice should not only be done but appear to be done. Applying
that rather broad principle, the courts have sometimes quashed
68Among them were R. v. Sussex Justices [1924] 1 K.B. 256; Ghirardosi v.
Minister of Highways for British Columbia [1966] S.C.R. 367; McKay v.
Campbell 36 N.S.R. 522; Sims v. Seller [1927] 2 D.L.R. 251.
Anti-dumping Tribunal, supra, note 55, 1103.
59 The Court did not find actual bias on the part of the Chairman; In re
160 A form of this word was used in a similar context by Verchere J. in
Hughes v. Seafarers’ International Union (1962) 31 D.L.R. (2d) 441, 446.
81 Ibid.
W2See, e.g., R. v. Northumberland Compensation Appeal Tribunal (1952)
1 K.B. 338 and R. v. Northumberland Compensation Tribunal, Ex parte
Shaw (1951) 1 K.B. 711.
03This point is discussed above; the Trial Court does not appear to be
compelled to follow precedents in any specific jurisdiction.
64Supra, note 55, 1131 (emphasis added).
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administrative action on grounds far more effete than those apparent
in Re Anti-dumping Tribunal.65
The words of Mr Justice Cattanach quoted above cause concern
regarding some other issues as well. For one thing, they seem to
point to a rather narrow conception of when certiorari should
issue and what should form the record.6 For another, apart from
anything the “preponderance of authority” may suggest, as mention-
ed earlier, the Trial Division is not really “compelled” to follow any
particular line of decisions. It is apparent, however, that it prefers
to take rather conservative pathways.
Interim determination
In Union Gas Ltd v. TransCanada Pipe Lines Ltd 7 certiorari
was found inappropriate to deal with an interim determination.
In that case, the prerogative remedy was sought to quash a ruling
of the National Energy Board to limit the scope of its inquiry to
particular aspects and therefore not to receive further evidence
or permit cross-examination of witnesses on broader subjects, It
was the view of the Trial Court that the ruling in question was
not a decision which the Board was authorized by statute to make
but rather an interim determination which had to be made in the
course of arriving at a final decision. Mahoney J. noted:
No precedent for the granting of an order in the nature of certiorari in
respect of such a ruling was cited to me. There are, of course, numerous
instances such as the Globe Printing case, where a ruling made during the
course of a hearing has been the basis for the quashing of the ultimate
decision by certiorari.68
The Millward case,6 9 however, heard in the Trial Division by
Cattanach J. is not quite as clear on the same point. In that case
the applicants sought an order (a) to quash the ruling of an Appeal
Officer, made during the course of an inquiry, that the matter
would be conducted in public, and (b) to quash the ruling made
by the same Board refusing to grant an adjournment to the applicants
so that they might proceed to the Federal Court for a determination
on whether the Board was required to hold a closed hearing. It was
the view of Cattanach J. that those two matters were within the
jurisdiction of the Trial Division and not “orders or decisions”
65 See, e.g., R. v. Sussex JJ., ex p. McCarthy [1924] 1 K.B. 256.
66 For a brief discussion of a broad view of the record see Reid, supra, note
47, 372-377.
67 [19743 2 F.C. 313.
68 Ibid., 324.
69 Millward v. Public Service Commission [1974] 2 F.C. 530.
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within the jurisdiction of the Court of Appeal under section 28
of the Federal Court Act.70 On the first issue, the Court held that
the Public Service Employment Act,”‘ by necessary implication,
conferred on the Appeal Board in question a discretion with respect
to holding the inquiry in public or in privateY2 On the adjournment
question, the Court was of the view that while the Board’s refusal
to grant it for the purpose requested may not have been a wise one,
the Appeal Board nevertheless had the discretion to so refuse. 3
As noted above, the Trial Court wasg of the view that it had
jurisdiction to consider quashing the Board’s ruling not to hold
the inquiry in camera and not to grant an adjournment.7 4 While
Cattanach J. was explicit in holding that the “two matters” indicated
were within his jurisdiction, he was not quite as clear as to the
specific writ or remedy, he had in mind when considering those
matters 5 It would appear, however, that Cattanach J. holds these
views:
(1) Where the inquiry is concluded,”‘ quashing the proceedingg
is probably the proper subject of an application for review to
the Court of Appeal under section 28 of the Federal Court Act.
(2) Where the inquiry is concluded but presumably before the
Board has pronounced its decision, 7″ certiorari is available in
the Trial Division to quash any incorrect ruling made by a
Board in the course of its proceedings.
If this is indeed the position Cattanach J. wishes to advance, it Is
unacceptable and not likely to persist. In this regard, it is necessary
only to note the words of Jackett C.J. in the Danmor Shoe case:”,
[Ilt must be recognized that the lack of a right. to have the Court
review the position taken by a tribunal as to its jurisdiction’or as to
some procedural matter at any early stage in a hearing, may well resilt,
in some cases, in expensive hearings being abortive. On the other hand,
710 See the clear words of Cattanach J., ibid., 532.
71R.S.C. 1970, c.P-32.
72 Supra, note 69, 543.
73The Court did, not elaborate on how this discretion arose, i.e., what
provision authorized the discretion; ibid., 547.
74The applicants sought an order by way of certiorari to quash those
rulings and also to quash the proceedings. On the last request, however, the
Court was inclined to think that quashing the proceedings was properly the
subject of an application for review to the Court of Appeal; ibid., 531.
75 Ibid., 531-532.
6 In Milward v. Public Service Commission, supra, note 69, 531, the Court
notes that “the inquiry was concluded”.
77 As was the situation in Millward v. Public Service Cbmmission, ibid.
78In re Anti-dumping Act and In re Danmor Shoe Co. [1974] 1 F.C. 22.
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a right vested in a party who is reluctant to have the tribunal finish its
job, to have the Court review separately each position taken, or ruling
made, by a tribunal in the course of a long hearing would, in effect, be a
right vested in such a party to frustrate the work of the tribunal.9
When speaking those words, the Chief Justice of the Federal Court
obviously had in mind an “application to review” under section 28.
However, it is also obvious that the aspect of frustration he points
out would apply equally if interim determinations of a tribunal
could be questioned in the Trial Division by way of certiorari.
Prohibition
Basic rules of issuance
Generally, certiorari and prohibition differ only in the time
appropriate for their use. 0 Certiorari lies to quash something already
done, while prohibition issues to prevent something from occurring.
More precisely, “prohibition will not lie unless something remains
to be done that a court can prohibit”.8 In the Trial Division, Cowan
D.J. said in Sadique v. Minister of Manpower and Immigration:
“Since the inquiry [in this case] has been concluded, a writ of
prohibition is not appropriate”. 82
As far as prohibition is concerned, the most common ground of
challenge has been excess or want of jurisdiction in more-or-less
judicial proceedings. 83 In the Trial Division, Kerr J., citing a passage
of Professor de Smith, noted that prohibition has also been granted
for a denial of natural justice on the part of the tribunal.8 4 An even
more comprehensive list of grounds, including error of law and
bias, were acknowledged by the Trial Division in Wardair Canada
Ltd v. C.T.C. 5
79Ibid., 34 (emphasis added).
80 In this regard, Professor de Smith has cautioned: “It is not … clear how
far the rules relating to prohibition are applicable to certiorari”. And elsewhere
with the same two remedies in mind, he has said: “… there is something to be
said against the extension of anomalous doctrines by analogy”; supra, note
45, 369-370. For discussion of resemblance between the two remedies see R.
v. Electricity Commissioners [1924] 1 K.B. 171.
81 de Smith, ibid., 337.
82 [1974] 1 F.C. 719, 723.
83 See R. v. Electricity Commissioners, supra, note 80.
84See Center for Public Interest Law v. The Canadian Transport Commission
[1974] F.C. 276, 281. To support this proposition, Kerr J. referred to de Smith,
Judicial Review of Administrative Action 2d ed. (1968).
85 Wardair Canada Ltd v. Canadian Transport Commission [1973] F.C. 597,
602.
19761
THE TRIAL DIVISION OF THE FEDERAL COURT
The Trial Division has also reiterated in another case,88 the
long standing rule that where the functions exercised are purely
administrative in character, a superior courts cannot interfere by
prohibition.88 The well-recognized discretionary nature of prohibi-
tion was pointed to in the Trial Division by Collier J. in Attorney-
General of Canada v. Morrow J.:
Assuming there is a doubt [in this case] as to whether … [the tribunal]
is exceeding or acting without jurisdiction, I would, in the circumstances
here, exercise my discretion against … issuing … prohibition.8 9
Prohibition to usurpers
The late Professor de Smith in the third edition of Judicial Review
of Administrative Action wrote:
[I]f a tribunal that is legally entitled to exercise a jurisdiction exceeds it,
certiorari will issue to quash its decision even though the decision is void
and can properly be disregarded or be impugned in collateral proceedings.
It has been held [however] that the orders [such as certiorari and
prohibition] will not issue to persons who take it upon themselves to
exercise a jurisdiction without any colour of legal authority; the acts of
usurpers are to be regarded as nugatory9 0
If it has also been the practice of Canadian courts not to issue
prohibition to restrain usurpers, then the decision in Steve Dart Co.
v. Board of Arbitration,91 heard in the Federal Trial Division, esta-
blishes a precedent.
In the Dart case, a licensed dealer in agricultural products
applied for prohibition against a Board of Arbitration purporting
to exercise jurisdiction under certain Regulations made pursuant
to the Canada Agricultural Products Standards Act.92 It, was the
petitioner’s contention that the Regulations, in so far as they
purported to create such a body to determine various issues of
liability, were ultra vires in that they were not authorized by statute.
88 Grauer Estate v. The Queen [1973] F.C. 355.
87 In Puerto Rico v. Hernandez [1975] 1 S.C.R. 228, 233 Pigeon J. noted that
“the Federal Court is a superior court in the sense of a court having
supervisory jurisdiction”.
88Supra, note 86, 358. The Court supported its contention by referring to
F. F. Ayriss & Co. v. Board of Industrial Relations of Alberta (1960) 23 D.L.R.
(2d) 584; Guay v. Lafleur [1964] C.T.C. 350; and R. v. Ontario Labour Relations
Board [1966] 57 D.L.R. (2d) 521.
89 [1973] F.C. 889, 897.
90 de Smith, supra, note 45, 377 and 341-42 (emphasis added).
91 [1974] 2 F.C. 215.
92 R.S.C. 1970, c.A-8.
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Under sections 3, 5 and 6 of the Act, the Governor General in
Council is authorized to issue regulations for certain specific
purposes related to agricultural products, and under a general
grant in section 8, is empowered to make rules to carry out the
purpose and provisions of the Act. On the basis of the general grant,
Regulations were issued establishing a board of arbitration con-
sisting of three members –
two of whom were to be appointed
by outside bodies. It was the view of the Trial Court, however,
that nowhere in the Act was there any specific provision for the
setting up of any such board 93 or specific authorization to allow
the Governor General in Council by regulation to delegate the
appointment of any such persons to outside bodiesf 4 Consequently,
prohibition was allowed to issue to restrain the Board from hearing
a claim filed against the petitioner. In the Court’s own words:
Since there is no statutory authority for the constitution of the respondent
Board, prohibition should issue against it …
. As section 18 of the
Federal Court Act gives this Court the power to issue a writ of prohibition
against “any federal board, commission or other tribunal”, I find no
difficulty in coming to the conclusion that, by necessary implication, this
Court has a power to grant such relief against a body which, although
not legally constituted, purports to be and to act and exercise powers
as a federal board or tribunal pursuant to federal regulations and a
federal act. I do not find difficulty either in concluding that prohibition
is a proper remedy in such a case.9 5
Addy J. cited no authority to support his decision to issue
prohibition in the circumstances considered. The writer is thus
left with the task of either conceding that in the issuance of
prohibition there has been some statutory and/or judicial innovation
or showing that the Dart decision is in keeping with traditional
common law rules prior to the Federal Court. Succinctly, it is the
writer’s view that there is sufficient case law predating the Federal
Court Act, to support the ruling in Dart.
To begin with, it might be noted that certiorari, substantially
similar to prohibition, has been found appropriate to review any
purported exercise of a jurisdiction not conferred. 0 That same reme-
dy, in Britain, has been held to be appropriate against non-statutory
7 Further-
boards of a public as opposed to purely private character
93 Supra, note 91, 218.
94 Ibid., 219.
95 Ibid., 220 (emphasis added).
96 R. v. Institutional Head of Beaver Creek Correctional Camp, Ex parte
&facCaud (1969) 1 O.R. 373.
9 R. v. Criminal Injuries Compensation Board [1967] 2 Q.B. 864.
19761
THE TRIAL DIVISION OF THE FEDERAL COURT
more, with reference to prohibition itself, there is dicta that it should
be available in cases other than those of ultra vires. That is, besides
objections ratione materiae, prerogative writs should lie ratione
personae where the person purporting to hear the matter is not
duly appointed.98 Furthermore, courts have noted that while prohibi-
tion is a discretionary remedy, it ought not to be withheld where
justice and convenience might both be served by granting it0 9
More precisely, the writ of prohibition has issued against a body
not having competent authority to decide the matter in question
or to make the decree attacked. 0 In Canada, it has issued to restrain
tribunals created and empowered under a statute found to be ultra
vires.’0’ In more recent times, it has issued against an offence
charged which did not exist at law,1 2 ‘and it has also been considered
appropriate against a charge being laid under a provincial statute
rendered inoperative by virtue of the Dominion occupying the
field. 0 3 Canadian courts have also issued prohibition to restrain
a court created and empowered under one statute from hearing
an offence charged under a different enactment.3 4 In 1971, the
Supreme Court of Canada issued prohibition to restrain an ad-
ministrative agency not authorized by statute to inquire into a
particular complaint. 0 5
Prohibition has obviously been seen as appropriate in a variety
of circumstances. It should be emphasized that courts have not
hesitated to issue the remedy where the ultimate decision of the
body in question would have been nugatory because it was not
lawfully authorized to act. It is the writer’s conclusion, therefore,
that if there is not in the Canadian experience a case directly on
point to support the ruling in Dart, it is nevertheless safe to say
from the cases reviewed above that the Dart decision breaks little
new ground, and that -notwithstanding any statutory provision,
the decision is logical, necessary and appropriate.
98R. v. Deacon, Ex parte Collins (1970) 1 O.R. 207 per Addyl. (Ont.H.C.).
99R. v. Shenowski (1932) 1 W.W.R. 192.
100 Rogers v. Wood (1831) 2 B. & Ad. 243, 109 E.R. 1134.
101 Poulin v. The Corporation of Quebec (1884) 9 S.C.R. 185.
102 Viger Co. v. Cloutier [1947] B.R. 120.
103R. v. Dodd [1957] O.R. 5.
‘o4 Ex Parte Grey (1958) 123 C.C.C. 70.
1o5Bell v. Ontario Human Rights Commission [1971] S.C.R. 756, 18 D.L.R.
(3d) 1.
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Mandamus
In mandamus proceedings, too, it appears the Trial Division
is well on its way to issuing the remedy along traditional grounds.
In National Indian Brotherhood v. Juneau [No. 1],106 for example,
Walsh J. made it clear that the Court will continue to follow a
long line of decisions 107 not to grant mandamus unless the applicant
is someone who has a specific interest in the matter being complained
of.’08 The long standing view that mandamus lies to secure only
the performance of those public duties that are specifically required
by law was accepted by Kerr J. in Weatherby v. Minister of Public
Works.’0 9 In another Trial Division case,” 0 Heald J. added the
requirement that the applicant must show that he has demanded
performance of the duty and that performance was refused by the
authority obliged to discharge it.”‘
The discretionary nature of this traditional remedy was referred
to by Walsh J. in Rossi v. The Queen, citing a passage from
Professor de Smith:
Even if all the conditions for the issue of a mandamus exist, it is a
discretionary remedy and the Court will refuse to issue it if it is un-
necessary or the object of which the application was made has already
been obtained. 112
The Trial Division has also recognized the practice of refusing
to issue this remedy to compel the Crown to perform where it is
expressly designated.” 3
Injunction
In National Indian Brotherhood v. C.T.V. Television Network
Ltd,”4 the Trial Court was asked to issue an interim injunction to
restrain the Television Network from broadcasting a film –
“The
“O [1971] F.C. 66.
107See Re Watson v. Town of Cobourg (1924) 55 O.L.R. 531 and R. v. The
Guardians of the Lewisham Union (1897) 1 Q.B. 498, for examples.
1o The same point was made in another Trial Division case, Kaps Transport
Ltd v. Canadian Transport Commission [1973] F.C. 739, 741.
109 [1972] F.C. 952.
110 Commonwealth of Virginia v. Cohen [1973] F.C. 622.
1″This has been a traditional requirement. See the Royal Commission,
Inquiry Into Civil Rights (1968), Report No.1, Vol.1, 226 (hereinafter referred
to as the McRuer Report).
112 [1974] 1 F.C. 531, 536.
113 Ibid. See J. F. Garner, Administrative Law 3d ed. (1970), 270. Mandamus
has issued where the duties have been clearly imposed upon a servant of the
Crown: See the McRuer Report, supra, note 111, 265-266.
114 [1971] F.C. 127.
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THE TRIAL DIVISION OF THE FEDERAL COURT
Taming of the West” – which was allegedly racist and slanderous
to Indians. Through such a restraining order, the Brotherhood
hoped to maintain the status quo until a decision was.handed down
in an application for mandamus to direct the C.R.T.C. to hold a
public inquiry into the broadcast of the film. Kerr I., however,
refused to grant the application for injunction. He gave the following
as one of his main reasons:
[T]here has not, in my opinion, been a prima facie showing eitherthat
if the film is broadcast such broadcast will violate some legal right or
commit some legal wrong that ought to be enjoined by an injunction, or
that the film in fact slanders or libels any living person.115
While the decision of the Court not to grant an injunction against
the broadcast of that particular film might be questioned, the
general principles expressed about when the remedy might issue
are based on past practice.
In a clearly set out judgment in Kaps Transport Ltd v. Canadian
Transport Commission,116 Heald J. applied another general rule
concerning the injunction. Following Mathew v. Guardian Assurance
Co.,” 7 the Trial Division Judge refused to grant an interim injunction
that would injuriously affect the rights of other parties not before
the Court where no special circumstances were made out. He said:
[T]hese other parties are vitally and directly interested in said hearings
and, yet, they have not been added as parties to this originating motion nor
have they received notice of same … [nor has] [t]he applicant …
adduced … evidence of any special circumstance justifying departure
from the general rule.llS
In another Trial Court case,” 9 Pratte J. left considerable doubt
as to whether or not he would allow an injunction to issue against
a purely administrative decision. But since he was able to decide
the case without really meeting that issue face-on, the views he
expressed in that regard and the impression he left must be con-
sidered strictly obiter.120 It might be noted, however, that the
remedy has in fact issued against all types of administrative agencies
irrespective of the nature of their function.’ 21
The question of whether or not the extraordinary remedies,
and in particular the injunction, may issue against the Crown per se
115Ibid., 130 (emphasis added).
116 [1973J F.C. 739.
117 (1919) 58 S.C.R. 47.
118 Supra, note 116, 740.
11 Filion v. The Queen [1972] F.C. 1202.
120 Ibid., 1204-05.
121Discussed in Garner, supra, note 113, 176.
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was discussed in Filion v. The Queen.122 But by permitting the
applicant to amend his declaration and motion, Kerr J. did not
have to confront fully that issue either. In Britain certainly, the
practice has been not to grant
… an injunction against the Crown, nor against a Minister of the Crown
when he is carrying out functions conferred on him by statute as a
representative or as an officer of the Crown. 23
In Canada, however, this rule has not always been followed. In
Carlic v. The Queen,2 4 for example, an injunction was “granted
against Her Majesty enjoining action on an immigration order”.125
Declaration
The scope of the declaration has been described by Professor
I. Zamir:
As a supervisory remedy the declaration ranges over statutory as well as
non-statutory bodies; it is available against the Crown as much as against
other authorities; and it is applicable to legislative, judicial and ad-
ministrative acts alike. No other supervisory remedy is of such a wide
scope. The scope of the prerogative orders in particular is circumscribed
by … technicalities
. The declaration, … on the other hand, a com-
paratively new.,remedy, is not hampered by any similar rules.126
.
In Canada, the declaration has issued for “violation of natural
justice, bias, bad faith and, more generally, for lack of juris-
diction” 2 7 A few cases heard in the Trial Court have restated those
and other basic principles concerning declaratory relief.
In Lingley v. Hickman, Heald J. affirmed the jurisdiction of the
Trial Division to grant the remedy and expressed the view that
… the doubt and uncertainty which surround the position on prerogative
writs, does not … similarly impede the Court’s jurisdiction to grant
declaratory relief… .128
In the same judgment, he made it reasonably clear that he would
be prepared to issue a declaration even against bodies exercising
122 Supra, note 119.
123 Garner, supra, note 113, 270.
124 (1968) 65 D.L.R. (2d) 633 (Man. C.A.).
125 Reid, supra, note 47, 410.
12G The Declaratory Judgment (1962), 119.
1
2
7D. T. Warren, The Declaratory Judgment: Reviewing Administrative Action
(1966) 44 Can.Bar Rev. 610, 631. It might be noted, however, that Canadian
“courts have shown an impressive conservatism over the years in considering
requests for declaration alone”: See Reid, supra, note 47, 398-99.
128 [1972] F.C. 171, 178.
19761
THE TRIAL DIVISION OF THE FEDERAL COURT
functions of a purely administrative nature –
the function was simply informative or investigatory.12 9
for example where
In Landreville v. The Queen,130 the Trial Court noted that it is
common ground to grant declaratory relief in an action brought
against the Crown or the Attorney-General.’3 1 In the same case,
Pratte 1. held that the Court has jurisdiction to make a declaration
which, though devoid of any legal effect, would from a practical
In holding this,’133
point of view, serve some useful purpose. 32
the Court followed Merricks v. Nott Bower.14
The issue of whether or not declaratory relief is available
where the action might be attacked by some other writ or in some
other forum under a statutory procedure has received some con-
sideration in the Federal Court- In Canadian Radio-Television Com-
mission v. Teleprompter Cable Communications Corp., the Court of
Appeal upheld the power of the Trial Division
… to grant declaratory relief [even] … where [a] statute governing the
particular matter provides a special procedure in another court in which
the question involved might arise.’ 35
In deciding that “preliminary point”,”56 the Court of Appeal followed
the decision of the House of Lords in Ealing London Borough
Council v. Race Relations Board. 37 It was held in that case that
the mere fact that a statute contained provisions governing the
procedure for enforcement 38 of the Act did not oust the jurisdiction
of the superior court to grant declaratory relief.
In Cavanaugh v. Commissioner of Penitentiaries,39 the Trial
Court was confronted with an application for declaratory relief, the
129 Ibid., esp. 176 and 178.
130 [1973] F.C. 1223.
131 Ibid., 1227-28. See also Canadian Radio-Television Commission v. Tele-
prompter Cable Communications Corp., supra, note 22. Prior to the Federal
Court, declaratory relief issued against the Attorney-General. See, e.g., Shawn
v. Robertson [1964] 2 O.R. 696.
1a2 Ibid., 1230.
“3 In Canada, declaratory relief has been refused where it would have no
practical effect: See Charleston v. MacGregor (1958) 11 D.L.R. (2d) 78.
’34 [196411 All E.R. 717.
’35 [1972] F.C. 1265, 1267 (emphasis added).
136 Ibid., per Thurlow J.
’37 [1972] 2 W.L.R. 71.
138 Civil proceedings in respect of any act alleged to be unlawful were
authorized under s.19 of the Act and were to be brought by the Race Relations
Board in a county court. In Ealing, however, the Borough Council sought a
declaration in the High Court that ome of their rules was not unlawful; ibid.
“‘9 [1974] F.C. 515.
McGILL LAW JOURNAL
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substance of which, it was determined, was identical to that obtain-
able by a writ of habeas corpus.14 Feeling bound by In re Darby,14
Cattanach J. refused to grant the relief sought in the statement
of claim.”4 2 A cursory reading of certain passages in the judgment
of Mr Justice Cattanach might well leave the impression that the
Court decided against granting a declaration because precedent
dictated that where habeas corpus is equally suitable, declaratory
relief will not be granted. That, however, is not quite a correct
reading of the case. Firstly, In re Darby involved an application
for habeas corpus and not declaratory relief. Habeas corpus was
refused because the applicant was legally imprisoned pursuant to
convictions made and sentences imposed by a court of competent
jurisdiction and the certificate of conviction was found valid on
its face.143 Secondly, attention must be paid to the clear words
of CattanachJ. in a subsequent judgment:
Elsewhere I have expressed doubt that I have jurisdiction to determine
a matter by way of declaratory relief which is also the proper subject
matter of an application for a writ of habeas corpus which is within the
inherent jurisdiction of the common law courts. I still entertain that
doubt but I do not purport to decide that question.44
While in Canada there is the additional issue of the appropriate
forum, 145 the words of E.M. Borchard have considerable merit:
[I]t ought to make [no] difference to judges through which door the
petitioner enters the judicial forum, provided he is lawfully there and
the court is in a position to grant him relief.’46
To that, one can add the words of Professor de Smith:
To treat the action for a declaration as an unwelcome intruder which
must be kept in place by pettifogging restrictions would be inimical to the
healthy development of administrative law… .147
140 Ibid., 521-22.
141 [1964] S.C.R. 64.
142 Supra, note 139, 522.
143 Those circumstances were similar to the ones in Cavanaugh v. Com-
missioner of Penitentiaries, ibid.
144 Johns v. Commissioner of Penitentiaries [1974] F.C. 545, 550 (emphasis
added).
145 1n Canada, the provincial courts have habeas corpus jurisdiction; see
text, supra. A statutory federal court has jurisdiction to issue declaratory
relief as it relates to federal boards and tribunals.
146 Declaratory Judgments 2d ed. (1941), 318. A similar view has been ‘ex-
pressed by Riley J. in Driver Salesmen v. Board of Industrial Relations (1967)
61 W.W.R. 484.
147 de Smith, supra, note 45, 460. In the same paragraph de Smith notes that
in Britain “it is abundantly clear that the availability of an injunction does
not preclude the court from awarding a declaration; and for most purposes
the decision of statutory tribunals may be impugned by means of an action
for a declaration even where certiorari would lie”.
19761
THE TRIAL DIVISION OF THE FEDERAL COURT
Some concluding remarks
Conservative approach
It appears that despite expectations to the contrary, the Trial
Division has decided, in these early years of its existence, to tread
softly in exercising its power of review. While the Federal Court
Act itself does not attempt to limit the scope of the traditional
remedies or compel the Trial Division to issue those remedies in
accordance with “a meaning given by the courts in any other juris-
diction”,148 the Trial Court has nevertheless shown a definite predis-
position to apply widely accepted general principles, and, on occasion,
to prefer those which are outdated and conservative. 149 Perhaps that
is to be expected from a court which has “suddenly” received
jurisdiction to review 150 administrative action.
It is well known of course, that in the field of administrative
law predating the Federal Court there may be found a whole series
of decisions which indicate a limited pattern of judicial supervision,
and another generally quite separate set of cases which support
a broader review of the actions and decisions of inferior tribunals.’ 51
At another level, it may be said that some jurisdictions have adopted
grounds of review which are generally broader than in others. 152
Indeed, here and there throughout the reams of reported judgments
are a considerable number of examples in which the extraordinary
remedies have provided a pattern of review which has sometimes
been as broad as that available in an appeal on the merits’ 5 3
148 G. F. Henderson, supra, note 11.
149 See, e.g., National Indian Brotherhood v. Juneau [No. 3], supra, note 26,
concerning the type of decision against which certiorari might issue; and
Filion v. The Queen, supra, note 119, as to when an injunction might issue.
150″Review” is used here in the narrow sense to refer to supervisory
control by way of the extraordinary remedies.
151 Compare R. v. Metro Police Commissioner, Ex parte Parker [1953] 1
W.L.R. 1150 and Nakkuda Ali v. Jayaratne [1951] A.C. 66 (P.C.) with British
and Canadian decisions where certiorari has issued to quash the decisions of
license-granting authorities for failure to hold a hearing.
152 Compare Kettenback Farms Ltd v. Henke [1938] 1 D.L.R. 44 (Alta C.A.)
with Credit Foncier Franco-Canadien v. Board of Review [1940] 1 D.L.R. 183
(Sask.) as to the issuance of declaratory relief.
153 Bora Laskin has written: “An examination of the cases discloses that the
courts treat certiorari to labour boards as if they were sitting on appeal from
the verdict of a jury”; in Certiorari to Labour Boards (1952) 30 Can.Bar Rev.
986, 994. We add the remarks of Professor Hogg: “In brief, the [Supreme]
Court has used the jurisdictional fact doctrine to substitute its opinion for
that of the agency on matters which … were peculiarly within the competence
of the agency. It has used the doctrine as a kind of underground appeal when
McGILL LAW JOURNAL
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Moreover, this has occurred periodically in cases involving ad-
ministrative acts. 54
The Trial Court is feeling its way slowly into this varied
plethora. So far, as suggested, it seems to have adopted those
decisions that exemplify a rather conservative notion of supervisory
review. It is, of course, difficult to say whether or not the Court
with time and experience will become less “cautious” and lean
towards a broader review pattern. Should it some day decide to
branch out into more adventuresome pathways, it will still be
able to garner support from a number of respected authorities.
Background of judges
It is logical, however, that in the issuance of the extraordinary
remedies in these first few years, the Trial Division should prefer
well worn pathways to blazing a trail of its own. For the most part,
the judges of the new Court are former members of the Exchequer
Court of Canada. As members of that statutory court, they acquired
an expertise in keeping with the particular area of law they were
empowered to administer. And while it is true that the Exchequer
Court was involved periodically in the administrative process through
the statutory appeal route,15 5 it was never involved in the super-
vision of federal administrative boards and tribunals by way of
the extraordinary remedies.” 6 Thus, like the wise man ploughing
through unknown fields, the Trial Court has followed a cautious
approach and generally adhered to well tried, widely accepted
principles.
Effect of empowering statute
Indeed, even if there were among the justices a few more
adventurous souls, it may be said that the Federal Court Act –
the empowering statute –
does little to encourage, or even guide
and assure those seeking to innovate. Section 18(a) gives the
Trial Division “exclusive original jurisdiction” to issue the various
no appeal had been expressly provided”; P. W. Hogg, The Supreme Court of
Canada and Administrative Law (1973) 11 Osgoode Hall W. 187, 205.
154 See Hogg, ibid., 207.
155 For example, the Excise Tax Act, R.S.C. 1952, c.100, s.58 granted an
appeal, strictly on questions of law, from decisions rendered by the Tariff
Board; the Trade Marks Act, S.C. 1953, c.49, s.56 conferred on the Exchequer
Court of Canada specific power to substitute its discretion for that of the
tribunal created by the same statute.
156 Henderson, supra, note 11, 58.
19761
THE TRIAL DIVISION OF THE FEDERAL COURT
writs and remedies. No attempt is made in that section or in any
other section either to instruct the new Court as to its jurisdiction
in issuing those remedies or to define the scope of the terms. It
could be said that failure to include that kind of provision has left
the door open for considerable judicial discretion and innovation.
On the other hand, the total lack of guidelines also presents a
rather frightening prospect, especially to the judicial mind long
accustomed to the stare decisis principle and only familiar in a
general way with the new field in which it must adjudicate.
Furthermore, there are at least two other provisions in the
Act which also seem to dampen any innovative aspirations on the
part of the Trial Court –
section 28(1) and section 27. Section
28(1) goes to some length in setting out the original supervisory
jurisdiction of the Federal Court of Appeal with reference to a
federal board, commission or other tribunal. Indeed, as stated
at the beginning of section 28, the entire section applies “notwith-
standing section 18 or the provisions of any other Act”. Section
28(3) makes it clear that
… where the Court of Appeal has jurisdiction under [the] section to
hear and determine an application to review and set aside a decision or
order, the Trial Division has no jurisdiction to entertain any proceeding
in respect of that decision or order.157
It is obvious, therefore, that it was the intention of the draftsmen
to put the lion’s share of the supervisory power in the hands of the
Appeal Court,158 in itself a rather unique endeavour –
the placement
of original jurisdiction in a Court of Appeal. As one might expect,
”an appeal lies to the Federal Court of Appeal from any (a) final
judgment, (b) judgment on a question of law determined before
trial, or (c)
judgments of the Trial Division”.”‘
The kind of structure and statutory framework just outlined
does not encourage those in the Trial Division to be innovative.
Indeed, it can be said that even the hardier “activists” might be
deterred by the seeming futility of attempting to introduce substan-
interlocutory
157It must be understood that in order for the Court of Appeal to acquire
its supervisory power, the jurisdiction of the Trial Division with reference to
the same boards, commissions and other tribunals must in some way be
equal to or less than that available under the provisions in s.28(l). In this
regard see LaskinC.J. in Puerto Rico v. Hernandez [1975] 1 S.C.R. 228,
247-48.
1581PigeonJ. in Puerto Rico v. Hernandez, ibid., 234: “…
section 28 in
effect provides that the supervisory jurisdiction of the Federal Court is
generally to be exercised not by the Trial Division … but by means of a
new remedy [in the Court of Appeal].”
159 Federal Court Act, supra, note 2, s.27(l).
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tive (supervisory) innovations that may be appealed to the Court
of Appeal, a Court which itself has original jurisdiction in somewhat
the same area, but which does not acquire that jurisdiction unless
its statutory power to review equals or exceeds that in the lower
court.
The commendable aspects of the conservative approach
From another point of view, however, the practice adopted
by
the Trial Division to issue the traditional remedies along
rather conservative lines has something to commend itself. For
legal counsel long accustomed to arguing the merits of a case on
application for one of the remedies in the provincial superior
courts, the approach taken by the Trial Division is a blessing.
While the name and place of the judicial forum have changed as
have some of the procedural rules, on substantive matters the
expertise acquired through long hours of precedent finding and
analysis is still applicable and can be put to good use. Those who
are fearful that a new court with “unqualified” jurisdiction to
review might undermine the original purpose and function of
administrative agencies, now have little to be concerned about –
at least not from the Trial Division.
One also wonders if the Trial Court, by adopting a conservative
approach, has not been at least partly responsible for helping to
establish in the minds of lawyers and judges throughout the nation
the idea that responsibility for supervision of federal administrative
agencies now rests with a federal court. 1 0 Prior to 1971, judicial
control of federal boards and tribunals –
at least, under the
extraordinary remedies –
rested in the first instance with the
provincial superior courts. Indeed, one of the main reasons given
by the Dominion Government for granting supervisory jurisdiction
to the new Federal Court was to wrest federal administrative
agencies from the “diverse jurisdictions of the various provincial
courts” “‘ and to free them from the possibility of “multiple su-
100 Some doubt has been raised as to whether the Dominion Parliament
under the B.N.A. Act is empowered to oust the inherent jurisdiction of the
provincial superior courts to supervise, by way of the traditional remedies,
inferior tribunals created by Parliament. What is being considered by the
writer, however, is the possible “psychological” effects of the approach taken
by the Trial Division in exercising its supervisory powers. It is not being
suggested, though, that the Court considered such effects or deliberately set
out to produce them.
101 Words used by the then Minister of Justice, the Honourable Mr John
Turner, Debates House of Commons Canada, 2d Sess., 28th Parl., vol. V,
March 25, 1970, 5470-1.
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THE TRIAL DIVISION OF THE FEDERAL COURT
pervision” and harassment. 16 2 If the Trial Division had embarked
on a novel course in exercising its review power, three distinct
supervisory patterns might have been perceived:
the traditional
one in the provincial courts, another in the Trial Division of the
Federal Court and a third in the Federal Court of Appeal. While
the Trial Division has not settled any constitutional questions by
embracing generally widely accepted supervisory principles, it has
certainly facilitated the crystallization of a general “understanding”‘
that the power of judicial supervision of federal agencies by way
of the extraordinary remedies is now in a federal court.1 3
Accounting for the Court’s few “indiscretions”
In examining the judgments of the Trial Court, the reader
may have noticed once or twice among the cautious, traditional
statements a rather bold phrase or holding. Some parts of the
Millward 164 and Dart 16 decisions fall into this category. In the
writer’s view, however, these are not deliberate attempts designed
to help establish new or obscure principles of review, but are little
more than statements of busy, not yet fully experienced men, 16
trying to adjudicate in a remarkably confusing and complicated
area of law. But let us not despair at this possibility. Constructive
change has many sources, and is not always the result of well
reasoned, rational planning. Indeed, to be totally honest, one might
have to admit that the origin of a number of now cherished rules
in administrative law can be traced to nothing more than the
improper use of terms and a limited understanding of complicated
concepts by men of limited capacity struggling to do their best in
the adjudicative process.
162 Professor H. W. Arthurs discusses “two virtually identical actions” in
different jurisdictions against the Restrictive Trade Practices Commission;
Comment on Administrative Law (1962) 40 Can.Bar Rev. 505, 506.
l6 3 See Ctiy of Hamilton v. Hamilton Harbour Commissioners (1972) 27
D.L.R. (3d) 385 where the Ontario Court of Appeal held that Ontario courts
no longer had any jurisdiction in a matter where declaratory relief was
sought against a federal board. -The question of constitutionality was not
raised. See also Ex parte Hinks (1972) 27 D.L.R. (3d) 593; Re Greene and Faquy
(1972) 28 D.L.R. (3d) 297; and Puerto Rico v. Hernandez, supra, note 157, 233
per Pigeon J. and 248 per Laskin C.S.
16 4 Supra, note 69.
165Supra, note 91.
116That is, “inexperienced” in exercising a, supervisory jurisdiction over
federal administrative agencies by way of the extraordinary remedies.
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Sounding a note of caution
Before concluding our remarks, a note or two of warning and
caution should be sounded:
(1) The Miliward decision
Once again, attention is drawn to the remarks made by Chief
Justice Jackett in Danmor, pointing to the real possibility of a party,
reluctant to have a tribunal render a final decision, frustrating the
work of that tribunal by approaching the Court of Appeal to
question each and every interim determination of the tribunal.
Similarly, if interim rulings could be attacked by way of certiorari
in the Trial Division –
there would arise some equally difficult problems and questions,
for example:
(a) May all interim determinations be attacked by way of certiorari?
as the Millward case seems to suggest –
Which ones may not?
(b) May an interim determination be quashed after a final decision
is given? Or only before a final decision is rendered?
(c) Must a tribunal stay its proceedings while an interim de-
termination is questioned in the Trial Division?
(d) Where a tribunal has a statutory discretion to refuse an ad-
journment (to permit a party to question an interim determina-
tion), and the inquiry is therefore concluded before the Court
is able to issue an order quashing the interim ruling, can
certiorari still issue? What would be the effect of such a court
order?
The list of such questions is endless and each question itself begs
supplemental ones. And there is perhaps an even more fundamental
and broad question to be considered: namely, the impact that
the practice of attacking interim rulings by way of certiorari in
the Trial Division might have in curtailing the major role foreseen
for the Court of Appeal in exercising a supervisory jurisdiction
over federal boards and tribunals.
(2) Certiorari review or “application to review”?
The possibility of creating a situation whereby counsel for the
plaintiff cannot easily determine which forum to approach for
7 It has been suggested by this writer in
relief is also of concern. 1
6
167 One wonders if the Federal Court may not have foreseen such a possibility
and tried to mitigate some of its adverse effects by way of Rule 359. That
Rule permits the “Chief Justice or another judge designated by him for the
purpose … if it appears just to do so, having due regard to the interests of all
1976]
THE TRIAL DIVISION OF THE FEDERAL COURT
another, article168 that while there is no definitive ratio on the
point, it appears that certiorari as lit applies to decisions of federal
tribunals rendered after the Federal Court Act came into force is
no longer available in the Trial Division.69 The thesis is essentially
this: The scope of review for an “application to review” under
section 28(1) is so extensive1″ that there, is no widely recognized
common law principle not -covered by section 28(1)
that would
permit the Trial Division to maintain at least some of its certiorari
jurisdiction under section 18.Y” But we must remind ourselves that
under section 28(1) the Court of Appeal does not have power to
supervise a “decision, or order of an administrative nature not
required by law to be made on a judicial or quasi-judicial basis”. 2
Apart from the Miliward case which seems to suggest some
interesting p6ssibilities for certiorari, there is also a remark by
Chief Justice Laskin in Puerto Rico v. Hernandez that might be
construed so as to help “restore” some of the certiorari jurisdiction
of the Trial Division. In that case, Laskin, C.J. noted that the
Trial Division has supervisory jurisdiction over “federal administra-
tive agencies, although without limitation to agencies of ‘a judicial
or quasi-judicial nature” ‘1 3 and that the Court of Appeal has
jurisdiction only “over decisions of judicial or quasi-judicial federal
boards, commissions or other tribunals”.74 ‘
If section 28, then, applies to “decisions of judicial or quasi-
judicial federal boards, commissions or tribunals”, it might be
the parties, order that a matter that has been commenced in one Division be
transferred to the other Division, and [also] give incidental direction for the
further conduct of-the matter”.
108 Judicial Review Under Sections 18 and 28 of the Federal Court Act,
supra, note 16.
1G9 Refer again to the clear words of Thurlow J.A. in Creative Shoes Ltd v.
M.N.R., supra, note 18.
171 In Puerto Rico v. Hernandez, supra, note 157, 247, Laskin CJ. ‘said:
“Application for review under s.28(1) having regard to the wide grounds of
review do not differ materially from appeals .. .”. In the same. case, Pigeon J.
said: “While to a certain extent [section 28 review] is a substitute for pre-
viously existing remedies before other courts, it is obviously much broader in
scope’ (at 237).
171See again the opening words of s.28(1) and also s28(3), which clearly
“displace” the supervisory -jurisdiction of the Federal Court where the Court
of Appeal has jurisdiction.
1 2For a “rational interpretation” of that phrase see D. J. Mullan, The
Federal Court Act: A Misguided Attempt, at Administrative Law Reform?
(1973) 23 U. of T. L.J. 14, 29, note 57.
1’3 Puerto Rico v. Hernandez, supra, -note 157, 248,
1 1.
17/4 Ibid., 247.
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successfully argued, if premises are not arbitrarily changed, that
certiorari in the Trial Division (based on common law principles)
is available against administrative 1″ federal boards, commissions
and tribunals whose decisions affect the rights of individuals. In
that event, the jurisdiction of the Trial Division with reference to
certiorari would not have been eroded and replaced to the extent
that the writer has suggested elsewhere. Of course, all of this would
depend on what understanding the courts have of an “administrative
board”. It might well be that a board exercising a function that
would terminate in a decision affecting an individual’s rights would
always be classified as a judicial or quasi-judicial board. For the
moment, of course, this is all speculation. The Supreme Court of
Canada has not heard prepared argument nor fully applied its
mind to the specific issue. It has been the writer’s purpose, however,
to note some of the difficulties involved in giving a broad in-
terpretation 176 to the expression “decision or order of an administra-
tive nature not required by law to be made on a judicial or quasi-
judicial basis”, in that the door might be -left open for certiorari
review, in a few instances at least, under the common law principles.
And that in turn would place litigants and their counsel in the
unfortunate position of having to decide which is the appropriate
forum to approach for relief .77
1751For a brief comment on the terms “judicial” and “administrative”
in
the Federal Court Act see Mullan, supra, note 172, 30, note 57.
176 If a broad interpretation were given to “administrative decision not
required by law to be made on a judicial or quasi-judicial basis” then a larger
number of decisions might not be reviewable in the Court of Appeal than if a
narrow interpretation were given it. Of course, the larger the number of
decisions not reviewable in the Court of Appeal, the greater the chances that
at least some of those decisions might be reviewed under the previous
common law rules and fall under the supervision of the Trial Division.”
177Some of the problems associated with that type of a situation are
dramatically illustrated in one of the first few cases before the new Court –
National Indian Brotherhood v. Juneau [No. 1], supra, note 106. In that case
the Brotherhood and some other interested parties applied to the Trial
Division for writs of mandamus and certiorari to compel the C.R.T.C. to hold
a public hearing into their complaint. Noting that the Brotherhood had
also proceeded under s.28 to set aside the same decision, the Trial Court
Judge refused to consider the merits of the application before him until the
Appeal Court had rendered a decision as to its own jurisdiction in the matter.
