19771
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Certiorari in the Federal Court and Other Matters:
A Reply to the “Addendum”
I have read with some interest Mr Evans’ Addendum1 to my
article2 on conservatism in the Trial Division of the Federal Court
which has appeared in your Journal. Contrary to what a reader might
think upon a quick glance at the Addendum, Mr Evans and I are in
agreement on a number of crucial points. For example, there is
essentially no difference of opinion as to my thesis that the Trial
in
Division has taken a rather cautious, conservative approach
carrying out its judicial review mandate. Indeed, it is perhaps
significant that there could be found in the judgments I considered
up to about mid-1975,3 sufficient material indicating a propensity
on the part of the Court, considered as a whole, to walk softly and
blaze no new trails in its new area of jurisdiction. After considering
some of the cases reported since that time, Mr Evans has also
sensed that same lack of adventure on the part of the Trial Court.
He concludes that “it is difficult to find in the jurisprudence of the
Trial Division of the Federal Court a fertile source of principled
doctrinal innovation”. 4
Mr Evans and I are also essentially in agreement on three
major points raised in my article. First, the statutory power of
judicial review as set out in the Federal Court Act 5 is not a good
example of draftsmanship in that (a) it is generally confusing and
ambiguous, and (b) it incorporates difficult and troublesome con-
cepts from prior case law. Secondly, the granting of original jurisdic-
tion to each of the two leVels of the Federal Court in the area of judi-
cial review leads to problems and, as Mr Evans suggests, may be un-
justifiable. And thirdly, as they relate to administrative decisions
1 See The Trial Division of the Federal Court: An Addendum
(1977) 23
McGill L.J. 132.
2 See Conservatism in the Supervision of Federal Tribunals: The Trial Di-
vision of the Federal Court Considered (1976) 22 McGill L.J. 234 (hereinafter
referred to as the Conservatism essay).
3That was the approximate date of writing. As both authors and readers
are aware, even among the most proficient and competent journals there
often arises a gap of several months to more than a year between the time of
-writing and the time of publication.
4 Supra, note 1, 143.
G R.S.C. 1970 (2d Supp.), c.10.
McGILL LAW JOURNAL
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made before June 1, 1971,6 the full panoply of remedies (including
certiorari) was available in the Trial Division of the Federal Court.
There are, however, in Mr Evans’ Addendum statements that
seem to inaccurately reflect what was written and documented in
my Conservatism essay. With these I would like to take issue.
Does the Trial Division Have Certiorari Jurisdiction?
Mr Fera’s statement, that certiorari has issued from the Trial Division
only against decisions made during the transitional period, requires some
qualification. 7
It is made clear at the outset of my Conservatism essay that the
central thesis would be supported mainly by examining “the grounds
on which the [extraordinary] remedies [had]” so far issued from
the Trial Court”.8 And later, in considering the writ of certiorari, I
wrote that “certiorari, as it applies to decisions made after June 1,
1971, may not be available in the … Trial Division. So far, that
remedy has issued from the Trial Court only against decisions made
before that date”.9 That was a totally accurate statement when
written and significantly, notwithstanding a number of decisions
since, that still appears to be a correct assessment of the matter
at the time of this writing. All of that will be considered shortly in
full detail.
However, I would like to first mention that even in my article
I was able to point to some interesting possibilities for certiorari
in the Trial Division that might eventually cast “doubt on the asser-
tion that the certiorari jurisdiction of [that Court] is … virtually
defunct”. 10 For instance, I noted that in Millward” Cattanach J.
“was explicit in holding” that “the Trial Court… had jurisdiction
to consider quashing the Board’s ruling not to hold the inquiry in
camera and not to grant adjournment”. 12 But that case must be
considered carefully and the reader cannot overlook the fact that
the learned Judge, in his judgment, was not particularly clear as to
the specific writ or remedy he had in mind when considering the
court’s jurisdiction as related to those determinations. 13 In the final
I In his Addendum Mr Evans refers to that period as the transitional period.
7 Supra, note 1, 137 (italics added).
8 Supra, note 2, 236 (italics added).
9 Ibid., 238 (italics added).
‘IoSupra, note 2, 238.
” Millward v. Public Service Comm. [1974] 2 F.C. 530.
12 Supra, note 2, 245.
13 Millward, supra, note 11, 531-32.
19771
COMMENTS – COMMENTAIRES
result, Mr Justice Cattanach found the rulings of the Board valid
and dismissed the application for declaratory relief, along with
the request for relief by way of certiorari, prohibition and mandamus.
More definitively, there is at the trial level the decision in Union
Gas Ltd v. Trans Canada Pipe Lines Ltd.14 In the Federal Court,
Mahoney J. held that certiorari was inappropriate to review interim
determinations such as those dealing with whether a board should
receive further evidence or permit cross-examination of witnesses on
broader subjects. Significantly, in the common law pre-dating the
Federal Court, it is difficult to find judicial authority to justify the
issuance of certiorari to quash determinations15 similar to those’
in Millward and Union Gas. Indeed, the reasons for such judicial
reluctance are compelling.’ Chief Justice Jackett warned in Danmor
Shoe17 of the dangers inherent in allowing a party to challenge
separately each and every position taken by a tribunal in the course
of a long hearing. In that case the applicant was attempting to
impugn a “declaration””‘ by the Tariff Board that it did not have
jurisdiction to review the validity of certain “prescriptions” and
also a “ruling”’19 of the Board not to receive certain evidence. Thus,
the remarks of the Chief Justice as they relate to the possible frustra-
tion of the Board’s decision-making process were in connection with
an application to attack the type of procedural determination that
arose both in Millward and Union Gas.
Nonetheless, Mr Evans warns against finding any inconsistency”
between the views expressed in Millward at the trial level and
Danmor heard in the Court of Appeal. He writes:
For one thing, the grounds of review of decisions under section 28 are
broader than under the common law remedies. 21
That may be so. But as this point in time we cannot be sure. There
is, of course, dicta to the effect that there is now “a heretofore
14 [1974] 2 F.C. 313.
15 That point noted in Union Gas, ibid., 324 and in Re Toronto Newspaper
Guild and Globe Printing Co. [1950] O.R. 435.
IGDiscussed in some detail supra, note 2, 245-46 and 260-61.
“‘In re Anti-dumping Act & In re Danmor Shoe Co. [1974] 1 F.C. 22.
18 That word used in Danmor Shoe, ibid., 26.
19 Ibid.
20 That is essentially the phraseology Mr Evans uses. In my Conservatism
essay, I suggest that the views expressed by Cattanach J. in Millward as they
might refer to the use of certiorari in the Trial Division to quash interim
determinations may not be particularly significant in light of the views of
Jackett C.J. expressed in Danmor against review of such determinations.
21 Supra, note 1, 140-41.
McGILL LAW JOURNAL
[Vol. 23
unknown and non-existent right of review” 22 and that it is, as Mr
Evans puts it “analogous to an appeal”. But that tells us very little.
First, as is well known, the grounds of appeal are often quite narrow
and even where a general right of appeal may be found, the courts
have sometimes demonstrated a certain reluctance in spite of it.2A
Furthermore, given the restrictions of the section 28 application
(it must be a “decision or order” and a certain kind of administrative
decision, . . . if at all2 4 ) one might well wonder whether the statutory
review is really broader 25 The grounds of review themselves may add
little to widening the review process. For example, section 28(1) (a)
seems totally in line with prior principles, and while section 28(1) (c)
may have some potential for broadening the scope of review, it is
difficult at this time to find a case where it has been used other
than in applying the no-evidence rule. There is, however, section
28(1) (b) which unambiguously provides for review on grounds not
formerly permitted; it allows certain decisions or orders to be set
aside if the tribunal in making them erred in law whether or not
the error appears on the face of the record.
But, conventional wisdom aside, I am aware of no comprehensive
study outlining the practical ramifications, if any, of review for
error of law whether or not on the record as against review for such
errors only if apparent on the face of such record. Indeed, it may
merely appear to grant wider grounds for review which are in fact
of little or no final practical consequence. In examining that hypo-
thesis, a researcher would have to keep in mind, among other
things,26 the definition previously given by the courts to “the re-
cord”,- the use of declaratory relief for all errors of law28 and the
22 Blais v. Basford (1972) F.C. 151, 162.
23 In that regard see e.g., Union Gas Co. v. Sydenham Gas & Petroleum Co.
[1957] S.C.R. 185 or Re Caswell & Alexandra Petroleums Ltd (1972) 26 D.L.R.
(3d) 289 (Alta C.A.).
2 4 In that regard see the remarks of Laskin C.J. in Puerto Rico v. Hernandez
[1975] 1 S.C.R. 228, 247.
25 That is to say, broader from an intelligent reading of what has been
enacted under section 28 of the Act. I am currently in the process of assessing
the decisions based on that section and as a tentative conclusion at this time
there is very little in the case law to suggest a broadening of the review
process beyond that which has been traditionally accepted.
26 1 do not here wish to examine all the possible arguments for the postulate,
but it is well known that the courts have shown much vacillation as to what is
the record and what constitutes jurisdictional error. Indeed, often it is
difficult to control the urge to say that the reasoning in the cases dealing
with such matters is result-oriented.
27The record has sometimes been defined rather broadly. See Reid,
28Discussed by Zamir, The Declaratory Judgment (1962), 157-66.
Administrative Law and Practice 3d ed. (1971), 367.
19771
COMMENTS – COMMENTAIRES
broad definition which has sometimes been given to “jurisdictional
error” so as to make it difficult to envisage errors that might not be
caught by that ground of review. 9 Further, if review for non-
jurisdictional error, whether or not on the face, were to be res-
tricted (as is error of law on the face30 ) only to errors affecting
the practical result of the hearing, there would also arise as a
result less scope for divergence between the “two” grounds of
review.
But assuming that section 28(1) (b) does provide broader grounds
of review, the question, equally relevant to Mr Evans’ remarks,
is whether such a broader ground would have much bearing in the
review of interim determinations. An answer to that question is
crucial if we accept Mr Evans’ assertion that the remarks of the
Chief Justice in Danmor Shoe have little or no relevance to what
Cattanach J. may have intended in Millward because, among other
reasons, the grounds of review under section 28 are broader than
those available under the common law remedies and in the words of
Mr Evans “should be used sparingly”.2′
Next, consideration will be given to the four cases Mr Evans
puts forward to qualify the assertion that certiorari has issued from
the Trial Division only against decisions made during the transitional
period, i.e. prior to June 1, 1971 when the Federal Court Act was
brought into force.32 The primary case cited in his Addendum is Re
MacDonald.33 Upon first reading, one can readily be convinced that
certiorari issued from the Trial Division; even the headnote says it
did. But that is not so.
In Re MacDonald a declaratory judgment, so called, 4 was origin-
ally sought, i.e. “a declaration as to the proper statutes to be applied
and the interpretation thereof, to the gentences being served”. 35 But
the applicant erred in commencing proceedings by way of an origin-
29 See e.g., the scope Lord Reid would give to jurisdictional error in
Anisminic [1969] 2 A.C. 147, 171. See also Reid, supra, note 27.
30 See, e.g., Sturgeon Mun. Dist. v. Alta Assessment Appeal Board [1971] 3
W.W.R. 185 or possibly Mountain Pac. Pipelines Ltd v. Can Hydrocarbons Ltd
(1965) 54 W.W.R. 693 (Alta).
31 Supra, note 1, 141.
32S.28(3) of that Act applies to oust the jurisdiction of the Trial Division
of the Federal Court where the Court of Appeal has jurisdiction under s.28
with reference to certain types of decisions made after the Federal Court
Act was proclaimed in force.
33 [1975] F.C. 543 (T.D.).
34 Those words may be important at that point to grasp fully the sequence
35 Those words used in the original “originating notice of motion”.
of events in the case.
McGILL LAW JOURNAL
[Vol. 23
ating notice of motion under Rule 319 (and following) rather than
by instituting an action under Rule 400. Caught in a procedural
trap, the applicant with the consent of the respondent, amended the
originating notice of motion and sought instead “an order in the
nature of certiorari”. The inspiration for that order3 may have
come from section 18(b) of the Federal Court Act which gives the
Trial Division jurisdiction “to hear and determine any application
or other proceeding for relief in the nature of relief contemplated
by … [18(a)]” which in turn gives the Trial Court jurisdiction to
issue injunctive or declaratory relief, prohibition, certiorari and
mandamus.
In the end, Mahoney J. made the “declaration” that was originally
sought,37 to the effect that the applicant was taken into custody on
July 13, 1974. Significantly, in his judgment, there is no discussion
of the grounds upon which certiorari issues and no question of
whether it is available in the Trial Division. In fact, there is no
issue of “review or quashing of any order or decision” 8
In short, in Re MacDonald, certiorari per se was never sought
and was never granted. In the words of the unanimous Court of
Appeal:
The claim, as amended.., remained, in its true character, a claim for a
declaration. And the judgment appealed from was a response to this
claim.3 9
Also, on appeal, the parties disclaimed any reliance on procedural
error at the trial level and united in a quest for judgment on the
merits. The appeal was allowed and the Court “substitute[d] a de-
claration that Sept. 3, 1974 is the date upon which the respondent
was committed to penitentiary…-.40
In the Addendum, Mr Evans next proceeds to point out cases
which have come to his attention in which the Trial Division showed
itself willing, if the grounds were established, to grant certiorari
36 In the notice of motion, s.18 was not qualified or restricted to s.18(a).
Ryan J. in the Federal Court of Appeal notes that “the proceedings in the
Trial Division were commenced by an originating notice of motion under
section 18 of the Federal Court Act”. See National Parole Board v. MacDonald
[1976] 1 F.C. 532, 533 (C.A.).
37 That is what was held by the Federal Court of Appeal in MacDonald, ibid.,
533. That ruling is obviously consistent with the nature of the order made by
the Trial Division, namely, the enunciation of a date on which the applicant
was supposedly incarcerated.
3 8MacDonald (C.A.), supra, note 36, 533.
39 Ibid.
40 Ibid., 538 (italics added).
1977]
COMMENTS – COMMENTAIRES
relief. For example, he submits that in Royal American Shows Inc.
v. M.N.R.,41 Gibson J. was prepared to accept the notion that cer-
tiorari might issue from the Trial Division to review the legality of
a physical act, rather than a decision.
First, as Mr Evans recognizes in his Addendum, that novel pro-
position is unsupported by previous authority. But apart from that,
in his judgment, did Mr Justice Gibson make or intend to make a
distinction between the decision and the act? More importantly,
did he see certiorari as the appropriate remedy in the Trial Division
to attack one or the other? A careful consideration of his decision
may indicate a negative response to both questions.
Royal American Shows applied to the Trial Division for prohibi-
tion, certiorari and an ancillary order,- as well as for a declaration.
Shortly after, the respondent, the Minister of National Revenue,
proceeded to the same Court for an order to dismiss the application
on the following grounds:
(1) That neither the respondent (M.N.R.) nor the person effecting
the seizure (Mr E.M. Swartzack) were a federal board, com-
mission or other tribunal within the meaning of section 18 of
the Federal Court Act.4 3
(2) That if the person effecting the seizure was such a tribunal, the
Trial Division had no jurisdiction to hear the proceedings by
reason of section 28 of the Act.”
(3) That the proceedings were against the wrong party.4 5
(4) That any proceedings against the respondent (M.N.R.)
Trial Division must be instituted by way of an action.40
in the
(5) And that the seizure of the subject matter here was an ad-
ministrative act and therefore not subject to review under
41 [1976] 1 F.C. 269 (T.D.).
42 That seems to have been a request for an order directing the respondent
to deliver up to the applicant all the property seized. I have garnered that
from a perusal of the actual file of the case in the Court Registry and from
the remarks of Gibson J. in Royal American Shows, ibid., 270.
43 Royal American Shows, ibid., 270.
“4Ibid., (c), In rejecting this ground for dismissal, here is the entire text
of the Court on point: “Thirdly, I am also of the opinion that the Court of
Appeal of the Federal Court has no jurisdiction in the first instance under
section 28 of the Federal Court Act in relation to the subject proceedings.
(Cf. Attorney-General of Canada v. Cylien [1973] F.C. 1166 and Howarth v.
The National Parole Board [1973] F.C. 1018.)” (at p.272).
45Ibid., 270 (d and e).
46Royal American Shows, ibid., 270(f).
McGILL LAW JOURNAL
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section 18 of the Federal Court Act or any other provision of
the Act.4t
The Court, for the most part, confined itself to the issues and
dealt with them summarily in rejecting all grounds for dismissal.
However, in reaching its conclusion on whether or not the matter
was administrative in nature, the Court did offer two short para-
graphs of explanation. And, indeed, in the latter, Gibson J. speaks of
the “act of taking” or the “act of seizure” and whether it was “a
pure administrative act”. But it is still doubtful whether the learned
Judge intended to draw a distinction between the act of taking and
the decision. He writes:
…I am of the opinion that the act of seizure under that subsection [of
the Income Tax Act] has some judicial element, and that this is so even
though the subsection does not expressly or impliedly import a duty to
afford a hearing, it being sufficient that the official deciding and effecting
such a seizure is obliged in doing so to decide questions of law or fact
affecting an individual’s “rights” and thereby exercises a “judicial discre-
tion”; and that a person purporting to exercise such a power of seizure
is therefore under a duty to act fairly (“judicially”) … and that as a
consequence any act done by a person purportedly under such authority is
subject to review by the Trial Division …. 48
Thus, it is debatable from these remarks whether the Court really
intended to separate the decision from the act and consider review
of the latter only, but more importantly, it is clear that these
remarks cannot be used exclusively to support or reject an argument
on the availability of certiorari in either instance. Indeed, at no
place in his reasons does Gibson J. speak of any one single remedy.
Rather he confines his remarks to “review by the Trial Division”.49
Further, as suggested above, the Court was asked only to consider
whether the original application for prohibition, certiorari, declar-
atory relief and another order should be dismissed because, inter
alia, the seizure was a result of an administrative and not judicial
act. There was no allegation by the respondent that one particular
remedy was unavailable in the Trial Division and the Court itself
did not proffer an opinion.
At the hearing of the application for review,6′ Heald 3. in the
Trial Court dismissed the motion. He found that the request for
declaratory relief could not be granted because proceedings had
not been properly commenced by way of an action and that in the
47 Ibid., 269-70.
48 Ibid., 271 (italics added).
49 Ibid., 271(g).
-5ORoyal American Shows Inc. v. M.N.R. T-2862-75 Judgment delivered Nov.
18, 1975.
19771
COMMENTS – COMMENTAIRES
circumstances there were no grounds for the issuance of either
certiorari or prohibition. In the judgment, there is no discussion of
the availability of certiorari in the Trial Division and there is no
further consideration of the act of seizure as distinct from the
decision.
As for the Cathcart case5′ which Mr Evans mentions, there is
nothing in the judgment to indicate the Court’s inclination towards
considering certiorari appropriate in novel circumstances. Counsel
for the applicant stated that his only purpose for applying for cer-
tiorari was to ensure production of certain material that had been
supplied to the respondent, but since the material was eventually pro-
duced, SmithD.J. found it “not necessary to make a decision on this
application”5 2 And that is the total “consideration” which certiorari
received in the entire case.
Finally, not much need be said about Auger v. Canadian Pene-
tentiary Service.53 Mr Evans himself writes:
The judgment of Walsh J. is … silent on the propriety of using certiorari
[solely to get evidence before the court to support an application for
another remedy] … although MacDonald [at the Court of Appeal level]
may cast doubts upon this form of proceeding.’ 4
Thus, while various members of the Bar on behalf of their clients
have suggested novel uses for certiorari in the Trial Division, it
cannot be said that the Court itself, with reference to decisions made
after June 1, 1971, has ever issed certiorari per se, or shown an
inclination to do so either on traditional grounds or on innovative
ones. Indeed, so far the Court has avoided meeting the issue head-
on and has certainly not encouraged possible future developments.
Prohibition in the Trial Division
In the Addendum, Mr Evans says that I “state that the traditional
grounds of review [as they relate to prohibition] have been broad-
ened by Walsh J. in Wardair… “.51
That is certainly not the impression I wished to give. Indeed, the
sole reference to the case (in either text or notes) was as follows:
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.6
51 Cathcart v. Public Service Comm. [1975] F.C. 407.
52 Ibid., 414.
531975 F.C. 330 (T.D.).
54 Supra, note 1, 140.
55 Supra, note 1, 142.
56 Supra, note 2, 246.
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I must concede, however, that the word “suggested” might have
been more appropriate in that context than the word “acknowledg-
ed”. In any event, I tend to agree with Mr Evans that, in his com-
ment, Walsh J. may not have been making a “conscious and con-
sidered decision” on point.
Dealing with the issuance of prohibition, we now come to the
decision of Steve Dart Co. v. Board of Arbitration,57 perhaps one of
the more significant cases decided by the Trial Division. It focuses
attention on a point of law which no Canadian writer has fully
considered, namely, whether prohibition is available to restrain
usurpers.s Ta In my earlier article I considered the case rather briefly
and concluded “that the Dart decision breaks little new ground, and
that notwithstanding any statutory provision, the decision is logical,
necessary and appropriate”. 8 Indeed, as it related to my overall
discussion of conservatism, the case could be viewed in any one of a
number of ways without in any way requiring a qualification of my
thesis.
Mr Evans’ comment on my treatment of the case frankly puzzles
me. However, I wish to emphasize that the proceedings in the Trial
Division were not principally for the purpose of ascertaining the
validity of the statute or regulations impugned 9 The proceedings
(an application for prohibition to restrain a board of arbitration
from hearing a claim filed against the petitioner) questioned the
lawful authorization of the Board. Let me refer the reader to the
crucial part of the decision of Addy J. which I cited in my article
and note here only the opening words of the second paragraph in
the judgment:
[Steve Dart Co.] is applying for a writ of prohibition to restrain the
respondent Board from hearing a claim filed against [it] … P
I leave the reader to his own conclusions.
The Other Traditional Remedies
Contrary to what Mr Evans seems to imply in footnote 8 of his
Addendum, there appears to be no case law to date suggesting that
prohibition, injunctive oi declaratory relief or mandamus are not
fully available in the Trial Division because of section 28(3) of the
57 [1974] 2 F.C. 215 (T.D.).
57a My comment on this case will appear in -the next issue of this Journal,
Vol.23:4.
5 8 Supra, note 2, 249.
59 For a.way in which that may be done see Reid, supra, note 27, 267-68.
0 Steve Dart, supra, note 57, 215.
1977]
COMMENTS – COMMENTAIRES
Federal Court Act (irrespective of when the decision was made). Mr
Evans writes further:
S.28(3) … is not … limited, referring as it does to “any proceeding res-
pecting that decision or order”. The cases cited by Mr Fera do not
support a narrow reading of s.28(3), and [at p.257 in his Conservatism
essay] he appears to accept this.61
That is correct. And while I have myself suggested in an earlier
article62 that, by virtue of section 28(3), even the Trial Division’s
declaratory relief may be limited, neither Mr Evans nor I seem aware
of any judgment supporting such a view. Therefore, I am able to
reiterate that current case law has placed no fetter on the issuance
from the Trial Court6 3 of the other common law remedies.
Concluding Remarks
In conclusion, while I have found Mr Evans’ Addendum interest-
ing, there is nothing in what so far has been brought to my attention
that would necessitate any change or qualification in my main thesis
as to conservatism in the Trial Division. Indeed, Mr Evans himself
seems to say virtually that in his concluding remarks. Interestingly
enough, his conclusion seems somewhat at variance with his earlier
assertions that the Trial Division has shown itself willing to consider
“novel” and “unusual” uses for certiorari.
As for the availibility of certiorari in the Trial Division, I have
myself suggested possible uses in light of remarks made in the
Supreme Court of Canada in Puerto Rico v. Hernandez 4 and I have
made due note of Millward. But there appears to be nothing in the
case law since to indicate a willingness on the part of the Federal
Court to map out an area of review for the Trial Court that might
appropriately fall under the certiorari jurisdiction that appears to
be given to it by virtue of section 18 of the Federal Court Act.
Norman M. Fera*
61 Supra, note 1, 133, n.8.
02 See Judicial Review Under Sections 18 and 28 of the Federal Court Act
(1975) 21 McGilIL.J. 255, 268.
3 To similar effect, see supra, note 2, 237.
6
64[1975] 1 S.C.R. 228.
* B.A. (Laurentian), B.A., M.A. (Carleton).
