McGILL LAW JOURNAL
[Vol. 21
Howarth v. National Parole Board: A Comment
Howarth v. National Parole Board’ raises some of the most
important issues in contemporary Canadian Administrative law.
When does the maxim audi alteram partem apply to the exercise of
statutory powers? Does it apply to merely administrative bodies,
or only to such bodies exercising a judicial or quasi-judicial function?
Is it possible to devise a test to distinguish judicial or quasi-judicial
functions on the one hand from merely administrative ones on
the other? What is the status in Canada of the recent line of
English and Commonwealth cases concerning a more general “duty
to be fair”? And, finally, what is the relationship between sections
18 and 28 of the Federal Court Act?2
Howarth raises these questions, in the following way. In 1969,
Lenard John Howarth was sentenced to seven years’ imprisonment
for armed robbery. He was paroled in 1971, and became a full-time
university student, complete with summer job. On August 3rd,
1973, however, Howarth was arrested and charged with indecent
assault. His parole was suspended and he was remanded into custody
until September 18th. On September 14th, the charge was withdrawn.
Nevertheless, the National Parole Board, acting under statutory
authority, revoked Howarth’s parole; he was then required to
complete the remainder of his sentence for armed robbery –
1 (1974) 50 D.L.R. (3d) 349 (S.C.C.); (1973) 41 D.L.R. (3d) 309 (F.C.A.D.).
The more penological aspects of the decision have been thoroughly canvassed
by S. Silverstone in (1975) 53 Can. Bar Rev. 92; and by Richard V. Ericson in
(1975) 17 Crim.L.Q. 251.
2 R.S.C. 1970, c.10 (2d Supp.).
S.18 provides:
“The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of
mandamus or writ of quo warranto, or grant declaratory relief, against
any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for 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.”
The material part of s.28 provides:
“(1) 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 a decision or order, other than a decision or order of an
administrative nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings before a
federal board, commission or other tribunal, upon the ground…”.
1975]
COMMENTS – COMMENTAIRES
including 779 days “served” while on parole and 210 days’ statutory
remission to which he had been entitled when paroled. The Board
neither gave Howarth any reasons for its decision, nor any opportu-
nity to make representations about the matter.
The Federal Court of Appeal unanimously rejected Howarth’s
application under s.28(1) of the Federal Court Act to have the
Board’s decision reviewed for breach of natural justice. Instead,
Jackett C.J., Pratte and Thurlow JJ. all held 3 that parole was a
purely administrative matter, not required to be exercised on a
judicial or quasi-judicial basis; and therefore the Court of Appeal
had no jurisdiction under s.28(1) to deal with the matter at all.
The Court of Appeal adopted this characterization of the parole
process on the authority of Ex parte McCaud, where one of the
issues was whether an inmate had a right to be informed of the
reasons for revocation of his parole or to make any opposition
thereto. There the Supreme Court of Canada 4 upheld Spence J.’s
refusal 4a of McCaud’s leave to appeal, and specifically adopted
his judgment, which included the following sentence:
The question of whether that sentence must be served in a penal institu-
tion or may be served while released from the institution and subject to
the conditions of parole is altogether a decision within the discretion of
the Parole Board as an administrative matter and is not in any way a
judicial determination.5
McCaud’s case was equally important to the majority in the
Supreme Court in Howarth, where Pigeon J. – writing for Martland,
Judson and de Grandprd JJ. and adopted by Beetz J. –
reasoned as
follows: Firstly, s.28(1) of the Federal Court Act is merely an ex-
ception to the general supervisory power of the Trial Division of
the Federal Court granted by s.18 of the same Act; therefore, the
strict requirements of s.28 must be fulfilled before any application
for review of the Board’s decision can be entertained by the Court
of Appeal. Accordingly, any attempt to have an executive action
reviewed on the basis of a general duty to be fair should be made
in the Trial Division and not in the Court of Appeal – which only
has jurisdiction “to review and set aside a decision or order,
other than a decision or order [1] of an administrative nature
[and 2] not required by Idw to be made on a judicial or quasi-judicial
basis … “.6 Pigeon J., referring to the passage from Ex parte McCaud
3 (1974)
Thurlow J. wrote a separate opinion.
41 D.L.R.
(3d) 309. PratteJ. concurred with JackettC.J., and
4 [1965] 1 C.C.C. 168.
4a (1964) 43 C.R. 252.
5 Ibid., 254.
6 S.28(1) of the Federal Court Act, supra, f.n.2; italics and numbers added.
McGILL LAW JOURNAL
[Vol. 21
quoted above, could perceive no material difference between the
expression “not in any way a judicial determination” (from Spence J.
in McCaud) and “not required by law to be made on a judicial or
quasi-judicial basis” (from s.28). Yet nowhere did Pigeon J. examine
the history or use of the phrase “quasi-judicial”, or even refer
to the myriad of cases where the principles of natural justice have
undoubtedly been held to apply to the exercise of functions obviously
administrative in nature. One realizes that Pigeon J. has decided
that the revocation of parole is not “quasi-judicial”, but one does
not know why, or how one could have determined that before the
litigation.
Secondly, Pigeon J. justifies this dependence on the decision in
McCaud’s case by referring to the doctrine in North British Railway
v. Budhill Coal and Sandstone Co.,7 where Lord Loreburn, L.C. said:
When an Act of Parliament uses a word which has received a judicial
construction it presumably uses it in the same sense.
Therefore, according to Pigeon J.,8 since the law concerning the
duty of the Parole Board in making a decision on a parole had been
conclusively determined by a recent judgment of the Supreme Court,
Parliament should not be presumed to have acted in ignorance
of that determination. Yet nowhere in McCaud is the word “quasi-
judicial” used, nor is that the leading case in the Supreme Court
on the application of principles of natural justice. Further, s.28
of the Federal Court Act is not restricted to decisions of the Parole
Board, but rather applies to a very large number of federal boards,
commissions and other tribunals. It is not at all unthinkable that
Parliament might have ignored McCaud in its attempt –
five
years later 9 –
to rationalize and widen judicial review of federal
administrative actions.
Thirdly, Pigeon J. denies that s.16(4) of the Parole Act, enacted
after the decision in McCaud, implies an intention to require the
Board to act on a judicial or quasi-judicial basis in revoking parole.
Previously, the relevant section of the Act read: 10
The Board shall forthwith after a remand by a magistrate … review the
case -and shall either cancel the suspension or revoke the parole.
In 1969, this section was changed to read:”
7 [1910] A.C. 116, 127.
8 Supra, f.n.1, 352.
9 McCaud was decided in 1964 and 1965; the Federal Court Act was passed
by Parliament in 1970.
10 S.12(3) of the Parole Act, S.C. 1958, c.38.
11 Enacted by s.101(1) of the Criminal Law Amendment Act, S.C. 1968-69, c.38.
19751
COMMENTS – COMMENTAIRES
The Board shall, upon referral to it of the case of a paroled inmate whose
parole has been suspended, review the case and cause to be conducted all
such inquiries in connection therewith as it considers necessary, and
forthwith upon completion of such inquiries and its review it shall either
cancel the suspension or revoke the parole.
Clearly, nothing in this section or any other part of the Act requires
a hearing even vaguely resembling a courtroom trial. Indeed, s.11
of the Act expressly provides that:
The Board, in considering whether parole should be granted or revoked,
is not required to grant a personal interview to the inmate or to any
person on his behalf.
But the mere existence of this provision does not, in itself, definitively
preclude some sort of duty on the Board to permit the inmate
to make his case, even if only by written notes. On the contrary,
s.11 only says that the Board need not give a personal hearing,
not that it is exempt or prohibited from giving any hearing, or
from generally acting fairly. Indeed, Dickson J., writing the minority
opinion for himself, Laskin C.J.C., and Spence J., could only explain
the new two-stage procedure under the Parole Act by implying some
duty on the Board to give Howarth an opportunity to make at
least some sort of representations.
It may well be that the principal source of any duty to hear
a party or to act fairly derives from the specific provisions of the
legislation creating the power in the first place. Certainly this was
one leg of Pigeon J.’s judgment for a unanimous Supreme Court
of Canada in the Saulnier 2 case, decided only four months after
Howarth. Nevertheless, it is equally true that such a duty may
arise at common law – which provided the second leg of the
decision in Saulnier, and which is not really referred to by the
majority in Howarth at all.13
It may not be surprising, therefore, in light of this omission
by the majority, to discover that they make no reference whatever
to the decision in Ridge v. Baldwin, 4 where the House of Lords
very carefully analyzed the circumstances in which the principle
of audi alteram partem applies. Indeed, the House of Lords spec-
ifically examined the context of both the dictum of Atkin L.J. in
the Electricity Commissioners’ case 15 as well as the gloss put
12 Decided by the Supreme Court of Canada in February 1975; not yet
reported.
ls Although conceded by counsel: see supra, f.n.1, 356 per Dickson J.
14 [19643 A.C. 40.
15 [19243 1 K.B. 171, 39 T.L.R. 715 (C.A.).
McGILL LAW JOURNAL
[Vol. 21
upon it by Lord Hewart C.J. in The King v. Legislative Committee
of the Church Assembly. 6 Certainly in England and in most other
parts of the Commonwealth, the requirement for judicial review
that the exercise of a statutory power must not only affect the
rights of a subject, but also be subject to a superadded duty to
act judicially, is now thoroughly discredited. In other words, the
ratio of Nakkuda Al v. Jayaratne” in the Privy Council –
and
hence, one would have thought, of Calgary Power v. Copithornes
in the Supreme Court of Canada –
is no longer good law. Yet the
majority in Howarth specifically relies on Calgary Power to reject
the proposition that the duty to act judicially arises whenever
private rights are affected.’ 9
Now it is quite possible that there are good reasons why the
law relating to natural justice should be narrower in Canada than
in England and in the rest of the Commonwealth. And of course
the Supreme Court of Canada is in no way bound to follow
changes in English or Commonwealth law made since 1949. On
the other hand, a House of Lords decision remains persuasive
authority, and one might have expected the majority in Howarth
at least to have referred to Ridge v. Baldwin and to have demonstra-
ted why similar principles should not be applied in Canada.2
Another –
and, it is submitted, more devastating –
complaint
can be made with respect to the majority’s complete disregard
of that growing line of cases (including some from the Federal
Court of Appeal, no less) 2 which resurrects Lord Loreburn’s famous
dictum in Board of Education v. Rice 2 that anyone who decides
anything has a duty to do so fairly. This general duty to be fair
may or may not be the same as audi alteram partem,m but it has
been applied to functions which are no more quasi-judicial than
16 [1928] 1 K.B. 411, 415.
17 [1951] A.C. 66, [1950] 2 W.W.R. 927 (P.C.).
Is (1958) 16 D.L.R. (2d) 241, [1959] S.C.R. 24.
19 Supra, f.n.1, 353.
20 As, for example, the Supreme Court did on the facts in Posluns v.
Toronto Stock Exchange [1968] S.C.R. 330.
21 See: Blais v. Basford [1972] F.C. 151; Blais v. Andras [1973] F.C. 182;
Re Lazarov (1973) 39 D.L.R. (3d) 738, [1973] F.C. 927; and generally the cases
cited by Fera in Judicial Review under Sections 18 and 28 of the Federal
Court Act (1975) 21 McGill LJ. 255.
22[1911] A.C. 40 (H.L.).
23See the discussion in S.A. de Smith, Judicial Review of Administrative
Action 3d ed. (1973), 208.
19751
COMMENTS – COMMENTAIRES
the revocation of parole in Howarth. 4 The whole concept of a
general duty to be fair raises in bold terms the policy behind the
very existence of judicial review of executive actions: namely,
that justice not only must be done, -but seen to be done. “Justice”
is an attribute which one expects to accompany the exercise of
every public (or, indeed, private) power. Justice cannot be done if
it is closed, secretive, arbitrary, or dispensed without reasons.
And it is arguable that the same need for fairness should apply
to virtually every governmental action which seriously affects individ-
ual rights –
even if “merely administrative” in nature. On the other
hand, it may be that Canadian courts are not at all eager to grant
judicial review in such sensitive areas as parole.I4a
This is not to say that every decision on every matter must
necessarily be accompanied by a full-blown trial. Nor (as Dickson J.
quite rightly pointed out) does it even imply that confidentiality
must be thrown to the winds.25 But why should affected persons
not at least have the opportunity to make their views known before
their property is expropriated, 2 condemned,- or forfeited; 28 their
trading licences suspended; 29 their liability to tax assessed; 30 or
their application to enter the country denied? 31 Can anyone possibly
assert that decisions –
even if made within the framework of the
broadest discretion – will be worse because the decision-maker has
had the benefit of the views of those most directly involved? On the
contrary, the failure of the National Parole Board to inform someone
like Howarth of the considerations it intends to take into account in
reviewing his parole, and its failure to permit him to make
24 See: In re H(K) [1967] 2 Q.B. 617; R. v. Gaming Board for Great Britain,
ex p. Benaim and Khaida [1970] 2 Q.B. 417; Pearlberg v. Varty [1972] 1 W.L.R.
534 (H.L.); Bates v. The Lord Chancellor [1972] 1 W.L.R. 1373, 1378; R. v.
Liverpool Corporation, ex p. Liverpool Taxi Fleet Operators’ Association
[1972] 2 Q.B. 299, 307-8 per Lord Denning M.R., 310 per RoskilL.J. See also
the cases cited supra, f.n.21, and in the judgment of Dickson I., supra, f.n.1,
357-8.
24a Cf. the position in the U.S.: Gagnon, Warden v. Scarpelli 411 U.S. 778
(1973); Morrissey v. Brewer, Warden 408 U.S. 471 (1972); and Sklar, Law and
Practice in Probation and Parole Revocation Hearings (1964) 55 I.Crim.L.C.
& P.S. 175, 198, n.182.
25 Supra, f.n.1, 359.
26 Calgary Power v. Copithorne, supra, f.n.18.
27Board of Health for the Township of Saltfleet v. Knapman [1956] S.C.R.
877, 6 D.L.R. (2d) 81.
28Bonanza Creek Hydraulic Concession v. The King (1908) 40 S.C.R. 281.
29 Nakkuda Ali v. Jayaratne, supra, f.n.17.
-3ORe H(K), supra, f.n.24.
31 Guay v. Lafleur [1965] S.C.R. 12.
McGILL LAW JOURNAL
[Vol. 21
representations in some form, can –
“surely only engender bitter feelings of injustice”.
again to quote Dickson J. 2 –
It may, of course, be argued that the duty to be fair is far too
vague a concept to be applied without constant litigation. But is
the distinction between judicial and quasi-judicial functions on the
one hand and merely administrative ones on the other any more
clear, any more workable? One can leaf through any recent part of
any series of law reports and see how very many cases raise
precisely the point of whether a quasi-judicial function is involved.
Surprisingly few of these judgments even attempt to define what
constitutes a quasi-judicial function, or indicate how a potential
plaintiff can identify this characteristic of some statutory powers
short of litigation. And all too few judges (happily, Dickson 3.
among them)n seem aware of the problems which many academics,
particularly the late Professor S.A. de Smith,34 have found in this
area of present Administrative law.
Further, the Supreme Court’s strict interpretation of s.28 of
the Federal Court Act may have devastating consequences on federal
Administrative law. Henceforth, a plaintiff is at his peril in instituting
an action in either division of the Federal Court. If the federal
decision or order which it is sought to impugn is required to be
made on a judicial or quasi-judicial basis, then s.28(1)
totally
excludes the jurisdiction of the Trial Division, and the action
should properly be commenced in the Court of Appeal. Yet if it
turns out that the decision or order was not required to be made
on a judicial or quasi-judicial basis, then the Court of Appeal has
no jurisdiction. However, after one false start in the wrong Division,
it may well be too late for the plaintiff to re-commence his action in
the correct Court –
unless, of course, (as did not happen in
Howarth) the Chief Justice or his designate exercises the discretion
contained in Rule 359 35 to transfer the action to the other Division
32 Supra, f.n.1, 362.
3 Ibid., 361-3.
34 Supra, f.n.23, 64ff.
35 Rule 359 of the General Rules and Orders of the Federal Court provides
as follows:
“The Chief Justice, or another judge designated by him for the purpose, may,
if it appears just to do so having regard to the interests of all parties, order
that a matter that has been commenced in one Division be transferred to
the other Division, and may give incidental directions for the further conduct
of the matter.”
Of course, even if the discretion under Rule 359 had been exercised in Howarth,
what remedy would have been available in the Trial Division? Certiorari and
prohibition are commonly presumed to be available only against the exercise
19751
COMMENTS – COMMENTAIRES
of the Court. In any event, it is quite plain from the proceedings in
Parliament and from the statements made by various officials of
the Department of Justice during the passage of the Federal Court
Act”0 that the whole purpose of s.28 was to consolidate the various
intricate remedies available against federal bodies into one “applica-
tion for review” centralized in one court, and hence avoid exactly
this type of judicial roulette. Regrettably, in its first opportunity to
construe s.28, the Supreme Court of Canada undoubtedly has frus-
trated the intention of Parliament.
The American realist school of jurisprudence is well-known
for suggesting that the upshot of a particular case may be determined
by what the judges had for breakfast. A Canadian Administrative
lawyer might be forgiven for concluding that, in the end, the
existence of a quasi-judicial element in the exercise of any particular
statutory power merely hangs on the inclination of the majority of
the court to grant judicial review, without any further legal or ration-
al justification. Obviously the time has come for Parliament and the
legislatures to take much greater pains to spell out in detail the
procedures they wish to be adopted by persons upon whom they
confer statutory powers.3 7
David Phillip Jones *
of a judicial or quasi-judicial function, although the decision in Re H(K) and
the other cases cited, supra, f.n.24, would seem to indicate that this restriction is
too narrow. See ch.8 in de Smith, supra, f.n.23, esp. 346-9, where the author
discusses the relationship of the duty to be fair to certiorari and prohibition.
To the extent that both the Federal Court of Appeal and the majority of the
Supreme Court of Canada hint that a remedy might have been available to
Howarth in the Trial Division, are they implicitly accepting de Smith’s view
that certiorari and prohibition are not restricted to judicial and quasi-judicial
functions?
36 See D.J. Mullan, The Federal Court Act: A Misguided Attempt at Ad-
ministrative Law Reform? (1973) U.ofT.L.J. 14, 29, f.n.57, where a letter
from the Minister of Justice to Professor G.V.V. Nicholls of Dalhousie
University is reproduced. See also the speech by the Minister of Justice, Hon.
J.N. Turner, during the Second Reading debate of the Bill in the House of
Commons: House of Commons Debates, 25 March 1970, vol.V, p.5470.
37 The reader may be interested in two subsequent judicial decisions in which
the Supreme Court of Canada’s judgment in Howarth has been relied upon:
Regina v. Gorog [1975] 4 W.W.R. 191 (Man. C.A.), concerning habeas corpus
(Matas S.A. diss.); and In the Matter of an Application by “B” and The Com-
mission of Inquiry pertaining to the Department of Manpower and Immigra-
tion at Montreal No.T-1679-75 (F.C. T.D.), 24 June 1975 (Mr Justice Addie).
* Of the Bars of Alberta and of the Northwest Territories; and of the
Faculty of Law, McGill University.
