19771
COMMENTS – COMMENTAIRES
Steve Dart v. Board of Arbitration
In 1924, Lord Atkin, in The King v. Electricity Commissioners,’
considered the rules under which the writs of prohibition and
certiorari might issue. He said:
Wherever any body of persons having legal authority to determine
questions affecting the rights of subjects, and having the duty to act
judicially, act in excess of their legal authority they are subject to the
controlling jurisdiction of the [courts] …. 2
With reference to prohibition, the decision of the Supreme Court of
Canada in Bell v. The Ontario Human Rights Commission3 permits
judicial intervention to prevent an excess of jurisdiction even before
a tribunal itself has fully considered the jurisdictional issue. But, will
prohibition issue to prevent a person or body of persons who has no
legal authority to decide any matter whatsoever from proceeding
as if it had such power?
While no Canadian writer has addressed himself directly to this
question, the late Professor de Smith wrote that “[i]t may be justi-
fiable … for a court formally to set aside decisions by usurpers” .
However, in making that statement, Professor de Smith was merely
expressing a personal view of what the law ought to be since
British courts have generally not issued the traditional remedies
against the nugatory decisions of usurpers.6
By virtue of our “federalist” nature, there are apt to arise in
Canada, more so, perhaps, than in a unitary state, bodies purporting
to exercise powers but which in fact have no authority to decide
anything whatsoever.7 By the use of prohibition, can such bodies be
restrained before they commence their proceedings, and before they
oblige citizens to appear before them and suffer the apprehension
and material costs of such an appearance?
1 [1924] 1 K.B. 171.
2 Ibid., 205 (emphasis added).
3 (1971) 18 D.L.R. (3d) 1.
4 De Smith, Judicial Review of Administrative Action 3d ed. (1973), 132.
5 Ibid., 131-32 and 377.
6 Ibid., 341-42 and 377.
7In
this context, see, e.g., the following cases in which the federal-provincial
division of powers was raised: Burk v. Tunstall (1890-93) 2 B.C.R. 12 (S.C.); R.
v. Dodd [1957] O.R. 5 (C.A.).
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A recent decision of the Federal Court-Trial Division provides a
clear, affirmative answer to this question. In Steve Dart Co. v. Board
of Arbitration” a licensed agricultural dealer in the Province of
Quebec applied for a writ of prohibition to restrain the respondent
“Board” from hearing a claim filed against him. Upon receipt of a
shipment of corn from an American firm, the dealer had advised
the shipper that it was not in good condition and proceeded to have
that allegation confirmed by the Department of Agriculture. The
American shipper, however, filed a complaint with the same Depart-
ment claiming non-payment for the goods. The respondent Board
then formally advised the petitioner that, in accordance with
section 26 of the regulations 9 made pursuant to the Canada Agricul-
tural Products Standards Act 10 it must either pay the claim or file
a notice and contest the claim before it. Instead, the petitioner res-
ponded by applying to the Federal Court for prohibition on the
ground that the regulations issued pursuant to the Act, in so far
as they purported to set up a quasi-judicial board, were ultra vires.
Mr Justice Addy agreed, and without citing any case authority or
giving much additional explanation, said:
I find no difficulty in coming to the conclusion that, by necessary im-
plication, this Court has a power to grant … relief [and] I do not find
difficulty either in concluding that prohibition is a proper remedy in
such a case.’l
Does the Dart case therefore represent a judicial precedent or is
it in harmony with previous case law relating to the issuance of
prohibition? This paper will show that in Canada especially, pro-
hibition and certiorari have been found appropriate in a number of
different circumstances to quash “decisions” which could have
properly been disregarded as void; the Dart decision does not seem
to stray from this tradition. To substantiate this view the earlier
decision of Addy J. in Ex parte Collins12 and a number of other cases
dealing with the issuance of prohibition and certiorari’2a will be
examined.
8 [1974] 2 F.C. 215.
9 Produce Licencing Regulations, SOR/67-605 (1967) 104 Can.Gaz., pt.II, 1899
(27/12/1967).
1oR.S.C. 1970, c.A-8.
11 Supra, note 8, 220.
12 Regina v. Deacon, ex parte Collins [1970] 1 O.R. 207 (H.C.). This decision
may shed some light regarding AddyJ.’s understanding of when prohibition
might properly issue.
12a Essentially, certiorari differs from prohibition only in the time appro-
priate for its use.
19771
COMMENTS – COMMENTAIRES
1) Ex parte Collins
In this case, the “first point” considered by Addy J. (in the Onta-
rio High Court) was whether the application before him was “a pro-
per subject of prohibition”. 13 The applicant had alleged that a judge
of the Provincial Court, Criminal Division had no jurisdiction to hear
a charge laid under sections 54(1) and 148(1) of the Highway
Traffic Act 14 since these sections did not disclose an offence. While
the Court disagreed, it did hold that the application for prohibition
was nevertheless appropriate. In so deciding, Addy J. considered
three Canadian cases 5 and concluded:
Where the objection is to the statute either on the grounds that it is
ultra vires or on the grounds that it is inoperative … then I fail to see
why this Court should not entertain an application for … prohibition ….
Furthermore I can see many instances, other than cases of ultra vires,
where [prohibition] might be properly granted. Besides objections
ratione materiae … prerogative writs would lie ratione personae for
instance, where the person purporting to hear the [matter] is not …
duly appointed … . All these matters go to the jurisdiction … and, on
these grounds, [prohibition] might properly issue.16
It is thus apparent that even before Dart, Mr Justice Addy viewed
prohibition as an appropriate remedy for a number of different juris-
dictional problems including the exercise of a power that was not
merely excessive but for which there was no authorization what-
soever.
2) Other Cases
a) Ex p. MacCaud
In Ex p. MacCaud,17 the Ontario Court of Appeal was asked to
consider whether certiorari8 might issue with respect to a disciplin-
13 Supra, note 12, 208.
14 R.S.O. 1960, c.172.
Is He noted that in R. v. Dodd, supra, note 7, prohibition was considered
appropriate against a charge being laid under a provincial statute which
had been rendered inoperative by virtue of the Dominion Parliament oc-
cupying the field; that in Ex p. Grey (1958) 123 C.C.C. 70 (N.B.S.C.), prohibi-
tion issued to restrain a court authorized under one statute from hearing an
offence charged under a different enactment and that in Viger Co. v.
Cloutier [1947] Que.K.B. 120, prohibition issued against an offence charged
which did not exist at law.
1′ Supra, note 12, 212.
‘7 Regina v. Institutional Head of Beaver Creek Correctional Camp, Ex
parte MacCaud [1969] 1 OR. 373 (CA.).
1S”Certiorari and prohibition rest on common principles … “. Wade, Ad-
ministrative Law 3d ed. (1971), 130.
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ary action taken by the superintendent of the Beaver Creek Cor-
rectional Camp. In considering this question, the Court found it
necessary to outline the way in which the institutional head was
appointed and empowered. Under section 4(1) of the Penitentiary
Act’ 9 the chief officer of the Penitentiary Service is the Commissioner
appointed by the Governor-in-Council. Under the direction of the
appropriate Minister, the Commissioner has the control and manage-
ment of the system and all matters connected with it. In addition,
he is responsible for the appointment of institutional heads to assist
in the administration of the Penitentiary Act.20 Under section 29(1)
of the Act, power is conferred on the Governor-in-Council to make
regulations for certain specific purposes. One such regulation gave
to each of the institutional heads responsibility for the disciplinary
control of inmates in his own centre. The main issue before the Court
concerned the exercise of that power. In making a pronouncement
on the general implications of an institutional head taking disci-
plinary action, the Court considered the basis for the issuance of
certiorari:
[I]n deciding whether certiorari lies to call up for review a proceeding
of any body, the determination as to whether a particular proceeding
is a judicial one must be made not with reference to the nature of the
character of the tribunal but with reference to the power purported to be
exercised. … [A~ny purported exercise of a jurisdiction not conferred,
or any exercise of such jurisdiction in excess of tjhe limits lawfully imposed
will be grounds on which the exercise of powers requiring a body to act
judicially are subject to supervisory review through an application to
the Court by way of certiorari. 2′
The Court concluded that certiorari would not lie unless, among other
things, the action sought to be reviewed was in excess of any juris-
diction lawfully exercisable by the institution head or there was
complete absence of any jurisdiction to take the action com-
plained of. 2
b) Rogers v. Wood2
In this early English case, prohibition was allowed to issue
against a body which did not have competent jurisdiction. It was
contended that the decree in question was not the regular judgment
of any accredited court. Lord Tenterden C.J. agreed and explained:
19 S.C. 1960-61, c.53; now R.S.C. 1970, c.P-6.
20 Ibid.
21 Supra, note 17, 377 (emphasis added).
22Ibid., 382.
23(1831) 2 B. & Ad. 245, 109 E.R. 1134 (K.B.).
1977]
COMMENTS – COMMENTAIRES
[T]he decree was not … of any Court of Justice known at [the] time.
… It was evidently, therefore, a proceeding before persons not forming
any Court known to the laws of this country, nor having any competent
authority to decide the matter in issue, or to make the decree which
they made 24
c) Poulin v. Quebec
It now goes without saying that where a statute under which an in-
ferior tribunal purports to act is ultra vires of the legislature which
enacted it, the inferior tribunal is without jurisdiction. As early as
1884 Ritchie C.J. commented in Poulin v. Quebec4 on whether pro-
hibition would lie against a tribunal in such circumstances:
[I]f the Act is ultra vires, then I can see no reason why prohibition would
not be a proper remedy, because there could then be no pretence -that
the [tribunal] could have jurisdiction over [a matter] alleged to be
created by a statute which had no legal existence.B
Thus, where a statute is found ultra vires, there is no legal statutory
authorization for a board or tribunal created under it, and on ap-
plication for prohibition, it has been the practice of Canadian courts
It follows, then, that
to restrain such “boards” from functioning
prohibition should be equally available against a tribunal which is
not lawfully authorized by statute simply because there is no statute
or statutory provision to give it jurisdiction. Indeed, it would be
manifestly illogical to issue prohibition where the statute allegedly
authorizing the tribunal is ultra vires of the enacting body, but not
where statutory authorization is lacking because there has been no
enactment. In either case, “all is a nullity, it is corem non judice”.28
24 Ibid., 255-56.
25 (1885) 9 S.C.R. 185.
26 Ibid., 191.
27 Early Canadian decisions show the courts issuing prohibition for fact
situations paralleling Dart. E.g., in Burk v. Tunstall, supra, note 7, under the
terms of the Mineral Act, S.B.C. 1884, c.10, s.4 (see B.C. Consolidated Acts,
1888, vol.1, c.82, s.4), a Gold Commissioner was appointed by the Lieutenant-
Governor-in-Council and given power to sit as judge in a mining tribunal.
While the Court found that the colonial legislature had the power to establish
a mining tribunal and set out its jurisdiction, it did not have the requisite
constitutional authority to appoint judges for the tribunal it had created. Such
powers are solely vested in the Governor General under s.96 of the British
North America Act, 1867, 30-31 Vict., c.3 (U.K.). Drake J., therefore, declared
the “extensive judicial jurisdiction” which s.11 of the Mineral Act “purports
to do” (at p.14) ultra vires of the provincial legislature and issued prohibition
to restrain the Gold Commissioner for West Kootenay from further proceed-
ing in an action brought before him as a tribunal judge.
28 Rex v. Pulak [1939] 2 W.W.R. 219, 222 (Sask.K.B.).
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While the logic of this argument is sound it might be argued
that this reasoning cannot be extended to a situation, like the one
in Dart, where purported regulations and not a statute were held to
be ultra vires. However, as will become evident, if a board is allegedly
established pursuant to regulations then these regulations must
likewise be intra vires.29
d) Regina v. Bermuda Holdings Ltd
To be lawful, regulations must be properly authorized by statute,
otherwise they are of no effect. In Rex v. National Fish Co80 it was
said that:
Delegated authority … must be exercised strictly in accordance with the
power creating it and in the spirit of the enabling statute …. 81
With this decision in mind, Wootton J. in Regina v. Bermuda Holdings
Ltd32 considered whether a regulation 3 passed pursuant to the British
Columbia Motor-vehicle Act 34 was a regulation ultra vires of the
statute. He concluded curtly:
What the regulations are attempting to do is, without statutory power, …
control “persons” engaged in the business of selling motor vehicles. I am
of the opinion that there is no statutory power for such control and there-
fore none for reg.8.01, and on that account the appellant should succeed 35
In the Dart case, the Trial Division of the Federal Court found no
statutory authority whatsoever for the setting up of any system of
a trial and appeal tribunal or for determining issues which the
regulations purported to have determinedVY The proceedings in Dart,
however, were not, strictly speaking, directly for the purpose of
ascertaining the validity of a statute or regulation;- the petitioner in
Dart only applied for prohibition to restrain a board from hearing
a claim filed against the petitioner essentially on the ground that the
board was not lawfully authorized.
29 It might be noted that because a statute is wholly intra vires does not
mean that every order-in-council issued under it is necessarily valid. See
In re Constitutional Questions Act; In re Moratorium Legislation (1954) 13
W.W.R. (N.S.) 289 (Sask.C.A.).
30 [1931) Ex.C.R. 75.
31 Ibid., 81.
32 (1969) 70 W.W.R. 754 (B.C.S.C.).
-3 That is, regulation 8.01 of Regulations Pursuant to the Motor-Vehicle Act,
B.C. Reg. 26/58 (1958).
34R.S.B.C. 1960, c.253.
35 Supra, note 32, 761.
36Supra, note 8, 222.
37 For the way in which this may be done see Reid, Administrative Law and
Practice (1971), 267-68.
19771
COMMENTS – COMMENTAIRES
e) Rex v. Shenowski and Other Cases
De Smith stated that while the acts of usurpers are to be re-
garded as nugatory, “in order to remove uncertainty a court would
surely be justified in issuing the orders [of certiorari … and prohi-
bition] to bodies that appear or purport to be acting in pursuance
of lawful authority”.3 s
For this very reason, the courts in Canada have often taken the
time to consider the importance of having a jurisdictional question
resolved on application for prohibition. In Bell v. Ontario Human
Rights Commission,3as for example, MartlandJ., speaking for the
majority, made note of the “risk of delay”3 9 that the appellant would
encounter if prohibition were not available in the circumstances of
that case. And in Rex v. Shenowski29a Dysart J. spoke of the “much
wasted expense and effort” 40 that would result if the court refused
prohibition and left the jurisdictional issue to be brought up at a
later time. He added:
Prohibition is a prerogative right, inherent in this Court and, although
discretionary, ought not to be withheld where justice and convenience will
both be served by granting it.41
In Dart, the board certainly “appeared” to be legally authorized,
acting as it did under certain regulations set out by a government
department which was purporting to have statutory authority for its
action. Needless to say, any body giving that kind of an account of
itself cannot be easily ignored on the assumption that its acts are
nugatory4 2 And for the party that insists on arguing that such a
board is nevertheless not properly authorized, there will inevitably be
a considerable amount of “uncertainty”, to say nothing of “delay”
and “expense”, until, in one way or another, there has been some
judicial pronouncement from the ordinary courts on the juris-
dictional competence of the board in question.
38Supra, note 4, 342 (emphasis added).
38a Supra, note 3.
39 Ibid., 15.
39a [1932] 1 W.W.R. 192 (Man.K.B.).
40 Ibid., 194.
41 Ibid.
4 2 1n Rogers v. Wood, supra, note 23, 256, Lord Tenterden C.J. said with
reference to those who had been called before the “Court of Exchequer”
which was found to have no jurisdiction: “They were called before the
persons who made the decree by an authority which at that time of day they
might not think it convenient to resist.”
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f) Bell v. The Ontario Human Rights Commission
It now seems appropriate to consider the Supreme Court decision
in Bell.4 3 Here the Court did not preclude the applicant from having
the vital issue of the Board’s jurisdiction determined on an applica-
tion for prohibition. The majority view was that the complaint of
alleged discrimination did not relate to any matter within the pur-
view of the Ontario Human Rights Code44 and that, therefore, a board
authorized under the same Code to investigate complaints of dis-
crimination was without jurisdiction to proceed.
Thus the board involved in Bell fulfilled Lord Atkins’ require-
ment that it have “legal authority to determine questions affecting
the rights of subjects” 45 However, in relation to the petitioner the
board in Bell had no more authorization to make the inquiry in
question than did the one in Dart. The fact that there was statutory
authorization for the board in Bell to inquire into certain other
matters, but that there was no lawful authorization for the board
in Dart to adjudicate on any matter whatsoever is not particularly
significant. The significant jurisdictional question in such matters
is whether or not the board in each instance is lawfully authorized
to do what it proposes to do with reference to the parties and
matters before it and not whether it is authorized to do some other
thing. Indeed, it is ludicrous to suggest that only a board authorized
to do something else should be prohibited fronli embarking upon an
inquiry over which it has no authority, but that one which appears
or purports to be authorized but which, in fact, has no legal authority
should not be equally restrained by prohibition.
g) Rex v. Pulak
A discussion of the issuance of prohibition in situations like the
one in Dart raises the related question of whether the courts have
seen prohibition as premature in cases where the jurisdictional issue
has not first been decided by the inferior tribunal. This issue was
dealt with and seems to have been settled in Bell but it might be
argued that the reasoning used in that case cannot be applied with
equal force to Dart. However, it would be incongruous to issue pro-
hibition in a case like Bell where the board was authorized by statute
to decide if a matter came within the purview of the Code and then
to refuse it where a board has no lawful right whatsoever. To do so
43 Supra, note 3.
44S.O. 1961-62, c.93.
45 Supra, note 1, 205.
1977]
COMMENTS – COMMENTAIRES
would be to suggest that a board not authorized to do anything should
nevertheless have the opportunity to decide whether it has jurisdic-
tion in the matter before it.
Further support can be found in Rex v. Pulak” where the Saskat-
chewan Court of King’s Bench held that prohibition would issue to
prevent a tribunal from conducting a hearing even though the juris-
dictional issue had not yet been considered by the lower court.
The Act4ela that purported to give the tribunal authority was ultra
vires and, as discussed earlier,4 7 a board allegedly constituted and
authorized under a statute which is ultra vires of the enacting leg-
islature has no power at all with reference to any matter and is in no
better a position than a body not authorized by statute to do any-
thing.
Concluding Remarks
The late Professor de Smith urged the courts to consider issuing
the orders of certiorari and prohibition to bodies that appear or
purport to be acting in pursuance of lawful authority. In the Cana-
dian context, under section 2(g) of the Federal Court Act, 48 the tra-
ditional remedies are available against any federal body “exercising
or purporting to exercise jurisdiction or powers conferred by or
under an Act of the Parliament of Canada”. It might be argued,
therefore, that section 2(g) establishes by enactment what de Smith
encouraged the courts to found by judicial innovation. But this con-
clusion cannot be supported by the reasoning in Dart.
Indeed, as to when prohibition might issue, the judgment of
Addy I. is singularly brief. He goes no farther than to suggest that
since the Federal Court is empowered under section 18 of the Federal
Court Act to issue prohibition against any federal tribunal it can,
“by necessary implication”, 49 also restrain a body which purports
to have the powers of such a tribunal. It is not clear, therefore, from
the judgment whether or not the Court interpreted section 2(g) in
such a way as to permit prohibition to issue against usurpers or
whether it tacitly relied on common law precedents in the Canadian
context to issue prohibition in the circumstances of the case.
46 Supra, note 28.
4
9a The Industrial Standards Act, 1937, S.S. 1937, c.90.
47 See text, supra, p.68 1.
48R.S.C. 1970 (2d Supp.), c.10.
49 Supra, note 8, 220.
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However, apart from any statutory provision, the Dart decision
is not particularly novel in the Canadian context. From the cases
reviewed above, it is apparent that prohibition has already been seen
as appropriate in a variety of circumstances: it has issued to bodies
acting in excess of their jurisdiction and also to those purporting to
exercise a jurisdiction not conferred. In reaching its decision in
Dart, the Trial Division has helped to crystallize a principle of law
only implicitly recognized in the reasoning of previous authorities,
and which, from a practical point of view, is both appropriate and
desirable.
Norman M. Fera*
* B.A. (Laurentian), B.A., M.A. (Carleton).
