McGILL LAW JOURNAL
[Vol. 23
The Trial Division of the Federal Court: An Addendum
I read with interest the recent article in this Journal by Mr
Norman M. Fera,l in which he assessed the work of the Trial Division
of the Federal Court under section 18 of the Federal Court Act.a I
should much appreciate an opportunity to contribute an addendum, a
form of legal writing of, perhaps, dubious authority, but one which
has recently found favour with the Federal Court of Appeal itself.2 My
remarks are addressed both to some specific points made by the
author and to some more general comments on the Federal Court.
The problems that have arisen in determining the extent of the
Federal Court’s jurisdiction may simply be the inevitable attendants
of the early years of superimposing a federal court upon the existing
court system. 3 However, the linguistically cumbersome and con-
ceptually obscure terms by which the Act 4 divides the Court’s non-
appellate jurisdiction between the Trial Division and the Court of
Appeal have, all too predictably, caused considerable difficulty. It
1(1976) 22 McGillL.J. 234.
la R.S.C. 1970 (2d Supp.), c.10.
2 See e.g., Button v. Minister of Manpower and Immigration [1975] F.C. 277,
298 (CA.).
3Whilst the Ontario Court of Appeal in City of Hamilton v. Hamilton
Harbour Commissioners (1972) 27 D.L.R. (3d) 386, gave a liberal interpretation
to the Federal Court Act, R.S.C. 1970 (2d Supp.), c.10, s.2(g), more recent
pronouncements suggest some limitations. See e.g., Canada Metal Co. Ltd v.
C.B.C.,(1976) 11 O.R. (2d) 167 (CA.), where it was held that although created
by a federal statute, Broadcasting Act, R.S.C. 1970, c.B-11, the C.B.C. is not a
“federal board, commission or other tribunal”, because its functions are of a
business, not regulatory nature; Desiardins v. National Parole Board [1976]
2 F.C. 539, 547 (T.D.), where WalshJ. held that the Governor in Council is
not a federal board within s.2(g), although the specific exclusion by s.28(6)
of decisions or orders of the Governor in Council from the scope of s.28
review, suggests, that the Governor in Council would otherwise fall within
s.2(g); in Vardy v. Scott (1976) 66 D.L.R. (3d) 431 (S.C.C.), a superior court of
a province was held to have jurisdiction to review the taking of depositions
under the Extradition Act, R.S.C. 1970, c.E-21, on the ground
that the
magistrate is there exercising “only peripheral powers under the Extradition
Act, analogous to his usual judicial functions . . .”. This is a not altogether
convincing gloss upon the Court’s decision in Commonwealth of Puerto Rico
v. Hermandez [1975] 1 S.C.R. 228.
4R.S.C. 1970 (2d Supp.), c.10, s.28(1) confers jurisdiction upon the Federal
Court of Appeal 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…”.
,
19771
COMMENTS – COMMENTAIRES
is not my purpose here to analyze all the relevant decisions. Suffice
it to say that, whilst the creation of jurisdictional disputes is an
inevitable cost of establishing new courts with specialized respon-
sibilities, the draftsman of section 28 selected language that, even
before the Act was passed, was quite obviously going to perpetuate
and exacerbate one of the hoariest and most sterile controversies
of the remedial law of judicial review.5 The problems that have
surrounded the interpretation of the words, “decision or order”,
were, perhaps, less predictable; the draftsman is entitled to plead,
in mitigation, that on this issue his prescience was no less than that
of the draftsman of the Ontario Judicial Review Procedure Act, 1971.6
Which draftsman has been better served by the courts is a nice
question.
The interpretation of the decision in Howarth v. National Parole
Board’ is crucial in determining whether there is anything of subs-
tance upon which the Trial Division’s jurisdiction to issue certiorari
can bite.8 I concede, of course, the transitional jurisdiction of the
5 See Mullan, The Federal Court Act: A Misguided Attempt at Administrative
Law Rfform? (1973) 23 U.T.LJ. 14, esp28-31.
-”
6 See S.O. 1970, c.48, s.l(f), (g). For a recent decision suggesting d liberal
interpretation of the terms “statutory power” and “statutory power of
decision” see Chadwill Co. Ltd v. Treasurer and Minister of Economics etc.
for Province of Ontario (1976) 1 M.P.L.R. 25 (Ont.Div.Ct).
– (1974) 50 D.L.R. (3d) 349 (S.C.C.).
8 After stating that the Trial Division has, by virtue of s.28(3), no jurisdiction
to issue certiorari in respect of a decision or order reviewable by the Federal
Court of Appeal under s.28(1), Mr Fera writes, supra, note 1, 237:
“It should be emphasized, however, that authority to make a declaration
or to grant injunctive or prohibitory relief is definitely still with the
Trial Division irrespective of when the decision was made. 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 Appeal by section 28 of the Federal Court Act” (footnotes
omitted).
The reader may be misled by this statement into thinking that a decision
otherwise reviewable under s.28 may be reviewed by the Trial Division in
proceedings under s.18 other than through the order of certiorari. S.28(3), of
course, is not so limited, referring as it does to “any proceeding respecting
that decision or order”. The cases cited by Mr Fera do not support a narrow
reading of s.28(3), and, supra, note 1, 257, he appears to accept this.
It is unclear how far s.28(3) also pre-empts a collateral attack upon the
validity of a decision, to which s.28(l) applies, in proceedings, for example,
for a claim for damages. In Wright v. The Queen [1975] F.C. 506 (T.D.), Heald J.
awarded the plaintiff a declaration that he had been invalidly dismissed from
his employment, and damages. In fact, the Federal Court of Appeal had
already set aside the decision to dismiss the plaintiff from his employment.
Quaere, whether the plaintiff could have sought damages from the Trial
McGILL LAW JOURNAL
[Vol. 23
Trial Division in respect of decisions made by agencies before
June 1, 1971, and the jurisdiction that has emerged from the narrow
interpretation given by the Federal Court of Appeal to the words,
“decision or order”Y Moreover, if the majority opinion in Howarth
is read to decide no more than that section 28 applies only to those
decisions required to be made after an agency has conducted a
hearing substantially similar to that afforded a litigant by the courts
of law, then the Trial Division of the Federal Court will have ample
opportunity for considering the exercise of its power to issue
certiorari. I have avoided expressing the decision in Howarth in terms
of the application of “the rules of natural justice”, because of the
recent tendency to equate them with any duty imposed by the courts
upon an administrative agency allowing individuals to participate in
the procedure adopted by the agency prior to its decision. It is by
now a truism that the contents of the “rules of natural justice” or
“procedural fairness” in any particular context should reflect the
degree to which the agency’s functions diverge from those per-
formed by courts of law.10 Indeed, the Supreme Court expressly
did not decide what procedural standards of “fairness” might, by
implication, be imposed upon the Board.” Nor did it decide that all
those decisions within the scope of the common law writ of certio-
rari were reviewable under section 28. Recent English decisions
have severed the availability of certiorari and prohibition from the
requirement that the body must act “judicially” in the sense that
Division, without first having the decision to dismiss him set aside under
s.28. Where the applicant’s relief includes a claim for damages,
to give
s28(3) its broadest scope may well necessitate two separate proceedings.
9 See e.g., A.G. of Canada v. Cylien [1973] F.C. 1166 (C.A.); Re War Amput-
ations of Canada and Pension Review Board (1975) 55 D.L.R. (3d) 724 (Fed.C.A.).
‘ For a discussion of some recent decisions, see Mullan, Fairness: The New
Natural Justice (1975) 25 U.T.L.J. 281. The very flexibility of the duty of fairness
may, however, enable the courts to relax previously established procedural
rights as readily as it may be used to confer procedural rights where none
may previously have been thought to exist. In Howarth, the Parole Act, R.S.C.
1970, c.P-2, s.11 expressly excluded the right to an oral hearing.
11 However, in Mitchell v. The Queen (1976) 61 D.L.R. (3d) 77 (S.C.C.), the
Court held that the National Parole Board’s failure to hold a hearing before
suspending the appellant’s parole did not violate the Canadian Bill of Rights,
S.C. 1960, c.44 (see R.S.C. 1970, Appendix III), s2(e). Relying upon a statement
made by Sir Lyman Duff in 1923 (Security Export Co. v. The Hetherington
[1923] S.C.R. 539), RitchieJ., obiter, doubted whether the Board was amen-
able at all to the writ of certiorari. For decisions after Howarth in which the
courts have not adopted this view, see infra, note 31.
19771
COMMENTS – COMMENTAIRES
it is bound by the rules of natural justice. 2 It may be concluded,
therefore, that there is nothing in the judgment of Pigeon J. to
prevent the Trial Division from quashing decisions of a “purely ad-
ministrative” nature or from developing procedural requirements
derived from the “duty to act fairly”.
This conclusion is reinforced by the reliance which Pigeon J.
placed upon the decision in Calgary Power. 3 Here the appropriate
procedural standards of the agency were in issue, rather than its
amenability to certiorari. The weakness of this argument, however,
is that while Calgary Power did not, on its facts, require any decision
as to the scope of the writ of certiorari, the Court relied heavily upon
Nakkuda Ali v. Jayaratne.14 Viscount Radcliffe in Nakkuda Ali ap-
peared to predicate the availability of the writ on any ground upon
the applicability of the rules of natural justice. It may, of course, be
contended that Nakkuda Ali decided no more than the procedural
rights of the individual before the Controller of Textiles, and not, as
has been contended, that certiorari was inapplicable to a decision of
the Controller based, for example, on manifestly irrelevant consi-
derations. Attractive as this suggestion may be, the fact remains that
Viscount Radcliffe sought his solution to the case in the Electricity
Commissioners5 and the Church Assembly’ cases, both of which
dealt squarely with the availability of certiorari on any ground. None-
theless, Nakkuda Ali is generally considered an anomalous decision
12See especially R. v. Liverpool Corporation, ex p. Taxi Fleet Operators’
Association [1972] 2 Q.B. 299 (C.A.); R. v. Hillingdon London Borough Council,
ex p. Royco Homes Ltd [1974] Q.B. 720 (Div.Ct); R. v. Barnsley Metropolitan
Borough Council, ex p. Hook [1976] 3 All E.R. 452 (C.A.). It may be significant
that most of the decisions in which the English courts have shown impatience
with the administrative/judicial dichotomy have concerned local authorities.
In Hook, Scarman LJ. stated:
“Historically, going right back to the beginning of the history of the
prerogative writs of certiorari and prohibition, they were the writs that
enabled the King’s justices to control the actions of local authorities. Of
course, in those days, almost invariably, the justices of the peace were
the local authorities charged with administrative as well as judicial
duties. There are, therefore, good, respectable historical antecedents for
expecting a local authority to be a body of persons amenable to control
by orders of certiorari and prohibition” (at p.45 8).
18 Calgary Power Ltd v. Copithorne [1959] S.C.R. 24. However, only in Royco
did the court grant an order on grounds unrelated to considerations of
procedural fairness.
14 [19511 A.C. 66 (P.C.).
15 The King v. Electricity Commissioners [1924] 1 K.B. 171 (C.A.).
1 R. v. Legislative Committee of the Church Assembly, ex p. Haynes-Smith
[1928] 1 K.B. 411 (Div.Ct).
McGILL LAW JOURNAL
(Vol. 23
by the English Courts”‘6
and it would surely not take extraordinary
judicial boldness for the Supreme Court to declare that is it no longer
conclusive of the availability of certiorari.
It is premature to assess the impact that Howarth may have upon
the general development of the law of judicial review. 17 The careful
language of Pigeon J. gives every encouragement to the view that the
case was decided on very narrow grounds: i.e. the decisions of the Pa-
role Board are not reviewable by the Federal Court of Appeal. Given
the quasi-appellate nature of proceedings under section 28 (indicated,
for example, by the grounds of review, the three-judge Bench, the fact
that decisions reviewable under section 28 are subject to one less
level of appeal, and the procedural superiority of proceedings in the
Trial Division for making findings of fact) there is much to be said
for restricting the scope of section 28 to those bodies which proceed
in a formal manner after full argument on the legal and factual
16a Ridge v. Baldwin [1963] 2 All E.R. 66, 80 (H.L.) per Lord Reid; R. v.
Gaming Board for Great Britain [1970] 2 Q.B. 417, 421 (C.A.) per Lord Denning.
Compare Duryappah v. Fernando [1967] 2 A.C. 337, 349 (P.C.) per Lord Upjohn.
17 The dissenting opinion of Dickson J. draws heavily upon the willingness
shown both by the Supreme Court of Canada and by the English courts to
extend procedural safeguards against the exercise of power by public au-
thorities and to escape the archaisms of the prerogative writs of certiorari
and prohibition. Howarth has had little discernible effect upon either of these
developments; see e.g., Re Lacewood Development Company and City of
Halifax (1976) 58 D.L.R. (3d) 383 (N.S.S.C.App.Div.); Re Seven-Eleven Taxi Co.
Ltd and City of Brampton (1976) 10 O.R. (2d) 677 (Div.Ct); Re Cluney and
Registrar of Motor Vehicles of Nova Scotia (1975) 53 D.L.R. (3d) 468 (N.S.S.C.
App.Div.); Re Liquor Control Board of Ontario and Keupfer (1975) 4 O.R.
(2d) 138 (Div.Ct); Saulnier v. Quebec Police Commission (1976) 57 D.L.R. (3d)
545 (S.C.C.); Re Hardayal and Minister of Manpower and Immigration (1976)
67 D.L.R. (3d) 738 (Fed.CA.). For a careful consideration of the issues, see
Edwards and Woolfenden v. Alberta Association of Architects [1975] 3 W.W.R.
38, 48-60 (Alta S.C.).
Perhaps the most striking application of Howarth, outside the Penitentiary
and Parole Board contexts, is “B” v. Commission of Inquiry, Dept. of M. & L
[1975] F.C. 602 (T.D.) where Addy J. held that prohibition would not lie to
restrain the Commission, established to inquire into allegations of misconduct
by members of the Immigration Service, on the ground that the Commission’s
function was to report and recommend, rather than to make determinations of
the applicant’s legal rights. The learned judge relied heavily upon Howarth
for its reiteration of the requirement of a “superadded” duty to act judicially,
but he gave no satisfactory explanation for not following the more recent
decision of the Supreme Court in Saulnier, even though the statutory context
of “B” bore a much closer similarity to that of Saulnier than of Howarth.
19771
COMMENTS – COMMENTAIRES
issues, and which normally produce a record.’ Insofar as the reason-
ing in Howarth is concerned with the formulations of principles for
determining the applicability of “the rules of natural justice’, the
opinion should be understood to relate only to the procedural oblig-
ations of bodies to which section 28 applies. Had Pigeon J. adopted
the approach of Lord Reid in Ridge v. Baldwin9 he would not
necessarily have been compelled to decide Howarth differently.
Finally, the evident unwillingness of the courts to “judicialize” the
administration of parole and prison discipline” makes it hazardous
to conclude that Howarth will have far reaching implications for the
common law development of the remedies of judicial review and for
the procedural standards to which other agencies will be held.
Mr Fera’s statement, that certiorari has issued from the Trial
Division only against decisions made during the transitional pe-
riod, a requires some qualification. For example, in Re MacDonald2′
Mahoney J. allowed the applicant to amend his motion from an ap-
plication for declaratory relief to “‘an order in the nature of certio-
rari to review the proper statutes to be applied and the interpretation
thereof, to the sentences being served by the Applicant’ “. The order
was granted, but shortlived; on appeal, the decision was reversed
‘1in War Amputations, supra, note 9, 451 Jackett CJ. stated that s.28(1)
conferred exclusive jurisdiction upon the Federal Court of Appeal to review
decisions of a purely legislative nature, although he did not find it necessary
to base his judgment upon this issue. Whilst this reading of s.28(l) is quite
tenable, it does not fit easily with the grounds of review under s.28, insofar
as they envisage review for breach of the rules of natural justice, excess of
jurisdiction (rather than ultra vires), review for findings of fact that are
unsupported by the evidence before the decision-maker and the production
of a record.
19 [1964] A.C. 40. It will be recalled that Lord Reid emphasized the im-
portance to his decision of the appellant’s being dismissable only for cause;
however, in Malloch v. Aberdeen Corporation [1971] 1 W.L.R. 1578, Lord
Wilberforce indicated that the width of the statutory discretion might not be
conclusive against importing the principles of natural justice.
20 See especially Mitchell v. The Queen (1976) 61 D.L.R. (3d) 77 (S.C.C.);
Martineau v. Matsqui Institution [1976] 2 F.C. 198 (C.A.); Kosobook v. Solicitor
General of Canada [1976] 1 F.C. 540 (T.D.); R. v. Lewis [19761 3 W.W.R. 605
(B.C.C.A.). Compare Re Hardayal and Minister of Manpower and Immigration,
supra, note 17, where on a s.28 application the Federal Court of Appeal was
unwilling to extend Howarth to the withdrawal, during its currency, of a
Ministerial permit issued to a person who had entered Canada as a non-
immigrant. The court emphasized the reliance placed by Pipeon J. upon Ex
parte McCaud [1965] 1 C.C.C. 168 (S.C.C.).
20a Supra, note 1, 238.
21 [1975] F.C. 543 (T.D.).
McGILL LAW JOURNAL
[Vol. 23
on the substantive issues.2 2 The Court of Appeal also made it quite
clear that Mahoney 1. had erred on the procedural question:
The notice, as amended, -remained an application seeking a declaratory
judgment. Insertion of the words “an order in the nature of certiorari”
did not change the essential nature of the claim. The claim, as amended,
did not, for example, seek a review or quashing of any order or decision.
It remained, in its true character, a claim for a declaration… A con-
sequence may be that an inappropriate procedure was followed in the
proceedings below. 23
The problem here was caused by the 1973 amendment of Rule 603
requiring that declaratory relief under section 18 be sought by way
of an action2 4 rather than by the motion procedure of Rule 319.
In addition to Millward v. Public Service Commission,25 other
cases have come to my attention in which certiorari was not, for one
reason or another granted, but where the Trial Division, nonetheless,
had shown itself willing to do so had the grounds been established.
Thus in Royal American Shows Inc. v. M.N.R., -6 the Trial Division
rejected a motion to strike out an application for certiorari to quash
a seizure of papers from the applicant. Gibson J. held that since a
decision to exercise the power of search and seizure entailed a
“judicial” element (in that questions of law and fact would have
to be determined), certiorari was available to review, on juris-
dictional grounds, any act done pursuant to the decision. No
authority was cited to support the novel proposition that certiorari
is available to review the legality of a physical act, rather than of
a decision 27
Another unusual application for certiorari was made to the Trial
Division in Cathcart v. Public Service Commission..28 The primary
relief sought was an order of prohibition to prevent a Board of
22 [1976] 1 F.C. 532 (C.A.), rep. sub nom. National Parole Board v. MacDonald.
23 Ibid., 533-34.
24 Federal Court Rules, amendment P.C. 1973-526, of 6 Mar. 1973, S.O.R. 73-128,
para.9, Can.Gaz. Part II, vol.107, no.6, p.429, 8 Mar. 1973.
25 [1974] 2 F.C. 530 (T.D.), discussed by Mr Fera, supra, note 1, 244-46.
26 [1976] 1 F.C. 269 (T.D.).
27 The legality of the seizure could be tested in other proceedings; for exam-
ple, it might be raised collaterally in a damages action for trespass. An action
for a declaration that the seizure was unlawful might be another possibility;
but see Re Dorfman et al. and Town of Fort Erie (1975) 54 D.L.R. (3d) 186
(Ont.Div.Ct). The disadvantage of both of these, however, is that they must be
commenced by action. A decision by a judicial officer to issue a search warrant
may be attacked through an application under s.28: In re Shell Canada Ltd
[1975] F.C. 184 (C.A.).
28 [1975] F.C. 407.
1977]
COMMENTS – COMMENTAIRES
Inquiry appointed under the Public Service Employment Act29 from
proceeding with a hearing to review a recommendation to dismiss
the applicant from his job. Prohibition was granted on the ground
that a real likelihood of bias had been raised by the fact that the
Board -had received and read the complete departmental appeal file
before the hearing. The point of present interest, however, is that the
applicant also asked for an order of certiorari to require the de-
fendants to produce for the court’s inspection the documents that
had been forwarded to the Board. Certiorari was not granted, but
only because an order was not needed since the documents were
voluntarily produced to the court. The use of certiorari for the sole
purpose of getting evidence before the court in order to support an
application for prohibition is unusual,30 although it is well known as
ancillary to habeas corpus and mandamus, where it may quash a
prior decision standing in the way of the other remedy or expand the
range of judicial review 31 Finally, in Auger v. Canadian Penitentiary
29 R.S.C. 1970, c.P-32, s.31(3).
s0 In effect, certiorari was here being used to obtain discovery in pro-
ceedings instituted by notice of motion; cf. Rule 333. By virtue of Rule 603,
proceedings for certiorari can be instituted either by motion under Rule 319
or by action under Rule 400.
3 1 An important question has recently arisen as to whether the effect of
s.18 of the Federal Court Act is to prevent superior courts of the provinces
from entertaining an application for the writ of habeas corpus aided by
certiorari, when the body whose proceedings it is thereby sought to examine
falls within s.2(g). In Mitchell v. The Queen (1976) 61 D.L.R. (3d) 77 (S.C.C.),
Ritchie J. (with whom Judson, Pigeon and Beetz JJ. concurred) stated, obiter
at p.95, that the Federal Court Act did, indeed, have this effect. Laskin C.J.C.
entered a vigorous dissent, emphasizing that this would seriously impair the
efficacy of a remedy that has traditionally been regarded as of the utmost
importance in the protection of fundamental freedom; he cited the Canadian
Bill of Rights, s.2(c)(iii) as a statutory recognition of this. It would, surely,
be very surprising to find that although habeas corpus was omitted from
the battery of remedies administered by the Federal Court (save for the
limited provision in s.17(5)), the broad words of s.18 had nonetheless inciden-
tally restricted the usefulness of this remedy in the superior courts of the
provinces.
Support for the Chief Justice’s view can be found in two earlier Ontario
decisions, Re Ostello and Solicitor General of Canada (1976) 9 O.R. (2d) 780,
783 (H.C.), where OslerJ. stated that, “it would take most express language
to deprive this court of any powers necessary to make an effective order on
an application for habeas corpus”. See also Ex parte Carlson (1976) 26 C.C.C.
(2d) 65 (Ont.CA.). It is interesting to note that leave to appeal to the
Supreme Court of Canada was refused in Carlson by Chief Justice Laskin,
(1976 Ont.H.C., unrep.)
Judson and SpenceJJ. However, in Pereira v. M.M..
KreverJ. felt himself bound by Mitchell. The issue is whether certiorari in
s.18 refers only to those situations where certiorari is used, “to quash a
McGILL LAW JOURNAL
[Vol. 23
Service 2 certiorari was sought in aid of mandamus, to require the
respotidents to bring the applicant’s record before the court and
to order the deletion from it of a reference to a breach of parole. The
applicant further required the respondents to substitute a date of
release different from that which the record then contained.33 The
application failed on its merits. The judgment of Walsh J. is, how-
ever, silent on the propriety of using certiorari for these purposes,
although MacDonald may cast doubts upon this form of proceeding.
Mr Fera detects an inconsistency between the views of Cattanach
J. in Millward v. Public Service Commissionm and that of Jackett C.J.
in Danmor Shoe35 regarding the propriety of quashing a ruling made
by an agency in the course of proceedings but prior to its “final”
decision? 5a What the Chief Justice said in Danmor does not ne-
cessarily apply to the review by the Trial Division of intermediate
rulings of administrative agencies. For one thing, the grounds of
review of decisions under section 28 are broader than under the
conviction or an order by its own strength” (per Laskin C.J.C., supra, 83),
or whether it embraces its use to extend the material before the court on
which to determine the legality of the applicant’s detention. Mitchell was
distinguished in Ex parte Collins (1977) 30 C.C.C. (2d) 460 (Ont.H.C.) where
certiorari in aid of habeas corpus was held to be available to determine
whether a substantive condition precedent to the assumption of jurisdiction
by the National Parole Board existed. For another example of a judicial
distinction between procedural and substantive jurisdictional error, see Re
Canada Labour Relations Board and Transair Ltd (1976) 67 D.L.R. (3d) 421, 440
(S.C.C.).
A formal quashing will normally not be necessary when the material
reveals that the tribunal exceeded its jurisdiction; but where the record
brought before the court by certiorari reveals a non-jurisdictional error of
law on its face then a formal quashing would seem to be necessary: see de
Smith, Judicial Review of Administrative Action 3d ed. (1973), 524-26; Harvey,
The Law of Habeas Corpus in Canada (1974), 106-25.
32 [1975] F.C. 330 (T.D.).
33 Compare R. v. Paddington Valuation Officer, ex p. Peachey Property
Corporation Ltd [1966] 1 Q.B. 380 (C.A.), where the majority held that it was
necessary to quash a rating list for non-jurisdictional error before mandamus
would lie to compel the compilation by the officer of a new list.
34 [1974] 2 F.C. 530 (T.D.); see supra, note 1, 24446. An oddity in Millward,
to which Mr Fera does not advert, is that Cattanach J. appears to have raised
no objection to an application by motion for declaratory relief, despite the
amendment to Rule 603, supra, note 24. On the extent to which declaratory
relief and the prerogative orders may overlap, see “B” v. Commission of
Inquiry, supra, note 17.
35In re Anti-Dumping Act and In re Dannor Shoe Co. Ltd [1974] 1 F.C. 22
(CA.). CattanachJ. refers to this dictum, supra, note 34, 532.
35aSupra, note 1, 245.
1977]
COMMENTS – COMMENTAIRES
common law remedies. It is perfectly understandable why the section
28 jurisdiction to review, which establishes proceedings analogous
to an appeal, should be used sparingly.?6 This would justify a narrow
interpretation of the phrase “decision or order”. 7 The Trial Division,
after all, has jurisdiction to review on the more limited grounds
available under the common law remedies. Although non-final de-
cisions may have a significant, adverse impact upon an individual, 8
the Trial Division should be alive to the dangers inherent in re-
viewing interim decisions on jurisdictional grounds. 9 In particular,
attention should be given to the delay and expense attendant upon
judicial review and to the need to view the alleged error in the con-
text of the proceedings as a whole.40 These are matters, however, that
properly go to the exercise of the discretion of the Trial Division in
awarding one of the common law remedies. In contrast, the Court of
Appeal’s statutory remedy available under section 28 is not discre-
tionary. The apparent approval given by Cattanach I. to the use of
certiorari as an appropriate method of attacking an intermediate
ruling of an administrative agency may, conceivably, broaden the
scope of review if the agency has produced a record (e.g., by giving
reasons), in which a non-jurisdictional error of law is apparent.
Mr Fera draws our attention to two points of interest respecting
the issue of prohibition by the Trial Division 4 First, he states that
36 However, in Commonwealth of Puerto Rico v. Hernandez [1975] 1 S.C.R.
228, the Court held that the words of s.28 were not as limited as “trial judg-
ments” appealable to the Supreme Court by virtue of the Supreme Court Act,
R.S.C. 1970, c.S-19, s.41(1), as defined in s.2(1).
37 The quasi-appellate nature of s.28 proceedings may explain why the courts
appear to have attached little independent significance to the phrase, “a
decision or order … made … in the course of proceedings before a federal
board, commission or other tribunal … ” (emphasis added).
38 See e.g., National Indian Brotherhood v. Juneau (No.3) [1971] F.C. 498
(T.D.); Saulnier v. Quebec Police Commission (1976) 57 D.L.R. (3d) 545 (S.C.C.);
Chadwill Coal Co. Ltd v. Treasurer and Minister of Economics for Province
of Ontario (1976) 1 M.P.L.R. 25 (Ont.Div.Ct).
39 It may be, but probably is not, significant that Cattanach J. states the
issue to be whether the Board’s allegedly defective procedure “makes the
inquiry voidable at the option of the applicants”, supra, note 34, 544 (emphasis
added).
4o1ndeed, Cattanach J. suggested that the normal remedy for reviewing
procedural rulings is “an attack on the ultimate decision of the tribunal on
the ground that there was not a fair hearing with respect to which such
adverse decisions may well be factors”. Supra, note 34, 544.
41Supra, note 1, 246.
McGILL LAW JOURNAL
(Vol. 23
the traditional grounds of review have been broadened 4la in Wardair
Canada Limited v. C.T.C., where Walsh J. stated that:
For a writ of prohibition to lie there has to be an indication of lack of
jurisdiction, bias, error in law, or a breach of natural justice in the finding
of the tribunal against which prohibition is sought. 42
I very much doubt that this statement reflects a conscious and con-
sidered decision by Walsh J. to extend the scope of review available
on prohibition beyond that known in other common law jurisdic-
tions. After finding that neither jurisdictional error nor bias 43 was
alleged, and that there had been no denial of natural justice, Walsh J.
did not enter into a separate inquiry to determine whether the
tribunal’s exercise of discretion to refuse an adjournment revealed a
non-jurisdictional error of law. Moreover, after Bell v. Ontario
Human Rights Commission44 a court will have little difficulty in
characterizing as jurisdictional, for this purpose, any “simple, short
and neat question of law”.45
Secondly, Mr Fera supports the decision in Steve Dart Co. v.
Board of Arbitration” where the court ordered prohibition against a
board allegedly established under regulations that were found to be
unauthorized by the relevant federal statute. Since those purportedly
regulated by the board might well have thought the board derived
its power from federal legislation, the usurpation doctrine was quite
correctly not applied4 7 It would have been very unsatisfactory to
41a Ibid., 247.
42 [1973] F.C. 597, 602 (T.D.) (emphasis added). But cf. supra, note 40.
43 That prohibition lies for breach of either of the rules of natural justice
is, of course, well established: Committee for Justice and Liberty Foundation
v. National Energy Board (1976) 68 D.L.R. (3d) 716 (S.C.C.), Milhvard v.
Public Service Commission, supra, note 34; Vapor Canada Ltd v. MacDonald
et al.(No.2) [1971] F.C. 465 (T.D.).
4- (1971) 18 D.L.R. (3d) 1 (S.C.C.).
45 The phrase of Lord Goddard CJ. in R. v. Tottenham and District Rent
Tribunal, ex p. Northfield (Highgate) Ltd [1957] 1 Q.B. 103 (Div.Ct), adopted
as the test in Bell.
46 [1974] 2 F.C. 215.
47 Compare the distinction drawn by Laskin J. in Isaac v. Bddard [1974]
S.C.R. 1349, 1380 between an assumption of inherent power and a purported
exercise of power under a federal statute. But see Desjardins v. National Parole
Board [1976] 2 F.C. 539
the procedural
regularity of the deliberations of the Board which led it to recommend that
a pardon be revoked. Although the Board was empowered by the Criminal
Records Act, R.S.C. 1970 (1st Supp.), c.12, s.4 to make a recommendation that
a pardon be granted, the Act did not grant similar powers in respect of the
revocation of a pardon. WalshJ. appeared to find the necessary source of
federal statutory power, upon which to rest jurisdiction, in the Criminal
(T.D.), where WalshJ. reviewed
19771
COMMENTS – COMMENTAIRES
draw a jurisdictional line that depended upon whether the challenge
was made to the vires of regulations or to the vires of decisions pur-
portedly made pursuant to them, particularly since a litigant might
wish to seek review on both grounds. More difficult questions are
raised by an allegation of the unconstitutionality of a federal statute
purportedly empowering an agency. To allow the Federal Court to
assume jurisdiction in these circumstances as well, would minimize
the number of proceedings necessary to resolve the dispute.48
In conclusion, it is difficult to find in the jurisprudence of the
Trial Division of the Federal Court a fertile source of principled
doctrinal innovation. Mr Fera might well have included in his list
of the Court’s “indiscretions” the decision in “B” v. Commission of
Inquiry,49 in which Addy J. hoisted the unfortunate rule in Hollinger
Bus Lines50 into the jurisprudence of the Federal Court, and was
unwilling to follow the flexibility of approach to the remedies of
certiorari and prohibition recently shown by the Supreme Court of
Canada in Saulnier v. Quebec Police Commission.”1 It is disappointing
to find a court, the justification for whose existence rests, in part,
upon its specialized expertise, fettering itself by the old forms of
action, where the non-specialized courts in other jurisdictions have
escaped them 2
Above and beyond a doctrinal critique of the decisions of the
Federal Court, an evaluation of the impact of the decisions of the
new court upon the work of the agencies that it is reviewing is now
required. For even if the Act is amended so as to remove those
jurisdictional, procedural and remedial difficulties that are already
apparent, the costs of maintaining two distinct systems of courts,
exercising wide areas of exclusive jurisdiction, need to be justified
by arguments and evidence much more cogent than are apparent
to, at least, this observer.
J.M. Evans*
Records Act, s.7(b), which impliedly authorized a delegation by the Governor
in Council of the investigation necessary before a pardon was revoked.
For an analogous problem under the Ontario legislation, see Re Raney
and the Queen (1974) 47 D.L.R. (3d) 533 (Ont.C.A.).
48 Denison Mines Ltd v. A.G. of Canada [1973] 1 O.R. 797 (H.C.). Again, the
problem would be particularly acute when the constitutional ground was one
of several grounds of attack upon the agency’s decision.
49 Supra, note 17.
50o Hollinger Bus Lines Ltd v. Ontario Labour Relations Board [1952] O.R.
316 (C.A.).
51 (1976) 57 D.L.R. (3d) 545 (S.C.C.).
52 See e.g., the cases cited supra, note 12.
* Of Osgoode Hall Law School, York University, Toronto.
