In the matter of certain appeals nos. 1010, 1011,
1012, 1063 and 1067 before the Tariff Board
under section 19 of the Anti-dumping Act and
section 47 of the Customs Act from decisions of
the Deputy Minister of National Revenue, Cus
toms & Excise, made on November 29, 1971 and
March 19, 1973.
and
Danmor Shoe Company Ltd., Créations Marie-
Claude Inc., and General Footwear Co. Ltd.
and
Crosley Shoe Corp. Ltd.
and
Joseph Sprackman, Chartered Accountant, of the
City of Toronto, Province of Ontario, in his qual
ity as Trustee to the Estate of Creative Shoes
Limited (Applicants)
Court of Appeal (A-147-73), Jackett C.J., Pratte
J. and Hyde D.J.—Montreal, January 24, 1974.
Judicial review—Whether declaration by Tariff Board that
it did not have jurisdiction to review validity of certain
`prescriptions" is a decision subject to review—Customs
Act, R.S.C. 1970, c. C-40, s. 47(3); Anti-dumping Act,
R.S.C. 1970, c. A-15, s. 19(3); Federal Court Act, R.S.C.
1970, c. 10 (2nd Supp.), s. 28.
At a preliminary stage before the Tariff Board, the Board
was asked whether, in deciding `value for duty" or "normal
value", it is authorized to hold that certain "prescriptions"
are inoperative because they are invalid.
Held, whether or not the Board is so authorized is a
question of law that the Board has no jurisdiction or power
to decide independently of the appeals. Any declaration by
the Board apart from the actual disposition of an appeal has
no legal effect. A declaration by the Board that it did not
have jurisdiction to review the validity of the "prescrip-
tions" had no legal effect so long as the declaration was
made apart from the decisions disposing of the appeals. The
declaration was, therefore, not a "decision" that this Court
has jurisdiction to review under section 28(1) of the Federal
Court Act.
Held also, refusal by the Tariff Board to receive certain
evidence is not subject to review under section 28(1) of the
Federal Court Act.
Attorney General of Canada v. Cylien [1973] F.C. 1166
and British Columbia Packers Ltd. v. Canada Labour
Relations Board [1973] F.C. 1194, followed. Toronto
Newspaper Guild v. Globe Printing Co. [1953] 2 S.C.R.
18; Bell v. Ontario Human Rights Commission [1971]
S.C.R. 756 and R. v. Tottenham and District Rent
Tribunal, Ex p. Northfield (Highgate) Ltd. [1957] 1 Q.B.
103, discussed.
APPEAL.
COUNSEL:
Richard Gottlieb for applicants.
Peter T. Mclnenly for respondents.
SOLICITORS:
Gottlieb and Agard, Montreal, for
applicants.
Deputy Attorney General of Canada for
respondents.
JACKETT C.J. (orally)—This section 28
application was argued with the section 28
application on Court File A-148-73 which has
the same style of cause. I propose, therefore, to
express my views with reference to both
applications at this time. The two applications
raise questions as to the extent of the jurisdic
tion of this Court under section 28 of the Feder
al Court Act, R.S.C. 1970, c. 10 (2nd Supp.). In
each case the applicants seek a judgment setting
aside a conclusion or ruling reached by the
Tariff Board in the course of a joint hearing of
appeals under the Anti-dumping Act, R.S.C.
1970, c. A-15, and the Customs Act, R.S.C.
1970, c. C-10, respectively.
As the Court was of the view that there was a
doubt as to whether it had jurisdiction to hear
the applications, counsel for the applicants
addressed the Court at the outset on the ques
tion whether the applications should be dis
missed for lack of jurisdiction. The Court
having then concluded that it had no jurisdiction
to hear the applications, counsel were not heard
on the merits. I am now going to give my
reasons for that conclusion.
As a preliminary step in the computation of
customs duty payable under the Customs Act,
"value for duty" must be determined; and, as a
preliminary step in the computation of the anti-
dumping duty payable under the Anti-dumping
Act, "normal value" of imported goods must be
determined. The concepts "value for duty" and
"normal value" are concepts arbitrarily created
by the respective statutes for the purposes of
those statutes and, in respect of any particular
importation, "value for duty" and "normal val
ue" must be computed in accordance with more
or less arbitrary rules laid down in the respec
tive statutes.
Sections 36 and 37 of the Customs Act con
tain rules for determining "value for duty",
which rules involve inter alia determination of
"cost of production", "gross profit" and "fair
market value"; and those sections must be read
with section 40 of the Customs Act, which
reads as follows:
40. Where sufficient information has not been furnished
or is not available to enable the determination of cost of
production, gross profit or fair market value under section
36 or 37, the cost of production, gross profit or fair market
value, as the case may be, shall be determined in such
manner as the Minister prescribes.
Section 11 of the Anti-dumping Act contains a
similar rule with reference to computation of
anti-dumping duty. That section reads as
follows:
11. Where, in the opinion of the Deputy Minister, suffi
cient information has not been furnished or is not available
to enable the determination of normal value or export price
under section 9 or 10, the normal value or export price, as
the case may be, shall be determined in such manner as the
Minister prescribes.
The various rules that the Minister has pre
scribed under these two sections have, it
appears, been referred to as "prescriptions". It
has, however, been determined by this Court in
Minister of National Revenue v. Creative Shoes
Ltd. [1972] F.C. 993 that the rules that the
Minister has so prescribed are of general
application and I should have thought that the
more appropriate word for them would have
been "regulations". However, in view of the
practice that has developed, it will be more
convenient to refer to them as "prescriptions".
Such "prescriptions" are delegated legislation
containing rules that, along with the rules in the
statute, must be applied in the computation of
"value for duty" or "normal value" as the case
may be.
In respect of each importation of goods, "val-
ue for duty" and "normal value" are determined
for the purposes of the respective statutes by
departmental officers subject to re-determina
tion by the Deputy Minister of National Reve
nue for Customs and Excise at the request of
the importer.' Such a determination by the
Deputy Minister under the Customs Act may be
appealed to the Tariff Board under section 47 of
that Act, which reads, in part:
47. (1) A person who deems himself aggrieved by a deci
sion of the Deputy Minister
(a) as to ... value for duty,
may appeal from the decision to the Tariff Board by filing a
notice of appeal in writing with the secretary of the Tariff
Board within sixty days from the day on which the decision
was made.
Such a determination by the Deputy Minister
under the Anti-dumping Act may be appealed to
the Tariff Board under section 19(1) of that Act,
which reads as follows:
19. (1) A person who deems himself aggrieved by a deci
sion of the Deputy Minister made pursuant to subsection
17(1) or subsection 18(4) with respect to any goods may
appeal from the decision to the Tariff Board by filing a
notice of appeal in writing with the Deputy Minister and the
Secretary of the Tariff Board within 60 days from the day
on which the decision was made.
section 18(4) of that Act being the provision
under which the Deputy Minister may inter alia,
in the ordinary case, make a decision re-deter
mining "normal value", and section 17(1) being
the provision by which the Deputy Minister is
empowered, in certain special cases, to make "a
final determination of dumping" by inter alia
"appraising the ... export price of the goods".
Pursuant to section 47 of the Customs Act,
the applicants appealed to the Tariff Board
against a decision of the Deputy Minister as to
"value for duty" of certain imported goods, in
the computation of which "value for duty"
"prescriptions" under section 40 of that Act had
' The provision for such re-determination under the Cus
toms Act is section 46(4) of that Act and the similar provi
sion under the Anti-dumping Act is section 18(4) of that
Act.
been applied. Pursuant to section 19 of the
Anti-dumping Act, the applicants appealed to
the Tariff Board from a decision of the Deputy
Minister as to the "normal value" of the same
goods, in the calculation of which "normal val
ue" "prescriptions" under section 11 of that Act
had been applied. The appeals came on for
hearing together. During that hearing, by prelim
inary submissions, the applicants indicated to
the Tariff Board that they were attacking the
appraisals of value for duty and normal value on
the ground inter alia that the "prescriptions"
were invalid and counsel for the Attorney Gen
eral of Canada objected to the jurisdiction of
the Tariff Board to deal with the validity of the
"prescriptions" or to consider evidence in
respect thereof. After hearing argument, at that
preliminary stage in the hearing, the Tariff
Board declared that it did not have jurisdiction
to review the "prescriptions" and, at a later
stage, it maintained objections of the Attorney
General of Canada to certain evidence tendered
by the applicants with regard thereto.
These section 28 applications have been
launched to have set aside the Tariff Board's
"declaration" that it has no jurisdiction to deal
with the validity of the "prescriptions" and its
rulings against the admission of evidence.
I am of opinion that this Court has no juris
diction under section 28(1) of the Federal Court
Act to set aside the declaration or the rulings in
question. Section 28(1) reads as follows:
28. (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 that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
It is important to have in mind that what is
before the Tariff Board under section 47 of the
Customs Act is an appeal from "a decision .. .
as to value for duty" and what is before that
Board under section 19 of the Anti-dumping Act
(read with section 18(4)) is an appeal from a
decision by which the Deputy Minister re-deter
mined "normal value". What the Tariff Board
has jurisdiction to decide under the Customs
Act is, as I read the statute, "the value for duty
of the ... goods" (section 47(3)); and what that
Board has jurisdiction to decide under the Anti-
dumping Act, on an appeal from a determination
of "normal value", is, I should have thought,
"normal value" and, apparently, also "what
duty is payable or that no duty is payable"
(section 19(3)). A decision of any such question
is, of course, a proper subject matter for a
section 28 application. The Tariff Board has, of
course, in addition to its jurisdiction to decide
the appeals, a duty, and therefore jurisdiction,
to hold the hearings that are a necessary prelim
inary to the making of the decisions that it is.
required by the statutes to make; and, in the
course of such a hearing, it has an incidental
power to make rulings that are necessary for the
proper conduct thereof. In my view, however,
such a ruling is not a proper subject matter for a
section 28 application.
I shall explain first my reasons for concluding
that the Board's declaration, at a preliminary
stage in the hearing, that it had no jurisdiction to
deal with the "prescriptions" does not fall
within section 28.
In my view, the declaration by the Tariff
Board that it had no jurisdiction to review the
"prescriptions" is, for present purposes, not dif
ferent in character from the decision of the
Immigration Appeal Board that was held by this
Court not to fall under section 28 in The Attor
ney General of Canada v. Cylien [1973] F.C.
1166* or from the decision of the Canada
* [Unreported at the time this decision was rendered—
Ed.]
Labour Relations Board that was held by this
Court not to fall under section 28 in the British
Columbia Packers Ltd. v. Canada Labour Rela
tions Board [1973] F.C. 1194*. I must be for
given therefore, if, to a large extent, my expla
nation of my conclusion in this matter is a
repetition of my reasoning in the Cylien case.
In considering whether the Tariff Board's
declaration that it has no jurisdiction to deal
with the "prescriptions" is a "decision" that
falls within the ambit of section 28(1), it is to be
remembered that the Tariff Board is a federal
board, commission or other tribunal within the
meaning of those words in the Federal Court
Act because it is a body having, exercising or
purporting to exercise "jurisdiction or powers"
conferred by an Act of the Parliament of
Canada (section 2 (g) of the Federal Court Act).
A decision that may be set aside under section
28(1) must, therefore, be a decision made in the
exercise or purported exercise of "jurisdiction
or powers" conferred by an Act of Parliament.
A decision of something that the statute
expressly gives such a tribunal "jurisdiction or
powers" to decide is clearly such a "decision".
A decision in the purported exercise of the
"jurisdiction or powers" expressly conferred by
the statute is equally clearly within the ambit of
section 28(1). Such a decision has the legal
effect of settling the matter or it purports to
have such legal effect. Once a tribunal has exer
cised its "jurisdiction or powers" in a particular
case by a "decision" the matter is decided even
against the tribunal itself. 2
What we are concerned with here is some
thing different. The Tariff Board has jurisdic
tion or powers to decide the appeals against
"value for duty" and to decide the appeals
against "normal value". It has not, however, as
yet, delivered any decision disposing of any of
those appeals. The problem that was raised at a
preliminary stage before the Tariff Board, and
in respect of which the Board has made a pre-
* [Unreported at the time this decision was rendered—
Ed.]
2 Unless, of course, it has express or implied powers to
undo what it has done, which would be an additional
jurisdiction.
liminary "declaration", is whether, in deciding
value for duty or normal value, it is authorized
to hold that the "prescriptions" are inoperative
because they are invalid. Whether or not it is so
authorized is a question of law that the Board
has no jurisdiction or power to decide as a
question of law independently of the appeals
that it has jurisdiction to decide. The Board
must, of course, when it comes to dispose of the
appeals, take a position on that question that
will be reflected in its decision disposing of the
appeals; but, in my view, any declaration by the
Board on the question prior to, and therefore
apart from, the actual disposition of an appeal
has no legal effect. 3
There is a clear difference between a "deci-
sion" by the Board of something that it has
"jurisdiction or powers" to decide and a decla
ration by the Board as to the nature of the
powers to be exercised by it when it comes to
make the decision that it has "jurisdiction or
powers" to make. Once the Board decides
something in a particular case that it has "juris-
diction or powers" to decide, that decision has
legal effect and the Board's powers in regard to
that question are spent. When, however, the
Board takes a position with regard to the nature
of its powers upon which it intends to act, that
"decision" has no legal effect. In such alcase, as
a matter of law, nothing has been decided. The
Board itself, whether differently constituted or
not, in the very case in which such a position
has been taken, can change its view at any time
before it disposes of the appeals and, having
changed its view, can decide the appeals on the
basis of the changed view.
My conclusion, therefore, is that the Board's
declaration that it did not have jurisdiction to
review the validity of the "prescriptions" had
no legal effect so long as that declaration was
made prior to, and therefore apart from, the
decisions disposing of the applicants' appeals. It
follows that the declaration is not a "decision"
that this Court has jurisdiction to set aside
under section 28(1) of the Federal Court Act.
7 The Statutes do not, as they might have done, confer on
the Board jurisdiction to determine its own jurisdiction.
I turn now to the section 28 application to set
aside certain rulings made by the Tariff Board
upholding objections to the reception of evi
dence. In my view, the reasoning whereby I
have reached the conclusion that a preliminary
declaration by the Board as to the extent of its
jurisdiction does not, as such, fall within section
28(1) leads equally to the conclusion that a
refusal by the Board to receive certain evidence
does not, as such, fall within section 28(1).
What this Court has jurisdiction to do under
section 28(1) is to set aside a "decision" of a
tribunal on certain grounds. One ground on
which a "decision" may be set aside is that, in
making the "decision", the tribunal refused to
exercise its jurisdiction. When a tribunal refuses
to permit a hearing leading to a "decision" to
follow a relevant line of inquiry (which is really
the applicant's complaint here), on one way of
analyzing the matter, the decision resulting from
the inadequate inquiry may be set aside
because, in making it, the tribunal refused to
exercise its jurisdiction. (See Toronto Newspa
per Guild v. Globe Printing Company [1953] 2
S.C.R. 18 per Kellock J. at page 35. 4 ) On the
other hand, there may be rulings incidental to
the conduct of such a hearing that may, after
the matter has been decided, be a basis for
setting aside the ultimate "decision" on the
ground that, by virtue of such rulings, the tri
bunal, in making the decision attacked, failed to
observe a principle of natural justice. In my
view, neither a refusal to follow a relevant line
of inquiry nor any other ruling incidental to the
conduct of a hearing is a "decision" that may
itself be set aside under section 28(1). 5 Neither
4 Such a refusal to exercise jurisdiction may be contrasted
with a wrongful refusal to grant relief on the ground of lack
of jurisdiction to grant it. Apart from section 28(3) of the
Federal Court Act, such a case may be remedied by man-
damus (Commission des Relations de Travail du Québec v.
L'Association Unie des Compagnons et Apprentis de L'In-
dustrie de la Plomberie et Tuyauterie des États-Unis et du
Canada [1969] S.C.R. 466) Whether it falls under section
28(1) is a question that does not require to be answered at
this time).
5 Unless, of course, the tribunal has special authority to
make such interlocutory ruling so as to give it independent
legal effect. It should be emphasized that we are here
considering the effect of the word "decision" in section
28(1). Entirely different considerations may be applicable in
the case of an application to set aside an "order".
such a refusal nor such a ruling has, or purports
to have, any legal effect even as against the
tribunal. In either case, the tribunal can, before
giving its decision on the matter before it, have
second thoughts and take correcting action, in
which event, no harm will have been done, and,
even if the tribunal does not have such second
thoughts, the ultimate decision may not be
adversely affected by the wrong view taken, or
the wrong ruling given, during the course of the
hearing. In my view, such an incorrect position
or ruling by a tribunal during the course of a
hearing is not, in itself, a subject for a section
28 application. Indeed, it has no bearing on a
decision given by the tribunal in the exercise of
its jurisdiction to give decisions unless it has
resulted in the decision being invalid.
To put it another way, in most cases to which
section 28(1) applies, the tribunal has a principal
jurisdiction to make decisions or orders and, as
part of the process leading to the making of
such decisions or orders, it has an incidental
jurisdiction to conduct hearings as required by
law; and, as I understand section 28(1), it only
authorizes the setting aside of a decision or
order that the tribunal makes in the exercise or
purported exercise of its decision or order
making jurisdiction. It follows that a mistake
made by a tribunal in conducting a hearing
leading up to the making of such a decision or
order is only material to the determination of a
section 28 application if it has rendered invalid
the decision or order made in the exercise of the
decision or order making jurisdiction. 6
I am, therefore, of opinion that both the sec
tion 28 applications should be dismissed
because this Court has no jurisdiction under
section 28(1) to set aside the declaration and
rulings referred to in them.
6 Section 28(1) itself indicates the distinction. A tribunal
ordinarily has jurisdiction to hear and determine or decide
something. If it does not give a hearing such as is required
by law, its determination or decision may become invalid.
What section 28(1) gives this Court is jurisdiction to "hear"
an application to review and set aside a tribunal's "decision"
and to "determine" that application. Section 28(1) does not
give any jurisdiction to this Court to deal with the tribunal's
"hearing" except in so far as it bears on the validity of the
tribunal's ultimate "decision".
APPENDIX
I. I consider it worthwhile repeating here, by
way of an appendix, what I said in the appendix
to my Reasons in the Cylien case.
II. In coming to the conclusion that I have
reached in this matter, I have not overlooked
the express reference in section 28(1)(a) to
excess of jurisdiction and refusal of jurisdiction.
When paragraph (a) is considered in its context,
in my view, it is not only not inconsistent with
that conclusion but it supports it. The relevant
portion of section 28(1) confers a jurisdiction to
determine an application to set aside a "decision
or order" upon the "ground" that the tribunal
by which it was made
(i) "failed to observe a principle of natural
justice",
(ii) "acted beyond ... its jurisdiction", or
(iii) "refused to exercise its jurisdiction".
This does not confer an independent jurisdiction
to decide that a tribunal has failed to observe a
principle of natural justice, has exceeded its
jurisdiction or has refused to exercise its juris
diction. Rather it establishes "grounds" for set
ting aside a "decision or order". Just as a "deci-
sion or order" may be set aside because, in
reaching or making it, there was a failure by the
tribunal to observe a principle of natural justice,
so a "decision or order" may be set aside
because it was a purported exercise of a juris
diction that the tribunal did not have or because,
in the course of reaching the decision or making
the order, the tribunal refused to exercise some
part of its jurisdiction. An example of a decision
or order that was set aside because, in reaching
it, the tribunal refused to exercise its jurisdic
tion is to be found in Toronto Newspaper Guild
v. Globe Printing Company [1953] 2 S.C.R. 18,
where Kellock J. giving judgment on behalf of
himself and Estey and Locke JJ., in the course
of holding that an order of a board should be
quashed because the board had refused to
inquire into one of the facts that was essential
to its decision, said, at page 35, "This was the
very obligation placed upon the Board by the
statute. By refusing to enter upon it, the board
in fact declined jurisdiction".
III. It is not irrelevant, in considering the prob
lem raised by this section 28 application to note
that, in cases to which section 28 does not
apply, certiorari does not lie where there has
been a refusal by a board to find that it has no
jurisdiction until there has been a decision made
by the board in the purported exercise of the
jurisdiction that it does not have. In Bell v.
Ontario Human Rights Commission [1971]
S.C.R. 756, there had been such a refusal (see
per Martland J. at page 764) and an application
was made for prohibition. The Ontario Court of
Appeal held that the application for prohibition
was premature but was overruled by the
Supreme Court of Canada. With reference to
the relative roles of prohibition and certiorari,
Martland J. (delivering the judgment of the
majority in the Supreme Court of Canada)
referred at page 772 to R. v. Tottenham and
District Rent Tribunal, Ex p. Northfield (High-
gate) Ltd. [1957] 1 Q.B. 103, where Lord
Goddard said at page 107:
But Mr. Winn asked us to express some opinion whether it
was right for the applicants to apply to this court for
prohibition or whether they ought not to have gone to the
tribunal and taken the point there. Of course, they could
have taken the point before the tribunal, and if the tribunal
had decided in their favour, well and good. If the tribunal
had decided contrary to their contention, then they would
have had to come here and, instead of asking for prohibi
tion, asked for certiorari; but I think it would be impossible
and not at all desirable to lay down any definite rule as to
when a person is to go to the tribunal or come here for
prohibition where the objection is that the tribunal has no
jurisdiction. Where one gets a perfectly simple, short and
neat question of law as we have in the present case, it seems
to me that it is quite convenient, and certainly within the
power of the applicants, to come here for prohibition. That
does not mean that if the tribunal, during the time leave has
been given to move for prohibition and the hearing of the
motion, like to continue the hearing they cannot do so; of
course, if prohibition goes it will stop them from giving any
decision, and if prohibition does not go they can give their
decision. For myself, I would say that where there is a clear
question of law not depending upon particular facts—
because there is no fact in dispute in this case—there is no
reason why the applicants should not come direct to this
court for prohibition rather than wait to see if the decision
goes against them, in which case they would have to move
for certiorari.
What Lord Goddard is referring to in that pas
sage when he uses the word "decision" is a
decision by the tribunal in the purported exer
cise of its "jurisdiction or powers" and not a
decision as to whether it has jurisdiction in the
particular matter. This is clear from his state
ment that "if the prohibition does not go, they
can give their decision".
IV. I think it is worthwhile adding a further
comment to what I said in the Appendix to my
Reasons in the Cylien case. It is, of course, for
Parliament to decide, as a matter of policy, to
what extent the proceedings of administrative
tribunals should be subject to judicial supervi
sion. The task of the courts is to interpret and
implement the statutes whereby Parliament
manifests its decisions. However, it is not
entirely irrelevant to judicial interpretation of a
statute that the view adopted is calculated, and
the alternative view is not calculated, to attain
the object of the st tute. See section 11 of the
Interpretation Act.' in my view, the object of
sections 18 and 28 of the Federal Court Act is
to provide a speedy and effective judicial super
vision of the work of federal boards, commis
sions and other tribunals with a minimum of
interference with the work of those tribunals.
Applying section 11 of the Interpretation Act,
with that object in mind, to the question raised
by these section 28 applications, it must be
recognized that the lack of a right to have the
Court review the position taken by a tribunal as
to its jurisdiction or as to some procedural
matter, at an early stage in a hearing, may well
result in some cases, in expensive e�kl�arings_
'being abortive. On the other hand, a right,
vested in a party who is reluctant to have the
tribunal finish its job, to have the Court review
separately each position taken, or ruling made,
by a tribunal in the course of a long hearing
would, in effect, be a right vested in such a
party to frustrate the work of the tribunal. On
balance, it would seem that the object of section
7 Section 11 of the Interpretation Act, R.S.C. 1970, c.
I-23, reads as follows:
11. Every enactment shall be deemed remedial, and
shall be given such fair, large and liberal construction and
interpretation as best ensures the attainment of its
objects.
28 is more effectively achieved by leaving the
right to invoke judicial review to the stage after
the tribunal has rendered its decision. There will
then have been no unnecessary delay in cases
where the tribunal has been guilty of no error in
its intermediate positions and rulings and, even
when the tribunal has erred at an intermediate
stage, in the vast majority of cases, such errors
will not have affected the ultimate result in such
a way as to warrant invoking judicial review.
Admitting that there may be problems that
should be solved judicially at an intermediate
stage, surely no party should have the right to
decide whether a situation has arisen in which
that should be done. It is not without interest, in
this connection, that Parliament has given the
tribunal the necessary discretion to deal with
such problems. See section 28(4) of the Federal
Court Act which authorizes a tribunal "at any
stage of its proceedings" to refer "any question
or issue of law, of jurisdiction or of practice and
procedure" to the Court for "hearing and
determination".
* * *
PRATrE J. and HYDE D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.