T-1679-75
"B" (Applicant)
v.
The Commission of Inquiry pertaining to the
Department of Manpower and Immigration and
The Honourable Madam Justice Claire L'Heu-
reux-Dubé (Respondents)
and
The Attorney General for Canada (Intervener)
Trial Division, Addy J.—Montreal, June 2;
Ottawa, June 24, 1975.
Practice — Extraordinary remedies — Inquiry — Applicant
requesting declaration that respondents lack jurisdiction to
allege misconduct, and prohibition—Preliminary objections—
Whether prohibition available due to nature of finding
required to be made by Commissioner—Whether declaratory
proceedings can be commenced by originating notice—In-
quiries Act, R.S.C. 1970, c. I-13, Part II, s. 6—Federal Court
Act, ss. 18, 28 and Rule 603.
During an inquiry, testimony arose alleging misconduct by
applicant. Commission counsel urged consideration of recom
mending a misconduct charge. Applicant, by originating notice,
requests a declaratory order that respondents lack jurisdiction
to so allege, and prohibition. Respondents and intervener con
tend that prohibition is not available by reason of the nature
and consequences of the finding required under The Inquiries
Act, and that declaratory proceedings cannot be commenced by
originating notice.
Held, dismissing the motion on the basis of the preliminary
objections. For prohibition to lie, there must be the exercise of
judicial or quasi-judicial power. The scope of the functions is
the key, and the fact that one's rights might be affected does
not make the procedure judicial, or quasi-judicial. Since no
right is being determined, and the Commission's duty is merely
to report, it is exercising neither function and prohibition will
not lie. Where a board is not performing such functions, proper
procedure is by action for equitable declaratory relief, and the
proper party is the Attorney General, unless the Act allows the
board to be sued directly, in which case, other relief might also
be available. Where no other remedy exists, the Court should
not fail to grant declaratory relief simply because of lack of
precedent. As to section 18(a) of the Federal Court Act,
Parliament did not intend to make all of the forms of relief
mentioned applicable against every federal tribunal, regardless
of functions. Since a judicial or quasi-judicial board was never
subject to Court action or equitable remedies, and since relief is
available under section 28, section 18 does not create a new
remedy by way of declaratory order in such case. Section 18(a)
must be taken to grant jurisdiction in the case of a non-judicial
board. The section merely grants jurisdiction which may be
exercised if and to the extent that the board is subject to court
control. Any declaratory judgment against the Attorney Gener
al would have the same effect as one against the board, and
section 18(a) should not be construed as now extending juris
diction to the making of a declaratory order in an action where
a tribunal, not normally suable, would be defendant rather than
the Attorney General. As to Rule 603, in authorizing the
instituting of prohibition and certiorari by way of action, while
departing from precedent, it is merely a procedural matter, and
does not change the general law that such tribunals are not
normally amenable to court action.
Driver Salesmen, Plant Warehouse and Cannery
Employees v. Board of Industrial Relations ( 1967) 61
W.W.R. 484; Gruen Watch Company of Canada Limited
v. Attorney-General of Canada [1950] O.R. 429; Radio-
CHUM 1050 Ltd. v. Toronto Board of Education [1964] 1
O.R. 599 and Dundurn Foods Ltd. v. Allen [1964] 2 O.R.
75, discussed. Howarth v. National Parole Board
(1975) 18 C.C.C. 385; Calgary Power Ltd. v. Copithorne
[1959] S.C.R. 24; Rex v. Legislative Committee of the
Church Assembly [1928] 1 K.B. 411; Guay v. Lafleur
[1965] S.C.R. 12; St. John v. The Vancouver Stock and
Bond Company Limited [1935] S.C.R. 441; Godson v.
City of Toronto (1891) 18 S.C.R. 36; Dyson v. Attorney
General [1911] 1 K.B. 410; Samuels v. Attorney General
for Canada (1956) 1 D.L.R. (2d) 110; Simmonds v.
Newport Abercarn Black Vein Steam Coal Company
Limited [1921] 1 K.B. 616; Grauer Estate v. The Queen
[1973] F.C. 355; Hanson v. Radcliffe Urban District
Council [1922] 2 Ch. 490, applied. Saulnier v. Quebec
Police Commission (unreported, S.C.C. Feb. 13, 1975)
distinguished. Landreville v. The Queen [1973] F.C. 1223,
followed.
APPLICATION.
COUNSEL:
D. Boudreau and J. Grey for applicant.
J. Ahern for respondent.
J. Ouellet and G. Côté for intervener.
SOLICITORS:
Lapointe, Rosenstein & Konigsbert, Mont-
real, for applicant.
Ahern, de Brahant, Nuss & Drymer, Mont-
real, for respondents.
Deputy Attorney General of Canada for the
intervener.
The following are the reasons for judgment
rendered in English by
ADDY J.: This is one of three applications for
prohibition brought by three separate employees of
the Department of Manpower and Immigration in
Montreal to prohibit the respondent Commissioner
from making a finding against them pursuant to
the terms of the order-in-council authorizing her
appointment.
Counsel for the applicant, in each case, as well
as counsel for the respondents agreed that, for the
purposes of the three applications, the facts and
legal issues involved in each case were identical
and that all three motions would be argued to
gether. Counsel on behalf of the Attorney General
for Canada requested that his client be granted
leave to intervene in this application as an inter-
vener and not as a party respondent. On consent,
the request was granted.
At the request of counsel for the applicant in
each case and with the consent of counsel for the
respondents and for the intervener, since the
matter involved alleged acts of sexual misconduct
with certain female immigrants, I issued an order
to the effect that neither the name of the applicant
nor any of the persons involved be divulged to the
public and that, until further order, the style of
cause would be amended to read as above.
By order-in-council, dated the 30th of October,
1973, revoking a former order-in-council to the
same effect, dated the 10th of August, 1973, The
Honourable Madam Justice Claire L'Heureux-
Dubé, a puisne judge of the Superior Court for the
District of Quebec, was appointed a commissioner
under Part 2 of the Inquiries Act' to investigate
and report upon certain specific matters pertaining
to the Department of Manpower and Immigration.
The relevant operative portions of the order-in-
council read as follows:
... to investigate and report upon the state and management of
that part of the business of the Department of Manpower and
Immigration (hereinafter referred to as "the Department")
pertaining to
R.S.C. 1970, c. I-13.
(a) the subject matter of, matters related to and the process
ing of the following Montreal files of the Department,
namely: (over one hundred files are referred to here by their
file numbers);
(b) ... (not relevant to present issue)
(c) ... (not relevant to present issue)
(d) the conduct of any person who is or was in the service of
the Department so far as that conduct relates to his official
duties in respect of any of the matters referred to in para
graphs (a), (b), (c) or (e); and
(e) any matters incidental or relating to any of the matters
referred to in paragraphs (a) to (d).
At the original hearing before the Commission,
the applicant, who was represented by counsel, and
other witnesses testified with regard to intimate
relations which he allegedly had with two female
persons who were applying for landed immigrant
status. As a result of that testimony, counsel for
the Commission, in the presence of the applicant
and his counsel, reviewed the evidence on this issue
and made certain representations to the Commis
sion and urged that the Commissioner consider
recommending that a charge of misconduct be
brought against him.
Apparently, in order to comply with section 13
of the Inquiries Act, counsel for the Commission,
prior to making these representations, advised the
applicant in writing of his intention to do so and,
after the representations were in fact made by
counsel, the Commissioner adjourned the hearing,
notified the applicant in writing of the date fixed
for the resumption of the hearing, namely, the
22nd of May 1975, and advised him in the same
letter that at that date she would be examining the
evidence with a view to considering the representa
tions on the issue of all allegations of misconduct
brought against him by counsel for the Commis
sion and invited him at the same time to be present
either with or without counsel to be heard on the
issue, if he so desired.
On the day before the date fixed for the resump
tion of the hearing, the applicant, by way of
originating notice of motion, requested relief as
follows:
1. a declaratory order to the effect that the
respondents had no jurisdiction to make any
report alleging misconduct against him; and
2. a writ of prohibition or order of prohibition
against the respondents to enjoin them to desist
from any further proceedings which might lead
to the bringing of any such accusation of
misconduct.
On being served with the application for prohi
bition, the Commission adjourned its proposed
hearing of the 22nd of May to allow the present
motion to be heard.
The motion before me was first argued on the
26th of May 1975. At that time, the case was
argued entirely on the basis of a writ of prohibition
and neither counsel addressed argument in any
way to the question of whether a declaratory order
could or should be granted.
At the request of counsel for the respondents
made on the day following the argument of the
case, a new date was fixed to hear a motion to
re-open argument. The merits were ultimately fur
ther argued at length before me on the 5th of June
1975 at which time I brought to the attention of
counsel the fact that the issue of whether a
declaratory judgment should be rendered had not
been argued and apparently had not been con
sidered by counsel and also the fact that, if such
relief were requested, the proceedings to obtain
same, if one were to conform to Rule 603, could
not be instituted by way of an application under an
originating notice of motion, but only by way of an
action instituted by statement of claim pursuant to
Rule 400.
Counsel for the applicant, on being advised of
what the situation appeared to be in so far as the
Court was concerned, clarified his position by
stating that the application was definitely to be
considered as one for a declaratory order or judg
ment, as either a joint or an alternative remedy.
When I asked counsel for the intervener and for
the respondent whether they would consent to the
Court considering the present application as con
stituting also an action in which they were defend
ants, they both refused and insisted that the
motion of the applicant was to be proceeded with
as such and as presently constituted. They both
argued that, altogether apart from the merits of
the case, the application should be dismissed
because prohibition was not available at law
against the respondents by reason of the nature
and consequences of the finding required to be
made by a commissioner under the Inquiries Act,
and insisted that proceedings for a declaratory
judgment could not be instituted by means of an
originating notice of motion.
The answer to both these preliminary objections
can best be arrived at after considering modern
jurisprudence on the subject in the light of the
history as well as of the basic nature of these
remedies.
At common law, the prerogative writs of prohi
bition, certiorari and mandamus (i.e., the old pre
rogative writ of mandamus as opposed to equitable
mandamus to enforce a legal right or as contrasted
with the equitable mandatory order or injunction)
were granted exclusively by the common law
Courts of the King or Queen's Bench and con
stituted a class of process by which inferior bodies,
including those which are an emanation of the
Crown, were answerable to the controlling juris
diction of superior courts. The proceedings, lead
ing to the issue of such prerogative writs, could not
be instituted by ordinary action for the simple
reason that the courts and the judicial bodies, who
were subject to such process being used against
them, were not liable to be sued; the only persons
liable to be sued were individuals and corporations.
Therefore, the proceedings for prerogative writs
had to be instituted by special application to the
Court by way of motion. (See Rich v. Melancthon
Board of Health' and Hollinger Bus Lines Lim
ited v. Ontario Labour Relations Board 3 .)
On the other hand, relief by way of injunction,
declaratory judgment, mandatory injunction or
equitable mandatory order were exclusively equi
table remedies and the proceedings were instituted
in the Court of Chancery by means of a bill in
equity. The Exchequer Court in England originally
possessed also the equitable jurisdiction to issue
declaratory judgments against the Crown.
A true distinction between these remedies
became obscured to some extent when the courts
of equity and of common law were fused and, in
more recent years, the distinction became further
obscured because in most jurisdictions all of these
remedies, whatever may have been their origin, are
2 (1912) 26 O.L.R. 48.
3 [1952] O.R. 366 at 379.
now enforceable in the same manner, that is, by
way of direct order of the Court. Furthermore,
where the proceedings for the prerogative common
law remedies, for the reasons previously stated,
could be initiated only by special application to the
Court, in certain courts today such as the Federal
Court of Canada (see Rule 603), the proceedings
may now be instituted by way of a statement of
claim.
But neither the fact that all the above-men
tioned remedies may now be obtained from the
same forum, nor the fact that the relief may be
initiated by means of the same type of proceed
ings, nor the fact that the method of enforcing all
of these remedies (by court order) is identical, in
any way changes or alters their basic nature or
purpose, and it is still the law that where prohibi
tion or certiorari lies neither injunction nor any
other equitable remedy such as specific perform
ance, mandatory injunction or equitable man-
damus will lie and the converse is equally true.
(See Hollinger Bus (supra) and Howe Sound
Company v. International Union of Mine, Mill
and Smelter Workers (Canada), Local 663 4 .)
It has been firmly established from the very
beginning, and it is still the case today, that, in
order to be subject to control by means of prohibi
tion, the person or body must be exercising a
judicial or quasi-judicial function.
The scope of the functions of the person, body or
commission exercising a power is the governing
factor in determining whether a judicial or quasi-
judicial function is being exercised and the mere
fact that a person's rights might be affected, as
opposed to being determined by the finding, does
not render the proceeding a judicial or quasi-judi
cial one.
The following decisions of the Supreme Court of
Canada are authority for these propositions,
namely:
1. Howarth v. National Parole Boards
4 [1962] S.C.R. 318.
(1975) 18 C.C.C. 385.
In determining whether or not a body or an individual is
exercising judicial or quasi-judicial duties, it is necessary to
examine the defined scope of its functions and then to deter
mine whether or not there is imposed a duty to act judicially.
Pigeon J., in delivering judgment for the majority
of the Supreme Court of Canada in the Howarth
case (supra), at page 389, approved the above-
mentioned quotation from a judgment of Martland
J. in Calgary Power Ltd. v. Copithorne 6 .
2. In the Calgary Power Ltd. case (supra), which
involved an expropriation effected by filing a
notice in the office of land titles, it was held that
the proceeding was non-judicial. Martland J. at
page 30, after having stated the principle which
Pigeon J. quoted in the Howarth case (supra),
approved the statement of Hewart L.C.J. in Rex v.
Legislative Committee of the Church Assembly'
at page 415 wherein the latter stated:
... it is not enough that it should have legal authority to
determine questions affecting the right of subjects; there must
be superadded to that characteristic the further characteristic
that the body has the duty to act judicially.
3. The case of Guay v. Lafleur' held an investiga
tion under the Income Tax Act to be truly
administrative as the taxpayer's rights were not
affected by the investigation. His rights only may
be affected after the assessment which then gives
him full right to be heard and to avail himself of
the mechanism for the various appeals provided
for under the Act.
4. In St. John v. The Vancouver Stock and Bond
Company Limited 9 an investigation was held
under the Securities Fraud Prevention Act of Brit-
ish Columbia to determine whether a fraudulent
act or an offence against the Act had been com
mitted, and it was held that such an investigation
was not a judicial or quasi-judicial proceeding in
any sense and that the mere fact that a person's
rights might be affected, as opposed to being
determined, is not sufficient to make that proceed
ing a judicial or quasi-judicial one.
6 [1959] S.C.R. 24.
' [1928] 1 K.B. 411.
s [1965] S.C.R. 12.
9 [1935] S.C.R. 441.
5. The case of Godson v. City of Toronto 10 per
tains to an inquiry by a judge as persona designata
under a resolution of a municipal council passed
pursuant to the provisions of the Municipal Act,
where an investigation was carried out as to
whether there had been fraud or misconduct, or
misfeasance or breach of trust on the part of any
person having a contract with the municipality.
The Act provided that the Judge would have the
powers of a commissioner under a Public Inquiries
Act and was under the duty to report. The judg
ment of the Court of Appeal of Ontario was
upheld by the Supreme Court of Canada and it
was held that in no sense did this constitute a
judicial proceeding, as the object was to obtain
information for the council as to the conduct of
their members, officers and contractors and upon
this report the council might, in their discretion,
take action.
On the question of whether the inquiry under
consideration in this motion was a judicial or
quasi-judicial inquiry, counsel for the applicant
relied almost entirely on the recent unanimous and
as yet unreported decision of the Supreme Court
of Canada in the case of Saulnier v. Quebec Police
Commission and Montreal Urban Community".
In this case, a writ of evocation pursuant to the
Quebec Civil Code was sought by the appellant
against the respondent Commission which was
created by the Minister of Justice and Attorney
General for Quebec, pursuant to the provisions of
section 20 of the Police Act of that Province and
was charged with inquiring into the conduct of the
appellant as Director of the Police Department of
the City of Montreal and with reporting to the
Minister. The Commission found that Jacques
Saulnier lacked the qualifications and the capacity
to fulfill the position and recommended to the
Minister that, pursuant to a section of the provin
cial statute establishing the Police Department, he
consider taking action against the appellant.
Subsequently, the Minister wrote to the Commis-
10 (1891) 18 S.C.R. 36.
"Judgment delivered on February 13, 1975.
sion advising them that he intended to implement
the recommendation to the effect that the appel
lant be evaluated as to his aptitude, apparently
with a view to determining to what inferior rank
he should be demoted.
At this stage of the proceedings the issue of a
writ of evocation was sought. The application of
the appellant was granted by the Trial Judge
whose decision was reversed by the Court of
Appeal of the Province of Quebec and was rein
stated by unanimous decision of the Supreme
Court of Canada. It is possible that, in contraven
tion of a specific statutory provision in the Police
Act giving him the right to be heard, the appellant
might have been denied that right at the hearing,
but this issue was very definitely not before the
Supreme Court of Canada, for Pigeon J., who
delivered the unanimous decision of that Court,
stated quite categorically that no finding as to the
merits was being made but that the finding was
entirely as to whether the case was a proper one
for the issue of a writ if the circumstances war
ranted it. The matter was decided in favour of the
appellant on the sole ground that the Commission
was exercising a judicial or quasi-judicial function
because it was charged with making an investiga
tion report which "may have important effects on
the rights of persons dealt with in it" and because
it was one which "impaired" the rights of the
appellant.
This decision has caused me great concern, fol
lowing as it does within four months of the
Howarth decision (supra) of the same Court and
having regard to what appears to be the ratio
decidendi in the Howarth decision which in turn
followed the Calgary Power case (supra) and the
other cases to which I have referred, which were
decided by that same Court. I inquired of all of the
counsel at the hearing whether any of them could
reconcile the ratio decidendi in the Saulnier case
with that of the Howarth case and the other cases
which the Howarth case followed and no satisfac
tory solution could be suggested.
Although, as stated by Pigeon J. in the Saulnier
case, even though the Commission was reporting
to the Minister who, strictly speaking, still had the
legal right to implement or to refuse to implement
the recommendations, and although from a practi
cal standpoint, it must almost be taken for granted
that he would follow the recommendation of the
Commission which he had set up, yet, it must be
remembered that in the Howarth case there was
no other authority whatsoever capable of dealing
with the question of revocation of parole and that
the decision was final from every standpoint and
did not constitute merely a report to a higher
authority. Again in the Howarth case, the Board
was dealing with the liberty of the subject while in
the Saulnier case it was concerned with conditions
of his employment and his possible demotion.
No previous decision was referred to in the
Saulnier case except the case of Guay v. Lafleur
(supra) which is distinguished on the basis that the
rights of the taxpayer were held to not even be
affected by the assessment. Since the Howarth
case which, as stated before, has followed several
previous decisions of the Supreme Court of
Canada was in no way mentioned in the Saulnier
case, I cannot conclude that in the Saulnier case
the Court intended to change the law or reverse its
view of the law as expressed by its majority judg
ment in the former case. Nor can I subscribe
either to the view of counsel for the applicant that
the Saulnier case can be construed as authority for
the proposition that the mere fact that a person is
given the statutory right to be heard by a board or
a commission makes that proceeding a judicial or
quasi-judicial one. The Saulnier case does not
purport to establish this principle. In this respect, I
draw considerable comfort from the decision of my
brother Collier J. in the case of Grauer Estate v.
The Queen 1 z where he held that, in hearings under
section 18 of the Expropriation Act 13 as to the
necessity for the expropriation, where specific
provision is made for the parties to be heard, those
hearings are still purely administrative proceedings
since the hearings result merely in a report being
made and since the presiding officer has no power
to make a decision.
The principle that a statutory right to be heard
does not necessarily constitute the board or person
dealing with the matter, a quasi-judicial tribunal
12 [1973] F.C. 355.
13 R.S.C. 1970, (1st Supp.) c. 16.
was also recognized implicitly by Cartwright J., as
he then was, in the case of Guay v. Lafleur (supra)
where at page 18 of the report he stated:
Generally speaking, apart from some statutory provision
making it applicable, the maxim "audi alteram partem" does
not apply to an administrative officer whose function is simply
to collect information and make a report ....
My brother Pratte J., sitting as a member of the
Trial Division in the case of Landreville v. The
Queen 14 , held that the proper procedure in the case
of a commissioner appointed under Part I of the
Inquiries Act is to sue for a declaratory judgment
and that certiorari or an order to quash is not
available on the grounds that one can only quash a
determination or decision. Following this case and
relying on the Howarth case and more specifically
on the Godson case (supra) as well as the other
related decisions of the Supreme Court of Canada,
I find no difficulty in coming to the conclusion
that in the case at bar, since no right is being in
any way determined and since the duties and
functions of the Commission are merely to report,
it is not exercising a judicial or quasi-judicial
function and, therefore, prohibition will not lie
against the Commission, notwithstanding the fact
that the right of the applicant to his reputation
might well be seriously affected by the report and
notwithstanding the fact that Part II of the In
quiries Act includes a statutory right to be heard.
The sole duty under Part II is to "investigate and
report." (Refer section 6.)
Having decided that the applicant is not entitled
to prohibition, I must now consider whether he is
entitled to a declaratory judgment or order against
the Commission itself and whether he is entitled to
it in the proceedings as presently constituted.
Apart from special statutory provisions, a board,
commission or tribunal, which is not performing a
judicial or quasi-judicial function, is not itself
liable to direct control by the courts in any way; it
is not subject to prohibition or certiorari because it
is not an inferior board or tribunal over which the
'a [1973] F.C. 1223.
superior common law courts could exercise powers
of supervision, and it is not subject to any of the
above-mentioned equitable processes because it is
not liable to be sued as a party and is therefore not
itself amenable before the courts.
Although there are some isolated decisions to
the contrary, the great weight of Canadian juris
prudence follows the long established view that
certiorari and prohibition are not alternative reme
dies to an action for injunction or a declaration. In
any event, since a judicial tribunal or board is not
a suable entity, prohibition or certiorari must be
used and not a declaratory action (see Hollinger
Bus (supra) and Crédit Foncier Franco -Canadien
v. Board of Review 15 ) unless, of course, there is a
special statutory provision to the contrary.
In a case of alleged misuse of power where a
public board or commission, such as a labour
relations board is about to exercise or has exer
cised quasi-judicial functions, prohibition or cer-
tiorari will lie, but where it does not then, the
remedy, if there be one, should be by action. In the
latter case, the difficulty, of course, arises immedi
ately as to whether the board is an entity amenable
before the courts in an action. Besides individuals
and corporations, which could be always sued at
common law, legislation now permits the Crown
either directly or represented by the Attorney Gen
eral to be sued as of right. It also permits partner
ships to be sued and certain boards, commission
and officers where a special statute makes them
answerable before the courts as party defendants.
There are, therefore, five different types of entities
which may be sued.
In several cases, unincorporated boards have
been made the subject of successful injunctive
proceedings. In many of these cases, it appears
that the question as to whether the board itself is
amenable before the court as a party defendant
was not raised, but in the case of Driver Salesmen,
Plant Warehouse and Cannery Employees, Local
Union No. 987 of Alberta v. Board of Industrial
15 [1940] 1 D.L.R. 182.
Relations 16 , it was held that the unincorporated
board was subject to injunctive proceedings in an
action.
In other similar cases, where the question was
raised as to whether the board could be sued as a
party to an action, it was held that, although the
statute did not specifically say so, for the purpose
of a Labour Relations Act under which the board
was constituted, it was in fact a legal entity capa
ble of being sued for that purpose. This narrow
body of law, however, seems to be peculiar to
labour relations boards and appears to have arisen
to some extent, at least, by reason of the confusion
between the nature of an injunction and the nature
of remedies originally available only through pre
rogative writs. The better view by far is that the
procedure by way of motion requesting certiorari
or prohibition should be used where the board is
exercising a quasi-judicial function. Where the
board, on the other hand, is not exercising a
judicial or quasi-judicial function, then, the proper
proceeding would be by action for equitable
declaratory relief and the proper party would nor
mally be the Attorney General unless the statute
allows the board to be sued directly in which case
other relief as well might also be available such as
injunction, mandatory order, etc. See Joyce and
Smith Company Limited v. The Attorney General
for Ontario 17 ; Re Brown and Brock and the Rent
als Administrator 18 and the report of the appeal at
565; Hodge v. Attorney General 19 ; and Dyson v.
Attorney General 20 where Farwell L.J. at page 421
of the report stated:
1. In a case like the present the Attorney-General is properly
made defendant. It has been settled law for centuries that in a
case where the estate of the Crown is directly affected the only
course of proceeding is by petition of right, because the Court
cannot make a direct order against the Crown to convey its
estate without the permission of the Crown, but when the
interests of the Crown are only indirectly affected the Courts of
Equity, whether the Court of Chancery or the Exchequer on its
equity side (see Deare v. Attorney-General, 1 Y. & C. Ex. 197
at p. 208), could and did make declarations and orders which
16 (1967) 61 W.W.R. 484.
17 [1957] O.W.N. 146.
IS [1945] O.R. 554.
I9 (1839) 3 Y. & C. Ex. 342.
Y 0 [1911] 1 K.B. 410.
did affect the rights of the Crown. The two cases of Pawlett v.
Attorney-General, Hardres' Rep. 465, and Hodge v. Attorney-
General, 3 Y. & C. Ex. 342, on the one hand and Reeve v.
Attorney-General, 2 Atk. 223, on the other are good illustra
tions of the distinction. [The underlining is mine.]
In the case of Samuels v. Attorney General for
Canada 21 Johnson J.A. stated at page 114:
Dealing first with the appeal of the Air Transport Board, it is
argued that this Board is not a legal entity and cannot be made
a party to this action. Counsel concedes that in certiorari or
prohibition proceedings such statutory bodies may be made
parties for the purpose of permitting them to be heard but that
there is no such right in actions such as the present. No
authorities were cited in support of this proposition and on
principle there appears to be no valid distinction between cases
where, for instance, the jurisdiction of a tribunal is questioned
on certiorari and where it is done by a declaratory judgment.
Nor is their right limited to cases where such a Board wishes to
appear. Every right carries a corresponding liability. If they
have a right to come into Court they have a right to be sued at
least for a declaratory judgment of the kind asked for here. A
recent example of the statutory Board being sued for a declara-
tory judgment on a question of jurisdiction is Barnard v. Nat'l
Dock Labour Board, [1953] 1 All E.R. 1113. [The underlining
is mine.]
I respectfully disagree with this statement that
there is no valid distinction between cases where
the jurisdiction of a tribunal is questioned on
certiorari or by a declaratory judgment for the
simple reason that a judicial tribunal cannot be
made the party to an action or the subject of a
regular suit and, therefore, cannot be made the
subject of a declaratory judgment without special
provision authorizing such a procedure, and vice
versa, a person or entity capable of being sued in
an action cannot be made the subject of a certio-
rari application. Although no authorities to sup
port this were quoted to the learned Judge in the
case before him, there does exist, as cited above, a
wealth of authorities covering this proposition.
Even without statutory authorization, declarato-
ry judgments are granted in respect of persons
holding office under the Crown in the right of
Canada when exercising a power not authorized by
21 (1956) 1 D.L.R. (2d) 110.
statute. (See Gruen Watch Company of Canada
Limited v. The Attorney-General of Canada 22 and
Landreville v. The Queen (supra).)
A declaratory judgment when no incidental
relief is sought is not a judgment which is given as
of right in all cases where circumstances warrant
it. It is a judgment given in the exercise of a
judicial discretion and the discretion must be exer
cised with the utmost caution. (See Gruen Watch
(supra); Markwald v. Attorney-General 23 ; and
also Russian Commercial and Industrial Bank v.
British Bank for Foreign Trade Limited24.)
On the other hand, the word "relief" must be
given a very broad and liberal interpretation as
stated by Bankes L.J. in Simmonds v. Newport
Abercarn Black Vein Steam Coal Company
Limited 25 at page 626:
There is also a passage in my judgment which seems appropri
ate and I therefore repeat it. After saying that in my opinion it
is open to the Court to grant a declaration in any case in which
the person claiming the declaration can be said to be seeking
relief, I went on:—"What is meant by this word "relief'?
When once it is established, as I think it is established, that
relief is not confined to relief in respect of a cause of action, it
seems to follow that the word itself must be given its fullest
meaning. There is, however, one limitation which must always
be attached to it, that is to say, the relief claimed must be
something which it would not be unlawful or unconstitutional
or inequitable for the Court to grant or contrary to the accept
ed principles upon which the Court exercises its jurisdiction.
Subject to this limitation I see nothing to fetter the discretion
of the Court in exercising a jurisdiction under the rule to grant
relief, and having regard to general business convenience and
the importance of adapting the machinery of the Courts to the
needs of suitors I think the rule should receive as liberal a
construction as possible." [The italics are mine.]
As to the right of this Court to interfere, I agree
with Warrington L.J. in Hanson v. Radcliffe
Urban District Council 26 at page 508 where he
stated:
Here is a public body, entitled under certain circumstances to
interfere with the rights of other persons. It does so with no
authority. It seems to me it would be nothing short of a disaster
if the Court had no power to make a declaration upholding the
22 [1950] O.R. 429.
23 [1920] 1 Ch. 348 at 357.
24 [1921] 2 A.C. 438 at 445.
25 [1921] 1 K.B. 616.
26 [ 1922] 2 Ch. 490.
rights of those other parties and restraining that wrongful
interference.
Past jurisprudence seems to make it clear that,
where no other remedy is available, the Court
should not hesitate to give declaratory relief in a
truly deserving case, merely because there appears
to be a lack of precedent and the law seems clear
that the power to grant such a relief is a broad
one, although it is a discretionary power which
must be very carefully and prudently exercised.
In the light of the above, one may now consider
section 18 of the Federal Court Act in so far as it
applies to a claim for declaratory relief. The sec
tion reads as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, 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 proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
One must consider whether in paragraph (a) the
words "grant declaratory relief, against any feder
al board, commission or other tribunal" mean that
a declaratory order or judgment can be granted
against any federal board, commission or tribunal
regardless of whether it acts in a judicial capacity
or not or whether they mean that a declaratory
order or judgment can be granted only against
those exercising non-judicial functions. The answer
depends to a large extent on the meaning which is
to be given to the words "any federal board,
commission or other tribunal" as they might apply
to other forms of relief mentioned in the para
graph. Since the forms of relief are quite distinct
in their nature and purpose, I cannot subscribe to
the view that, in using the words "any board, etc."
in an enactment such as this which grants jurisdic
tion to a court, Parliament intended also to make
such substantial and extensive changes to the law
as to make all of the forms of relief mentioned
applicable as such, against all and every federal
board, etc., regardless of their respective functions.
Jurisdiction is given to the Court over any federal
board or tribunal and the relief mentioned may be
granted by the Federal Court against any such
board, etc., in so far as the latter is subject to
control, having regard to the fundamental nature
of the relief sought and to the character and
function of the Board against whom relief is
sought. The Federal Court, being a statutory tri
bunal, does not possess the inherent right of super
vision which the superior courts of the provinces
possess and, for it to exercise any jurisdiction
whatsoever, that jurisdiction must be granted to it
by statute. I certainly cannot envisage section 18
as creating the members of the Trial Division as
some sort of federal ombudsmen nor can I see it as
creating new rights of action against all federal
boards and tribunals which would be the case if,
for instance, injunction and mandamus were con
sidered as being available indiscriminately against
all such boards and tribunals, regardless of their
functions.
In the case of a declaratory order, since a board
or commission, exercising judicial or quasi-judicial
powers, was never subject to court action or to
equitable remedies or processes, and since the
required relief against any such body is available
by prohibition or by judicial review by the Court
of Appeal under section 28, I cannot envisage
section 18 as creating a new remedy by way of
declaratory order in such case. Declaratory judg
ments are not available in the case of decisions or
actions of any such body. However, since some
meaning must be given to the words, they must
therefore be taken to grant jurisdiction in the case
of a federal board, etc., exercising non-judicial
functions.
The next question is whether the board, etc.,
should be sued as a party to the proceedings or
whether the Attorney General should be sued as a
party. Statutes granting jurisdiction should be res
trictively interpreted and, where a restricted inter
pretation will give full effect to the legislation,
there can be no possible justification whatsoever
for a more liberal interpretation of the enactment
from a jurisdictional standpoint.
For many years now, the Attorney General has
been answerable as a defendant in declaratory
actions where the matters concern the improper
use of authority by officers of the Crown or bodies
exercising powers under the Crown. It must also
be borne in mind that declaratory judgments, as
opposed to executory judgments, cannot be
enforced against the unsuccessful party by execu
tion or other coercive process or decree such as
fine or imprisonment for contempt, but, as the
name implies, merely declare or proclaim the
existence of a legal relationship, duty or state of
affairs in the circumstances of the case. Although
the judgment itself is not executory, if any person
acts against the declaration the subsequent acts
become unlawful and might well entitle the
aggrieved party subsequently to claim damages or
some other relief. It therefore follows that any
declaratory judgment against the Attorney Gener
al would have the same legal effect as one against
the Board itself and I can see no valid reason why
section 18(a) should be interpreted as now extend
ing the jurisdiction to the making of a declaratory
order in an action where a board, not normally
capable of being sued, would be the defendant
rather than the Attorney General.
Section 18(b), in so far as the present case is
concerned, does not assist the applicant as it
specifically refers to "relief in the nature of that
contemplated by paragraph (a)." The relief has to
be of the same nature and, for example, would
include such matters as mandatory injunction or
equitable mandatory relief which are of the same
nature as injunctive relief and are distinct from yet
similar in some respects to legal mandamus.
It has often been said that Parliament is pre
sumed to be aware of the existing law when enact
ing a statute and, for that reason also, I feel that
declaratory relief described in section 18(a) of the
Federal Court Act must be taken to mean declara-
tory relief where bodies are not exercising judicial
or quasi-judicial functions but are merely persons
or bodies exercising powers of a non-judicial char
acter. Such bodies are undoubtedly one of the
types of entities defined as constituting a federal
board, commission or other tribunal pursuant to
section 2 of the Act. This is all the more evident if
one is of the view that the remedy by way of
injunction, which is mentioned in section 18(a),
can only avail against the person or legal body
which is not exercising a judicial or quasi-judicial
function while certiorari and prohibition can only
avail against the body that is doing so.
Although they are not required to be considered
in deciding the present case, several interesting
questions do arise in section 18 as to injunction
and mandamus regarding who should be sued and
to what extent and against whom the remedies are
available. These remedies would not be available
against any board, etc., exercising judicial powers
nor is the Crown subject to injunction or man-
damus. It would seem, therefore, that in such a
case, if subject to any such action, the board or
commission itself would have to be the named
party defendant and not the Attorney General. A
further question arises as to whether the jurisdic
tion can be exercised only where a particular law
or statute authorizes the body to be sued or wheth
er section 18 itself creates on the part of all federal
boards exercising non-judicial powers a general
liability to be sued for those remedies. As previous
ly stated, I am of the view that the section merely
grants the Court a jurisdiction which may be
exercised if and to the extent that any particular
board, commission, etc., is subject to judicial
control.
Rule 603 of the Federal Court, in stating that a
proceeding for declaratory relief must be instituted
by means of an action, is thus merely conforming
to the law and procedure as it has always existed.
It might be said, however, that, in authorizing
prohibition and certiorari to be instituted by way
of action, Rule 603 provides a rather novel depar
ture from long-established precedent since, for the
reasons I have stated already at some length,
tribunals, courts and bodies exercising quasi-judi
cial functions which are subject to prohibition and
certiorari are not amenable to an action. However,
this provision in Rule 603 must be considered
merely a procedural matter giving the person
claiming the relief the right to avail himself in
normal circumstances of the procedure of plead-
ings, discoveries, etc., before proceeding to have
the claim for relief heard and does not, in my view,
in any way attempt to change the general law to
the effect that such tribunals are not amenable to
court action, for, if it did, it would almost certainly
be considered ultra vires since liability for court
action is not created by rules of court but by
statute.
Since the respondents do not consent, the proce
dure adopted in Radio-CHUM 1050 Ltd. v.
Toronto Board of Education 27 and in Dundurn
Foods Ltd. v. Allen", of considering the present
application as if it were an action, is not available
to the applicant.
There was no application made to the Court to
waive the provisions of Rule 603 but, even if there
had been, it would have been refused for, when a
rule of court is merely re-stating a basic principle
of procedure, especially one involving the initiation
of proceedings, which has been in effect for centu
ries and which, except on consent of the parties,
has never been deviated from, then, the Court
should abide by the established procedure.
Therefore, since no action has been instituted
and also since the Attorney General has not been
made a defendant to any such action, the request
for a declaratory relief is denied.
As I am dismissing the motion on the basis of
the preliminary objections by the respondents, I
am deliberately refraining from expressing any
views as to the merits, although they were exten
sively argued before me. Any expression of opinion
on the merits, whether favourable or unfavourable
to the applicant, might well have the same effect
as if the Court had in fact made a declaration and
I have already decided that I must not do so in
these proceedings.
27 [1964] 1 O.R. 598.
28 [1964] 20.R.75.
The motion is dismissed. The respondents will
be entitled to their costs but the intervener will
not.
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.