A-500-77
Matsqui Institution Disciplinary Board (Appel-
lant)
v.
Robert Thomas Martineau (Respondent)
Court of Appeal, Jackett C.J., Heald J. and Kelly
D.J.—Vancouver, March 17, 1978.
Jurisdiction — Prerogative writs — Trial Division held it
had jurisdiction to hear application for certiorari re convic
tions made by appellant Board — Convictions, in other pro
ceedings, ruled administrative decisions by the Supreme Court
of Canada — Whether or not Trial Division has jurisdiction to
hear this application for certiorari — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28 — Federal Court
Rule 474(1)(a).
This is an appeal from a decision of the Trial Division under
Rule 474(1)(a). The proceeding was commenced by an origi
nating notice of motion for relief in the nature of a writ of
certiorari, but by agreement only the question of jurisdiction
was considered on the basis of its being an application under
Rule 474(1)(a). The Supreme Court of Canada earlier ruled
that the convictions to which the originating notice of motion
related were administrative decisions not required by law to be
made on a judicial or quasi-judicial basis.
Held, the appeal is allowed. Since the convictions were
administrative decisions not required by law to be made on a
judicial or quasi-judicial basis, it follows that the convictions in
question cannot be attacked under section 18 by certiorari or
proceedings in the nature of that contemplated by such a writ.
Certiorari continues to have application only where the decision
attacked is either judicial in character or required by law to be
made on a judicial or quasi-judicial basis.
Martineau and Butters v. Matsqui Institution Inmate
Disciplinary Board [1978] 1 S.C.R. 118, applied.
APPEAL.
COUNSEL:
J. R. Haig for appellant.
John W. Conroy for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Abbotsford Community Legal Services,
Abbotsford, for respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
JACKETT C.J.: This is an appeal from a judg
ment of the Trial Division [[1978] 1 F.C. 312]
under Rule 474(1)(a).'
The proceeding was launched in the Trial Divi
sion by way of an originating notice of a motion
for relief in the nature of a writ of certiorari.
When the motion was made, by agreement, only
the question of the jurisdiction of the Trial Divi
sion was considered "on the basis of it being an
application under Rule 474(1)(a)" and, decision
on that question having been reserved, in due
course judgment was rendered that the Trial Divi
sion does have jurisdiction to grant the relief
sought. This is an appeal from that judgment.
The originating notice of motion relates to "con-
victions" that were the subject of a section 28
application to this Court as a result of which it was
decided by the Supreme Court of Canada 2 that
this Court had no jurisdiction under that section
because, as we understand that decision, the "con-
victions" were administrative decisions that were
"not required by law to be made on a judicial or
quasi-judicial basis" within the meaning of those
words in that section.
In our view, it follows from that decision that
the "convictions" in question cannot be attacked
under section 18 of the Federal Court Act by a
' That Rule reads in part:
Rule 474. (1) The Court may, upon application, if it deems
it expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter, ...
and any such determination shall be final and conclusive for
the purposes of the action subject to being varied upon
appeal.
2 Martineau and Butters v. Matsqui Institution Inmate Dis
ciplinary Board [1978] 1 S.C.R. 118.
writ of certiorari or proceedings for relief in the
nature of that contemplated by such a writ. 3
While the ambit of certiorari has expanded over
the period that has elapsed since it was a writ
whose sole function was to enable a superior court
of law to review decisions of inferior courts of law,
in our opinion, it continues to have application
only where the decision attacked is either judicial
in character or is required by law to be made on a
judicial or quasi-judicial basis. We have not been
referred to any decision to the contrary. 4
As we view the matter, no good purpose would
be served at this stage, by a discussion of what is
meant by "judicial" or "quasi-judicial" as opposed
to "legislative", "executive" or "administrative".
3 Section 18 reads:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, ... 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 pro
ceeding for relief in the nature of relief contemplated by
paragraph (a), including any proceeding brought against
the Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
4 We are not overlooking the respondent's argument based on
Lord Reid's discussion of R. v. Electricity Commissioners
([1924] 1 K.B. 171 per Atkin L.J. at p. 205) in Ridge v.
Baldwin ([1964] A.C. 40), which was not a certiorari case, that
there is no authority for the requirement of a duty "to act
judicially". However a careful reading of R. v. London Bor
ough of Hillingdon, ex parte Royco Homes Ltd. ([1974] 2 All
E.R. 643 at pp. 647-648) where reference was made to the
same discussion, shows that the certiorari jurisdiction there
was, to a large extent, based on The King v. Hendon Rural
District Council [1933] 2 K.B. 696, where it was laid down
that the decision in question "was sufficiently near a judicial
decision to be the subject of a writ of certiorari." This line of
authority seems to support the view that, in modern times, a
decision does not have to be a judicial decision (in the strict
sense of that expression) to be the subject of certiorari but it is
no authority for the proposition that certiorari will lie where
the decision is not required to be made on a basis that bears
some resemblance to the judicial process. Just how strong a
resemblance there must be has not been made clear. Any
decision that is not judicial but is "sufficiently near a judicial
decision to be the subject of a writ of certiorari" is, in our view,
a decision that is required to be made on a "quasi-judicial
basis" within the meaning of those words in section 28.
When we read sections 18 and 28 of the Federal
Court Act, we cannot escape the conclusion that
the words "quasi-judicial basis" were intended to
include every method of reaching a decision or
order that would support an application by way of
certiorari other than a purely "judicial ... basis".
We are, therefore, of opinion that the appeal
should be allowed, that the judgment of the Trial
Division should be set aside and that it should be
adjudged that the Trial Division does not have
jurisdiction to grant the relief sought in the pro
ceedings in that Court. We are further of opinion
that the appellant is entitled to judgment for the
costs of the proceedings under Rule 474 and of the
appeal to this Court.
APPENDIX
In a probably futile attempt to avoid misunder
standing as to the effect of our decision, we deem
it advisable to say that, in our view, it does not
mean that there is an area where there is a legal
grievance for which there is no legal remedy. To
explain what we mean, we express the following
tentative views without taking any concluded posi
tion with regard to them.
1. While certiorari proceedings in the nature of
certiorari and section 28 applications are proceed
ings the purpose of which is to have orders or
decisions reviewed and set aside if ultra vires or
voidable 5 , a decision that is ultra vires or voidable
does not gain any force or effect because such a
proceeding is not available. It follows that such a
decision cannot be relied on as a defence to a
proceeding in a Court for something that, apart
from that decision, would be illegal. According to
the circumstances, therefore, such a decision
would not be a defence to a legal proceeding such
as habeas corpus, mandamus or prohibition.
5 Compare Wilby v. Minister of Manpower and Immigration
[1975] F.C. 636 at p. 641.
2. Fundamentally, what is meant by deciding
something on a quasi-judicial basis (leaving aside
possible bias) is that it be decided on a fair and
just basis. Ordinarily, this requires that a person
affected be given a fair opportunity to answer
what is alleged against him but, in circumstances
where that is not feasible (e.g. immigration border
examinations and proceedings of special tribunals
such as the English Gaming Board), something
less will meet the requirement.
3. There are, however, ministers and officials
who have purely administrative powers that are
not subject to judicial review. Such persons must
also exercise their powers on a fair and just basis
because they are acting on behalf of the public;
but they are answerable, not to the Courts, but to
their superiors or to the appropriate legislature.
They are not required to act on a quasi-judicial
basis.
4. Where a person is aggrieved by a decision
that should have been made on a quasi-judicial
basis, he may attack it by way of a certiorari,
proceedings in the nature of certiorari or section
28 proceedings; but where he has a grievance in
respect of other decisions that are required to be
made on a fair or just basis, (apart from an
allegation of nullity or voidability if the decision
becomes the subject of legal proceedings) his
remedy is political.
As we understand the decision of the Supreme
Court of Canada in the 1977 Martineau and
Butters case, it has been decided that the decisions
under attack in this case are not decisions that
were required to be made on a quasi-judicial basis.
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.