T-4668-77
Inuit Tapirisat of Canada and The National Anti-
Poverty Organization (Plaintiffs)
v.
His Excellency the Right Honourable Jules Léger,
the Right Honourable P. E. Trudeau, the Honour
able A. Abbott, W. Allmand, R. Andras, S. R.
Basford, M. Bégin, J. J. Blais, J. J. Buchanan, I.
Campagnolo, J. Chrétien, F. Fox, A. Gillespie, J.
P. Goyer, J. Guay, J. H. Horner, D. Jamieson, M.
Lalonde, O. E. Lang, R. Leblanc, M. Lessard, D.
J. Macdonald, D. S. Macdonald, A. J. Mac-
Eachen, J. Munro, L. S. Marchand, A. Ouellet, R.
Perrault, J. Roberts, J. Sauvé, E. F. Whelan
(collectively referred to as the Governor in Coun
cil), Attorney General of Canada and Bell Canada
(Defendants)
Trial Division, Marceau J.—Ottawa, February 14
and March 9, 1978.
Practice — Application to strike out — Statement of claim
alleging breaches of natural justice when Governor in Council
considered plaintiffs' petition — Plaintiffs seeking certiorari
to set aside decisions of Governor General in Council found in
two Orders in Council, and alternatively, declaration that
Orders in Council invalid because Governor General in Council
could not make them without giving plaintiffs a hearing
according to the principles of natural justice — Whether or
not a reasonable cause of action — Federal Court Rule
419(1)(a) — Railway Act, R.S.C. 1970, c. R-2, s. 320(2) —
National Transportation Act, R.S.C. 1970, c. N-17, s. 64(1).
This is an application to strike out plaintiffs' statement of
claim on the ground that it discloses no reasonable ground of
action. Shortly after the CRTC approved a new rate structure
for Bell Canada, plaintiffs filed petitions with the Clerk of the
Privy Council, pursuant to section 64(1) of the National
Transportation Act, requesting defendants to set aside portions
of the CRTC's decision relevant to their objections, and to
substitute a new order. Plaintiffs, in their statement of claim,
alleged that breaches of the rules of nat ral justice occurred
when the Governor General in Council as considering the
plaintiffs' petition and sought a writ of certiorari to set aside
decision as found in two Orders in Council, and alternatively, a
declaration that the Orders in Council were invalid because the
Governor General in Council could not make them without
giving plaintiffs a hearing in accordance with the principles of
natural justice.
Held, the application is granted. The orders of the Governor
General in Council are not amenable to certiorari; the plaintiffs
are not entitled to the first remedy they pray for. The Governor
General in Council in exercising the authority conferred by
section 64(1) is under a duty to give a party a hearing in
accordance with the rules of natural justice. There is nothing in
the relevant statute that could be interpreted as requiring the
Governor General in Council to observe the principles of natu
ral justice in carrying out the duty therein vested in him. The
Governor General in Council's decisions under 64(1) are made
on the basis of political accountability and not on a judicial or
quasi-judicial basis. To import into the processes of the Gover
nor's Council and of the Cabinet the procedural requirements
flowing from the audi alteram partem rule is so inconsistent
and incompatible with their normal functioning as the execu
tive arm of the Government and with the responsibility and
accountability of the Ministers of the Crown to the House of
Commons, that it cannot be imposed unless the intent of
Parliament to that effect is expressed in the governing statute
or may be easily derived from the language used therein.
R. v. The Lords Commissioners of the Treasury (1872)
L.R. 7 Q.B. 387, applied. Border Cities Press Club v.
Attorney-General of Ontario [1955] 1 D.L.R. 404,
applied. CSP Foods Ltd. v. Canadian Transport Commis
sion [1979] 1 F.C. 3, considered.
APPLICATION.
COUNSEL:
Andrew J. Roman for plaintiffs.
G. W. Ainslie, Q.C., and E. A. Bowie for all
defendants except Bell Canada.
E. E. Saunders, Q.C., for defendant Bell
Canada.
SOLICITORS:
Andrew J. Roman, Ottawa, for plaintiffs.
Deputy Attorney General of Canada for all
defendants except Bell Canada.
Guy Houle, General Counsel, Bell Canada,
for defendant Bell Canada.
The following are the reasons for order ren
dered in English by
MARCEAU J.: This is an application, on behalf
of all defendants except Bell Canada, pursuant to
Rule 419(1)(a) of the General Rules of this Court,
for an order striking out the statement of claim on
the ground that it discloses no reasonable cause of
action.
The allegations of the statement of claim can be
summarized as follows.
Pursuant to subsection 320(2) of the Railway
Act, R.S.C. 1970, c. R-2,' as amended by item 5
of the Schedule to the Canadian Radio-television
and Telecommunications Commission Act, S.C.
1974-75-76, c. 49, Bell Canada applied on the 3rd
of November 1976 to the Canadian Radio-televi
sion Communication and Telecommunications
Commission (CRTC) for approval of a new rate
structure. The plaintiffs, two federations of groups,
one representing Canadians of Eskimo origin, the
other Canadians with low incomes, filed interven
tion statements opposing portions of this applica
tion. On the 1st of June 1977, following a lengthy
hearing throughout which both the plaintiffs par
ticipated actively, the CRTC issued its decision.
On the 9th and 10th of June 1977 respectively,
both the plaintiffs filed petitions with the Clerk of
the Privy Council requesting the defendants, the
applicants herein, the Governor General and the
members of his Council, to set aside the portions of
the decision relevant to their oppositions and to
substitute a new order therefor. These petitions
were made pursuant to section 64(1) of the Na
tional Transportation Act, R.S.C. 1970, c. N-17,
which provides as follows:
64. (1) The Governor in Council may at any time, in his
discretion, either upon petition of any party, person or company
interested, or of his own motion, and without any petition or
application, vary or rescind any order, decision, rule or regula
tion of the Commission, whether such order or decision is made
inter partes or otherwise, and whether such regulation is gener
al or limited in its scope and application; and any order that the
Governor in Council may make with respect thereto is binding
upon the Commission and upon all parties.
On the 29th of June 1977, Bell Canada filed
replies to the two petitions with the Clerk of the
Privy Council.
On the 14th of July 1977, the Governor General
in Council, by Orders in Council P.C. 1977-2026
1 320. . .
(2) Notwithstanding anything in any Act passed before the
7th day of July 1919, all telegraph and telephone tolls to be
charged by the company, and all charges for leasing or using
the telegraphs or telephones of the company, are subject to the
approval of the Commission, and may be revised by the Com
mission from time to time; this subsection does not apply to the
use of telegraph or telephone wires where no toll is charged to
the public.
and P.C. 1977-2027, dealt with the two petitions
refusing to vary the decision of the CRTC.
These decisions of the Governor General in
Council, goes on the declaration, were arrived at
before the plaintiffs had had time to file a reply to
the reply of Bell Canada and without their being
given an opportunity to be heard. The actual sub
missions of the parties were not presented to "the
members of the Governor General in Council" but
rather, evidence and opinions were obtained from
officials of the Department of Communications
and the Minister responsible, none of these opin
ions being communicated to the plaintiffs. The
CRTC was even requested to express its views
which were never made available to the plaintiffs.
Submitting that "the Defendant Governor General
in Council was required to decide these appeals
himself and to reach these decisions by means of a
procedure which is fair and in accordance with the
principles of natural justice", the plaintiffs then
pray for the following reliefs:
i) A writ of certiorari removing into this Court a record of the
proceedings before the Governor-in-Council, to set aside the
decisions of the Governor-in-Council, made or purported to
have been made therein, as found in Orders-in-Council PC
1977-2026 and PC 1977-2027.
ii) In the alternative, a declaration that the procedure employed
by the Governor-in-Council in these two appeals resulted in:
a) no hearing having been held, or in the alternative,
b) such hearing as was held was not a full and fair hearing,
in accordance with the principles of natural justice.
This statement of claim, contends the applica
tion, reveals no cause of action since the facts as
alleged cannot give rise to the reliefs sought: it
should therefore be struck out. A preliminary
remark should here be made.
Counsel for the plaintiffs reminded me that the
jurisdiction of the Court under Rule 419(1) (a) 2
ought to be exercised sparingly. I fully agree,
although I am not sure all of the English authori
ties cited in support of the proposition are here
really convincing (see Dyson v. Attorney-General
[1911] 1 K.B. 410). A helpful summation of the
matter is to be found in Page v. Churchill Falls
(Labrador) Corp. Ltd. [1972] F.C. 1141 where the
Chief Justice of this Court had this to say (at page
1144):
It is, of course, not appropriate in every case to have a
question of law as to the legal position determined as a thresh
old matter even though it can be framed as a question based on
an assumption of the truth of allegations in the pleadings.
Compare Drummond-Jackson v. British Medical Association
[1970] 1 W.L.R. 688. In my view, it is not possible to lay down
any general rule as to when it is appropriate and when it is not
appropriate to adopt such a course. It must be determined, in
each case, having regard to all the circumstances of the particu
lar case.
The circumstances of this case led me to believe
that it was proper for me to entertain the applica
tion as made. True, an important question of law
was involved which could have been raised by way
of defence (as was done by the other party, Bell
Canada), or under Rule 474 of the General Rules
of the Court. But the question could be easily seen
and precisely defined immediately without any
possibility of its being altered or qualified by
further pleadings and moreover it was debated by
all parties in a long and elaborate hearing: I could
see no valid reason for refusing to deal with it,
bearing in mind of course that, at such an early
stage of the proceedings, the order sought was to
be granted only if I could come to the conclusion
that there was no issue which could be better
explored at a trial, the action as it stood being
clearly unsustainable.
That being said, I turn now to the merit of the
applicants' contention.
The principal relief sought by the action is the
issue of a writ of certiorari addressed to the Gover
nor General in Council to set aside the decisions
2 Rule 419(1)(a) reads as follows:
Rule 419. (1) The Court may at any stage of an action order
any pleading or anything in any pleading to be struck out, with
or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as
the case may be,
found in Orders in Council P.C. 1977-2026 and
P.C. 1977-2027. The fact that the proceedings for
this prerogative common law remedy can be
instituted in this Court by way of a statement of
claim (Rule 603 of the General Rules of the
Court) does not change or alter its basic nature or
purpose. Thé Court is asked to exercise its tradi
tional certiorari jurisdiction and to make a certio-
rari order against the Governor General in Coun
cil. That, in my view, is not possible; the Governor
General in Council being the Crown, the Court
has simply no jurisdiction to do so. As stated by
Cockburn C.J. in The Queen v. The Lords Com
missioners of the Treasury (1872) L.R. 7 Q.B.
387 at p. 394, cited with approval so many times
since and again recently by Rand J. in Border
Cities Press Club v. Attorney-General of Ontario
[1955] 1 D.L.R. 404 at p. 414: "The Court cannot
claim even in appearance to have any power to
command the Crown; the thing is out of the ques
tion". No further comments are required: the
orders of the Governor General in Council are not
amenable to certiorari; the plaintiffs are not en
titled to the first remedy they pray for.
This conclusion, however, is far from being deci
sive. Indeed, the action seeks an alternative
remedy, a declaratory order, and the jurisdiction
of the Court to grant such a relief, in the circum
stances of the case, can certainly not be discarded
in the same way. A declaratory order implies no
command. It is well established that, while a Court
cannot review a decision of the Governor General
in Council made pursuant to a royal prerogative
per se, it can no doubt review an act done by the
Governor General in Council pursuant to the exer
cise of a statutory power (see for instance Border
Cities Press Club v. Attorney-General of Ontario
[1955] 1 D.L.R. 404; Re Doctors Hospital and
Minister of Health (1976) 68 D.L.R. (3d) 220; Re
Davisville Investment Co. Ltd. v. City of Toronto
(1977) 15 O.R. (2d) 553). Needless to repeat that
the Governor General in Council is not above the
law and that his statutory powers must be exer
cised within the limits, for the purpose of, and
according to the law.
I think at this point of my reasoning I should in
a parenthetical remark take the opportunity to
refer to the alternative submission of the appli
cants in their notice of motion to the effect that in
an action where a plaintiff is seeking to move
against an Order in Council, the Attorney General
is the proper party and the only party that need be
named in the proceedings. The submission appears
to me to be well founded (see Desjardins v. Na
tional Parole Board [ 1976] 2 F.C. 539; `B" v.
Department of Manpower and Immigration
[1975] F.C. 602). However, in view of the general
conclusion I have reached, I need not express a
definite opinion on the matter.
The plaintiffs' action therefore, in so far as it
seeks a declaratory judgment, does not raise a
preliminary question of jurisdiction, as does their
action for a certiorari order. The action, however,
raises an important question of law which must be
properly defined.
Taken literally, the declaration sought as formu
lated in the prayer for relief is meaningless. At this
stage, however, it cannot be isolated and must be
understood with reference to the whole of the
proceeding. The declaration really sought is that
the Orders in Council are invalid because the
Governor General in Council could not make them
without giving the plaintiffs "a full and fair hear
ing, in accordance with the principles of natural
justice", which was not done. It must be admitted
that all of the allegations of the statement of claim
lead to that submission, but at the same time it
must be noted that it is the only conclusion to
which they lead. No other issue is raised: there is
no question of bias, or of lack of good faith, or of
improper delegation, or of abuse of power, or of
wrong criteria having been applied, to refer to the
other most common grounds usually alleged to
impugn the order of a public authority. The attack
on the two Orders in Council is based on a single
legal proposition: in exercising the power entrusted
to him by section 64(1) of the National Transpor
tation Act, the Governor General in Council is
duty bound to give a petitioner the full hearing
required to give due effect to the so-called princi
ples of natural justice. The proposition being flatly
denied by the application, the question raised
becomes simple and clear.
I have come to the conclusion that the answer to
the question so put is likewise simple and clear: the
Governor General in Council in exercising the au
thority conferred by section 64(1) is not under a
duty to give a party a hearing in accordance with
the rules of natural justice.
There is nothing in the relevant statute that
could be interpreted as requiring the Governor
General in Council to observe the principles of
natural justice in carrying out the duty which is
therein vested in him. The right given to an inter
ested party to make a petition can in no way be
construed as meaning a right to be called for a
hearing or to be given an opportunity to offer
evidence or argument. Of course, it is well known
that a duty to observe the audi alteram partem
rule may be implied—regardless of the absence of
any express statutory requirements to that effect—
when on consideration of the statutory provisions
and the nature of the situation to which they
apply, it appears that the powers conferred on a
tribunal are of a judicial or quasi-judicial nature.
But, the Governor General in Council in carrying
out his duties under section 64(1), is not, in my
view, exercising a judicial or quasi-judicial power.
In a recent judgment rendered on January 30,
1978, in CSP Foods Ltd. v. Canadian Transport
Commission [1979] 1 F.C. 3, the Appeal Division
of this Court commented on the nature of the
power conferred by section 64(1) of the National
Transportation Act. Speaking for the Court, Urie
J. had this to say [at pp. 9-10]:
With respect, I do not view the exercise of his powers by the
Governor in Council pursuant to section 64(1) as being in the
nature of a judicial appeal. It provides a means whereby the
executive branch of government may exercise some degree of
control over the Canadian Transport Commission to ensure
that the views of the government as to the public interest in a
given case, on the basis of facts established by this tribunal, can
be expressed by the executive and such views are implemented
by means of directions which it may see fit to give the tribunal,
through the Governor in Council. It is a supervisory role, as I
see it, not an appellate role. The Governor in Council does not
concern himself with questions of law or jurisdiction which is in
the ambit of judicial responsibility. But he has the power to do
what the Courts cannot do which is to substitute his views as to
the public interest for that of the Commission. (See Re Davis -
ville Investment Co. Ltd. v. City of Toronto (1977) 15 O.R.
(2d) 553 at 555-556.)
In my view, in making decisions under 64(1), the
Governor General in Council makes them on the
basis of political accountability and not on a judi
cial or quasi-judicial basis. The scheme of the
statutes pertaining to telecommunications is that
decisions involving broad economic questions are
entrusted to the CRTC which is under a strict
duty to hold a hearing and to afford the parties a
full opportunity to be heard. The Commission may
itself at any time review, rescind, change, alter or
vary any of its orders or decisions (section 63 of
the National Transportation Act), and these
orders or decisions, moreover are subject to appeal
to, and review by, the Courts (section 64(2) to (7)
of the Act). The power to "vary or rescind" en
trusted by section 64(1) to the Governor General
in Council is, as I understand it, a power of a
different nature altogether: it is a political power
for the exercise of which the Cabinet is to be
guided by its views as to the policy which in the
circumstances should be followed in the public
interest. Its exercise has nothing to do with the
judicial or quasi-judicial process. The party who
proceeds to adopt the means of questioning an
order or a decision of the CRTC provided by
section 64(1) is choosing to resort to a political,
not a judicial process.
Referring to some recent English cases, counsel
for the plaintiffs argued that it was enough for a
competent authority to be under a "duty to act
fairly", for it to be bound by the rules of a natural
justice and the audi alteram partem principle. The
argument, it seems to me, raises a question of
terminology rather than a question of substance
(see S.A. de Smith, Judicial Review of Adminis
trative Action, 3d ed., p. 347). In any event, the
so-called "duty to act fairly" must be understood
to mean a duty to adopt a fair procedure to give
due effect to the audi alteram partem maxim. My
reaction is the same. To import into the processes
of the Governor's Council and of the Cabinet the
procedural requirements flowing from the audi
alteram partem rule seems to me to be so incon-
sistent and incompatible with their normal func
tioning as the executive arm of the Government
and with the responsibility and accountability of
the Ministers of the Crown to the House of Com
mons, that it cannot be imposed unless the intent
of Parliament to that effect is expressed in the
governing statute or may be easily derived from
the language used therein.
For all these reasons, I think that the attack on
the Orders in Council launched by the plaintiffs in
their action, on the sole basis that they have not
been given a full and fair hearing in accordance
with the rules of natural justice, cannot succeed.
The motion to strike is therefore well founded and
it will be granted. Although Bell Canada chose to
raise the legal issue involved here by way of
defence, it participated in the hearing of the
instant application and asked that it be joined with
the other defendants-applicants. The statement of
claim will therefore be struck out as against all
defendants including Bell Canada and the action
dismissed.
ORDER
The application is granted with costs to the
applicants.
The statement of claim is struck out as against
all defendants and the action is dismissed with
costs to all defendants.
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.