A-136-78
Inuit Tapirisat of Canada and The National Anti-
Poverty Organization (Appellants)
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. Biais, J. J. Buchanan, I.
Campagnolo, J. Chrétien, F. Fox, A. Gillespie, J.
P. Goyer, J. Guay, J. H. Homer, 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
(Respondents)
Court of Appeal, Pratte, Heald and Le Dain JJ.—
Ottawa, September 5 and November 17, 1978.
Practice — Appeal from order to strike out — Action
attacking two decisions of Governor in Council — Appellants'
actual submission not considered by Cabinet, but rather,
departmental synopsis, and submissions by CRTC and Minis
ter that not available to appellants — Whether Trial Division
erred in law in deciding Governor in Council not bound by
procedural requirements of natural justice — National Trans
portation Act, R.S.C. 1970, c. N-17, s. 64(1) — Federal Court
Rule 419(1 )(a).
This is an appeal from an order of the Trial Division striking
out a statement of claim. Appellants' action attacks two deci
sions of the Governor in Council by which the Governor in
Council declined to vary or rescind a decision of the CRTC.
The Governor in Council conducted the "hearing" in writing
but the actual written submissions of the parties were not
presented to the members of the Governor in Council who took
the decisions. What was submitted was a statement prepared by
officials of the Department of Communications indicating what
the officials considered were the positions of the parties and
what the views of the Department were in relation to the facts
and issues in appeal. The CRTC, through the Minister of
Communications, made submissions at the request of the Gov
ernor in Council, and the Minister, too, made submissions.
None of these, including evidence, was disclosed to the appel
lants. The question is whether the Trial Division erred in law in
concluding that the Governor in Council, when exercising the
authority conferred by section 64(1), is not bound by any
procedural requirements, whether they be characterized as the
principles of natural justice or a duty to act fairly.
Held, the appeal is dismissed. In view of the well-established
character of the proceedings in Cabinet and the Privy Council,
it would not be reasonable to ascribe to Parliament an intention
that the duty to act fairly should impose on the Governor in
Council any particular manner of considering a petition or
appeal, any particular limits to the right to consult, or any
particular duty of disclosure with respect to intra-governmental
submissions. The alleged submissions by the CRTC, whether
made directly or through the Minister of Communications,
must be seen as falling into that category of submissions. The
appellants' complaints do not give rise in law to the relief
sought.
Nicholson v. Haldimand-Norfolk Regional Board of
Commissioners of Police [1979] 1 S.C.R. 311, considered.
APPEAL.
COUNSEL:
B. A. Crane, Q.C. and A. J. Roman for
appellants.
G. W. Ainslie, Q.C. and E. A. Bowie for
respondents other than Bell Canada.
E. E. Saunders, Q.C. for respondent Bell
Canada.
SOLICITORS:
The Public Interest Advocacy Centre,
Ottawa, for appellants.
Deputy Attorney General of Canada for
respondents other than Bell Canada.
Bell Canada on its own behalf.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from an order of
the Trial Division [[1979] 1 F.C. 213] striking out
a statement of claim under Rule 419(1)(a) on the
ground that it does not disclose a reasonable cause
of action.
The appellants' action attacks two decisions of
the Governor in Council, embodied in Orders in
Council P.C. 1977-2026 and 1977-2027, by which
the Governor in Council declined to vary or
rescind, pursuant to section 64(1) of the National
Transportation Act, R.S.C. 1970, c. N-17, a deci
sion of the Canadian Radio-television and Tele
communications Commission (CRTC) respecting
an increase in the rates of Bell Canada.
The allegations of the statement of claim may
be summarized as follows. In November 1976, Bell
Canada applied to the CRTC to have its rates
increased. The appellants intervened to oppose cer
tain aspects of the application and participated
fully in the rate hearing. In June 1977, the CRTC
rendered a decision which denied the appellants
some of the relief sought. On June 9 and 10, 1977,
the appellants appealed the decision of the CRTC
to the Governor in Council pursuant to section
64(1), requesting the Governor in Council to set
aside part of the decision and to substitute its own
order therefor. On June 29, 1977, Bell Canada
submitted replies to the appellants' petitions to the
Governor in Council. In accordance with the cus
tomary practice the Governor in Council conduct
ed the "hearing" in writing, but the actual written
submissions of the parties were not presented to
the members of the Governor in Council who took
the decisions. What was submitted to them was a
statement prepared by officials of the Department
of Communications indicating what the officials
considered were the positions of the parties and
what the views of the Department were in relation
to the facts and issues in the appeal. The depart
mental submissions, which included evidence as
well as opinions, were not disclosed to the appel
lants. At the request of the Governor in Council
the CRTC made submissions through the Minister
of Communications, and the Minister herself made
submissions, but none of these submissions, includ
ing evidence, was disclosed to the appellants. The
Governor in Council decided not to vary or rescind
the decisions of the CRTC and issued Orders in
Council P.C. 1977-2026 and 1977-2027 on July
14, 1977 without waiting for the appellants' replies
to the submissions of Bell Canada.
The appellants complain in their statement of
claim that in proceeding in this manner the Gover
nor in Council denied them a fair hearing. They
conclude for the issue of a writ of certiorari and
alternatively for a declaration that they were
denied a fair hearing.
The Trial Division held that even if the allega
tions of the appellants' action were well founded
certiorari would not lie against the Governor in
Council. The appellants do not attack this
conclusion.
With respect to the claim for a declaration, the
Trial Division held that in the exercise of the
authority conferred by section 64(1) of the Na
tional Transportation Act the Governor in Council
was performing a "political" rather than a judicial
or quasi-judicial function and was, therefore, not
bound by the principles of natural justice. The
Trial Division further held that the Governor in
Council was not under a "duty to act fairly" in
exercising the power conferred by section 64(1).
Accordingly, the Trial Division struck out the
statement of claim and dismissed the action.
The question on appeal is whether the Trial
Division erred in law in concluding, in effect, that
the Governor in Council, when exercising the au
thority conferred by section 64(1), is not bound by
any procedural requirements, whether they be
characterized as the principles of natural justice or
a duty to act fairly.
The appellants seek a declaration that they were
denied "a full and fair hearing, in accordance with
the principles of natural justice". Viewed as a
whole, the statement of claim does not in my
opinion assert a right to an oral hearing' before the
Governor in Council, and I do not think the
learned Trial Judge disposed of the application to
strike on the assumption that it did. The Trial
Judge treated it as a claim to whatever natural
justice might require of the Governor in Council in
the circumstances, and held, in effect, that none of
the procedural requirements which might be called
for by natural justice apply to any extent and
under any circumstances to the power conferred by
section 64(1). He expressed the opinion [page 221]
that there was no essential difference between the
requirements of natural justice and a "duty to act
fairly", the latter being merely "a duty to adopt a
fair procedure to give due effect to the audi
alteram partem maxim". The learned Trial Judge
made the question whether the Governor in Coun
cil was required to observe the principles of natu
ral justice or to act fairly depend on whether he
was exercising a judicial or quasi-judicial power.
' The word "hearing" is often used in its strict sense to mean
an oral hearing. See Komo Construction Inc. v. Commission
des relations de travail du Québec [1968] S.C.R. 172 and
(Continued on next page)
At the time the Trial Division made its order I
would have thought, with respect, that this
approach would have found strong support in the
decisions of the Supreme Court of Canada con
cerning the application of the rules of natural
justice 2 . Since the order was made and since this
appeal was argued, however, the Supreme Court
has rendered a judgment in the case of Nicholson
v. Haldimand-Norfolk Regional Board of Com
missioners of Police 3 in which the majority of the
Court has held that there may be in certain cir
cumstances a procedural duty to act fairly that is
(Continued from previous page)
Commission des relations de travail du Québec v. Canadian
Ingersoll-Rand Co. Ltd. [1968] S.C.R. 695, and compare
Hoffman-La Roche Limited v. Delmar Chemical Limited
[1965] S.C.R. 575. But it is also used in a more general sense
in administrative law to mean an opportunity to present one's
case, at least in writing. See de Smith, Judicial Review of
Administrative Action, 3rd ed., p. 177. This would also appear
to be the sense in which the word "hearing" is used in s. 2(e) of
the Canadian Bill of Rights—"the right to a fair hearing in
accordance with the principles of fundamental justice for the
determination of his rights and obligations". Cf. Tarnapolsky,
The Canadian Bill of Rights, 2nd ed., p. 264. Viewed as a
whole, the statement of claim appears to use the word "hear-
ing" in this broad sense.
2 In recent years certain of the important cases in this area,
such as Howarth v. National Parole Board [1976] 1 S.C.R.
453, Martineau and Butters v. The Matsqui Institution Inmate
Disciplinary Board [1978] 1 S.C.R. 118, and The Minister of
Manpower and Immigration v. Hardayal [1978] 1 S.C.R. 470,
have involved construction of the words "required by law to be
made on a judicial or quasi-judicial basis" in section 28(1) of
the Federal Court Act and have thus necessarily been restricted
to a consideration of these words as a basis for the application
of the rules of natural justice, but the jurisprudence of the
Court, apart from these decisions (which undoubtedly served to
reinforce its general tendency) appears to have made the
traditional distinction between judicial or quasi-judicial func
tions and administrative functions the essential criterion for
application of thé rules of natural justice. See, for example,
L'Alliance des professeurs catholiques de Montréal v. The
Labour Relations Board of Quebec [1953] 2 S.C.R. 140, The
Board of Health for the Township of Saltfleet v. Knapman
[1956] S.C.R. 877, Calgary Power Ltd. v. Copithorne [1959]
S.C.R. 24, Ex parte McCaud [1965] 1 C.C.C. 168, Guay v.
Lafleur [1965] S.C.R. 12, Wiswell v. The Metropolitan Cor
poration of Greater Winnipeg [1965] S.C.R. 512, Walters v.
The Essex County Board of Education [1974] S.C.R. 481,
Roper v. Royal Victoria Hospital [1975] 2 S.C.R. 62, Saulnier
v. Quebec Police Commission [1976] 1 S.C.R. 572, and Mitch-
ell v. The Queen [1976] 2 S.C.R. 570.
3 [1979] 1 S.C.R. 311.
different from the traditional requirements of
natural justice and that does not depend for its
existence on the distinction between judicial or
quasi-judicial functions and administrative func
tions. The majority opinion of Laskin C.J.C. con
tains several references to commentaries on the
duty to act fairly from which it is reasonable, I
think, to draw this conclusion. For example, he
said [at page 324]: "I accept, therefore, for present
purposes and as a common law principle what
Megarry J. accepted in Bates v. Lord Hailsham
([1972] 1 W.L.R. 1373), at p. 1378, 'that in the
sphere of the so-called quasi-judicial the rules of
natural justice run, and that in the administrative
or executive field there is a general duty of fair
ness'." He also quotes [at page 326] with approval
what was said by Lord Pearson in Pearlberg v.
Varty, [ 1972] 1 W.L.R. 547, at p. 547: "But
where some person or body is entrusted by Parlia
ment with administrative or executive functions
there is no presumption that compliance with the
principles of natural justice is required, although,
as `Parliament is not to be presumed to act unfair
ly,' the courts may be able in suitable cases (per-
haps always) to imply an obligation to act with
fairness".
Whether the procedural duty of fairness is to be
regarded as something different from natural jus
tice or merely an aspect of it, the majority opinion
in the Nicholson case seems clearly to indicate
that its application is not to depend on the distinc
tion between judicial or quasi-judicial and
administrative functions. Referring to the "emer-
gence of a notion of fairness involving something
less than the procedural protection of traditional
natural justice", the Chief Justice said [at page
325]:
What rightly lies behind this emergence is the realization that
the classification of statutory functions as judicial, quasi-judi
cial or administrative is often very difficult, to say the least;
and to endow some with procedural protection while denying
others any at all would work injustice when the results of
statutory decisions raise the same serious consequences for
those adversely affected, regardless of the classification of the
function in question: see, generally, Mullan, Fairness: The New
Natural Justice (1975), 25 Univ. of Tor. L.J. 281.
In view of this decision it is not sufficient in my
respectful opinion, when a question is raised as to
a duty to act fairly in a procedural sense, to find
that the function or power in issue is neither
judicial nor quasi-judicial. Counsel for the
respondents submitted that the statement of claim
does not raise the question of a duty to act fairly as
something distinct from natural justice. The pre
cise conceptual relationship of a procedural duty to
act fairly to the rules of natural justice is not so
clear in my opinion that one should make technical
distinctions between them the basis for striking out
a statement of claim. In my view the statement of
claim contains a sufficient allegation of a denial of
a "fair hearing" to permit the appellants to invoke
the duty to act fairly as a basis of their claim. I do
not think that references to natural justice in a
case such as this one should preclude reliance on a
duty to act fairly'. The specific complaints of the
appellants concerning the procedure that was fol
lowed are clearly set forth in the statement of
claim. The question is whether any or all of them
reflect procedural requirements that apply to the
Governor in Council when exercising the authority
conferred by section 64(1) of the National Trans
portation Act.
There is a body of judicial dicta equating natural justice
with procedural fairness. See, for example, Lord Reid in Wise-
man v. Borneman [1971] A.C. 297 at p. 308: "Natural justice
requires that the procedure before any tribunal which is acting
judicially shall be fair in all the circumstances ..." ; Lord
Morris of Borth-y-Gest in the same case at p. 309: "Natural
justice, it has been said, is only 'fair play in action' ", and in
Furne!! v. Whangarei High Schools Board [1973] 2 W.L.R. 92
at p. 105: "Natural justice is but fairness writ large and
juridically. It has been described as 'fair play in action' ";
Laskin C.J.C. in Walters v. The Essex County Board of
Education [1974] S.C.R. 481 at p. 486: "... what is conven
iently and compendiously called natural justice, a duty of
procedural fairness to persons in the, course of lawful interfer
ence with various of their interests, including interests in prop
erty"; Barwick C.J. in Salemi v. Minister for Immigration and
Ethnic Affairs (1977) 51 A.L.J.R. 538 at p. 540: "... once it is
concluded that the power of decision or action is dependent on
the observance of natural justice, fairness in the particular
circumstances will determine what must needs be done to
satisfy natural justice."
Procedural fairness, like natural justice, is a
common law requirement that is applied as a
matter of statutory interpretation. In the absence
of express procedural provisions it must be found
to be impliedly required by the statute. It is neces
sary to consider the legislative context of the
power as a whole. What is really in issue is what it
is appropriate to require of a particular authority
in the way of procedure, given the nature of the
authority, the nature of the power exercised by it,
and the consequences of the power for the
individuals affected. The requirements of fairness
must be balanced by the needs of the administra
tive process in question.
Section 64(1) of the National Transportation
Act, which confers the authority that is in issue in
the present case, reads 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.
It is to be observed, first of all, that the author
ity conferred by section 64(1) is a very general
one, applying not only to orders or decisions of the
Commission in individual cases, but to rules and
regulations of a general nature. It is an authority
which the Governor in Council may exercise on his
own initiative as well as upon the petition or
application of an interested party, person or com
pany. It is clear, therefore, that Parliament could
not have contemplated that the exercise of the
authority would in all cases be subject to the
observance of certain minimal procedural require
ments. The question is whether it is reasonable to
ascribe to Parliament an intention that such
requirements should govern an exercise of the
authority in a case such as the present one, where
the appeal is by an intervener from a decision that
may be regarded as having been made inter partes
within the meaning of section 64(1).
The decision from which the appeal was brought
in this case was a decision of the CRTC in the
exercise of its jurisdiction under sections 320 and
321 of the Railway Act, R.S.C. 1970, c. R-2, to
regulate telephone tolls or rates. Such tolls are
subject to approval by the Commission, and they
must be just and reasonable and free from dis
crimination. The rules of procedure governing tele
communications proceedings provide for a public
hearing of an application for a rate increase at
which interveners, such as the appellants, are
afforded a full opportunity to present their case.
As appears from the allegations of the statement
of claim, this procedure was followed with respect
to the application of Bell Canada for an increase in
its rates. The nature of the decision in such a case,
as well as the procedure to be followed, would
appear to make it one that may be characterized
as at least quasi-judicial in nature. By section
64(2) of the National Transportation Act an
appeal lies by leave to this Court from such a
decision on a question of law or jurisdiction.
The grounds on which one may appeal to the
Governor in Council under section 64(1) are not
specified. The section merely provides that the
Governor in Council may in his discretion vary or
rescind the decision of the Commission. Obviously
the discretion is a broad one permitting the Execu
tive Government to take into consideration ques
tions of general policy, but the considerations on
which it may exercise the discretion must presum
ably be reasonably related to the purposes or
object for which the regulatory jurisdiction with
respect to telephone rates is established. The
courts have affirmed that there is no such thing as
an unlimited discretion, even when conferred upon
Ministers of the Crown: Roncarelli v. Duplessis
[1959] S.C.R. 121; Padfield v. Minister of
Agriculture, Fisheries & Food [1968] A.C. 997.
And this doctrine has been applied to hold the
exercise of a statutory discretion by a Lieutenant-
Governor in Council invalid on the ground that it
was based on extraneous considerations: Re Doc
tors Hospital and Minister of Health (1976) 68
D.L.R. (3d) 220 5 . Whether in a given case an
As to whether the limits which apply to an exercise of
ministerial discretion are properly applicable to a statutory
discretion of the Governor in Council, it is interesting to
compare what was said by Dixon J., as he then was, in
Australian Communist Party v. The Commonwealth 83 C.L.R.
1 at pp. 178-179 and by Holmes J.A. in N.S.W. Mining Co. Pty
Ltd. v. A.-G. for New South Wales (1966-67) 67 S.R.
(N.S.W.) 341 at pp. 362-363.
exercise of the discretion under section 64(1) can
as a practical matter be made effectively review-
able is, of course, another question. But the princi
ple remains: in exercising the discretion in a case
involving the jurisdiction of the CRTC in relation
to telecommunications, the Governor in Council is
expected to direct his mind to telecommunications
policy in the broadest sense and not to consider
ations which are clearly foreign to this particular
governmental responsibility. Interested parties
have a right to assume that this will be the basis on
which the discretion is exercised, and to direct
their submissions accordingly. Because, however,
of the broad scope of the policy considerations that
may be relevant to the exercise of discretion, the
authority conferred could not by any of the appli
cable criteria be characterized as a judicial or
quasi-judicial power. The Governor in Council
may in a particular case consider the precise issues
of fact, law and policy that were before the Com
mission but he is not confined to them. He may
decide upon the basis of broader considerations of
policy.
In this respect the authority conferred by section
64(1) may be contrasted with the power of the
Lieutenant-Governor in Council to make Crown
grants of land upon "reasonable proof" of certain
facts that was held in Wilson v. Esquimalt and
Nanaimo Railway Company [1922] 1 A.C. 202 to
be a judicial function. This case does serve to
emphasize, however, that there is nothing inherent
in the nature or composition of the Executive
Government, whether it be the Lieutenant-Gover
nor in Council or the Governor in Council, or in its
manner of reaching decisions, that makes it impos
sible or impracticable to require of it in appropri
ate cases that within certain limits it should act
judicially or fairly. To the authority of the Wilson
case on this point may be added the expression of
judicial opinion in Border Cities Press Club v.
Attorney-General of Ontario [1955] 1 D.L.R.
404, at p. 412, where Pickup C.J.O., delivering the
judgment of the Ontario Court of Appeal, said: "I
agree with the learned Judge in Weekly Court, for
the reasons stated by him, that the power con
ferred is conditional upon sufficient cause being
shown, and that without giving the respondent an
opportunity of being heard, or an opportunity to
show cause why the letters patent should not be
forfeited, the Lieutenant-Governor in Council
would not have jurisdiction under the statute to
make the order complained of."
The appellants referred the Court to reports of
decisions of the Governor in Council on appeals
from the former Board of Railway Commissioners,
in particular, Governments of Manitoba and Sas-
katchewan v. Railway Association of Canada
(1923) 26 C.R.C. 147 and Re Railway Freight
Rates in Canada (1933) 40 C.R.C. 97, as showing
the practice that was formerly followed with
respect to the hearing of such appeals. Although
practice of this kind cannot be the foundation of a
legal right to a particular form of procedure, the
practice does serve to suggest that there is nothing
inherently impossible in a hearing by a committee
of the Privy Council.
While the authority conferred by section 64(1)
cannot, for the reason indicated, be characterized
as judicial or quasi-judicial, I cannot see why the
duty to act fairly which was affirmed in the
Nicholson case should not in principle be appli
cable to the Governor in Council when dealing
with an interested party who exercises the right of
petition or appeal. The authority is not the general
political power of the Cabinet but a specific statu
tory authority, which, because it contemplates a
right of petition or appeal, is clearly conferred at
least in part for the benefit of persons whose
interests may be affected by a decision of the
Commission. It is reasonable I think, to ascribe to
Parliament an intention that such persons should
within certain limits be dealt with fairly from a
procedural point of view. The question is what
those limits must be, having regard to the nature
of the Governor in Council or the formal Execu
tive, and the manner in which it acts by long-
established constitutional convention and practice.
In practice a decision involving an exercise of
authority by the Governor in Council is taken by
Ministers of the Crown and given legal expression
in the form of advice submitted to the Governor
General for his approval by the Cabinet or certain
members thereof acting as a committee of the
Privy Council 6 . The proceedings of the Cabinet
and Privy Council are subject to a principle of
secrecy or confidentiality by reason of the oath of
secrecy which all members of the Privy Council
take.
In view of this well-established character of the
proceedings in Cabinet and the Privy Council, it
would not in my opinion be reasonable to ascribe
to Parliament an intention that the duty to act
fairly should impose on the Governor in Council—
that is, in effect, on the Cabinet—any particular
manner of considering a petition or appeal, any
particular limits to the right to consult, or any
particular duty of disclosure with respect to intra-
governmental submissions. These are all matters
which go to the very heart of the Cabinet's need to
be the master of its procedure and to receive from
governmental sources the advice it requires con
cerning policy under the protection of the secrecy
which all members of Council have sworn to
observe. It is for the Prime Minister to advise the
Governor General as to the extent to which Cabi
net secrecy is to be relaxed or waived in particular
cases. These are fundamental principles of the
constitution, and any departure from them could
only be justified by a much clearer expression of
Parliament's intention than that which may be
inferred from the terms of section 64(1). The
alleged submissions by the CRTC in this case,
whether made directly or through the Minister of
Communications, must be seen, I think, as falling
into the category of advice to the Governor in
Council from governmental sources. Because of
the importance of being able to obtain such advice
in an uninhibited manner it would require a clear
expression of intention from Parliament to justify
the imposition of a duty of disclosure on the
Cabinet. Such a duty would profoundly change the
character of Cabinet deliberations. I am therefore
of the opinion that the appellants' complaints that
the Governor in Council did not consider the
actual submissions of the appellants but only a
summary thereof and did not disclose to the appel
lants the submissions that he received from gov
ernmental sources do not give rise in law to the
relief sought.
6 See Mallory, The Structure of Canadian Government, pp.
62-68.
The question whether the appellants were
denied a fair opportunity to reply to the submis
sions of Bell Canada raises in my opinion an issue
of a different order. Here Bell Canada, as one of
the parties to the dispute, had been given an
opportunity to answer the petition of the appel
lants. Was the nature of this answer and the issues
raised by it such that fairness required that the
appellants be given a reasonable opportunity to
reply? If so, was the delay of some two weeks
before the decision of the Governor in Council was
released a reasonable one in the circumstances?
These are obviously questions of fact. Natural
justice has not recognized a right of reply as a
general principle. It has been treated as depending
on what fairness required in the particular circum
stances of each case, having regard to the neces
sary right of an administrative authority to deter
mine when it has heard sufficiently from interested
parties to give it a basis for decision. See Forest
Industrial Relations Limited v. International
Union of Operating Engineers Local 882 [1962]
S.C.R. 80; Komo Construction Inc. v. Commission
des relations de travail du Québec [1968] S.C.R.
172; Wiseman v. Borneman [1971] A.C. 297; Re
Cypress Disposal Ltd. and Service Employees
International Union, Local 244 (1975) 50 D.L.R.
(3d) 150. The same approach would appear to be
appropriate in the case of the duty to act fairly.
Since the question is essentially one of fact, one
cannot say before the issue has been tried that the
statement of claim does not disclose a reasonable
cause of action.
For these reasons I would allow the appeal and
set aside the order of the Trial Division striking
out the statement of claim, with costs in this Court
and in the Trial Division.
* * *
PRATTE J.: I agree.
* * *
HEALD J.: I concur.
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.