A-795-77
Constable Gary Michael Rogers (Applicant)
v.
National Harbours Board and Lieutenant Thurlow
G. McGrath (Respondents)
Court of Appeal, Pratte, Heald and Urie JJ.—
Halifax, April 19 and 20, 1978.
Judicial review — Jurisdiction — Decision in question
pronounced by police officer acting under provisions of collec
tive agreement — Decision required to be made on a judicial
basis by Board directive whose procedural requirements
adopted by collective agreement between Board and Police
Association — No statutory authority for Board's issuance of
directive — Decision is not reviewable, not being.a decision of
federal board required by law to be made on a judicial or
quasi-judicial basis — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Bruce W. Evans for applicant.
Martin C. Ward and Allison Pringle for
respondents.
SOLICITORS:
Bruce W. Evans, Dartmouth, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: We are all of opinion that the
decision under attack is not reviewable under sec
tion 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, since it is not a decision of a
federal board that is required by law to be made
on a judicial or quasi-judicial basis.
The requirement that the decision in question be
made on a judicial basis is found in a directive
made by the National Harbours Board and, also,
in the collective agreement between the Board and
the Police Association of Nova Scotia (Local 112).
It is common ground that the National Har
bours Board had no statutory authority to issue the
directive which, therefore, is nothing more than a
purely administrative direction having, in itself, no
legal effect. The directive, for that reason, is not a
law requiring the decision to be made on a judicial
basis.
Counsel for the applicant argued that the collec
tive agreement, which adopts the procedural
requirements of the directive, is such a law.
Is the collective agreement, which adopts the
procedural requirements of the directive, such a
law? Counsel for the applicant says that it is since
it is legally binding upon the Board, the Police
Association and the employees by virtue of section
154 of the Canada Labour Code, R.S.C. 1970, c.
L-1. This contention must, in our view, be rejected.
We are of opinion that, in order for a decision to
be reviewable under section 28, the requirement
that it be made on a judicial or quasi-judicial basis
must flow directly from the provisions of a federal
statute or statutory regulation; it is not sufficient
that this requirement be found in a collective
agreement or other contractual arrangement.
We wish to add that, in our view, the decision
here under attack was not made by a "federal
board, commission or other tribunal" within the
meaning of section 2 of the Federal Court Act.
That decision was pronounced by a police officer
acting under the provisions of the collective agree
ment. That officer, it seems, was then exercising
powers conferred by the collective agreement
rather than "powers conferred by or under an Act
of the Parliament of Canada".
For these reasons, the application will be dis
missed with costs.
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.