T-2333-80
Dr. May S.M. Tsang (Applicant)
v.
Medical Council of Canada—Le Conseil médical
du Canada (Respondent)
Trial Division, Jerome A.C.J.—Ottawa, December
5, 1980 and February 25, 1981.
Practice — Motion to strike pleadings — Application by
respondent to strike out action for want of jurisdiction — The
Medical Council of Canada, created in 1952 by an Act of
Parliament, was issued letters patent in 1976 pursuant to Part
III of the Canada Corporations Act — Whether Council is a
'federal board, commission or other tribunal" — Whether
Federal Court has jurisdiction to entertain the action —
Application dismissed — The Council is an "other tribunal"
pursuant to s. 2 of the Federal Court Act — The issuing of
letters patent does not repeal the provisions of the 1952 statute
and does not alter in any way the national and public nature of
the responsibilities of the Council — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 2.
Wilcox v. Canadian Broadcasting Corp. [1980] 1 F.C.
326, distinguished.
APPLICATION.
COUNSEL:
J. Arthur Cogan, Q.C. for applicant.
Peter Newcombe, Q.C. and David C. Woods
for respondent.
SOLICITORS:
Cogan & Cogan, Ottawa, for applicant.
(fowling & Henderson, Ottawa, for respond
ent.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: In this action, a preliminary
question of the jurisdiction of the Federal Court of
Canada having been raised by the respondent, I
first heard counsel on this preliminary matter,
then invited written submissions, and after an
examination of the written submissions, invited
counsel to re-attend to deliver final oral argument.
Having carefully considered all submissions, I
am of the view that the respondent Council is the
kind of body contemplated in section 2 of the
Federal Court Act', and that this Court therefore
has jurisdiction. The Medical Council of Canada
was originally established by an Act of the Parlia
ment of Canada, The Canada Medical Act, 1902,
S.C. 1902, c. 20, which was replaced in 1927 and
in 1952 by a second and third Act under the same
title 2 but without substantial alteration in the
essential responsibilities of the Council which have
always included authority to determine, at least in
part, qualification to practice medicine in Canada,
the issuing of a certificate of qualification known
as the licentiate, the maintenance of a federal
board of examiners, the maintenance of a register,
authority to discipline registered members and, in
appropriate cases, to erase or confirm members
who are guilty of conduct contrary to certain
standards. These authorities and powers are not
possessed by any body established under provincial
laws and it surely cannot be seriously contended
that they are not of a public nature, but rather
exist purely for internal management purposes.
There could scarcely be any exercise to which the
public is more sensitive than the qualification of
those who practice medicine.
The only complicating factor in the jurisdiction
al question lies in the fact that the Medical Coun
cil of Canada exercised in 1976 the option open to
it under Part III of the Canada Corporations Act 3 ,
sections 158 and 159, to have letters patent issued
and it is the contention of counsel for the respond
ent that this has two significant consequences: the
first to change the nature of the Council from that
of a statutory to a corporate creature, and in turn,
since it is a corporate creature, to bring it within
the reasoning of Thurlow A.C.J. [as he then was]
in Wilcox v. Canadian Broadcasting Corporation'',
but I reject both submissions. There is no indica
tion before me that the issuing of letters patent in
1976 was such as to even pretend to repeal the
provisions of the 1956 statute and, in any case, it
does not in any way alter the national and public
' S.C. 1970-71-72, c. 1 [see now R.S.C. 1970 (2nd Supp.), c.
10] as amended by S.C. 1973-74, c. 17, s. 8; S.C. 1974-75-76,
c. 18.
2 R.S.C. 1927, c. 129 and R.S.C. 1952, c. 27.
3 R.S.C. 1970, c. C-32.
4 [1980] 1 F.C. 326.
nature of the responsibilities, powers or authorities
of the Medical Council of Canada. As to the latter
point, the language of Thurlow A.C.J. in the
Wilcox decision, supra, is as follows [at page 3291:
While I see no reason to doubt that the powers referred to in
the definition of "federal board, commission or other tribunal"
in section 2 are not confined to powers that are required by law
to be exercised on a judicial or quasi-judicial basis, it appears to
me that the expression "jurisdiction or powers" refers to juris
diction or powers of a public character in respect of the exercise
of which procedures by prerogative writs or by injunction or
declaratory relief would formerly have been appropriate ways
of invoking the supervisory authority of the superior courts. I
do not think it includes the private powers exercisable by an
ordinary corporation created under a federal statute which are
merely incidents of its legal personality or of the business it is
authorized to operate.
In that case, the powers to be exercised by the
Corporation were found by the learned Associate
Chief Justice to have been related entirely to
internal management, and while the public was
affected, it was as an incidental rather than a
direct result. I cannot accept that description of
the respondent Council. Even if the authority to
determine who shall be admitted to medical prac
tice in Canada is exercised in conjunction with
provincial authorities, it still remains both national
in scope and public in character. The responsibility
to maintain a register carries with it the implicit
power to strike persons from the register and,
taken together with the disciplinary authority,
entrusts to this body control over the opportunity
to pursue a career in the medical profession in
Canada, once again an obviously public responsi
bility.
I am therefore of the view that the Medical
Council of Canada is the kind of "other tribunal"
described in section 2 of the Federal Court Act
and that this Court has jurisdiction to entertain
this action.
ORDER
This application to strike out the action for want
of jurisdiction is dismissed 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.