A-175-80
Minister of Indian Affairs and Northern Develop
ment (Applicant)
v.
Sean Gerald Ranville and Danielle Winona Ran -
ville (Respondents)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Toronto, June 5, 1980.
Judicial review — Jurisdiction — Application to review and
set aside decision of a County Court Judge — Whether Judge
acting under s. 9(4) of the Indian Act is acting in an appellate
capacity or as persona designata — Application dismissed —
Indian Act, R.S.C. 1970, c. I-6, as amended, s. 9(4) —
Inquiries Act, R.S.C. 1970, c. I-13 — Federal Court Act,
R.S.C. 1970 (2nd Supp.). c. 10, s. 28.
Herman v. The Deputy Attorney General of Canada
[1979] 1 S.C.R. 729, followed. Minister of National
Revenue v. Coopers and Lybrand [1979] 1 S.C.R. 495,
applied.
APPLICATION for judicial review.
COUNSEL:
I. S. MacGregor for applicant.
W. T. Badcock for respondents.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
William T. Badcock, Ottawa, for respond
ents.
The following are the reasons for judgment of
the Court rendered in English by
HEALD J.: We are all of the opinion that this
Court does not have jurisdiction to entertain this
application to review and set aside the decision of
His Honour Judge J. Drew Hudson, a County
Court Judge for the Judicial District of York, in
this matter. The decisions of the Supreme Court of
Canada in Herman v. The Deputy Attorney Gen
eral of Canada [1979] 1 S.C.R. 729 and in The
Minister of National Revenue v. Coopers and
Lybrand [1979] 1 S.C.R. 495 have imposed an
obligation on a party alleging that a Judge is
acting pursuant to a statutory provision in the
special capacity of persona designata of finding in
the statute specific provisions that such is the case
(see the Herman case, supra—per Dickson J. at
pages 748-750 and Laskin C.J. at pages 735-736).
Subsection 9(4) of the Indian Act, R.S.C. 1970,
c. I-6, as amended, reads as follows: "The judge of
the Supreme Court, Superior Court, Court of
Queen's Bench, county or district court, as the
case may be, shall inquire into the correctness of
the Registrar's decision, and for such purposes
may exercise all the powers of a commissioner
under Part I of the Inquiries Act; the judge shall
decide whether the person in respect of whom the
protest was made is, in accordance with this Act,
entitled or not entitled, as the case may be, to have
his name included in the Indian Register, and the
decision of the judge is final and conclusive."
Clearly the words "... shall inquire into the cor
rectness of the Registrar's decision ..." import
that the judge of the Supreme, Superior, Court of
Queen's Bench, or county or district court is acting
in an appellate capacity. Contrary to what was
said by counsel for the applicant, the fact that the
Judge is empowered to exercise all of the powers of
a commissioner under Part I of the Inquiries Act,
R.S.C. 1970, c. I-13, is not the kind of specific
provision indicating that he is acting persona
designata envisaged by the Supreme Court of
Canada in the Herman case supra. Rather, in our
opinion, it clothes him with powers which he may
not normally have sitting as a Judge in appeal,
presumably to ensure that the decision which he is
reviewing has been correctly decided.
Accordingly and for these reasons the section 28
application is dismissed.
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.