A-537-91
Dr. Clive Rosenbush (Applicant)
v.
The National Dental Examining Board of Canada
(Respondent)
INDEXED AS: ROSENBOSN V. NATIONAL DENTAL EXAMINING
BOARD OF CANADA (CA.)
Court of Appeal, Mahoney, Hugessen B.A. and Gray
D.J.-Toronto, May 6, 1992.
Federal Court jurisdiction — Appeal Division — Applica
tion to set aside dismissal by respondent of applicant's appeal
against examiners' decision — Whether application within
Court's jurisdiction — Jurisdiction granted to Court under
Federal Court Act, s. 28 only for better administration of laws
of Canada — Testing of technical and educational qualifica
tions of aspirant dentists provincial matter — Respondent not
operating under Peace, Order and Good Government or Trade
and Commerce power under Constitution Act, 1867, s. 91 —
No federal law involved in respondent's decisions as to qualifi
cation and licensing of dentists — That respondent federally
incorporated irrelevant to existence of "jurisdiction or pow
ers".
Constitutional law — Distribution of powers — Respondent
federally incorporated board subject to provincial law gener
ally as to qualification and licensing of dentists — Board
vested only with capacity to receive power from other sources
— Powers granted by constituent statute, s. 7, exercised by
provincial licensing authorities - No federal law involved in
Board's decisions — That respondent federally incorporated
irrelevant to existence of "jurisdiction or powers".
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to incorporate The National Dental Examining
Board of Canada, S.C. 1952, c. 69, ss. 4(1), 7 (as am.
by S.C. 1973-74, c. 55, s. 4).
Constitution Act, /867, 30 & 31 Vict., c. 3 (U.K.) (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1, [R.S.C., 1985,
Appendix 11, No. 5], s. 101.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 28.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Ontario (Human Rights Commission) v. National Dental
Examining Board of Canada, [1991] 3 S.C.R. 121;
(1991), 130 N.R. 152.
NOT FOLLOWED:
Tsang v. Medical Council of Canada, [1981] 2 F.C. 838;
(1981), 120 D.L.R. (3d) 760 (T.D.).
APPLICATION under section 28 of the Federal
Court Act to set aside a decision of the Appeals Com
mittee of the National Dental Examining Board of
Canada which dismissed the applicant's appeal
against a decision of the examiners. Application dis
missed.
COUNSEL:
Joyce R. Weinman-Arnold for applicant.
T. Gregory Kane for respondent.
SOLICITORS:
Danson, Zucker and Connelly, Toronto, for
applicant.
Stikeman, Elliott, Ottawa, for respondent.
The following are the reasons for judgment of the
Court delivered orally in English by
HUGESSEN J.A.: This section 28 application seeks to
review and set aside a decision of the Appeals Com
mittee of the National Dental Examining Board of
Canada which dismissed the applicant's appeal
against the decision of the examiners that he had
failed in the clinical examination, "Part C".
The respondent is a body incorporated by an Act
of the Parliament of Canada) The powers which are
said to be at the source of the decision sought to be
attacked by the applicant are set out in section 7 of its
constituent statute (as amended [section 4]):
7. The Board shall have power to
(a) establish qualifications for general practitioner dentists
to ensure that the qualifications may be recognized by the
appropriate licensing bodies in all provinces of Canada;
[An Act to incorporate The National Dental Examining
Board of Canada], S.C. 1952, e. 69 as amended by S.C. 1973-
74, c. 55.
(b) establish, subject to the approval of the Royal College of
Dentists of Canada, qualifications for dental specialists, to
ensure that, in each case the qualifications may be recog
nized by the appropriate licensing bodies in all provinces of
Canada;
(c) establish the conditions under which a general practi
tioner dentist may obtain and hold a certificate of qualifica
tion;
(d) establish subject to the approval of The Royal College of
Dentists of Canada, the conditions under which a dental spe
cialist may obtain and hold a certificate of qualification;
(e) prescribe compulsory examinations as evidence of quali
fications for registration, subject to the rights of The Royal
College of Dentists of Canada as hereinafter set forth;
(f) establish and maintain a body of examiners to hold exam
inations and to recommend the granting of certificates of
qualification to general practitioner dentists;
(g) establish and maintain a body of examiners appointed by
The Royal College of Dentists of Canada to hold examina
tions and make recommendations concerning the granting of
certificates of qualification of properly trained dental spe
cialists;
(h) issue certificates of qualification to general practitioner
dentists and dental specialists in accordance with the recom
mendation of the examiners;
(i) establish a register for Canada of general practitioner
dentists and dental specialists who have been granted certifi
cates of qualification by the Board;
(j) delete from the register the name of any person whose
provincial registration has been cancelled or suspended and
to restore such name to the register if and when such cancel
lation or suspension is reversed, or the period of suspension
is terminated; and
(k) publish and revise the register from time to time.
A threshold question arises as to the jurisdiction of
this Court to entertain the present application. At first
blush the respondent would appear to fit within the
definition of "federal board, commission or other tri
bunal" contained in section 2 of the Federal Court
Act: 2
2....
"federal board, commission or other tribunal" means any
body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers con
ferred by or under an Act of Parliament, other than
any such body constituted or established by or under
a law of a province or any such person or persons
appointed under or in accordance with a law of a
2 R.S.C., 1985, c. F-7.
province or under section 96 of the Constitution Act,
1867;
If the respondent in fact exercises "jurisdiction or
powers conferred by or under an Act of Parliament"
any decision made by it pursuant thereto prior to Feb-
ruary 1, 1992 (such as the one here in issue) would be
subject to review by this Court under the terms of
section 28 as it stood prior to that date.
In our view, such an analysis is too simplistic and
fails to take into account the limitations imposed
upon Parliament by the Constitution Act, 1867 [30 &
31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1 [R.S.C., 1985, Appendix II, No. 5]].
Those limitations come into play in two respects in
the present case. In the first place, any grant of juris
diction to this Court can only be validly made if it is
"for the better Administration of the Laws of
Canada." 3 There is simply no body of federal law,
statutory or otherwise, which serves to nourish the
grant of jurisdiction in section 28 so as to permit us
to review the decisions of a body engaged in testing
the technical and educational qualifications of aspir
ant members of the dental profession, a purely pro
vincial matter. It is now settled law that the respon
dent "is not operating under the Peace, Order and
Good Government clause or the Trade and Com
merce power under s. 91 of the Constitution Act,
1867, but is simply a federally incorporated board
subject to provincial human rights legislation" . 4 The
respondent is equally, in our view, and by the same
token, subject to other provincial legislation and to
provincial law generally with regard to both the form
and the content of its decisions as to the qualification
and licensing of dentists. No federal law is involved
in such decisions.
In the second place, while the terms of section 7 of
the respondent's constituent statute, quoted above,
purport to grant it "power", we think it quite clear
3 Constitution Act, 1867, s. 101.
4 Ontario (Human Rights Commission) v. National Dental
Examining Board of Canada, [1991] 3 S.C.R. 121, at p. 122.
that, at best, Parliament could do no more than vest it
with the capacity to receive power from other
sources. The whole of the licensing and examining
scheme envisaged by the statute, as paragraphs 7(a)
and (b) make quite plain, must rely for its force and
effectiveness on the appropriate action being taken by
provincial licensing authorities, of whose representa
tives the respondent is in large measure composed. 5
The fact that the respondent has been federally incor
porated, whether by statute or otherwise, is simply
irrelevant to the existence of the `jurisdiction or pow
ers" whose exercise the present applicant seeks to
review. 6
The section 28 application will be dismissed for
want of jurisdiction.
s Subsection 4(1) of the statute reads:
4. (1) The Board shall be composed of
(a) one member appointed as its representative by the
appropriate licensing body of each province in Canada:
and
(b) two members appointed by the Council on Dental
Education of the Canadian Dental Association.
6 It follows from what we have said above that in our view
the case of Tsang v. Medical Council of Canada, [1981] 2 F.C.
838 (T.D.) was wrongly decided.
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.