Judgments

[1996] 3 F.C. 584

T-2127-95

Sydney H. Pfeiffer (Applicant)

v.

Georges F. Redling, Marc Mayrand, Marc Lamarre, Brian P. Doyle, Uwe Manski and Attorney General of Canada (Respondents)

and

T-2130-95

Pfeiffer & Pfeiffer (Applicant)

v.

Georges F. Redling, Marc Mayrand, Marc Lamarre, Brian P. Doyle, Uwe Manski and Attorney General of Canada (Respondents)

and

Guylaine House (Intervenor)

Indexed as: Pfeiffer v. Canada (Superintendent of Bankruptcy) (T.D.)

Trial Division, Tremblay-Lamer J.—Montréal, March 20; Ottawa, May 2, 1996.

Bankruptcy — Delegation of powers under Bankruptcy and Insolvency Act, s. 14.01(2) to investigate conduct of trustee — No jurisdiction in delegate tribunal to deal with Charter and Bill of Rights challenges to validity of Act, ss. 14.01 and 14.02.

Constitutional law — Charter of Rights — Enforcement — Delegation of powers under Bankruptcy and Insolvency Act, s. 14.01(2) to investigate conduct of trustee — Delegate tribunal lacking jurisdiction under Charter, s. 24, Constitution Act, s. 52 to deal with challenges to validity of Act, ss. 14.01 and 14.02 — Review of case law on powers of administrative tribunals to consider Charter issues — No jurisdiction in delegate tribunal to deal with questions of law.

Bill of Rights — Delegation of powers under Bankruptcy and Insolvency Act, s. 14.01(2) to investigate conduct of trustee — No jurisdiction in delegate tribunal to deal with questions of law — Corporate applicant, trustee in bankruptcy, cannot invoke Bill of Rights, s. 2(e) as latter protecting rights whereas, for corporation applicant, trustee licence privilege.

In 1993, following an audit of the applicants’ operations, the Superintendent of Bankruptcy delegated to a three-member tribunal his powers under subsection 14.02 of the Bankruptcy and Insolvency Act to investigate into the applicants’ conduct and determine whether their licence as a trustee in bankruptcy should be cancelled. The tribunal’s mandate was to examine the report, hear the applicants, establish the rules of procedure that would apply, hold a hearing and cause the proceedings to be recorded, examine the evidence and arguments, give written reasons for its decision and, if need be, appoint another or other trustees to deal with the estates that had been under the applicants’ administration. The applicants moved that the tribunal declare that it lacked jurisdiction to proceed under sections 14.01 and 14.02 on the grounds that those sections were unconstitutional as in violation of section 7 of the Charter; that those sections were of no force or effect as inconsistent with paragraph 2(e) of the Bill of Rights; that the investigation process provided for in sections 14.01 and 14.02 was in violation of the natural justice requirement of impartiality. The tribunal held that it lacked jurisdiction to determine the constitutional validity of those sections. These were applications to review that decision. The respondents presented a motion to strike the declarations as premature.

The issues were: (1) whether the applications were premature, the tribunal’s decision being interlocutory; (2) whether the tribunal erred in concluding that it lacked jurisdiction to declare sections 14.01 and 14.02 unconstitutional; (3) whether the sections were of no force and effect as inconsistent with paragraph 2(e) of the Bill of Rights.

Held, the applications should be dismissed.

(1) Since the application was directed against the very existence of the tribunal, there was a special reason justifying judicial review at this stage of the proceedings: this was a final decision disposing of a fundamental question before the tribunal: Mahabir v. Canada (Minister of Citizenship and Immigration).

(2) It was not a matter of the application of the Charter but of section 52 of the Constitution Act, 1982. In the Supreme Court of Canada decision in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), La Forest J. declared that an administrative tribunal does not have to meet the definition of court of competent jurisdiction in order to have the necessary authority to subject its enabling statute to Charter scrutiny. The issue is whether in the enabling statute, Parliament expressly or impliedly conferred on the tribunal the obligation to examine questions of law. An examination of the statutory provisions herein leads to the conclusion that the tribunal, through the Superintendent or his delegates, did not have the power to dispose of legal questions. Instead, Parliament provided for an informal hearing process in which the Superintendent is not bound by the rules of evidence. Matters are to be dealt with as the circumstances and a consideration of fairness permit. Nothing in these provisions indicates an intention to give the panel responsibility to decide questions of law. Furthermore, Parliament did not deem it advisable to grant the panel certain powers of investigation under the Inquiries Act.

(3) Since only the corporate applicant applied for declaratory relief and served the notice of constitutional questions required by section 57 of the Federal Court Act, the alleged violation of paragraph 2(e) of the Bill of Rights was examined only in so far as it was concerned.

Even though the corporate applicant was a “person” within the meaning of paragraph 2(e ), since a trustee licence, for a corporate applicant, is a privilege and not a right, and since paragraph 2(e) protects rights and not privileges, the corporate applicant could not rely on that paragraph.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Bankruptcy and Insolvency Act (formerly Bankruptcy Act), R.S.C., 1985, c. B-3 (as am. by S.C. 1992, c. 27, s. 2), ss. 14.01 (as enacted idem, s. 9), 14.02 (as enacted idem), 25 (as am. idem, s. 10).

Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e).

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 24.

Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 23.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 5 (as am. by S.C. 1992, c. 49, s. 127), 18(3) (as am. by S.C. 1990, c. 8, s. 4), 57 (as am. idem, s. 19).

Federal Court Rules, C.R.C., c. 663, R. 5.

Immigration Act, 1976, S.C. 1976-77, c. 52.

Inquiries Act, R.S.C., 1985, c. I-11.

CASES JUDICIALLY CONSIDERED

APPLIED:

Mahabir v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 133 (1991), 85 D.L.R. (4th) 110; 15 Imm. L.R. (2d) 303; 137 N.R. 377 (C.A.); Cyanamid Agricultural de Puerto Rico, Inc. v. Canada (Commissioner of Patents), [1983] F.C.J. No. 429 (T.D.) (QL); Anti-dumping Act (In re) and in re Danmor Shoe Co. Ltd., [1974] 1 F.C. 22 (1974), 1 N.R. 422 (C.A.); Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; (1990), 77 D.L.R. (4th) 94; [1991] 1 W.W.R. 643; 52 B.C.L.R. (2d) 68; 91 CLLC 17,002; 118 N.R. 340; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; (1991), 81 D.L.R. (4th) 358; 50 Admin. L.R. 1; 36 C.C.E.L. 117; 91 CLLC 14,023; 4 C.R.R. (2d) 12; 126 N.R. 1; Canada (Attorney General) v. Gill, [1992] 3 F.C. 3 (1992), 16 Admin. L.R. (2d) 215; 52 F.T.R. 81 (T.D.); Canada (Attorney General) v. Racette-Villeneuve, [1995] A.C.F. No. 581 (T.D.) (QL); Joys v. M.N.R., [1996] 1 F.C. 149 (1995), 128 D.L.R. (4th) 385; 189 N.R. 175 (C.A.); MacBain v. Lederman, [1985] 1 F.C. 856 (1985), 22 D.L.R. (4th) 119; 16 Admin. L.R. 109; 6 C.H.R.R. D/3064; 85 CLLC 17,023; 18 C.R.R. 165; 62 N.R. 117 (C.A.); New Brunswick Broadcasting Co., Limited v. Canadian Radio-television and Telecommunication Commission, [1984] 2 F.C. 410 (1984), 13 D.L.R. (4th) 77; 2 C.P.R. (3d) 433; 12 C.R.R. 249; 55 N.R. 143 (C.A.); National Anti-Poverty Organization v. Canada (Attorney General), [1989] 1 F.C. 208 (1988), 32 Admin. L.R. 1; 21 C.P.R. (3d) 305; 21 F.T.R. 33 (T.D.).

DISTINGUISHED:

Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790; Laflamme v. Canada (Superintendent of Bankruptcy), [1995] 3 F.C. 174 (1995), 35 C.P.R. (3d) 230; 96 F.T.R. 200 (T.D.); Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; (1995), 125 D.L.R. (4th) 583; 30 Admin. L.R. (2d) 1; 12 C.C.E.L. (2d) 1; 24 C.C.L.T. (2d) 217; 95 CLLC 210-027; 30 C.R.R. (2d) 1; 183 N.R. 241; 82 O.A.C. 321.

CONSIDERED:

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167; Dywidag Systems International, Canada Ltd. v. Zutphen Brothers Construction Ltd., [1990] 1 S.C.R. 705; (1990), 97 N.S.R. (2d) 181; 68 D.L.R. (4th) 147; 258 A.P.R. 181; 40 C.L.R. 1; 41 C.P.C. (2d) 18; 46 C.R.R. 259; 106 N.R. 11.

REFERRED TO:

Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333; 25 Imm. L.R. (2d) 70; 170 N.R. 58 (F.C.A.); Santé c. Québec (Procureur général) (26 novembre 1993), Montréal 500-05-010002-937, J.E. 94-70 (C.S.); Granville Shipping Co. v. Pegasus Lines Ltd. et al. (1994), 86 F.T.R. 77 (F.C.T.D.); Salinas v. Canada (Minister of Employment and Immigration), [1992] 3 F.C. 221 (1992), 52 F.T.R. 7 (T.D.); Canada (Attorney General) v. Public Service Staff Relations Board, [1990] 1 F.C. 297 (1989), 31 F.T.R. 107 (T.D.); Bova v. Public Service Commission Appeal Board (Can.) (1990), 120 N.R. 186 (F.C.A.); Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Wilson v. British Columbia (Medical Services Commission) (1988), 53 D.L.R. (4th) 171; [1989] 2 W.W.R. 1; 30 B.C.L.R. (2d) 1; 34 Admin. L.R. 235; 41 C.R.R. 276 (C.A.); Howard v. Architectural Institute (B.C.) (1989), 39 Admin. L.R. 277; 47 C.R.R. 328 (B.C.S.C.); Richardson v. Assn. of Pro. Engineers, [1990] 1 W.W.R. 709; (1989), 41 B.C.L.R. (2d) 130 (S.C.); Harvey v. Law Society of Newfoundland (1992), 93 Nfld. & P.E.I.R. 339; 88 D.L.R. (4th) 487; 292 A.P.R. 339; 2 Admin. L.R. (2d) 306 (Nfld. S.C.); Ptack c. Comité de l’Ordre des dentistes du Québec, [1993] R.L. 305 (Que. C.A.); Mills v. The Queen, [1986] 1 S.C.R. 863; (1986), 29 D.L.R. (4th) 161; 26 C.C.C. (3d) 481; 52 C.R. (3d) 1; 21 C.R.R. 76; 67 N.R. 241; 16 O.A.C. 81.

AUTHORS CITED

Dussault, R. and L. Borgeat. Administrative Law: A Treatise, vol. 1, 2nd ed. Toronto: Carswell, 1985.

Garant, P. Droit administratif, vol. 1, 3^e éd. Cowansville (Qué.): Yvon Blais, 1991.

Garant, P. Précis de droit des administrations publiques. Cowansville (Qué.): Yvon Blais, 1987.

Petit Larousse illustré. Paris: Librairie Larousse, 1985, “licence”.

Stroud’s Judicial Dictionary of Words and Phrases, 5th ed. London: Sweet & Maxwell, 1986, “licence”.

APPLICATIONS for judicial review of the decision of three delegates of the powers of investigation and hearing vested in the Superintendent of Bankruptcy under the Bankruptcy and Insolvency Act holding that they did not have jurisdiction to find sections 14.01 and 14.02 of the Act to be unconstitutional, or jurisdiction to declare those sections to be inoperative and contrary to the Canadian Bill of Rights. Applications dismissed.

COUNSEL:

Gérald R. Tremblay and Louis Brousseau for applicants.

Claude Joyal and Marcel Gauvreau for respondents.

Bernard Boucher for intervenor.

SOLICITORS:

McCarthy Tétrault, Montréal, for applicants.

Deputy Attorney General of Canada for respondents.

Bélanger, Sauvé, Montréal, for intervenor.

The following is the English version of the reasons for order rendered by

Tremblay-Lamer J.: There are two applications for judicial review before the Court in which the applicants are seeking to have set aside the decision of Marc Lamarre, Brian Doyle and Uwe Manski, in their capacity as delegates of the powers of investigation and hearing vested in the Superintendent of Bankruptcy under the Bankruptcy and Insolvency Act[1] (the Act), holding that they did not have jurisdiction to find sections 14.01 [as enacted by S.C. 1992, c. 27, s. 9] and 14.02 [as enacted idem] of the Act to be unconstitutional, or jurisdiction to declare those sections to be inoperative and contrary to the Canadian Bill of Rights[2] (the Bill of Rights).

THE FACTS

Pfeiffer & Pfeiffer has held a licence as a trustee in bankruptcy since 1980. The applicant Sydney Pfeiffer has also held such a licence since 1974. He is the president of the firm Pfeiffer & Pfeiffer, which administers more than 1600 estates and whose personnel consists of two trustees and eighty employees. The intervenor Guylaine Houle, who also holds a licence as a trustee in bankruptcy, is a shareholder and director of Pfeiffer & Pfeiffer.

During December 1991 and January 1992, the Superintendent of Bankruptcy, with the assistance of the personnel under his direction and control, conducted an audit of the activities of the applicants, and in April 1992 the applicants received a report prepared by Andy J. Blitzer, C.A.

On December 11, 1992, Mr. Pfeiffer received a letter from Marc Mayrand, Deputy Superintendent of Bankruptcy (Operations), to which was attached a draft report recommending that the Superintendent cancel the applicants’ trustee licence. The report noted flaws in the administration of some estates which violated the Act, the regulations, the guidelines and the policies. More specifically, the report pointed to the following anomalies:

(a) investing consolidated estate funds in trust companies and treasury bills;

(b) registering certificates of deposit of consolidated funds not in trust for estates;

(c) under-allocating interest to estate files;

(d) withdrawing final fees without recognizing the interim draw already taken;

(e) withdrawing fees in excess of the fees taxed;

(f) delegating signing authority on checks [sic] to an unauthorized person.

On April 28, 1993, the solicitor for Pfeiffer & Pfeiffer wrote a letter to the office of the Superintendent of Bankruptcy setting out a list of reasons why Pfeiffer & Pfeiffer should retain its trustee licence.

On June 16, 1993, Marc Mayrand signed a report similar to the draft that had been submitted to the parties earlier, recommending nonetheless that the Superintendent of Bankruptcy, George F. Redling, cancel the applicants’ trustee licence.

On December 31, 1993, the Superintendent of Bankruptcy informed the parties that under subsection 14.01(2) of the Act, he had delegated his powers and functions as Superintendent to a panel composed of Marc Lamarre, a retired judge, as Chairman of the panel, and Brian Doyle and Uwe Manski, both trustees in bankruptcy. Accordingly, the Superintendent issued a delegation instrument authorizing the panel to act in accordance with the powers conferred by the Act. The panel’s specific mandate is described in the delegation instrument as follows:

1. considering the report in respect of the trustee received by the Superintendent from the Deputy;

2. affording the trustee the opportunity to be heard required by subsection 14.02(1) of the BIA in respect of the Deputy’s report and notice of intention to exercise the powers set out in paragraphs 14.01(1)(a) to (c) of the BIA in relation to the trustee’s licence;

3. determining, in conformity with the provisions of paragraphs 14.02(2)(b) and (c) and in consultation with the trustee and the Deputy or their respective counsel, the procedural rules that shall apply in the course of affording the trustee the opportunity to be heard;

4. conducting, under the presidency of the chairman, the hearing at which the trustee is given the opportunity to be heard;

5. causing, for the purposes of paragraph 14.02(2)(d) of the BIA, a stenographic, electronic or other record to be taken of the proceedings at which the trustee is given the opportunity to be heard;

6. considering the evidence and submissions of the trustee and the Deputy;

7. deciding whether, on the balance of the evidence before the panel, the recommendation of the Deputy in respect of the license of the trustee should be accepted, varied or rejected, and, in accordance with subsection 14.02(4) of the BIA, to give the decision and the reasons for the decision of the panel in writing to the trustee and to the Deputy within ninety days after the conclusion of the hearing; and,

8. where the panel accepts or varies the recommendation of the Deputy and decides to exercise the power to suspend or cancel the license of the trustee, directing, after hearing representations from the trustee and the Deputy, another or other trustees to deal, in the manner directed by the panel, with the property in the estates that were, immediately prior to the cancellation or suspension of the licence, under the administration of the trustee.

On June 3, 1994, the applicants filed a “Motion for declaration of lack of jurisdiction” with the panel. They were arguing, primarily, that:

— sections 14.01 and 14.02 of the Act are unconstitutional, in that they violate section 7 of the Canadian Charter of Rights and Freedoms.[3]

— sections 14.01 and 14.02 of the Act are inoperative because they are inconsistent with paragraph 2(e) of the Bill of Rights.

— the process of investigation and hearing established by sections 14.01 and 14.02 of the Act violate the impartiality requirements imposed by the principles of natural justice.

Accordingly, they asked the panel to declare that it was not competent to proceed, having regard to the invalidity of sections 14.01 and 14.02 of the Act.

On September 1, 1995, the panel rendered its decision in which it concluded that it did not have jurisdiction to determine the constitutionality of the sections in question. It concluded as follows:

The tribunal and/or the Superintendent does not have and has never had the power in its enabling statute to review the constitutionality of its duties and the powers conferred on it by the Bankruptcy and Insolvency Act. No such power, whether express or implied, is found anywhere in the Act.

We have no jurisdiction to determine constitutional questions, or to made declarations that only the superior courts may make, or to determine the constitutional validity of the enabling statute under which our mandate was given to us.

For the foregoing reasons, the two motions by the applicants Sydney H. Pfeiffer and Pfeiffer & Pfeiffer Inc. are denied. [sic]

That decision is the subject of this judicial review. However, on November 9, 1995, the respondents filed a motion to strike out the two originating notices of motion. On the consent of the parties, Mr. Justice Teitelbaum ordered that the motion be heard at the hearing on the merits. At the time of the hearing before me, the respondents chose not to argue that motion at any length, although it remains in the record. I shall therefore deal with it first.

THE ISSUES

1. Are these originating notices of motion premature, in that the decision of the panel is interlocutory, and should they accordingly be struck out?

2. Did the panel err in concluding that it did not have jurisdiction to declare that sections 14.01 and 14.02 of the Act are unconstitutional and inoperative?

3. Are sections 14.01 and 14.02 inoperative in that they are inconsistent with paragraph 2(e) of the Bill of Rights?

THE LEGISLATION

Sections 14.01 and 14.02 of the Act provide:

14.01 (1) The Superintendent, after making or causing to be made an investigation into the conduct of a trustee, may, where it is in the public interest to do so,

(a) cancel the licence of a trustee;

(b) suspend the licence of a trustee; or

(c) place such conditions or limitations on the licence of a trustee as the Superintendent considers appropriate.

(2) The Superintendent may delegate by written instrument, on such terms and conditions as are therein specified, any or all of the Superintendent’s powers, duties and functions under paragraphs 1(a) to (c) or section 14.01 or 14.03.

(3) Where the Superintendent delegates in accordance with subsection (2), the Superintendent or the delegate shall

(a) where there is a delegation in relation to trustees generally, give written notice of the delegation to all trustees; and

(b) whether or not paragraph (a) applies, give written notice of the delegation of a power to any trustee who may be affected by the exercise of that power, either before the power is exercised or at the time the power is exercised.

14.02 (1) Where the Superintendent intends to exercise any of the powers set out in paragraphs 14.01(1)(a) to (c), the Superintendent shall send the trustee written notice of the powers that the Superintendent intends to exercise and the reasons therefor and afford the trustee a reasonable opportunity for a hearing.

(2) At a hearing referred to in subsection (1), the Superintendent

(a) has the power to administer oaths;

(b) is not bound by any legal or technical rules of evidence in conducting the hearing;

(c) shall deal with the matters set out in the notice of the hearing as informally and expeditiously as the circumstances and a consideration of fairness permit; and

(d) shall cause a summary of any oral evidence to be made in writing.

(3) The notice referred to in subsection (1) and, where applicable, the summary of oral evidence referred to paragraph 2(d), together with such documentary evidence as the Superintendent receives in evidence, form the record of the hearing.

(4) The decision of the Superintendent after a hearing referred to in subsection (1), together with the reasons therefor, shall be given in writing to the trustee not later than ninety days after the conclusion of the hearing and may, where the Superintendent considers it in the public interest to do so, be made public after the decision has been given to the trustee.

(5) A decision of the Superintendent given pursuant to subsection (4) is deemed to be a decision of a federal board, commission or other tribunal that may be reviewed and set aside pursuant to the Federal Court Act.

ANALYSIS

1.         Preliminary motion to strike out the originating notices of motion

The Attorney General submitted that the application for judicial review brought by the applicants from the decision of the panel is premature because that decision was in fact an interlocutory decision. The respondent relied on the decision of the Federal Court of Appeal in Szczecka v. Canada (Minister of Employment and Immigration),[4] in which Mr. Justice Létourneau held that as a general rule, time should not be spent on reviewing interlocutory decisions, except in special circumstances. According to the respondent, the Court has jurisdiction to dismiss the originating notices of motion under its general power, as governed by section 5 of the Federal Court Act.[5]

The applicants argued, for their part, that it was not premature to raise the issue of bias before the panel. It is settled law that bias on the part of a tribunal must be raised without delay. For example, in Santé c. Québec (Procureur général),[6] the Court held that failure to raise the issue of bias at the first opportunity amounted to waiver of that ground for challenging the jurisdiction of the tribunal.

In my opinion, there is an initial procedural problem, since the Federal Court Rules [C.R.C., c. 663] make no provision for dismissing a motion.[7] Although the Attorney General cited section 5, it is used only in exceptional cases. In the instant case, the decision relates to the jurisdiction of the administrative tribunal to determine constitutional questions or make declaratory judgments. The tribunal held that it did not have jurisdiction to determine such a question. The same situation arose in Laflamme v. Canada (Superintendent of Bankruptcy),[8] and the Court decided the issue immediately on an application for judicial review.

In Cyanamid Agricultural de Puerto Rico, Inc. v. Canada (Commissioner of Patents),[9] Mr. Justice Mahoney held that under Rule 5, judicial review could be permitted in interlocutory cases on the question of jurisdiction, at page 4 (QL):

… where the motion itself is apt to be time consuming and where there is, as here, a clear question of jurisdiction which may determine the entire matter, common sense dictates, and Rule 5 permits, that the Court deal with the preliminary objection in advance.

As well, it appears that judicial review of a decision of a tribunal relating to a question of jurisdiction may avoid the costs of a hearing on the merits. In Anti-dumping Act (In re) and in re Danmor Shoe Co. Ltd.,[10] the Federal Court of Appeal held:

In my view, the object of sections 18 and 28 of the Federal Court Act is to provide a speedy and effective judicial supervision of the work of federal boards, commissions and other tribunals with a minimum of interference with the work of those tribunals. Applying section 11 of the Interpretation Act, with that object in mind, to the question raised by these section 28 applications, it must be recognized that the lack of a right to have the Court review the position taken by a tribunal as to its jurisdiction or as to some procedural matter, at an early stage in a hearing, may well result, in some cases, in expensive hearings being abortive. On the other hand, a right, vested in a party who is reluctant to have the tribunal finish its job, to have the Court review separately each position taken, or ruling made, by a tribunal in the course of a long hearing would, in effect, be a right vested in such party to frustrate the work of the tribunal. [Emphasis mine.]

In my opinion, since this issue involves an attack on the very existence of the tribunal, there is a special reason permitting judicial review at this stage of the proceedings.[11] As the Court held in Mahabir v. Canada (Minister of Employment and Immigration),[12] “it is a final decision that disposes of a substantive question before the tribunal”.

Accordingly, the motion to strike is dismissed.

2.         Power of the tribunal to examine questions relating to the Charter and the Bill of Rights

The applicants and the intervenor submitted that the role played by the Minister’s delegates is comparable to that played by an administrative tribunal in that they exercise judicial or quasi-judicial power.[13] The guiding principles that apply in this area are set out in three decisions of the Supreme Court of Canada: Douglas/Kwantlen Faculty Assn. v. Douglas College;[14] Cuddy Chicks Ltd. v. Ontario (Labour Relations Board);[15] and Tétreault-Gadoury v. Canada (Employment and Immigration Commission).[16] These decisions hold that an administrative tribunal may have jurisdiction to determine constitutionality, either by virtue of the power conferred by subsection 24(1) of the Charter or by virtue of a tribunal’s duty to apply the Constitution in carrying out the mandate assigned to it by statute and under section 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. In the instant case, the applicants suggested that in the absence of specific enabling provisions in the Act itself, the Minister’s delegates very probably do not have the powers set out in section 24 of the Charter. However, it has been recognized that the power to apply the Constitution under section 52 of the Constitutional Act, 1982 may devolve to a tribunal, either expressly or by implication. In the case at bar, it is clear that the Minister’s delegates must apply and interpret at least the Act in order to determine whether the applicants have violated its provisions. Inter alia, since it is alleged that the applicants acted improperly in the management of their trust accounts, the Minister’s delegates will surely have to determine how section 25 [as am. by S.C. 1992, c. 27, s. 10] of the Act is to be interpreted.

For his part, the Attorney General submitted that the Superintendent is neither a tribunal nor a court of competent jurisdiction for the purpose of determining the constitutionality of sections 14.01 and 14.02 of the Act under section 24 of the Charter and section 52 of the Constitution Act, 1982 and in accordance with the decisions of the Supreme Court of Canada.[17] The respondents argued that the question was settled by the decision in Laflamme[18] and there was nothing substantially different in the situation now before the Court.

In short, we must examine the trilogy of decisions of the Supreme Court of Canada in Douglas College, Cuddy Chicks and Tétreault-Gadoury with respect to the jurisdiction of administrative tribunals to determine Charter questions. The issue in the case at bar is not the application of subsection 24(1) of the Charter, which allows a court of competent jurisdiction to grant a remedy. Rather, we shall have to consider the application of section 52 of the Constitution Act, 1982, which provides:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

With respect to the application of this section by an administrative tribunal, the principle set out in Douglas College is that an administrative tribunal which is given the power to interpret any statute also has the power to determine whether the statute is constitutional. The decision in Cuddy Chicks established that a tribunal whose task it is to determine questions of law may also apply the Charter.

Mr. Justice La Forest summarized the situation as follows in Cuddy Chicks, at pages 14-15:

An administrative tribunal need not meet the definition of a court of competent jurisdiction in s. 24(1) of the Charter in order to have the necessary authority to subject its enabling statute to Charter scrutiny. In the present case, the relevant inquiry is not whether the tribunal is a “court” [within the meaning of subsection 24(1) of the Charter] but whether the legislature intended to confer on the tribunal the power to interpret and apply the Charter .

…

The legislature expressly, and without reservation, conferred authority on the Board to decide points of law. In addition, the Act confers powers on the Board to determine questions of law and fact relating to its own jurisdiction. Section 124, for example, gives it authority to decide if a matter is arbitrable. The issue, then, is whether this authority with respect to questions of law can encompass the question of whether a law violates the Charter. It is clear to me that a Charter issue must constitute a question of law; indeed, the Charter is part of the supreme law of Canada. This comports with the view expressed in Douglas College that the statutory authority of the arbitrator in that case to interpret any “Act” must include the authority to interpret the Charter.

In Tétreault-Gadoury,[19] the Supreme Court of Canada held that the powers of an administrative tribunal to determine questions of law and to interpret any law could derive not only from an express power but also from an implied power. This statement of the law was reiterated in Canada (Attorney General) v. Gill,[20] in which the Court stated, at page 20:

Recent Supreme Court of Canada decisions have confirmed that where an administrative tribunal has an express authority to interpret and apply statutes[21] or where it has been expressly authorized to determine questions of law[22] it may apply the Charter to determine the validity of laws it is applying. In Tétreault-Gadoury v. Canada (Employment and Immigration Commission)[23] the Court also held that such power may be implied even though not expressly granted.

In Laflamme,[24] the provisions of the Act were similar to those with which we are concerned in the case at bar. Mr. Justice Noël was of the opinion that the legislative grant of authority must give the tribunal not only the power to interpret its enabling legislation, but also jurisdiction over the subject-matter resulting from reliance on the Charter and the remedy sought. In that case, the Court held that those powers must be found in the enabling statute and be among the powers that Parliament intended to confer on it.

While I have reached the same conclusion as Mr. Justice Noël, I shall not follow the same route as my colleague did. In my view, this is the approach that must be taken when the issue is whether the tribunal in question is a court of competent jurisdiction within the meaning of subsection 24(1) of the Charter. This analysis is not required when the issue is the power of an administrative tribunal to examine the constitutionality of its enabling statute under section 52 of the Constitution Act, 1982.

In Weber v. Ontario Hydro,[25] and more recently in Mooring v. Canada (National Parole Board),[26] the Supreme Court applied the “three-pronged test” required by subsection 24(1), that is, that a tribunal will be a court of competent jurisdiction only if it has jurisdiction over the parties, the subject-matter of the proceedings and the remedy sought. These tests had long since been established, in Mills v. The Queen,[27] for the purpose of determining whether a tribunal is a court of competent jurisdiction.

In addition, in Cuddy Chicks, Mr. Justice La Forest himself acknowledged that this analytical framework, that is, that there must be jurisdiction over the whole of the matter before the tribunal, reflects the prerequisites for a tribunal to be a court of competent jurisdiction within the meaning of subsection 24(1) of the Charter, but that an administrative tribunal need not meet the definition of a court of competent jurisdiction in order to have the necessary authority to subject its enabling statute to Charter scrutiny.[28]

Despite what he said in Cuddy Chicks and his intention of analysing the case from the standpoint of section 52, Mr. Justice La Forest continued his analysis by applying the three-pronged test, as if the issue was whether it was a court of competent jurisdiction under subsection 24(1). This is the same type of analysis as was done by Mr. Justice Noël in Laflamme.[29]

In the instant case, I do not believe that it is necessary to analyze the question from this standpoint, since, as Mr. Justice La Forest stated, the tribunal need not meet the definition of a court of competent jurisdiction. In the case at bar, no remedy is sought. Rather, the parties are seeking a declaration that certain provisions of the Act are inoperative since they are contrary to the Charter.[30] In Mahabir v. Canada (Minister of Employment and Immigration),[31] the Federal Court of Appeal held:

Rather subsection 24(1) gives a remedial power, and subsection 52(1) a declaratory power, to be exercised in disposing of matters properly before the Court.

In my opinion, we must determine whether Parliament gave the tribunal, in its enabling statute, expressly or by implication, a duty to examine questions of law. This is the approach taken by the Trial Division in Canada (Attorney General) v. Gill,[32] and by me in Canada (Attorney General) v. Racette-Villeneuve.[33]

What are the powers of the Superintendent or his delegates? The Superintendent has the power to suspend or cancel the licence of a trustee or place such conditions on the licence as he considers appropriate where it is in the public interest to do so, after affording the trustee an opportunity for a hearing.

Of course, in order to do that, he must apply his enabling statute. In my opinion, however, that is not sufficient for us to conclude that he has the power to determine questions of law. As Mr. Justice Noël stated in Laflamme,[34] all administrative tribunals may apply their enabling statute. We must analyse the statutory provision, the object of the provision and the general scheme of the Act in order to determine whether Parliament intended to give the tribunal the power to decide questions of law.

In the case at bar, after examining the statutory provisions, I conclude that the panel, through the Superintendent or his delegates, did not have the power to determine questions of law.

Quite the contrary; Parliament has provided an informal process for hearings, and specified that the Superintendent is not bound by the rules of evidence. Matters must be dealt with as the circumstances and a consideration of fairness permit. There is nothing in these provisions to indicate any intention to give the panel responsibility for determining questions of law. In addition, Parliament did not deem it advisable to grant the panel certain powers of investigation under the Inquiries Act,[35] which powers the Trial Division took into account in Canada (Attorney General) v. Gill[36] in concluding that the tribunal had declaratory power.

In Racette-Villeneuve,[37] in which I held that the Entitlement Board had jurisdiction to determine Charter questions, several statutory provisions in the enabling legislation implicitly gave the Entitlement Board the power to rule on questions of law. For example, the enabling statute provided that the Board had to provide the applicant with a summary of the law applicable to the applicant’s case and the Board’s interpretation thereof, to hold hearings in camera if it considered that this would not be contrary to the public interest (such a finding necessarily involves points of law) and to determine the legal duty to maintain. In addition, the act granted it certain powers under the Inquiries Act.[38]

I was compelled to conclude from that analysis that the panel could determine questions of law. This is not the case here. I have been unable to find any provision that indicates that Parliament intended to assign any such responsibility to it. The panel therefore did not err in determining that it did not have the power to decide the constitutional questions submitted.

The applicant Sydney Pfeiffer did not apply for a declaration, as he could have under subsection 18(3) [as am. by S.C. 1990, c. 8, s. 4] of the Federal Court Act.[39] He therefore did not serve the notice of constitutional question required by section 57 [as am. idem, s. 19] of the Federal Court Act. Accordingly, this Court cannot consider the question of whether the statutory provisions violate his rights under section 7 of the Charter and paragraph 2(e) of the Bill of Rights. It has been settled since Tétreault-Gadoury[40] that in a judicial review the Court is limited to “overseeing and controlling the legality”[41] of administrative decisions and has no “jurisdiction to make a final determination of the constitutional question”[42] where the administrative tribunal does not itself have jurisdiction over constitutional questions.

The applicant Pfeiffer & Pfeiffer has asked for a declaration that sections 14.01 and 14.02 of the Act are inoperative and contrary to the Bill of Rights. Accordingly, the corporate applicant served the constitutional notice required by section 57 of the Federal Court Act.[43] The Bill of Rights will be examined only in so far as that application was made by the corporate applicant.

Of course, Pfeiffer & Pfeiffer could not have argued that the provisions of the Act violate its rights under section 7 of the Charter. The wording of section 7 provides that “everyone” has the right to protection of life, liberty and security of the person. In Irwin Toy Ltd. v. Quebec (Attorney General),[44] the Supreme Court of Canada held that the expression “everyone” excluded corporations and included only human beings. As well, in Dywidag Systems International, Canada Ltd. v. Zutphen Brothers Construction Ltd.,[45] the Court again held that a corporation could not be deprived of the right to life, liberty or security of the person, and accordingly that it could not rely on section 7 of the Charter.

3.         Are the provisions of the Act inoperative in that they are contrary to paragraph 2(e) of the Canadian Bill of Rights?

Pfeiffer & Pfeiffer contended that the provisions of the Act are inoperative as contrary to paragraph 2(e) of the Canadian Bill of Rights.

Paragraph 2(e) of the Bill of Rights provides:

2. [Construction of law] Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

…

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations.

The first issue here is the scope of the expression “person” which is found in paragraph 2(e). In New Brunswick Broadcasting Co., Limited v. Canadian Radio-television and Telecommunications Commission,[46] the Federal Court of Appeal, commenting on paragraph 2(e), stated:

In this section the word “person” is used in contexts which suggest that it is concerned with natural persons but I see no compelling reason why the word should not be interpreted as referring as well to corporations wherever the subject-matter of a provision in which it is found can have application to corporations. Paragraph 2(e) is, in my view, such a provision.

It is therefore possible, in the case at bar, for the corporation to rely on paragraph 2(e). Accordingly, we must consider whether, in the instant case, the Act deprives the corporation of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of its rights and obligations.

In MacBain v. Lederman,[47] the Federal Court of Appeal set out the tests that must be met before it can be found that paragraph 2(e) of the Bill of Rights has been violated, at pages 877-878:

… Firstly, it must be shown that a party’s “rights and obligations” fall to be determined by a federal tribunal; and, secondly , it must be established that the party concerned was not afforded a “fair hearing in accordance with the principles of fundamental justice”.

The decision in Singh et al. v. Minister of Employment and Immigration[48] gave renewed scope to the Canadian Bill of Rights. Madam Justice Wilson acknowledged that the dichotomy between privileges and rights had played a role in narrowing the scope of the Bill of Rights, and that the analysis that derived from that dichotomy could not apply in relation to the Charter. She therefore turned to the Charter for her analysis of the issue in Singh.

However, Mr. Justice Beetz chose to interpret the Immigration Act, 1976 [S.C. 1976-77, c. 52] having regard to the Bill of Rights. With respect to the first criterion to be met, in relation to the definition of “rights and obligations”, he stated, at page 228:

Be that as it may, it seems clear to me that the ambit of s. 2(e) is broader than the list of rights enumerated in s. 1 which are designated as “human rights and fundamental freedoms” whereas in s. 2(e), what is protected by the right to a fair hearing is the determination of one’s “rights and obligations”, whatever they are and whenever the determination process is one which comes under the legislative authority of the Parliament of Canada. It is true that the first part of s. 2 refers to “the rights or freedoms herein recognized and declared”, but s. 2(e) does protect a right which is fundamental, namely “the right to a fair hearing in accordance with the principles of fundamental justice” for the determination of one’s rights and obligations, fundamental or not. It is my view that … the right guaranteed by s. 2(e) is in no way qualified by the “due process” concept mentioned in s. 1(a).

Mr. Justice Beetz concluded that the process of determining refugee claims involved the determination of rights and obligations. However, he added:

It follows also that this case is distinguishable from cases where a mere privilege was refused or revoked, such as Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, and Mitchell v. The Queen, [1976] 2 S.C.R. 570.[49]

Most importantly, Mr. Justice Beetz concluded that the “rights” referred to in paragraph 2(e) of the Bill of Rights included rights that went beyond the fundamental rights usually recognized under the concept of “natural justice” or “procedural fairness”. However, a case must nonetheless involve the determination of a person’s “rights”, and a mere privilege will not be protected by paragraph 2(e).

The question is therefore whether the revocation of a licence to carry on one’s business meets the definition of the determination of a right.

There is a body of case law that recognizes that the practice of a profession may constitute a right, and that this right may be protected by either section 7 of the Charter[50] or section 23 of the Quebec Charter [Charter of Human Rights and Freedoms, R.S.Q., c. C-12].[51] It could be argued that this characterization is appropriate, by analogy, in the context of our analysis of paragraph 2(e) of the Bill of Rights. I do not believe so. As we saw earlier, Pfeiffer & Pfeiffer alone has brought an application under paragraph 2(e). A corporation, unlike an individual, cannot claim to be practising a profession. The interests of the corporation in the case at bar are purely economic, and accordingly obtaining a licence can result in nothing more, in my opinion, than a privilege.

A “licence” is defined in the Petit Larousse illustré , 1985 as follows:

[translation] Permission granted by the public authorities to practise certain professions, and to import or export various products; authorization to exploit a patent.

Stroud’s Judicial Dictionary of Words and Phrases[52] defines a licence as follows:

When one finds the word “licence” used in a statute the presumption is that it is intended to designate a purely personal privilege.

It is quite common for it to be necessary to obtain a licence in order to operate a business. For example, the individual in question in Joys v. M.N.R.[53] had a commercial fishing licence. The Federal Court of Appeal held that the issuance of a licence was a function of the Minister’s discretion, and added, at page 164:

It is clear law that a fishing licence is a privilege granted by the Minister and in the renewal of which the licence holder has no vested right.

In New Brunswick Broadcasting Co., Limited v. Canadian Radio-television and Telecommunications Commission,[54] the CRTC had limited the renewal of broadcasting licences to the company in question. The Court of Appeal acknowledged that the broadcasting company had a licence at the time a direction concerning renewal was issued, and held, with respect to the application of paragraph 2(e) of the Bill of Rights, at page 429:

The appellant had, however, no vested or other property right to have its licences renewed or to have the authority of the Commission maintained either until the disposition of its application or for the future.

Having regard to these decisions, it would be difficult for me to conclude that the revocation of the applicants’ licence meets the definition of a “right”. In the circumstances, since this was merely a privilege, Pfeiffer & Pfeiffer does not satisfy the first element of the test developed in MacBain and accordingly cannot rely on paragraph 2(e) of the Bill of Rights.

For these reasons, the applications for judicial review are dismissed.

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