A-135-98
William Krause and Pierre Després in their Personal Capacities and in their Capacities as Members of the Executive of the Social Science Employees' Association, Edward Halayko and Helen Rapp in their Personal Capacities and their Capacities as Members of the Executive of the Armed Forces Pensioners'/Annuitants' Association of Canada, Luc Pomerleau et Line Niquet en leur nom personnel et en leur qualité de membres de l'Éxecutif du Syndicat canadien des employés professionnels et techniques, and Wayne C. Foy and in his Personal Capacity and in his Capacity as a Member of the Executive of the Aircraft Operations Group Association (Appellants) (Applicants)
v.
Her Majesty the Queen in Right of Canada (Respondent) (Respondent)
Indexed as: Krausev. Canada (C.A.)
Court of Appeal, Stone, Linden and Sexton JJ.A." Ottawa, January 19 and February 8, 1999.
Practice — Limitation of actions — Appeal from order striking out November 1997 originating notice of motion for mandamus, prohibition, declaration regarding crediting of amounts to pension plans as required by statute — Appellants alleging ongoing improper amortization of surpluses in each fiscal year since 1993-1994 breach of Minister's duties under Public Service, Canadian Forces Superannuation Acts — Motions Judge holding accounting procedures implemented in 1993-1994 having genesis in respondent's decision in 1989-1990 — Holding originating motion filed beyond 30-day time limit prescribed in Federal Court Act, s. 18.1(2) for application for judicial review in respect of decision or order of federal tribunal — Time limit imposed by s. 18.1(2) not barring appellants from seeking mandamus, prohibition, declaration — S. 18.1(1) permitting anyone directly affected by matter in respect of which relief sought to bring application for judicial review — —Matter— including any matter in respect of which remedy available under s. 18 — S. 18.1(3)(a), (b) contemplating mandamus, declaratory relief, prohibition — Exercise of s. 18 jurisdiction not depending on existence of —decision or order— — Acts of responsible Ministers in implementing decision attacked — Decision to proceed in accordance with 1988 recommendations not resulting in breach of statutory duties.
Practice — Parties — Originating notice of motion alleging ongoing improper amortization of portion of surpluses in Public Service, Canadian Forces pension accounts since 1993-1994, breach of Minister's duties under Public Service, Canadian Forces Superannuation Acts — President of Treasury Board, Minister of Finance should have been named as respondents, rather than Her Majesty — Originating document not otherwise so defective could not be cured by simple amendment — Style of cause so amended.
Practice — Rules — Dispensing with compliance — Originating notice of motion alleging ongoing improper amortization of portion of surpluses in Public Service, Canadian Forces pension accounts, breach of Minister's duties under Public Service, Canadian Forces Superannuation Acts— If breach of statutory duties, occurring because of acts of responsible Ministers in implementing 1988 recommendation as to accounting procedures, not because of decision to implement those procedures — When originating document filed, Federal Court Rules, R. 1602(4) required motion to be in respect of single decision, order, other matter — Former R. 6 giving Court authority in special circumstances to dispense with compliance with any Rule where necessary in interest of justice — That power continued in new r. 55 — Appropriate in circumstances to dispense with requirement by permitting —matters— to be brought in same proceeding.
Federal Court jurisdiction — Trial Division — Appeal from order striking out originating notice of motion for mandamus, prohibition, declaration as outside time limit prescribed in s. 18.1(2) to bring application for judicial review of federal tribunal's decision or order — Appellants alleging ongoing improper amortization of portions of Public Service, Canadian Forces surpluses since 1993-1994, breach of Minister's duties under Public Service, Canadian Forces Superannuation Acts — Appeal allowed — S. 18.1(1) permitting anyone directly affected by matter in respect of which relief sought to bring application for judicial review — —Matter— including any matter in respect of which remedy available under s. 18 — S. 18.1(3)(a),(b) contemplating mandamus, declaratory relief, prohibition — Exercise of s. 18 jurisdiction not depending on existence of —decision or order—.
Administrative law — Judicial review — Mandamus — Appeal from order striking out originating notice of motion as filed beyond time limit prescribed in Federal Court Act, s. 18.1(2) — Appellants seeking mandamus, prohibition, declaration concerning allegation ongoing improper amortization of portions of surpluses in Public Service, Canadian Forces pension accounts since 1993-1994 fiscal year — Initial —decision— to adopt accounting procedure taken in 1989-1990 — Time limit imposed by s. 18.1(2) not barring appellants from seeking mandamus, prohibition, declaration — S. 18.1(1) permitting anyone directly affected by matter in respect of which relief sought to bring application for judicial review of federal tribunal's decision, order — —Matter— including any matter in respect of which remedy available under s. 18 — S. 18.1(3)(a), (b) contemplating mandamus, declaratory relief, prohibition — Exercise of s. 18 jurisdiction not depending on existence of —decision or order— — Acts of responsible Ministers in implementing decision attacked — Statutory duty arising in each fiscal year.
This was an appeal from a Trial Division order striking out the originating notice of motion filed in November 1997 for mandamus, prohibition and declaration, and dismissing a cross-motion for an extension of time. The principal complaint was that in each fiscal year beginning with the 1993-1994 fiscal year, the responsible Ministers have failed to credit the Public Service and Canadian Forces superannuation accounts with the full amounts required to be credited pursuant to Public Service Superannuation Act, subsection 44(1) and Canadian Forces Superannuation Act, subsection 55(1). The appellants asserted that in each of those years a portion of the surpluses in those accounts has been improperly amortized, and that these actions are ongoing and are in violation of the Ministers' duties imposed by those subsections. A surplus occurs when the balances of the accounts exceed the liability for future pension benefits determined through actuarial calculations. The Motions Judge noted that the accounting procedures which were implemented by the respondent in the 1993-1994 fiscal year were recommended in 1988 by the Canadian Institute of Chartered Accountants and had their genesis in the respondent's decision in the 1989-1990 fiscal year to put those recommendations into effect. Her Ladyship held that the originating motion had been filed beyond the 30-day time limit prescribed in Federal Court Act, subsection 18.1(2) for an application for judicial review in respect of a decision or order of a federal tribunal in that the initial "decision" to amortize the surpluses was taken in the 1989-1990 fiscal year. Even if the practice of amortizing surpluses in each fiscal year constituted a "decision", such practice commenced in the 1993-1994 fiscal year and any subsequent amortization of portions of the surpluses flowed from that decision.
The appellants submitted that the 30-day time limit specified in subsection 18.1(2) applies only where an application for judicial review is "in respect of a decision or order". They submitted that the actions sought to be reached by mandamus , prohibition and declaration were not "decisions" within subsection 18.1(2).
The respondent submitted that the originating document was defective because it improperly named Her Majesty as the respondent, and failed to set out the date and details of the single decision in respect of which judicial review was sought.
Held, the appeal should be allowed; and the style of cause should be amended by substituting "President of the Treasury Board" and "Minister of Finance" for "Her Majesty the Queen in Right of Canada".
The time limit imposed by subsection 18.1(2) did not bar the appellants from seeking relief by way of mandamus, prohibition and declaration. Subsection 18.1(1) permits "anyone directly affected by the matter in respect of which relief is sought" to bring an application for judicial review. "Matter" embraces not only a "decision or order", but any matter in respect of which a remedy may be available under Federal Court Act , section 18. Paragraph 18.1(3)(a), whereby a federal tribunal may be ordered to do any act or thing it has unlawfully failed or refused to do, appears to contemplate an order in the nature of mandamus. Paragraph 18.1(3)(b) appears to contemplate declaratory relief or prohibition when it provides "whenever a decision, order, act or proceeding" of a federal tribunal is found to be "invalid or unlawful". The language used in subsection 18.1 was designed to accommodate an application for both a section 18 remedy per se , in addition to a "setting aside" or a referral back of a "decision or order". While a decision was made to adopt the 1988 recommendations, it was not that decision, but the acts of the responsible Ministers in implementing that decision that were claimed to be invalid or unlawful. The duty to act in accordance with PSSA, subsection 44(1) and CFSA, subsection 55(1) arose "in each fiscal year".
The exercise of the jurisdiction under section 18 does not depend on the existence of a "decision or order". The decision to adopt the 1988 recommendations did not render the subsection 18.1(2) time limit applicable. That decision itself did not result in a breach of any statutory duties. If such a breach occurred, it was because of the actions taken by the responsible Minister in contravention of the relevant statutory provisions.
The "President of the Treasury Board" and the "Minister of Finance" ought to have been named as respondents rather than "Her Majesty". But the originating document was not otherwise so defective that it could not be cured by simple amendment. When it was filed, Federal Court Rules subsection 1602(4) required a notice of motion to be "in respect of a single decision, order or other matter", a requirement that has since been modified by new rule 302. Former Rule 6 vested in the Court authority, in special circumstances, to "dispense with compliance with any Rule where it is necessary in the interest of justice", a power that is largely continued in new rule 55. It was appropriate in the circumstances to dispense with the requirement by permitting the "matters" to be brought in the same proceeding. The appellants have set out sufficient details of those matters in their originating notice.
statutes and regulations judicially considered
Canadian Forces Superannuation Act, R.S.C., 1985, c. C-17, s. 55(1) (as am. by S.C. 1992, c. 46, s. 50).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 18.4 (as enacted idem).
Federal Court Rules, C.R.C., c. 663, RR. 6 (as enacted by SOR/90-846, s. 1), 1602 (as enacted by SOR/92-43, s. 19; 94-41, s. 14).
Federal Court Rules, 1998, SOR/98-106, rr. 55, 302.
Financial Administration Act, R.S.C., 1985, c. F-11, s. 64(2)(d).
Public Service Superannuation Act, R.S.C., 1985, c. P-36, s. 44(1) (as am. by S.C. 1992, c. 46, s. 23).
cases judicially considered
applied:
Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans) (1997), 26 C.E.L.R. (N.S.) 238; 146 F.T.R. 19 (F.C.T.D.); Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans), [1999] 1 F.C. 483 (C.A.).
considered:
Rex v. Barker (1762), 3 Burr. 1265; 97 E.R. 823; Rochester (Mayor of) v. Reg. (1858), El.Bl. & El. 1024; 113 R.R. 978; Reg. v. Inland Revenue Comrs., Ex parte National Federation of Self-Employed and Small Businesses Ltd., [1982] A.C. 617 (H.L.); Reg. v. Greater London Council, Ex parte Blackburn, [1976] 1 W.L.R. 550.
referred to:
Broughton v. Commissioner of Stamp Duties, [1899] A.C. 251 (P.C.); McCaffrey v. Canada, [1993] 1 C.T.C. 15; (1993), 93 DTC 5009; 59 F.T.R. 12 (F.C.T.D.); LeBlanc v. National Bank of Canada, [1994] 1 F.C. 81 (T.D.); Atlantic Oil Workers Union v. Canada (Director of Investigation and Research, Bureau of Competition Policy), [1996] 3 F.C. 539; (1996), 68 C.P.R. (3d) 344; 114 F.T.R. 161 (T.D.).
authors cited
Brown, Donald J. M. and John M. Evans. Judicial Review of Administrative Action in Canada, Toronto: Canvasback Publishing, 1998.
MacKinnon, B. J. "Prohibition, Certiorari and Quo Warranto" in Special Lectures of the Law Society of Upper Canada , Toronto: Richard De Boo Ltd, 1961, 290.
Wade, William and Christopher Forsyth. Administrative Law, 7th ed. Oxford: Clarendon Press, 1994.
APPEAL from a Trial Division order ((1998), 143 F.T.R. 143) striking out an originating notice of motion for mandamus, prohibition and declaration with respect to the crediting of amounts to certain pension plans as filed beyond the 30-day time limit prescribed in Federal Court Act, subsection 18.1(2). Appeal allowed.
appearances:
Peter C. Englemann for appellants (applicants).
Edward R. Sojonky, Q.C. and Jan E. Brongers for respondent (respondent).
solicitors:
Caroline Englemann Gottheil, Ottawa, for appellants (applicants).
Deputy Attorney General of Canada for respondent (respondent).
The following are the reasons for judgment rendered in English by
Stone J.A.: This appeal is from an order of the Trial Division of February 25, 1998 [(1998), 143 F.T.R. 143] granting the respondent's motion to strike the appellants' originating notice of motion and dismissing the appellants' cross-motion for an extension of time.
The originating notice of motion, filed pursuant to sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7] on November 13, 1997, requested relief in the nature of mandamus, prohibition and declaration. Its objectives are threefold. First, to compel the respondent to credit the Public Service Superannuation Account and the Canadian Forces Superannuation Account as continued by the Public Service Superannuation Act1 (the PSSA) and the Canadian Forces Superannuation Act2 (the CFSA), respectively, "with any and all amounts required to be credited" to these accounts and to maintain such amounts to the credits of these accounts pursuant to subsection 44(1) [as am. by S.C. 1992, c. 46, s. 23] of the PSSA and subsection 55(1) [as am. idem , s. 50] of the CFSA. Secondly, to prohibit the respondent from debiting these accounts, applying any portion of the amounts credited or required to be credited to other budgetary expenditures or to the national debt or otherwise reducing the amounts credited or required to be credited to both of these accounts. Thirdly, to have declared as contrary to subsection 44(1) of the PSSA and subsection 55(1) of the CFSA the use by the respondent of the "Allowance for Pension Adjustment Account" to debit or reduce the amounts which have been credited or required to be credited to both accounts or to apply any portion of the amount credited or required to be credited to other budgetary expenditures or to the national debt.
Subsections 44(1) of the PSSA and 55(1) of the CFSA read:
44. (1) There shall be credited to the Superannuation Account in each fiscal year
(a) in respect of every month, an amount equal to the total of
(i) an amount matching the total amount estimated by the Minister to have been paid into the Account during the month by way of contributions in respect of current service other than current service with any Public Service corporation or other corporation as defined in section 37, and
(ii) such additional amount as is determined by the Minister to be required to provide for the cost of the benefits that have accrued in respect of that month in relation to current service and that will become chargeable against the Account;
(b) in respect of every month, such amount in relation to the total amount paid into the Account during the preceding month by way of contributions in respect of past service as is determined by the Minister; and
(c) an amount representing interest on the balance from time to time to the credit of the Account, calculated in such manner and at such rates and credited at such times as the regulations provide, but the rate for any quarter in a fiscal year shall be at least equal to the rate that would be determined for that quarter using the method set out in section 46 of the Public Service Superannuation Regulations, as that section read on March 31, 1991.
. . .
55. (1) There shall be credited to the Superannuation Account in each fiscal year
(a) in respect of every month, an amount equal to the amount estimated by the President of the Treasury Board to be required to provide for the cost of the benefits that have accrued in respect of that month and that will become chargeable against the Account; and
(b) an amount representing interest on the balance from time to time to the credit of the Account, calculated in such manner and at such rates and credited at such times as the regulations provide, but the rate for any quarter in a fiscal year shall be at least equal to the rate that would be determined for that quarter using the method set out in section 36 of the Canadian Forces Superannuation Regulations, as that section read on March 31, 1991.
The individual appellants and members of the appellant associations are either contributors to or beneficiaries of the pension plans created and maintained pursuant to the PSSA and the CFSA.
The grounds on which the application for judicial review is based are as follows:3
1. section 44(1) and other sections of the PSSA impose a mandatory duty on the Respondent to credit certain amounts to the PS Superannuation Account and to maintain those amounts to the credit of the PS Superannuation Account;
2. the Respondent has failed or refused to credit those amounts, has failed or refused to maintain those amounts to the credit of the PS Superannuation Account, has applied (a) portion(s) of the amount credited or required to be credited to the PS Superannuation Account to other budgetary expenditures or to the national debt and/or has debited or reduced the PS Superannuation Account in a manner not authorized by law;
3. this has been accomplished primarily through the use of the "Allowance for Pension Adjustment Account" or other similarly named accounts to debit or to reduce the PS Superannuation Account or to apply a portion of the amount credited or required to be credited to the PS Superannuation Account to other budgetary expenditures or to the national debt;
4. section 55(1) and other sections of the Canadian Forces Superannuation Act impose a mandatory duty on the Respondent to credit certain amounts to the CF Superannuation Account and to maintain those accounts to the credit of the CF Superannuation Account;
5. the Respondent has failed or refused to credit those amounts, has failed or refused to maintain those amounts to the credit of the CF Superannuation Account, has applied (a) portion(s) of the amount credited or required to be credited to the CF Superannuation Account to other budgetary expenditures or to the national debt and/or has debited the CF Account in a manner not authorized by law;
6. this has been accomplished primarily through the use of the "Allowance for Pension Adjustment Account" or other similarly named accounts to debit or to reduce the CF Superannuation Account or to apply a portion of the amount credited or required to be credited to the CF Superannuation Account to other budgetary expenditures or to the national debt.
The principal complaint in issue is that in each fiscal year beginning with the 1993-1994 fiscal year, the responsible Ministers have failed to credit each of the pension accounts with the full amounts required to be credited pursuant to subsections 44(1) of the PSSA and 55(1) of the CFSA, respectively. The appellants assert that in each of those years a portion of the surpluses standing in the accounts has been improperly amortized over a period of several years through the use of the Allowance for Pension Adjustment Account and that these actions are ongoing and are in violation of the Ministers' duties imposed by those subsections.
The learned Motions Judge noted, at page 148 of her reasons, that a "surplus occurs when the balances of the accounts are in excess of the obligation or liability for future employee pension benefits determined through actuarial calculations." She further noted that the accounting procedures which were implemented by the respondent in the 1993-1994 fiscal year were recommended by the Canadian Institute of Chartered Accountants in 1988 and had their genesis in the respondent's decision in the 1989-1990 fiscal year to put that body's recommendations into effect and to establish the adjustment account pursuant to paragraph 64(2)(d ) of the Financial Administration Act.4 It is not disputed that portions of the surpluses in the two pension accounts were for the first time amortized in the manner recommended in the 1993-1994 fiscal year.
Concern with this accounting treatment of the amounts required to be credited in the 1993-1994 fiscal year was conveyed to the responsible Minister in 1995 by way of an exchange of correspondence between the appellant Krause and the President of the Treasury Board. In the Minister's letter to Mr. Krause of May 18, 1995, he stated at pages 1-2:5
There are two particular items in the accounting recommendations of which you should be aware. First, for defined benefit pension plans, there is a requirement to use the "government's best estimate" for the economic and demographic assumptions employed to establish pension liabilities and therefore the financial position of its pension plans, i.e. the difference between the pension plan assets and liabilities. Second, any year to year change in the financial position of a government's pension plans must be amortized over the expected average remaining service life of employees (EARSL). An improvement in a plan's financial position is amortized as an expenditure reduction for the government, while a worsening of the financial position of a plan is amortized as an increase in the government's expenditures.
It should be noted that these amortizations do not affect the actual amounts recorded in a pension fund. Rather, the intent of the accounting standards is to report the realistic liabilities for a pension plan based on its existing terms and conditions and to smooth out the effect of annual fluctuations in the financial position of a pension plan on the government's financial statements, i.e., the effect on the expenditures of a government. In addition, the recorded pension liability in a government's financial statements is intended to be gradually brought in line with the estimated actuarial pension liability.
The respondent's motion to strike of December 23, 1997, was based primarily on the ground that the originating notice of motion was filed beyond the 30-day time limit specified in subsection 18.1(2) of the Federal Court Act. Other procedural defects were also alleged including a failure to set out the date and details of the decision, order or other matter in controversy as required by former Rule 1602 [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19; 94-41, s. 14) and to join the proper persons as respondents. Faced with that motion, the appellants proceeded to file the cross-motion seeking, inter alia, permission to bring the application for judicial review outside of the time period specified in subsection 18.1(2), to have the judicial review application treated and proceeded with as an action pursuant to subsection 18.4(2) [as enacted by S.C. 1990, c. 8, s. 5] and to amend the style of cause by substituting the President of the Treasury Board and the Minister of Finance as respondents.
The Motions Judge rejected the appellants' argument that the originating notice of motion was filed within time. She determined that the initial "decision" to amortize the surpluses was taken in the 1989-1990 fiscal year, and that even if the practice of amortizing surpluses in each fiscal year constituted a "decision" such practice commenced in the 1993-1994 fiscal year and any subsequent amortization of portions of the surpluses flowed from that decision. On this analysis she concluded that the originating notice of motion was filed well beyond the 30-day time limit in subsection 18.1(2). The appellants submit that the Motions Judge erred in so concluding.
The appellants submit that the actions sought to be reached by way of mandamus, prohibition and declaration are not "decisions" within the meaning of subsection 18.1(2). They further contend that if the subsection applies there was not here a single decision but rather a series of annual decisions reflective of the ongoing policy or practice of the respondent over time. Finally, they urge in any event that the decisions to amortize portions of the surpluses in the 1996-1997 fiscal year were attacked within time.
I shall deal with these various arguments together.
If, of course, the appellants are correct that the actions sought to be challenged in the originating notice of motion are not "decisions," then clearly that notice of motion was not filed out of time. This argument calls for some examination of section 18 and subsections 18.1(1) to (3) of the Federal Court Act which read:
18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
(2) The Trial Division has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada.
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
(3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
I shall begin by examining the appellants' submission that given the relief they seek to obtain in the originating document, the time bar laid down in subsection 18.1(2) has no application despite the fact that the Ministers in question may have decided as early as the 1989-1990 fiscal year to account for any future surpluses in the two pension accounts in the manner that was recommended by the Canadian Institute of Chartered Accountants in 1988.
Before taking up the appellants' argument that the time bar in subsection 18.1(2) does not apply in the present case, I wish to offer a few observations on the historical roles served by the extraordinary remedies that are made available under section 18 of the Federal Court Act.
The common law courts developed the ancient writs of mandamus, certiorari, and prohibition to restrain the abuse or misuse of power. As early as 1762, Lord Mansfield was of the view that mandamus ought to be "used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one."6 Almost one hundred years later Baron Martin saw it as the duty of the courts "to be vigilant" to apply the remedy of mandamus "in every case to which, by any reasonable construction, it can be made applicable."7 Nowadays the remedy is commonly used to enforce the performance of public duties by public authorities of all kind.8 Very recently, in Reg. v. Inland Revenue Comrs., Ex parte National Federation of Self-Employed and Small Businesses Ltd., Lord Diplock, commenting upon the decision of Lord Denning M.R. in Reg. v. Greater London Council, Ex parte Blackburn [[1976] 1 W.L.R. 550, at page 559], stated:9
I agree in substance with what Lord Denning M.R. said, at p. 559, though in language more eloquent than it would be my normal style to use:
"I regard it as a matter of high constitutional principle that if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate." (The italics in this quotation are my own.)
The reference here is to flagrant and serious breaches of the law by persons and authorities exercising governmental functions which are continuing unchecked.
The design of prohibition, on the other hand, is preventative rather than corrective.10 It affords a measure of judicial supervision not only of inferior tribunals but of administrative authorities generally. Specifically it is available "to prohibit administrative authorities from exceeding their powers or misusing them."11 Indeed, prohibition has been granted to supervise the exercise of statutory power by such authorities including an act as distinct from a legal decision or determination, and a preliminary decision leading to a decision that affects rights even though the preliminary decision does not immediately do so.12
Declaratory relief is available, inter alia, to determine whether a statute applies in a particular case. It has been stated that:13
In administrative law the great merit of the declaration is that it is an efficient remedy against ultra vires action by governmental authorities of all kinds, including ministers and servants of the Crown, and, in its latest development, the Crown itself. If the Court will declare that some action, either taken or proposed, is unauthorised by law, that concludes the point as between the plaintiff and the authority. If then his property is taken, he has his ordinary legal remedies; if an order is made against him, he can ignore it with impunity; if he has been dismissed from an office, he can insist that he still holds it. All these results flow from the mere fact that the rights of the parties have been declared. This is a particularly suitable way to settle disputes with government authorities, since it involves no immediate threat of compulsion, yet is none the less effective.
All of these remedies are, of course, discretionary. They will be denied, for example, where there has been unreasonable delay.14 Moreover, an applicant must possess a sufficient interest in the subject-matter of the dispute as not to be seen as a mere busybody.
I now turn to the appellants' primary argument. It is that although by subsection 18(3) of the Federal Court Act a person seeking any of the extraordinary remedies available under subsections 18(1) and (2) may do so "only on an application for judicial review made under section 18.1," the appellants are not prevented from doing so beyond the 30-day time limit specified in subsection 18.1(2) for the simple reason that this time limit applies only where an application for judicial review is "in respect of a decision or order." The appellants submit that nowhere in the originating document do they seek to attack any "decision" of the respective Ministers but, rather, to compel performance of public duties, prevent continued failure to perform such duties and declare the use of the Allowance for Pension Adjustment Account by the Ministers to be contrary to subsections 44(1) of the PSSA and 55(1) of the CFSA.
The appellants point out that the drafters of section 18.1 employed language elsewhere in its text which, in their submission, is designed to accommodate an application for both a section 18 remedy per se and such other remedy as is provided for in subsection 18.1(3). Thus in subsection 18.1(1), the words "anyone directly affected by the matter in respect of which relief is sought" appear. The Motions Judge [at page 150] was of the view that the word "matter" as repeated in former Rule 1602 is "reflective . . . of the necessity to find a word to cover a variety of administrative actions." I respectfully agree. Further support for that view was expressed after Bill C-38 which proposed this change was adopted, but before it came into force.15 Indeed, it seems to me that the word "matter" does embrace not only a "decision or order" but any matter in respect of which a remedy may be available under section 18 of the Federal Court Act .
The appellants also point to language employed in subsection 18.1(3) as again indicating that this subsection was drafted with a view to permitting the award of section 18 relief per se in addition to a "setting aside" or a referral back of a "decision or order." An order in the nature of mandamus would appear to be contemplated by paragraph 18.1(3)(a) whereby a federal tribunal may be ordered to "do any act or thing it has unlawfully failed or refused to do." A remedy by way of declaratory relief or prohibition would appear to be among those provided for in paragraph 18.1(3)(b ) whenever "a decision, order, act or proceeding" [underlining added] of a federal tribunal is found to be "invalid or unlawful."16
I agree with these submissions. In my view, the time limit imposed by subsection 18.1(2) does not bar the appellants from seeking relief by way of mandamus, prohibition and declaration. It is true that at some point in time an internal departmental decision was taken to adopt the 1988 recommendations of the Canadian Institute of Chartered Accountants and to implement those recommendations in each fiscal year thereafter. It is not, however, this general decision that is sought to be reached by the appellants here. It is the acts of the responsible Ministers in implementing that decision that are now claimed to be invalid or unlawful. The duty to act in accordance with subsections 44(1) of the PSSA and 55(1) of the CFSA arose "in each fiscal year." The charge is that by acting as they have in the 1993-1994 and subsequent fiscal years the Ministers have contravened the relevant provisions of the two statutes thereby failing to perform their duties, and that this conduct will continue unless the Court intervenes with a view to vindicating the rule of law. The merit of this contention can only be determined after the judicial review application is heard in the Trial Division.
I am satisfied that the exercise of the jurisdiction under section 18 does not depend on the existence of a "decision or order." In Alberta Wilderness Assn. v. Canada (Minister of Fisheries & Oceans) ,17 Hugessen J. was of the view that a remedy envisaged by that section "does not require that there be a decision or order actually in existence as a prerequisite to its exercise." In the present case, the existence of the general decision to proceed in accordance with the recommendations of the Canadian Institute of Chartered Accountants does not, in my view, render the subsection 18.1(2) time limit applicable so as to bar the appellants from seeking relief by way of mandamus , prohibition and declaration. Otherwise, a person in the position of the appellants would be barred from the possibility of ever obtaining relief under section 18 solely because the alleged invalid or unlawful act stemmed from a decision to take the alleged unlawful step. That decision did not of itself result in a breach of any statutory duties. If such a breach occurred it is because of the actions taken by the responsible Minister in contravention of the relevant statutory provisions.
In view of the above conclusion, it is unnecessary to consider the appellants' alternative arguments including that if subsection 18.1(2) applied, the application for judicial review was nevertheless brought within time, that the Motions Judge erred in refusing to extend the time or to allow the application to be treated and proceeded with as an action.
It is necessary, however, to consider the grounds put forward by the respondent, in her motion to strike, that the originating document was defective because it failed to identify the federal tribunal in respect of which it is made, that it improperly named Her Majesty as the respondent and that it failed to set out the date and details of the single decision, order or matter in respect of which judicial review is sought.
By their cross-motion, the appellants seek leave to amend the originating document by deleting the name of Her Majesty and substituting the "President of the Treasury Board" and the "Minister of Finance".
I agree with the respondent that the style of cause does contain a misnomer. The "President of the Treasury Board" and the "Minister of Finance" ought to have been named as respondents rather than "Her Majesty."18
I am not persuaded that the originating document is otherwise so defective that it cannot be cured by simple amendment. At the time this document was filed, former subsection 1602(4) of the Rules required that it be "in respect of a single decision, order or other matter," a requirement that has since been modified by new rule 302 [Federal Court Rules, 1998 , SOR/98-106]. Former Rule 6 [as enacted by SOR/90-846, s. 2] invested the Court in special circumstances with authority by order to "dispense with compliance with any Rule where it is necessary in the interest of justice," a power that is largely continued in new rule 55. It seems to me appropriate in the circumstances to dispense with the requirement by permitting the "matters" to be brought in the same proceeding. I am also of the view that the appellants have set out sufficient details of those matters in their originating notice.
I would allow the appeal with costs, set aside the order of the Trial Division and dismiss the motion to strike. I would also amend the style of cause by substituting "President of the Treasury Board" and "Minister of Finance" as parties respondent in the place of "Her Majesty the Queen in Right of Canada."
Linden J.A.: I agree.
Sexton J.A.: I agree.
1 R.S.C., 1985, c. P-36.
2 R.S.C., 1985, c. C-17.
3 Appeal Book, Vol. 1, at pp. 34-35.
4 R.S.C., 1985, c. F-11.
5 Appeal Book, Vol. 1, at pp. 264-265.
6 Rex v. Barker (1762), 3 Burr. 1265, at p. 1267; 97 E.R. 823, at p. 825.
7 Mayor of Rochester v. Reg. (1858), El. Bl. & El. 1024, at p. 1033; 113 R.R. 978, at p. 983.
8 W. Wade & C. Forsyth, Administrative Law, 7th ed. (Oxford: Clarendon Press, 1994), at p. 643.
9 [1982] A.C. 617 (H.L.), at p. 641.
10 B. J. MacKinnon, "Prohibition, Certiorari and Quo Warranto," in Law Society of Upper Canada Special Lectures , Toronto: Richard De Boo Ltd., 1961, at p. 290.
11 W. Wade & C. Forsyth, supra, note 8, at p. 626.
12 Id., at pp. 633-634.
13 Id., at p. 593.
14 See e.g. Broughton v. Commissioner of Stamp Duties, [1899] A.C. 251 (P.C.).
15 I. G. Whitehall and J. H. Smellie, "Judicial Review and Administrative Appeals"A Substantive and Procedural Overview," Canadian Bar Association Seminar on Bill C-38, Toronto, January 25, 1991 and Vancouver, February 1, 1991, at p. 14. The amending statute (S.C. 1990, c. 8) was assented to on March 29, 1990 and came into effect on February 1, 1992.
16 See Brown, D. and Evans, J. M. Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 1998), at p. 2:4410 for a discussion of s. 18.1(3).
17 (1997), 26 C.E.L.R. (N.S.) 238 (F.C.T.D.), at pp. 241-242; revd on other grounds; Alberta Wilderness Assn. v. Canada (Minister of Fisheries and Oceans), [1999] 1 F.C. 483 (C.A.).
18 McCaffrey v. Canada, [1993] 1 C.T.C. 15 (F.C.T.D.). See also LeBlanc v. National Bank of Canada, [1994] 1 F.C. 81 (T.D.); Atlantic Oil Workers Union v. Canada (Director of Investigation and Research, Bureau of Competition Policy), [1996] 3 F.C. 539 (T.D.).