Gérard Blais (Appellant)
v.
Honourable Ron Basford (Respondent)
Court of Appeal, Noël A.C.J., Thurlow and
Walsh JJ.—Montreal, January 18; Ottawa,
January 19, 1972.
Judicial review—Jurisdiction—Trustee in bankruptcy—
Investigation conducted by Superintendent of Bankruptcy—
Trustee's licence restricted by Minister—Whether Minister's
decision reviewable by Court—Whether made on `judicial or
quasi-judicial basis"—Bankruptcy Act, R.S.C. 1970, c. B-3,
secs. 5(8), 9(4), 10(2).
Following an investigation by the Superintendent of
Bankruptcy under section 5(8) of the Bankruptcy Act into
the conduct of B, a licensed trustee in bankruptcy since
1953, respondent (the Minister of Consumer and Corporate
Affairs) on May 2, 1968, restricted B's licence to the
administration of estates then in his hands. The same
restriction on B's licence was repeated in 1969, 1970 and
1971. On November 4, 1971, the Minister rejected an
application by B to remove the restriction. On December
17, 1971, the Minister refused B's application for a licence
for 1972 without any restriction. In refusing both applica
tions, the Minister cited B's conduct leading to the original
restriction on his licence. B applied to the Federal Court
under section 28 of the Federal Court Act to set aside the
Minister's orders of December 4 and December 17, 1971.
Respondent moved to dismiss the application for lack of
jurisdiction.
Held, the Court has jurisdiction to hear B's application
under section 28 of the Federal Court Act.
Per Noël A.C.J. (Walsh J. concurring):—By not suspend
ing or cancelling B's licence under section 10(2) of the
Bankruptcy Act following the investigation of his conduct
under section 5(8) but instead issuing him a licence under
section 9(4) with a limitation thereon, the Minister was
effectively terminating B's licence, and it might be that
natural justice required that the report of the Superinten
dent of Bankruptcy on which he acted be brought to B's
attention so that he might have an opportunity to refute it.
Per Thurlow J. (Walsh J. concurring):—Even if the Minis
ter's decision of December 17, 1971 was an administrative
decision under section 9(4), it was "required by law to be
made on a judicial or quasi-judicial basis" within the mean
ing of section 28 of the Federal Court Act, i.e. the Minister
must act fairly and impartially and in this case should have
offered B an opportunity to answer material in the report of
the Superintendent of Bankruptcy. St. John v. Fraser [1935]
S.C.R. 441, applied; Wiswell v. Winnipeg [1965] S.C.R. 512,
referred to.
MOTION.
Pierre Lamontagne for appellant.
Paul 011ivier, Q.C. for respondent.
NOËL A.C.J.—In his motion respondent, the
Honourable Ron Basford [the Minister of Con
sumer and Corporate Affairs—Ed.], asks this
Court to dismiss amended application of appli
cant, Gérard Blais, in which applicant asks that
a decision made by respondent on November 4,
1971 upholding the decision to limit applicant's
licence as a trustee under the Bankruptcy Act
and the decision of December 17, 1971 to
renew applicant's licence for the year 1972 only
for purposes of completing the administration
of estates in his hands at December 31, 1967 be
reviewed and set aside, on the grounds that this
Court does not have jurisdiction to set aside the
said decisions.
The application for review and cancellation
of the said decisions made by respondent, the
Honourable Ron Basford, is based on the fol
lowing grounds, namely:
(1) respondent and the Superintendent of
Bankruptcy ignored a principle of natural jus
tice in that they did not follow the audi
alteram partem rule in relation to certain alle
gations made against applicant;
(2) respondent based his decision in his order
on a conclusion from erroneous facts, which
was drawn without reference to factors
brought to his attention and to the attention
of the Superintendent;
(3) applicant further states that evidence will
be given that the decision he complains of
amounts to cancellation of his licence, and
this was known to respondent and the
Superintendent.
Applicant has held a trustee licence since
1953. On May 2, 1968 the Minister of Consum
er and Corporate Affairs made a decision to the
effect that applicant's licence be limited to
administration of files on hand, the decision
being based on a report by the Superintendent
of Bankruptcy (in accordance with the provi
sions of section 3(8), now section 5(8)' of the
Bankruptcy Act, R.S.C. 1970, c. B-3), dated
September 8, 1967, recommending that appli
cant's trustee licence be cancelled and he be
removed from his functions as trustee for all
bankruptcy proceedings administered by him, in
view of his actions in the case of Gingras &
Frères Limitée. Applicant's licence was subse
quently renewed by decision of the Minister for
1969, 1970, 1971 and 1972 subject to the same
limitation, namely solely for the purpose of
completing administration of the files on hand
at December 31, 1967.
On August 31, 1967 applicant was handling
127 bankruptcy files as trustee. From the begin
ning of September 1967, voluntarily at first and
then as the result of limitations placed on his
licence, he has been unable to accept new files,
and he has not done so. He was handling only
four bankruptcy files as trustee on November 4,
1971 and December 17, 1971.
In applicant's submission the so-called volun
tary limitation of not accepting new files from
the beginning of September 1967 was imposed
on him by the Superintendent of Bankruptcy in
a letter dated September 13, 1967, sent to appli
cant's office. Applicant subsequently requested
a review of the May 2, 1968 order, as a result
of certain written representations made to him
by the Superintendent of Bankruptcy in a series
of letters, but he was unsuccessful as the
licence issued still only authorized him to
administer the files in hand until he had com
pleted them.
Respondent contends that this Court does not
have jurisdiction to hear applicant's application
for review and cancellation, for the following
reasons: first, according to counsel for the
respondent the Minister's decision to limit
applicant's licence as he did was merely an
administrative decision which he was entitled to
make under subsections 9(3) and (4) 2 of the
Bankruptcy Act, involving no judicial or quasi-
judicial decision, and against which, by the very
terms of section 28 of the Federal Court Act,
applicant cannot exercise the remedy of review
and cancellation provided by that section.
Respondent further submits that the only deci
sion which could be subject to cancellation, if
applicant were permitted to challenge it under
section 28 of the Federal Court Act, is the
decision of the Minister, dated December 17,
1971, renewing applicant's limited licence.
Counsel for the respondent contends that at the
time of the Minister's decision made on Novem-
ber 4, 1971 in which he refused to review the
decision limiting applicant's licence, the Minis-
ter had not yet received applicant's written
application for renewal of his licence for 1972.
Finally, respondent contends that applicant
had no right to renewal of his licence for 1972
other than in the form in which it was renewed,
namely, with the limitation attached thereto,
and accordingly, by renewing applicant's
licence in the way he did respondent did not
infringe on applicant's rights. In my view coun
sel for the respondent has a worthwhile argu
ment which certainly should be given careful
consideration, and in the appeal this question
will have to be thoroughly examined. At this
point, however, we are only called on to decide
whether this Court has jurisdiction to hear the
motion by applicant for a review and setting
aside of the Minister's decision limiting his
licence and, as applicant contends, effectively
cancelling it. I do not think it can be said that
this Court does not have jurisdiction to hear the
application for relief which applicant wishes to
make under section 28 of the Federal Court
Act.
In my view this Court has jurisdiction to hear
this application for relief for the following two
reasons: first of all it is clear that by limiting
applicant's licence as the Minister did on May
2, 1968, instead of suspending or cancelling it
as he ought to have done, under subsection
10(2) of the Bankruptcy Act, upon receipt of
the report of the Superintendent, pursuant to
the latter's investigation made under subsection
3(8) of the Act and which showed allegedly
improper conduct by the applicant in the matter
of Gingras & Frères Limitée, the Minister
exceeded his jurisdiction and adopted a proce
dure not authorized by law. Applicant cannot
challenge that decision by the remedy specified
in section 28, since the decision was made
before the Federal Court Act came into effect,
but it is to be noted here nevertheless that the
decision of May 2, 1968 is the fist step in a
procedure (of which it is an integral part) which,
taken with subsequent annual limiting renewals,
will result in cancellation of applicant's licence.
Indeed, by not suspending or cancelling appli
cant's licence in conformity with subsection
10(2)' of the Bankruptcy Act, and by using the
procedure provided in subsection 9(4) of the
said Act, respondent will effectively be ter
minating applicant's licence. By successive
licence renewals under subsection 9(4), the
effect of which is to terminate applicant's
activities as a trustee and eventually cancel his
licence, respondent may be able to prevent
applicant from exercising the right to a hearing
conferred on him by subsection 10(2) of the
Act, claiming, as counsel for the respondent
contends, that this right does not apply to
renewal of his licence under subsection 9(4).
It is possible that applicant, who has per
formed the function of trustee since 1953, has
the right to a hearing even though subsection
9(4) does not say so, on a decision made under
that subsection which infringes upon his rights.
It is also possible to contend that applicant is
not to be treated merely as an applicant for a
licence under subsection 9(3) who is requesting
that a licence be issued, but rather as a trustee
in office who is entitled to a renewal unless it is
not in the public interest for the licence to be
renewed without qualification or limitation, or if
renewed, to be subject to such qualifications or
limitations as here indicated which, as we have
seen, will result in terminating his activities as a
trustee. If the Minister made this decision to
terminate applicant's activities on the basis of
an unfavourable report, it may be that natural
justice requires that the contents of that report
be brought to his attention so that he can have
an opportunity to refute it if he can, since the
Minister made his decision upon consideration
of the report's contents and his assessment of
it.
According to applicant's counsel, applicant
has tried many times, from the Minister's deci
sion in 1968 to limit his licence until the latest
decision on December 17, 1971, to renew his
licence for 1972 with a limitation but, as we
have seen, for the purpose of cancelling it (deci-
sions based on two investigation reports whose
contents have not yet been communicated to
applicant or his counsel, and whose conclusions
he accordingly has not been able to challenge),
to get the Minister to revoke his decision and
issue him a licence containing no limitation, but
without success despite, according to counsel
for the applicant, a favourable decision by the
Superior Court in Sherbrooke, Que. in the Gin -
gras & Frères Limitée case which, as we have
seen, was the basis for limitation of his licence
in 1968.
Respondent's two motions are accordingly
dismissed with costs, but applicant will only be
entitled to costs on one motion.
* * *
THURLOW J.—The question raised by these
motions is whether this Court has jurisdiction
under section 28 of the Federal Court Act to
review and set aside decisions of the Minister
of Consumer and Corporate Affairs made on
November 4, 1971 and December 17, 1971 to
maintain a restriction which had been imposed
on May 2, 1968 on the applicant's licence to act
as a trustee in bankruptcy and which has been
continued in successive renewals of the licence
for the years 1969, 1970, 1971 and 1972.
Under section 28 the Court has such jurisdic
tion with respect to any decision or order made
by or in the course of proceedings before any
federal board, commission or other tribunal
"other than a decision or order of an adminis
trative nature not required by law to be made
on a judicial or quasi-judicial basis". The
expression "federal board, commission or other
tribunal" is defined in section 2(g) as meaning
(with certain exceptions not material to the pre
sent problem) any body or any person or per
sons having, exercising or purporting to exer
cise powers conferred by or under an Act of the
Parliament of Canada. As the decisions in ques
tion were made in the exercise or purported
exercise of powers arising under the Bankrupt
cy Act the Court has jurisdiction unless the
decisions in question are "of an administrative
nature not required to be made on a judicial or
quasi-judicial. basis".
Licensing functions, as a class, have fre
quently, though not always, been held to be of a
judicial or quasi-judicial nature (vide e.g. Sharpe
v. Wakefield [1891] A.C. 173 per Lord Hals -
bury at page 179) but there appears to be no
hard or fast rule on the subject and the determi
nation depends on the particular licensing
scheme and the statutory provisions applicable
thereto. In the words of Martland J. in Calgary
Power Ltd. v. Copithorne [1959] S.C.R. 24 at
page 30:
In determining whether or not a body or an individual is
exercising judicial or quasi-judicial duties, it is necessary to
examine the defined scope of its functions and then to
determine whether or not there is imposed a duty to act
judicially.
Here the statute under which the powers in
question arise is the Bankruptcy Act and con
sideration must be given to the scope of the
functions it confers on the Minister but in doing
so it is of•importance to bear in mind that under
section 28 of the Federal Court Act the ques
tion that arises is not whether these functions
are administrative or judicial but whether deci
sions or orders made in the exercise of such
powers though administrative in nature are or
are not required by law to be made on a judicial
or quasi-judicial basis.
Section 5 of the Bankruptcy Act provides for
the appointment of a Superintendent of Bank
ruptcy with power inter alia to receive applica
tions for licences and renewals thereof to act as
trustees under the Act and, as authorized by the
Minister, of Consumer and Corporate Affairs, to
issue licences and renewals thereof, to make
investigations of bankrupt estates, and, with the
leave of the bankruptcy court, to examine pri
vate records of the trustees.
Under section 5(8) when on investigation it
appears to him that a trustee has not properly
performed his duties or has been guilty of any
improper conduct or has not fully complied
with the law with regard to the administration
of any bankrupt estate the Superintendent may
make a report to the Minister together with
such recommendations as he deems advisable.
Under section 9(2) the Superintendent also
has the duty to investigate the character and
qualifications of any applicant for licence as he
deems advisable or expedient and to report to
the Minister the result of his investigations
together with his recommendations for or
against the granting of the application and his
reasons therefor.
The power to authorize the issue and renewal
of licences, with or without such limitations as
to him appear expedient, and the power to
suspend or cancel licences are, however,
reserved to the Minister himself under the fol
lowing provisions:
9. (3) The Minister, as soon as he has received a report
from the Superintendent as to the character and qualifica
tions of an applicant for a licence, may, if he considers it
will be of public advantage so to do, authorize the issue of a
licence, which shall specify the bankruptcy district or dis
tricts or any part thereof in which the licensee is entitled to
act.
(4) The licence shall be in the prescribed form and shall
expire on the 31st day of December in each year but may be
renewed from year to year subject, however, to such
qualification or limitation as to the Minister may seem
expedient; and the fee payable for the licence and any
renewal thereof shall be determined by the Minister.
10. (2) The Minister, after consideration of any report
received by him from the Superintendent, pursuant to sub
section 5(8), and after a reasonable opportunity has been
afforded the licensee to be heard in respect thereof, and
upon such further inquiry and investigation as he deems
proper, may suspend or cancel the licence of any licensee
and in such case shall direct that the licensee be removed as
trustee of all estates being administered by such licensee
and may appoint some other licensee or licensees to act as
trustee of all or any of such estates in the place or stead of
the trustee whose licence has been suspended or cancelled.
It will be observed that the power of the
Minister under section 9(3) to authorize the
issue of a licence is not absolute. It is to be
exercised after the Minister has received the
report of the Superintendent which, I would
suppose, includes the application as well, and
the Superintendent's recommendation for or
against the granting of the licence and his rea
sons therefor, but the Minister is not bound by
the recommendation or the reasons any more
than he is bound by what is said in the applica
tion. He can approve the grant over the Super
intendent's recommendation against it or disap
prove the grant over the Superintendent's
favourable recommendation. He need not
accept the reasons of the Superintendent and
may follow his own reasons. His duty is to
decide whether "it will be of public advantage"
to grant the licence and he is vested with a
discretion to authorize the issue of the licence
if, but only if, in his opinion it would be of
public advantage to do so. For this purpose
under section 9(4) he is further given the
authority when authorizing the renewal of a
licence to impose such qualifications or limita
tions on the licence as to him seem expedient.
He is also given authority under section 10(2) to
suspend or cancel a licence after receiving a
section 5(8) report, which as already mentioned
may include recommendations by the Superin
tendent, but only after reasonable opportunity
has been afforded the licensee to be heard in
respect thereof.
Apart from these considerations the provi
sions for licensing taken as a whole should I
think be regarded as intended to set up a system
with some continuity of licensing for such per
sons as can meet the necessary requirements, to
the extent that the Minister in the exercise of
his judgment considers that it will be to the
advantage of the public to license them. The
provision for expiration on December 31st of
each year and renewal, while providing an
annual opportunity to review the desirability
from the point of view of public advantage of
continuing the licence with or without limita
tion, would scarcely be practical if trustees in
bankruptcy appointed in December were to be
subject to disqualification at the end of that
month because renewal of the licence had been
refused solely on grounds having nothing to do
with the public advantage.
It seems to me therefore that apart from the
matter of considerations which bear on what
will be to the public advantage a well qualified
person applying for a licence is entitled to
expect that the licence will be granted and
renewed from year to year so long as he wishes
to remain licensed and complies with the rules.
The applicant's licence was granted in 1953
and was renewed annually without restriction
up to and including the year 1968. In 1967,
however, a section 5(8) investigation into his
conduct of the affairs of a bankrupt estate had
been instituted and pending the result of the
investigation he had agreed not to undertake the
administration of any new estates. It was as a
result of the section 5(8) investigation that the
Minister on May 2nd, 1968 ordered that the
applicant's licence be restricted to dealing with
and completing the administration of estates
then in his hands. For the years 1969, 1970 and
1971 the renewal of his licence included word
ing to that effect. In September 1971 the appli
cant applied to the Minister to remove the
restriction 'which the Minister, by his decision
of November 4th, 1971, refused to do, citing as
his reason therefor the conduct which had led
to the imposition of the restriction and as well
higher professional standards now required
over what had been required at the time when
the restriction was imposed. Also in September
1971 the applicant applied for renewal of his
licence for the year 1972 without restriction,
but the Minister, by his decision of December
17th, 1971, again declined to lift the restriction
and the renewal of the licence as issued
includes it. In this instance the Minister's deci
sion purports to be made in the exercise of his
power to impose limitations under section 9(4)
but the reasons cited are limited to the facts
which led to the imposition of the restriction.
Counsel for the applicant sought to put his
case in two ways. First it was said that he
proposed to establish that both decisions
attacked were in effect a single decision, that
the decision of May 2nd, 1968 to impose the
restriction in the course of a licence year could
be justified if at all only as an exercise of the
power to suspend or cancel conferred by sec
tion 10(2) since the decision itself recites the
result of a section 5(8) investigation, that the
decision of November 4th, 1971 is referable to
the same power and that the decision of Decem-
ber 17th, 1971, though dressed in the guise of
an exercise of the section 9(4) power, is in
reality another or the same exercise of the
section 10(2) power. As section 10(2) expressly
calls for an opportunity for the licensee to be
heard, counsel for the Minister did not chal
lenge that the exercise of the power under it
would be reviewable by this Court under sec
tion 28 and it seems clear that if such a case
were established the Court would have jurisdic
tion. However, in that case the existence of the
jurisdiction itself or the lack of it will become
apparent only when the case has been estab
lished at the hearing of the application to
review. In so far as this phase of the matter is
concerned therefore the appropriate course
appears to be to postpone the determination of
the question of jurisdiction until the hearing and
to refer it to be dealt with by the Court hearing
the application on the merits. Moreover, as in
this view of the applicant's case the November
4th decision is inextricably connected with the
December 17th decision and relates to the 1972
licence I would not at this stage quash the
application with respect to the November 4th
decision on the ground that it related only to the
1971 licence, as submitted by Mr. 011ivier, and
is on that account a futile proceeding.
The other basis of the applicant's case is that
even if the decision of December 17th, 1971
was made under section 9(4) it was a decision
which, if it was administrative, was one that
was required by law to be made on a judicial or
quasi-judicial basis.
On this point Mr. 011ivier relied on the fact
that the statute provides for a hearing in section
10(2) but does not do so in section 9(3) or in
section 9(4), on the absence of certain indicia of
judicial determination, such as Court trappings
and procedures, and principally on the decision
of the Supreme Court of Canada in Calgary
Power Ltd. v. Copithorne [1959] S.C.R. 24, and
that of the Privy Council in Nakkuda Ali v.
Jayaratne [1951] A.C. 66.
If the problem which we have to decide were
the same as that decided in the cases men
tioned, that is to say, whether the powers of the
Minister under sections 9(3) and 9(4) of the
Bankruptcy Act are administrative or judicial, I
know of no sound answer that could be given to
Mr. 011ivier's contention. But to my mind, as I
have already indicated, the problem is not the
same. It is whether these powers, even though
administrative, are required by law to be exer
cised on a judicial or quasi-judicial basis. It
must I think be borne in mind that section 28 of
the Federal Court Act is new legislation which
confers a heretofore unknown and non-existent
right of review, broader than was formerly
available by Crown writ procedures and defined
as applying to all decisions of federal boards,
commissions or tribunals excepting those deci
sions embraced within the meaning of what, so
far as I am aware, is a newly defined group or
class of decisions that is to say "decisions or
orders of an administrative nature not required
to be made on a judicial or quasi-judicial basis".
What this appears to me to mean is that any
purely administrative decision, such as, for
example, a decision of a Minister that an
automobile should be purchased for his depart
ment, is not reviewable, but that wherever the
administrative decision is required by law—
which includes the common law, the justice of
which will supply the omission of the legislature
(vide Byles J. in Cooper v. Wandsworth Board
of Works (1863) 14 C.B.N.S. 180)—to be made
on a judicial or a quasi-judicial basis the deci
sion is reviewable. As to what a "judicial or
quasi-judicial basis" means in this context the
nearest expression which I have found in the
jurisprudence cited is that of Davis J. in St.
John v. Fraser [1935] S.C.R. 441, a case which
was cited along with Board of Education v. Rice
by Hall J. in Wiswell v. Winnipeg [1965] S.C.R.
512 at page 522. In the St. John case Davis J.
said at page 451:
Assuming then in favour of the appellants that the
prohibitory section does not apply in this case, the real issue
on the merits is whether or not the plaintiffs were entitled
as of right to be afforded freedom of cross-examination of
each and every witness called by the investigator. Counsel
for the appellants says that such a right is founded upon
what he terms "natural justice," "essential justice" or "Brit-
ish justice". Such phrases are rather loose and vague terms.
The rights of the parties must be determined upon the basis
of what they are entitled to according to law. A decision in
accordance with the law is justice.
Lord Shaw of Dunfermline said in Local Government
Board v. Arlidge ([1915] A.C. 120 at page 138):
In so far as the term "natural justice" means that a result
or process should be just it is a harmless though it may be
a high-sounding expression; in so far as it attempts to
reflect the old jus naturale it is a confused and unwarrant
ed transfer into the ethical sphere of a term employed for
other distinctions ....
The Attorney-General contends that the provisions of the
statute were only intended to afford to him the right of an
investigation into the facts, upon the report of which it
became his duty as a member of the Executive to form his
own opinion and to exercise such if any of the powers as
are given to him by section 11 of the statute, and that if
during the investigation every witness called was entitled to
have his own counsel cross-examine all the other witnesses,
the enquiry would become utterly ineffective, prolonged in
duration and costly in administration. The Attorney-General
stresses the secrecy provision of the statute, subsection (4)
of section 10, as indicating in itself the very nature of the
investigation.
It is not suggested by counsel for the appellants that the
investigator is a court of law or even a tribunal having
similar attributes to a court of law, but it is contended that
the investigator is not a purely administrative body but what
counsel calls "a quasi-judicial tribunal". Broadly speaking,
there are only two divisions—judicial and administrative—
though within those two broad divisions there have been
tribunals with certain features common to both which have
given rise to a somewhat loose, perhaps almost unavoidable,
terminology in an effort to again subdivide the two broad
classes of tribunals. Fundamentally, the investigator in this
case was an administrative officer, and the machinery set
up by the statute was administrative for the purpose of
enquiring as to whether or not fraudulent practices had been
or were being carried on in connection with the sale of the
securities of the Wayside Company. The investigation
provisions of the statute dealing generally with the preven
tion of fraud by stock brokers were part and parcel of the
administrative machinery for the attainment of the general
purposes of the statute. The investigator was not a court of
law nor was he a court in law, but to say that he was an
administrative body, as distinct from a judicial tribunal,
does not mean that persons appearing before him were not
entitled to any rights. An administrative tribunal must act to
a certain extent in a judicial manner, but that does not mean
that it must act in every detail in its procedure the same as a
court of law adjudicating upon a lis inter partes. It means
that the tribunal, while exercising administrative functions,
must act "judicially" in the sense that it must act fairly and
impartially. In O'Connor v. Waldron ([1935] A.C. 76 at page
82), Lord Atkin refers to cases where tribunals, such as a
military court of enquiry or an investigation by an ecclesias
tical commission, had attributes similar to those of a court
of justice.
On the other hand (he continues) the fact that a tribunal
may be exercising merely administrative functions though
in so doing it must act judicially, is well established, and
appears clearly from the Royal Aquarium case ([1892] 1
Q.B. 431).
In the Royal Aquarium case "judicial" in relation to
administrative bodies is used in the sense that they are
bound to act fairly and impartially.
and at page 453:
The only objection taken by the appellants, and it was very
strenuously and earnestly pressed upon us in a very able
argument by their counsel Mr. Farris, was that it was
against natural justice that the plaintiffs should have been
denied the right they claim of cross-examining every wit
ness who was heard by the investigator. The right was
asserted as a right to which every witness against whom a
finding might possibly be made was entitled. I do not think
that any such right exists at common law. The investigation
was primarily an administrative function under the statute,
and while the investigator was bound to act judicially in the
sense of being fair and impartial, that, it seems to me, is
something quite different from the right asserted by the
appellants of freedom of cross-examination of all the
witnesses.
In the present situation it is I think manifest
that the statute requires the Minister to reach
his decisions under section 9(3) and 9(4) not by
caprice but on the basis of what he honestly
considers to be of public advantage to do. He is
also required, as I see it, to reach this decision
having regard both to what is stated in the
applicant's application and what is stated in the
report of the Superintendent's investigation. He
must do this fairly and justly for as said by
Lord Loreburn L.C. in Board of Education v.
Rice [1911] A.C. 179 at page 182, to act in good
faith and fairly listen to both sides is a duty
lying upon every one who decides anything.
These features alone are in my view sufficient
to characterize the powers under section 9(3)
and 9(4) as required by law to be exercised on a
judicial or quasi-judicial basis within the mean
ing of section 28 of the Federal Court Act. But
while nothing more would be likely to be
required where no conflict arose between the
application and the Superintendent's report it
would to my mind be plainly unfair, if there
were material in the report which the applicant
had never had an opportunity to answer, and
the matter were thereupon decided upon such
material without first affording the applicant an
opportunity to make an answer and thereafter
again considering the material in the light of
such answer. In such a situation in my view the
legal requirement of such an opportunity to
answer is plain and if I am right in this it
constitutes a further feature of the powers
indicating that they are to be exercised on a
judicial or quasi-judicial basis.
Moreover, adverting to the substance of the
passage from the judgment of Freedman J.A.
(as he then was) which was approved by Hall J.
in the Wiswell v. Winnipeg case at page 520, the
reality and substance of the decisions under
attack in these proceedings is not that the Min
ister by them was establishing any broad princi
ples with respect to licences as a class or how
many it would be of public advantage to have
either generally or in any particular area but
that the licence of the particular applicant was
being dealt with by reference to what allegedly
had been conduct indicating his unfitness to be
a licensed trustee.
Needless to say nothing in what I have said
should be taken as implying that any view has
been formed as to whether these requirements
have been met in this particular case. As I see it
all that is involved in the motions is the ques
tion whether the decisions of the Minister are
reviewable under section 28 and in my opinion
they are.
As in this view the motions fail it becomes
unnecessary to postpone or refer to the hearing
the aspect of the applicant's case to which I
referred earlier in these reasons since the same
effect follows from dismissal of the motions
and that is the disposition which I would make
of them.
* * *
WALSH J.—For the reasons given by the
Associate Chief Justice and Justice Thurlow,
whose reasoning I adopt, the motions to quash
the petitions seeking the review and setting
aside of the decisions of respondent of Novem-
ber 4, 1971 and December 17, 1971 should be
dismissed with one set of costs applicable to the
two motions.
5. (8) When any investigation has been made by the
Superintendent or any one on his behalf, and it appears that
any licensee under this Act has not performed his duties
properly or has been guilty of any improper conduct or has
not fully complied with the law with regard to the proper
administration of any estate, the Superintendent may make
a report to the Minister together with such recommenda
tions to the Minister as the Superintendent may deem
advisable.
2 9. (3) The Minister, as soon as he has received a report
from the Superintendent as to the character and qualifica
tions of an applicant for a licence, may, if he considers it
will be of public advantage so to do, authorize the issue of a
licence, which shall specify the bankruptcy district or dis
tricts or any part thereof in which the licensee is entitled to
act.
(4) The licence shall be in the prescribed form and shall
expire on the 31st day of December in each year but may be
renewed from year to year subject, however, to such
qualification or limitation as to the Minister may seem
expedient; and the fee payable for the licence and any
renewal thereof shall be determined by the Minister.
3 10. (2) The Minister, after consideration of any report
received by him from the Superintendent, pursuant to sub
section 5(8), and after a reasonable opportunity has been
afforded the licensee to be heard in respect thereof, and
upon such further inquiry and investigation as he deems
proper, may suspend or cancel the licence of any licensee
and in such case shall direct that the licensee be removed as
trustee of all estates being administered by such licensee
and may appoint some other licensee or licensees to act as
trustee of all or any of such estates in the place or stead of
the trustee whose licence has been suspended or cancelled.
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.