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T-1708-76
B. Keith Penner, Norman Cafik and Harry Assad (Applicants)
v.
The Electoral Boundaries Commission for the Province of Ontario, Campbell Grant, W. Tar- nopolsky, F. L. Gratton and Nelson Castonguay, as Members of the said Commission, and Nelson Castonguay as the Representation Commissioner (Respondents)
Trial Division, Thurlow A.C.J.—Ottawa, May 6 and 11, 1976.
Prerogative writs—Applicants seeking to prohibit respond ents from completing report, from presenting copy to House of Commons, and from preparing and transmitting representation order to Secretary of State—Seeking mandamus to require preparation of report containing reasons, to require holding of public hearings based thereon and to require Commissioner to transmit copy to Speaker of House of Commons—Electoral Boundaries Readjustment Act, R.S.C. 1970, c. E-2, ss. 2 (as am. S.C. 1974-75-76, c. 10, s. 2), 18, 19(1), 21, 22—Federal Court Act, s. 28(2).
Applicants sought the above relief, claiming that the adver tisement of sittings of the Electoral Boundaries Commission for Ontario, published in August 1975, under section 17 of the Electoral Boundaries Readjustment Act, and all subsequent proceedings, including its report, were and are of no legal effect because of the alleged failure of the Commission to express in the advertisement and the report reasons justifying its recom mendations (as per the definition of "recommendation" in section 2).
Held, the application is dismissed. Assuming, but not decid ing, that the Commission is amenable to process of this Court and that, in a proper case, prohibition and mandamus would lie to regulate it, and assuming applicants have status, the question could have been raised in August of 1975 when it might have been determined before the hearings were held and when, had the advertisement been held invalid, there might have been time to advertise again, and still complete the report within the year prescribed by section 18. The complaint of inadequacy in the reasons is now stale and forlorn, as it was not established that the particular objection was raised at the time. The report was laid before the House of Commons on February 27, 1976. Its validity could have been reviewed in the Court of Appeal if proceedings had been commenced within 10 days. This would have been the correct manner and the proper forum in which to question its validity. And, if the Court were to grant an extension of time, such review is still available.
To grant prohibition now would prevent the Commission from carrying out its statutory function within the prescribed time. The Commissioner would also be prevented from fulfill ing his function with respect to all the commissions. And, to grant mandamus would be to require the Commissioner to disregard these statutory limitations in favour of these ordained by the Court. The Court has no such authority; to do so would be to render illegal the report and any representation order based thereon, and the whole operation would be aborted. If respondents are left free to complete the act, and an appropri ate proceeding to test its validity is then brought, applicants will be in no worse or different position. No harm will befall any of applicants' rights in refusing the relief, while, if the Court were to hold that the report was open to objection, and an appeal court were to decide otherwise, the consequences of this Court having granted relief would be irreversible.
APPLICATION. COUNSEL:
John D. Richard, Q.C., and G. Fisk for
applicants.
A. T. Hewitt for respondents.
SOLICITORS:
Gowling & Henderson, Ottawa, for applicants.
Hewitt, Hewitt, Nesbitt, Reid, McDonald & Tierney, Ottawa, for respondents.
The following are the reasons for judgment delivered orally in English by
THURLOW A.C.J.: This is an application for prohibition
(1) to prohibit the respondent Commission and its members and the Representation Commis sioner from completing the Commission's report under the Electoral Boundaries Readjustment Act, and
(2) to prohibit the Representation Commission er from returning a certified copy of the report to the Speaker of the House of Commons and preparing and transmitting to the Secretary of State for Canada a representation order with respect to the said report.
and for mandamus directed to the Commission and its members requiring them
(1) to prepare a report in accordance with the Electoral Boundaries Readjustment Act con-
taining reasons for the recommendations made in the report, and
(2) to hold public hearings based on such report containing reasons
and for mandamus to the Representation Commis sioner requiring him to transmit a copy of said report to the Speaker of the House of Commons pursuant to subsection 19(1) of the Electoral Boundaries Readjustment Act.
The matter is one of urgency. I was informed by counsel that the Commission is about to dispose of the objections to its report raised in the House of Commons under section 20 of the Act, and that tomorrow, May 12, 1976, is the last of the thirty days within which the Commission is required by subsection 21(1) to consider and dispose of such objections. If, therefore, prohibition as requested is to issue and have any opportunity to operate, I must deal with the application immediately.
The basis of the applicants' claim for relief, as I understand it, is their contention that the adver tisement of the sittings of the Commission pub lished in August 1975 pursuant to section 17 of the Act, and all subsequent proceedings of the Com mission including its report laid before the House of Commons on February 27, 1976, were and are of no legal effect because of the alleged failure of the Commission to express in the advertisement, which is itself a report as defined in section 2, and in the report laid before the House of Commons on February 27, 1976, reasons that justified the Com mission's recommendations. The term "recommen- . dation" is defined in section 2 as meaning "a recommendation that is justified by a reason therefor".
In the view I have formed of the matter, assum ing, but without deciding, that the Commission is amenable to process of this Court, and that in a proper case prohibition and mandamus would lie to regulate its activities, and assuming as well that the applicants, or some of them, have adequate status to bring an application for such relief, the question of the validity of the advertisement could have been raised by such a proceeding as long ago as last August when it might have been deter mined before the hearings of the Commission were
held and when there might still have been time, if the advertisement was held invalid, to advertise again and yet complete the Commission's report within the year prescribed by section 18, which in this case ran from February 28, 1975. As a basis for prohibition and mandamus at this stage the complaint of inadequacy in the reasons for the Commission's recommendations, as expressed in the advertisement, appears to me to be stale, and forlorn, as well, since it is not established on the material before me that the particular objection was raised at the time either before the Commis sion or elsewhere.
Next, as previously mentioned, the report of the Commission was laid before the House of Com mons on February 27, 1976. We are now in May. It is my opinion that the validity of the report could have been the subject of a review in the Court of Appeal under section 28 of the Federal Court Act had proceedings been commenced within the ten-day period referred to in subsection 28(2) of the Act. Such a review is still available if that Court can be persuaded to extend the time for bringing an application. In my view that would have been the correct way and the right forum in which to raise the question of the validity of the Commission's report.
The stage which has now been reached is that of the disposition by the Commission of objections to the report raised in the House of Commons, after which the Representation Commissioner is required by section 21 to return to the Speaker of the House of Commons a certified copy of the report with or without amendment accordingly as the disposition of the objections by the Commis sion requires. Thereafter, a representation order is to be issued as provided by section 22. I see no escape from the conclusion that if prohibition is granted the Commission will be prevented from carrying out its statutory function within the time which the statute ordains and the Representation Commissioner, as well, will be prevented from carrying out his functions not only with respect to the report of this Commission but with respect to the reports of all the commissions. Moreover, the result of granting the mandamus requested, as I see it, would be to require the Commission to
disregard the time limitations of the statute in favour of limitations ordained by the Court. That, in my opinion, the Court has no authority to do and, if it did so, the result could be expected to be that the report and any representation order based thereon would be held to be illegal and the whole operation of the statute commenced by the procla mation of February 28, 1975, would be aborted. That appears to me to be a serious result to contemplate.
On the other hand, as I see it, the applicants will be in no worse position for attacking the validity of the final act, which they now seek to prohibit, if the Commission is left free to complete that act and an appropriate proceeding is then brought to test its validity. Nor would their position, from the point of view of attacking the validity of the advertisement and the report tabled on February 27, 1976, be different or any worse than it is on this application.
These considerations lead me to the conclusion that even if I were of the opinion that the Commis sion's report was open to the objections raised against it, a question which in my view might well be resolved either way, the discretion of the Court to grant or refuse relief by way of prohibition or mandamus should be exercised in favour of refus ing it. As I see it, no harm will befall any rights the applicants may have if the relief sought is refused. On the other hand, if I were to conclude that the report was open to objection and a court of appeal were to take the other view the conse quences of my having granted relief would be irreversible.
The application is accordingly dismissed.
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