T-1958-76
B. Keith Penner, Norman Cafik, Harry Assad and
the Northwestern Ontario Municipal Association
(Applicants)
v.
The Representation Commissioner for Canada
(Respondent)
Trial Division, Thurlow A.C.J.—Ottawa, May 27
and 28, 1976.
Jurisdiction—Injunction—Applicants seeking to restrain
respondent from preparing and transmitting draft representa
tion order to Secretary of State until their objections to the
Commission's report have been dealt with, and its legal effect
determined in the Court of Appeal Electoral Boundaries
Readjustment Act, R.S.C. 1970, c. E-2, ss. 22, 23 Federal
Court Act, ss. 2, 18, 28(3).
Applicants sought to restrain respondent from preparing,
transmitting or otherwise dealing with a draft representation
order, as defined under section 22 of the Electoral Boundaries
Readjustment Act, until a section 28 application to review and
set aside a decision of the Electoral Boundaries Commission for
Ontario had been heard and disposed of.
Held, the application is dismissed; it is not directed against
the report, but against an act to be done by respondent. But
applicants' whole case depends entirely on the legal effect and
validity of the decision of the Commission which is the subject
of the section 28 application. Here, if this application is to
succeed, it must involve at least some consideration of, as well
as interference with, the validity of the Commission's decision.
Thus, the application is in substance and fact a proceeding "in
respect of" the decision within the meaning of section 28(3) of
the Federal Court Act, and this Court is without jurisdiction.
The effect of section 28(3) is that the Trial Division does not
have jurisdiction to grant interlocutory relief, injunctive or
otherwise, in situations where the jurisdiction to do so is
invoked in aid or as an adjunct of a section 28 proceeding in the
Court of Appeal. Even if the view of the effect of section 28(3)
is broader than the provision warrants, it seems to apply where,
as here, the only basis put forward for such interlocutory relief
is the alleged invalidity of the order which is the subject of the
section 28 application. The Trial Division lacks jurisdiction,
and, further, assuming that an interlocutory injunction would
not be an inappropriate form of relief to grant at the suit of
members of the public in such a matter, to direct respondent
not to do until some future time what he is directed by statute
to do "forthwith" would be to substitute a different prescription
created by the Court for that prescribed by statute, and the
Court has no such authority.
MOTION.
COUNSEL:
John D. Richard, Q.C., and G. Fisk for
applicants.
J. Nesbitt and C. P. Hughes for respondent.
SOLICITORS:
Gowling & Henderson, Ottawa, for
applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW A.C.J.: This is an application
brought on what appears to be an originating
notice of motion in the Trial Division for:
an Interlocutory Injunction restraining the Representation
Commissioner for Canada from preparing, transmitting, or
otherwise dealing with a draft Representation Order as defined
under Section 22 of the Electoral Boundaries Readjustment
Act, R.S.C. 1970, c. E-2, until an Application made to The
Federal Court of Appeal of even date herewith under the
provisions of Section 28 of the Federal Court Act for review
and setting aside of a decision or order of the Electoral
Boundaries Commission for the Province of Ontario, is heard
and disposed of.
An application by the first three named appli
cants for prohibition directed to the respondent
prohibiting him inter alia from "preparing and
transmitting to the Secretary of State for Canada
a representation order with respect to the said
report", file T-1708-76, was dismissed on May
11th, 1976'. At that time the objections raised in
the House of Commons to the report of the Elec
toral Boundaries Commission for the Province of
Ontario, which had been tabled in the House of
Commons on February 27th, 1976, had not been
disposed of by the Commission under section 21(1)
of the Act. Since then the objections have been
disposed of and a certified copy of the report as
amended has been returned by the respondent to
the Speaker of the House of Commons. Under
section 22 it is now the duty of the respondent to
"forthwith" prepare and transmit to the Secretary
of State for Canada a draft representation order
and, when this has been done, section 23, as
1 [1976] 2 F.C. 614.
amended by Statutes of Canada 1973-74, c. 23, s.
8, prescribes that:
23. Within five days after the receipt by the Secretary of
State of the draft representation order, the Governor in Council
shall by proclamation declare the draft representation order to
be in force, effective upon the first dissolution of Parliament
that occurs at least one year after the day on which that
proclamation was issued; and upon the issue of the proclama
tion the order has the force of law accordingly.
By the present application the applicants seek to
restrain the respondent by injunction from carry
ing out the duty imposed on him by section 22
until their objections to the Commission's report
have been considered and its legal effect deter
mined by the Court of Appeal.
Section 18 of the Federal Court Act provides
that:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, 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 proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
The expression "federal board, commission or
other tribunal" is defined in section 2 as meaning:
.. any body or any person or persons having, exercising or
purporting to exercise jurisdiction or powers conferred by or
under an Act of the Parliament of Canada, other than any such
body constituted or established by or under a law of a province
or any such person or persons appointed under or in accordance
with a law of a province or under section 96 of The British
North America Act, .867;
But by subsection 28(3);
28. (3) Where the Court of Appeal has jurisdiction under
this section to hear and determine an application to review and
set aside a decision or order, the Trial Division has no jurisdic
tion to entertain any proceeding in respect of that decision or
order.
The application in the Court of Appeal under
section 28, referred to in the originating notice of
the present application, is said to be directed
against a decision or order of the Electoral Bound
aries Commission for the Province of Ontario and
the affidavit filed in support of the application
indicates that what is attacked is the report of the
Commission. In the reasons for judgment on the
prohibition application I expressed the view, to
which I adhere, that the validity of the report
could be the subject of a review under section 28.
On its face however the present application is
not directed against the report. It is directed
against an act to be done by the respondent. But
the question whether that act must be carried out,
and, indeed, the whole case of the applicants as
well, are entirely dependent on the legal effect or
validity of the decision of the Commission which is
the subject of the application under section 28. In
the circumstances the application for an order
enjoining the Commission from carrying out the
duty to follow or act upon the Commission's deci
sion, if it is to succeed, appears to me to involve at
least some consideration of the validity of the
Commission's decision and to involve as well inter
ference with the decision's effect. It seems to me,
therefore, that the present application is in sub
stance and in fact a proceeding "in respect of" the
Commission's decision within the meaning of sub
section 28(3) and that this division has no jurisdic
tion to entertain it.
In my view the effect of subsection 28(3) is that
the Trial Division does not have jurisdiction to give
interlocutory relief by way of injunction or other
wise in situations where the jurisdiction to grant
such interlocutory relief is invoked in aid or as an
adjunct of a proceeding in the Court of Appeal to
review and set aside a decision or order under
section 28. But even if this view of the effect of
subsection 28(3) is broader than the provision
warrants the subsection seems to me to apply
where, as in the present instance, the only basis
put forward for such interlocutory relief is the
alleged invalidity of the order which is the subject
of the section 28 application.
It was submitted in the course of argument that
this question had already been resolved contrary to
this view by the decision of Addy J. in C.ITR
Radio Trois-Rivières Limitée v. Canada Labour
Relations Board (File No. T-965-75,
unreported) 2 , but it does not appear to me that the
particular point was raised or decided in that case.
I am accordingly of the opinion that the applica
tion must fail for lack of jurisdiction in the Trial
Division.
There is however a further point upon which the
application appears to me to fail. Assuming that
an interlocutory injunction would not be an inap
propriate form of relief to grant at the suit of
members of the public in a matter of this kind, I
am of the opinion that in the present situation to
direct the respondent not to do until some future
time what the statute directs him to do "forth-
with" would be to substitute for the statutory
prescription a different prescription created by the
Court. That, in my opinion, as I indicated in the
decision in the earlier application, the Court has
no authority to do.
The application is dismissed.
z [No written reasons for judgment distributed—Ed.]
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