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A-500-77
Matsqui Institution Disciplinary Board (Appel- lant)
v.
Robert Thomas Martineau (Respondent)
Court of Appeal, Jackett C.J., Heald J. and Kelly D.J.—Vancouver, March 17, 1978.
Jurisdiction — Prerogative writs — Trial Division held it had jurisdiction to hear application for certiorari re convic tions made by appellant Board — Convictions, in other pro ceedings, ruled administrative decisions by the Supreme Court of Canada — Whether or not Trial Division has jurisdiction to hear this application for certiorari — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28 — Federal Court Rule 474(1)(a).
This is an appeal from a decision of the Trial Division under Rule 474(1)(a). The proceeding was commenced by an origi nating notice of motion for relief in the nature of a writ of certiorari, but by agreement only the question of jurisdiction was considered on the basis of its being an application under Rule 474(1)(a). The Supreme Court of Canada earlier ruled that the convictions to which the originating notice of motion related were administrative decisions not required by law to be made on a judicial or quasi-judicial basis.
Held, the appeal is allowed. Since the convictions were administrative decisions not required by law to be made on a judicial or quasi-judicial basis, it follows that the convictions in question cannot be attacked under section 18 by certiorari or proceedings in the nature of that contemplated by such a writ. Certiorari continues to have application only where the decision attacked is either judicial in character or required by law to be made on a judicial or quasi-judicial basis.
Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board [1978] 1 S.C.R. 118, applied.
APPEAL. COUNSEL:
J. R. Haig for appellant.
John W. Conroy for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appellant.
Abbotsford Community Legal Services, Abbotsford, for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
JACKETT C.J.: This is an appeal from a judg ment of the Trial Division [[1978] 1 F.C. 312] under Rule 474(1)(a).'
The proceeding was launched in the Trial Divi sion by way of an originating notice of a motion for relief in the nature of a writ of certiorari. When the motion was made, by agreement, only the question of the jurisdiction of the Trial Divi sion was considered "on the basis of it being an application under Rule 474(1)(a)" and, decision on that question having been reserved, in due course judgment was rendered that the Trial Divi sion does have jurisdiction to grant the relief sought. This is an appeal from that judgment.
The originating notice of motion relates to "con- victions" that were the subject of a section 28 application to this Court as a result of which it was decided by the Supreme Court of Canada 2 that this Court had no jurisdiction under that section because, as we understand that decision, the "con- victions" were administrative decisions that were "not required by law to be made on a judicial or quasi-judicial basis" within the meaning of those words in that section.
In our view, it follows from that decision that the "convictions" in question cannot be attacked under section 18 of the Federal Court Act by a
' That Rule reads in part:
Rule 474. (1) The Court may, upon application, if it deems
it expedient so to do,
(a) determine any question of law that may be relevant to
the decision of a matter, ...
and any such determination shall be final and conclusive for the purposes of the action subject to being varied upon appeal.
2 Martineau and Butters v. Matsqui Institution Inmate Dis ciplinary Board [1978] 1 S.C.R. 118.
writ of certiorari or proceedings for relief in the nature of that contemplated by such a writ. 3
While the ambit of certiorari has expanded over the period that has elapsed since it was a writ whose sole function was to enable a superior court of law to review decisions of inferior courts of law, in our opinion, it continues to have application only where the decision attacked is either judicial in character or is required by law to be made on a judicial or quasi-judicial basis. We have not been referred to any decision to the contrary. 4
As we view the matter, no good purpose would be served at this stage, by a discussion of what is meant by "judicial" or "quasi-judicial" as opposed to "legislative", "executive" or "administrative".
3 Section 18 reads:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, ... 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 pro ceeding 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.
4 We are not overlooking the respondent's argument based on Lord Reid's discussion of R. v. Electricity Commissioners ([1924] 1 K.B. 171 per Atkin L.J. at p. 205) in Ridge v. Baldwin ([1964] A.C. 40), which was not a certiorari case, that there is no authority for the requirement of a duty "to act judicially". However a careful reading of R. v. London Bor ough of Hillingdon, ex parte Royco Homes Ltd. ([1974] 2 All E.R. 643 at pp. 647-648) where reference was made to the same discussion, shows that the certiorari jurisdiction there was, to a large extent, based on The King v. Hendon Rural District Council [1933] 2 K.B. 696, where it was laid down that the decision in question "was sufficiently near a judicial decision to be the subject of a writ of certiorari." This line of authority seems to support the view that, in modern times, a decision does not have to be a judicial decision (in the strict sense of that expression) to be the subject of certiorari but it is no authority for the proposition that certiorari will lie where the decision is not required to be made on a basis that bears some resemblance to the judicial process. Just how strong a resemblance there must be has not been made clear. Any decision that is not judicial but is "sufficiently near a judicial decision to be the subject of a writ of certiorari" is, in our view, a decision that is required to be made on a "quasi-judicial basis" within the meaning of those words in section 28.
When we read sections 18 and 28 of the Federal Court Act, we cannot escape the conclusion that the words "quasi-judicial basis" were intended to include every method of reaching a decision or order that would support an application by way of certiorari other than a purely "judicial ... basis".
We are, therefore, of opinion that the appeal should be allowed, that the judgment of the Trial Division should be set aside and that it should be adjudged that the Trial Division does not have jurisdiction to grant the relief sought in the pro ceedings in that Court. We are further of opinion that the appellant is entitled to judgment for the costs of the proceedings under Rule 474 and of the appeal to this Court.
APPENDIX
In a probably futile attempt to avoid misunder standing as to the effect of our decision, we deem it advisable to say that, in our view, it does not mean that there is an area where there is a legal grievance for which there is no legal remedy. To explain what we mean, we express the following tentative views without taking any concluded posi tion with regard to them.
1. While certiorari proceedings in the nature of certiorari and section 28 applications are proceed ings the purpose of which is to have orders or decisions reviewed and set aside if ultra vires or voidable 5 , a decision that is ultra vires or voidable does not gain any force or effect because such a proceeding is not available. It follows that such a decision cannot be relied on as a defence to a proceeding in a Court for something that, apart from that decision, would be illegal. According to the circumstances, therefore, such a decision would not be a defence to a legal proceeding such as habeas corpus, mandamus or prohibition.
5 Compare Wilby v. Minister of Manpower and Immigration [1975] F.C. 636 at p. 641.
2. Fundamentally, what is meant by deciding something on a quasi-judicial basis (leaving aside possible bias) is that it be decided on a fair and just basis. Ordinarily, this requires that a person affected be given a fair opportunity to answer what is alleged against him but, in circumstances where that is not feasible (e.g. immigration border examinations and proceedings of special tribunals such as the English Gaming Board), something less will meet the requirement.
3. There are, however, ministers and officials who have purely administrative powers that are not subject to judicial review. Such persons must also exercise their powers on a fair and just basis because they are acting on behalf of the public; but they are answerable, not to the Courts, but to their superiors or to the appropriate legislature. They are not required to act on a quasi-judicial basis.
4. Where a person is aggrieved by a decision that should have been made on a quasi-judicial basis, he may attack it by way of a certiorari, proceedings in the nature of certiorari or section 28 proceedings; but where he has a grievance in respect of other decisions that are required to be made on a fair or just basis, (apart from an allegation of nullity or voidability if the decision becomes the subject of legal proceedings) his remedy is political.
As we understand the decision of the Supreme Court of Canada in the 1977 Martineau and Butters case, it has been decided that the decisions under attack in this case are not decisions that were required to be made on a quasi-judicial basis.
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