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A-795-77
Constable Gary Michael Rogers (Applicant) v.
National Harbours Board and Lieutenant Thurlow G. McGrath (Respondents)
Court of Appeal, Pratte, Heald and Urie JJ.— Halifax, April 19 and 20, 1978.
Judicial review — Jurisdiction — Decision in question pronounced by police officer acting under provisions of collec tive agreement — Decision required to be made on a judicial basis by Board directive whose procedural requirements adopted by collective agreement between Board and Police Association — No statutory authority for Board's issuance of directive — Decision is not reviewable, not being.a decision of federal board required by law to be made on a judicial or quasi-judicial basis — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
Bruce W. Evans for applicant.
Martin C. Ward and Allison Pringle for
respondents.
SOLICITORS:
Bruce W. Evans, Dartmouth, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment of the Court delivered orally in English by
PRATTE J.: We are all of opinion that the decision under attack is not reviewable under sec tion 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, since it is not a decision of a federal board that is required by law to be made on a judicial or quasi-judicial basis.
The requirement that the decision in question be made on a judicial basis is found in a directive made by the National Harbours Board and, also, in the collective agreement between the Board and the Police Association of Nova Scotia (Local 112).
It is common ground that the National Har bours Board had no statutory authority to issue the directive which, therefore, is nothing more than a purely administrative direction having, in itself, no legal effect. The directive, for that reason, is not a law requiring the decision to be made on a judicial basis.
Counsel for the applicant argued that the collec tive agreement, which adopts the procedural requirements of the directive, is such a law.
Is the collective agreement, which adopts the procedural requirements of the directive, such a law? Counsel for the applicant says that it is since it is legally binding upon the Board, the Police Association and the employees by virtue of section 154 of the Canada Labour Code, R.S.C. 1970, c. L-1. This contention must, in our view, be rejected. We are of opinion that, in order for a decision to be reviewable under section 28, the requirement that it be made on a judicial or quasi-judicial basis must flow directly from the provisions of a federal statute or statutory regulation; it is not sufficient that this requirement be found in a collective agreement or other contractual arrangement.
We wish to add that, in our view, the decision here under attack was not made by a "federal board, commission or other tribunal" within the meaning of section 2 of the Federal Court Act. That decision was pronounced by a police officer acting under the provisions of the collective agree ment. That officer, it seems, was then exercising powers conferred by the collective agreement rather than "powers conferred by or under an Act of the Parliament of Canada".
For these reasons, the application will be dis missed with costs.
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