A-222-78
Shell Canada Limited (Applicant)
v.
Minister of Energy, Mines and Resources and
Petroleum Compensation Board (Respondents)
Court of Appeal, Jackett C.J., Heald J. and
MacKay D.J.—Toronto, September 14 and 15,
1978.
Practice — Judicial review — Application to quash s. 28
application of Shell Canada to set aside Petroleum Compen
sation Board's decision reducing Shell Canada's claims for
compensation — Shell Canada's claims for 1974-75 processed
and paid, but subsequently reconsidered and recalculated at
lesser amount — Excess paid for 1974-75 claims withheld
from amounts "determined" in respect of 1978 claims —
Whether s. 28 application to set aside decision to withhold
"excess" arising from calculation of 1974-75 amounts from
1978 amounts or whether s. 28 application includes applica
tion to set aside for redetermination of amount payable in
respect of 1974-75 claims — Application quashed for lack of
jurisdiction — Petroleum Administration Act, S.C. 1974-75-
76, c. 47, s. 78 — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 28.
APPLICATION.
COUNSEL:
D. Laidlaw, Q.C. for applicant.
G. Ainslie, Q.C. and P. Barnard for
respondents.
SOLICITORS:
McCarthy & McCarthy, Toronto, for appli
cant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an application by the
Attorney General of Canada to quash a section 28
application whereby the applicant seeks to have set
aside a decision of the Petroleum Compensation
Board dated on or before the 24th day of April,
1978, whereby it was ordered that three separate
applications by the applicant for compensation
pursuant to the Petroleum Administration Act,
S.C. 1974-75-76, c. 47, and the Regulations there-
under in the amounts of $756,397, $565,734 and
$526,559 with respect to claims Nos. SHL-811,
SHL-812 and SHL-813, respectively, were
reduced to a total of $269,867.
The matter arises out of the processing and
payment of claims for compensation under the
various statutory and other authorities referred to
in section 78 of the Petroleum Administration Act
and under that Act itself.
Briefly, as I understand it, the facts may be
summarized, for purposes of the present applica
tion, as follows:
1. some 37 claims in respect of the period from
January, 1974 to March, 1975 were processed
and paid;
2. subsequently, such claims were re-considered
and it was decided that they should be re-cal
culated at a lesser amount;
3. in 1978, claims were authorized for payment,
under section 73 of the Act, in amounts "deter-
mined" by the Board in the respective amounts
set out in the section 28 application; and
4. the Board decided to instruct that the
amount of the "excess" resulting from the
re-calculation of the 1974-75 claims should be
withheld from the amounts "determined" in
respect of the 1978 claims.
It is common ground that the section 28 applica
tion is not an application to set aside re-determina
tions by the Board of the 1978 amounts that the
Board had determined under section 73. From the
material before the Court, it would not appear that
there has been any such re-determination.
The position taken on behalf of the Attorney
General is, in effect, that the section 28 applica
tion is to set aside the decision to withhold the
"excess" arising from the re-calculation of the
1974-75 amounts from the 1978 amounts that had
been "determined" under section 73. The appli
cant's position is, in effect, that, as worded, the
section 28 application includes an application to
set aside the re-determination of the amount pay-
able in respect of each of the 37 claims in respect
of 1974-75.
In my view, the section 28 application cannot be
read as an application to set aside re-determina
tions of the amounts payable in respect of the 37
1974-75 claims. Each section 28 application must
be in respect of only one decision or order (Rule
1401(2)); and that decision or order must be clear
ly indicated by the application. There is no refer
ence in this section 28 application to such
re-determinations.
Excluding the possibility that it is an application
to set aside a re-determination of the three claims
referred to therein, in my view, that section 28
application must be read as an application to set
aside the Board's decision to withhold the "excess"
arising from the re-calculation or re-determination
of the 1974-75 amounts from the 1978 amounts.
This is a decision that is supported as having been
made under section 76 of the Act, which provides
inter alia that, where a person has received an
amount in excess of that to which he is entitled the
excess may be recovered as a debt due to Her
Majesty or may be retained out of subsequent
compensation. In my view, this . provision author
izes an administrative decision that is not required
to be made on a judicial or quasi-judicial basis and
a decision made thereunder is not subject to review
by this Court under section 28 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10.
I am, therefore, of the opinion that the section
28 application should be quashed for lack of
jurisdiction.
I feel constrained, however, to say that, subject
to what may be said on behalf of the respondent to
the contrary, if the applicant seeks them, I should
be inclined to grant whatever extensions of time
might be required to launch section 28 applica
tions in respect of each of the re-determinations or
re-calculations in respect of the 37 1974-75 claims.
* * *
HEALD J. concurred.
* * *
MACKAY D.J. concurred.
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.