T-3418-81
Canadian Human Rights Commission (Applicant)
v.
Frank D. Jones and Air Canada (Respondents)
Trial Division, Walsh J.—Ottawa, September 17
and October 1, 1981.
Prerogative writs — Mandamus — Application for a writ of
mandamus requiring the respondent Jones to order the
respondent Air Canada to cease a discriminatory practice —
Jones held that he lacked jurisdiction to so order since he
could not enforce such a remedy which would involve amend
ing fares, a matter within the jurisdiction of the Air Transport
Committee — Both applicant and Air Canada applied to
Court of Appeal for judicial review — Applicant contends that
Jones' finding was a refusal to make a decision or order
contrary to the allegedly mandatory provisions of s. 41(2) of
the Canadian Human Rights Act — Whether Trial Division
has jurisdiction over the present proceedings in view of s. 28(3)
of the Federal Court Act — Whether the right of appeal
provided in s. 42.1 of the Canadian Human Rights Act pre
cludes an application for mandamus — Whether mandamus is
the appropriate remedy since Jones found that he had no
jurisdiction to issue the order — Application dismissed —
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss.
41(1),(2), 42.1 — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, ss. 28(3), 50 — Air Carrier Regulations, C.R.C. 1978,
Vol.!, c. 3, ss. 112(8), 113, 115.
Application for a writ of mandamus requiring the respondent
Jones to order the respondent Air Canada to cease a dis
criminatory practice. The respondent Jones found that Air
Canada was engaged in a discriminatory practice, but that he
lacked the jurisdiction to require Air Canada to cease the
discriminatory practice since he could not enforce such a
remedy which would involve amending fares, a matter within
the jurisdiction of the Air Transport Committee. The Commis
sion applied for judicial review of Jones' finding that he lacked
jurisdiction to order Air Canada to desist from its practice, and
Air Canada applied for judicial review of the decision that it
was guilty of a discriminatory practice. The applicant contends
that Jones' finding that he had no jurisdiction to order Air
Canada to cease its discriminatory practice was a refusal to
make a decision or order. It also contends that subsection 41(2)
of the Canadian Human Rights Act, which confers the power
to make certain orders against a person found to be engaging in
a discriminatory practice, is mandatory. The questions are
whether the Trial Division has jurisdiction over the present
proceedings in view of subsection 28(3) of the Federal Court
Act, which provides that the Trial Division has no jurisdiction
to entertain any proceeding in respect of a decision or order
which may be subject to judicial review by the Court of Appeal;
whether the provision of a right to appeal Jones' decision in
section 42.1 of the Canadian Human Rights Act precludes an
application for mandamus; and, whether mandamus is the
appropriate remedy since Jones found that he had no jurisdic
tion to issue the order.
Held, the application is dismissed. Mandamus should not be
issued for various procedural grounds. Jones considered that he
was prevented from making the order sought by the applicant.
Whether this finding was right or wrong is a matter which can
perhaps only be finally decided at the highest level, but it is a
finding which he made as to his jurisdiction. Since the appli
cant concedes that the Court of Appeal does have jurisdiction
over the respondent's section 28 application, it would be
incongruous if it were found that it did not have jurisdiction
over Jones' finding that he lacked jurisdiction to order Air
Canada to file an amended fare tariff. It appears questionable
whether Jones' finding can be broken down into two parts.
Also, mandamus is a remedy to which effect is supposed to be
given promptly and it would be incongruous if Jones were to be
ordered to direct Air Canada to amend its fare structure, only
perhaps to have the Court of Appeal find subsequently that the
present fare structure does not infringe the Canadian Human
Rights Act. Therefore the Trial Division has no jurisdiction in
this matter. Section 42.1 of the Act provides that the Commis
sion may appeal an order within 30 days after the order was
pronounced. The applicant did not bring any such appeal.
When a statute provides a right of appeal this is the appropri
ate remedy rather than to seek a mandamus which is not
intended to be an alternative remedy. It does not appear to be
an appropriate use of mandamus to seek to make Jones issue an
order which he has found that he has no jurisdiction to issue.
This does not appear to be a refusal to perform a duty which he
is called upon by law to perform, but rather a difference of
opinion as to whether Jones has jurisdiction to perform such a
duty. Such a difference of opinion should certainly be settled on
appeal. The refusal to issue the mandamus does not result from
the exercise of judicial discretion, but rests solely on the basis
of various procedural issues.
Curr v. The Queen [1972] S.C.R. 889, applied. National
Indian Brotherhood v. Juneau [No. 21 [1971] F.C. 66;
reversed by [1971] F.C. 73, applied. Harelkin v. The
University of Regina [1979] 2 S.C.R. 561, applied.
Canadian Human Rights Commission v. British American
Bank Note Co. [1981] 1 F.C. 578, distinguished. Oscroft
v. Benabo [1967] 2 All E.R. 548, referred to. Padfield v.
Minister of Agriculture, Fisheries and Food [1968] A.C.
997, referred to. Albermarle Paper Co. v. Moody 9 EPD
7999, referred to. Gana v. Minister of Manpower and
Immigration [1970] S.C.R. 699, referred to. Landreville v.
The Queen [1981] 1 F.C. 15, referred to.
APPLICATION.
COUNSEL:
R. Juriansz for applicant.
No one appearing for respondent Frank D.
Jones.
R. P. Saul for respondent Air Canada.
SOLICITORS:
Legal Branch, Canadian Human Rights
Commission, Ottawa, for applicant.
Law Branch, Air Canada, Montreal, for
respondent Air Canada.
The following are the reasons for judgment
rendered in English by
WALSH J.: Applicant applies for a writ of man-
damus requiring the respondent Frank D. Jones
pursuant to an appointment under section 39 of
the Canadian Human Rights Act' to order the
respondent Air Canada to cease a discriminatory
practice. The application is brought on the ground
that the respondent Frank D. Jones erred in law in
declining to order the respondent Air Canada to
cease a discriminatory practice. At the hearing of
the application Mr. Jones was unrepresented but
counsel for the Commission and for respondent
Air Canada presented substantial evidence and
arguments supported by extensive jurisprudence.
After having given careful consideration to these
arguments and to the jurisprudence I have reached
the conclusion that the mandamus should not be
issued for various procedural grounds which I will
deal with separately. I will therefore not make any
findings on the merits of the issue although it is
necessary to reveal the factual background to some
extent in order to decide the procedural issues
involved.
OUTLINE OF FACTS
A complainant, Nancy Bain, filed a complaint
on April 21, 1978, with the applicant, Canadian
Human Rights Commission, pursuant to
section 32 of the Act stating that the complainant
had reasonable grounds to believe that the
respondent Air Canada was engaged in or had
engaged in a discriminatory practice on the basis
of marital status. The essence of the complaint was
that applying reduced fares to members of a
family group travelling together on the basis of
'S.C. 1976-77, c. 33.
marital status whereas such fares are not available
to two single adults travelling together resulted in
discrimination on the basis of marital status con
trary to paragraph 2(a) and section 5 of the Act.
On September 26, 1980, the applicant appointed
the respondent, Frank D. Jones, hereinafter
referred to as the Tribunal, to enquire into the
complaint. His appointment was made pursuant to
section 39 of the Act. In an agreed statement of
facts filed at the hearing it was submitted that a
family fare plan offered to a husband and wife also
includes those in a common law status but that it
does not apply to two or more adult persons travel
ling together who are not related in one of the
manners set forth.
The matter was heard by Mr. Jones on Decem-
ber 3, 1980, and by decision rendered on April 15,
1981, after an extensive review of the jurispru
dence and dictionary definition he found that
"there is a differentiation which would adversely
affect an individual who does not come within the
family group" and he further found that "the
definitions applicable to a family group are in part
based on marital status. The adversity in relation
to this differentiation would be the difference be
tween the full fare and the family fare." He then
goes on to state "Having found that I have juris
diction to hear and determine and having made
that determination, I then must consider the reme
dies asked." Earlier in his decision he had dis
cussed the jurisprudence relating to the meaning of
the word "jurisdiction" and in particular relied on
the decision of Lord Diplock in the case of Oscroft
v. Benabo 2 which held that there are two types of
jurisdiction; one, a jurisdiction to hear and deter
mine the proceedings, two, a jurisdiction to make
the kind of order sought. He then reached the
conclusion that the Tribunal lacks the jurisdiction
to require Air Canada to cease the discriminatory
practice or force it to make an application to the
Air Transport Committee. He states "it is the
Tribunal itself which must be able to effect a
remedy in order for it to have jurisdiction to give
that remedy rather than rely on an appeal to an
independent body (the Federal Court) to enforce
the remedy." He states:
2 [1967] 2 All E.R. 548.
In a highly regulated industry such as the airline industry, the
remedy urged upon this Tribunal by the Human Rights Com
mission, insofar as requiring an airline to cease a discriminatory
fare, is unavailable to the Tribunal. This, in my opinion, does
not mean that the Human Rights Commission could not lay a
complaint against the Canadian Transport Commission if it
feels that the fares are discriminatory and thus offend the
Canadian Human Rights Act. The effect of this decision in
declining to give an order requiring Air Canada to make an
application to the Air Transport Committee (which may or
may not recommend to the Canadian Transport Commission
the change in fares proposed in the application and which the
Canadian Transport Commission in turn may or may not
accept the recommendation of the Air Transport Committee) is
consistent with the case which was often quoted during the
proceedings, namely, Roberta Bailey, William Carson, Real J.
Pellerin, Michael McCaffery and The Canadian Human
Rights Commission v. Her Majesty the Queen in Right of
Canada as represented by the Minister of National Revenue.
Subsection 41(2) of the Canadian Human
Rights Act states that if, at the conclusion of its
inquiry, a Tribunal finds that the complaint to
which the inquiry relates is substantiated, it may
make an order against the person found to be
engaging or to have engaged in the discriminatory
practice. The subsection goes on to say that it may
require the person to cease the discriminatory
practice and to make available to the victim of the
discriminatory practice the rights denied the
victim as a result of it, together with ancillary
remedies. It was this order which the said respond
ent Jones refused to make on the grounds of lack
of jurisdiction to do so.
On April 22, 1981, the Canadian Human Rights
Commission made a section 28 application to the
Federal Court of Appeal to review and set aside
the decision and on April 23, 1981, Air Canada
also made a section 28 application for an order
setting aside the said decision. The decision as has
been noted breaks down into two parts, the first
being a finding that Air Canada was guilty of the
discriminatory practice complained of, and the
second being the finding that the Tribunal lacked
jurisdiction to order Air Canada to desist from it
in view of the fact that it alone cannot control
fares which are subject to the general regulatory
supervision of the Canadian Transport Commis
sion.
All carriers must file their tariffs with the Air
Transport Committee of the Canadian Transport
Commission to be effective after 45 days' notice.
While the tariffs do not have to be formally
approved by the Committee they can be disal
lowed. Section 113 of the Air Carrier Regulations,
C.R.C. 1978, Vol. I, c. 3, reads as follows:
113. (1) All tolls and terms or conditions of carriage estab
lished by an air carrier shall be just and reasonable and shall
always, under substantially similar circumstances and condi
tions, with respect to all traffic of the same description, be
charged equally to all persons at the same rate.
(2) No air carrier shall in respect of tolls
(a) make any unjust discrimination against any person or
other air carrier;
(b) make or give any undue or unreasonable preference or
advantage to or in favour of any person or other air carrier in
any respect whatever; or
(c) subject any person or other air carrier or any description
of traffic to any undue or unreasonable prejudice or disad
vantage in any respect whatever.
Section 115 of the Air Carrier Regulations
reads as follows:
115. The Committee may
(a) suspend or disallow any tariff or toll that in its opinion
may be contrary to section 112, 113 or 114;
(b) require an air carrier to substitute a tariff or toll satisfac
tory to the Committee; or
(c) prescribe another tariff or toll in lieu of any tariff or toll
disallowed under paragraph (a).
Subsection (8) of section 112 reads as follows:
112. ...
(8) Where a tariff is filed containing the date of issue and
the effective date and is in accordance with regulations, orders
and directions of the Committee, the tolls and terms and
conditions of carriage therein shall, unless they are suspended
or disallowed by the Committee, or unless they are superseded
by a new tariff, be conclusively deemed to be the lawful tolls
and terms and conditions of carriage and shall take effect on
the date stated in the tariff; and the carrier or any officer or
agent thereof shall, thereafter, until such tariff expires, or is
suspended or disallowed by the Committee, or is superseded by
a new tariff, charge the tolls and apply the terms and condi
tions of carriage specified therein.
While it is true therefore that the Air Transport
Committee of the Canadian Transport Commis
sion does not have to formally approve tariffs
published by the airlines, it maintains substantial
control over them and an airline cannot charge
anything other than the published tariff. Authority
is also given to decide whether there has been any
unjust discrimination or undue or unreasonable
preference, as well as to itself order certain tolls or
tariffs.
At the hearing before the Tribunal in the
present case John Pageau, Chief of the Fares,
Rates & Services Division of the Air Transport
Committee testified that section 113 goes back a
great many years reproducing the wording respect
ing unjust discrimination which originally came
from the Railway Act and Regulations made
thereunder and that Canadian Transport Commis
sioners never formally considered or determined
that family fare plans do not contravene section
113. Neither has there been any direction or order
of the Committee requiring the introduction of
family fare tolls.
It cannot be seriously disputed that the intro
duction of family fare plans is for a valid economic
objective to attract additional passengers when the
head of the family might otherwise be travelling
unaccompanied. While applicant contends the
same advantages might be realized if an unrelated
couple travelling together were accorded the same
fare advantage I can make no finding on this as
the issue of discrimination is not before the Court
in the present proceedings.
I believe that this is all the factual information
which is required to discuss the legal issues raised
in connection with the present application for
mandamus under various headings.
1. ARGUMENT THAT TRIAL DIVISION HAS NO
JURISDICTION OVER PRESENT PROCEEDINGS IN
VIEW OF SUBSECTION 28(3) OF THE FEDERAL
COURT ACT
Subsection 28(3) of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, reads as follows:
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 jurisdiction
to entertain any proceeding in respect of that decision or order.
Section 28 applications by both applicant and
respondent are before the Court of Appeal. If that
Court has jurisdiction then the Trial Division does
not. It is applicant's contention that the Trial
Division does have jurisdiction in the present man-
damus proceedings in that the determination made
by Mr. Jones that he had no jurisdiction to order
Air Canada to cease the discriminatory practice or
to make an application to have the discriminatory
practice ceased is not in itself a "decision or order"
but the refusal to make one. Reference was made
to the decision of the Court of Appeal in the case
of Canadian Human Rights Commission v. British
American Bank Note Company 3 . In that case the
Tribunal decided that it did not have jurisdiction
and hence did not hear the complaint so no formal
order was therefore made. It was suggested by the
Court that if the finding on jurisdiction was wrong
the Trial Division could decide the matter on an
application for mandamus. At page 581 the
learned Chief Justice Thurlow stated:
I do not think that the effect of the Tribunal taking the view
that it lacked jurisdiction was to dismiss the complaints. Under
subsection 41(1) of the Canadian Human Rights Act the
authority of the Tribunal to dismiss a complaint arises only if,
at the conclusion of its inquiry, it finds that the complaint is not
substantiated. I do not think it is to be lightly assumed that the
Tribunal purported to exercise or did exercise that power when
it had not even entered upon an inquiry into the merits of the
complaints. Even less is that to be assumed when in fact no
such order was made and when the course of simply taking a
position as to its lack of jurisdiction and then doing nothing
with respect to the complaints was, as I see it, precisely correct.
Whether as a result of this decision or not,
respondent Jones did what is really the converse of
what was done in that case. That is to say he made
an inquiry into the complaint as directed by sub
section 41(1) of the Canadian Human Rights Act
but then, having made this finding determined that
he had no jurisdiction to issue the order sought to
remedy the situation.
Applicant contends that the word "may" in
subsection 41(2) does not leave the Tribunal with
discretion to make an order or not but is in prac
tice mandatory. There is substantial jurisprudence
3 [1981] 1 F.C. 578.
supporting this, among others the House of Lords
case of Padfield v. Minister of Agriculture, Fish
eries and Food 4 where a mandamus was made
against the Minister directing him to consider the
complaint according to law, the American case of
Albermarle Paper Company v. Moody 5 , a racial
discrimination case where it is stated at page 8004:
The petitioners contend that the statutory scheme provides
no guidance, beyond indicating that backpay awards are within
the District Court's discretion. We disagree. It is true that
backpay is not an automatic or mandatory remedy; like all
other remedies under the Act, it is one which the courts "may"
invoke. The scheme implicitly recognizes that there may be
cases calling for one remedy but not another, and—owing to
the structure of the federal judiciary—these choices are of
course left in the first instance to the district courts. But such
discretionary choices are not left to a court's "inclination," but
to its judgment; and its judgment is to be guided by sound legal
principles,
and the Supreme Court case of Gana v. The
Minister of Manpower and Immigration 6 an
immigration matter in which Spence J. stated at
page 709:
It is said, on behalf of the Minister, that the review is
prohibited by the opening words of regulation 34(3)(j), "in the
opinion of an immigration officer". I am not of the opinion that
those words in the regulation preclude a review of that opinion
by virtue of a statutory duty put on the Special Inquiry Officer
by the various sections of the Immigration Act. In my opinion,
the words simply mean that the immigration officer is to carry
out an assessing duty not that his opinion becomes final and
conclusive protected from any review.
Reference was also made to the recent decision of
Collier J. in Landreville v. The Queen' where at
pages 50 and following he examined jurisprudence
to the effect that although language may be per
missive in form it imposes a duty to exercise the
power when called upon to do so by an interested
party having the right to make the application. In
ordinary circumstances after a tribunal has found
at the conclusion of an inquiry that the complaint
is substantiated it would certainly make an order
pursuant to subsection (2) of section 41 of the
Canadian Human Rights Act against the persons
4 [1968] A.C. 997 at p. 1030.
5 9 EPD 7999 at p. 8018.
6 [1970] S.C.R. 699.
7 [1981] 1 F.C. 15.
found to be engaged in or to have engaged in the
discriminatory practice. In the present case how
ever the Tribunal appears to have had good and
cogent reasons, or at least arguable reasons for
refusing to do so. It relied on the case before the
Human Rights Tribunal of Bailey v. The Queen in
right of Canada'. In this case a finding was sought
that certain sections of the Income Tax Act, S.C.
1970-71-72, c. 63, as amended, were discriminato
ry on the basis of marital status. This case exam
ined at great length the Supreme Court and Feder
al Court jurisprudence in connection with the
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C.
1970, Appendix III], but ended by concluding that
although the sections of the Income Tax Act were
discriminatory it was not sufficient that the clas
sification provisions of the offending statute were
unreasonable to render them inoperative as being
in conflict with the Canadian Human Rights Act.
It was stated in paragraph 1958:
The offending provisions are not in conflict to the point of being
inoperative in law if the classification of the legislation is based
upon considerations perceived by Parliament as relevant to the
fundamental purpose of the income tax legislation, being reve
nue collection.
Inter alia reference was made to the Supreme
Court case of Curr v. The Queen' in which Laskin
J. as he then was, said at page 899:
... compelling reasons ought to be advanced to justify the
Court in this case to employ a statutory (as contrasted with a
constitutional) jurisdiction to deny operative effect to a sub
stantive measure duly enacted by a Parliament constitutionally
competent to do so, and exercising its powers in accordance
with the tenets of responsible government, which underlie the
discharge of legislative authority under the British North
America Act.
Mr. Jones, the Tribunal in the present case, con
sidered that the general power of control over
tariffs, including the right given to determine
whether they were discriminatory or not, vested in
the Canadian Transport Commission by Parlia
ment, constitutionally competent to do so and
exercising its power in accordance with the tenets
of responsible government, prevented him from
8 Canadian Human Rights Reporter, Vol. 1, Decision 40,
Paragraphs 1715 to 1971.
9 [1972] S.C.R. 889.
making the order sought by applicant under the
provisions of the Canadian Human Rights Act.
Whether this finding was right or wrong is a
matter which can perhaps only be finally decided
at the highest level but it is a finding which he
made as to his jurisdiction.
I do not agree with the argument therefore
made by applicant that this was not a "decision"
which can be considered by the Court of Appeal
on the section 28 application.
It might also be contended that applicant by
making this section 28 application could perhaps
be said to have conceded that it was such a
"decision", and should then be estopped from
seeking from the Trial Division a writ of man-
damus as it has done, on the basis that the Tri
bunal did not make the order sought pursuant to
subsection 41(2) of the Canadian Human Rights
Act and therefore ought to be directed by this
Court to do so, without awaiting the decision on
the section 28 application.
During the course of argument counsel for
applicant suggested that section 50 of the Federal
Court Act might be applied and the proceedings
stayed on the ground that the claim was being
proceeded with in another Court, or that it is in
the interest of justice that the proceedings be
stayed. This argument might have been persuasive
had it not been for the decision of the Federal
Court of Appeal in the case of National Indian
Brotherhood v. Juneau [No. 2 . 1 1 °. In that case in
the Trial Division judgment reported in [1971]
F.C. 66 I had held that the Trial Division should
not deal with the writs of mandamus and certio-
rari sought since on the same day an application
had been made to the Court of Appeal under
section 28 of the Federal Court Act to set aside the
order complained of and the Trial Division should
not deal with the matter pending the decision by
the Court of Appeal as to whether or not it had
jurisdiction under section 28. At pages 70-71 I
stated:
10 [1971] F.C. 73.
Under the circumstances, and in view of this other pending
proceeding, it would not appear to be desirable for a Judge of
the Trial Division to decide whether or not the Court of Appeal
has jurisdiction to hear and determine the application to review
and set aside the decision or order of the Executive Committee
of respondent, Canadian Radio-Television Commission, which
is before it. This is a decision which it itself will be making at
an early date.
In the event that the Court of Appeal should decide by final
judgment that it has no such jurisdiction, then the Trial
Division may have jurisdiction under s. 18 ....
On a subsequent motion for directions before the
Court of Appeal however Chief Justice Jackett
stated at page 80:
... in my view, a judge of the Trial Division should not feel any
reluctance to decide a question concerning the jurisdiction of
the Court of Appeal when that question is incidental to deter
mining the jurisdiction of the Trial Division. He has just as
much right to decide such a question when it arises before him
as the Court of Appeal has when it arises in this Court.
It would appear therefore incumbent on me to
make a finding on the applicability of subsection
28(3) and not use section 50 to stay the proceed
ings until the Court of Appeal has itself made the
decision as to jurisdiction. Since applicant con
cedes that the Court of Appeal does have jurisdic
tion over the section 28 application brought by
respondent it would be incongruous and could lead
to unfortunate results if it were found that it did
not have jurisdiction over the Tribunal's finding
that it lacked jurisdiction to order Air Canada to
file an amended fare tariff. It appears highly
questionable whether Mr. Jones' finding can be
broken down into two parts as applicant seeks,
with the first part being considered as a decision
subject to review by the Court of Appeal and the
second part not being a decision at all, hence
subject to mandamus, which is what applicant
contends. Mandamus, as is the case with all pre
rogative writs is a remedy to which effect is sup
posed to be given promptly and it would be
incongruous if the Tribunal were to be ordered as
a result of this motion to direct Air Canada to
amend its fare structure, only perhaps to have the
Court of Appeal find subsequently after hearing
its section 28 application that the present fare
structure does not infringe the Canadian Human
Rights Act. Most probably there would be an
appeal from any such finding on the application
for mandamus and the whole matter would fall to
be determined by the Court of Appeal in any
event. There can of course also be an appeal from
a finding refusing to issue the mandamus. The
Court of Appeal could refer the matter back to the
Trial Division for hearing on the merits in the
event that it was felt that jurisdiction vested in the
Trial Division. Alternatively the Court of Appeal
could deal with the matter itself on applicant's
section 28 application if it finds that it has juris
diction to do so.
I therefore find the Trial Division has no juris
diction in this matter.
2. ARGUMENT THAT MANDAMUS DOES NOT LIE
WHEN THE RIGHT OF APPEAL EXISTS
Section 42.1 of the Canadian Human Rights
Act provides that where a Tribunal that made the
decision or order was composed of fewer than
three members, the Commission, the complainant
before the Tribunal, or the person against whom
the complaint was made may appeal within 30
days after the decision or order. Applicant did not
bring any such appeal and it is conceded that it is
now too late to do so. The applicant referred to the
Supreme Court case of Harelkin v. The University
of Regina" in which by a 4 to 3 decision the Court
found that although the audi alteram partem rule
had been infringed when a student was expelled
from the university, his right of appeal to a senate
committee was an appropriate remedy rather than
seeking certiorari and mandamus. Applicant dis
tinguishes this case in that in rendering judgment
of the majority Beetz J. stated at page 567:
Nor do I agree that appellant's application for certiorari and
mandamus should have been allowed: appellant had and still
has a better alternative remedy in his right of appeal to the
senate committee; he ought to have exercised it.
In the present case this right of appeal no longer
exists. However I do not think that the Court
should be given jurisdiction by way of mandamus
" [1979] 2 S.C.R. 561.
which it might not otherwise have merely because
of lack of diligence by the applicant in pursuing
the right of appeal which it had. Such a finding
would open the door for the applicant, if it pre
ferred to have a finding of the Tribunal with which
it did not agree considered and reversed by means
of a prerogative writ in the Trial Division of the
Federal Court rather than exercise its right to
appeal under section 42.1 of the Act, to merely
wait until the delay for such an appeal had
expired, before seeking the prerogative writ. While
I am not suggesting that the applicant had any
such ulterior motive in the present case neverthe
less it appears to me that when a statute provides a
right of appeal this is the appropriate remedy
rather than to seek a mandamus, which is not
intended to be an alternative remedy, from the
Federal Court. For this reason also I would find
that the application should be dismissed.
3. ARGUMENT BASED ON FUNDAMENTAL PUR
POSES OF MANDAMUS
It is trite law to state that mandamus lies to
secure the performance of a public duty which the
person against whom it is sought has failed or
refused to perform. It is a discretionary remedy
which the Court will decline to award if another
legal remedy is equally beneficial, convenient or
effective.
In the present case I fail to see how it can be
held that Mr. Jones failed to perform the duty
imposed on him in connection with the inquiry. As
I pointed out earlier I believe that the finding in
the British American Bank Note case can be
distinguished. While applicant argues that in fail
ing to issue an order against the respondent Air
Canada pursuant to subsection 41(2) of the Act,
after making a finding of discrimination pursuant
to subsection 41(1) the Tribunal failed to perform
the duty imposed on it, the word "may" in subsec
tion 41(2) being mandatory and not merely per
missive, I have already found that in my view the
Tribunal's finding, after careful study of the
matter, that it did not have jurisdiction to make
such an order is in fact a "decision" which can be
reviewed by the Court of Appeal pursuant to the
provisions of section 28 of the Federal Court Act.
Certainly it may not be the type of decision which
is foreseen by subsection 41(2) of the Canadian
Human Rights Act, but it does not appear to me
an appropriate use of mandamus to seek to make
the Tribunal issue an order which it has found it
has no jurisdiction to issue. This does not appear to
me to be a refusal by the Tribunal to perform a
duty which it is called upon by law to perform, but
rather a difference of opinion with the applicant as
to whether it has jurisdiction to perform such a
duty. Such a difference of opinion should certainly
be settled on appeal and mandamus is not a form
of appeal from a decision of an inferior Tribunal.
Mandamus will not in general issue to compel a
respondent to do what is impossible in law or in
fact (see de Smith Judicial Review of Administra
tive Action, 4th Edition, page 559). In view of the
Tribunal's finding that it was impossible to make
the order sought by applicant, which opinion may
of course be right or wrong, it would appear
inappropriate to direct the Tribunal to make an
order which it has found to be impossible. On
general principles therefore I feel that mandamus
is not the appropriate proceeding in the present
matter and for that reason also I will dismiss the
application.
Since, as indicated, the matter has not been
dealt with on the merits, the refusal to issue the
mandamus does not result from the exercise of
judicial discretion which the Court would have in
any event, but solely on the basis of the various
procedural issues discussed above.
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.