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T-1246-82
Cardinal Insurance Company (Plaintiff) v.
Minister of Finance and the Superintendent of Insurance (Defendants)
Trial Division, Cattanach J.—Toronto, March 1, 1982.
Jurisdiction — Trial Division — Application for interlocu tory injunction to restrain defendants from taking control of the plaintiffs assets in Canada pursuant to the order of the Minister given under s. 103.2(2)(c) of the Canadian and British Insurance Companies Act — Superintendent of Insurance reported to the Minister that the plaintiffs assets were insuffi cient to adequately protect policyholders — Defendants submit that the Trial Division is without jurisdiction to hear the motion because the matter is properly the subject of judicial review — Whether the Minister's decision is a final order — Whether the Minister's order is a decision or order of an administrative nature required by law to be made on a judicial or quasi-judicial basis — Motion is dismissed since the Trial Division lacks jurisdiction to hear the matter — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28 — Canadian and British Insurance Companies Act, R.S.C. 1970, c. I-15, as amended, s. 103.2(1)(d),(2)(c).
National Indian Brotherhood v. Juneau [No. 2] [1971] F.C. 73, applied. Minister of National Revenue v. Coopers and Lybrand [1979] 1 S.C.R. 495, applied.
APPLICATION. COUNSEL:
J. W. Brown, Q.C. and J. W. Mik for
plaintiff.
P. J. Evraire for defendants.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for plaintiff.
Deputy Attorney General of Canada for defendants.
The following are the reasons for order ren dered in English by
CATTANACH J.: The plaintiff, by notice of motion, seeks an interlocutory injunction restrain ing the defendants from taking control of the plaintiffs assets in Canada and limiting the plain-
tiffs certificate of registration to servicing existing policies of insurance until the trial of this matter or other disposition thereof.
Counsel for the defendants took the preliminary objection that the Trial Division is without juris diction to entertain the application and relief sought under section 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, because the matter is properly the subject of an application to the Appeal Division pursuant to section 28 of the Federal Court Act to review and set aside the decision or order of the Minister given under paragraph 103.2(2)(c) of the Canadian and Brit- ish Insurance Companies Act, R.S.C. 1970, c. I-15, as amended, pursuant to the report of the Superintendent of Insurance to the Minister under paragraph 103.2(1)(d).
Subsection 28 (1) of the Federal Court Act reads in part:
28. (I) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal ....
It is conceded that the Minister, acting as he did, was a federal board.
The questions which arise are
(1) whether the decision made by the Minister is a final order and if not
(2) whether it is subject to review by the Appeal Division in that event as well.
In National Indian Brotherhood v. Juneau [No. 2] [1971] F.C. 73, Jackett C.J. at pages 77 and 78 alluded to the meaning of the words "decision or order" as used in section 28 of the Federal Court Act as being the "ultimate decisions" made by the tribunal and not the myriad of decisions or orders that the tribunal must make in the decision-mak ing process leading to the ultimate decision, although these decisions may be material to the question of a fair hearing being accorded.
In my view the decision made by the Minister in the present instance under subsection 103.2(2) of the Canadian and British Insurance Companies Act, whereby he directed the Superintendent to take control of the plaintiff's assets has all the attributes of the final ultimate order. In so saying I fully realize that at some subsequent time the continuance of the order may not be necessary upon some condition imposed being complied with by the plaintiff, and the order could thereby be rescinded but that does not detract from it being the ultimate order in the matter before the Minister.
That being so I need not concern myself with a consideration as to whether it is an interim order and that, as such, it may still be the subject of review by the Appeal Division.
The next question which arises is whether the decision or order made by the Minister is a deci sion or order of an administrative nature required by law to be made on a judicial or quasi-judicial basis in which event the principles of natural jus tice shall run.
Subsection 103.2(2) of the Canadian and Brit- ish Insurance Companies Act reads in part:
103.2 .. .
(2) Where the Minister, after full consideration of the matter and after a reasonable time has been given to the company to be heard, believes that the situation described in any paragraph of subsection (1) exists ...
he may then take the appropriate course of action subsequently prescribed in the subsection.
The Superintendent reported to the Minister that the assets of the company were not sufficient, having regard to all the circumstances, to give adequate protection to the policyholders of the company as provided in paragraph (d) of subsec tion (1) of section 103.2.
In M.N.R. v. Coopers and Lybrand [ 1979] 1 S.C.R. 495, Dickson J. in delivering the judgment of the Supreme Court of Canada, at page 504, formulated several criteria for determining wheth er a decision or order is one required by law to be
made on a judicial or quasi-judicial basis. He made mention of four criteria not intended to be exhaustive and no one of which is necessarily determinative. All factors are to be weighed.
These criteria are four in number and I shall consider them seriatim.
(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?
Subsection 103.2(2) makes it mandatory that the company shall be afforded the opportunity to be heard after having been given a reasonable time. While the precise requirements of the hear ing are not prescribed, it is clear that a hearing with respect to the affected company is contem plated. This criterion is, therefore, applicable.
(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?
It cannot be disputed, nor is it disputed, that the rights of the company are directly affected. The very substructure of the future conduct of its business is cut away by the order.
(3) Is the adversary process involved?
The concept of the usual judicial function is bound up in the idea that there is a suit between parties and it is the duty of the Court to decide the issue between those parties.
In administrative law, issues arise between con tending parties that differ from those determined by the courts of justice.
This matter is, in my view, one such instance.
The plaintiff here seeks a legal privilege, that is to carry on the insurance business in Canada.
The duty of the Superintendent of Insurance and the Minister is to protect the public interest and in the end result a refusal to grant a certificate of registration may be construed as a decision in favour of the public at large, who are not directly represented at the hearing.
While there may not be a true lis inter partes there is statutory interpolation of a procedure which bears a superficial resemblance to a lis inter
partes which Lord Greene M.R. has characterized as a quasi -lis.
(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?
Subsection 103.2(2) requires the Minister to give his full consideration to the individual instances and he decides each matter in accord ance with the circumstances applicable in the par ticular matter and takes the permitted action dic tated thereby.
For the foregoing reasons the four criteria set forth by Dickson J. are applicable to the present decision by the Minister from which it follows that his decision is an administrative one which is required by law to be made on a judicial or quasi-judicial basis.
That being so, the preliminary objection made by counsel for the defendants that the Trial Divi sion is without jurisdiction to entertain the matter under section 18 of the Federal Court Act is well taken and the remedy available to the plaintiff is an application to the Appeal Division to review and set aside the Minister's order pursuant to section 28 of the Federal Court Act.
At the conclusion of the hearing of the prelim inary objection to the jurisdiction of the Trial Division to hear the matter, I adjourned to decide that question.
If I should have been of the opinion that the matter is not required by law to have been made by the Minister on a judicial or quasi-judicial basis, then the Trial Division is vested with jurisdiction.
If the contrary is the case, as I have found it to be, then the Trial Division is without jurisdiction.
Having concluded that the Trial Division is without jurisdiction to hear this matter, the application for an interlocutory injunction is dismissed.
There shall be no order as to costs for or against either of the parties.
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