A-659-88
Guy Poirier (Applicant)
v.
Minister of Veterans Affairs (Respondent)
INDEXED AS: POIRIER V. CANADA (MINISTER OF VETERANS
AFFAIRS) (C.A.)
Court of Appeal, Pratte, Marceau and Desjardins
JJ.A.—Montréal, January 23; Ottawa, March 29,
1989.
Veterans — Eligibility for allowance — Payable at age 60
to male veterans and at 55 to female veterans — Whether
distinction contrary to Charter s. 15 — Whether Veterans
Appeal Board can rule on constitutionality of Act.
Judicial review — Applications to review — Veterans'
allowances — Whether fact allowance payable to male veter
ans at age 60 and to female veterans at 55 violating Charter s.
15 — Whether administrative tribunals entitled to rule on
constitutionality of statutes applied by them — Whether dis
tinction between administrative tribunals' power to refuse to
apply legislation judged unconstitutional and power to grant
remedy under Charter s. 24 valid.
Constitutional law — Charter of Rights — Equality rights
— Discrimination by reason of age — Whether age difference
between men (60) and women (55) for eligibility for veterans'
allowance under War Veterans Allowance Act violating Chart
er s. 15.
Constitutional law — Charter of Rights — Enforcement —
Constitutionality of War Veterans Allowance Act provision
establishing age distinction between men and women for eligi
bility for veterans' allowance challenged before Veterans
Appeal Board — Whether distinction between administrative
tribunals' power under Charter s. 52 to refuse to apply legisla
tion judged unconstitutional and power to grant remedy under
Charter s. 24 valid.
The War Veterans Allowance Act provides that an allowance
is payable to male veterans at age 60 and to female veterans at
age 55. The applicant, a male veteran, applied for the allow
ance a few weeks after reaching the age of 55. He argued that
the distinction was contrary to section 15 of the Charter and
that it should be held inoperative pursuant to section 52 of the
Constitution Act, 1982. The Veterans Appeal Board dismissed
the claim, saying that even if the provision were contrary to
section 15 of the Charter and even if it could declare the
troublesome words inoperative, it lacked the power to amend
the Act so as to entitle the applicant to the allowance. This is a
section 28 application attacking that decision on the ground
that the Board wrongly declined to exercise its jurisdiction.
Held, the application should be dismissed.
Per Marceau J.A.: This case raises the issue of whether
administrative tribunals are entitled to rule on the constitution
ality of the statutes they are called upon to apply. Only courts
of law, forming the judicial branch of government, have the
power to contest the validity of the edicts of the legislative
branch and to nullify their effect: Canada (Attorney General) v.
Viper. The point of view adopted by this Court in Tétreault-
Gadoury to the effect that by simply refusing to apply a
statutory provision it judges inconsistent with the Charter, the
tribunal is merely acting in conformity with subsection 52(1) of
the Constitution (which provides that laws inconsistent with the
Constitution are, to the extent of the inconsistency, of no force
or effect), was not convincing. Subsection 52(1) does not set
out a sanction autonomous and independent of those referred to
in subsection 24(1) of the Charter. Its application would
depend entirely on the wording of the provision. Although
subsection 52(1) does not resolve the question of who is empow
ered to decide the inconsistency and to say that the provision is
of no force or effect, administrative bodies should not have that
right.
The reasoning which seeks to oppose the incidental exercise
of jurisdiction to its principal exercise implies that there is a
difference in principle between a decision which affirms the
unconstitutionality of a statute as the basis of its disposition
and one whose very disposition is a declaration of unconstitu-
tionality. The argument made is that the former does not
extend beyond the particular case while the latter is binding
generally. That proposition is debatable. The principle that
judgments bind only the parties to them applies to declaratory
judgments. For third parties, a judgment is nothing more than
a precedent and its ratio decidendi is as significant as its
disposition.
The principles of the rule of law and of the division of powers
of the State are incompatible with giving administrative bodies
the power to rule on the constitutionality of Acts of Parliament
or of provincial legislatures.
This Court has already rejected, with respect to section 28
applications, the validity of the assertion that the absence of
jurisdiction in the administrative tribunal no longer matters
once the litigation has reached a court competent to pronounce
on the constitutionality of statutes. The Court cannot pro
nounce itself on a question which did not face the administra
tive authority, nor order the authority to answer one way or
another a question which is not of its concern.
Per Pratte J.A. (concurring in the result): It is not necessary
to decide whether Tétreault-Gadoury was rightly decided and
whether the distinction made therein between the power (pos-
sessed by administrative tribunals) to refuse to apply legislation
which they judge to be unconstitutional and the power (not
possessed by administrative tribunals) to grant a remedy under
section 24 of the Charter should be adopted. In this case, the
applicant was not only asking the Board to disregard a provi-
sion judged to be discriminatory, but also to grant him at 55
years of age an allowance to which he would become legally
entitled only at age 60. The Board could not grant the request
without resorting to section 24 of the Charter and amending
the Act, and the Board did not have that jurisdiction.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 15, 24(1).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), ss. 91, 92, 96.
Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 52(1).
Family Allowances Act, 1973, S.C. 1973-74, c. 44.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 28.
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c.
48.
Veterans Appeal Board Act, S.C. 1987. c. 25.
War Veterans Allowance Act, R.S.C. 1970, c. W-5, ss.
1.1(1) (as added by S.C. 1974-75-76, c. 8, s. 2), (2) (as
added idem), 3 (as am. idem, s. 4).
War Veterans Allowance Act, R.S.C., 1985, c. W-3, ss.
3, 4.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada (Attorney General) v. Viner, [1988] 1 F.C. 714
(C.A.); Canada (Attorney General) v. Alli, [1988] 3 F.C.
444 (C.A.); Canada (Attorney General) v. Sirois (1988),
90 N.R. 39 (F.C.A.); Tétreault-Gadoury v. Canada
(Canada Employment and Immigration Commission),
[1989] 2 F.C. 245 (C.A.).
CONSIDERED:
Terminaux portuaires du Québec Inc. v. Association des
employeurs maritimes et al. (1988), 89 N.R. 278
(F.C.A.).
REFERRED TO:
Zwarich v. Canada (Attorney General), [1987] 3 F.C.
253 (C.A.); Nixon v. Canada (Employment and Immi
gration Commission), A-649-86, A-728-86, Urie,
Mahoney and Hugessen JJ.A., judgment dated 14/12/87,
F.C.A., not yet reported; Emms v. The Queen et al.,
[1979] 2 S.C.R. 1148.
AUTHORS CITED
Wade, H. W. R. "Unlawful Administrative Action: Void
or Voidable?" (1967), 83 Law Q. Rev. 499; (1968), 84
Law Q. Rev. 95.
Davis, K. C. Administrative Law Treatise, 2nd ed., Vol.
4. San Diego: K.C. Davis Pub. Co., 1983, § 26:6.
COUNSEL:
Mireille Pinard for applicant.
Jean-Marc Aubry for respondent.
SOLICITORS:
Poirier, Pinard, Bougie & Baillargeon, Mon-
tréal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.A.: The circumstances giving rise to
this appeal have been set out by Marceau J.A. As
he indicates, the issue is whether or not an
administrative tribunal may rule on the constitu
tional validity of statutes which it is called upon to
apply.
To the best of my knowledge, the Court has
already dealt with this question in four cases:
Canada (Attorney General) v. Vincer, [1988] 1
F.C. 714 (C.A.); Canada (Attorney General) v.
Alli, [1988] 3 F.C. 444 (C.A.); Canada (Attorney
General) v. Sirois (1988), 90 N.R. 39 (F.C.A.);
and Tétreault-Gadoury v. Canada (Canada
Employment and Immigration Commission),
[1989] 2 F.C. 245 (C.A.).'
In Vincer, decided December 1, 1987, Marceau
and Stone JJ. held that a Review Committee
established under the Family Allowances Act,
1973 [S.C. 1973-74, c. 44] could not rule on the
constitutional validity of legislation. Marceau J. so
concluded because he was of the opinion (and still
I purposely refrain from mentioning the judgments ren
dered in Zwarich v. Canada (Attorney General), [1987] 3 F.C.
253 (C.A.); and Nixon v. Canada (Employment and Immigra
tion Commission) (Federal Court of Appeal, A-649-86 and
A-728-86, judgment dated December 14, 1987, not yet report
ed). The statements therein to the effect that an umpire and a
board of referees acting pursuant to the Unemployment Insur
ance Act, 1971 must refuse to apply statutory provisions which
they judge to be unconstitutional, categoric as these statements
may be, are merely obiter dicta.
is, as we all know) that such power belongs exclu
sively to courts of justice. Stone J.A,, for his part,
relying on the terms of the Family Allowances
Act, 1973 came to the conclusion that the mandate
given the Review Committee by Parliament did
not include this power.
Alli was decided May 9, 1988. Again, this case
involved a challenge to the validity of a decision
handed down by a Review Committee set up under
the Family Allowances Act, 1973. In its decision
the Committee had not merely declared invalid
and of no force or effect legislation judged to be
unconstitutional, but had granted the respondent a
remedy under section 24 of the Canadian Charter
of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada Act,
1982, 1982, c. 11 (U.K.)]. The Court allowed the
appeal, affirming that even if, contrary to what
had been decided in Vincer, the Review Commit
tee could have refused to apply statutory provi
sions which it considered to be unconstitutional, it
was nonetheless impossible to escape the conclu
sion that the Committee was not a "court of
competent jurisdiction" within the meaning of
section 24 of the Charter.
The third judgment, that delivered in the Sirois
case on June 24, 1988, also has to do with a
decision of a Review Committee created under the
Family Allowances Act, 1973. There the Court
simply referred to Vincer as supporting its asser
tion that such a Committee was not empowered to
pronounce upon the constitutional validity of
statutory provisions with whose application it was
charged.
Finally, there is the judgment handed down on
September 23, 1988 in the Tétreault-Gadoury
case, in which a decision of a board of referees
created under the Unemployment Insurance Act,
1971 [S.C. 1970-71-72, c. 48] came under attack.
The board was alleged to have based its decision
on a provision of the Unemployment Insurance
Act, 1971, which, it was submitted, was clearly
unconstitutional. The Court allowed the appeal.
Applying the distinction suggested in Alli, the
Court held that although a board of referees was
not a court of competent jurisdiction for the pur
poses of according a remedy under section 24 of
the Charter, it could nevertheless rule on the con-
stitutional validity of statutory provisions which it
had to apply and was obliged, in rendering its
decisions, to declare of no force or effect those
provisions which it found to be contrary to the
Charter.
There are those, Marceau J.A. among them,
who believe that Tétreault-Gadoury was wrongly
decided and that the distinction made therein be
tween the power (possessed by administrative tri
bunals) to refuse to apply legislation which they
judge to be unconstitutional and the power (not
possessed by administrative tribunals) to grant a
remedy under section 24 of the Charter should not
be adopted. That, however, is a question whose
determination is not necessary to the disposition of
the case at bar. Indeed, the applicant here clearly
was asking the Veterans Appeal Board not merely
to refuse to take into account a statutory provision
judged to be discriminatory, but rather to grant
him at 55 years of age an allowance to which he
will become legally entitled only at age 60. It is
obvious that the Board, whose sole task was to
determine whether or not decisions brought before
it on appeal had been correctly decided, could not
allow this request because the Act, even without
the provisions considered by the applicant to be
invalid, would not have authorized the payment of
the amounts claimed.
I would dismiss the application.
DESJARDINS J.A.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.A.: The problem of whether
administrative tribunals are entitled to rule on the
constitutionality of the statutes they are called
upon to apply has recently taken on a vital impor
tance both in doctrine and case law. The problem
has not been created by the entrenchment of the
Canadian Charter of Rights and Freedoms in the
Constitution, but it must be admitted that previ
ously no one apparently felt the need to be preoc
cupied with it. The constitutionality of statutes
was then strictly a function of the division of
legislative powers in terms of sections 91 and 92 of
the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)] and few
tribunals, I suppose, would have felt authorized to
deal with the legal difficulties of interpretation
involved in reaching a conclusion as to the ultra
vires character of a statute. But the situation has
been completely changed with the advent of
another source of unconstitutionality, of imprecise
content and of a social and political nature, giving
rise to what would be referred to by a new term,
that of inefficacy or inoperability. It has appeared
to some counsel that an assertion of the unconsti-
tutionality of a legislative provision on the ground
that it infringed a precept of the Charter was
available before administrative authorities invested
with decision-making powers, and certain of these
authorities, encouraged by some commentators,
have accepted to pronounce themselves in this
way. And the problem could no longer be ignored.
In fact, as we know, at the federal level, this Court
has been seized of the matter on several occasions
in the exercise of its power to review and control
decisions of administrative tribunals, but it has not
yet settled on a firm position and the controversy
persists.
Once again, this well-known problem is raised
by the present application under section 28 of the
Federal Court Act [R.S.C., 1985, c. F-7], and here
it is raised in a direct and exclusive manner. This
renders it all the more striking. Here is what it is
about.
The War Veterans Allowance Act [R.S.C.,
1985, c. W-3], having affirmed the principle of
equality of status between male and female veter
ans in section 3 (prior to the statute revision of last
December it was subsection 1.1(1) [R.S.C. 1970,
c. W-5 (as added by S.C. 1974-75-76, c. 8, s. 2)]),
proceeds at once to erode that principle in the
following section (formerly section 3), in stating:
4. (1) Subject to this Act, an allowance is payable to
(a) any male person who is a veteran or widower and who
has attained the age of sixty years,
(b) any female person who is a veteran or widow and who
has attained the age of fifty-five years,
(c) any veteran, widower or widow who, in the opinion of the
Minister,
(i) is permanently unemployable because of physical or
mental disability,
(ii) is, because of physical or mental disability or insuffi
ciency combined with economic handicaps, incapable and
unlikely to become capable of maintaining himself or
herself, or
(iii) is, because of the need to provide care for a dependent
child residing at home, incapable of maintaining himself or
herself, and
(d) an orphan,
and who is resident in Canada.
(2) Section 3 does not apply to subsection (1).
One can immediately guess the facts. The appli
cant, a veteran, applied to claim the benefits pro
vided by the Act in June 1987, a few weeks after
having reached the age of fifty-five. He naturally
invoked the discriminatory character of the provi
sion which treated male veterans differently from
female veterans in requiring the former to wait
until age sixty before becoming eligible for their
allowance. According to his lawyer, this provision,
contrary as it was to the requirements of subsec
tion 15(1) fo the Charter, should have been held
inoperative in terms of section 52 of the Constitu
tion Act, 1982 [Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)]. The Regional Director,
responsible for handling claims at the first
instance, refused. The applicant then approached
the Appeals and Review Committee which con
firmed the decision, but which undertook to refer
the matter to the War Veterans Allowance Board,
"given the nature of this dispute". Some weeks
later (September 14, 1987) the Board was
replaced by the Veterans Appeal Board, a body
which had recently been created by the Veterans
Appeal Board Act, S.C. 1987, c. 25, composed of
six members, of no special qualification, named by
the Governor in Council for terms of seven years
at most. It was that tribunal, sitting with three
members, which heard the applicant's claim at the
final level. It also dismissed the claim, reasoning as
follows (at pages 3 and 4 of the decision):
[TRANSLATION] According to the judgment of Pratte J., 2
even if the tribunal were to accept that the appellant's argu
ment is well taken and that the words "Subject to section 3(1)"
in section 1.1(1) of the War Veterans Allowance Act do not
z In Zwarich v. Canada (Attorney General), [1987] 3 F.C.
253 (C.A.) to which the members of the Tribunal had referred.
apply because they do not conform to the provisions of section
15 of the Charter, it does not necessarily follow that the Board
can grant an allowance to the appellant.
To remove these troublesome words from section 1.1, is to be
left with a section holding that men and women should have the
same rights and obligations under the Act.
Nevertheless, according to section 3, the minimum age for
granting an allowance is different for men and women. Even if
the interpretation of section 1.1(2) meant that female person
aged 55 included any male person aged 55, the following
corollary would have to apply: male person aged 60 includes
any female person aged 60.
Consequently, in order to authorize the remedy claimed by
the appellant, the Board would have to choose the more appro
priate age to grant an allowance to men and women. The Board
has no evidence on which to rely in determining whether it is
preferable to award an allowance at age 55 or 60.
The Board is of the opinion that its role is to interpret the
War Veterans Allowance Act and other Acts within its jurisdic
tion, according to their wording. It also believes that only
Parliament can modify the age at which claimants, be they
female or male, can receive an allowance.
Consequently, the Board feels that it cannot grant the
remedy requested, to grant an allowance to Mr. Poirier.
The Board therefore affirms the decision taken by the
Quebec Regional Review Board and judges accordingly.'
It is this decision which is before us. The appli
cant still maintains that the patently discriminato
ry character of paragraph 3(1)(a) [as am. by S.C.
1974-75-76, c. 8, s. 4], considered together with
the declarations of principle in subsections 1.1(1)
and 1.1(2) [as added by S.C. 1974-75-76, c. 8, s.
2] ° in regard to the intent of the Act as to the
3 The decision having been made prior to the coming into
force of the Revised Statutes, the numbering is that in effect
before December 1988.
4 The numbering is that existing prior to December 1988.
Subsection 1.1(1) has become section 3 and subsection 1.1(2)
has been dropped. They used to read as follows:
1.1 (1) Male and female veterans under this Act enjoy
equality of status and, subject to subsection 3(1), equal rights
and obligations under this Act.
(2) For the purpose of ensuring the equality of status of
male and female veterans in respect of rights and obligations
under this Act, an expression in this Act that imports a male
person may be read and construed to import a female person
and an expression in this Act that imports a female person
may be read and construed to import a male person, unless
the provision in which such an expression occurs expressly
excludes this provision.
treatment accorded to veterans of both sexes, per
mitted the Board to recognize his right to an
allowance without having to involve itself in legis
lating. The Board, he submits, wrongly declined to
exercise its jurisdiction.
The respondent Minister defends the Board's
approach and reasoning by reference to some deci
sions of this Court—principally Zwarich v.
Canada Attorney General [[1987] 3 F.C. 253
(C.A.)], which the Board relied on, and Tétreault-
Gadoury v. Canada (Canada Employment and
Immigration Commission), [[1989] 2 F.C. 245
(C.A.)]. As paragraph 16 of his memorandum
clearly expresses:
16. [TRANSLATION] According to this jurisprudence, an
administrative tribunal is competent to judge inoperative a
statutory or regulatory provision on account of its incon
sistency with the Charter, and consequently, to refuse to
apply it; on the other hand, such a tribunal is not com
petent to order a remedy it considers appropriate and just
in terms of subsection 24(1) of the Charter because it is
only empowered to dispose of appeals of which it is seized
in accordance with its enabling statute.
Thus, says the respondent, the Board was indeed
competent to declare subsection 3(1)(a) inopera
tive, but being unable to go further than that,
could not, on the basis of the Act, recognize a right
to an allowance for male veterans at 55 years of
age.
I have already expressed my conviction to the
effect that an administrative tribunal, attached by
definition to the executive branch of government,
could not allow itself to refuse to apply a statute of
Parliament or a Legislature on the basis that such
statute appeared to it to violate the constitution of
the land. In my opinion, the very principle of the
rule of law and the fundamental division of powers
between the legislature, executive and judiciary of
the State, which not only have been formally
confirmed in the Constitution, but which in fact
are a prerequisite to it in so far as they underlie it,
stand against such refusal. Only the courts of law,
forming the judicial branch of government, have
the power to contest the validity of the edicts of
the legislative branch and to nullify their effect. In
my mind, this applies as much and in the same
way to a legislative provision which would be ultra
vires because it ran counter to the division of
powers established in sections 91 and 92 of the
Constitution Act, 1867, as it does to a legislative
provision which could be seen as infringing a
provision of the Charter and which therefore
should be said to be inoperative. I have explained
my point of view at length in this regard in the
case of Canada (Attorney General) v. Vincer,
[1988] 1 F.C. 714 (C.A.) and it is obviously not
simply in order to repeat myself that I have
wanted to write the present reasons. 5
It happens however that certain apparent objec
tions, which have been emphasized to an extent I
had not foreseen, have since been raised against
the position I felt obliged to adopt in Vincer, and it
has been again said that ultimately, at the level of
this Court, the tribunal's absence of jurisdiction
would be of no consequence. It has seemed to me
that, in these circumstances, it would be somewhat
unsatisfactory to refer to Vincer, without more, to
support my opinion that the application we must
dispose of today should be dismissed. Some addi
tional remarks have seemed to me to be in order,
which I shall address first in regard to the objec
tions made against the position I adopted in
Vincer, and then in regard to the effects which an
absence of jurisdiction in the tribunal could have
in this Court.
1. In my reasons in the case of Terminaux
portuaires du Québec Inc. v. Association des
employeurs maritimes et al. (1988), 89 N.R. 278
(F.C.A.), I have already expressed my doubts in
regard to the validity of the principal arguments
It might be worthwhile to repeat here that this viewpoint
which I first advanced in Vincer (supra) is not in itself neces
sarily opposed to the possibility of a legislative authority
attributing to a tribunal which it creates the incidental respon
sibility of overseeing the constitutionality of the statutes it is
entrusted to administer. For, of course, our constitutional
system does not foresee an utter separation of powers of the
State which would forbid the exercise of judicial functions by a
body which was not a court of law, and in fact it is well known
that administrative tribunals have been established in part
precisely to exercise judicial functions. But it must be realized
that this possible attribution of judicial functions to administra
tive bodies remains subject, at all times, to the requirements of
section 96 of the Constitution Act, 1867 (a significant ob
stacle), and further, that if such attribution were to extend to
the most fundamental power of overseeing the legality of the
acts of the enabling authority itself (a rather astonishing
precaution on the part of the enabling authority), it would have
to be defined in the clearest of terms, under such exceptional,
and even abnormal, circumstances.
advanced by those who would hold administrative
tribunals to be empowered to refuse to apply a
statute they consider unconstitutional because of
its inconsistency with the provisions of the
Charter. I wish to quickly return to two of those
arguments.
a) I return to the first, for it is found at the base
of this Court's decision in Tétreault-Gadoury,
supra. It consists in saying that by simply refusing
to apply a statutory provision it judges inconsistent
with the Charter, the tribunal is merely acting in
conformity with the Constitution Act, 1982 and its
subsection 52(1) which states that "any law that is
inconsistent with the provisions of the Constitution
is, to the extent of the inconsistency, of no force or
effect." In so acting, the tribunal does not pretend
to make use to the authority of subsection 24(1) of
the Charter to order an appropriate remedy, as it
would have to were it to go beyond strictly refus
ing to apply the impugned provision; nor does it
pretend to pronounce itself by general declaration,
as if it were a superior court. The tribunal stays in
its domain and in no way arrogates to itself the
role of a court of law.
This reasoning does not convince me for two
reasons. First, it implies that subsection 52(1) of
the Constitution Act, 1982 sets out a sanction
autonomous and independent of those referred to
in subsection 24(1) of the Charter, which would
apply automatically. Such an interpretation of the
text would create a situation where, particularly in
the case of discrimination, the ability of the tri
bunal to give effect to its finding of unconstitution-
ality would strictly be a function of the wording
employed (since it would be necessary in effect
that the provision, truncated of the troublesome
wording, still maintain a meaning capable of
immediate application), which appears to be a
singularly unsatisfactory result. But first and fore
most, I must say with respect that such an inter
pretation of the text confuses a rule of substance
with a rule conferring jurisdiction: to say that a
legislative provision inconsistent with the Charter
is of no force or effect does not resolve the ques-
totion of knowing who can decide this "inconsist-
ency", who is empowered to satisfy himself and to
say that a legislative provision should be ignored
because it contravenes the Charter. Admittedly, an
individual who refuses to obey a legislative provi-
sion by asserting its unconstitutionality will suffer
no harm if in court he eventually obtains confirma
tion of his assertion. But, as I stressed in Ter-
minaux portuaires, supra, this is so because we
recognize the inviolable right of the citizen to
resist unlawful actions by the State which harm
him in his person or his personal interests. (See the
remarks of Wade on this subject in his study
"Unlawful Administrative Action: Void or Void-
able?", (1967), 83 Law Q. Rev. 499 and (1968),
84 Law Q. Rev. 95.) There is no room for a
corresponding right in favour of the executive and
administrative bodies in the exercise of powers
they might have over citizens. (See on this point
the American work by K. C. Davis, Administra
tive Law Treatise, 2nd. ed., (1983) Vol. 4 § 26:6,
at pages 434 et seq.)
Secondly, this reasoning, which seeks to oppose
the incidental exercise of jurisdiction to its princi
pal exercise, also implies the idea that there is a
difference in principle, in their respective reach,
between a decision which affirms the unconstitu-
tionality of a statute as the basis of its disposition,
and a decision whose very disposition is a declara
tion of unconstitutionality. In the former case, the
affirmation of unconstitutionality is said not to
reach beyond the bounds of the dispute to be
resolved between the parties, whereas in the latter
case it is said to be binding at large. This idea
appears highly arguable to me. The principle that
judgments bind only the parties to them applies to
declaratory judgments as to others. As far as third
parties are concerned, a judgment has only the
force of a precedent, and in this regard its ratio
decidendi has as much authority as its disposition.
(See in this regard the remarks of Pigeon J. in the
case of Emms v. The Queen et al., [1979] 2 S.C.R.
1148, at pages 1160-1162.)
In my opinion, to recognize the right of provin
cial or federal administrative tribunals (federal
tribunals which include, in terms of the definition
contained in the Federal Court Act (section 2),
"any body or any person or persons having, exer
cising or purporting to exercise jurisdiction or
powers conferred by or under an Act of Parlia
ment") to refuse to apply a statute they might
judge unconstitutional, is to recognize in them a
right to control the legality of the Acts of Parlia-
ment or of a provincial Legislature, at the same
level as a court of law. That is why the principles
of the rule of law and of the division of powers of
the State appear to me to be directly involved, and
that also is why the right to refuse to apply a
statute judged unconstitutional appears to me, in
principle, altogether of a different order than the
mere power to situate facts in terms of the consti
tutional order, or to deal with difficulties of inter
pretation, or even to pronounce on the validity (in
light of enabling legislative provisions or the provi
sions of the Charter) of a given provision of dele
gated legislation.
b) Another argument invoked in defence of the
idea that administrative tribunals should have the
power to rule on the constitutionality of statutes is
that of convenience, drawn from the apparent
practical advantages which would result in terms
of time and cost. I return again to this argument
because of the constant use which is made of it. I
would first remark that an argument of this nature
could not at any rate overcome the existing funda
mental failing in principle. But I particularly want
to raise a doubt as to the reality of the purported
advantages. As soon as a party to a dispute where
the constitutionality of a statute has been called
into question, becomes unhappy with the decision
of the administrative tribunal, and such would
doubtless be the rule given the importance of
disputes of this nature, the common law courts will
be called on to intervene. Where then would be the
advantages in time and cost? It is true that practi
tioners are today still uncertain as to the means by
which to proceed, but their difficulties in this
regard do not stem from the current rules of
procedure but from not knowing which rules
apply, in the absence of a firm and settled position.
Once it becomes established that a claim of uncon-
stitutionality, whether raised before or after the
administrative decision, must be settled before a
court of common law (at the federal level, the
Trial Division of the Federal Court by virtue of
section 18 of the Federal Court Act), practitioners
will know what to expect and will face no greater
difficulty in proceeding.
2. I now come to the assertion that the absence
of jurisdiction in the administrative tribunal itself
no longer matters once the litigation, with its
constitutional issue, has reached a court which is
itself competent to pronounce on the constitution
ality of statutes.
This Court has already, on two occasions, reject
ed the validity of this assertion when the recourse
taken against the decision was that given by sec
tion 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] (in the cases of Vincer, supra,
and Canada (Attorney General) v. Sirois (1988),
90 N.R. 39. This is because of the very special
nature of the recourse. The powers of the Court, in
the exercise of the role conferred on it by section
28 of overseeing and controlling the legality of
administrative decisions, are solely those of setting
aside a decision which appears to it not to have
been made in accordance with legal requirements
and of referring the matter back to the tribunal for
redetermination with appropriate directions. 6 The
Court cannot pronounce itself on a question which
did not face the administrative authority, nor order
the authority to answer one way or another a
question which is not of its concern. The very
nature of the recourse determines its limitations,
and the procedural rules which govern it (an
application which must be heard and determined
"without delay and in a summary way" (subsec-
tion 28(5))) directly reflect those limitations.
Here again, resort is had to an objection of
practical nature. Why would the Court refuse to
rule on a question before it, whether or not that
question presented itself to the tribunal? Why
should it have to dismiss the application for review
or to refer the matter back to the tribunal, leaving
it to the parties to address themselves to the Trial
Division, and then to come back to this Court yet
again? Why such a circuitous route, evidently
costly in time and money?
6 Subsection 52(d) reads as follows:
52. The Federal Court of Appeal may
(d) In the case of an application to review and set aside a
decision of the federal board, commission or other tri
bunal, either dismiss the application, set aside the decision
or set aside the decision and refer the matter back to the
board, commission or other tribunal for determination in
accordance with such directions as it considers to be
appropriate.
The objection is, at first glance, more damaging
than the objection against the refusal to recognize
the right of administrative tribunals to rule on the
constitutionality of statutes, but nevertheless it
elicits the same kind of reply. This is not, it seems
to me, the type of objection that can overcome a
difficulty of principle and an obvious problem of
jurisdiction, and besides it must be noted that once
the situation has been clarified, there will no
longer be cause for errors of procedure. But there
is an additional reply of greater weight: the solu
tion of a constitutional issue based on the Charter
might always involve more or less elaborate evi
dence, given the interpretation of section 1 and the
role attributed to it: would it not be before a trial
court, presided by a single judge, that the produc
tion of such evidence would be most worthwhile
and useful.
Those were the additional remarks I wished to
make to complete my thoughts as expressed in
Vincer, supra. It remains for me to dispose of the
case on the basis that, in my opinion, absent a
declaration of unconstitutionality addressed to
them by a court of law, administrative tribunals
are bound to apply existing statutes, and cannot, in
the performance of their mandate, take it upon
themselves to set aside those that do not appear to
them to conform to the Constitution. The conclu
sion is simple: since the Board in effect did no
more than to apply the statute, its decision cannot
be disturbed.
I would therefore dismiss this application under
section 28.
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.