A-491-88
Joan Mary Franklin (Applicant)
v.
Minister of National Health and Welfare and
Douglas Benjamin Franklin (Respondents)
INDEXED AS: FRANKLIN V. CANADA (MINISTER OF NATIONAL
HEALTH AND WELFARE)
Court of Appeal, Pratte, Marceau and Desjardins
JJ.—Vancouver, October 27, 1988.
Federal Court jurisdiction — Appeal Division — Motion to
quash s. 28 proceedings against decision of Pension Appeals
Board — Federal Court Act, s. 28(6) specifically excluding
Board decisions from proceedings under s. 28(1) — Whether s.
28(6) depriving Court of jurisdiction to review Board decision,
or privative clause intended to narrow, not deny, common law
review power.
Constitutional law — Charter of Rights — Equality rights
— Federal Court Act, s. 28(6), excluding Pension Appeal
Board decisions from s. 28(1) review, not contrary to Charter,
s. 15 — No discrimination, as other methods of judicial review
available.
This was a motion by the Attorney General to quash section
28 proceedings against a decision of the Pension Appeals
Board.
Held (Desjardins J. dissenting), the application should be
granted.
Per Marceau J. (Pratte J. concurring): This motion was well
founded. Federal Court Act, subsection 28(6) precluded the
taking of such proceedings. That was not a privative clause
which abrogated the common law power of superior courts to
review the decisions of inferior tribunals but a declaration that
the new statutory remedy was unavailable in certain cases. Nor
could it be said that the provision contravened Charter section
15 as discriminatory. It could not be concluded that the other
forms of judicial review available were less advantageous than
that available under section 28.
Per Desjardins J. (dissenting): In view of the traditional
approach of the courts that Parliament cannot have intended
inferior delegates to be permitted to act outside their jurisdic
tion and while a grant to review is given by subsection 28(1),
subsection 28(6) should not be held to deprive this Court of its
paragraph 28(1)(a) review powers.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, s. 61.5(10)
(as added by S.C. 1977-78, c. 27, s. 21).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 15.
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), s. 101.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28 ( 1 )(a),(b),(c),( 6 ).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Martins v. Minister of National Health and Welfare,
[1979] 1 F.C. 347; (1978), 92 D.L.R. (3d) 767 (C.A.);
Lee-Shanok v. Banca Nazionale del Lavoro of Canada
Ltd., [1987] 3 F.C. 578 (C.A.).
COUNSEL:
Charles E. D. Groos for applicant.
Paul F. Partridge for respondent Minister of
National Health and Welfare.
No one appearing for respondent Douglas
Benjamin Franklin.
SOLICITORS:
Doug Traill Memorial Law Centre, Vancou-
ver, for applicant.
Deputy Attorney General of Canada for
respondent Minister of National Health and
Welfare.
RESPONDENT ON HIS OWN BEHALF:
Douglas Benjamin Franklin, Richmond, Brit-
ish Columbia.
The following are the reasons for judgment
delivered orally in English by
MARCEAU J.: This motion by the Attorney Gen
eral for an order quashing the section 28 proceed
ings launched herein against a decision of the
Pension Appeals Board is, in my view, well found
ed. Subsection 28(6) of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] clearly and
unequivocally precludes the taking of such pro
ceedings since it provides:
28....
(6) Notwithstanding subsection (1), no proceeding shall be
taken thereunder in respect of a decision or order of the
Governor in Council, the Treasury Board, a superior court or
the Pension Appeals Board or in respect of a proceeding for a
service offence under the National Defence Act.
It is a formal exclusion to which this Court has
not hesitated to give effect the very first time it
had occasion to do so in Martins v. Minister of
National Health and Welfare, [1979] 1 F.C. 347;
(1978), 92 D.L.R. (3d) 767 (C.A.), and I do not
see how it could have done otherwise.
Counsel for Mrs. Franklin argues that the
laconic ruling in Martins, which was made appar
ently without the benefit of full argument and in
any event before the advent of the Charter
[Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)], should not
be followed and in support thereof he took, in his
representations before us, two alternative posi
tions.
He submitted first that subsection 28(6) should
be seen and construed only as a "no certiorari"
privative clause and therefore interpreted—as
these clauses are consistently interpreted by the
courts—to narrow but not completely frustrate the
scope of judicial review to which the decision is
normally subject under the common law. This
Court, he said, has readily assumed jurisdiction
under paragraph 28(1)(a) despite an explicit
statutory prohibition against any review of the
decision by any court, for instance in Lee-Shanok
v. Banca Nazionale del Lavoro of Canada Ltd.,
[1987] 3 F.C. 578 (C.A.); should it not do exactly
the same here, since there is no reason to apply
different rules of construction to "no certiorari"
clauses enacted in the Federal Court Act as dis
tinct from any other Act?
My objection to this counsel's first submission is
that subsection 28(6) cannot be seen and con
strued as a privative clause, for the basic reason
that it is not a provision seeking to deny or limit or
modify or somehow impede the traditional and
fundamental common law power of control and
review exercised by the superior courts over inferi
or tribunals. It simply declares unavailable in cer
tain cases the new and special recourse and
remedy created by subsection 28(1).
Counsel for Mrs. Franklin submitted alterna
tively that the Court should declare subsection
28(6) unconstitutional and refuse to give it effect
because, by denying to those appearing before the
Pension Appeals Board a right of review available
to people affected by decisions of other boards, the
provision would be discriminatory and in conflict
with section 15 of the Charter.
My answer here is that, assuming that a statu
tory court such as this Court is free to declare
unconstitutional a provision of the very statute
from which it draws its power to adjudicate and
then assume jurisdiction in a matter that was
meant to be denied to it, I am still unable to see
how, in itself, the provision here involved can be
said to be discriminatory. If it had to be assumed
that subsection 28(6) was aimed at closing the
door to any judicial review of Pension Appeals
Board decisions, then the submission might argu
ably raise some concern. But I do not think that
such an assumption is open to anyone at this stage,
nor do I think that it can be taken for granted that
the other means of judicial review available would
be less advantageous than an application brought
under subsection 28(1).
I would therefore grant the application and
would order that the proceedings herein be
quashed.
PRATTE J. concurred.
* * *
The following are the reasons for judgment
delivered orally in English by
DESJARDINS J. (dissenting): The issue raised by
this motion to quash is whether subsection 28(6) of
the Federal Court Act has the effect of depriving
this Court of the power to review a decision of the
Pension Appeals Board and, if so, whether Parlia
ment can validly enact such a provision in the light
of section 101 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 section 15 of the Canadian Charter
of Rights and Freedoms.
Subsection 28(6) is drafted in the style of an
exclusion to subsection (1) coupled with a measure
protecting an enumerated group of bodies includ
ing the Pension Appeals Board from any proceed
ing taken thereunder.'
The argument pressed upon us by counsel for
respondent is that subsection 28(6), although in
the Federal Court Act, is in the nature of a
privative clause and cannot oust the power of this
Court to review under paragraph 28(1)(a), as was
held by this Court with regard to subsection
61.5(10) of the Canada Labour Code, R.S.C.
1970, c. L-1 [as added by S.C. 1977-78, c. 27, s.
21] in the case of Lee-Shanok v. Banca Nazionale
del Lavoro of Canada Ltd., [1987] 3 F.C. 578
(C.A.).
One can certainly read subsection 28(6) as with
drawing the jurisdiction given to this Court by
subsection 28(1) with the consequence that this
Court is totally without jurisdiction to exercise the
recourse provided by paragraphs 28(1)(a), (b) and
(c) with regard to decisions of the enumerated
bodies.
One can also, in my view, read the provisions as
attempting to protect these bodies from the
recourse provided by paragraphs 28(1)(a), (b) and
(c), if applicable, without validly depriving this
Court of the jurisdiction it would otherwise have
under paragraph 28(1)(a). This reading is based
on the fact that nowhere in subsection 28(6) are to
' 28....
(6) Notwithstanding subsection (1), no proceeding shall be
taken thereunder in respect of a decision or order of the
Governor in Council, the Treasury Board, a superior court or
the Pension Appeals Board or in respect of a proceeding for a
service offence under the National Defence Act. [Emphasis
added.]
be found words declaring that this Court "has no
jurisdiction", similar to those found in subsection
28(3) with regard to the Trial Division.
In view of the traditional approach taken by
courts of law that Parliament cannot have intend
ed inferior delegates to be permitted to act outside
their jurisdiction and while a grant to review is
given to this Court under subsection 28(1), I opt in
favour of the more restrictive approach. I would
hold that subsection 28(6) does not deprive this
Court of its power under paragraph 28(1)(a) of
the Federal Court Act to review decisions of the
Pension Appeals Board.
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.