Martineau v. Matsqui Disciplinary Bd., [1980] 1 SCR 602

SUPREME COURT OF CANADA

Martineau v. Matsqui Disciplinary Bd., [1980] 1 S.C.R. 602

Date: 1979-12-13

Robert Thomas Martineau Appellant; and

Matsqui Institution Disciplinary Board

Respondent.

1979: May 3; 1979: December 13.

Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Jurisdiction — Certiorari — Disciplinary offence — Penitentiary disciplinary board —Inmate committed to special corrections unit — Jurisdiction of Trial Divi­sion of Federal Court of Canada — Judicial discretion — Duty to act fairly — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Penitentiary Act, R.S.C. 1970, c. P-6, s. 29 — Penitentiary Service Regulations and Directives.

For a disciplinary offence dealt with as "flagrant or serious", the appellant, an inmate of a federal peniten­tiary, was sentenced by the respondent Board to 15 days in the penitentiary's special corrections unit. He made application to the Federal Court for certiorari in the Trial Division and for judicial review under s. 28 of the Federal Court Act before the Court of Appeal. This application was dealt with first while the other was kept pending. It was dismissed by the Federal Court of Appeal and this dismissal was affirmed by a majority in this Court ([1978] 1 S.C.R. 118).

After the disposition of the application under s. 28 to review and set aside the respondent's order, proceedings were resumed on the application under s. 18 for certio­rari in the Trial Division. The parties appeared before Mahoney J. who issued an order that the Court had jurisdiction ([1978] 1 F.C. 312). He concluded that the respondent Board had a duty to act fairly in arriving at its decision to impose a punishment and that the Trial Division had jurisdiction to quash such an order by way of writ of certiorari if it was of the view that the tribunal had not acted fairly. However, dealing only with a preliminary point of law relating to jurisdiction, he did not have to decide whether, on the facts of the case, the respondent had acted in an unfair manner.

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The Federal Court of Appeal, in allowing the Board's appeal, proceeded on the basis that this Court had decided in the matter of the s. 28 application that the Federal Court of Appeal had no jurisdiction to set aside the order attacked on the ground that the "convictions" were administrative decisions that were "not required by law to be made on a judicial or quasi-judicial basis" within the meaning of those words in s. 28. The Court of Appeal was of the view that it followed from that decision that "the 'convictions' in question cannot be attacked under s. 18 of the Federal Court Act by a writ of certiorari or proceedings for relief in the nature of that contemplated by such a writ." From this decision the appellant appealed to this Court.

Held: The appeal should be allowed.

Per Martland, Ritchie, Pigeon, Beetz, Estey and Pratte JJ.: The reason for which the Federal Court of Appeal reversed the judgment of the Trial Division was that it did not accept that the common law remedy of certiorari may be available in the case of violation of the duty to act fairly in an administrative decision "not required by law to be made on a judicial or quasi-judi­cial basis". It said in a foot-note: " ... Any decision that is not judicial but is 'sufficiently near a judicial decision to be the subject of a writ of certiorari' is, in our view, a decision that is required to be made on a 'quasi-judicial basis' within the meaning of those words in section 28." This view could not be accepted.

In disciplinary offence proceedings respecting a prison inmate, the requirements of judicial procedure are not to be brought in and, consequently, these are not decisions which may be reviewed by the Federal Court of Appeal under s. 28 of the Federal Court Act, a remedy which is in the nature of a right of appeal. However, this does not mean that the duty of fairness may not be enforced by the Trial Division through the exercise of the discretion­ary remedies mentioned in s. 18 of the Federal Court Act.

The order issued by Mahoney J. dealt only with the jurisdiction of the Trial Division, not with the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effective adminis­tration of criminal justice be borne in mind when deal­ing with applications for certiorari before trial. It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken

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to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided.

Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311; R. v. Board of Visitors of Hull Prison, Ex p. St. Germain, [1979] 1 All E.R. 701; Fraser v. Mudge, [1975] 1 W.L.R. 1132, applied; Bates v. Lord Hailsham, [1972] 3 All E.R. 1019; Attorney General of Quebec v. Cohen, [1979] 2 S.C.R. 305, referred to.

Per Laskin C.J. and Dickson and McIntyre JJ.: This appeal raised in general terms the question of the super­visory role of the Federal Court, Trial Division, over disciplinary boards within Canadian penitentiaries. It also called for consideration of three related issues of importance in Canadian administrative law: l. The review jurisdiction of the Trial Division and Court of Appeal under, respectively, ss. 18 and 28 of the Federal Court Act. 2. The duty to act fairly—the English "fair­ness doctrine". 3. The potential breadth of the common law remedy of certiorari in Canada.

For the purposes of the Federal Court Act, a distinc­tion has been drawn in administrative law between the duty to act judicially and the duty to act fairly. Though a duty to act fairly may not be relevant to the question of jurisdiction under s. 28, s. 18 vests in the Trial Division of the Federal Court the jurisdiction to grant the common law remedy of certiorari and that remedy avails at common law wherever a public body has the power to decide any matter affecting the rights, inter­ests, property, privileges or liberties of any person. The basis for the broad reach of the remedy is the general duty of fairness resting on all public decision-makers.

Although the courts will not readily interfere in the exercise of disciplinary powers, whether within the armed services, the police force or the penitentiary, there is no rule of law which necessarily exempts the exercise of such disciplinary powers from review by certiorari.

With respect to these several issues, the authorities support the conclusions set out at pp. 628-631 of the reasons for judgment.

Howarth v. National Parole Board, [1976] 1 S.C.R. 453; Nicholson v. Haldimand-Norfolk Regional Police Commissioners, supra; Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470; Roper v. Executive of Medical Board of Royal Victoria Hospital, [1975] 2 S.C.R. 62;

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R. v. Board of Visitors of Hull Prison, Ex p. St. Germain, supra; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; R. v. Local Government Board (1882), 10 Q.B.D. 309; The Case of Cardiffe Bridge, 1 Salk 146; Groenwelt v. Burwell (1700), 1 Ld. Raym. 467; R. v. Criminal Injuries Compensation Board, Ex p. Lain, [1967] 2 Q.B. 864; Re Liverpool Taxi Owners' Associa­tion, [1972] 2 All E.R. 589; Ridge v. Baldwin, [1964] AC. 40; R. v. Electricity Commissioners, Ex p. London Electricity Joint Committee Co. (1920), Ltd., [1924] I K.B. 171; Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149; Nakkuda Ali v. Jayaratne, [1951] A.C. 66; R. v. London Borough of Hillingdon, Ex p. Royco Homes Ltd., [1974] 2 All E.R. 643; R. v. Barnsely Metropolitan Borough Council, Ex p. Hook, [1976] 3 All E.R. 452; In re H.K. (an infant), [1967] 2 Q.B. 617; Furnell v. Whangarei High Schools Board, [1973] A.C. 660; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12; R. v. Army Council, Ex p. Ravenscroft, [1917] 2 K.B. 504; Dawkins v. Lord Rokeby, L.R. 8 Q.B. 255; Re Armstrong and Whitehead, [197312 O.R. 495; Fraser v. Mudge, [1975] 3 All E.R. 78; Daemar v. Hall, [1978] 2 N.Z.L.R. 594; The Queen and Archer v. White, [1956] S.C.R. 154; R. v. Institutional Head of Beaver Creek Correctional Camp, Ex p. McCaud, [1969] 1 C.C.C. 371; Wolff v. McDon­nell, 418 U.S. 539 (1974); Russell v. Duke of Norfolk, [1949] 1 All E.R. 109, referred to.

APPEAL from a judgment of the Federal Court of Appeal[1] allowing the respondent Board's appeal from a judgment of Mahoney J. on an application by the appellant for a writ of certiorari under s. 18 of the Federal Court Act. Appeal allowed.

B. A. Crane, Q.C., and John Conroy, for the appellant.

T. B. Smith, Q.C., and Henry Mollot, for the respondent.

The reasons of the Chief Justice and Dickson and McIntyre JJ. were delivered by

DICKSON J.—The applicant, an inmate of a federal penitentiary in British Columbia known as Matsqui Institution, seeks an order in the nature of a writ of certiorari removing into the Trial Division of the Federal Court of Canada, for the

[Page 606]

purpose of quashing, a conviction by the Inmate Disciplinary Board of the penitentiary.

I

The appeal raises in general terms the question of the supervisory role, if any, of the Federal Court, Trial Division, in respect of disciplinary boards within Canadian penitentiaries. It also calls for consideration of three related issues of impor­tance in Canadian administrative law.

First, it compels resolution of the continuing debate concerning the review jurisdiction of the Trial Division and Court of Appeal under, respec­tively, ss. 18 and 28 of the Federal Court Act, an issue left open by this Court in earlier judgments. If the Court of Appeal lacks jurisdiction under s. 28 to entertain an application to review and set aside, then the question which must be asked, and to which this case must give the answer, is whether the impugned decision or order can be challenged by application for certiorari under s. 18 of the Act.

Second, the case calls for closer analysis of the duty to act fairly—the English "fairness doc­trine"—than has hitherto been necessary.

Third, the appeal raises the question of the potential breadth of the common law remedy of certiorari in Canada.

Helpful comment upon these several issues thus raised will be found in a number of scholarly articles. See, for example: Mullan, (1973) 23 U.T.L.J. 14; (1975) 25 U.T.L.J. 281; (L.R.C.C. 1977): Fera, (1977) 23 McGill L.J. 497; (1979) 11 Ott. L. Rev. 78: Price, (1977) 3 Queens L.J. 214: Janisch, (1977) 55 Can. Bar. Rev. 576: Evans, (1973) 36 Mod. L. Rev. 93; (1977) 23 McGill L.J. 132: Northey, (1974) N.Z.L.J. 133; (1974-5) 6 N.Z. Univ. L. Rev. 59: Taylor, (1972-3) 5 N.Z. Univ. L. Rev. 373; (1974-6) 1 Monash Univ. L. Rev. 258: Loughlin, (1978) 28 U.T.L.J. 215: Sykes and Tracey, (1975-6) 10 Melbourne Univ. L. Rev. 564.

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II

At the outset, it will be recalled that s. 18 provides that the Trial Division has exclusive origi­nal jurisdiction to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto or grant declaratory relief against any federal board, commission or other tribunal. Section 28(1) provides:

28. (1) 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, upon the ground that the board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Section 28(3) goes on to say:

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.

It has been argued that s. 18 purports to transfer jurisdiction from provincial courts to the Trial Division of the Federal Court and clothes the latter with exclusive jurisdiction to grant relief by way of certiorari against federal boards, commis­sions or other tribunals, but that s. 28 removes that jurisdiction from the Trial Division in respect of certiorari, despite the express words of s. 18. In other words, the terms of s. 28 completely exclude what s. 18 apparently granted. If that view be correct, and s. 18 is indeed sterile and without

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independent life, then a narrow reading of s. 28 will virtually deny Canadians recourse against fed­eral tribunals. It is not disputed that the Inmate Disciplinary Board of Matsqui Institution is a federal board, commission or other tribunal.

III

It is important to emphasize that the point, and the only point, in this appeal is as to jurisdiction. We are not concerned at this time with whether Martineau has a valid complaint. The only ques­tion before us is whether he has the right to have that complaint considered in the Trial Division of the Federal Court.

A detailed recital of the facts set out in the affidavits is unnecessary. Martineau and one But­ters, both inmates at Matsqui Institution, were charged with having committed two offences, (i) two inmates in a cell, and (ii) committing an indecent act (homosexual). The offences were categorized as "flagrant or serious", and thus were referred to a staff disciplinary board (assistant director of security, a security guard, and a living unit officer) for a hearing of the charges.

Martineau pleaded guilty to the first charge. On the second charge he was found guilty of the lesser offence of being in an indecent position and was sentenced to the special corrections unit (punitive isolation) for fifteen days on a restricted diet and loss of privileges. He challenged the conviction, relying upon Directive No. 213 of the Commis­sioner of Penitentiaries (issued pursuant to ss. 29(3) of the Penitentiary Act, R.S.C. 1970, c. P-6 and ss. 2.28, 2.29, 2.30 and 2.31 of the Penitentia­ry Service Regulations). Section 13(c) of the Directive provides that no finding shall be made against an inmate for a serious or flagrant offence unless (i) he has received written notice of the charge and a summary of the evidence alleged against him at least 24 hours before the hearing, (ii) he has appeared personally at the hearing so that the evidence against him is given in his pres­ence, and (iii) he has been given an opportunity to make full answer and defence to the charge. Martineau

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alleges a number of departures from these procedural safeguards. He says that neither he, nor anyone representing him, was permitted to be present when the disciplinary board heard evidence from the person alleged to have participated with him in the offence of which he was convicted. In essence his claim is grounded upon a breach of procedural fairness on the part of the disciplinary board.

So far as I have been able to determine, there is no provision for appeal to a higher authority by an inmate who feels aggrieved by a conviction or sentence of the disciplinary board.

IV

Faced with the difficult and uncertain language of ss. 18 and 28 of the Federal Court Act, Mar­tineau launched proceedings in both the Federal Court of Appeal and in the Trial Division of that Court. The Federal Court of Appeal before whom the matter first came on a s. 28 application, by a majority, dismissed the application for lack of jurisdiction ([1976] 2 F.C. 198). This Court, by a majority, dismissed the further appeal: Martineau and Butters v. The Matsqui Institution Inmate Disciplinary Board[2] (hereinafter referred to as Martineau (No. 1)). The Court held that the impugned order. was not within the scope of the opening words of s. 28 of the Federal Court Act and that the Directive of the Commissioner of Penitentiaries was not "law" within the meaning of the phrase "by law" in s. 28.

Unsuccessful in his challenge by way of the Federal Court of Appeal, Martineau resumed the proceedings, temporarily held in abeyance, which. he had commenced in the Trial Division of the Federal Court. Mr. Justice Mahoney of the Trial Division, by agreement, heard an application by Martineau under Federal Court Rule 474 for pre­liminary determination of a question of law: namely, whether or not the Federal Court, Trial

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Division, had jurisdiction in the circumstances. His conclusion ([1978] 1 F.C. 312, at 318-9):

I take it that in Canada, in 1975, a public body, such as the respondent, authorized by law to impose a punishment, that was more than a mere denial of privileges, had a duty to act fairly in arriving at its decision to impose the punishment. Any other conclusion would be repugnant. The circumstances disclosed in this applica­tion would appear to be appropriate to the remedy sought. I am not, of course, deciding whether the remedy should be granted but merely whether it could be granted by the Federal Court of Canada, Trial Division. In my view it could.

In Magrath v. The Queen[3], Collier J. of the Federal Court, Trial Division, agreed with the observations and conclusions of Mahoney J. in the Martineau case.

Shortly thereafter, however, Chief Justice Jack­ett gave judgment for a unanimous Federal Court of Appeal ([1978] 2 F.C. 637) allowing an appeal from the judgment of Mahoney J. in the Trial Division. The reasons of the Court are brief but amplified in footnotes and in an Appendix. This Court is taken to have decided in Martineau (No. 1) that the Appeal Division of the Federal Court lacked jurisdiction because "the 'convictions' were administrative decisions that were 'not required by law to be made on a judicial or quasi-judicial basis". It followed, in the view of the Federal Court of Appeal, that the "convictions" could not be attacked under s. 18 of the Federal Court Act by a writ of certiorari. The Court recognized that the ambit of certiorari has expanded from the time it was a writ whose sole function was to enable a superior court of law to review decisions of inferior courts of law. In the view of the Court, however, the writ continues to have application only where the decision attacked is either judicial in character, or is required by law to be made on a judicial or quasi-judicial basis. The conclusion of the Court is expressed in these words:

When we read ss. 18 and 28 of the Federal Court Act, we cannot escape the conclusion that the words "quasi-judicial basis" were intended to include every method of

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reaching a decision or order that would support an application by way of certiorari other than a purely "judicial ... basis". (p. 640)

The Appendix to the judgment reveals the basis for the Court's reading of Martineau (No. 1). If "quasi-judicial" in s. 28 is regarded as delimiting the range of decisions to which the "fairness" doctrine may apply, then should jurisdiction be lacking under s. 28, a remedy of certiorari grounded upon the fairness doctrine cannot avail an applicant under s. 18. With great respect, in my view, this Court's decisions in Howarth v. National Parole Board[4], and Martineau (No. l), and the Court's recent judgment in Nicholson v. Haldi­mand-Norfolk Regional Board of Commissioners of Police[5] (which post-dates the judgment of the Federal Court of Appeal in these proceedings) indicate a different approach. Particularly, the judgment in Nicholson betokens a significant de­velopment in our administrative law in its adoption of the English case authorities on the fairness doctrine.

V

Howarth brought to the fore a difference in perception of the relationship between ss. 18 and 28 of the Federal Court Act. The minority indicat­ed a desire to read the new s. 28 application to review and set aside as a remedy at least as broad as, if not broader than, certiorari, primarily by means of an expansive view of "decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis". The majority view, however, began with the premise that "s. 28 of the Federal Court Act operates as an exception to the general provision of s. 18, whereby supervisory jurisdiction over federal boards is wholly transferred from the superior courts of the provinces to the Trial Division of the Federal Court ...". Accordingly, "the new remedy created by s. 28 is restricted in its application to judicial decisions or to administrative orders required by law to be made on a judicial or quasi-judicial basis". Because of their importance in the resolution

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of the present appeal, I must quote in extenso from the judgment of Mr. Justice Pigeon, speaking for a majority of the Court in Howarth:

It will be seen that while supervisory jurisdiction over federal boards is conferred generally upon the Trial Division without any restriction as to the nature of the decision under consideration, the new remedy created by s. 28 is restricted to its application to judicial decisions or to administrative orders required by law to be made on a judicial or quasi-judicial basis. It is only in respect of such decisions or orders that the new remedy equivalent to an appeal is made available. Thus, the clear effect of the combination of ss. 18 and 28 is that a distinction is made between two classes of orders of federal boards. Those that, for brevity, I will call judi­cial or quasi-judicial decisions are subject to s. 28 and the Federal Court of Appeal has wide powers of review over them. The other class of decisions comprises those of an administrative nature not required by law to be made on a judicial or quasi-judicial basis. With respect to that second class, the new remedy of s. 28, the kind of appeal to the Appeal Division, is not available, but all the other remedies, all the common law remedies, remain unchanged by the Federal Court Act. The only difference is that the jurisdiction is no longer exercisable by the superior courts of the provinces, but only by the Trial Division of the Federal Court. The very fact that such a distinction is made shows that the s. 28 applica­tion is not intended to be available against all adminis­trative board decisions.

The reason I am stressing this point is that in argu­ment, Counsel for the appellant relied mainly on cases dealing with the duty of fairness lying upon all adminis­trative agencies, in the context of various common law remedies. These are, in my view, completely irrelevant in the present case because a s. 28 application is an excep­tion to s. 18 and leaves intact all the common law remedies in the cases in which it is without application. The Federal Court of Appeal did not consider, in quash­ing the application, whether the Parole Board order could be questioned in proceedings before the Trial Division. (pp. 471-2)

Thus Howarth distinguishes between s. 18 and s. 28 review jurisdiction in the Federal Court, the new remedy under s. 28 not being exhaustive of

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Federal Court jurisdiction to review federal gov­ernment action. The consequence, as Mr. Justice Pigeon puts it, is that under the Federal Court Act "a distinction is made between two classes of orders of federal boards".

Further, a distinction is clearly drawn between the duty to act judicially and the duty to act fairly. Pigeon J. rejects the argument that a duty to act fairly is relevant to the question of jurisdiction under s. 28, but the relevance of such an argument in the context of s. 18 is expressly left open.

The duty to act fairly was alluded to by Mr. Justice Spence, speaking on behalf of the full Court in Minister of Manpower and Immigration v. Hardayal[6], at p. 479. He said: "It is true that in exercising what, in my view, is an administrative power, the Minister is required to act fairly and for a proper motive and his failure to do so might well give rise to a right of the person affected to take proceedings under s. 18 (a) of the Federal Court Act ...". See also Roper v. Executive of Medical Board of Royal Victoria Hospital[7], at p. 67.

Martineau (No. 1) was wholly unconcerned with the issue of "fairness". The central issue there was whether the decision of the disciplinary board was within the scope of s. 28 as being "required by law to be made on a judicial or quasi-judicial basis".

Mr. Justice Pigeon, again speaking for a majori­ty of the Court, considered the question whether the directive of the Commissioner was to be regarded as "law" within the wording of s. 28 and concluded that, while Regulations under the Peni­tentiary Act were law, the same could not be said of the directives ... "It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity."

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In the case of an inmate disciplinary board, the directive of the Commissioner lacks statutory force and, by implication then, Parliament did not intend the directive to have status as a procedural code defining rules of natural justice exhaustively for the board. Accordingly, the decision in ques­tion was not one required by law to be made on a judicial or quasi-judicial basis, and the applicant had not brought himself within the precise lan­guage of s. 28. That does not, however, determine the relevant question of a certiorari application under s. 18, where the inquiry is whether the public body may have a duty to act fairly in the broader, non-technical manner suggested in R. v. Board of Visitors of Hull Prison, Ex p. St. Germain[8].

The reasoning of the Court in Martineau (No. 1) is instructive on this point. Mr. Justice Pigeon, while denying that the directive was a "procedural code", also rejected the suggestion that mere fair­ness in its "good faith" sense, as employed by the Federal Court of Appeal fulfils the obligation of the board:

With respect, I find it difficult to agree with the view that Directive No. 213 merely requires that a discipli­nary decision such as the impugned order be made fairly and justly. (p. 127)

Implicitly, then, the majority in Martineau (No. 1) accepted a measure of procedural content in a duty of fairness resting upon the board—some­thing more than the absolute minimum of "good faith", but something less than strict application of the procedure set forth in the directive.

The Matsqui Institution Disciplinary Board, respondent in this appeal, has cited the following passage from the judgment of this Court in Minister of National Revenue v. Coopers and Lybrand[9], in support of the contention that non-reviewability under s. 28 forecloses review by writ of certiorari under s. 18:

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Accordingly, administrative decisions must be divided between those which are reviewable, by certiorari or by s. 28 application or otherwise, and those which are non-reviewable. The former are conveniently labelled "decisions or orders of an administrative nature required by law to be made on a judicial or quasi-judicial basis", the latter "decisions or orders not required by law to be made on a judicial or quasi-judicial basis." It is not only the decision to which attention must be directed, but also the process by which the decision is reached. (p. 501)

The issues to which Coopers and Lybrand was directed relate to the classification of decisions eligible for review under s. 28 of the Federal Court Act, the very classification process with which the Court was concerned in Howarth and Martineau (No. 1). This is implicitly recognized by mention of both cases in Coopers and Lybrand. If anything pertinent to the present discussion is suggested by the latter judgment, it is that "administrative deci­sion does not lend itself to rigid classification of functions". As such, it has no direct application to the new and broader territory, unhindered by exi­gencies of classification, that is now opened by evolution of the common law doctrine of fairness enforced by the common law remedies, including certiorari.

Restrictive reading of s. 28 of the Federal Court Act need not, of necessity, lead to a reduction in the ambit for judicial review of federal government action. Section 18 is available. Section 28 has caused difficulties, not only because of the lan­guage in which it is cast but, equally, because it tended to crystallize the law of judicial review at a time when significant changes were occurring in other countries with respect to the scope and grounds for review. Sections 18 and 28 of the Federal Court Act were obviously intended to concentrate judicial review of federal tribunals in a single federal court. As I read the Act, Parliament envisaged an extended scope for review. I am therefore averse to giving the Act a reading which would defeat that intention and posit a diminished scope for relief from the actions of federal tri­bunals. I simply cannot accept the view that Par­liament intended to remove the old common law remedies, including certiorari, from the provincial

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superior courts, and vest them in the Trial Division of the Federal Court, only to have those remedies rendered barren through the interaction of ss. 18 and 28 of the Act. I would apply the principle laid down by Brett L.J. in Reg. v. Local Government Board[10], at p. 321, that the jurisdiction of a court ought to be exercised widely when dealing with matters perhaps not strictly judicial, but in which the rights or interests of citizens are affected.

VI

The dominant characteristic of recent develop­ments in English administrative law has been expansion of judicial review jurisdiction to supervise administrative action by public authorities. Certiorari evolved as a flexible remedy, affording access to judicial supervision in new and changing situations. In 1700, Chief Justice Holt could say, in The Case of Cardiffe Bridge[11], "wherever any new jurisdiction is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus". And in Groenwelt v. Burwell[12] Holt C.J. held again, in the context of the censors of the College of Physicians of London, that "it is plain that the censors have judicial power ... where a man has power to inflict impris­onment upon another for punishment of his offence, there he hath judicial authority ... for it is a consequence of all jurisdictions to have their proceedings returned here by certiorari to be examined here ... . Where any Court is erected by statute, a certiorari lies to it." Nor has percep­tion of certiorari an as adaptable remedy been in any way modified. The amplitude of the writ has been affirmed time and again. See, for example, the judgment of Lord Parker L.J. in R. v. Crimi­nal Injuries Compensation Board, Ex p. Lain[13], at p. 882.

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The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet chang­ing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty.

Roskill L.J. in Re Liverpool Taxi Owners' Association[14], at p. 596, expressed the thought in these words:

The long legal history of the former prerogative writs and of their modern counterparts, the orders of prohibi­tion, mandamus and certiorari shows that their applica­tion has always been flexible as the need for their use in differing social conditions down the centuries had changed. (p. 596)

The principles of natural justice and fairness have matured in recent years. And the writ of certiorari, in like measure, has developed apace. The speeches in Ridge v. Baldwin[15] show the evolutionary state of administrative law.

VII

Does certiorari lie to the Inmate Disciplinary Board? The usual starting point in a discussion of this nature is the "Electricity Commissioners" for­mula, found at p. 205 of R. v. Electricity Commis­sionners, Ex p. London Electricity Joint Committee Company (1920), Limited[16], where Atkin L.J. had this to say

Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.

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Difficulty has arisen from the statement of Atkin L.J., in part from the fact that his words have been treated as if they had been engraven in stone, and in part because it is not clear what Atkin L.J. meant. How far, if at all, did he mean to limit the use of orders for certiorari and prohibition by the phrase "and having the duty to act judicially"? What did he mean by "judicially" in the context? It will be recalled that in the Electricity Commis­sioner case itself certiorari and prohibition issued to a group of administrators who were acting far more as part of the legislative than of the judicial process.

"Rights of Subjects"

The term "rights of subjects" has given concern, often being treated by courts as the sine qua non of jurisdiction to permit review. There has been an unfortunate tendency to treat "rights" in the narrow sense of rights to which correlative legal duties attach. In this sense, "rights" are frequently contrasted with "privileges", in the mistaken belief that only the former can ground judicial review of the decision-maker's actions. Lain is invaluable on this branch of Lord Atkin's test.

There the absence of any legal right on the part of the claimants to ex gratia payments from the criminal injuries compensation board would seem to pose an insuperable obstacle, but Ashworth J. disposed of this impediment without trouble and in broadest language:

For my part, I doubt whether Atkin L.J. was propound­ing an all-embracing definition of the circumstances in which relief by way of certiorari would lie. In my judgment the words in question read in the context of what precedes and follows them, would be of no less value if they were altered by omitting "the rights of" so as to become "affecting subjects". (p. 892)

Lord Denning aptly summarized the state of the law on this aspect in Schmidt v. Secretary of State for Home Affairs[17]. There, the Master of the Rolls stated:

[Page 619]

The speeches in Ridge v. Baldwin ... show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. (p. 170)

Professor Wade, in his book on Administrative Law (4th ed. 1977), has captured the relevance of this requirement of the test in this passage:

This requirement is really correlative to the idea of legal power, the exercise of which necessarily affects some person's legal rights, status or situation. The pri­mary object of certiorari and prohibition is to make the machinery of government operate properly in the public interest, rather than to prevent private rights ... The requirement of a decision 'affecting rights' is not therefore a limiting factor; it is rather an automatic conse­quence of the fact that power is being exercised. (pp. 541-2)

When concerned with individual cases and aggrieved persons, there is the tendency to forget that one is dealing with public law remedies, which, when granted by the courts, not only set aright individual injustice, but also ensure that public bodies exercising powers affecting citizens heed the jurisdiction granted them. Certiorari stems from the assumption by the courts of super­visory powers over certain tribunals in order to assure the proper functioning of the machinery of government. To give a narrow or technical inter­pretation to "rights" in an individual sense is to misconceive the broader purpose of judicial review of administrative action. One should, I suggest, begin with the premise that any public body exer­cising power over subjects may be amenable to judicial supervision, the individual interest involved being but one factor to be considered in resolving the broad policy question of the nature of review appropriate for the particular administra­tive body.

"Duty to Act Judicially"

Prior to the decision in Ridge v. Baldwin, it was generally accepted that certiorari would only be

[Page 620]

granted when the nature of the process by which the decision was arrived at was a judicial process or a process analogous to the judicial process: Nakkuda All v. Jayaratne[18]. This notion of a "super-added duty to act judicially", as a separate and independent pre-condition to the availability of natural justice, and inferentially, to recourse to certiorari, was unequivocally rejected by Lord Reid in Ridge:

If Lord Hewart meant that it is never enough that a body simply has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities. (p. 75)

In the Electricity Commissioners case itself, Lord Reid observed, the judicial element was inferred from the nature of the power.

Perhaps the best expression of the significance of the decision in Ridge v. Baldwin is found in the reasons of Lord Widgery C.J. in R. v. London Borough of Hillingdon, Ex p. Royco Homes Ltd.[19], wherein he considered the availability of certiorari to review the grant of a planning permis­sion by a local authority:

Accordingly it may be that previous efforts to use certiorari in this field have been deterred by Atkin L.J.'s reference to its being necessary for the body affected to have the duty to act judicially. If that is so, that reason for reticence on the part of applicants was, I think, put an end to in the House of Lords in Ridge v. Baldwin .. . in the course of his speech Lord Reid made reference to that oft quoted dictum of Atkin L.J. and pointed out that the additional requirement of the body being under a duty to act judicially was not supported by authority. Accordingly, it seems to me now that that obstacle, if obstacle it was, has been cleared away and I can see no reason for this court holding otherwise than that there is power in appropriate cases for the use of the prerogative orders to control the activity of a local planning authority.

A flexible attitude toward the potential applica­tion of certiorari was furthered in another recent English case, this one in the Court of Appeal, in R. v. Barnsely Metropolitan Borough Council, Ex p. Hook[20].

[Page 621]

In a habeas corpus case, In re H.K. (an infant)[21], Lord Parker was of the opinion that the immigration officers who refused to admit a boy into the United Kingdom were acting in an administrative and not in a judicial or quasi-judi­cial capacity: nevertheless, he held they must act honestly and fairly, otherwise their decision could be questioned by certiorari. And in the Liverpool Taxi Owners' case, supra, Roskill L.J. spoke of the power of the courts to intervene in a suitable case when the function was administrative and not judicial or quasi-judicial:

The power of the court to intervene is not limited, as once was thought, to those cases where the function in question is judicial or quasi-judicial. The modern cases show that this court will intervene more widely than in the past. Even where the function is said to be adminis­trative, the court will not hesitate to intervene in a suitable case if it is necessary in order to secure fairness. (p. 596)

Then there is the well-known passage in the speech of Lord Morris of Borth-y-Gest in Furnell v. Whangarei High Schools Board[22], speaking for a Privy Council majority of three:... "Natural justice is but fairness writ large and juridically. It has been described as 'fair play in action'. Nor is it a leaven to be associated only with judicial or quasi-judicial occasions." (p. 679) In the same case, the penultimate paragraph from the speech of Viscount Dilhorne and Lord Reid, dissenting, reads:

It is not in this case necessary to decide whether the function of the sub-committee is to be described as judicial, quasi-judicial or administrative. I am inclined to think that it is at least quasi-judicial, but if it be administrative, it was the duty of the sub-committee before they condemned or criticised Mr. Furnell "to give him a fair opportunity of commenting or contradicting what is said against him". That they did not do. (p. 691)

[Page 622]

Professor John Evans, writing in (1977) 23 McGill L.J. 132, at pp. 134-5, has noted:

Recent English decisions have severed the availability of certiorari and prohibition from the requirement that the body must act "judicially" in the sense that it is bound by the rules of natural justice. It may be concluded, therefore, that there is nothing in the judgment of Pigeon J. [in Howarth] to prevent the Trial Division from quashing decisions of a "purely administrative" nature or from developing procedural requirements derived from the "duty to act fairly".

In the view of another commentator, Professor Jones (1975) 21 McGill Law Journal 434, at p. 438:

Certainly in England and in most other parts of the Commonwealth, the requirement for judicial review that the exercise of a statutory power must not only affect the rights of a subject, but also be subject to a superad­ded duty to act judicially, is now thoroughly discredited. In other words, the ratio of Nakkuda Ali v. Jayaratne in the Privy Council—and hence, one would have thought, of Calgary Power v, Copithorne in the Supreme Court of Canada—is no longer good law.

The authorities to which I have referred indicate that the application of a duty of fairness with procedural content does not depend upon proof of a judicial or quasi-judicial function. Even though the function is analytically administrative, courts may intervene in a suitable case.

In the case at bar, the disciplinary board was not under either an express or implied duty to follow a judicial type of procedure, but the board was obliged to find facts affecting a subject and to exercise a form of discretion in pronouncing judg­ment and penalty. Moreover, the board's decision had the effect of depriving an individual of his liberty by committing him to a "prison within a prison". In these circumstances, elementary justice requires some procedural protection. The rule of law must run within penitentiary walls.

In my opinion, certiorari avails as a remedy wherever a public body has power to decide any

[Page 623]

matter affecting the rights, interests, property, privileges, or liberties of any person.

VIII

"Fairness"

The approach taken to the "fairness" doctrine by the Court in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, supra, notably its differentiation from traditional natural justice, permits one to dispense with clas­sification as a precondition to the availability of certiorari. Conceptually, there is much to be said against such a differentiation between traditional natural justice and procedural fairness, but if one is forced to cast judicial review in traditional classification terms, as is the case under the Fed­eral Court Act, there can be no doubt that proce­dural fairness extends well beyond the realm of the judicial and quasi-judicial, as commonly understood.

Once one moves from the strictures of s. 28 of the Federal Court Act, the judgment in Nicholson permits departure from the rigidity of classifica­tion of functions for the purposes of procedural safeguards. In finding that a duty of fairness rested upon the Police Commissioners in a dismis­sal case, Chief Justice Laskin, speaking for a majority of the Court, employed the English fair­ness cases to import that duty. While the cases were there used to establish minimal protection for the constable under The Judicial Review Proce­dure Act, 1971 (Ont.), c. 48, the same cases have been employed in England to extend the reach of certiorari to decisions not strictly judicial or quasi-judicial. After referring to the emergence of a notion of fairness "involving something less than the procedural protection of traditional natural justice", the Chief Justice had this to say:

What rightly lies behind this emergence is the realiza­tion that the classification of statutory functions as judicial, quasi-judicial or administrative is often very difficult, to say the least; and to endow some with procedural protection while denying others any at all would work injustice when the results of statutory deci­sions raise the same serious consequences for those

[Page 624]

adversely affected, regardless of the classification of the function in question: see, generally, Mullan, Fairness: The New Natural Justice (1975), 25 Univ. of Tor. L.J. 281. (p. 325)

The Chief Justice also quoted a passage from Lord Denning's judgment in Selvarajan v. Race Relations Board[23], in which the Master of the Rolls summed up his earlier decisions and formu­lated the "fundamental rule":

that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. (p. 19)

Of particular interest in the passage is the absence of reference to "rights". The imprecise "rights/ privileges" dichotomy is utterly ignored.

IX

One matter remains—the so-called "disciplinary exception". There are authorities (see R. v. Army Council, Ex p. Ravenscroft[24]; Dawkins v. Lord Rokeby[25]; Re Armstrong and Whitehead[26]) which hold that review by way of certiorari does not go to a body such as the armed services, police, or firemen, with its own form of private discipline and its own rules. Relying on this analogy, it is contended that disciplinary powers are beyond ju­dicial control and that this extends to prison disci­pline. I do not agree.

In Fraser v. Mudge[27], it was held that the English Prison Act 1952, requiring the Home Secretary to give an inmate charged with an offence a proper opportunity of presenting his case, did not entitle the inmate to legal representa­tion at the hearing, but Lord Denning M.R. observed that those who heard the case had the duty to act fairly. Judicial review was not

[Page 625]

precluded.

There is the more recent case of R. v. Board of Visitors of Hull Prison, Ex p. St. Germain, supra. The central issue in that case was whether certio­rari would go to quash a disciplinary decision of a board of visitors, the duties of which embraced inquiry into charges against inmates. The Divisional Court found that disciplinary procedures within the prison were judicial but invoked the "discipli­nary exception", and held that the actions of the board' of visitors were not amenable to the review by way of certiorari. A unanimous Court of Appeal disagreed, however, holding that adjudica­tion by boards of visitors in prisons were, indeed, amenable to certiorari. The Court rejected the submission that prisoners have no legally enforceable rights. Megaw L.J. concluded that the observ­ance of procedural fairness in prisons is properly a subject for review. Shaw L.J. held that despite deprivation of his general liberty a prisoner remains invested with residuary rights appertain­ing to the nature and conduct of his incarceration. Waller L.J. accepted the proposition of Lord Reid in Ridge v. Baldwin that deprivation of rights or privileges are equally important and applied that proposition to the context of prison discipline.

Another case of interest is Daemar v. Hall[28], a decision of the New Zealand Supreme Court, relied upon by the Court of Appeal in Hull Prison. Daemar had been tried by a visiting justice, and sentenced to four days' loss of remission. It was argued that the decision was not subject to judicial review under the Judicature Amendment Act 1972, as certiorari would not lie to such a discipli­nary decision. McMullin J. reviewed the authori­ties at length, 'including the Canadian decisions of The Queen and Archer v. White[29]; Martineau (No. 1), and Regina v. Institutional Head of Beaver Creek Correctional Camp, Ex. p. McCaud[30].

[Page 626]

McMullin J. exercised his discretion in favour of the prisoner, commenting that the loss of four days' remission was not a "trifle", but "tan­tamount to the imposition of an extra four days imprisonment at the end of a sentence". As in Hull Prison, this decision is based upon a finding that the visiting justice was acting in a judicial capacity and that the Regulations were a proce­dural code, any breach of which constituted a breach of natural justice in the circumstances. Both of these conclusions are foreclosed in the case at bar by the decision in Martineau (No. 1). Hull Prison and Daemar are important, however, as supporting the view that there is no domestic "discipline" exception to the scope of certiorari.

The case of The Queen and Archer v. White, supra, must also be noted. White, a constable, was convicted by Archer, a police superintendent, of four disciplinary charges laid under s. 30 of the Royal Canadian Mounted Police Act, R.S.C. 1952, c. 241. He applied for certiorari. The trial judge denied the writ. He was reversed on appeal. The decision of the Court of Appeal for British Columbia was reversed in this Court. Rand J., delivering judgment on the part of four members of the Court, likened the Force to the Army, saying:

From the beginning it has been stamped with character­istics of the Army; the mode of organization, its barrack life, the uniform, address and bearing of the members, esprit de corps and discipline. (p. 158)

He then referred to the engagement for a term of service not exceeding five years upon which one entered on becoming a member of the Force. Parenthetically, this notion of contractual commitment to rules of internal discipline, a sort of volens, is sometimes advanced in support of the argument for a disciplinary exception. Whatever may be the force of that argument in other contexts, it is wholly inapplicable in a prison environment.

[Page 627]

The Federal Court of Appeal in Martineau (No. 1) relied upon The Queen and Archer v. White in holding that "disciplinary decisions" were not amenable to review by way of s. 28 application. There can be no doubt that all members of this Court in The Queen and Archer v. White held that, in the circumstances, certiorari would not lie to the domestic disciplinary decision of the R.C.M.P. superintendent. As I read the case, however, Rand J. does not rule out the possibility of certiorari in a suitable case. He regarded the internal code as prima facie the exclusive means by which discipline would be enforced, but in the passage quoted hereunder he appears to have rec­ognized three exceptions: (i) where the powers are abused to such a degree as to put action beyond the purview of the statute, (ii) the action is itself unauthorized, or (iii) the proceedings infringe those underlying principles of judicial process deemed annexed to legislation unless excluded by its implications. Natural justice and fairness are principles of judicial process deemed by the common law to be annexed to legislation, with a view to bringing statutory provisions into conform­ity with the common law requirements of justice. The passage to which I refer reads as follows:

Parliament has specified the punishable breaches of discipline and has equipped the Force with its own courts for dealing with them and it needs no amplifica­tion to demonstrate the object of that investment. Such a code is prima facie to be looked upon as being the exclusive means by which this particular purpose is to be attained. Unless, therefore, the powers given are abused to such a degree as puts action taken beyond the purview of the statute or unless the action is itself unauthor­ized, that internal management is not to be interfered with by any superior court in exercise of its long estab­lished supervisory jurisdiction over inferior tribunals. The question, therefore, is whether or not in the applica­tion made before Wood J., including the materials fur­nished by affidavit, anything has been alleged and supported by evidence to show that the proceedings infringed or were outside the authority of either the statute or those underlying principles of judicial process to be deemed annexed to legislation unless excluded by its implications. (p. 159)

[Page 628]

The Supreme Court of the United States in Wolff v. McDonnell[31], was called upon to consider what "due process", assured by the Fourteenth Amendment of the American Constitution, required in a prison setting. The Court, speaking through Mr. Justice White, held that where the prisoner was in peril of losing good time, or being placed in solitary confinement, he was entitled to written notice of the charge and a statement of fact findings and to call witnesses and present documentary evidence where it would not be unduly hazardous to institutional safety or correc­tional goals. However, there was no constitutional right to confront and cross-examine witnesses or to counsel.

It seems clear that although the courts will not readily interfere in the exercise of disciplinary powers, whether within the armed services, the police force or the penitentiary, there is no rule of law which necessarily exempts the exercise of such disciplinary powers from review by certiorari.

X

The authorities, in my view, support the follow­ing conclusions:

1. Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers.

2. A purely ministerial decision, on broad grounds of public policy, will typically afford the individual no procedural protection, and any attack upon such a decision will have to be founded upon abuse of discretion. Similarly, public bodies exercising legislative functions may not be amenable to judicial supervision. On the other hand, a function that approaches the judicial end

[Page 629]

of the spectrum will entail substantial procedural safeguards. Between the judicial decisions and those which are discretionary and policy-oriented will be found a myriad decision-making processes with a flexible gradation of procedural fairness through the administrative spectrum. That is what emerges from the decision of this Court in Nicholson. In these cases, an applicant may obtain cer­tiorari to enforce a breach of the duty of proce­dural fairness.

3. Section 28 of the Federal Court Act, that statutory right of review compels continuance of the classification process in the Federal Court of Appeal, with clear outer limits imposed on the notion of "judicial or quasi-judicial". No such limitation is imported in the language of s. 18, which simply refers to certiorari, and is therefore capable of expansion consistent with the movement of the common law away from rigidity in respect of the prerogative writs. The fact that a decision-maker does not have a duty to act judicially, with observance of formal procedure which that charac­terization entails, does not mean that there may not be a duty to act fairly which involves importing something less than the full panoply of conventional natural justice rules. In general, courts ought not to seek to distinguish between the two con­cepts, for the drawing of a distinction between a duty to act fairly, and a duty to act in accordance with the rules of natural justice, yields an unwieldy conceptual framework. The Federal Court Act, however, compels classification for review of feder­al decision-makers.

4. An inmate disciplinary board is not a court. It is a tribunal which has to decide rights after hearing evidence. Even though the board is not obliged, in discharging what is essentially an administrative task, to conduct a judicial proceed­ing, observing the procedural and evidential rules of a court of law, it is, nonetheless, subject to a duty of fairness and a person aggrieved through breach of that duty is entitled to seek relief from

[Page 630]

the Federal Court, Trial Division, on an applica­tion for certiorari.

5. It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates.

6. A widening of the ambit of certiorari beyond that of a s. 28 application will undoubtedly, at times, present a problem in determining whether to commence proceedings in the Court of Appeal or in the Trial Division. However, the quandary of two possible forums is not less regrettable than complete lack of access to the Federal Court.

7. It is wrong, in my view, to regard natural justice and fairness as distinct and separate stand­ards and to seek to define the procedural content of each. In Nicholson, the Chief Justice spoke of a " ... notion of fairness involving something less than the procedural protection of the traditional natural justice". Fairness involves compliance with only some of the principles of natural justice. Professor de Smith (3rd ed. 1973, p. 208) expressed lucidly the concept of a duty to act fairly:

In general it means a duty to observe the rudiments of natural justice for a limited purpose in the exercise of functions that are not analytically judicial but administrative.

The content of the principles of natural justice and fairness in application to the individual cases will vary according to the circumstances of each case, as recognized by Tucker L. J. in Russell v. Duke of Norfolk[32],

[Page 631]

at p. 118.

8. In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved? It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and with fairness.

XI

I would allow the appeal, set aside the judgment of the Federal Court of Appeal, and restore the judgment of Mr. Justice Mahoney of the Federal Court, Trial Division. There should be no costs in this Court nor in the Federal Court of Appeal.

The judgment of Martland, Ritchie, Pigeon, Beetz, Estey and Pratte JJ. was delivered by

PIGEON J.—For a disciplinary offence dealt with as "flagrant or serious", the appellant was sentenced to fifteen days in the special corrections unit of the institution in which he is held pursuant to the Penitentiary Act. He made applications to the Federal Court for certiorari in the Trial Divi­sion and for judicial review under s. 28 of the Federal Court Act before the Court of Appeal. This application was dealt with first while the other was kept pending. It was dismissed by the Federal Court of Appeal[33] and this dismissal was affirmed by a majority in this court[34].

In view of the wording of s. 28, the affirmation of the denial of judicial review means that it was determined that the disciplinary sentence in ques­tion was "a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis". The reasons of the majority, except one judge who agreed with the reasons of the Court of Appeal, show that, in their view, the "Directives" governing the procedure for

[Page 632]

dealing with disciplinary offences were considered to be administrative directions rather than "law", although the Regulations defining disciplinary offences and specifying the penalties that may be inflicted by the penitentiary authorities were in the nature of law.

After the judgment of this Court proceedings were resumed on the application for certiorari in the Trial Division. The parties appeared before Mahoney J. who issued an Order that the Court had jurisdiction[35]. At the outset of his reasons, he said (at p. 313):

By agreement, this is deemed to be an application by the applicant, Robert Thomas Martineau, under Rule 474 of the Rules of this Court for a preliminary determi­nation of a question of law: namely, whether or not the Federal Court of Canada, Trial Division, has jurisdic­tion to grant relief by way of certiorari in the circumstances.

Having quoted s. 18 of the Federal Court Act, subss. 29(l) and (2) of the Penitentiary Act and relevant parts of ss. 2.28 and 2.29 of the Peniten­tiary Service Regulations, he went on to say (at pp. 315-317):

I take it that the jurisdiction to grant the relief sought depends upon the material in support of the application disclosing that some right of the applicant has been abridged or denied. A punishment consisting only of a "loss of privileges" would not, by definition, involve a denial or abridgement of any right. The liability to forfeiture of statutory remission when an inmate "is convicted in disciplinary court of any disciplinary offence" is expressly provided by subsection 22(3) of the Act. The liability to dissociation as punishment depends entirely on the regulation made by authority of section 29 of the Act. With respect to that authority, it was not argued that subsection 29(2) of the Act is to be con­strued as not authorizing the inclusion of a penalty for its violation in a regulation made under paragraph 29(l)(6) and that, therefore, regulations made by au­thority of paragraph 29(1)(b) are not "law".

[Page 633]

The disciplinary offences of which the appellant was convicted were created by law. The punishment imposed was authorized by law. The law required that, as a precondition to the imposition of the punishment, he be "convicted" of the offence. I am mindful of, and accept, the caveat of Chief Justice Jackett not to place too much significance on the fact that the phraseology of criminal proceedings is imported into the regulations. Neverthe­less, it is manifest that the law envisages some process by which an inmate is to be determined to have commit­ted a disciplinary offence, prescribed by law, as a condi­tion precedent to the imposition of a punishment, also prescribed by law. The law, the statute and regulations which prescribe both offence and punishment, is silent as to the process.

Finally, after quoting from the reasons of the majority in Howarth v. National Parole Board[36], he said (at pp. 318-319):

I take it that in Canada, in 1975, a public body, such as the respondent, authorized by law to impose a punishment, that was more than a mere denial of privileges, had a duty to act fairly in arriving at its decision to impose the punishment. Any other conclusion would be repugnant. The circumstances disclosed in this applica­tion would appear to be appropriate to the remedy sought. I am not, of course, deciding whether the remedy should be granted but merely whether it could be granted by the Federal Court of Canada, Trial Division. In my view it could.

This judgment was reversed in the Federal Court of Appeal[37]. The ratio of this decision appears to be in these three paragraphs (on pp. 638-639):

The originating notice of motion relates to "convic­tions" that were the subjet [sic] of a section 28 application to this Court as a result of which it was decided by the Supreme Court of Canada that this Court had no jurisdiction under that section because, as we understand that decision, the "convictions" were administra­tive decisions that were "not required by law to be made on a judicial or quasi-judicial basis" within the meaning of those words in that section.

In our view, it follows from that decision that the "convictions" in question cannot be attacked under sec­tion 18 of the Federal Court Act by a writ of certiorari

[Page 634]

or proceedings for relief in the nature of that contem­plated by such a writ.

While the ambit of certiorari has expanded over the period that has elapsed since it was a writ whose sole function was to enable a superior court of law to review decisions of inferior courts of law, in our opinion, it continues to have application only where the decision attacked is either judicial in character or is required by law to be made on a judicial or quasi-judicial basis. We have not been referred to any decision to the contrary.

(Foot-notes omitted)

From these quotations it is apparent that the reason for which the Federal Court of Appeal reversed the judgment of the Trial Division is that it did not accept that the common law remedy of certiorari may be available in the case of violation of the duty to act fairly in an administrative decision "not required by law to be made on a judicial or quasi-judicial basis". A foot-note on p. 639 ends with this sentence:

... Any decision that is not judicial but is "sufficiently near a judicial decision to be the subject of a writ of certiorari" is, in our view, a decision that is required to be made on a "quasi-judicial basis" within the meaning of those words in section 28.

With respect, I cannot agree with this view. In Bates v. Lord Hailsham[38], Megarry J. said (at p. 1024 (All E.R.) 1378 (W.L.R.)):

... Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy... .

The words I have underlined in this passage were accepted "as a common law principle" in the reasons of the majority of this Court in Nicholson v. Haldimand-Norfolk Regional Police Commissioners[39], at p. 324. In that judgment delivered subsequent to the decision of the Federal

[Page 635]

Court of Appeal herein, judicial review under The Judicial Review Procedure Act of Ontario was allowed against the decision of a police commis­sion to dispense with the services of a constable. By the relevant regulation the right to a quasi-judicial hearing was not available to the appellant because he was still within his eighteen-month probationary period. Although accepting (at p. 318) that the termination of "a master servant relationship would not, per se, give rise to any legal requirement of observance of any of the principles of natural justice", the majority held that, in the case of the holder of a public office such as a constable, there was a common law duty to act fairly which fell short of a duty to act quasi-judicially but nevertheless could be enforced by judicial review. Under the Ontario Act this includes precisely the remedies contemplated in s. 18 of the Federal Court Act.

More recently an important judgment was given by the U.K. Court of Appeal in R. v. Board of Visitors of Hull Prison, Ex p. St. Germain[40]. I do not think I can better summarize some of the views expressed than by quoting from the headnote the following:

The courts were the ultimate custodians of the rights and liberties of the subject whatever his status and however attenuated those rights and liberties were as the result of some punitive or other process, unless Parlia­ment by statute decreed otherwise. There was no rule of law that the courts were to abdicate jurisdiction merely because the proceedings under review were of an inter­nal disciplinary character and, having regard to the fact that under the Prison Act 1952 a prisoner remained invested with residuary right regarding the nature and conduct of his incarceration despite the deprivation of his general liberty, the Divisional Court had been in error in refusing to accept jurisdiction.

Per Megaw and Waller LJJ. Although proceedings of boards of visitors in respect of offences against discipline are subject to judicial review by the courts, such inter­ference will only be justified if there has been some failure to act fairly, having regard to all relevant cir­cumstances, and such unfairness can reasonably be regarded as having caused a substantial, as distinct from a trivial or merely technical, injustice which is capable

[Page 636]

of remedy. Moreover the requirements of natural justice are not necessarily identical in all spheres. .. .

Semble. Certiorari does not lie against a disciplinary decision of a prison governor.

Although in this judgment, some dicta in Ex p. Fry[41] were put in doubt, no doubt was expressed as to the correctness of the decision of the Court of Appeal in Fraser v. Mudge[42]. In that case a pris­oner charged with an offence against prison disci­pline (assaulting a prison official) and due to appear before a Board of Visitors had applied for an injunction. The prisoner sought a declaration that he was entitled to the assistance of counsel and prayed for an injunction restraining the Board from inquiring into the charge until he had had an opportunity of appearing by lawyers. The Court of Appeal unanimously upheld the refusal of the injunction. Lord Denning M.R. said (at pp. 1133-1134 W.L.R.):

... We all know that, when a man is brought up before his commanding officer for a breach of discipline, whether in the armed forces or in ships at sea, it never has been the practice to allow legal representation. It is of the first importance that the cases should be decided quickly. If legal representation were allowed, it would mean considerable delay. So also with breaches of prison discipline. They must be heard and decided speedily. Those who hear the cases must, of course, act fairly. They must let the man know the charge and give him a proper opportunity of presenting his case. But that can be done and is done without the matter being held up for legal representation. I do not think we ought to alter the existing practice... .

Roskill L.J. added after a reference to the Prison Rules 1964 (at p. 80 All E.R.):

... One looks to see what are the broad principles underlying these rules. They are to maintain discipline in prison by proper, swift and speedy decisions, whether by the governor or the visitors; and it seems to me that the requirements of natural justice do not make it necessary that a person against whom disciplinary pro­ceedings are pending should as of right be entitled to be represented by solicitors or counsel or both.

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It appears to me that the proper view of the situation of a prison inmate in respect of discipli­nary offence proceedings was taken in what I have just quoted. The requirements of judicial proce­dure are not to be brought in and, consequently, these are not decisions which may be reviewed by the Federal Court of Appeal under s. 28 of the Federal Court Act, a remedy which, I think is in the nature of a right of appeal. However, this does not mean that the duty of fairness may not be enforced by the Trial Division through the exercise of the discretionary remedies mentioned in s. 18 of the Federal Court Act.

I must, however, stress that the Order issued by Mahoney J. deals only with the jurisdiction of the Trial Division, not with the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the require­ments of prison discipline be borne in mind, just as it is essential that the requirements of the effective administration of criminal justice be borne in mind when dealing with applications for certiorari before trial, as pointed out in Attorney General of Quebec v. Cohen[43]. It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made inef­fective, if not altogether avoided.

I would allow the appeal, set aside the judgment of the Federal Court of Appeal and restore the Order of Mahoney J. of the Federal Court, Trial Division. There should be no costs in this Court nor in the Federal Court of Appeal.

Appeal allowed.

Solicitor for the appellant: John W. Conroy, Abbotsford.

Solicitor for the respondent: Roger Tassé, Ottawa.