SUPREME COURT OF CANADA
Martineau and al. v. The Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118
Date: 1977-03-08
Robert Thomas Martineau and Robert Earl Butters Appellants;
and
The Matsqui Institution Inmate Disciplinary Board Respondent.
1976: December 2; 1977: March 8.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Administrative law — Procedure — Natural justice — Order not required by law to be made on a judicial or quasi-judicial basis — Federal Court Act, 1970-71-72 (Can.), c. 1, s. 28 — Penitentiary Act, R.S.C. 1970, c. P-6, s. 29 — Penitentiary Service Regulations.
The appellants appealed to this Court from a decision of the Federal Court of Appeal that it had no jurisdiction to hear their application under s. 28 of the Federal Court Act for review of a disciplinary order made by the respondent against them.
Held (Laskin C.J. and Martland, Spence and Dickson JJ. dissenting): The appeal should be dismissed.
Per Judson J.: I agree with the reasons delivered by Jackett C.J. in the Federal Court of Appeal.
Per Ritchie, Pigeon, Beetz and de Grandpré JJ.: The disciplinary order was an "order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis". Section 29 of the Penitentiary Act says that the Governor-in-Council may make regulations relating to discipline in penitentiaries and that the Commissioner for Penitentiaries may make rules ("directives") for disciplinary purposes. It follows, therefore, that although the rules are authorized by statute, they are of a purely administrative nature. There is a distinction to be made between duties imposed on public servants and obligations that merely result from their position as public employees. The Commissioner's directives are no more than directions to a disciplinary board of public servants as to the manner of carrying out their duties. In Howarth's case, this Court noted that the loss of remission on parole revocation, for example, does not change the nature of the Parole Board's decision from an administrative to a judicial one. A duty to act
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judicially does not follow automatically from the fact that a decision affects the rights of an individual.
Per Laskin C.J. and Martland, Spence and Dickson JJ., dissenting: This appeal goes to the heart of the jurisdiction conferred by s. 28 of the Federal Court Act, especially since the applicants' claim that there has been a breach of natural justice. The question here is whether the decision of the respondent was required to be made on a judicial or quasi-judicial basis. The directives under which the decision was made require that the offender be given notice of the charge against him, that he be present at the hearing of his case and that he be given the opportunity to defend himself. In other words, a quasi-judicial process is involved and the directive was expressly made pursuant to a "law", that is, the Penitentiary Act and Regulations.
The respondent contends that because the Board cannot be penalized for failing to follow the terms of the directive and because the directive confers no enforce-able right on the applicants, it confers no legal authority. However, the fact that the Act permits the Commissioner to make rules that the inmates cannot enforce does not mean that these rules are purely administrative. The sanction for not following the rules is the fact that the Board's decision is susceptible to review if the rules are not followed: the very fact that there can be a review represents a sanction.
Finally, where rules of procedure are set out, the Court need only decide whether or not they have been followed and this is what distinguishes the case at bar from Howarth's case, where the discretionary authority of the Parole Board is left undefined. It is irrelevant to suggest that if the respondent's decision is overruled there will be a flood of similar applications under s. 28 of the Federal Court Act; it is more likely that other tribunals would realize that they are expected to follow their own rules of procedure.
[Howarth v. National Parole Board, [1976] 1 S.C.R. 453 applied; Saulnier v. Quebec Police Commission (1975), .57 D.L.R. (3d) 545; Guay v. Lafleur, [1965] S.C.R. 12; The Japanese Canadians case, [1947] A.C. 87, referred to; R. v. Beaver Creek Correctional Camp, Ex p. McCaud, [1969] 1 O.R. 373, disapproved.]
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APPEAL from a judgment of the Federal Court of Appeal, dismissing the appellants’ application for review under s. 28 of the Federal Court Act. Appeal dismissed, Laskin C.J. and Martland, Spence and Dickson JJ. dissenting.
R. Price and J. W. Conroy, for the appellants.
G. W. Ainslie, Q.C., and H. L. Molot, for the respondent.
The judgment of Laskin C.J. and Martland, Spence and Dickson JJ. was delivered by
THE CHIEF JUSTICE (dissenting)—Narrow as the issue in this appeal may be in a formal sense, it goes to the heart of the jurisdiction conferred upon the Federal Court of Appeal to review decisions or orders of administrative tribunals. Especially is this so here where the vice complained of is a failure to accord natural justice to the appellants in disregard of the directives applicable to them and under which they become liable to punishment if a finding is made of their guilt of a flagrant or serious offence, within the meaning of those directives.
As my brother Pigeon (whose reasons I have had the advantage of reading) has noted, it is not disputed that the respondent board is "a federal board, commission or other tribunal" within the meaning of s. 28 (1) of the Federal Court Act, 1970-71-72 (Can.), c. 1, which reads as follows:
28. (1) Notwithstanding s. 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 .. .
Under this provision the relevant inquiry in this case is the limited one whether the disciplinary order made against the appellants was "required by law to be made on a judicial or quasi-judicial basis". The directives under which the order was
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made plainly require that an inmate charged with a flagrant or serious offence (and again there is no dispute that the charges here were of such offences) must be given notice of the charges, be present personally to hear the evidence against him, be given an opportunity to make full answer and defence before a finding is made and have the advantage of the principle of reasonable doubt. No citation of authority is needed to underline the fact that the directives establish a judicial or quasi-judicial process for the hearing of charges of a flagrant or serious offence.
What then remains in issue that would persuade the majority of the Federal Court of Appeal to refuse jurisdiction? That Court limited its consideration of the s. 28 application to that question and did not consider the merits of the applicants' attack on the decision of the respondent. The nub of the matter is, thus, as my brother Pigeon noted, whether the directives prescribing what I may compendiously call natural justice for the appellants were made pursuant to "law" and were, therefore, to be observed by the penitentiary authorities.
Can there be any doubt about this? The source or authority for the directives was in s. 29(3) of the Penitentiary Act, R.S.C. 1970, c. P-6. Section 29 provides both for the making of regulations by the Governor in Council and for the making of rules, to be known as Commissioner’s directives, by the Commissioner of Penitentiaries. It reads as follows:
29. (1) The Governor in Council may make regulations
(a) for the organization, training, discipline, efficiency, administration and good government of the Service;
(b) for the custody, treatment, training, employment and discipline of inmates; and
(c) generally, for carrying into effect the purposes and provisions of this Act.
(2) The Governor in Council may, in any regulations made under subsection (1) other than paragraph (b) thereof, provide for a fine not exceeding five hundred dollars or imprisonment for a term not exceeding six
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months, or both, to be imposed upon summary conviction for the violation of any such regulation.
(3) Subject to this Act and any regulations made under subsection (1), the Commissioner may make rules, to be known as Commissioner's directives, for the organization, training, discipline, efficiency, administration and good government of the Service, and for the custody, treatment, training, employment and discipline of inmates and the good government of penitentiaries.
My brother Pigeon has, in his reasons, reproduced part of the text of Directive No. 213 on which this case turns. What must be specially noted is that s. 1 of this directive, entitled "Authority", reads as follows:
This directive is issued pursuant to subsection 29(3) of the Penitentiary Act and sections 2.28, 2.29, 2.30 and 2.31 of the Penitentiary Service Regulations.
It appeared to be the contention of the respondent that although Parliament has prescribed a rule-making authority for the Commissioner (carrying, in accordance with the ordinary view of delegated powers, limitations thereon according to their scope) the fact that no penalty has been prescribed for breach of the rules (in contrast to the position respecting breach of regulations made by the Governor in Council) denudes the rules of any legal authority; indeed, the suggestion is that the Commissioner could have prescribed the directives suo motu if there had been no such provision as s. 29(3), and could have disregarded them with impunity, and that s. 29(3) added nothing to his administrative authority.
There is no doubt that the Penitentiary Act, even in s. 29(3), gives authority to the Commissioner to make rules or issue directives which do not run to any enforceable claim by inmates for their observance. This, however, does not mean that all directives must necessarily be characterized as purely administrative or, as was said below, as rules of management as to which no duty of compliance can be enforced by inmates. What is asserted here is that the carefully-wrought rules of procedure governing the hearing and disposition of charges of flagrant or serious offences have no external force, that the appellants have no right to
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the benefit of the procedure because the penitentiary authorities have no duty to follow them, although they have been prescribed under statutory authority.
This is much too nihilistic a view of law for me to accept. The fact that a disciplinary board is charged with a duty to inquire into the validity of charges of flagrant or serious offences brought against inmates, with the consequent risk to them of punishment if the charges are proven, does not stand alone; a formal procedure is prescribed for the benefit of inmates so charged, a procedure which is very typically a prescription of natural justice, and the duty to follow it arises from its very prescription. It is enough to refer to s. 13(c) of the directive which states that "no finding shall be made against an inmate ... charged for a serious or flagrant offence unless [the ensuing provisions for notice, personal appearance and opportunity to make full answer and defence are observed]"; and I would add a reference to s. 13(d) which reads as follows:
The decision as to guilt or innocence shall be based solely on the evidence produced at the hearing and, if a conviction is to be registered, it can only be on the basis that, after a fair and impartial weighing of the evidence, there is no reasonable doubt as to the guilt of the accused.
The absence of a penal sanction for the rules or directives can be no more compelling on whether law is involved (with a corresponding duty of obedience) than is the absence of a penal sanction in respect of rules of procedure governing the orders of other tribunals which are found by the Courts to be quasi-judicial bodies whose decisions are reviewable under s. 28(1) of the Federal Court Act. The reviewing Court imposes a sanction by the very fact of review. Moreover, it is fallacy to contend that rules or directives are less a matter of "law" than are regulations whose breach is punish-able. Rules of procedure of a tribunal are addressed to it and to those affected by the powers exercisable by the tribunal, and it would be odd, indeed, if a penal sanction was imposed upon tribunal members for failure to follow them. The sanction for obedience to them rests on the vulnerability
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of the tribunal’s decisions if made in disregard of its operating rules.
In a general sense, denial of natural justice by an administrative tribunal empowered to affect the rights of persons subject to its authority is regarded as raising a reviewable error of law and, indeed, as going to jurisdiction. How justly or fairly such persons must be dealt with depends on the nature of the tribunal and on the issues confided to it. Where the procedure to be followed is spelled out, the Court is relieved of the obligation of determining what natural justice demands. If the procedure is not followed, the tribunal, if it is to escape a review, must seek refuge, as the respondent does here, in asserting that it has no duty to follow the procedure. Ridge v. Baldwin is a leading illustration of the unacceptability of such a posture, and that in a case involving disciplinary authority by way of dismissal of a police constable. If anything, the prescriptions in the present case for securing a fair hearing were more detailed than those set out in the police regulations in Ridge v. Baldwin. In principle, I see no reason to differentiate between the obligation of the watch committee in that case and that of the respondent here to follow pre-scribed procedures at the risk of judicial review of an adverse decision or finding.
The very prescriptions in this case are enough to distinguish it from the majority judgment of this Court in Howarth v. National Parole Board, a case where the discretionary authority of the Board was left at large.
It is also said by the respondent that the rules or directives involved here are matters of the internal or domestic operation of disciplinary boards. So too, however, are rules of procedure promulgated by such tribunals as labour relations boards for the carrying out of their functions in labour-management
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relations. Yet it has never been doubted that parties subject to the authority of such boards are entitled to the benefit of the rules of procedure and that the boards are under a duty to follow them so long as they remain in force.
It is to me an entirely irrelevant consideration that if Directive No. 213 has the effect I would give it there would be or could be a flood of applications for judicial review arising out of disciplinary proceedings. This could be said in respect of any quasi-judicial proceedings affecting large numbers of persons. The appropriate response is that the administering authority should be expected to obey the prescriptions which it promulgated, and leave it to the Courts to determine whether they have done so if their application of those prescriptions is contested.
I would allow the appeal, set aside the order of the Federal Court of Appeal and remit the case to that Court for its consideration on the merits.
JUDSON J.—I agree with the reasons delivered by Jackett C.J. in the Federal Court of Appeal
The judgment of Ritchie, Pigeon, Beetz and de Grandpré JJ. was delivered by
PIGEON J.—This is an appeal by leave of this Court from the judgment of the Federal Court of Appeal (Ryan J.A. dissenting) dismissing for lack of jurisdiction, the appellants' application under s. 28 of the Federal Court Act for review of a disciplinary order made by the respondent against them. The facts and the relevant provisions of the Penitentiary Act, the Penitentiary Service Regulations and the Commissioner’s directive respecting the award of punishment against inmates, are all stated in the reasons for judgment given by Jackett C.J. and printed in the report of the case at [1976] 2 F.C. 198. The only question is whether the Court below erred in holding that the impugned order did not come within the scope of the opening words of s. 28:
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28. (1) Notwithstanding s. 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal .. .
It was not contended on behalf of the respondent that it was not a "federal board, commission or other tribunal" within the meaning of that expression as defined in s. 2 of the Federal Court Act. The judgment under appeal rests solely on the view that the impugned decision is an "order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis".
In his dissenting opinion Ryan J.A. said at pp. 214-215:
In my view then, apart from the possible effect of the Commissioner's Directive, there would not in this case be a requirement that the disciplinary board should act judicially or quasi-judicially. That is not necessarily to say that the board would be free of an obligation to act with fairness. But that is another matter. This, however, leaves the very important question whether the procedural provisions of the Commissioner's Directive No. 213 add to the administrative process a duty to act quasi-judicially. It is far from easy to discover the answer to this question. I do not think that one can say that because, apart from the Directive, a disciplinary function would be purely administrative, the addition of a procedure by way of rules made in the exercise of a delegated power would make no difference. One must inquire whether the rules are such as to impose duties with correlative rights concerning the exercise of the administrative function which require that decisions be made on such a basis as, having regard to relevant authorities, has come to be regarded as at least quasi-judicial.
The majority opinion on that point was expressed by Jackett C.J. as follows at pp. 210-211:
In my view, disciplinary decisions in the course of managing organized units of people such as armies or police forces or in the course of managing institutions such as penal institutions are, whether or not such decisions are of a routine or penal nature, an integral
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part of the management operation. As a matter of sound administration, as such decisions touch in an intimate way the life and dignity of the individuals concerned, they must be, and must appear to be, as fair and just as possible. For that reason, as I conceive it, there has grown up, where such decisions are of a penal nature, a practice of surrounding them with the phraseology and trappings of criminal law procedure. Nevertheless, in my view, disciplinary decisions are essentially different in kind from the class of administrative decisions that are impliedly required, in the absence of express indication to the contrary, to be made on a judicial or quasi-judicial basis in such a way that they can be supervised by judicial process. In my view, that is the principle under-lying Howarth v. National Parole Board, The Queen v. White, Regina v. Metropolitan Police Commissioner Ex parte Parker, and Ex parte Fry. For that reason, I conclude that the disciplinary decisions here in question, even though of a penal nature and even though they are required by administrative rules to be made fairly and justly, are not decisions that are required to be made on a judicial or quasi-judicial basis within the meaning of those words in s. 28 of the Federal Court Act.
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. Section 13 of the directive reads:
13. HEARING OF CHARGES FOR SERIOUS OR FLAGRANT OFFENCES
a. The Director of the Institution, or an officer designated by him, not below the level of Assistant Director, shall hear all cases where the offence is flagrant or serious in nature and, if the inmate is found guilty, shall decide the appropriate punishment. Two staff members may be appointed to assist in a hearing, but their role shall be as advisers only.
c. No finding shall be made against an inmate charged under s. 2.29 of the P.S.R. for a serious or flagrant offence unless he:
(1) has received written notice of the charge in sufficient detail so that he may direct his mind to the occasion and events upon which the charge is made, and a summary of the evidence alleged against him;
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(2) has received the written notice and summary referred to in paragraph (1) at least 24 hours before the beginning of the hearing, so that he has reason-able time to prepare his defence;
(3) has appeared personally at the hearing so that the evidence against him was given in his presence;
(4) has been given an opportunity to make his full answer and defence to the charge, including the introduction of relevant documents, and the questioning and cross-examination of the witnesses which shall be done through the presiding officer; the inmate is entitled to call witnesses on his own behalf, except that, where the request for the attendance of any such witness is believed by the presiding officer to be frivolous or vexatious, the presiding officer may refuse to have such witness called and will advise the inmate of the reason for the refusal.
d. The decision as to guilt or innocence shall be based solely on the evidence produced at the hearing and, if a conviction is to be registered, it can only be on the basis that, after a fair and impartial weighing of the evidence, there is no reasonable doubt as to the guilt of the accused.
There remains, however, the question whether the directive is to be considered as "law" within the wording of s. 28. In this connection, it is necessary to consider the effect of s. 29 of the Penitentiary Act, R.S.C. 1970, c. P-6:
29. (1) The Governor in Council may make regulations
(a) for the organization, training, discipline, efficiency, administration and good government of the Service;
(b) for the custody, treatment, training, employment and discipline of inmates; and
(c) generally, for carrying into effect the purposes and provisions of this Act.
(2) The Governor in Council may, in any regulations made under subsection (1) other than paragraph (b) thereof, provide for a fine not exceeding five hundred dollars or imprisonment for a term not exceeding six months, or both, to be imposed upon summary conviction for the violation of any such regulation.
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(3) Subject to this Act and any regulations made under subsection (1), the Commissioner may make rules, to be known as Commissioner's directives, for the organization, training, discipline, efficiency, administration and good government of the Service, and for the custody, treatment, training, employment and discipline of inmates and the good government of penitentiaries.
I have no doubt that the regulations are law. The statute provides for sanction by fine or imprisonment. What was said by the Privy Council with respect to orders in council under the War Measures Act in the Japanese Canadians case, at p. 107, would be applicable:
The legislative activity of Parliament is still present at the time when the orders are made, and these orders are "law".
I do not think the same can be said of the directives. It is significant that there is no provision for penalty and, while they are authorized by statute, they are clearly of an administrative, not a legislative, nature. It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity. I have no doubt that he would have the power of doing it by virtue of his authority without express legislative enactment. It appears to me that s. 29(3) is to be considered in the same way as many other provisions of an administrative nature dealing with departments of the administration which merely spell out administrative authority that would exist even if not explicitly provided for by statute.
In my opinion it is important to distinguish between duties imposed on public employees by statutes or regulations having the force of law and obligations prescribed by virtue of their condition of public employees. The members of a disciplinary board are not high public officers but ordinarily civil servants. The Commissioner’s directives are no more than directions as to the manner of carrying out their duties in the administration of the institution where they are employed. In a
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footnote at p. 212 of the report, Jackett C.J. refers to the decision of this Court in Association of Radio and T.V. Employees v. C.B.C., where the unanimous view was that a board of arbitration set up as required by The Canada Labour Code pursuant to a collective agreement, was held not to be a "federal board, commission or other tribunal" within the Federal Court Act because it could not be said that its jurisdiction was conferred by or under an Act of the Parliament of Canada:
I cannot regard the bare direction for a provision for final settlement of all differences as to the meaning or violation of the terms of a collective agreement as bringing any instrument for such settlement, be it a board of arbitration as in this case or some other agency, within the category of the public tribunals which are envisaged by the definition in s. 2(g). (per Laskin J., as he then was, at p. 134).
As in the Court below, appellants sought to draw an inference from sub. (6) of s. 28 which is in the following terms:
(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.
In my view this provision cannot be read as implying that all federal tribunals other than those enumerated, come within subs. (1). This is a purely negative provision and there is no reason to construe it as an exhaustive enumeration of all tribunals whose orders are not subject to review by the Federal Court of Appeal under s. 28. It is to be noted that subs. (6) mentions a superior court among the exclusions although the definition of "federal board, commission or other tribunal" excludes any person appointed under s. 96 of the B.N.A. Act. Subsection (6) is, therefore, to a certain extent, for greater certainty only.
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I think Jackett C.J. correctly disagreed with the view expressed by the Ontario Court of Appeal in Regina v. Beaver Creek Correctional Camp, Ex parte McCaud that the possibility of reduction of statutory remission by disciplinary decisions would imply a duty to act judicially. In this respect, I would point out that in Howarth v. National Parole Board Beetz J. noted that the loss of statutory remission and earned remission upon parole revocation does not change the nature of the decision of the Parole Board when it revokes a parole granted to an inmate (at pp. 475-476):
It may be unfortunate that, under s. 20(1) of the Parole Act, statutory remission for time served on parole by an inmate and earned remission standing to an inmate's credit at the time of his release on parole be lost automatically upon revocation, particularly since parole may be suspended and, presumably, revoked for reasons which are not necessarily connected with a breach of the terms or conditions of the parole. How-ever, this in my view does not change the nature of the decision of the Parole Board when it revokes a parole granted to an inmate.
In view of the numerous references to Howarth as well as to Saulnier v. Quebec Police Commission and having in mind Addy J.'s comments in B. v. Commission of Inquiry cited by Walsh J. in Desjardins v. National Parole Board, I will make some further observations on those two cases.
Howarth concerned an application under s. 28 of the Federal Court Act. The question was whether the Parole Board was under a legal duty to act judicially in revoking a parole. In the earlier case
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of Ex parte McCaud it had been held that this was not in any way a judicial decision and, there-fore, in the view of the majority, it was sufficient to find that subsequent amendments implied no change in that situation. It might perhaps be useful to add that s. 11 of the Parole Act, R.S.C. 1970, c. P-2, reads:
11. The Board, in considering whether parole should be granted or revoked, is not required to grant a person-al interview to the inmate or to any person on his behalf.
In Saulnier the application was for a writ of evocation equivalent to certiorari under art. 846 C.C.P. The duty of the Police Commission to act judicially is spelled out in s. 24 of the Police Act, 1968 (Que.), c. 17:
The Commission shall not, in its reports, censure the conduct of a person or recommend that punitive action be taken against him unless it has heard him on the facts giving rise to such censure or recommendation. Such obligation shall cease, however, if such person has been invited to appear before the Commission within a reasonable delay and has refused or neglected to do so. Such invitation shall be served in the same manner as a summons under the Code of Civil Procedure.
However, the majority of the Court of Appeal had held that the Commission was not obliged to act judicially relying on the view expressed in this Court in Guay v. Lafleur, at p. 18:
... the maxim "audi alteram partem" does not apply to an administrative officer whose function is simply to collect information and make a report and who has no power either to impose a liability or to give a decision affecting the rights of parties.
We were unanimously of the opinion that the function of the Police Commission was not simply to collect information and make a report but that
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this report on which action could be taken did affect the rights of the applicant. Judicial review was granted because, not only was there a duty to act judicially but the decision affected the rights of the applicant. At the risk of repetition I will stress that this does not mean that whenever the decision affects the right of the applicant, there is a duty to act judicially.
I would dismiss the appeal.
Appeal dismissed, LASKIN C.J. and MART-LAND, SPENCE and DICKSON JJ. dissenting.
Solicitors for the appellants: R. P. Price, Kingston, and J. W. Conroy, Abbotsford.
Solicitor for the respondent: The Deputy Attorney General of Canada, Ottawa.
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