TYSOE,
J.:—This
is
an
appeal
by
the
Minister
of
Finance
from
a
judgment
of
Munroe,
J.
made
on
July
27,
1970
directing
that
a
writ
of
certiorari
issue
to
remove
into
the
Supreme
Court
of
British
Columbia
a
determination
made
by
the
appellant
on
May
1,
1969
pursuant
to
Section
5(2)
of
the
Succession
Duty
Act,
RS.
B.C.
1960,
c.
372
as
amended
(hereinafter
referred
to
as
“the
Act”)
and
directing
that
the
determination
be
quashed
without
further
order
and
the
matter
referred
back
to
the
appellant
for
the
exercise
of
his
discretion
upon
proper
legal
principles.
The
determination
was
as
follows
:
For
the
purpose
of
Section
5(1)
of
the
said
Act,
Mr.
&
Mrs.
P.
A.
Woodward’s
Foundation,
referred
to
in
Clause
(e)
of
Mr.
P.
A.
Woodward’s
Will
dated
the
21st
day
of
August,
1962,
is
not
a
religious,
charitable,
or
educational
organization
and
that,
also
for
the
purpose
of
Section
5(1)
of
the
said
Act,
the
purpose
of
the
said
Foundation
is
not
a
religious,
charitable,
or
educational
purpose.
Section
5(1)
of
the
Act
is
an
exemption
section
and
its
provisions
relevant
to
this
appeal
are
the
following:
5.
(1)
This
Act
shall
not
apply
so
far
as
liability
to
pay
succession
duty
is
concerned,
(h)
to
any
property
transferred
by
grant
or
gift,
whether
made
in
contemplation
of
death
or
otherwise,
or
devised
or
bequeathed
by
any
person
for
religious,
charitable,
or
educational
purposes
to
be
carried
out
in
the
Province,
or
on
the
amount
of
any
unpaid
subscription
for
any
like
purpose
made
by
any
person
so
dying
for
which
the
estate
of
the
deceased
is
liable;
nor
(i)
that
portion
of
any
property
transferred
by
grant
or
gift,
whether
made
in
contemplation
of
death
or
otherwise,
or
devised
or
bequeathed
by
any
person
for
religious,
charitable,
or
educational
organization
that
carries
on
its
work
both
in
and
outside
of
the
Province
the
value
of
which
bears
the
same
ratio
to
the
net
value
of
all
the
property
passing
on
the
death
of
the
deceased
that
its
expenditures
for
carrying
on
the
work
of
the
organization
in
the
Province
bear
to
the
total
expenditures
of
the
organization
during
such
period
as
the
Minister
may
determine;
nor
(j)
to
property
given,
devised,
or
bequeathed
for
religious,
charitable,
or
educational
purposes
to
be
carried
out
in
any
Province
of
Canada
other
than
British
Columbia
that
is
shown
to
the
satisfaction
of
the
Minister
to
allow
the
same
exemption
on
property
given,
devised,
or
bequeathed
for
religious,
charitable,
or
educational
purposes
to
be
carried
out
in
British
Columbia;
nor
(k)
to
property
given,
devised,
or
bequeathed
for
religious,
charitable,
or
educational
purposes
to
a
religious,
charitable,
or
educational
organization
approved
by
regulations
made
under
this
Act;
Section
5(2)
is
as
follows:
(2)
For
the
purpose
of
subsection
(1),
the
Minister,
in
his
absolute
discretion,
may
determine
whether
any
purpose
or
organization
is
a
religious,
charitable,
or
educational
purpose
or
organization
and
the
determination
of
the
Minister
is
final,
conclusive,
and
binding
on
all
persons
and,
notwithstanding
section
43
or
44
or
any
other
provision
of
this
Act
to
the
contrary,
is
not
open
to
appeal,
question,
or
review
in
any
Court,
and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
is
binding
on
all
persons.
The
words
following
after
the
words
“or
educational
purpose
or
organization’’
were
added
by
an
amending
Act
assented
to
April
3,
1970,
being
chapter
45
of
Statutes
of
British
Columbia
1970.
The
amending
Act
also
contains
the
following
provisions
:
6.
Section
5
of
the
Act
is
further
amended
by
inserting,
after
subsection
(2)
as
amended,
the
following
as
subsection
(2a)
:
(2a)
Subsection
(2)
does
not
apply
in
respect
of
estates
in
which
the
death
of
the
deceased
occurs
on
or
after
the
first
day
of
April,
1970.
12.
(1)
This
Act,
excepting
section
5,
comes
into
force
on
the
first
day
of
April,
1970.
(4)
Section
5
shall
be
deemed
to
have
come
into
force
on
the
first
day
of
April,
1968,
and
is
retroactive
to
the
extent
necessary
to
give
full
force
and
effect
to
the
provisions
it
amends
on
or
after
that
date,
and
applies
to
property
passing
on
the
death
of
a
person
dying
on,
from,
and
after
that
date.
Mr,
P.
A.
Woodward
died
on
August
27,
1968,
so
that
the
amendments
made
by
chapter
45
of
Statutes
of
British
Columbia
1970
apply
to
property
passing
on
his
death
and
to
the
determination
made
by
the
appellant
011
May
1,
1969.
By
way
of
narrative,
in
his
reasons
for
judgment
Munroe,
J.
said
:
After
the
executors
had
filed
their
Affidavit
of
Value
and
Relationship,
the
Minister
of.
Finance
on
May
21,
1969
made
a
“determination”
under
section
20
of
the
Act,
assessing
succession
duties
payable
under
the
Act
in
the
amount
of
$1,730,536.88.
He
thus
assessed
the
residuary
gift
to
the
Foundation
as
if
it
were
a
bequest
not
to
a
“charitable
organization”
but,
rather,
to
a
“stranger”.
From
that
assessment
the
executors
appealed
to
the
Minister
pursuant
to
the
provisions
of
section
43.
They
complained
of
two
things:
first,
an
error
in
what
was
included
in
the
widow’s
portion,
and
second,
the
failure
to
exempt
the
gift
to
the
Foundation
as
being
a
charitable
gift.
In
response
to
such
notice
of
appeal,
a
Revised
Assessment
was
issued
on
July
21st,
1969.
It
gave
effect
to
the
first
ground
of
complaint
but
continued
taxing
the
gift
to
the
Foundation
as
one
to
a
“stranger”.
Since
there
is
no
such
thing
as
a
“Revised
Assessment”
provided
for
in
the
“Succession
Duty
Act”,
the
executors
were
in
some
doubt
as
to
its
legal
effect.
Accordingly,
on
August
27,
1969,
they
issued
a
further
Notice
of
Appeal
to
the
Minister
under
section
43
of
the
Act.
That
brought
no
response.
After
waiting
for
something
further
to
happen,
the
executors
decided
to
treat
the
Revised
Assessment
as
being
the
decision
of
the
Minister
under
section
43(3).
Accordingly,
being
dissatisfied
with
the
decision
of
the
Minister,
the
executors
appealed
therefrom
on
September
11,
1969,
to
a
Judge
of
the
Supreme
Court
of
British
Columbia
under
section
44
of
the
Act.
The
hearing
of
that
appeal
came
on
before
Aikins,
J.
on
December
8,
1969.
A
preliminary
objection
was
taken
by
the
Crown,
of
which
notice
was
given
on
December
3rd,
to
the
effect
that-
the
Court
lacked
jurisdiction
to
hear
such
appeal
because
no
decision
had
then
been
made
by
the
Minister
under
section
43(3),
and
accordingly
there
was
in
effect
no
decision
against
which
the
Foundation
could
appeal.
His
Lordship
gave
effect
to
that
submission
and
dis
missed
the
appeal.
On
January
6,
1970,
an
appeal
was
launched
from
that
ruling
to
the
Court
of
Appeal
and
service
of
the
Notice
of
Appeal
was
completed
by
January
14th,
1970.
By
February
5th,
1970
the
Appeal
Book
had
been
filed
and
the
date
for
the
hearing
of
the
appeal
confirmed.
The
Legislative
Assembly
of
the
Province
of
British
Columbia
met
on
January
22nd,
1970.
On
February
6th,
1970,
the
Minister
of
Finance
introduced
Bill
11,
“An
Act
to
Amend
the
Succession
Duty
Act”.
The
Bill
so
introduced
was
enacted
and
came
into
force
on
April
1st,
1970,
and
is
now
Chapter
45
of
the
Statutes
of
British
Columbia,
1970.
By
virtue
of
the
combined
effect
of
the
amendment
to
section
5(2)
of
the
Act
and
section
12(4)
of
the
Amending
Act,
the
right
of
appeal
by
the
Foundation
to
the
Minister
under
section
43
and
to
this
Court
under
section
44,
was
removed.
When
the
appeal
from
the
Judgment
of
Aikins,
J.
came
before
the
Court
of
Appeal
on
May
14,
1970,
the
executors
conceded
that
the
substratum
of
their
appeal,
which,
if
successful,
would
have
had
the
result
of
returning
the
proceedings
to
Mr.
Justice
Aikins
with
a
direction
that
he
decide
upon
the
merits,
was
gone.
The
appeal
was,
accordingly,
dismissed.
To
the
foregoing
I
would
add
that
the
respondents
launched
their
application
for
a
writ
of
certiorari
on
March
18,
1970.
I
do
not
find
it
necessary
for
the
purposes
of
this
judgment
to
incorporate
therein
Sections
43
and
44
of
the
Act.
They
have
reference
to
an
assessment
of
succession
duties
by
the
Minister
and
the
rights
of
appeal
against
it.
In
the
Court
below
and
in
this
Court
the
respondents
submitted
that
while
Section
5(2)
of
the
Act
authorizes
the
Minister
to
determine
whether
any
purpose
or
organization
is
a
religious,
charitable,
or
educational
purpose
or
organization,
it
does
not
authorize
him
to
say
it
is
not.
Munroe,
J.
rejected
that
submission
and
I
am
in
respectful
agreement
with
that
rejection
and
the
learned
Judge’s
reasons
therefor.
The
writ
of
certiorari
was
granted
and
the
determination
of
the
Minister
quashed
on
the
ground
that
the
determination
was
made
without
any
notice
being
first
given
to
the
respondents
and
without
them
being
afforded
an
opportunity
to
be
heard,
and
so
the
Minister
acted
contrary
to
the
principles
of
natural
justice
and
lost
his
jurisdiction
to
act
under
Section
5(2)
of
the
Act.
In
his
reasons
for
judgment
the
learned
Judge
below
said
:
Assuming
the
correctness
of
such
conclusions,
there
arises
next
for
consideration
the
allegation
of
the
applicants
that
the
Minister
lost
the
jurisdiction
given
to
him
by
the
Act
when
he
made
his
determination
under
Section
5(2)
without
notice
to
the
executors
of
the
estate,
contrary
to
the
principles
of
natural
justice.
Counsel
for
the
Minister
conceded
during
the
hearing
that
no
such
notice
was
given
and
conceded
also,
rightly
I
think,
that
when
the
Minister
made
such
determination
he
was
exercising
judicial
or
quasijudicial
duties,
particularly
in
the
light
of
the
1970
amendments:
Giese
v.
Williston
(1963),
41
W.W.R.
331.
Accordingly,
the
law
is
clear
that
he
must
act
in
good
faith
and
give
a
fair
opportunity
to
the
executors
and
to
the
Foundation
for
correcting
or
contradicting
any
relevant
statement
prejudicial
to
their
view:
Board
of
Education
v.
Rice,
[1911]
A.C.
179;
Western
Mines
Ltd.
v.
Greater
Campbell
River
Water
District
(1967),
58
W.W.R.
705.
and
;
Here,
no
opportunity
to
be
heard
was
given
and
such
failure
constituted
a
denial
of
natural
justice,
which
ousted
the
jurisdiction
of
the
Minister;
and
certiorari
is
available
as
a
remedy
unless
the
amendments
have
the
effect
of
depriving
this
Court
of
any
jurisdiction
to
review
the
determination
made
by
the
Minister.
The
learned
Judge
went
on
to
hold
that
the
determination
of
the
appellant
made
on
May
1,
1969
in
breach
of
the
principles
of
natural
justice
was
void.
In
this
Court
counsel
for
the
appellant
did
not
contend
there
is
any
error
in
these
findings.
He
said
that,
while
he
would
not
concede
their
correctness,
he
would
not
argue
they
are
erroneous.
For
my
part,
I
agree
with
the
findings.
The
learned
Judge
below
further
held
that
Section
5(2)
of
the
Act
and
in
particular
the
last
words
‘‘and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
is
binding
on
all
persons’’
do
not
save
the
determination.
He
said
:
The
Legislature
could
not
ratify
or
confirm
a
determination
that
was
not
then
in
existence
any
more
than
it
could
ratify,
confirm
or
make
binding
a
determination
which
was
a
nullity
at
law.
A
determination
made,
as
this
one
was,
in
breach
of
the
principles
of
natural
justice,
is
void.
The
submission
of
the
appellant
as
set
out
in
his
factum
is
as
follows
:
“THE
LEARNED
CHAMBERS
JUDGE
WAS
WRONG
IN
HOLDING
THAT
THE
LEGISLATURE
COULD
NOT
RATIFY,
CONFIRM
OR
MAKE
BINDING
ON
ALL
PERSONS
THE
SAID
DETERMINATION
AND
SHOULD
HAVE
HELD
THAT
THE
LEGISLATURE
COULD
AND
DID
RATIFY,
CONFIRM
AND
MAKE
BINDING
ON
ALL
PERSONS
THE
SAID
DETERMINATION
AND
THAT
BY
THAT
ACT
THE
COURT
WAS
PRECLUDED
FROM
REVIEWING
THE
SAID
DETERMINATION
AS
IT
WAS
THEREBY
AN
ACT
OF
THE
LEGISLATURE.
The
appellant
submits
that
the
Legislature
had
the
power
to
validate
a
determination
of
the
Minister
whether
that
determination
was
merely
voidable
or
actually
void
and
further
that
the
1970
amendments
to
Section
5(2)
effectively
achieves
this
purpose.
’
’
The
contention
of
the
respondents
is
that,
the
principles
of
natural
justice
having
been
violated,
the
impugned
determination
is
a
nullity,
a
thing
of
naught
and
a
mere
nothing,
and
as
such
is
incapable
of
being
ratified
and
confirmed.
The
respondents
submit
it
is
idle
to
speak
of
ratifying
and
confirming
something
which
has
no
existence.
Further,
the
respondents
say
that,
being
a
nullity,
there
has
been
no
determination
within
the
meaning
of
Section
5(2)
of
the
Act.
Counsel
referred
this
Court
to
a
number
of
cases,
chief
amongst
them
being
Ridge
v.
Baldwin,
[1964]
A.C.
40;
[1963]
2
All
E.R.
66;
Durayappah
v.
Fernando
and
Others,
[1967]
2
All
H.R.
152;
Anisminic
Ltd.
v.
The
Foreign
Compensation
Commission,
[1969]
2
A.C.
147;
[1969]
1
All
E.R.
208.
These
authorities
were
cited
on
the
subject
of
whether
the
determination
in
question
should
be
considered
“voidable”
or
‘‘void’’
or
‘‘a
nullity’’.
I
do
not
propose
to
discuss
them.
I
respectfully
agree
with
the
words
of
Lord
Evershed
in
Ridge
v.
Baldwin
at
the
foot
of
p.
88
in
the
All
E.R.
:
In
the
vast
majority
of
cases
it
matters
not
in
the
result
whether
the
decision
is
said
to
be
void
or
voidable
but
avoided.
It
is
sufficient
for
the
court
to
say
that
the
decision
cannot
stand.
In
truth,
as
Sir
Frederick
Pollock
pointed
out
(see
Pollock
on
Contract,
13th
ed.,
p.
48)
the
words
“void”
and
“voidable”
are
imprecise
and
apt
to
mislead.
I
think
the
same
comment
might
be
made
about
the
word
“nullity”.
In
the
Shorter
Oxford
Dictionary
the
word
‘‘void’’
is
defined
as
:
‘‘o.
b.
ineffective,
useless,
leading
to
no
result
6.
having
no
legal
force;
legally
null,
invalid
or
ineffectual”
The
definition
of
the
word
‘‘null’’
in
that
dictionary
is:
“void;
of
no
legal
or
binding
force
;
of
no
efficacy
;
invalid.”
In
Earl
Jowitt’s
Dictionary
of
English
Law
appears
the
following
under
the
heading
‘‘void’’,
‘‘an
agreement
or
other
act
is
said
to
be
void
when
it
has
no
legal
effect,
or
not
the
legal
effect
which
it
was
intended
to
produce.’’
And
‘‘null
and
void’’
is
said
to
mean
‘‘void’’.
The
remedy
applied
by
the
courts
in
certiorari
cases
is
the
“quashing”
of
the
impugned
decision.
In
the
present
case
Munroe,
J.
‘‘quashed’’
the
determination
of
the
appellant
made
on
May
1,
1969.
The
word
‘‘quash’’
is
defined
in
the
Shorter
Oxford
Dictionary
as:
‘
‘
To
annul,
to
make
null
or
void
(a
law,
decision,
election
etc.)
:
to
throw
out
(a
writ,
etc.)
as
invalid;
to
put
an
end
to
(legal
proceedings)
”’
And
in
Karl
Jowitt’s
Dictionary
:
“To
discharge
or
set
aside
an
order
of
an
inferior
court;
to
overthrow
or
annul,
as
to
quash
an
indictment,
or
order
of
justices,
or
a
rate,
See
CERTIORARI.”
To
“quash”
would
seem
to
imply
the
present
existence
of
the
thing
being
quashed.
It
is
my
opinion
that
the
determination
made
by
the
appellant
on
May
1,
1969
was
“void”
in
the
sense
of
lacking
validity
and
so
without
legal
force.
With
deference
to
contrary
opinion,
I
am
unable
to
regard
it
as
a
thing
of
naught,
a
mere
nothing
and
without
existence.
If
it
be
a
‘‘nullity’’
in
legal
terms,
it
nevertheless
existed
as
a
determination
in
fact
when
the
amending
Act
was
passed
in
April
1970.
This
brings
me
to
the
proper
construction
of
Section
5(2)
of
the
Act.
There
are
certain
well
established
principles
that
must
be
kept
in
mind.
They
are
set
out
in
Maxwell
on
Interpretation
of
Statutes,
12th
Ed.
I
shall
quote
at
page
1
:
Granted
that
a
document
which
is
presented
to
it
as
a
statute
is
an
authentic
expression
of
the
legislative
will,
the
function
of
a
court
is
to
interpret
that
document
according
to
the
intent
of
them
that
made
it.
From
that
function
the
court
may
not
resile:
however
ambiguous
or
difficult
of
application
the
words
of
an
Act
of
Parliament
may
be,
the
court
is
bound
to
endeavour
to
place
some
meaning
upon
them.
and
at
page
29
:
Where
the
language
is
plain
and
admits
of
but
one
meaning,
the
task
of
interpretation
can
hardly
be
said
to
arise.
“The
decision
in
this
case,”
said
Lord
Morris
of
Borth-y-Gest
in
a
revenue
case,
“calls
for
a
full
and
fair
application
of
particular
statutory
language
to
particular
facts
as
found.
The
desirability
or
the
undesirability
of
one
conclusion
as
compared
with
another
cannot
furnish
a
guide
in
reaching
a
decision.”
Where,
by
the
use
of
clear
and
unequivocal
language
capable
of
only
one
meaning,
anything
is
enacted
by
the
legislature,
it
must
be
enforced
however
harsh
or
absurd
or
contrary
to
common
sense
the
result
may
be.
The
interpretation
of
a
statute
is
not
to
be
collected
from
any
notions
which
may
be
entertained
by
the
court
as
to
what
is
just
and
expedient:
words
are
not
to
be
construed,
contrary
to
their
meaning,
as
embracing
or
excluding
cases
merely
because
no
good
reason
appears
why
they
should
not
be
embraced
or
excluded.
The
duty
of
the
court
is
to
expound
the
law
as
it
stands,
and
to
“leave
the
remedy
(if
one
be
resolved
upon)
to
others’’.
at
page
36
:
A
construction
which
would
leave
without
effect
any
part
of
the
language
of
a
statute
will
normally
be
rejected.
Thus,
where
an
Act
plainly
gave
an
appeal
from
one
quarter
sessions
to
another,
it
was
observed
that
such
a
provision,
though
extraordinary
and
perhaps
an
oversight,
could
not
be
eliminated.
page
47
:
Statutory
language
is
not
read
in
isolation,
but
in
its
context.
and
:
In
the
interpretation
of
statutes,
the
interpreter
may
call
to
his
aid
all
those
external
or
historical
facts
which
are
necessary
for
comprehension
of
the
subject-matter,
and
may
also
consider
whether
a
statute
was
intended
to
alter
the
law
or
to
leave
it
exactly
where
it
stood
before.
But
although
“we
can
have
in
mind
the
circumstances
when
the
Act
was
passed
and
the
mischief
which
then
existed
so
far
as
these
are
common
knowledge
.
.
.
we
can
only
use
these
matters
as
an
aid
to
the
construction
of
the
words
which
Parliament
has
used
.
.
.”
It
appears
to
me
that
Section
5(2)
is
made
up
of
three
parts
which
together
comprise
the
whole.
The
first
part
confers
upon
the
Minister
full
power,
in
his
absolute
discretion,
to
determine
whether
any
purpose
or
organization
is
a
religious,
charitable,
or
educational
purpose
or
organization.
The
second
part
makes
the
determination
of
the
Minister
final,
conclusive,
and
binding
on
all
persons
and
not
open
to
appeal,
question,
or
review
in
any
Court.
The
third
part
ratifies
and
confirms
and
makes
binding
on
all
persons
any
determination
of
the
Minister.
All
for
the
purpose
of
subsection
(1)
of
Section
5.
It
has
not
been
suggested
that
any
part
of
the
section
is
ultra
vires
the
provincial
legislature.
The
words
of
the
first
two
parts
of
the
subsection
are
so
wide
and
compelling
that
they
prevent
any
attack
being
made
on
the
determination
of
the
Minister
by
legal
process,
save
only
in
the
case
where
the
Minister
acted
without
or
in
excess
of
jurisdiction,
and
I
think
we
must
assume
the
legislature
was
aware
of
this.
The
third
part
is
redundant
and
adds
nothing
to
the
first
two
parts
unless
it
saves
the
determination
even
where
there
has
been
lack
of
jurisdiction
to
make
it.
Indeed,
unless
it
is
construed
as
doing
that,
the
words
‘and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
is
binding
on
all
persons’’
are
reduced
to
futility
and
without
effect.
In
Maxwell
on
the
Interpretation
of
Statutes
at
page
45
appears
the
following
:
“Tf
the
choice
is
between
two
interpretations
the
narrower
of
which
would
fail
to
achieve
the
manifest
purpose
of
the
legislation,
we
should
avoid
a
construction
which
would
reduce
the
legislation
to
futility
and
should
rather
accept
the
bolder
construction
based
on
the
view
that
Parliament
would
legislate
only
for
the
purpose
of
bringing
about
an
effective
result?’
(Nokes
v.
Doncaster
Amalgamated
Collieries,
Ltd.,
[1940]
A.C.
1014,
per
Viscount
Simon
L.C.
at
p.
1022.
Where
alternative
constructions
are
equally
open,
that
alternative
is
to
be
chosen
which
will
be
consistent
with
the
smooth
working
of
the
system
which
the
statute
purports
to
be
regulating;
and
that
alternative
is
to
be
rejected
which
will
introduce
uncertainty,
friction
or
confusion
into
the
working
of
the
system.
(Shannon
Realties,
Ltd.
v.
Ville
de
St.
Michel,
[1924]
A.C.
185,
per
Lord
Shaw
at
pp.
192,
193.
And
see
Engineering
Industry
Training
Board
v.
Samuel
Talbot
(Engineers)
Ltd.,
[1969]
2
W.L.R.
464).
In
accordance
with
these
principles,
the
court
should
avoid
interpretations
which
would
leave
any
part
of
the
provision
to
be
interpreted
without
effect;
.
.
.
In
the
Shorter
Oxford
English
Dictionary
the
following
definitions
appear
:
“Any”
‘‘3.
Qualitative:
Of
any
kind
or
sort
whatever.’’
“Ratify”
“1.
trans.
To
confirm
or
make
valid
(an
act,
compact,
promise
etc.)
by
giving
consent,
approval,
or
formal
sanction
(esp.
to
what
has
been
done
or
arranged
for
by
another
).’’
“Confirm”
“1.
trans.
To
make
firm
or
more
firm,
to
add
strength
to,
establish
firmly.
2.
To
make
valid
by
formal
authoritative
assent;
to
ratify,
sanction.’’
Applying
these
definitions
and
the
principles
of
construction
set
out
supra,
I
am
of
the
opinion
Section
5(2)
sanctions
and
makes
valid
the
determination
of
the
appellant
Minister
made
on
May
1,
1969.
Though
the
determination,
when
made,
was
an
invalid
one
and
without
legal
force
it
was,
in
my
view,
nevertheless
a
“determination”
within
the
meaning
of
Section
5(2)
of
the
Act.
On
July
8,
1970,
when
the
respondents’
application
for
a
writ
of
certiorari
came
on
for
hearing,
the
impugned
determination
had
been
validated
and
made
legally
effective
by
the
action
of
the
legislature.
It
seems
to
me
that
had
the
effect
of
cutting
the
ground
from
under
the
respondents’
feet
and
made
the
determination
immune
from
attack
by
certiorari
or
other
legal.
process.
I
confess
that
I
have
arrived
at
these
conclusions
with
some
reluctance.
Since
writing
the
foregoing
I
have
had
the
opportunity
of
reading
the
reasons
for
judgment
of
my
brother
Bull.
I
respectfully
agree
with
him
and
for
the
reasons
he
has
set
out
that
the
respondents
had
the
competence
and
necessary
status
to
maintain
these
proceedings.
I,
too,
would
allow
the
amendment
to
the
notice
of
appeal
sought
by
the
appellant.
I
would
allow
the
appeal
and
set
aside
the
order
made
below.
It
becomes
unnecessary
for
me
to
consider
the
cross-appeal.
BULL,
J.:—This
is
an
appeal
from
the
judgment
of
Munroe,
J.
ordering
(i)
the
issue
of
a
writ
of
certiorari
with
respect
to
a
determination
made
on
May
1,
1969,
by
the
Minister
of
Finance
of
the
Province
pursuant
to
the
provisions
of
Section
5(2)
of
the
Succession
Duty
Act,
1960
R.S.B.C.,
c.
372,
as
amended,
(ii)
the
quashing
of
that
determination
without
further
order,
and
(iii)
the
reference
of
the
matter
back
to
the
Minister
for
a
determination
to
be
made
in
the
exercise
of
his
discretion
on
proper
legal
principles.
The
impugned
determination
so
quashed
was
that
the
‘‘Mr.
and
Mrs.
P.
A.
Woodward’s
Foundation’’,
to
which
the
late
Percival
Archibald
Woodward
(the
‘‘deceased’’)
left
the
residue
of
his
estate,
was
not
a
‘‘religious,
charitable,
or
educational
organization’’
and
that
its
purpose
was
not
a
“religious,
charitable,
or
educational
purpose’’
under
Section
5(1)
of
the
statute.
As
a
result
of
that
determination
the
residuary
bequest
was
excluded
from
the
exemption
from
succession
duty
provided
by
Section
5(1),
and
duty
was
assessed
with
respect
thereto
in
an
amount
slightly
over
$1,600,000.
The
deceased
died
on
August
27,
1968
leaving
a
large
estate.
After
providing
for
certain
legacies
and
a
life
trust
for
his
widow,
he
bequeathed
the
residue
of
his
estate,
valued
at
slightly
over
$4,000,000
to
his
trustees
(the
respondents)
upon
trust:
“To
grant,
transfer,
assign,
deliver
and
set
over
unto
Mr.
&
Mrs.
P.
A.
Woodward’s
Foundation
for
use
by
it
in
carrying
out
its
objects
all
of
the
residue
of
my
estate.”
That
beneficiary
(the
“Foundation”)
was
incorporated
in
1951
under
the
Societies
Act
and
its
declared
objects
were
to
operate
in
the
Province
exclusively
as
a
charitable
organization
and
for
such
purpose
to
yearly
use
the
whole
of
its
net
income
for
charitable
objects
in
the
Province.
At
all
relevant
times
it
was
registered
as
a
qualified
Canadian
Charitable
Organization
under
the
Income
Tax
Act
of
Canada.
The
respondents
filed
their
Affidavit
of
Value
and
Relationship
with
inventories
as
required
by
the
Succession
Duty
Act
at
the
time
of
application
for
probate
of
the
deceased’s
last
Will
and
codicil
thereto.
Probate
was
granted
on
December
16,
1968.
On
May
21,
1969
an
assessment
of
duties
was
issued
pursuant
to
Section
20
of
the
statute
wherein
duties
were
assessed
on
the
residuary
bequest
to
the
Foundation
as
to
a
‘‘stranger’’
in
the
amount
of
just
over
$1,600,000.
In
other
words,
the
respondents’
application
to
have
that
bequest
considered
a
duty-free
one
under
Section
5(1)
was
not
reflected
in
the
assessment.
Later,
a
revised
assessment
was
received
which
corrected
an
error
with
respect
to
the
widow’s
life
interest,
but
maintained
the
tax
earlier
assessed
against
the
residuary
bequest
to
the
Foundation.
The
respondents
appealed
against
both
the
assessment
and
revised
assessment
to
the
Minister
of
Finance
under
Section
43
of
the
Act,
and
getting
no
response
and
assuming
that
the
revised
assessment
was
a
determination
of
the
appeals,
appealed
further
under
Section
44
to
a
Judge
of
the
Supreme
Court.
That
appeal
was
never
heard
on
its
merits,
as
the
learned
Supreme
Court
Judge,
before
whom
the
appeal
came
on
December
8,
1969,
dismissed
it
upon
acceding
to
a
preliminary
objection
taken
by
the
Department
that
the
appeal
was
premature.
It
was
only
a
few
days
before
that
hearing
that
the
respondents
became
aware,
through
an
affidavit
of
the
Assessor
of
Probate
and
Succession
Duties
filed
with
respect
to
the
appeal,
that
on
May
1,
1969,
the
Minister
of
Finance
had
made
a
determination
under
Section
5(2)
that
no
exemption
would
be
given
the
Foundation
as
a
religious,
charitable,
or
educational
organization.
A
further
appeal
was
taken
to
this
Court
from
that
dismissal,
but
before
it
was
heard
an
amendment
to
the
Succession
Duty
Act
was
passed
by
the
Legislative
Assembly,
1970
8.B.C.,
c.
45,
assented
to
on
April
3,
1970,
which
{inter
alia)
had
the
apparent
effect
of
extinguishing
all
rights
of
appeal
under
Sections
43
and
44.
In
any
event,
the
appeal
was
dismissed
by
this
Court,
the
respondents
(the
appellants
in
that
appeal)
conceding
that
the
amendment
had
removed
the
substratum
therefrom.
The
amending
statute
was
introduced
on
Februaary
11,
1970
into
the
Assembly
by
the
Minister
of
Finance
and
the
respondents,
no
doubt
considering
that
the
amendment
would
become
law
in
due
course
and
would
extinguish
any
existing
or
future
appeals
under
Sections
43
and
44,
launched
these
proceedings
on
March
18,
1970
for
a
writ
of
certiorari
directed
not
to
the
assessments
as
such
of
the
Minister
of
Finance
under
Section
20,
which
had
been
subject
of
the
abortive
appeals,
but
to
the
recently
discovered
determination
by
the
Minister
under
Section
9(2).
The
motion
was
not
only
for
the
issue
of
a
writ
of
certiorari
and
the
quashing
of
that
determination
thereunder,
but
also
for
a
declaration
that
the
bequest
to
the
Foundation
was
exempt
from
succession
duties
pursuant
to
the
provisions
of
Section
5(1)
(h)
of
the
statute.
The
relevant
provisions
of
the
Succession
Duty
Act,
as
they
stood
at
the
date
of
death
and
thereafter
up
to
April
3,
1970
were
as
follows:
5.
(1)
This
Act
shall
not
apply
so
far
as
liability
to
pay
succession
duty
is
concerned,
(h)
to
any
property
transferred
by
grant
or
gift,
whether
made
in
contemplation
of
death
or
otherwise,
or
devised
or
bequeathed
by
any
person
for
religious,
charitable,
or
educational
purposes
to
be
carried
out
in
the
Province,
or
on
the
amount
of
any
unpaid
subscription
for
any
like
purpose
made
by
any
person
so
dying
for
which
the
estate
of
the
deceased
is
liable;
nor
Although
subsections
(1),
(j)
and
(k)
also
deal
with
gifts,
devises,
and
bequests
for
religious,
charitable,
or
educational
purposes,
and
to
religious,
charitable,
or
educational
organizations,
it
is
unnecessary
to
set
them
out
as
both
counsel
advised
us
that
(h)
alone
was
the
relevant
exemption
clause
so
far
as
this
estate
was
concerned.
Section
5(2),
as
at
the
date
of
death
and
prior
to
amendment
in
1970,
read
as
follows:
(2)
For
the
purpose
of
subsection
(1),
the
Minister,
in
his
absolute
discretion,
may
determine
whether
any
purpose
or
organization
is
a
religious,
charitable,
or
educational
purpose
or
organization.
Section
4
of
the
1970
amending
statute,
1970
S.B.C.,
ce.
40,
amended
Section
5(2)
as
above
by
adding
at
the
end
thereof
the
following
:
and
the
determination
of
the
Minister
is
final,
conclusive,
and
binding
on
all
persons
and,
notwithstanding
section
43
or
44
or
any
other
provision
of
this
Act
to
the
contrary,
is
not
open
to
appeal,
question,
or
review
in
any
Court,
and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
is
binding
on
all
persons.
I
will
refer
hereafter
to
this
amendment
as
the
“1970
amendment”.
Further,
Section
12(4)
of
the
1970
amending
statute
provided
that
the
above
words
added
to
Section
5(2)
should
be
deemed
to
have
come
into
force
on
April
1,
1968,
and
be
retroactive
to
that
date
to
give
full
force
and
effect
on
or
after
that
date
and
be
applicable
to
property
passing
on
the
death
of
a
person
dying
on,
from
and
after
that
date.
It
should
be
noted
that
the
1970
amending
statute
made
other
substantial
amendments
to
the
Act,
including
(a)
the
repeal
of
subsections.
(h),
(i),
(j)
and
(k)
of
Section
5(1)
and
substituting
therefor
a
completely
different
form
of
charitable
exemption
from
duty
effective
for
property
passing
on
the
death
of
a
person
dying
on,
from,
and
after
April
1,
1970,
and
(b)
the
provision
that
Section
5(2)
should
not
apply
at
all
with
respect
of
estates
in
which
the
death
of
the
deceased
oceurs
on
or
after
April
1,
1970.
The
strange
result
of
these
amendments
is
that
for
persons
dying
before
April
1,
1968,
the
old
exemptions
under
Section
5(1)
and
the
old
Section
5(2)
giving
the
absolute
discretion
to
the
Minister
to
make
a
determination
(subject
to
full
rights
of
appeal)
applied
irrespective
of
whether
such
determination
be
made
at
any
time
before
or
after
April
1,
1970.
But
for
persons
dying
after
March
31,
1968
but
before
April
1,
1970,
the
old
exemptions
applied,
but
any
determination,
whether
made
during
that
period
or
at
any
time
thereafter,
was
declared
final,
conclusive
and
binding
and
not
open
to
appeal,
question,
or
review
by
any
Court
and
any
such
determination
made
by
the
Minister
under
Section
5(2)
is
ratified
and
confirmed.
As
the
deceased
died
after
March
31,
1968,
and
before
April
1,
1970,
the
second
category
applied
to
his
estate,
and
the
determination
of
the
Minister
made
on
May
1,
1969,
against
the
charitable
status
of
the
residuary
bequest
to
the
Foundation
purported
to
become
subject
to
those
retroactive
privative
provisions
added
to
Section
5(2)
by
the
1970
amendment.
The
respondent
based
their
application
for
certiorari
on
the
grounds
that
the
Minister
lacked
jurisdiction
to
make
the
determination
that
the
bequest
to
the
Foundation
was
not
exempt
from
duty,
(a)
as
such
determination,
being
of
judicial
or
quasi-judicial
character,
was
made
without
notice
to
the
respondents
or
the
Foundation
;
and
hence
contrary
to
the
principles
of
natural
justice,
(b)
as
he
acted
without
evidence,
or
alternatively,
sufficient
evidence
in
support
thereof,
(ec)
as
such
determination
was
beyond
the
powers
conferred
by
the
statute
on
him,
and
(d)
as
he
was
biased
by
reason
of
his
introduction
of
the
depri-
vatory
legislation
in
1970.
Mr.
Justice
Munroe
did
not
find
it
necessary
to
deal
with
grounds
(b)
and
(d)
above.
He
rejected
the
respondents’
submission
under
(c),
which
in
effect
was
that
the
proper
construction
of
Section
5(2)
was
that
the
Minister
could
grant
exemptions
by
conferring
a
religious,
charitable,
or
educational
status
to
an
organization
or
purpose,
but
he
could
not
deprive
an
organization
or
purpose
that
was
religious,
charitable
or
educational
of
its
charitable
nature
or
purpose.
He
found,
in
my
respectful
opinion
quite
correctly,
that
Section
5
of
the
statute
must
be
interpreted
that
‘‘the
legislature
has
granted
to
the
Minister
of
Finance
the
sole
right
and
the
duty
to
determine
whether
or
not,
for
the
purpose
of
determining
liability
or
exemption
from
succession
duty,
the
Foundation
or
its
purpose
is
a
religious,
charitable,
or
educational
purpose
or
organization”.
I
mention
this
conclusion
of
the
learned
Judge
only
because
the
respondents
in
this
appeal
have
reasserted
their
argument
and
submitted
that
they
can
support
the
Judgment
below
on
that
eround
as
well
as
upon
the
one
on
which
they
were
successful,
that
is,
on
ground
(a).
On
that
latter
ground
(a)
it
was
held
that
the
Minister
lost
or
exceeded
the
jurisdiction
given
to
him
under
Section
5(2)
as
when
he
made
his
determination
thereunder
he
acted
contrary
to
the
principles
of
natural
justice.
The
Judge
pointed
out
that
it
was
conceded
before
him
that
the
Minister
was
exercising
judicial
or
quasi-judicial
duties
and
that
he
gave
no
notice
and
no
fair
opportunity
to
the
respondents,
or
to
the
Foundation,
to
be
heard,
or
to
correct
or
contradict
that
which
was
alleged
against
the
exemption
they
claimed.
Having
so
found,
he
then
concluded
that
the
respondents
were
entitled
to
the
issue
of
certiorari,
and
the
quashing
of
the
determination
without
further
order,
unless
the
1970
amendment
adding
the
additional
words
retroactively
to
Section
5(2)
had
the
effect
of
depriving
the
respondents
of
that
remedy
or
of
validating
the
invalid
determination.
On
this
issue,
he
found
the
1970
amendment
did
not
have
such
effect.
In
result,
the
writ
of
certiorari
was
ordered
issued
as
the
Minister
of
Finance
had
exceeded
his
jurisdiction
in
making
his
determination
in
violation
of
natural
justice
and
the
rule
expressed
in
the
maxim
audi
alteram
partem,
the
determination.
was
ordered
quashed
without
further
order,
and
the
matter
was
referred
back
to
the
Minister
for
the
exercise
of
his
discretion
under
Section
5(2)
on
proper
legal
principles.
The
additional
application
for
a
declaration
of
exemption
from
duty
of
the
bequest
in
question
was
refused.
The
Minister
of
Finance
now
appeals
that
decision
and
the
respondents,
by
way
of
cross-appeal,
ask
for
variation
of
the
judgment
by
the
addition
of
that
declaration
of
exemption
which
was
denied.
-‘
Two
main
grounds
of
appeal
were
asserted.
both
were
submitted
on
the
basis
that
no
quarrel
was
raised
with
the
learned
Judge’s
finding
that
the
Minister
in
making
the
determination
in
question
was
exercising
judicial
or
quasi-judicial
duties,
that
he
was.
bound
to
act
in
good
faith,
and
that,
unless
or
to
the
extent
abrogated,
varied
or
modified
by
statute,
the
principles
set
out
in
the
maxim
audi
alteram
partem
would
have
full
application
and
a
failure
to
comply
therewith
would
result
in
loss
or
excess
of
jurisdiction
subjecting
the
determination
to
being
quashed.
The
first
main
ground
of
appeal,
concisely
put;
was
that
under
that
basis
and
those
circumstances
outlined,
the
determination
was
not
void
ab
initio,
but
only
voidable
at
the
instance
of
the
only
person
affected
by
the
decision,
that
is,
the
Foundation
and
not
at
the
instance
of
the
executors
of
the
estate.
It
was
the
executors
alone
who
launched:
the
motion
for
certiorari,
and
the
beneficiary
(which
alone
became
assessed
with
the
objection-
able
duty)
was
not
a
party
to,
or
represented
at,
any
of
the
proceedings
and
had
not,
as
a
person
aggrieved,
challenged
the
Minister’s
determination.
Therefore,
urged
the
appellant,
the
determination
could
not
be
successfully
attacked
except
at
the
instance
of
the
Foundation,
and
as
that
has
not
been
done,
at
the
worst
all
that
could
be
said
was
that
it
was
voidable,
but
not
void.
The
appellant
relied
on
the
decision
of
the
Judicial
Committee
in
Duray
appah
v.
Fernando
and
Others,
[1967]
2
A.C.
337;
[1967]
2
All
E.R.
152;
[1967]
3
W.L.R.
289.
In
that
case
proceedings
were
taken
by
way
of
certiorari
to
quash
an
order
of
the
Minister
of
Local
Government
dissolving
a
Town
Council
in
violation
of
the
principles
of
natural
justice
as
reflected
in
the
maxim
audi
alteram
partem.
The
proceedings
were
taken
by
the
Mayor
and
not
by
the
Town
Council.
It
was
held
that
the
order
could
have
been
held
void
ab
initio
in
an
action
by
that
Council,
yet
it
was
so
voidable
only
at
the
election
of
the
Council,
and
it
was
not
a
nullity;
accordingly
the
Mayor,
who
was
not
representing
the
Council
in
the
certiorari
proceedings,
could
not
complain
of
the
order
and
could
not
maintain
the
proceedings.
During
this
portion
of
the
appellant’s
argument
the
Court
pointed
out
that,
although
in
one
aspect
it
was
directed
as
a
support
for
the
second
main
ground
of
appeal,
in
another
it
was
clearly
challenging
the
competency
or
status
of
the
respondents
to
maintain
the
proceedings,
a
position
which
had
not
been
suggested
below
and
had
not
been
included
in
the
Notice
of
Appeal.
The
appellant
immediately
moved
to
amend
his
Notice
of
Appeal
to
add
such
a
ground
of
appeal.
The
application
was
opposed
by
the
respondents,
but
as
the
argument
had
proceeded
so
far,
the
Court
reserved
judgment
on
the
application
and
heard
both
parties
in
full
on
the
merits.
Although
it
is
clear
that
the
new
ground
of
appeal
was
raised
very
much
as
an
afterthought,
I
can
see
no
prejudice
to
the
respondents
and
I
would
allow
the
amendment.
Reverting
to
the
submission,
in
my
view
the
Durayappah
decision
is
clearly
distinguishable
from
the
case
at
bar.
There,
the
Mayor
was
acting
on
his
own
behalf
and
not
on
that
of
the
Town
Council,
and
he
was
not
able
to
show
that
he
was
representing
or
suing
on
its
behalf
or
had
any
other
good
reason
to
be
acting
for
it.
Here
the
situation
is
completely
different.
In
general
it
is
fair
to
say
that,
except
when
a
beneficiary
of
an
estate
is
separately
represented,
or
where
there
is
some
other
special
reason
to
the
contrary,
the
executors
represent
the
estate
as
a
whole
and
the
interests
of
all
the
persons
entitled
thereto,
particularly
in
such
matters
as
the
ascertainment,
negotiation
and
settlement
of
claims,
debts,
duties
and
taxes
attracted
by,
or
exigible
on,
the
decease
of
a
testator.
In
particular,
the
federal
Estate
Tax
Act
and
the
Succession
Duty
Act
both
require
the
executors
to
prepare
and
file
all
the
necessary
forms
and
make
all
the
information
disclosures
leading
up
and
directed
to
tax
or
duty
assessments.
This,
of
course,
involves
the
duty
of
putting
before
the
fiscus
claims
for
exemption
or
diminution
of
taxes
and
duties.
This
is
one
of
the
very
important
tasks
of
a
personal
representative
and
I
cannot
think
that
his
active
participation
in
this
sphere
of
administration
of
estates
has
been
challenged.
The
executor
is
personally
liable
for
the
payment
of
federal
estate
taxes
as
assessed,
although,
because
of
constitutional
restrictions,
he
is
not
personally
liable
for
payment
of
succession:
duties
under
the
provincial
Succession
Duty
Act.
Nonetheless,
he
is
obligated
to
deduct
the
duty
from
the
property
in
respect
to
which
duty
is
assessed,
hold
it
in
trust
for,
and
pay
it
to,
the
Crown,
and
is
subject
to
severe
penalties
for
failure
so
to
do.
In
this
particular
estate
(where
both
executors
were
directors
of
the
Foundation
and
one
was
its
first
Vice-President
and
the
other
its
Secretary),
the
executors
claimed
the
charitable
exemption
for
that
residuary
legatee
and
pursued
that
claim
through
the
appeals
and
proceedings.
I
cannot
accept
the
submission
that
the
executors
had
no
status
to
pursue
these
proceedings
or
that
they
were
defective
because
the
Foundation
for
which
the
litigation
has
been
openly
pursued
has
not
been
joined
as
a
formal
party.
It
is
my
view
that
the
executors
were
properly
pursuing
the
claim
of
the
Foundation
—
namely,
the
procuration
of
a
charitable
exemption
which
was
an
estate
matter
of
vital
importance,
involving,
as
it
did,
succession
duty
amounting
to
about
thirty-six
percent
of
the
total
value
of
the
estate.
The
second
ground
of
appeal
was
the
principal
one
upon
which
the
appellant
relied.
It
is
that
the
learned
Judge
erred
in
holding
that
the
retroactive
1970
amendment
to
Section
5(2)
purporting
to
ratify
and
confirm
determinations
of
the
Minister
under
that
section
did
not
have
that
effect
when,
as
here,
a
determination
was
made
in
breach
of
the
principles
of
natural
justice.
The
following
extracts
from
his
reasons
for
judgment
show
clearly
the
rationale
upon
which
the
learned
Judge
concluded
that
the
1970
amendment
did
not
have
the
effect
claimed
by
the
appellant.
He
said,
first,
and
in
my
view,
quite
properly,
that:
.
.
.
and
certiorari
is
available
as
a
remedy
unless
the
amendments
have
effect
of
depriving
this
Court
of
any
jurisdiction
to
review
the
determination
of
the
Minister.
Counsel
for
the
Minister
so
asserts,
relying
on
the
words
added
to
Section
5(2)
in
1970.
He
then
proceeded
:
I
reject
such
submission.
It
has
been
held
repeatedly
in
Canadian
courts
that
enactments
which
purport
to
oust
or
deprive
the
court
of
jurisdiction
to
review
the
judicial
or
quasi-judicial
acts
of
a
person
or
tribunal
exercising
a
discretionary
authority
under
a
statute
are
ineffective
for
that
purpose
where
a
breach
of
the
principles
of
natural
justice
has
occurred,
and
that
is
so
even
where
the
enactment
has
provided
that
the
decision
of
such
person
or
tribunal
is
final
and
that
he
or
it
shall
not
be
restrained
by
certiorari
or
otherwise
by
any
court:
Toronto
Newspaper
Guild
v.
Globe
Printing
Co.,
[1953]
2
S.C.R.
18;
Saltfleet
Board
of
Health
v.
Knapman,
[1956]
S.C.R.
877;
Battaglia
v.
Workmen’s
Compensation
Board
(1960),
32
W.W.R.
1;
Judicial
Review
of
Administrative
Action
(2nd
ed.)
by
S.
A.
de
Smith
at
pp.
344
et
seq.;
Ke
Rammell
(1962),
37
W.W.R.
49.
However,
counsel
for
the
Minister
submits
that
the
words
“and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
binding
on
all
persons”
make
the
principles
of
law
above
referred
to
inapplicable
to
this
case.
He
says,
in
effect,
that
the
determination
of
the
Minister
is
valid
and
binding
and
not
subject
to
review
in
any
court,
notwithstanding
that
in
arriving
at
his
decision
the
Minister
may
have
contravened
the
principles
of
natural
justice.
He
says
that
the
words
“any
determination”
means
just
that—a
determination,
however
much
it
may
violate
legal
principles,
must
stand
because
it
has
been
ratified
in
advance
by
the
Legislature.
I
reject
that
submission.
The
Legislature
could
not
ratify
or
confirm
a
determination
that
was
not
then
in
existence
any
more
than
it
could
ratify,
confirm
or
make
binding
a
determination
which
was
a
nullity
at
law.
A
determination
made,
as
this
one
was,
in
breach
of
the
principles
of
natural
justice,
is
void.
Counsel
says,
and
I
agree,
that
the
Legislature
is
supreme
when
enacting
legislation
within
its
constitutional
powers.
It
could
have
enacted
legislation
saying
that
for
the
purpose
of
Section
5(1)
of
the
Succession
Duty
Act,
the
Foundation
is
not
a
charitable
organization
and
does
not
have
a
charitable
purpose
and
that
would
have
been
the
end
of
the
matter;
but
it
did
not
do
that.
The
appellant
does
not
question,
as
he
cannot,
the
law
enunciated
in
the
many
cases
decided
by
the
Supreme
Court
of
Canada,
as
well
as
by
the
House
of
Lords
and
the
Judicial
Committee,
in
which
so-called
privative
(or
‘‘no-certiorari’’
or
“no-appeal”
or
‘‘preclusive’’
or
“finality”
or
‘‘ouster’’,
as
they
are
often
called)
clauses
have
been
held
as
a
matter
of
construction
to
be
effective
only
with
respect
to
matters
decided
within
the
scope
or
ambit
of
the
authority
given
by
the
Statute
(no
matter
how
wrong
in
law
or
in
fact)
and
to
be
ineffective
with
respect
to
matters
decided
outside
the
tribunal’s
statutory
jurisdiction
or
competence.
The
leading
cases
were
all
cited
to
us,
and
their
ratio
was
largely
relied
upon
by
the
respondents.
I
can
see
no
useful
purpose
in
discussing
those
cases
in
detail
as
the
question
here
(as
it
was
in
them)
is
simply,
as
stated
by
the
learned
Judge,
whether
the
effectiveness
of
those
ratifying
and
confirming
provisions
of
the
1970
amendment
is
limited
to
in-
valid
determinations
of
the
Minister
made
within
his
proper
jurisdiction
or,
as
argued
by
the
appellant,
the
provisions
are
to
be
properly
construed
so
as
to
cover
invalid
determinations
of
the
Minister
made
beyond
his
competence
because
of
failure
to
abide
by
the
principles
of
natural
justice,
although
purportedly
made
within
that
competence.
There
can
be
no
gainsaying
but
that
such
a
problem
is
to
be
determined
as
a
matter
of
statutory
construction,
a
question
involving
as
to
what,
or
the
extent
of
what,
Parliament
or
a
Legis.
lature
intended
or
meant
to
cover
by
its
enactment
and
whether
the
language
used
accomplished
that
end:
See
Sanders
v.
The
Queen,
[1970]
S.C.R.
109.
And,
in
view
of
the
authorities,
I
am
satisfied
that
in
order
that
such
an
enactment
be
given
the
protective
cover
claimed
here
by
the
appellant
that
that
intention
must
be
clearly
apparent
from
the
language
of
the
statute
used.
A
superior
court’s
jurisdiction
to
review
and
remedy
improper
conduct
of
an
inferior
tribunal
arising
out
of
excess
of
authority
must
remain
paramount
unless
it
is
clear
that
it
has
been
removed
by
the
Legislature.
The
learned
Judge
in
his
reasons,
supra,
appears
to
have
rejected
the
interpretation
sought
by
the
appellant
on
the
grounds
that
(i)
the
Legislature
could
not
‘‘ratify
or
confirm
a
determination
which
was
not
then
in
existence’’
and
that
(ii)
it
could
not
confirm
or
make
binding
‘‘a
determination
which
was
a
nullity’?
—
which
he
found
the
Minister’s
determination
in
question
to
be.
He
does
agree
to
the
supremacy
of
the
Legislature,
but,
apparently,
seems
to
limit
it
to
a
situation
where
it
specifically
and
expressly
should
enact
that
the
Foundation
was
not
a
charitable
organization
coming
within
Section
5(1)
of
the
statute.
If
what
he
meant
by
the
first
statement
was
that
the
legislation
was
ineffective
to
validate
any
determination
not
then
made,
I
respectfully
suggest
that
that
has
no
relevance.
The
impugned
determination
of
the
Minister
was
made
on
May
1,
1969,
and
the
clear
and
expressed
effect
of
the
legislation
which
came
into
effect
on
April
3,
1970,
was
to
ratify
all
determinations
made
by
the
Minister
under
Section
5(2)
from
April
1,
1968,
two
years
earlier.
It
is
immaterial
for
this
case
to
consider
what,
if
any,
effect
the
ratification
and
confirmation
provisions
would
have
on
a
determination
made
after
April
3,
1970.
On
the
other
hand,
if
his
reference
to
a
determination
‘‘not
then
in
existence”
meant
only
one
which
was
a
‘‘nullity’’,
as
expressed
in
his
second
statement
above,
I
do
not
agree
that
the
Legislature
cannot
validate,
make
binding,
confirm
or
ratify
a
de
facto
determination
which
is
a
nullity
or
void.
It
can
so
do,
if
a
statute
so
enacts.
Although
I
do
agree
with
the
learned
Judge
that
the
Legislature
could,
as
he
indicated,
specifically
declare
the
Foundation
not
to
be
a
charitable
organization,
I
must
disagree
if
he
meant
to
imply
that
it
must
go
that
far
in
order
to
prevent
interference
by
the
Court.
As
I
have
already
indicated,
if
the
determination
of
the
Minister
actually
made
under
Section
5(2)
was
in
law
invalid
and
hence
nothing
more
than
a
purported
determination,
the
Legislature
with
apt
language
could
effectively
validate
it.
Again,
it
is
but
a
matter
of
determining
what
the
Legislature
in
this
particular
1970
amendment
meant
to
do
as
determined
by
the
language
it
used
considered
in
proper
context.
A
great
deal
of
argument
was
heard
directed
to
the
question
of
whether
or
not
the
determination
of
the
Minister
was
void
or
voidable.
That
is
a
question
that
has
certain
difficulties
which
have
been
much
discussed
in
many
leading
decisions
such
as
Ridge
v.
Baldwin
and
Others,
[1964]
A.C.
40,
[1963]
2
All
E.R.
66;
Anisminic
Ltd.
v.
The
Foreign
Compensation
Commission,
[1969]
2
A.C.
147,
[1969]
1
All
E.R.
208;
and
Durayappah
v.
Fernando
and
Others,
supra.
In
view
of
the
conclusion
to
which
I
have
come
as
to
the
proper
construction
of
the
1970
amendment,
it
is
unnecessary,
for
me
to
reach
a
decision
on
the
point.
1
approach
the
problem
on
the
basis
that
the
determination
was
void,
in
the
sense
of
being
invalid
and
a
nullity,
which
is
the
one
most
favourable
to
the
respondents.
In
a
situation
as
here,
I
can
see
no
relevance
to
subtle
distinctions
between
‘void”,
“invalid”
and
a
‘‘nullity’’.
Although
we
are
not
at
liberty
to
construe
an
enactment
by
the
motives
which
influenced
the
Legislature,
I
think
we
can
look
to
some
extent
at
the
history
thereof
in
the
sense
of
its
timing
and
retroactive
feature
to
show
that
there
was
an
intent
to
remedy
a
situation
or
a
defect
pre-existing.
The
language
used
must
then
be
considered
to
see
whether
any
such
object
had
been
fairly
and
clearly
carried
out.
We
are
entitled
to
note
that
the
impugned
determination
was
the
subject
of
appeals
and
an
attack
as
being
invalid
at
the
time
the
appellant
Minister
introduced
the
1970
amendment
in
this
Legislature.
I
will
repeat
for
ease
of
reference
the
words
added
by
the
1970
amendment,
but
setting
it
out
in
a
form
to
point
out
its
several
“compartments”.
But,
first,
I
observe
that
it
has
no
reference
to
any
general
powers
of
the
Minister
under
the
statute,
but
only
to
the
very
limited
right
under
Section
5(2)
to
make
a
determination
whether
or
not
an
organization
or
a
purpose
is
a
religious,
charitable,
or
educational
organization
or
purpose.
In
effect,
it
is
a
“yes
or
no’?
decision.
The
words
of
the
1970
amendment
(so
set
out
to
accent
its
parts)
are:
1.
‘and
the
determination
of
the
Minister
(a)
is
final,
conclusive,
and
binding
on
all
persons
and,
(b)
notwithstanding
sections
43
or
44
or
any
other
provision
of
this
Act
to
the
contrary,
is
not
open
to
appeal,
question
or
review
in
any
Court,
2.
and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
is
binding
on
all
persons.
’
’
And
there
must
be
read
with
the
foregoing
the
words
of
Section
12(4)
of
the
amending
statute
which
provides
that
“it
is
retroactive
to
the
extent
necessary
to
give
full
force
and
effect’’
to
the
amended
provisions
on
and
after
April
1,
1968
but
has
application
only
to
property
passing
011
deaths
011,
from
01
after
that
date.
I
am
inclined
to
the
view
that
had
the
first
parts
(viz
:
what
I
have
itemized
as
1(a)
and
(b))
stood
alone,
the
proper
construction
would
have
been
that
reference
was
made
to
a
determination,
made
or
to
be
made,
within
the
Minister’s
jurisdiction,
and
that
the
language
would
not
extend
to
cover
a
situation
where
the
Minister
acted
beyond
his
statutory
power.
But,
in
my
view,
the
second
part
(which
I
have
itemized
as.
2.)
must-be
given
some
meaning
of
its
own
and
not
be
treated
as
mere
surplusage.;-1
think
the
addition
of
the
words
“any”
and
‘‘made
under
this
subsection’’
and
the
repetition
of
the
words
‘‘binding
on
all
persons’’
in
the
context
of
the
first
parts
which
had
complete
coverage
in
themselves,
patently
point
up
that
the
Legislature
was
additionally
validating
any
invalid
determination
previously
made
by
the
Minister
which
he
had
purported
to
make
under
the
section,
notwithstanding
the
reason
for
the
invalidity
and
whether
or
not
it
arose
from
an
excess
of
‘‘jurisdiction’’,
imputed
because
of
a
breach
of
natural
justice
in
the
reaching
of
such
determination,
The
Shorter
Oxford
Dictionary
shows
the
primary
meaning
of
‘‘ratify’’
to
be
‘
‘
or
make
valid”
and
one
meaning
of
‘‘confirm’’
to
‘‘make
valid
by
formal
authoritative
assent;
to
ratify,
sanction.’’
In
my
opinion,
the
last:
portion
of
the
passage
(i.e.
the
part
I
have
noted
as
2.)
would
be
completely
redundant
and
add
nothing
to
the
first
part
unless
it
be
construed
to
mean
something
more,
namely,
what
I
think
it
clearly
says
that
any
invalid
determination
made
after
April
1,
1968
by
the
Minister
under
or
purportedly
under
Section
5(2)
as
to
whether
or
not
an
organization
or
purpose
is
or
is
not
religious,
charitable,
or
educational
is
thereby
validated
and
made
binding.
The
intention
to
validate
what
was
invalid
(regardless
of
the
basis
of
the
invalidity)
is
clear
from
the
language.
used.
I
think
the
following
provisions
set
out
in
Section
23(f)
of
the
Interpretation
Act,
1960
R.S.B.C.
c.
199
have
application
and
give
support
to
that
conclusion
:
(f)
every
Act
and
every
provision
or
enactment
thereof
shall
be
deemed
remedial,
whether
its
immediate
purport
be
to
direct
the
doing
of
anything
that
the
Legislature
deems
to
be
for
the
public
good,
or
to
prevent
or
punish
the
doing
of
anything
that
it
deems
contrary
to
the
public
good;
and
shall
accordingly
receive
such
fair,
large,
and
liberal
construction
and
interpretation
as
will
best
ensure
the
attainment
of
the
object
of
the
Act,
and
of
such
provision
or
enactment,
according
to
their
true
intent,
meaning,
and
spirit;
In
view
of
that
conclusion
(the
result
of
which
I
admit
I
find
subjectively
unpalatable)
at
which
I
have
so
arrived,
I
am
bound
to
allow
the
appeal,
reverse
the
decision
of
the
learned
Judge
below
and
direct
the
respondents’
application
for
a
writ
of
certiorari
be
dismissed.
It
follows
that
the
respondents’
application
to
vary
the
order
below
by
a
declaration
of
exemption
of
duty
must
also
be
dismissed.
Branca,
J.:—One
P.
A.
Woodward
died
on
August
27,
1968
leaving
an
estate
valued
for
succession
duty
purposes
at
about
$4,450,000.
Four
million
dollars,
consisting
of
the
residue
of
the
estate,
he
bequeathed
to
a
foundation
known
as
the
‘
Mr.
and
Mrs.
P.
A.
Woodward
Foundation’’
which
was
incorporated
under
the
Societies
Act
of
this
Province
on
October
29,
1951.
The
objects
of
the
Foundation
were
charitable
and
were
to
be
carried
out
in
this
Province.
The
executors
of
the
estate
were
Bruce
Clinton
Samis,
a
stockbroker,
and
William
Swannell.
The
latter,
since
1951,
has
been
the
first
and
only
secretary
of
the
Foundation.
The
executors
applied
for
probate
of
the
last
will
and
testament
of
the
said
deceased
and
executed
affidavits
of
value
and
relationship
and
the
required
inventories
X
and
Y.
In
due
course
the
documents
came
before
one
J.
W.
Minty,
Director,
Probate,
Succession
Duties,
Trust
Companies
and
Income
Tax
Branch,
and
a
memo
went
from
the
said
Minty
to
one
Bryson,
Deputy
Minister
of
Finance,
in
reference
to
the
Woodward
estate,
requesting
a
decision
of
the
claim
of
the
estate
for
exemption
from
succession
duties
of
the
bequest.
The
said
memo
read
as
follows
:
TO
Mr.
G.
S.
Bryson
FROM
J.
W.
Minty
Deputy
Minister
of
Finance
Assessor
and
Collector
of
BUILDINGS
Probate
&
Succession
Duties
|
April
25
|
1969
|
|
OUR
FILE
8096/689
|
|
SUBJECT
|
WOODWARD,
PERCIVAL
ARCHIBALD
|
|
Deceased:
August
27,
1968
|
|
Would
you
please
indicate
your
concurrence
or
otherwise
regarding
the
estate’s
claim
for
exemption
under
the
Succession
Duty
Act
for
a
$4,000,000
bequest
to
the
Mr.
and
Mrs.
P.
A.
Woodward
Foundation.
For
your
information
there
was
also
a
capital
donation
for
$1,800,000
in
1965
shown
in
the
following
schedule
made
by
P.
A.
Woodward
and
his
personal
corporation
beyond
three
years
of
the
date
of
death
so
far
as
can
be
ascertained.
The
widow
received
a
life
interest
in
a
$1,500,000
trust,
plus
$100,000
in
trust
for
medical
expenses,
etc.
The
duties
on
this,
about
$124,000,
will
be
the
only
duties
in
the
estate.
SUMMARY
OF
MR.
&
Mrs.
P.
A.
WOODWARD
FOUNDATION
|
1965
-1968
|
|
|
1965
|
|
1966
|
|
1967
|
|
1968
|
|
Capital
donation
|
$1,800,000
|
|
|
Income
from
|
|
|
investment
|
198,000
|
$
|
280,000
|
$
|
272,000
|
$
|
263,000
|
|
Donations
|
(Schedule
|
|
|
2
|
of
|
attached
|
|
|
accounts)
|
|
122,000
|
|
237,000
|
|
271,000
|
|
212,000
|
|
Salaries
|
and
|
Fees
|
12,000
|
|
12,500
|
|
12,500
|
|
15,000
|
|
Surplus,
|
end
of
|
|
|
year
not
including
|
|
|
$4,000,000
|
bequest
|
|
|
in
|
1968
|
|
$5,375,000
|
$5,400,000
|
$5,410,000
|
$5,445,000
|
Attached
please
see:
(1)
Auditors
accounts
1966,
1967
and
1968
(2)
Copies
of
objects
and
bylaws
of
the
foundation.
The
affidavit
material
contained
in
the
appeal
book
included
an
affidavit
from
the
Honourable
the
Minister
of
Finance
of
this
Provinee
stating
that
he
was
the
incumbent
Minister
at
the
relevant
time
and
that
he
did
on
or
about
May
1,
1969
make
a
determination
under
Section
5(2)
of
the
Succession
Duty
Act
in
reference
to
the
bequest
left
by
the
deceased
to
the
Foundation.
The
effect
of
that
determination
was
that
the
Foundation
was
not
entitled
to
an
exemption
and
meant
or
could
only
mean
that
the
Foundation
was
not
a
religious,
charitable
or
educational
organization
or,
alternatively,
that
the
purpose
of
the
bequest
was
not
religious,
charitable
or
educational.
|
1/5/69
|
“J.
W.
Minty”
|
|
No
exemption
for
|
J.
W.
Minty
|
|
bequest
to
foundation
|
Director,
Probate,
Succession
Duties,
|
|
“DRA”
|
Trust
Companies
and
Income
Tax
Branch
|
Bryson,
the
Deputy
Minister,
deponed
in
his
affidavit
to
the
fact
that
on
May
1,
1969
the
Minister
of
Finance,
who,
in
fact,
was
also
the
Premier
of
the
Province
of
British
Columbia,
verbally
informed
him
of
the
said
determination
and
that
on
the
same
day
he,
Bryson,
informed
Alexander,
who
was
the
Assistant
Deputy
Minister
of
Finance,
of
the
determination.
On
the
same
day
he
caused
to
be
delivered
to
Alexander
the
memo,
above
quoted,
which
he
had
received
from
Minty.
Alexander
in
his
affidavit
acknowledged
receipt
of
the
said
memo
and
stated
that
he
had
pencilled
a
notation
thereon
and
then
returned
the
memo
to
Minty.
Thus
it
will
be
noted
that
the
determination
was
verbally
made
and
communicated
by
word
of
mouth,
as
aforesaid,
and
in
this
way
an
indebtedness
of
about
$1,600,000
was
born.
The
memo
of
Minty
and
the
three
affidavits
referred
to
show
the
complete
course
of
action
and
the
chain
of
descending
authority
which
was
involved
in
making
the
written
notation,
appearing
on
the
memorandum
first
quoted,
made
by
Alexander.
Under
the
provisions
of
the
Succession
Duty
Act
(consolidated
up
to
July
1,
1967)
the
following
section
was
involved
and
stripping
the
section
of
its
non-essentials
for
the
purposes
of
this
appeal,
the
applicable
parts
of
the
section
are
as
follows:
5.
(1)
This
Act
shall
not
apply,
so
far
as
liability
to
pay
succession
duty
is
concerned,
(h)
to
any
property
transferred
by
grant.
or:
gift,
whether
made
in
contemplation
of
death
or
otherwise,
or
devised
or
bequeathed
by
any
person
for
religious,
charitable,
or
educational
purposes
to
be
carried
out
in
the
Province,
or
on
the
amount
of
any
unpaid
subscription
for
any
like
purpose
made
by
any
person
so
dying’
‘for
which
the
estate
.
::1
of.
the
deceased
is
liable;
nor
(i)
that
portion
of
any
property
transferred
by.
grant
or
gift,
whether
made
in
contemplation
of
death
or
otherwise,
or
devised
or
bequeathed
by
any
person
for
religious,
charitable
or
educational
organization
that
carries
on
its
work
both
in
and
outside
of
the
Province
the
value
of
which
bears
the
same
ratio
to
the
net
value
of
all
the
property
passing
on:
the
death
of
the
deceased
that
its
expenditures
for
carrying
on
the
work
of
the
organization
in
the
Province
bear
to
the
total
expenditures
of
the
organization
during
such
period
as
the
Minister
may
determine;
nor
(j)
to
property
given,
devised,
or
bequeathed
for
religious,
charitable,
or
educational
purposes
to
be
carried
out
in
any
Province
of
Canada
other
than
British
Columbia
that
is
shown
to
the
satisfaction
of
the
Minister
to
allow
the
same
exemption
on
property
given,
devised,
or
bequeathed
for
religious,
charitable,
or
educational
purposes
to
be
carried
out
in
British
Columbia;
nor
(2)
For
the
purpose
of
subsection
(1),
the
Minister,
in
his
absolute
discretion,
may
determine
whether
any
purpose
or
organization
is
a
religious,
charitable,
or
educational
purpose
or
organization.
Thus
it
will
be
seen
that
for
the
purposes
of
subsection
(1)
of
Section
5.the
Minister
was
statutorily
vested
with
an
absolute
discretion
to
determine
whether
the
purpose
of
the
bequest
was
religious,
charitable
or
educational
or
whether
the
organization
came
within
the
classification
of
a
religious,
charitable
or
educational
one
and,
if
so,
entitled
to
exemption
from
the
statutory
succession
duties.
At
the
relevant
time
Section
44
of
the
Act
provided
that
if
an
applicant
was
dissatisfied
with
a
decision
of
the
Minister
he
might
appeal
therefrom
to
a
Judge
of
the
Supreme
Court.
The
section
also
designated
the
formalities
and
practice
to
be
followed.
The
executors
appealed
to
the
Supreme
Court
in
accordance
with
the
provisions
of
that
section,
on
September
11,
1969.
That
statutory
appeal
came
before
the
Honourable
Mr.
Justice
Aikins
in
due
course.
The
said
learned
judge
dismissed
the
appeal
upon
a
preliminary
objection
which
was
to
the
effect
that
there
was
no
decision
as
contemplated
by
Section
44
against
which
the
executors
could
appeal.
The
executors
then
appealed
that
judgment
to
this
honourable
court
on
January
6,
1970.
That
appeal
became
futile
after
the
amendments
to
the
Succession
Duty
Act,
hereinafter
referred
to,
and
was
dismissed.
The
material
shows
that.
on
or
about
February
9,
1970
the
Minister
of
Finance
introduced
in
the
Legislative
Assembly
of
this
Province
an
Act
to
amend
the
Succession
Duty
Act
containing,
inter
alia,
a
proposed
amendment
to
subsection
(2)
of
Section
5,
by
adding
to
the
section
as
it
theretofore
stood.
The
part
that
was
added
read
as
follows:
and
the
determination
of
the
Minister
is
final,
conclusive,
and
binding
on
all
persons,
and
notwithstanding
sections
43
and
44
or
any
other
provision
of
this
Act
to
the
contrary,
is
not
open
to
appeal,
question,
or
review
in
any
Court,
and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
is
binding
on
all
persons.
Section
5(2),
as
amended,
read
as
follows:
(2)
For
the
purpose
of
subsection
(1)
the
Minister,
in
his
absolute
discretion,
may
determine
whether
any
purpose
or
organization
is
a
religious,
charitable,
or
educational
purpose
or
organization
and
the
determination
of
the
Minister
is
final,
conclusive,
and
binding
on
all
persons,
and
notwithstanding
sections
43
and
44
or
any
other
provision
of
this
Act
to
the
contrary,
is
not
open
to
appeal,
question,
or
review
in
any
Court,
and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
is
binding
on
all
persons.
The
section,
as
amended,
received
assent
from
the
Legislative
Assembly
on
April
3,
1970.
The
1970
amendments
added
a
section
numbered
5
(2a)
which
reads
:
(2a)
Subsection
(2)
does
not
apply
in
respect
of
estates
in
which
the
death
of
the
deceased
occurs
on
or
after
the
first
day
of
April,
1970.
Section
12(4)
of
the
amendments
of
1970
(Chapter
45)°
reads
as
follows
:
(4)
Section
5
shall
be
deemed
to
have
come
into
force
on
the
first
day
of
April,
1968,
and
is
retroactive
to
the
extent
necessary
to
give
full
force
and
effect
to
the
provisions
it
amends
on
or
after
that
date,
and
applies
to
property
passing
on
the
death
of
a
person
dying
on,
from,
and
after
that
date.
The
changes
effected
by
the
amendments
to
the
Act,
relevant
to
the
Woodward
estate,
were
that
Section
5(2),
as
amended,
made
(a)
All
determinations
of
the
Minister
final,
conclusive
and
binding
on
everybody,
notwithstanding
any
provision
in
the
Act
to
the
contrary
;
(b)
Isolated
such
determinations
from
any
appeal,
question
or
review
by
any
court,
and
(c)
Gave
legislative
ratification
and
confirmation
to
any
determination
theretofore
made
by
the
Minister
under
Section
5(2)
and
made
the
same
binding
upon
all
persons.
It
will
be
noted
too
that
the
foregoing
changes
were
deemed
to
have
come
into
force
not
on
the
date
the
amending
Act
received
assent,
that
is
to
say,
on
April
3,
1970,
but
on
April
1,
1968
so
that
Section
5(2),
as
amended,
applied
as
of
April
1,
1968
to
all
property
of
any
persons
which
passed
on
the
death
of
one
after
that
date
up
to
only
April
1,
1970.
It
is
obvious
that
the
legislature
attempted
by
this
rather
extraordinary
piece
of
legislation
to
bring
the
Woodward
estate
within
the
purview
of
the
amended
provisions
of
the
Succession
Duty
Act.
It
will
be
remembered
that
Woodward
died
on
August
27,
1968,
some
473
days
before
the
amendments
above
discussed
were
assented
to
by
the
legislature,
and
the
determination
which
the
legislature
by
virtue
of
the
amendments
sought
to
make
good
was
made
by
the
Minister
some
303
days
before
the
amendments
were
assented
to
in
the
legislature.
When
Woodward
died
and
before
the
determination
was
made
all
parties
concerned
and
the
world
at
large
were
entitled
to
expect
that
whatever
rights
and
liabilities
might
arise
would
crystallize
in
accordance
with
the
legislation
that
was
in
force
on
the
date
of
death.
The
estate,
the
beneficiaries
and
the
world
at
large
were
entitled
to
expect
that
the
Minister
in
his
absolute
discretion
could
and
would
fairly
determine
whether
the
Foundation
was
a
religious,
charitable
or
educational
organization
and/
or
whether
the
bequest
was
for
purposes
that
were
religious,
charitable
or
educational
under
the
law
as
it
then
stood.
All
parties
concerned
and
the
world
at
large
knew,
as
the
law
then
stood,
that
in
appropriate
cases
if
a
determination
were
made
contrary
to
the
rules
of
natural
justice
that
that
determination
which
the
Minister
was
empowered
to
make
under
Section
5(2)
was
not
statutorily
protected
by
a
privative
clause,
and
further
that
the
determination
made
by
the
Minister
was
not
ratified
and
confirmed
ex
post
facto
so
as
to
give
it
retroactive
legislative
benediction
and
thus
make
it
binding
on
all
persons.
But
the
amendment,
coming
as
it
did,
473
days
after
the
death
of
Woodward
and
303
days
after
the
determination
was
in
fact
made,
the
estate
was
retroactively
made
subject
to
a
new
set
of
statutory
enactments.
One
wonders
why
the
legislature
did
not
enact
that
the
determination
made
by
the
Minister
on
May
1,
1969
in
reference
to
the
Woodward
estate
by
the
terms
of
which
exemption
from
succession
duties
was
refused,
was
ratified
and
confirmed
by
the
legislature
and
by
legislative
decree
enact
that
the
Foundation
was
not
a
religious,
charitable
or
educational
organization
and
that
the
purpose
of
the
bequest
was
not
religious,
charitable
or
educational.
On
March
18,
1970
the
executors
of
the
estate
moved
the
presiding
judge
of
the
Supreme
Court
of
British
Columbia
for
a
writ
of
certiorari
to
remove
into
court
the
record
of
the
determination
made
by
the
Minister
under
Section
5(2)
before
amendment,
on
the
several
grounds
mentioned
in
the
Notice
of
Motion,
which
grounds
are
as
follows
:
1.
That
the
Honourable
the
Minister
of
Finance
lacked
jurisdiction
to
determine
that
the
said
gift
to
the
said
Founda-
tion
was
not
exempt
from
succession
duty
in
that
the
said
determination,
being
of
a
judicial
or
quasi-judicial
character,
was
made
without
notice
to
the
Executors
of
the
Estate
of
Percival
Archibald
Woodward,
deceased,
contrary
to
the
principles
of
natural
justice.
2.
That
the
Honourable
the
Minister
of
Finance
lacked
jurisdiction
to
make
the
said
determination
in
that
he
acted
without
evidence
or,
alternatively,
without
sufficient
evidence
in
support
thereof.
3.
That
the
Honourable
the
Minister
of
Finance
lacks
jurisdiction
to
make
any
determination
pursuant
to
the
provisions
of
subsection
(2)
of
section
5
of
the
‘‘Succession
Duty
Act’?
in
respect
of
the
said
gift
to
the
said
Foundation
and
that
such
determination
is
and
would
be
beyond
the
powers
conferred
upon
him
under
the
provisions
of
the
said
‘‘Succession
Duty
Act”.
4.
That
the
Honourable
the
Minister
of
Finance
lacks
jurisdiction
on
the
ground
that
he
is
biased
in
respect
of
the
said
Estate
by
reason
of
introducing
legislation
having
for
its
purpose
depriving
the
Executors
of
the
said
Estate
of
their
right
to
appeal
from
the
Judgment
pronounced
in
this
Honourable
Court
by
the
Honourable
Mr.
Justice
Aikins
on
the
8th
day
of
December,
1969.
The
learned
trial
judge
held
that
the
Minister
was
discharging
a
judicial
or
quasi-judicial
duty
in
the
course
of
making
his
statutory
determination
and
that
therefore
he
was
under
a
legal
duty
to
act
in
good
faith
and
to
give
a
fair
opportunity
to
the
executors
and
to
the
Foundation
to
make
representations
and
to
correct
or
contradict
any
relevant
statement
which
might
have
been
prejudicial
to
their
view.
The
learned
trial
judge
then
held
that
because
the
executors
and/or
the
Foundation
were
not
heard
the
determination
made
by
the
Minister
purporting
to
have
been
made
pursuant
to
Section
5(2)
was
contrary
to
the
rules
of
natural
justice
and
resulted
in
an
ouster
of
jurisdiction
unless
the
amendments
of
1970
deprived
the
court
of
power
to
review
the
determination.
He
held
that
the
words
added
to
Section
5(2)
by
the
1970
amendments
did
not
oust
the
jurisdiction
of
the
court
to
review
the
determination.
In
reference
to
the
last
part
of
the
amending
section
and
its
effect
the
learned
trial
judge
held
as
follows:
However,
counsel
for
the
Minister
submits
that
the
words
“and
any
determination
of
the
Minister
made
under
this
subsection
is
hereby
ratified
and
confirmed
and
binding
on
all
persons”
make
the
principles
of
law
above
referred
to
inapplicable
to
this
case.
He
says,
in
effect,
that
the
determination
of
the
Minister
is
valid
and
binding
and
not
subject
to
review
in
any
court,
notwithstanding
that
in
arriving
at
his
decision
the
Minister
may
have
contravened
the
principles
of
natural
justice.
He
says
that
the
words
“any
determination”
means
just
that—a
determination
made
lawfully
or
otherwise,
which
determination,
however
much
it
may
violate
legal
principles,
must
stand
because
it
has
been
ratified
in
advance
by
the
Legislature.
I
reject
that
submission.
The
Legislature
could
not
ratify
or
confirm
a
determination
that
was
not
then
in
existence
any
more
than
it
could
ratify,
confirm
or
make
binding
a
determination
which
was
a
nullity
at
law.
A
determination
made,
as
this
one
was,
in
breach
of
the
principles
of
natural
justice,
is
void.
Counsel
says,
and
I
agree,
that
the
Legislature
is
supreme
when
enacting
legislation
within
its
constitutional
powers.
It
could
have
enacted
legislation
saying
that
for
the
purpose
of
Section
5(1)
of
the
Succession
Duty
Act,
th:
Foundation
is
not
a
charitable
organization
and
does
not
have
a
charitable
purpose
and
that
would
have
been
the
end
of
the
matter;
but
it
did
not
do
that.
Instead,
it
authorized
and
directed
the
Minister
to
decide
which
(if
any)
organizations
claiming
to
be
charitable
organizations
are
such
for
the
purpose
of
Section
5(1)
of
the
Act.
It
granted
such
discretionary
power
having
the
constructive
knowledge
that
it
is
an
established
principle
of
law
that
such
discretion
must
be
exercised
judicially.
As
Lord
Blackburn
said
in
Young
v.
Mayor
of
Leamington
(1883),
8
A.C.
517
at
526:
“We
ought
in
general,
in
construing
an
Act
of
Parliament,
to
assume
that
the
legislature
knows
the
existing
state
of
the
law.”
In
the
result,
I
hold
that
the
power
given
by
Section
5(2)
of
the
Succession
Duty
Act
to
the
Minister
of
Finance
is
a
power
to
be
exercised
judicially
and
is
not
an
arbitrary
one
to
be
exercised
capriciously
according
to
his
fancy:
M.N.R.
v.
Wrights’
Canadian
Ropes
Ltd.,
[1947]
1
D.L.R.
721;
Ridge
v.
Baldwin,
[1964]
A.C.
40.
The
learned
trial
judge
in
conclusion
directed
that
the
writ
of
certiorari
should
issue
and
that
the
determination
complained
of,
made
by
the
Minister
under
Section
5(2)
on
May
1,
1969,
be
quashed
on
the
return
of
that
writ
without
further
order
and
that
the
matter
be
then
referred
back
to
the
Minister
for
the
proper
exercise
of
the
discretion
reserved
to
him
on
acceptable
legal
principles.
The
Minister
appeals
alleging
error
as
follows
:
1.
That
the
judgment
is
against
the
law.
2.
That
the
Learned
Judge
erred
in
law
in
holding
that
the
Honourable
the
Minister
of
Finance
(hereinafter
called
‘‘the
Minister’’)
lost
the
jurisdiction
given
to
him
by
the
Succession
Duty
Act
of
the
Province
of
British
Columbia,
as
amended,
by
making
his
determination
under
Section
5(2)
of
the
said
Act
without
giving
notice
to
the
Executors
of
the
Estate
of
P.
A.
Woodward,
Deceased.
3.
That
the
Learned
Judge
erred
in
holding
that
the
jurisdiction
of
the
Minister
was
ousted.
4.
That
the
Learned
Judge
erred
in
holding
that
the
determination
of
the
Minister
was
void.
5.
That
the
Learned
Judge
should
have
held
that
the
determination
of
the
Minister
was
valid,
or
alternatively
voidable,
and
that
it
had
been
ratified,
confirmed
and
made
binding
on
all
persons
by
the
1970
amendments
to
Section
5(2)
of
the
Succession
Duty
Act
of
the
Province
of
British
Columbia.
6.
That
the
Learned
Judge
erred
in
holding
that
the
Legislature
of
the
Province
of
British
Columbia
could
not
ratify,
confirm
and
make
binding
on
all
parties
the
determination
of
the
Minister
made
under
Section
5(2)
of
the
Succession
Duty
Act
of
the
Province
of
British
Columbia.
7.
That
the
Learned
Judge
erred
in
holding
that
enactments
which
purport
to
oust
or
deprive
the
court
of
jurisdiction
to
review
the
judicial
or
quasi-judicial
acts
of
a
person
or
tribunal
exercising
a
discretionary
authority
under
a
statute
are
ineffective
for
that
purpose
where
a
breach
of
the
principles
of
natural
justice
has
occurred,
and
that
is
so
even
where
the
enactment
has
provided
that
the
decision
of
such
person
or
tribunal
is
final
and
that
he
or
it
shall
not
be
restrained
by
certiorari
or
otherwise
by
any
court.
The
initial
submission
of
counsel
for
the
appellant
was
that
the
learned
trial
judge
erred
in
holding
that
the
determination
of
the
Minister
was
void,
and
submitted
that
the
determination
was
valid
or
in
the
alternative
voidable.
In
support
of
the
submission
that
the
determination
was
valid,
counsel
for
the
Minister
urged
that
no
claim
had
been
made
by
the
executors
or
the
Foundation
for
tax
exemption
as
a
qualifying
organization
or
on
the
basis
that
the
purpose
of
the
bequest
was
religious,
charitable
or
educational.
It
was
further
urged
that
by
reason
of
the
fact
that
no
claim
had
been
made
on
behalf
of
the
Foundation
by
someone
it
was
then
unnecessary
for
the
Minister
to
give
notice
to
anyone.
In
my
judgment
that
submission
has
no
merit
at
all.
The
memo
first
quoted
in
these
my
reasons
shows
that
Minty
was
referring
to
the
claim
of
the
estate
for
exemption
under
the
Act
in
reference
to
the
four
million
dollar
bequest
to
the
Foundation
and
it
was
precisely
that
claim
that
was
the
subject-matter
of
the
determination
made
by
the
Minister
under
Section
5(2).
Before
dealing
with
the
submissions
made
by
counsel
for
the
appellant
in
reference
to
whether
the
determination
was
void,
as
held
by
the
learned
trial
judge,
or
voidable,
as
he
urged
it
was
in
law,
it
is
well
to
clear
the
decks
as
follows.
The
learned
trial
judge
found
that
the
Minister
was
discharging
a
judicial
or
quasi-judicial
duty
in
making
his
determination
under
Section
5(2).
In
this
connection
counsel
for
the
appellant
stated
he
did
not
propose
to
argue
that
point
and
conceded
that
the
duty
exercised
was
not
of
an
administrative
character
nor
ministerial.
What
the
Minister
had
to
determine
was
whether
or
not
the
bequest
made
by
the
deceased
to
the
Foundation
was
for
a
purpose
that
was
religious,
charitable
or
educational
and/or
whether
the
Foundation
was
a
religious,
charitable
or
educational
organization.
That
would
no
doubt
involve
a
study
of
the
will
and
its
various
dispositions
to
ascertain,
if
possible,
the
purposes
of
the
bequest
as
an
aid
to
whether
or
not
the
bequest
was
religious,
charitable
or
educational
and
the
constitution
of
the
Foundation
to
determine
the
objects
for
which
it
was
incorporated,
and
a
study
of
the
past
performance
of
the
organization
to
assist
in
arriving
at
a
just
decision.
However,
in
the
discharge
of
that
duty
it
was
incumbent
upon
the
Minister
to
conform
with
the
principles
of
natural
justice.
He
was
bound
by
the
primary
duty
of
advising
the
executors
or
the
officers
of
the
Foundation,
or
both,
that
a
hearing
would
be
held
for
the
purpose
of
making
the
vital
determination
referred
to
in
Section
5(2),
and
that
they
were
free
to
make
such
representations
as
might
be
reasonably
relevant,
and
that
they
were
entitled
to
be
heard
upon
any
other
views
which
the
Minister
might
have
obtained
in
order
to
contradict
or
vary
those
views
if
they
were
prejudicial
to
the
interests
of
the
foundation.
Counsel
for
the
appellant
has
agreed
that
the
Minister
did
not
at
any
time
give
any
notice
to
the
executors
or
to
the
Foundation
as
a
beneficiary
or
otherwise
apprise
them
that
he
was
about
to
make
a
determination
which
might
cost
the
estate
or
more
properly
the
Foundation
the
sum
as
aforesaid.
The
solicitor
for
the
executors
in
his
affidavit
stated
that
the
first
intimation
of
the
date
that
the
Minister
had
made
his
determination
came
when
he
read
the
affidavit
of
J.
W.
Minty,
sworn
to
on
December
4,
1969.
The
Minister,
as
already
mentioned,
did
not
make
a
written
determination.
However,
the
section
did
not
require
a
written
determination.
The
affidavit
of
Mr.
Collins,
solicitor
for
the
estate,
further
stated
that
no
reason
was
ever
given
to
the
executors
or,
in
so
far
as
he
knew,
to
the
Founda
tion
as
to
why
the
gift
to
the
Foundation
was
refused
exemption
from
taxes
or,
alternatively,
why
it
was
taxed
as
a
gift
to
a
stranger.
No
reason
was
assigned
verbally
or
in
writing
by
the
Minister
as
to
why
he
held
that
the
Foundation
was
not
a
religious,
charitable
or
educational
organization,
or
why
he
held
that
the
purpose
of
the
bequest
was
not
one
that
was
religious,
charitable
or
educational.
Surely,
in
the
foregoing
circumstances,
there
could
be
no
doubt
but
that
the
Minister
was
exercising
a
judicial
or
quasi-judicial
function,
which
required
strict
adherence
to
the
principles
of
natural
justice,
which
appear
to
have
been
totally
ignored,
or
oppressively
violated
in
order
to
arrive
at
the
determination
which
the
Minister
in
fact
made,
the
effect
of
which
was
to
cost
the
foundation
the
huge
sum
aforesaid.
The
learned
trial
Judge,
in
my
judgment,
did
not
err
in
holding
that
the
determination
of
the
Minister
was
void
and
therefore
invalid.
I
now
deal
with
the
submission
of
counsel
for
the
appellant
that
the
trial
judge
should
have
held
that
the
determination
was
voidable,
not
void.
The
argument
proceeded
on
the
basis
that
the
determination
made
by
the
Minister
under
Section
5(2)
was
made
against
and
affected
only
the
Foundation;
that
the
executors
of
the
estate
were
not
affected
in
any
way
by
the
determination
and
that
being
so;
the
executors
had
no
status
to
initiate
and/or
maintain
the
proceedings
taken
and
that
the
determination
therefore
stood
as
one
that
was
voidable
until
the
Foundation
elected
to
and
did
take
proceedings
in
court,
in
which
event
it
might
be
declared
to
be
void.
For
this
purpose,
counsel
relied
strongly
upon
the
decision
of
the
Privy
Council
in
Durayappah
v.
Fernando
and
Others,
[1967]
2
All
E.R.
152,
and
also
referred
to
the
minority
judgments
of
Lord
Evershed
and
Lord
Devlin
in
Ridge
v.
Baldwin
(infra).
In
the
first
case
a
designated
Minister
was
statutorily
empowered
to
dissolve
a
municipal
council
upon
representations
which
would
make
it
appear
to
the
Minister
that
the
council
was
incompetent
to
perform
its
duties.
The
Minister
made
such
an
order,
no
member
of
the
council
was
notified
or
heard,
nor
were
representations
invited.
The
Privy
Council
held
that
the
Minister
was
acting
judicially
and
had
ignored
the
principles
of
natural
justice.
However,
during
the
course
of
the
hearing,
the
Privy
Council,
e
proprio
motu,
questioned
the
right
of
the
appellant
(the
mayor)
to
maintain
the
action.
Lord
Upjohn
stated
at
page
158
that
the
answer
depended
upon
whether
the
order
of
the
Minister
was
a
complete
nullity
or
whether
it
was
an
order
voidable
only
at
the
instance
of
council.
He
reasoned
that
if
it
was
a
complete
nullity
it
followed
that
anyone
having
a
‘‘legitimate
interest’’
in
the
conduct
of
council
was
entitled
to
and
could
ask
the
courts
to
declare
that
the
council
was
still
the
duly
elected
council.
Lord
Upjohn
at
pages
158
and
159
stated
as
follows
:
Apart
altogether
from
authority
their
lordships
would
be
of
opinion
that
this
was
a
case
where
the
Minister’s
order
was
voidable
and
not
a
nullity.
Though
the
council
should
have
been
given
the
opportunity
of
being
heard
in
its
defence,
if
it
deliberately
chooses
not
to
complain
and
takes
no
step
to
protest
against
its
dissolution,
there
seems
no
reason
why
any
other
person
should
have
the
right
to
interfere.
To
take
a
simple
example
to
which
their
lordships
will
have
to
advert
in
some
detail
presently,
if
in
the
case
of
Ridge
v.
Baldwin,
[1963]
2
All
E.R.
66;
[1964]
A.C.
40
the
appellant
Ridge,
who
had
been
wrongly
dismissed
because
he
was
not
given
the
opportunity
of
presenting
his
defence,
had
preferred
to
abandon
the
point
and
accept
the
view
that
he
had
been
properly
dismissed,
their
lordships
can
see
no
reason
why
any
other
person,
such,
for
example,
as
a
ratepayer
of
Brighton
should
have
any
right
to
contend
that
Mr.
Ridge
was
still
the
chief
constable
at
Brighton.
As
a
matter
of
ordinary
common
sense,
with
all
respect
to
other
opinions
that
have
been
expressed,
if
a
person
in
the
position
of
Mr.
Ridge
had
not
felt
sufficiently
aggrieved
to
take
any
action
by
reason
of
the
failure
to
afford
him
his
strict
right
to
put
forward
a
defence,
the
order
of
the
watch
committee
should
stand
and
no
one
else
should
have
any
right
to
complain.
The
matter
is
not
free
of
authority,
for
it
was
much
discussed
in
that
case.
Lord
Reid,
[1963]
2
All
E.R.
at
p.
81;
[1964]
A.C.
at
p.
80
reached
the
conclusion
that
the
committee’s
decision
was
void
and
not
merely
voidable,
and
he
relied
on
the
decision
in
Wood
v.
Woad
(1874),
L.R.
9
Exch.
190.
Their
lordships
deprecate
the
use
of
the
word
void
in
distinction
to
the
word
voidable
in
the
field
of
law
with
which
their
lordships
are
concerned
because,
as
Lord
Evershed
pointed
out
in
Ridge
v.
Baldwin,
quoting
from
Sir
Frederick
Pollock
Pollock
on
Contract
(13th
ed.)
48,
the
words
void
and
voidable
are
imprecise
and
apt
to
mislead.
These
words
have
well
understood
meanings
when
dealing
with
questions
of
proprietary
or
contractual
rights.
It
is
better,
in
the
field
where
the
subject
matter
of
the
discussion
is
whether
some
order
which
has
been
made,
or
whether
some
step
in
some
litigation
or
quasi-litigation,
is
effective
or
not,
to
employ
the
verbal
distinction
between
whether
it
is
truly
a
“nullity”,
that
is
to
all
intents
and
purposes
of
which
any
person
having
a
legitimate
interest
in
the
matter
can
take
advantage
or
whether
it
is
“voidable”
only
at
the
instance
of
the
party
affected.
On
the
other
hand
the
word
“nullity”
would
be
quite
inappropriate
in
questions
of
proprietary
or
contractual
rights;
such
transactions
may
frequently
be
void,
but
the
result
can
seldom
be
described
as
a
nullity.
The
opinions
of
the
law
lords
in
Ridge
v.
Baldwin,
[1963]
2
All
E.R.
66;
[1964]
A.C.
40,
were
examined
and
after:
having
considered
the
speech
given
by
Lord
Morris
of
Borth-y-Gest
to
the
effect
that
the
order
of
the
watch
committee
in
the
Ridge
case
was
voidable
only
and
not
a
nullity,
Lord
Upjohn
continued
at
pages
160
:
Their
lordships
entirely
agree
with
that
and
with
the
conclusion
which
he
drew
from
it,
namely
that
if
the
decision
is
challenged
by
the
person
aggrieved
on
the
grounds
that
the
principle
has
not
been
obeyed,
he
is
entitled
to
claim
that
as
against
him
it
is
void
ab
initio
and
has
never
been
of
any
effect.
It
cannot
possibly
be
right,
however,
in
the
type
of
case
which
their
lordships
are
considering
to
suppose
that,
if
challenged
successfully
by
the
person
entitled
to
avoid
the
order,
yet
nevertheless
it
has
some
limited
effect
even
against
him
until
set
aside
by
a
court
of
competent
jurisdiction.
While
in
this
case
their
lordships
have
no
doubt
that
in
an
action
by
the
council
the
court
should
have
held
that
the
order
was
void
ab
initio
and
never
had
any
effect,
that
is
quite
a
different
matter
from
saying
that
the
order
was
a
nullity
of
which
advantage
could
be
taken
by
any
other
person
having
a
legitimate
interest
in
the
matter.
Counsel
then
on
the
basis
of
the
foregoing
cases
submitted
that
the
executors
in
the
instant
case
had
no
‘‘legitimate
interest’’
and
therefore
had
no
status
to
institute
and
maintain
these
proceedings.
It
was
submitted
that
the
executors
suffered
no
disadvantage
by
reason
of
the
fact
that
the
Foundation
was
denied
a
religious,
charitable
or
educational
status
as
the
succession
duties
payable
by
virtue
of
the
statute
were
levied
against
the
beneficiaries
(in
this
case
the
Foundation)
and
not
the
executors.
See
Sections
12(2)
and
32.
In
my
judgment
the
Durayappah
case
has
no
application.
While
it
is
true
that
the
executors
incur
no
direct
statutory
liability
in
reference
to
the
payment
of
any
tax
that
may
be
assessed,
they
are
the
persons
selected
by
the
deceased
testator
to
represent
him,
to
act
as
trustees
of
his
estate
and
to
see
that
the
directions
of
his
will
are
carried
out.
They
are
the
ones
who
are
charged,
at
law,
to
apply
for
letters
probate
which,
when
issued,
then
authorize
them
to
proceed
to
administer
the
estate
in
accordance
with
the
testator’s
expressed
intentions.
No
one,
other
than
the
beneficiary,
in
this
case
the
Foundation,
could
have
had
a
more
‘‘legitimate
interest’’.
There
can
be
no
question
but
that
the
executors
represented
the
Foundation
while
negotiating
with
the
Department
of
Succession
Duties
of
the
Province
for
tax
exemption.
I
hold
that
the
executors
have
a
“legitimate
interest”
and
therefore
a
status
to
institute
and
maintain
the
instant
proceedings
and
were
fully
entitled
to
attack
the
determination
made
by
the
Minister.
Then
did
the
learned
trial
judge
err
in
holding
that
the
determination
was
void
by
reason
of
the
breach
of
the
principles
of
natural
justice
in
view
of
the
amendments
of
1970?
I
look
at
Section
5(2)
as
it
was
at
the
relevant
time.
The
Minister
had
an
absolute
discretion
to
determine
whether
the
Foundation
as
an
organization,
or
the
purpose
of
the
bequest,
was
of
a
religious,
charitable
or
educational
nature
or
not,
for
the
purposes
of
subsection
(1)
of
Section
5.
That
determination
spelled
out
whether
or
not
the
Foundation
was
under
a
duty
to
pay
the
succession
duties
involved
or
not.
There
was
no
privative
clause.
That
determination
involving
a
discretion,
albeit
absolute,
is
one
that
had
to
be
arrived
at
according
to
the
rules
of
reason
and
justice,
not
in
accordance
with
the
private
opinion
of
the
Minister.
It
could
not
be
arbitrary,
vague
or
fanciful.
(Sharp
v.
Wakefield,
[1891]
A.C.
173,
Lord
Halsbury,
L.C.
at
page
179).
Thus,
it
meant
that
the
Minister,
if
he
was
exercising
his
discretion
judicially,
had
to
give
to
the
parties
in
the
controversy
a
fair
opportunity
of
making
representations
and
of
correcting
or
contradicting
any
statements
prejudicial
to
their
view.
See
Board
of
Education
v.
Rice
and
Others,
[1911]
A.C.
179,
where
Lord
Loreburn,
L.C.
at
page
182
stated
as
follows:
Comparatively
recent
statutes
have
extended,
if
they
have
not
originated,
the
practice
of
imposing
upon
departments
or
officers
of
State
the
duty
of
deciding
or
determining
questions
of
various
kinds.
In
the
present
instance,
as
in
many
others,
what
comes
for
determination
is
sometimes
a
matter
to
be
settled
by
discretion,
involving
no
law.
It
will,
I
suppose,
usually
be
of
an
administrative
kind;
but
sometimes
it
will
involve
matter
of
law
as
well
as
matter
of
fact,
or
even
depend
upon
matter
of
law
alone.
In
such
cases
the
Board
of
Education
will
have
to
ascertain
the
law
and
also
to
ascertain
the
facts.
I
need
not
add
that
in
doing
either
they
must
act
in
good
faith
and
fairly
listen
to
both
sides,
for
that
is
a
duty
lying
upon
every
one
who
decides
anything.
But
I
do
not
think
they
are
bound
to
treat
such
a
question
as
though
it
were
a
trial.
They
have
no
power
to
administer
an
oath,
and
need
not
examine
witnesses.
They
can
obtain
information
in
any
way
they
think
best,
always
giving
a
fair
opportunity
to
those
who
are
parties
in
the
controversy
for
correcting
or
contradicting
any
relevant
statement
prejudicial
to
their
view.
Provided
this
is
done,
there
is
no
appeal
from
the
determination
of
the
Board
under
section
7,
subsection
(3),
of
this
Act.
The
Board
have,
of
course,
no
jurisdiction
to
decide
abstract
questions
of
law,
but
only
to
determine
actual
concrete
differences
that
may
arise,
and
as
they
arise,
between
the
managers
and
the
local
education
authority.
The
Board
is
in
the
nature
of
the
arbitral
tribunal,
and
a
Court
of
law
has
no
jurisdiction
to
hear
appeals
from
the
determination
either
upon
law
or
upon
fact.
But
if
the
Court
is
satisfied
either
that
the
Board
have
not
acted
judicially
in
the
way
I
have
described,
or
have
not
determined
the
question
which
they
are
required
by
the
Act
to
determine,
then
there
is
a
remedy
by
mandamus
or
certiorari.
Having
failed
and
neglected
to
give
that
fair
opportunity
the
Minister,
in
my
judgment,
had
no
authority
or
right
to
embark
upon
the
inquiry
and
his
continuance,
unilateral
as
it
was,
resulted
in
a
complete
failure
of
a
valid
determination.
It
was
not
arrived
at
pursuant
to
the
rules
of
natural
justice,
nor
by
the
rule
of
reason,
but
as
the
material
discloses
was
arrived
at
arbitrarily,
vaguely
and
fancifully.
The
following
authorities,
in
my
judgment,
show
quite
conclusively
that
the
Minister
in
arriving
at
the
determination
referred
to
in
Section
5(2)
was
discharging
a
function
which
I
have
earlier
stated
was
judicial
or
quasi-judicial.
Board
of
Education
v.
Rice
and
Others
(supra)
and
Hopkins
and
Another
v.
Smethwick
Local
Board
of
Health
(1890),
24
Q.B.
712,
Lord
Esher,
M.R.
with
whom
Fry
and
Lopes,
L.JJ.
agreed
at
page
716.
In
De
Verteuil
v.
Knaggs
and
Another,
[1918]
A.C.
557
Lord
Parmoor
delivering
the
judgment
of
the
judicial
committee
of
the
Privy
Council
at
page
560
stated
as
follows:
On
the
other
hand,
the
acting
Governor
could
not
properly
carry
through
the
duty
entrusted
to
him
without
making
some
inquiry
whether
sufficient
grounds
had
been
shown
to
his
satisfaction
that
immigrants
indentured
on
the
La
Gloria
estate
of
the
appellant
should
be
removed.
Their
Lordships
are
of
opinion
that
in
making
such
an
inquiry
there
is,
apart
from
special
circumstances,
a
duty
of
giving
to
any
person
against
whom
the
complaint
is
made
a
fair
opportunity
to
make
any
relevant
statement
which
he
may
desire
to
bring
forward
and
a
fair
opportunity
t>
correct
or
controvert
any
relevant
statement
brought
forward
to
his
prejudice.
In
Lapointe
v.
L’Association
de
Bienfaisance
et
de
Retraite
de
la
Police
de
Montreal,
[1906]
A.C.
535,
Lord
Macnaghten
in
delivering
the
judgment
of
the
judicial
committee
of
the
Privy
Council
said
at
pages
539
and
540
:
It
is
hardly
necessary
to
cite
any
authority
on
a
point
so
plain.
The
learned
counsel
for
the
appellant
referred
to
two
well-known
club
cases
before
Sir
George
Jessel,
M.R.,
Fisher
v.
Keane,
11
Ch.
D.
353
and
Labouchere
v.
Earl
of
Wharncliffe,
13
Ch.
D.
346.
It
may
be
worth
while
to
mention
a
later
case
before
the
same
learned
judge,
in
which
refers
to
the
case
of
Wood
v.
Woad
(1874),
L.R.
9
Ex.
190,
in
the
Exchequer,
and
expresses
regret
that
he
was
not
acquainted
with
that
case
when
those
club
cases
were
decided:
see
Russell
v.
Russell
(1880),
14
Ch.
D.
471.
“It
contains,”
he
says
14
Ch.
D.
at
p.
478,
“a
very
valuable
statement
by
the
Lord
Chief
Baron
as
to
his
view
of
the
mode
of
administering
justice
by
persons
other
than
judges
who
have
judicial
functions
to
perform
which
I
should
have
been
very
glad
to
have
had
before
me
on
both
those
club
cases
that
I
recently
heard,
namely,
the
case
of
Fisher
v.
Keane,
11
Ch.
D.
353
and
the
case
of
Labouchere
v.
Earl
of
Wharncliffe,
13
Ch.
D.
346.
The
passage
I
mean
is
this,
referring
to
a
committee:
‘They
are
bound
in
the
exercise
of
their
functions
by
the
rule
expressed
in
the
maxim
‘‘Audi
alteram
partem”,
that
no
man
should
be
condemned
to
consequences
resulting
from
alleged
misconduct
unheard,
and
without
having
the
opportunity
of
making
his
defence.
This
rule
is
not
confined
to
the
conduct
of
strictly
legal
tribunals,
but
is
applicable
to
every
tribunal
or
body
of
persons
invested
with
authority
to
adjudicate
upon
matters
involving
civil
consequences
to
individuals.’
It
was
no
determination
at
all.
It
was,
in
my
judgment,
a
complete
and
total
nullity
from
the
start
and
was
absolutely
void
from
the
time
it
was
made.
The
following
authorities
which
I
have
considered
are
relevant.
In
Lapointe
(supra)
Lord
Macnaghten
deemed
the
so-called
determination
of
the
board
‘‘void
and
of
no
effect’’;
in
In
Re
The
Ontario
Labour
Relations
Board,
Toronto
Newspaper
Guild,
Local
87,
American
Newspaper
Guild
(C.I.O.)
v.
Globe
Printing
Company,
[1953]
S.C.R.
18,
Kellock,
J.
for
himself,
Estey
and
Locke,
JJ.
at
page
35
stated
as
follows:
It
is
plain
from
this
recital
of
facts
that
there
was
no
“hearing”
of
the
matter
before
the
board
for
investigation
within
any
reasonable
interpretation
of
the
word.
There
is
nothing
in
either
subsection
(7)
or
(8)
of
Section
3
remotely
to
suggest
that
a
witness
giving
evidence
before
the
board
at
a
hearing
which
may
not
proceed
ex
parte,
may
give
evidence
without
being
liable
to
be
examined
by
a
party
adverse
in
interest.
The
statute,
in
my
opinion,
proceeds
upon
the
view
that
the
hearing
is
to
be
a
real
hearing
fairly
conducted
as
between
the
opposing
parties
whatever
may
be
the
issue
which
the
board
may
be
called
upon
to
determine
in
particular
circumstances.
Judson,
J.
in
Jarvis
v.
Associated
Medical
Services
Incorporated,
[1964]
S.C.R.
497
at
511,
stated
in
his
comments
about
the
Ontario
Labour.
Relations
Board
ease
that,
“It
never
conducted
such
a
hearing
and
its
decision
was
a
nullity.”
In
Ridge
v.
Baldwin
(supra)
the
question
as
to
whether
a
decision
made
by
a
watch
committee
without
notifying
the
party
in
question
was
void
or
voidable
was
thoroughly
canvassed.
Lord
Reid
at
page
81
stated
as
follows:
Then
there
was
considerable
argument
whether
in
the
result
the
watch
committee’s
decision
is
void
or
merely
voidable.
Time
and
again
in
the
cases
I
have
cited
it
has
been
stated
that
a
decision
given
without
regard
to
the
principles
of
natural
justice
is
void
and
that
was
expressly
decided
in
Wood
v.
Woad
(1874),
L.R.
9
Exch.
190.
I
see
no
reason
to
doubt
these
authorities.
The
body
with
the
power
to
decide
cannot
lawfully
proceed
to
make
a
decision
until
it
has
afforded
to
the
person
affected
a
proper
opportunity
to
state
his
case.
Lord
Morris
of
Borth-y-Gest
at
page
104
stated
as
follows:
My
lords,
in
my
judgment,
inasmuch
as
the
decision
of
the
watch
committee
was
that
the
appellant
had
committed
an
offence
or
offences
against
the
discipline
code
and
inasmuch
as
the
decision
was
arrived
at
in
complete
disregard
of
the
regulations
it
must
be
regarded
as
void
and
of
no
effect.
The
power
to
dismiss
for
an
offence
was
a
power
that
could
only
be
exercised
if
the
procedure
of
the
regulations
was
set
in
motion.
A
purported
dismissal
in
complete
disregard
of
them
cannot
be
recognized
as
having
any
validity.
He
then
quoted
from
the
judgment
of
Lord
Macnaghten
in
Lapointe
(supra)
and
at
page
106
stated
as
follows:
Lord
Macnaghten
said
that
it
was
obvious
that
the
so-called
determination
of
the
board
was
void
and
of
no
effect,
and
the
order
which
they
humbly
advised
included
a
declaration
and
determination
as
required
by
the
rules
and
that
the
proceedings
were.
null
and
void.
Later,
on
the
same
page,
he
stated
as
follows:
Nor
in
my
view
did
the
action
of
the
appellant
in
appealing
to
the
Secretary
of
State
have
any
such
effect.
If
the
decision
of
Mar.
7
was
a
nullity
and
void
the
fact
that
the
appellant
appealed
made
no
difference.
The
decision
of
Mar.
7
remained
a
nullity.
The
appellant
made
it
as
plain
as
possible
that
he
was
adhering
to
and
was
in
no
way
abandoning
his
submission
that
the
decision
of
Mar.
7
had
no
validity.
In
these
circumstances
the
provision
in
section
2(3)
of
the
Police
(Appeals)
Act,
1927,
that
the
decision
of
the
Secretary
of
State
on
an
appeal
is
to
be
“final
and
binding
upon
all
parties”
cannot
produce
the
result
that
validity
is
given
to
that
which
is
a
nullity.
Lord
Hodson
at
page
116
stated
as
follows
:
Once
the
position
is
reached
that
the
Police
Regulations
apply
as,
In
my
opinion,
they
did,
it
is
clear
that
no
attempt
was
made
by
the
watch
committee
to
follow
the
regulations.
These
have
been
set
out
in
detail
by
my
noble
and
learned
friend
Lord
Morris
of
Borth-y-Gest
whose
judgment
I
have
had
the
opportunity
of
reading
and
with
which
I
respectfully
agree.
As
he
says,
and
the
Court
of
Appeal
would
have
taken
the
same
view
if
they
had
regarded
the
Police
Regulations
as
applicable,
the
watch
committee
disregarded
the
regulations
and
did
not
begin
to
comply
with
them.
On
both
grounds
therefore,
failure
to
comply
with
the
requirements
of
natural
justice
and
failure
to
comply
with
the
Police
Regulations,
I
would
hold
that
the
decision
of
the
watch
committee
to
dismiss
the
appellant
taken
on
Mar.
7,
195
,
was
invalid.
Later
on
in
his
judgment
he
added
as
follows:
In
all
the
cases
where
the
courts
have
held
that
the
principles
of
natural
justice
have
been
flouted
I
can
find
none
where
the
language
does
not
indicate
the
opinion
held
that
the
decision
impugned
was
void.
It
is
true
that
the
distinction
between
void
and
voidable
is
not
drawn
explicitly
in
the
cases,
but
the
language
used
shows
that
where
there
is
a
want
of
jurisdiction,
as
opposed
to
a
failure
to
follow
a
procedural
requirement,
the
result
is
a
nullity.
This
was
indeed
decided
by
the
Court
of
Exchequer
in
Wood
v.
Woad
(1874),
L.R.
9,
Exch,
190,
where
as
here
there
was
a
failure
to
give
a
hearing.
The
contrary
view
was
expressed
by
Lord
Evershed
at
page
85
and
by
Lord
Devlin
at
page
120.
On
the
question
of
discretion
I
have
considered
the
two
cases
which
follow.
It
is
a
cardinal
principle
that
where
a
legal
tribunal
is
given
a
discretion
that
it
must
be
exercised
on
proper
legal
principles.
See
Davis,
J.,
with
whom
the
learned
Chief
Justice
agreed,
in
Pioneer
Laundry
L'
Dry
Cleaners
Ltd.
v.
M.N.R.,
[1939]
S.C.R.
1
at
5;
[1938-39]
C.T.C.
401
at
404:
The
appellant
was
entitled
to
an
exemption
or
deduction
in
“such
reasonable
amount
as
the
Minister,
in
his
discretion,
may
allow
for
depreciation.”
That
involved,
in
my
opinion,
an
administrative
duty
of
a
quasi-judicial
character
—
a
discretion
to
be
exercised
on
proper
legal
principles.
In
the
Privy
Council
report
of
this
case,
[1939]
4
D.L.R.
481
at
486;
[1938-39]
C.T.C.
411
at
417,
Lord
Thankerton,
delivering
the
judgment
of
the
judicial
committee,
stated
that
the
committee
was
in
agreement
with
the
reasons
given
by
Davis,
J.
See
also
the
review
of
authorities
on
the
use
of
discretion
by
Disbery,
J.
in
Leddy
v.
Saskatchewan
Government
Insurance
Office
(1964),
45
D.L.R.
(2d)
445
at
455
and
on,
and
the
judgment
of
Hall,
J.A.
for
the
Court
of
Appeal
of
Saskatchewan
at
page
467
where
he
stated
as
follows:
When
giving
judgment,
the
learned
trial
Judge
made
an
extensive
review
of
the
legal
principles
involved.
He
adopted
the
judicial
definition
of
the
word
“discretion”
given
by
Lord
Halsbury
in
Sharp
v.
Wakefield
(1891),
60
L.J.M.C.
73
at
page
76,
as
follows:
“An
extensive
power
is
confided
to
the
Justices
in
their
capacity
as
Justices
to
be
exercised
judicially,
and
discretion
means,
when
it
is
said
that
something
is
to
be
done
within
the
discretion
of
the
authorities,
that
that
something
is
to
be
done
according
to
the
rules
of
reason
and
justice,
not
to
private
opinion—Rooke’s
Case,
5
Rep.
100a;
according
to
law,
and
not
humour.
It
is
to
be
not
arbitrary,
vague
and
fanciful,
but
legal
and
regular,
and
it
must
be
exercised
within
the
limit
to
which
an
honest
man
competent
to
the
discharge
of
his
office
ought
to
confine
himself—Wilson
v.
Rastall,
4
Term
Rep.
757.”
After
considering
Roberts
v.
Hopwood,
[1925]
A.C.
578;
Ron-
carelli
v.
Duplessis,
16
D.L.R.
(2d)
689,
[1959]
S.C.R.
121;
Pure
Spring
Co.
v.
Minister
of
Nat'l
Revenue,
[1947]
1
D.L.R.
501,
[1946]
Ex.
C.R.
471,
[1946]
C.T.C.
169,
and
Labour
Relations
Bd.,
Saskatchewan
v.
The
Queen
ex
rel.
F.
W.
Woolworth
Co.,
[1955]
5
D.L.R.
607,
[1956]
S.C.R.
82,
he
summarized
the
law
by
saying
that
the
Courts
have
held
that
an
authority,
to
whom
Parliament
or
the
Legislature
entrusts
a
discretionary
power,
fails
to
exercise
such
discretion
if
it
purports
to
do
so
by
taking
into
consideration
reasons
unrelated
to
the
carrying
into
effect
of
the
intent
and
purpose
of
the
Act
wherein
such
discretionary
power
is
found,
or
by
applying
improper
legal
principles,
or
by
refusing
to
exercise
its
discretion.
He
went
on
to
say
that
an
authority,
so
entrusted
with
exercising
a
discretion,
fails
to
exercise
that
discretion
if
it
acts
on
the
basis
of
a
preconceived
policy
or
resolution
when
it
should
have
dealt
with
the
particular
case
before
it:
Tinkler
v.
Wandsworth
Board
of
Works
(1858),
2
De
G.
&
J.
261,
44
E.R.
989;
R.
v.
Sylvester
(1862),
31
L.J.M.C.
93,
2
B.
&
S.
322,
121
E.R.
1093;
Wood
v.
Widnes
Corp.,
[1898]
1
Q.B.
463,
67
L.J.Q.B.
254;
R.
v.
London
County
Council,
Ex.
p.
Corrie
(1918),
87
L.J.K.B.
303,
and
R.
ex
rel.
Wilson
v.
Holmes,
[1931]
3
D.L.R.
218,
[1931]
2
W.W.R.
41.
And
see
also
Roncarelli
v.
Duplessis,
[1959]
S.C.R.
121,
and
M.N.R.
v.
Wrights’
Canadian
Ropes
Ltd.,
[1947]
C.T.C.
1
at
14
and
15
where
Lord
Greene
in
giving
the
judgment
of
the
Privy
Council
stated
as
follows:
Moreover,
unless
it
be
shown
that
the
Minister
has
acted
in
contravention
of
some
principle
of
law
the
Court,
in
their
Lordships’
opinion,
cannot
interfere:
the
section
makes
the
Minister
the
sole
judge
of
the
fact
of
reasonableness
or
normalcy
and
the
Court
is
not
at
liberty
to
substitute
its
own
opinion
for
his.
But
the
power
given
to
the
Minister
is
not
an
arbitrary
one
to
be
exercised
according
to
his
fancy.
To
quote
the
language
of
Lord
Halsbury
L.C.
in
Sharp
v.
Wakefield,
[1891]
A.C.
173
at
p.
179
he
must
act
“according
to
the
rules
of
reason
and
justice,
not
according
to
private
opinion;
according
to
law
and
not
humour.
It
is
to
be,
not
arbitrary,
vague,
and
fanciful,
but
legal
and
regular”.
Again
in
a
case
under
another
provision
of
this
very
sec.
6
[sec.
5(1)
(a)
—
Ed.]
where
a
discretion
to
fix
the
amount
to
be
allowed
for
depreciation
is
given
to
the
Minister,
Lord
Thankerton
in
delivering
the
judgment
of
the
Board
said
“The
Minister
has
a
duty
to
fix
a
reasonable
amount
in
respect
of
that
allowance
and,
so
far
from
the
decision
of
the
Minister
being
purely
administrative
and
final,
a
right
of
appeal
is
conferred
on
a
dissatisfied
taxpayer;
but
it
is
equally
clear
that
the
Court
would
not
interfere
with
the
decision,
unless—as
Davis
J.
states—‘it
was
manifestly
against
sound
and
fundamental
principles’
”.
(Pioneer
Laundry
and
Dry
Cleaners
Ltd.
v.
Minister
of
National
Revenue,
[1938-39]
C.T.C.
411
at
n.
416-417.)
In
the
present
case
the
Minister’s
decision
is
attacked
on
the
ground
that
there
was
before
him
no
material
upon
which
he,
as
a
reasonable
man,
could
determine
that
any
part
of
the
commissions
in
question
was
in
excess
of
what
was
reasonable
for
the
business
carried
on
by
the
respondents.
The
ground
of
attack
is
different
from
that
which
was
successful
in
the
Pioneer
Laundry
case.
There
the
Minister
had
given
a
reason
for
his
decision
which
was
in
law
incapable
of
supporting
it,
whereas
in
the
present
case
no
reason
was
given
by
the
Minister
although
certain
suggestions
were
made
in
the
hearing
before
their
Lordships
by
counsel
as
will
presently
appear.
Their
Lordships
find
nothing
in
the
language
of
the
Act
or
in
the
general
law
which
would
compel
the
Minister
to
state
his
reasons
for
taking
action
under
section
6(2).
But
this
does
not
necessarily
mean
that
the
Minister
by
keeping
silence
can
defeat
the
taxpayer’s
appeal.
To
hold
otherwise
would
mean
that
the
Minister
could
in
every
case
or
at
least
the
great
majority
of
cases
render
the
right
of
appeal
given
by
the
statute
completely
nugatory.
The
Court
is,
in
their
Lordships’
opinion,
always
entitled
to
examine
the
facts
which
are
shown
by
evidence
to
have
been
before
the
Minister
w
hen
he
made
his
determination.
If
those
facts
are
in
the
opinion
of
the
Court
insufficient
in
law
to
support
it
the
determination
cannot
stand.
In
such
a
case
the
determination
can
only
have
been
an
arbitrary
one.
If,
on
the
other
hand,
there
is
in
the
facts
shown
to
have
been
before
the
Minister
sufficient
material
to
support
his
determination
the
Court
is
not
at
liberty
to
overrule
it
merely
because
it
would
itself
on
those
facts
have
come
to
a
different
conclusion.
As
has
already
been
said,
the
Minister
is
by
the
subsection
made
the
sole
judge
of
the
fact
of
reasonableness
and
normalcy
but
as
in
the
case
of
any
other
judge
of
fact
there
must
be
material
sufficient
in
law
to
support
his
decision.
Lord
Greene
then
continued
as
follows
at
page
16:
The
appellant
has
not
chosen
to
produce
any
evidence
as
to
these
alleged
matters
and
their
Lordships
are
quite
unable
to
assume
in
the
appellant’s
favour
that
he
had
before
him
sufficient
facts
to
support
his
determination
when
he
neither
condescends
to
state
what
those
facts
were
nor
attempts
to
prove
that
any
such
facts
were
in
truth
before
him.
The
only
inference
which
in
their
Lordships’
opinion
can
legitimately
be
drawn
from
the
available
evidence
is
that,
apart
from
the
documents
which
were
before
the
Court
the
Minister
had
no
material
before
him
which
influenced
his
mind
in
making
the
determination
that
he
did.
If
he
had
in
fact
had
such
material
it
w
ould
in
their
Lordships’
opinion
have
been
impossible
to
suppose
that
he
would
not
have
informed
the
respondents
of
at
least
the
substance
of
it
when
the
matter
was
originally
brought
before
him
so
as
to
give
the
appellants
a
fair
opportunity
of
meeting
the
case
against
them.
The
contrary
supposition
would
involve
that
the
appellant
had
come
to
a
decision
adverse
to
the
respondents
upon
material
of
which,
so
far
as
he
knew,
the
respondents
were
completely
ignorant
and
knowledge
of
which
he
deliberately
withheld
from
them.
In
1970,
as
discussed,
the
legislature
by
the
amendment
attempted
to
breathe
life
into
the
purported
determination
made
by
the
Minister
and
to
otherwise
fortify
that
determination.
The
amendment
stated
in
part:
(a)
That
a
determination
made
by
the
Minister
was
final,
conclusive
and
binding
upon
everybody
notwithstanding
any
provision
contrary
in
the
Act,
and
(b)
that
the
determination
was
not
open
to
appeal,
question
or
review
in
any
court.
The
appellant
submits
that
this
so-called
privative
ouster
or
preclusive
clause
prevents
the
Supreme
Court
of
this
Province,
in
the
exercise
of
its
supervisory
jurisdiction
in
certiorari
proceedings,
from
reviewing
the
matter
to
ascertain
whether
there
was
an
excess
or
lack
of
Jurisdiction
or
if
the
jurisdiction
was
otherwise
ousted.
The
law
books
are
replete
with
decisions
from
the
highest
courts
that
despite
the
presence
of
the
so-called
privative
clause
in
a
statute
the
Supreme
Court
has
always
guarded
and
affirmed
its
common
law
right
to
vigilate
the
exercise
of
jurisdiction
by
an
inferior
court
or
by
statutory
bodies
exercising
a
judicial
or
quasi-judicial
function
and
to
whom
a
statutory
jurisdiction
is
given
to
decide
or
determine
some
matter
or
thing,
unless
the
words
depriving
it
of
that
jurisdiction
are
clear
and
imperative.
If
the
privative
clause
has
that
effect
then
protection
is
afforded
to
the
decision
because
the
statute
prohibits
interference
by
a
court.
In
my
judgment,
the
privative
clause
passed
by
the
1970
amendments
after
the
determination
was
made
could
not
and
did
not
protect
the
invalid
determination
made
by
the
Minister,
notwithstanding
the
fact
that
it
was
enacted
at
a
later
date
and
made
retroactive
to
April
1,
1968.
The
determination
made
by
the
Minister
was,
in
my
judgment,
by
reason
of
the
errors
discussed
a
complete
nullity
from
the
start.
There
was
as
I
have
stated
no
determination
made
in
accordance
with
the
provisions
of
the
section
as
it
then
stood
and
that
being
so,
the
legislature
could
not
make
final,
conclusive
and
binding
a
determination
which,
in
law,
never
took
place.
I
find
it
difficult
to
accept
the
fact
that
the
legislature
confided
a
statutory
authority
to
the
Minister
subject
to
the
use
of
his
discretion
which
could
only
be
exercised
judicially
and
which
had
to
conform
with
the
tenets
of
natural
justice
and
then
by
another
clause
give
retroactive
validity
to
a
purported
determination
made
in
disregard
of
or
in
violation
of
the
principles
of
natural
justice
and
arbitrarily,
and
otherwise
protect
that
illegal
decision
from
the
supervisory
area
of
a
superior
court
by
making
it
final,
binding
and
conclusive
on
everybody
and
through
the
medium
of
a
privative
clause.
The
privative
clause,
if
effective
in
this
case,
would
prohibit
the
Supreme
Court
from
reviewing
a
purported
determination
made
by
the
Minister
which,
without
question,
was
arbitrary
and
arrived
at
by
ignoring
the
rules
of
natural
justice
and
was
totally
void
and
illegal,
and
which
tended
to
seriously
prejudice
a
bequest
made
to
a
foundation
by
a
testator
who
made
it
under
the
law
as
it
was
at
a
designated
time.
It
may
be
that
had
the
determination
been
made
judicially
and
in
accordance
with
the
dictates
of
natural
justice
that
the
four
million
dollar
bequest
to
the
Foundation
would
have
been
tax
free,
in
which
event
the
liability
aforesaid
would
have
been
avoided.
Just
what
the
result
of
a
proper
determination
made
in
accordance
with
the
law
might
have
been
and
whether
it
would
have
resulted
to
the
advantage
or
disadvantage
of
the
Foundation
was
and
is
really
immaterial;
what
is
material
is
that
the
Foundation
by
virtue
of
an
invalid
determination
must
under
that
purported
determination
pay
the
sum,
aforesaid,
not
knowing
why
the
Minister
unilaterally
determined
as
he
did.
One
can
readily
understand
that
where
there
is
good
faith
and
no
fraud
or
bias
and
the
tribunal
charged
to
act
judicially
or
quasi-judicially
follows
the
essentials
of
natural
justice
and
has
jurisdiction
at
the
start
and
thereafter
does
not
lose
it
or
acts
in
excess
of
its
statutory
jurisdiction
that
legislation
might
well
protect
the
decision
given
by
that
tribunal
by
ousting
the
jurisdiction
of
a
superior
court
by
a
privative
clause,
and
in
such
cases
the
authorities
are
fairly
uniform
in
holding
that
a
privative
clause
will
oust
the
jurisdiction
of
a
superior
court.
However,
where
there
is
a
want
or
an
excess
of
jurisdiction
when
the
inquiry
starts
or
where
there
has
been
an
abuse
of
jurisdiction
by
ignoring
the
essentials
of
natural
justice
or
where
there
is
fraud
or
bias
or
lack
of
good
faith
the
situation
is
different,
and
the
courts
have
exercised
a
supervisory
jurisdiction
despite
the
existence
of
a
privative
clause.
In
such
cases
the
privative
clause
does
not
operate
to
oust
the
jurisdiction
of
the
superior
court
to
review
the
proceedings
being
questioned.
In
Jarvis
v.
Associated
Medical
Services
Incorporated
(supra)
Judson,
J.
dissenting
put
the
basis
of
his
dissent
squarely
upon
the
effeet
of
the
privative
clause
and
at
page
509
stated
as
follows:
So
far
I
have
dealt
with
the
matter
as
one
of
construction.
Now
that
it
appears
that
this
order
of
the
Board
is
going
to
be
quashed
on
the
ground
of
excess
of
jurisdiction,
I
wish
to
say
something
about
the
privative
clause
in
the
Act.
The
Board
was
authorized
to
embark
upon
an
inquiry
whether
this
person
was
discharged
contrary
to
the
provisions
of
the
Act.
This
was
the
issue
to
be
decided
and
the
Board's
decision,
to
the
extent
that
it
is
based
on
evidence,
cannot
be
questioned
on
certiorari.
It
is
now
said
that
this
decision
cannot
apply
to
Mrs.
Jarvis
because
of
the
question
of
interpretation
which
I
have
discussed
above.
The
Board
put
one
interpretation
on
the
word
“person”
to
include
Mrs.
Jarvis
and
the
Court
of
Appeal
another.
Which
one
is
right
does
not
matter.
If
the
Board
made
a
mistake,
it
is
not
deprived
of
jurisdiction.
It
makes
a
mistake,
as
many
tribunals
do,
in
the
course
of
doing
what
it
is
told
to
do.
This
kind
of
mistake
is
not
reviewable
on
certiorari.
In
enacting
section
80
of
The
Labour
Relations
Act
the
Legislature
has
recognized
that
decisions
made
by
the
Board
may
involve
what
are
looked
upon
by
a
Court
as
jurisdictional
errors.
The
Legislature
has
said
that
it
prefers
to
have
these
errors
stand
rather
than
have
the
decisions
quashed
on
certiorari.
The
quashing
of
this
decision
amounts
to
a
disregard
of
the
provisions
of
section
80
of
the
Act,
which
reads
:
“80.
No
decision,
order,
direction,
declaration
or
ruling
of
the
Board
shall
be
questioned
or
reviewed
in
any
court,
and
no
order
shall
be
made
or
process
entered
or
proceedings
taken
in
any
court,
whether
by
way
of
injunction,
declaratory
judgments,
certiorari,
mandamus,
prohibition
quo
warranto,
or
otherwise,
to
question,
review,
prohibit
or
restrain
the
Board
or
any
of
its
proceedings.
Cartwright,
J.
(as
he
then
was)
in
giving
the
majority
judgment
referred
to
the
foregoing
opinion
of
Judson,
J.,
and
at
page
902
stated
as
follows:
However,
in
view
of
what
is
said
by
my
brother
Judson
as
to
section
80
of
the
Act,
I
wish
to
add
a
few
words
as
to
why,
in
my
opinion,
that
section
does
not
prevent
the
quashing
of
the
decision
of
the
Board
in
this
case.
The
effect
of
this
section,
if
it
receives
the
construction
most
favourable
to
the
appellant,
is
to
oust
the
jurisdiction
of
the
superior
Courts
to
interfere
with
any
decision
of
the
Board
which
is
made
in
exercise
of
the
powers
conferred
upon
it
by
the
Legislature;
within
the
ambit
of
those
powers
it
may
err
in
fact
or
in
law;
but
I
cannot
take
the
section
to
mean
that
if
the
Board
purports
to
make
an
order
which
on
the
true
construction
of
the
Act,
it
has
no
jurisdiction
to
make
the
person
affected
thereby
is
left
without
a
remedy;
indeed,
in
L’Alliance
des
Professeurs
Catholiques
de
Montreal
v.
Labour
Relations
Board
[1953]
2
S.C.R.
140
at
155,
Rinfret,
C.J.
explicitly
rejected
such
a
suggestion.
The
extent
of
the
Board’s
jurisdiction
is
fixed
by
the
statute
which
creates
it
and
cannot
be
enlarged
by
a
mistaken
view
entertained
by
the
Board
as
to
the
meaning
of
that
statute.
The
governing
principle
was
succinctly
stated
by
my
brother
Fauteux
in
In
re
Ontario
Labour
Relations
Board,
Toronto
Newspaper
Guild,
Local
87
v.
Globe
Printing
Co.
[1953]
2
S.C.R.
18
at
p.
41:
“The
authorities
are
clear
that
jurisdiction
cannot
be
obtained
nor
can
it
be
declined
as
a
result
of
a
misinterpretation
of
the
law,
and
that
in
both
cases
the
controlling
power
of
superior
Courts
obtains,
notwithstanding
the
existence
in
the
Act
of
a
no
certiorari
clause.”
This
was
the
rule
applied
by
the
Court
of
Appeal
in
the
case
at
bar.
What
is
complained
of
by
the
respondent
is
not
that
the
Board
has
been
induced
by
errors
of
fact
or
law,
or
by
both,
to
make
an
order
in
the
exercise
of
its
statutory
jurisdiction,
but
rather
that
it
has
purported
to
make
an
order
which
the
Act
has
not
empowered
it
to
make
at
all.
In
Battaglia
v.
Workmen’s
Compensation
Board
(1960),
32
W.W.R.
1,
this
court
passed
upon
the
privative
clause
contained
in
Section
76(1)
of
the
Workmen’s
Compensation
Act
which
provided
as
follows
:
The
Board
shall
have
exclusive
jurisdiction
to
inquire
into,
hear,
and
determine
all
matters
and
questions
of
fact
and
law
arising
under
this
Part,
and
the
action
or
decision
of
the
Board
thereon
shall
be
final
and
conclusive
and
shall
not
be
open
to
question
or
review
in
any
Court,
and
no
proceedings
by
or
before
the
Board
shall
be
restrained
by
injunction,
prohibition,
or
other
process
or
proceeding
in
any
Court
or
be
removable
by
certiorari
or
otherwise
into
any
Court;
and
without
restricting
the
generality
of
the
foregoing
the
Board
shall
have
exclusive
jurisdiction
to
inquire,
hear
and
determine:
.
..
Davey,
J.A.
(as
he
then
was)
at
page
5
put
the
submission
of
the
board
as
follows
:
The
Board
submits
that
under
this
section
it
has
exclusive
jurisdiction
to
decide
all
questions
of
fact,
as
well
as
of
law,
including
medical
questions
upon
which
a
claim
rests,
and
that
it
exercises
such
authority
in
reviewing
a
claim
under
subsection
(9)
of
section
54A;
that
it
was
never
intended
on
a
review
under
section
54A
to
take
away
from
the
board
that
exclusive
jurisdiction
to
adjudicate
upon
the
medical
aspects
of
a
claim
and
vest
it
in
a
specialist
to
be
chosen
by
the
claimant.
At
pages
6
and
7,
he
answered
that
submission
as
follows:
It
it
clearly
established
by
judicial
decision
of
the
highest
authority
and
accepted
by
parliament
that
it
is
for
the
superior
courts
to
determine
and
declare
public
law
and
in
the
course
thereof
to
define
the
statutory
jurisdiction
and
authority
of
inferior
tribunals
and
boards;
that
it
requires
the
clearest
language
to
transfer
that
jurisdiction
from
the
superior
courts
to
the
bodies
concerned;
under
the
B.N.A.
Act,
1867,
perhaps
not
even
then.
Certainly
such
language
is
wanting
here:
See
Toronto
Newspaper
Guild
v.
Globe
Printing
Co.,
[1953]
2
S.C.R.
18,
106
C.C.C.
225,
per
Kerwin,
J.
at
p.
28;
Rand,
J.
at
p.
28;
Kellock,
J.
at
p.
36;
and
Fauteux,
J.
at
p.
41.
In
my
opinion
the
exclusive
authority
conferred
upon
the
board
by
section
76(1)
to
decide
questions
of
law
does
not
extend
to
the
interpretation
of
those
sections
of
the
Act
defining
the
board’s
jurisdiction
and
authority
or
deprive
the
Supreme
Court
of
British
Columbia
of
its
power
to
scrutinize
the
proceedings
of
the
board
to
see
if
it
has
kept
within
the
jurisdiction
and
authority
conferred
upon
it
by
the
Act.
Sheppard,
J.A.
gave
his
own
reasons
and
dealt
with
this
point
at
pages
14
and
15
:
That
contention
does
not
give
due
weight
to
the
qualifying
words
in
section
76(1)
“arising
under
this
Part.”
That
“exclusive
jurisdiction”
is
confined
to
questions
of
law
and
fact
“arising
under
this
Part,”
and
would
not
apply
when
the
board
is
not
dealing
with
questions
of
fact
and
law
arising
under
part
I
or
when
the
board
is
acting
beyond
its
jurisdiction.
Hence,
in
determining
the
effect
of
section
76,
the
questions
arise:
(1)
Whether
the
board
has
jurisdiction
under
this
part,
which
is
part
I;
and
(2)
Whether
the
decision
deals
with
questions
of
fact
and
law
arising
from
its
jurisdiction
within
part
I?
It
follows
that
the
section
does
not
exclude
certiorari
where
the
board
is
acting
outside
its
jurisdiction;
that
has
been
determined
by
the
court
in
Acme
Home
Improvement
Ltd,
v.
Workmen’s
Compensation
Board
(1957)
28
W.W.R.
545,
wherein
Davey,
J.A.
in
delivering
the
judgment
of
the
court,
said
at
p.
546:
“The
privative
provisions
of
this
section,
as
the
learned
judge
correctly
held,
will
not
oust
the
jurisdiction
of
the
court
to
quash
the
assessment
on
certiorari,
if
the
board
has
assumed
a
jurisdiction
not
vested
in
it
by
a
wrong
decision
on
a
collateral
question
of
law
or
fact
upon
which
that
jurisdiction
depends.”
In
the
Toronto
Newspaper
Guild
(supra)
case
the
privative
clause
involved
was
as
follows:
5.
Subject
to
such
right
of
appeal
as
may
be
provided
by
the
regulations,
the
orders,
decisions
and
rulings
of
the
Board
shall
be
final
and
shall
not
be
questioned
or
reviewed
nor
shall
any
proceeding
before
the
Board
be
removed,
nor
shall
the
Board
be
restrained,
by
injunction,
prohibition,
mandamus,
quo
warranto,
certiorari
or
otherwise
by
any
court,
but
the
Board
may,
if
it
considers
it
advisable
to
do
so,
reconsider
any
decision
or
order
made
by
it
and
may
vary
or
revoke
any
such
decision
or
order.
Kerwin,
J.
(as
he
then
was)
at
page
26
stated
as
follows:
Sections
similar
to
section
5
of
the
Act,
although
differing
in
form,
have
been
enacted
by
legislative
bodies
from
time
to
time
but
it
is
unnecessary
to
set
forth
the
decisions
in
which
they
have
been
considered
because,
if
jurisdiction
has
been
exceeded,
such
a
section
cannot
avail
to
protect
an
order
of
the
Board;
and
I
understood
that
to
be
conceded
by
counsel
for
the
appellant.
Since
in
my
view
the
Board
exceeded
its
jurisdiction,
section
4
of
the
Act,
also
relied
upon
by
counsel
for
the
appellant,
does
not
assist
him.
Finally,
it
is
stated
in
the
Board’s
reasons,
which
I
hold
to
be
a
part
of
the
return,
that
the
Board
“further
finds
on
the
basis
of
the
documentary
evidence
submitted
by
the
parties.”
There
is
nothing
to
justify
the
suggestion
that
the
Board,
or
any
member
thereof,
was
even
purporting
to
act
under
the
provisions
of
subsections
7
or
8
of
section
3,
or
that
they
had
any
evidence
other
than
the
Union
records
placed
before
it
by
the
appellant.
Kellock,
J.,
whose
judgment
was
also
that
of
Estey
and
Locke,
JJ.,
dealt
with
the
effect
of
the
privative
clause
at
page
38
as
follows
:
A
provision
such
as
section
5
of
the
statute
prohibits
the
court
from
questioning
any
decision
which
has
been
come
to
within
the
structure
of
the
statute
itself,
but
the
statute
does
not
endow
the
board
with
power
to
make
arbitrary
decisions.
The
legislature
must
be
taken
to
have
been
quite
familiar
with
the
principles
applicable
to
decisions
of
inferior
tribunals
when
questioned
in
the
courts.
It
has
not
used
apt
language
if
it
intended,
as
it
cannot
be
presumed
to
have
intended,
to
place
either
of
the
parties
to
such
a
proceeding
as
that
here
in
question
in
a
position
permitting
of
no
relief
no
matter
how
arbitrary
any
particular
decision
of
its
creature,
the
board,
may
be.
In
The
Queen
v.
Wood
(1885)
5
E.
&
B.
49
a
case
of
a
conviction
under
a
statute
which
provided
that
no
“‘proceeding
to
be
had
touching
the
conviction
of
any
offender
against
this
Act,
.
.
.
shall
be
vacated,
quashed,
or
set
aside
for
want
of
form,
or
be
removed
or
removable.
by
certiorari
or
other
writ
or
process
whatsoever
in
any
of
the
superior
courts”,
Lord
Campbell,
C.J.,
at
page
59
said
:
“As
to
the
clause
taking
away
the
certiorari,
we
came
to
the
conclusion
that
the
justice
had
declined
jurisdiction
and
therefore
had
not
properly
exercised
it.”
Fauteux,
J.
(now
C.J.C.)
at
pages
40
to
41
stated
as
follows:
The
right
of
the
parties
to
submit
to
the
Board
any
such
questions
is
implied
and
the
obligation
for
the
Board
to
determine
them
and,
consequently,
to
deal
with
them
judicially
before
reaching
its
conclusion
on
the
ultimate
point
to
which
they
are
related,
is
expressed.
On
a
consideration
of
the
material
admittedly
showing
what
took
place
before
the
Board,
I
cannot
convince
myself.
that
the
latter
did
not
decline
jurisdiction
as
a
result
of
its
rulings
on
the
various
requests
made
at
hearing
by
the
respondent,
all
of
them
being
directed
to
the
contestation
of
the
right
of
the
appellant
trade
union
to
be
certified
as
bargaining
agent.
In
the
perspective
of
all
that
took
place,
the
ruling
as
to
the
evidence
is,
I
think,
as
much,
if
not
more,
consistent
with
a
declining
of
juristion
than
with
a
wrongful
refusal
to
receive
evidence.
Bad
faith
of
the
Board
has
not
been
suggested
and
only
a
misinterpretation
of
the
law
as
to
what
its
duty
was
may
explain
this
substantive
failure
to
adequately
exercise
its
jurisdiction.
See
also
The
Board
of
Health
for
the
Township
of
Saltfleet
v.
Knapman,
[1956]
8.C.R.
877,
Cartwright,
J.
(as
he
then
was)
at
879
and
880;
and
see
Anisminic,
Ltd.
v.
The
Foreign
Compensation
Commission
and
Another,
[1969]
1
All
E.R.
208,
Lord
Reid
at
213
and
214
:
It
has
sometimes
been
said
that
it
is
only
where
a
tribunal
acts
without
jurisdiction
that
its
decision
is
a
nullity.
But
in
such
cases
the
word
“jurisdiction”
has
been
used
in
a
very
wide
sense,
and
I
have
come
to
the
conclusion
that
it
is
better
not
to
use
the
term
except
in
the
narrow
and
original
sense
of
the
tribunal
being
entitled
to
enter
on
the
enquiry
in
question.
But
there
are
many
cases
where,
although
the
tribunal
had
jurisdiction
to
enter
on
the
enquiry,
it
has
done
or
failed
to
do
something
in
the
course
of
the
enquiry
which
is
of
such
a
nature
that
its
decision
is
a
nullity.
It
may
have
given
its
decision
in
bad
faith.
It
may
have
made
a
decision
which
it
had
no
power
to
make.
It
may
have
failed
in
the
course
of
the
enquiry
to
comply
with
the
requirements
of
natural
justice.
It
may
in
perfect
good
faith
have
misconstrued
the
provisions
giving
it
power
to
act
so
that
it
failed
to
deal
with
the
question
remitted
to
it
and
decided
some
question
which
was
not
remitted
to
it.
It
may
have
refused
to
take
into
account
something
which
it
was
required
to
take
into
account.
Or
it
may
have
based
its
decision
on
some
matter
which,
under
the
provisions
setting
it
up,
it
had
no
right
to
take
into
account.
I
do
not
intend
this
list
to
be
exhaustive.
But
if
it
decides
a
question
remitted
to
it
for
decision
without
committing
any
of
these
errors
it
is
as
much
entitled
to
decide
that
question
wrongly
as
it
is
to
decide
it
rightly.
I
under-
stand
that
some
confusion
has
been
caused
by
my
having
said
in
Armah
v.
Government
of
Ghana
[1968]
3
All
E.R.
177
at
p.
187;
[1968]
A.C.
192
at
p.
234
that,
if
a
tribunal
has
jurisdiction
to
go
right,
it
has
jurisdiction
to
go
wrong.
So
it
has
if
one
uses
“jurisdiction”
in
the
narrow
original
sense.
If
it
is
entitled
to
enter
on
the
enquiry
and
does
not
do
any
of
those
things
which
I
have
mentioned
in
the
course
of
the
proceedings,
then
its
decision
is
equally
valid
whether
it
is
right
or
wrong
subject
only
to
the
power
of
the
court
in
certain
circumstances
to
correct
an
error
of
law.
See
also
his
conclusion
at
page
217:
It
follows
that
the
commission
rejected
the
appellants’
claim
on
a
ground
which
they
had
no
right
to
take
into
account
and
that
their
decision
was
a
nullity.
I
would
allow
this
appeal.
Lord
Morris
of
Borth-y-Gest
at
pages
221
and
222
:
That
was
the
decision
of
the
commission
whose
determination
of
any
application
made
to
them
“shall
not
be
called
in
question
in
any
court
of
law”.
This
is
not
a
case
in
which
there
has
been
any
sort
of
suggestion
of
irregularity
either
of
conduct
or
procedure
on
the
part
of
the
commission.
It
has
not
been
said
that
anything
took.
place
which
disqualified
the
commission
from
making
a
determination.
No
occasion
arises,
therefore,
to
refer
to
decisions
which
have
pointed
to
the
consequences
of
failing
to
obey
or
of
defying
the
rules
of
natural
justice,
nor
to
decisions
relating
to
bias
in
a
tribunal,
nor
to
decisions
in
cases
where
bad
faith
has
been
alleged,
nor
to
decisions
in
cases
where
a
tribunal
has
not
been
properly
constituted.
If
a
case
arose
where
bad
faith
was
alleged,
the
difficult
case
of
Smith
v.
East
Elloe
Rural
District
Council,
[1956]
1
All
E.R.
855;
[1956]
A.C.
736
would
need
consideration,
but
the
present
case
can,
in
my
view,
be
approached
without
any
examination
of
or
reliance
on
that
case.
The
provisions
of
section
4(4)
of
the
Act
of
1950
do
not,
in
my
view,
operate
to
debar
any
enquiry
that
may
be
necessary
to
decide
whether
the
commission
have
acted
within
their
authority
or
jurisdiction.
The
provisions
do
operate
to
debar
contentions
that
the
commission
while
acting
within
their
jurisdiction
have
come
to
wrong
or
erroneous
conclusions.
There
would
be
no
difficulty
in
pursuing,
and
in
adducing
evidence
in
sur
port
of,
an
allegation
such
as
an
allegation
that
those
who
heard
a
claim
had
never
been
appointed,
or
that
those
who
had
been
appointed
had
by
some
irregular
conduct
disqualified
themselves
from
adjudicating
or
continuing
to
adjudicate.
There
would
be
no
difficulty
in
raising
any
matter
that
goes
to
the
right
or
power
of
the
commission
to
adjudicate
(see
R.
v.
Bolton
(1841),
1
Q.B.
66;
[1935-43]
All
E.R.
71).
What
is
forbidden
is
to
question
the
correctness
of
a
decision
or
determination
which
it
was
within
the
area
of
their
jurisdiction
to
make.
It
is,
of
course,
clear
that
no
appeal
is
given
from
a
determination
of
the
commission.
Lord
Pearce
at
page
237:
The
above
principles
may,
however,
be
affected
by
the
existence
(as
here)
of
an
ouster
or
no
certiorari
clause.
The
words
of
section
4(4)
of
the
Foreign
Compensation
Act
1950,
are:
“The
determination
by
the
Commission
of
any
application
made
to
them
under
this
Act
shall
not
be
called
in
question
in
any
court
of
law.”
It
has
been
argued
that
your
Lordships
should
construe
“determination”
as
meaning
anything
which
is
on
its
face
a
determination
of
the
commission
including
even
a
purported
determination
which
has
no
jurisdiction.
It
would
seem
that,
on
such
an
argument,
the
court
must
accept
and
could
not
even
enquire
whether
a
purported
determination
was
a
forged
or
inaccurate
order
which
did
not
represent
that
which
the
commission
had
really
decided.
Moreover,
it
would
mean
that,
however
far
the
commission
ranged
outside
their
jurisdiction
or
that
which
they
were
required
to
do
or
however
far
they
departed
from
natural
justice,
their
determination
could
not
be
questioned.
A
more
reasonable
and
logical
construction
is
that
by
“determination”
Parliament
meant
a
real
determination,
not
a
purported
determination.
On
the
assumption,
however,
that
either
meaning
is
a
possible
construction
and
that,
therefore,
the
word
“determination”
is
ambiguous,
the
latter
meaning
would
accord
with
a
long
established
line
of
cases
which
adopted
that
construction.
One
must
assume
that
Parliament
in
1950
had
cognisance
of
these
in
adopting
the
words
used
in
section
4(4).
Lord
Wilberforce
at
page
247:
This
shows
very
clearly
that,
as
and
when
machinery
should
be
set
up
enabling
the
commission
to
deal
with
compensation
under
future
agreements,
this
should
be
within
fixed
and
determined
limits
which
the
legislature
itself
would
lay
down;
thus
Parliament
might
(under
section
2(2)
(a))
define
qualified
persons
and
impose
conditions,
and
(under
section
2(2)
(b)
)
prescribe
matters
to
be
established
to
the
commission’s
satisfaction.
There
could
be
no
doubt
that
if,
so
far
as
such
power
was
exercised,
and
such
definitions,
conditions
and
prescribed
matters
were
laid
down,
these
would
be
architectural
directions
binding
the
commission,
so
that
if
they
departed
from
them,
they
would
be
acting
beyond
their
powers.
Moreover,
when
one
compares
the
terminology
of
section
4(4)—“The
determination
by
the
Commission
of
any
application
made
to
them
under
this
Act.
.
.”—with
that
of
section
3(b)—“the
determination
of
.
.
.
claims
.
.
.”—and
appreciates
that
the
power
to
determine
claims
is
to
be
subject
to
such
limits
(as
to
definitions,
conditions
or
prescribed
matters)
as
might
be
approved
by
Parliament,
the
conclusion
must
follow
that
the
preclusive
clause
can
have
no
application
except
to
a
determination
made
within
the
limits,
whatever
they
turn
out
to
be,
fixed
by
Parliament.
The
respondents’
argument
that
they
have
only
to
make
a
self-styled
“determination”
in
order
to
enjoy
automatic
protection
is
thus
at
once
seen
to
be
unsustainable.
Lord
Pearson
at
page
250
:
My
Lords,
I
have
had
the
advantage
of
reading
in
advance
the
opinions
of
my
noble
and
learned
friends,
LORD
REID,
LORD
PEARCE
and
LORD
WILBERFORCE.
As
to
the
general
nature
of
the
court’s
supervisory
function
(as
distinct
from
any
appellate
function)
in
relation
to
decisions
of
tribunals,
I
agree
with
what
they
have
said
and
have
nothing
to
add.
I
agree
with
them
also
that
what
has
been
called
the
“ouster
provision”
in
section
4(4)
of
the
Foreign
Compensation
Act
1950,
does
not
exclude
the
court’s
intervention
in
a
case
where
there
is
a
merely
purported
determination
given
in
excess
of
jurisdiction.
and
his
conclusion
at
page
256:
I
would
say,
therefore,
that
the
commission
construed
‘the
article
correctly
and
did
not
ask
themselves
any
wrong
question
or
exceed
their
jurisdiction
in
any
way.
Having
so
construed
the
article,
the
commission
had
to
make
a
decision
as
to
the
effect
of
the
November
agreement.
They
decided
that,
by
that
agreement,
the
claim
passed
to
T.E.D.O.,
and
so
was
at
the
date
of
the
treaty
foreign
held
and,
therefore,
it
was
excluded
by
the
provisions
of
article
4(1)
(b)
(ii)
from
participation
in
the
fund.
The
decision
as
to
the
effect
of
the
November
agreement,
whether
right
or
wrong,
was
plainly
within
their
jurisdiction,
and
therefore
by
virtue
of
section
4(4)
of
the
Foreign
Compensation
Act
1950,
it
cannot
be
called
in
question
in
any
court.
I
would
dismiss
the
appeal.
In
the
foregoing
cases
as
in
practically
all
reported
cases
the
privative
clause
was
in
the
statute
at
the
time
the
impugned
decision
was
given.
In
the
instant
case,
as
counsel
for
the
appellant
points
out,
that
clause
was
put
into
the
Act
by
the
1970
amendment
long
after
the
Minister
had
made
his
purported
determination
on
May
1,
1968.
It
was
made
retroactive
to
April
1,
1968.
Counsel
for
the
appellant
urges
for
that
reason,
that
the
determination
in
the
Woodward
case
was
one
of
those
which
the
legislature
intended
to
isolate
from
the
vigilance
of
the
law
courts.
He
submitted
that
no
matter
how
much
of
a
nullity
or
how
void
the
determination
might
be
it
was
in
fact
made
and
the
legislature
intended
to
remove
it
from
any
possible
review
by
the
courts.
I
do
not
interpret
or
view
the
section
in
that
perspective.
I
would
strongly
suspect
that
the
1970
amendment
was
passed
couched
in
its
language
to
rescue
the
determination
of
the
Minister
made
on
May
1,
1968,
which
as
I
have
already
stated
was,
in
my
judgment,
no
determination
at
all.
The
amendment
was
not
intended
to
and
did
not
reach
a
determination
which
was
not
made
within
the
enabling
provisions
of
the
Act.
The
discretion
was
not
exercised
judicially.
The
rules
of
natural
justice
were
ignored.
I
am
of
the
opinion
that
the
learned
trial
judge
was
correct
in
concluding
that
the
privative
clause
legislated
in
and
by
the
1970
amendment
did
not
oust
the
jurisdiction
of
the
court
below.
It
is
for
the
same
reasons
that
I
am
of
the
opinion
that.
the
ratification
and
confirmation
referred
to
in
the
last
part
of
the
amended
Section
5(2)
fails
to
protect
the
purported
determination
made
by
the
Minister
on
May
1,
1968.
Then
in
addition
to
those
reasons
I
now
make
the
following
additional
observations
in
reference
to
the
submission
made
by
counsel
for
the
appellant
that
the
latter
part
of
Section
5(2),
as
amended,
statutorily
ratified
and
confirmed
the
determination
made
in
the
Woodward
case
and
made
it
binding
upon
all
persons
no
matter
how
illegal,
and
that
this
phrase
lent
to
the
determination
whether
null,
void,
or
voidable
a
validity
that
cured
it
of
all
its
inherent
and
other
defects
of
whatever
character,
whether
jurisdictional
or
otherwise.
The
determination
made
on
May
1,
1968
was,
at
that
time,
not
protected
by
a
privative
clause.
Not
long
after
the
determination
was
made
it
was
attacked
in
court
and
before
the
court
proceedings
were
finally
determined,
as
I
have
already
outlined,
the
legislature
by
the
retroactive
amendment
of
1970
made
this
determination,
amongst
others
made
by
the
Minister,
final,
conclusive
and
binding
on
all
persons’’
and
not
open
to
appeal,
question
or
review
in
any
court.
Thus
by
that
amendment
the
legislature
endeavoured
to
give
to
this
determination
of
the
Minister,
which
was
a
complete
nullity,
a
final
and
conclusive
character
by
law
and
having
attached
these
qualities
to
it
then
stated
that
it
was
binding
upon
all
persons
and
then
declared
it
to
be
an
area
forbidden
for
the
law
courts.
In
my
judgment,
had
the
amendment
thus
far
discussed
been
in
the
Act
originally
when
the
determination
was
made
it
could
not
give
finality
or
conclusiveness
to
that
determination
because
the
determination
was
not
made
in
accordance
with
the
provisions
in
the
Act.
The
privative
clause
could
not
protect
it
for
reasons
already
discussed.
The
section,
as
amended,
could
not,
in
my
judgment,
go
any
further
despite
the
fact
that
it
was
passed
after
the
determination
in
the
Woodward
case
was
made
and
when
passed
was
made
retroactive.
However,
the
amended
section
made
the
determination
final
which
meant
that
uncertainty
was
put
an
end
to
or
that
the
determination
was
not
to
be
undone
or
altered
or
revoked.
The
same
amendment
also
made
the
determination
conclusive
which
in
relation
to
a
statement
meant
that
it
decided
the
question
and/or
closed
the
transaction.
The
first
part
of
the
amended
section
also
made
the
determination
binding
on
all
persons.
What
was
there
left
to
ratify
or
confirm
and
to
further
make
binding
on
all
persons?
The
Minister
at
all
times
material
was
the
sole
and
only
functionary
statutorily
empowered
in
his
absolute
discretion
to
make
the
determination
in
its
totality.
That
being
so,
his
determination
by
the
terms
of
the
amendment
being
made
final
and
conclusive
and
binding
on
all
persons
needed
no
ratification
or
confirmation.
Ratification
and
confirmation
could
give
to
the
determination
already
declared
by
statute
to
be
final,
conclusive
and
binding
on
all
persons
no
greater
or
further
finality
nor
any
added
conclusiveness
nor
could
it
make
the
determination
more
binding
on
all
persons.
Normally,
a
certain
and
specific
act
is
the
subject-matter
of
a
ratification
or
a
confirmation.
There
was
no
ratification
or
confirmation
of
the
determination
made
by
the
Minister
in
the
Woodward
estate
as
such.
The
amended
Section
5(2)
was
deemed
to
come
into
effect
on
April
1,
1968
and
was
operative
on
and
after
that
date.
Its
effect
therefore,
as
the
statute
speaks
in
the
present,
was
that
at
the
moment
the
Minister
made
his
decision
on
May
1,
1968
the
legislative
ratification
and
confirmation
attached
itself
to
the
decision
so
made,
notwithstanding
the
fact
that
the
legislature
at
that
time
was
ignorant
of
what
the
determination
was.
It
was,
as
it
were,
an
advance
ratification
and
confirmation
in
vacuo
given
to
any
determination
made
by
the
Minister
after
April
1,
1968
by
reason
of
an
act
of
the
legislature
assented
to
on
April
8,
1970.
In
my
view,
Section
5(2),
as
amended
in
1970,
did
not
and
could
not
have
had
any
reference
to
a
determination
made
by
the
Minister,
which
was
made
without
notice
to
the
parties
whose
rights
were
to
be
affected
and
without
hearing
any
representations
from
such
parties
and
upon
facts
and
considerations
undisclosed
to
such
parties
and
not
made
apparent
to
the
court.
I
am
unable
to
imagine
a
more
perfect
nullity.
No
one
can
make
something
out
of
nothing.
“ex
nihilo
nihil
fit’’.
Thus,
in
my
judgment,
whatever
determination
the
legislature
may
have
intended
to
reach
in
and
by
the
peculiar
sections
above
discussed
it
did
not
and
could
not
reach
the
purported
determination
made
by
the
Minister
in
reference
to
the
Woodward
estate,
which
was
a
shocking
decision
made
contrary
to
all
precepts
of
natural
and
rational
justice
and
one
which
was
a
complete
nullity
in
fact
and
in
law,
as
the
judicial
process
by
which
that
determination
was
to
be
made
at
law
was
never
at
any
time
entered
into
by
the
Minister
whose
statutory
duty
it
was
to
set
that
judicial
process
in
motion
in
order
to
arrive
at
a
just
and
fair
determination
according
to
the
precept
of
law.
I
add
a
word
in
reference
to
the
use
of
the
words
‘‘final’’
or
“final
and
conclusive”
in
statutes
and
whether
or
not
the
use
of
such
words
ousts
the
supervisory
jurisdiction
of
the
Supreme
Court.
In
Taylor
v.
National
Assistance
Board,
[1957]
P.
101
at
111,
Denning,
L.J.
in
his
judgment
confirmed
the
availability
of
a
declaratory
action
as
a
remedy
to
ensure
that
authorities
set
up
by
Parliament
to
make
determinations
must
act
in
accordance
with
the
law
whether
the
determination
to
be
made
was
of
a
judicial,
disciplinary
or
administrative
character
despite
the
fact
that
by
statute
the
determination
was
declared
to
be
final.
He
stated,
and
I
agree,
that
“Parliament
only
gives
the
impress
of
finality
to
the
decisions
of
the
board
on
the
condition
that
they
are
reached
in
accordance
with
the
law,
and
the
Queen’s
courts
can
issue
a
declaration
to*see
that
this
condition
is
fulfilled.’’
In
Regina
v.
Medical
Appeal
Tribunal,
[1957]
1
Q.B.
574,
Denning,
L.J.
repeated
the
foregoing
quotation
and
declared
it
applicable
to
certiorari
proceedings
where
error
in
law
was
apparent
on
the
face
of
the
record
and
stated
that
the
words
“final”
or
‘‘final
and
conclusive”
do
not
debar
the
supervisory
jurisdiction
of
the
Supreme
Court,
but
leave
that
control
intact.
Romer,
L.J.
also
deals
with
the
problem
and
comes
to
the
same
conclusion
as
did
Parker,
L.J.
In
Pyx
Granite
Co.
Ltd.
v.
Ministry
of
Housing
and
Local
Government,
[1960]
A.C.
260,
the
House
of
Lords
considered
whether
or
not
an
Act
to
establish
declaratory
rights
was
available
in
the
circumstances
or
whether
it
was
ousted
by
use
of
the
words
‘‘shall
be
final’’
in
reference
to
a
decision
of
the
Minister.
Viscount
Simonds
stated
that
where
the
administrative
or
quasi-judicial
powers
of
the
Minister
were
concerned
declaratory
judgments
should
not
be
readily
given
but
that
that
type
of
action
was
appropriate
in
that
case.
He
said,
“It
is
a
principle
not
by
any
means
to
be
whittled
down
that
the
subject’s
recourse
to
Her
Majesty’s
courts
for
the
determination
of
his
rights
is
not
to
be
excluded.
except
by
clear
words.’’
Lord
Goddard
came
to
the
same
conclusions
and
added
that
the
remedy
by
way
of
a
declaratory
judgment
and
certiorari
are
not
mutually
exclusive
and
each
may
be
granted
in
appropriate
cases.
See
Lord
Jenkins
at
page
304:
See
also
the
judgment
of
Lord
Morris
of
Borth-y-
test
in
Ridge
v.
Baldwin
at
page
106
(supra)
on
the
words
“final
and
binding
upon
all
parties’’.
Counsel
for
the
appellant
did
not
in
the
court
below
argue
the
question
of
the
status
of
the
executors
to
bring
and
maintain
the
present
proceedings
nor
the
submission
that
the
determination
was
voidable
only
at
the
instance
of
the
foundation.
Neither
point
was
raised
in
the
Notice
of
Appeal.
Counsel
for
the
appellant
requested
amendments
to
the
Notice
of
Appeal
by
adding
two
grounds:
8.
That
the
Learned
Chambers
Judge
should
have
held
that
the
Executor
of
the
Estate
of
P.
A.
Woodward,
Deceased
had
no
status
to
bring
the
application
for
certiorari
because
they
were
not
a
person
aggrieved
and
that
the
status
to
bring
the
application
was
vested
only
in
the
Mr.
&
Mrs.
P.
A.
Woodward’s
Foundation.
9.
That
the
determination
was
voidable
only
at
the
instance
of
the
Mr.
&
Mrs.
P.
A.
Woodward’s
Foundation.
Counsel
for
the
respondents
objected
to
the
amendments
stating
that
had
the
application
been
made
in
the
court
below
the
respondents
then
would
have
applied
formally
to
add
the
Foundation
as
a
party
litigant.
There
is
merit
to
the
objection.
However,
I
do
not
think
that
adding
the
Foundation
as
a
party
litigant
would
solve
the
problem.
The
actual
complaint
is
that
the
Foundation
was
the
proper
entity
to
have
applied
initially
to
the
Minister
for
exemption
under
the
terms
of
the
Act.
I
do
not
see
where
the
Foundation
can
be
prejudiced
by
allowing
the
amendments.
I
would
therefore
allow
the
amendments
requested.
I
have
already
dealt
with
the
points
raised
by
the
amendments.
Lastly,
the
respondents
asked
this
court,
in
view
of
what
has
happened,
to
make
the
determination
which
the
Minister
should
have
made,
exempting
the
Foundation
upon
the
materials
before
this
court.
I
do
not
think
that
that
order
should
be
made.
The
respondents
have
maintained
successfully
that
the
determination
made
by
the
Minister
was
invalid
because
it
was
made
arbitrarily
and
violated
the
rules
of
natural
justice
in
that
the
representations
of
those
whose
rights
might
be
affected
were
not
asked
for
nor
heard.
The
whole
picture
was
not
before
the
Minister
when
he
made
his
determination
on
May
1,
1968.
That
whole
picture
is
not
before
this
court
at
this
time.
The
statute
directs
that
the
determination
shall
be
made
by
the
Minister.
I
think,
therefore,
that
the
order
made
by
the
learned
trial
judge
that
the
whole
matter
be
referred
back
to
the
Minister
for
a
proper
determination
is
the
course
that
should
be
pursued.
The
remarks
of
Lord
Greene
in
M.N.R.
v.
Wrights
Canadian
Ropes
Ltd.,
[1947]
C.T.C.
1
at
15
and
16
are
material.
He
there
said:
So
far
therefore
as
these
documents
are
concerned
their
Lordships
cannot
find
any
material
which
could
have
justified
any
disallowance.
But
it
was
suggested
that
there
may
have
been
other
facts
before
the
Minister
which
justified
him
in
taking
the
course
that
he
did
and
in
particular
it
is
said
that
the
report
of
the
Inspector
may
have
contained
the
requisite
material.
Their
Lordships
cannot
accept
this
argument.
The
appellant
has
not
chosen
to
produce
any
evidence
as
to
these
alleged
matters
and
their
Lordships
are
quite
unable
to
assume
in
the
appellant’s
favour
that
he
had
before
him
sufficient
facts
to
support
his
determination
when
he
neither
condescends
to
state
what
those
facts
were
nor
attempts
to
prove
that
any
such
facts
were
in
truth
before
him.
The
only
inference
which
in
their
Lordships’
opinion
can
legitimately
be
drawn
from
the
available
evidence
is
that,
apart
from
the
documents
which
were
before
the
Court
the
Minister
had
no
material
before
him
which
influenced
his
mind
in
making
the
determination
that
he
did.
If
he
had
in
fact
had
such
material
it
would
in
their
Lordships’
opinion
have
been
impossible
to
suppose
that
he
would
not
have
informed
the
respondents
of
at
least
the
substance
of
it
when
the
matter
was
originally
brought
before
him
so
as
to
give
the
appellants
a
fair
opportunity
of
meeting
the
case
against
them.
The
contrary
supposition
would
involve
that
the
appellant
had
come
to
a
decision
adverse
to
the
respondents
upon
material
of
which,
so
far
as
he
knew,
the
respondents
were
completely
ignorant
and
knowledge
of
which
he
deliberately
withheld
from
them.
He
later
added
(p.
17)
:
That,
in
the
opinion
of
their
Lordships,
was
the
correct
order
to
make,
but
the
reference
back
to
the
Minister
for
this
purpose
could
and
should
have
been
made
under
the
inherent
jurisdiction
of
the
Court
and
not
under
section
65(2).
It
cannot
be
doubted
that
when
the
Court
has
answered
a
question
submitted
to
it
in
such
a
way
as
to
necessitate
a
revision
of
the
assessment
it
has
inherent
jurisdiction
to
send
the
assessment
back
for
that
purpose
instead
of
being
bound
itself
to
make
the
consequential
alterations.
The
appeal
is
dismissed,
the
quashing
of
the
determination
is
confirmed
and
the
matter
is
remitted
back
to
the
Minister
as
directed
by
the
learned
trial
Judge.
Costs
to
the
respondents.
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