Federal Court Reports
Chiasson v. Canada (T.D.) [2001] 4 F.C. 66
[1] The plaintiff's father, Yvon Joseph Chiasson, served in the Canadian Merchant Navy in the Second World War. We are told that on about January 23, 1943, Joseph Chiasson, along with three fellow merchant seamen, rescued eight American sailors from a vessel grounded outside the harbour of Louisbourg, Nova Scotia. Seeking recognition for his father's courageous deeds, the plaintiff nominated his father for a Canadian bravery decoration.
[2] The Canadian Bravery decorations are established and awarded pursuant to regulations made further to Letters Patent issued by Her Majesty Queen Elizabeth II. They provide for the establishment of the Canadian Decorations Advisory Committee ("the Committee") whose mandate is to determine whether nominees are eligible for the award of a decoration and to submit lists of meritorious nominees to the Governor General of Canada (the "Governor General").
[3] On March 31, 2000, the plaintiff forwarded a nomination form concerning his father to the attention of the Honours Directorate of the Chancellery of Honours, an administrative office of the Governor General. The form contained the following notice, "Consideration is only given to incidents less than two years prior to the date of submission".
[4] Mr. Chiasson also wrote to Marie de Bellefuille-Percy, Director of the Honours Directorate at Rideau Hall and later, to the Governor General, Her Excellency the Right Honourable Adrienne Clarkson, protesting the two-year limitation rule and requesting that it be eliminated.
[5] On April 12, 2000, Mr. Chiasson received a reply from Lieutenant General James Gervais in his capacity as Deputy Secretary of the Chancellery. Lieutenant General Gervais informed Mr. Chiasson that Canada's Honours Policy does not permit awards to be granted for events which occurred before the creation of the current honours' system. He explained that the two-year rule was essentially adopted due to difficulties involved in investigating and verifying events that were long past.
[6] Further correspondence was exchanged, and on May 2, 2000, Mr. Chiasson received a letter from Lieutenant General Gervais stating that his comments on the two-year limitation issue would be brought to the attention of the Committee for discussion at its meeting in June of that year.
[7] The minutes of the Committee's meeting of June 14, 2000, indicate that there was in fact a discussion of Mr. Chiasson's challenge to the two-year rule. The minutes also state the Committee's view, which was that the two-year rule should not be included in the regulations. Instead, the Committee favoured a common sense approach in applying the rule when dealing with worthy cases very close to the borderline.
[8] Due to an administrative oversight the plaintiff was not informed of the discussion until September 2000. By letter dated September 7, 2000, Lieutenant General Gervais, in his capacity as Chairman of the Committee, wrote to the plaintiff, as follows:
Dear Mr. Chiasson:
This letter is further to my letter of May 2nd, 2000 in which I stated that your request for a Bravery Medal for your Father would be brought to the attention of the Canadian Decorations Advisory Committee.
The Committee met on Wednesday, June 14th and your request was placed on the agenda.
I would like to assure you that the matter received careful consideration by all members of the Committee. However, based on the Regulations which were adopted pursuant to the Letters Patent issued by the Queen in 1972, the Canadian Decorations Advisory Committee has decided that it will uphold the eligibility policy and the two-year limit. The Committee has determined, therefore, that your father's case, which took place in 1943, is not admissible for consideration given that the petition for an award exceeds the two-year limit.
[9] In the interim Mr. Chiasson, who was unaware of the Committee's decision, had commenced the within action to challenge the two-year rule. The plaintiff issued his statement of claim on July 20, 2000. The sole relief claimed is for a writ of mandamus to compel the submission of his application to the Committee for determination on its merits.
The Defendant's Submissions
[10] The Crown has advanced three grounds for its application to strike. The essential ground is that the action must fail as the bestowal of honours is a matter of Crown prerogative and therefore is not justiciable. The second is that the action is moot in that the plaintiff has already obtained the remedy he seeks. The third ground is that the Court has no jurisdiction to entertain an action for mandamus, which is only available on judicial review.
[11] On the first ground, the defendant outlined the history of the delegation of the prerogative relating to the granting of honours as follows. King George VI gave the Governor General the authority to exercise his royal prerogative by granting the Letters Patent of 1947. Thereafter, in 1967, Queen Elizabeth II, by Letters Patent, created the Order of Canada whereby the Governor General exercised the prerogative to determine who should receive the award.
[12] In 1972, Queen Elizabeth II signed Letters Patent that established the Canadian Bravery Decorations Regulations thereby expanding the awards to include awards for bravery, such as the Cross of Valour, the Star of Courage and the Medal of Bravery. In 1996, the 1972 Canadian Bravery Decorations Regulations were repealed and replaced with the 1996 Canadian Bravery Decorations Regulations ("the Regulations"), which remain in effect today (P.C. 1997-123, Canada Gazette, Part I, Vol. 131 p. 2019).
[13] The defendant relied on Black v. Canada (Prime Minister) [2000] O.J. No. 784 (hereinafter referred to as "Black"), for the principle that the assertion of prerogative power is not subject to review by courts. In Black, the Court quoted a decision by Lord Roskill, Council of Civil Service Unions v. Minister of Civil Service [1985] 1 A.C. 374 at 418, [1984] 3 All E.R. 935 (H.L.) (hereinafter referred to as "CCSU"), in which the granting of honours is specifically mentioned as a prerogative power beyond the scope of judicial intervention.
In this case the issue is the justiciability of the PM's actions. The outcome of this case depends entirely on the legal character of the actions of the PM alleged in the amended statement of claim. If they reflected an exercise of Crown prerogative in relation to the granting or withholding of honours, or in relation to advice given to another country, those actions are political matters beyond the reach of the court. In Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374 at p. 418, [1984] 3 All E.R. 935 (H.L.), Lord Roskill said:
Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.
[14] The defendant also relied on the decision of Justice MacKay in Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 at 131 (hereinafter referred to as "Vancouver Island"). The case involved two Orders-in-Council approving the visits of nuclear- carrying vessels and nuclear-propelled vessels to Canadian ports. The applicants in that case argued that the Orders-in-Council were not made pursuant to prerogative power since a number of statutes had supplanted that power. MacKay J. began his analysis by examining legislative decisions which are beyond review at page 131:
What constitutes a legislative decision that is beyond consideration by the Court, except in relation to issues of jurisdiction of the decision-maker, here the Governor in Council? At the very least it seems to me the decision must be discretionary, usually, but not always, general in application, based on the exercise of judgment after assessing factors of general policy, of public interest and public convenience, morality, politics, economics, international obligations, national defence and security, or social, scientific or technical concerns, that is issues of policy which lie outside the ambit of typical concerns or methods of the courts.
[15] MacKay J. then dismissed the application, holding that none of the statutes and regulations referred to by the applicants affected the Crown's prerogative power to provide for visits of naval ships. The Orders-in-Council were held to be within the prerogative power to deal with international relations and defence and given that the Orders-in-Council were legislative decisions, unaffected by statute and within the prerogative power, the Court held that the decision was beyond review by the Court..
[16] The defendant's argument is in effect that the case at bar is a similar instance of an exercise of unfettered prerogative not otherwise supplanted by legislation. According to the defendant, sections 7 and 8 of the Regulations give the Committee unrestricted prerogative authority to determine eligibility requirements, including the imposition of a time bar. The Governor General, in turn, has full authority to award the decorations pursuant to section 17 of the Regulations. The Crown argued that the provisions taken together preclude any limitations on the exercise of the delegated prerogative by the Governor General and the Committee, with the result that decisions of the Committee are beyond the jurisdiction of the Court.
[17] For ease of reference, I have attached the text of sections 7, 8 and 17 of the Regulations as an appendix to these reasons.
[18] The defendant's second argument is that this action should be struck out because the relief sought has become moot. The plaintiff is seeking a writ of mandamus to compel the Committee to consider his nomination, when, according to the defendant, the Committee has already reviewed the nomination and determined Mr. Chiasson's father to be ineligible.
[19] Finally, the defendant maintains that the plaintiff can only proceed by judicial review in accordance with section 18(3) of the Federal Court Act ("the Act"). The Act stipulates that a writ of mandamus may only be sought by way of an application for judicial review against a "federal board, commission or other tribunal". According to the defendant, the Committee may be said to be a body exercising powers conferred by a prerogative of the Crown and therefore come within the definition of a federal board, commission or other tribunal. However, the Crown argues, the Federal Court does not have jurisdiction to entertain an action for mandamus, and accordingly the action must be struck under Rule 221of the Federal Court Rules, 1998 ("the Rules") as beyond the jurisdiction of the Court and disclosing no cause of action.
[20] In written submissions, the defendant relied on Scrimbitt v. Her Majesty the Queen, DIAND and Sakimay Indian Band Council (1997), T-2031-96 (F.C.T.D.) and Brar v. Her Majesty the Queen (1997), T-1806-96 (F.C.T.D.) for the principle that this Court lacks the jurisdiction to convert an action into an application for judicial review.
[21] At the hearing of the motion, however, the defendant cited the cases decided by this Court holding that a proceeding that is improperly launched may be converted to the appropriate form pursuant to Rule 57 of the Rules. While acknowledging the principle, the defendant urged that the Court nevertheless ought not to convert the action to an application because it was without foundation and in any case out of time. The defendant pointed out that the plaintiff did not bring his application 30 days from either May 2, 2000, at which time he was told the two-year rule would be brought to the attention of the Committee, or September 7, 2000, when he was advised of his father's ineligibility.
The Plaintiff's Submissions
[22] The plaintiff argues that the language of the Regulations, and in particular section 8, is mandatory. The Committee "shall" consider all nominations submitted to determine who is eligible for an award. The plaintiff points out that the Regulations themselves do not impose a two-year limitation when asserting the royal prerogative. The imposition of the two-year limitation, therefore, is ultra vires the Committee and constitutes an unauthorized fettering of the Crown's prerogative.
[23] The plaintiff adds that based on paragraph 5 of the greeting in the 1996 Letters Patent, Her Majesty has asserted that any substantive change to the Regulations must be enacted through Letters Patent, as follows:
AND WE DO direct that the award of the Canadian bravery decorations shall be governed by the annexed Canadian Bravery Decorations Regulations, 1996, as those Regulations may from time to time be amended, repealed or revised by Letters Patent issued by US, Our heirs, and successors or Our Governor General.
[24] The plaintiff argues that the two-year rule is a de facto regulation that has been disguised as an administrative policy decision. The Committee has usurped and violated the royal prerogative by creating a substantive amendment to the Regulations without authority.
[25] In this regard, the plaintiff cited Re Doctors Hospital and Minister of Health et al. (1976), 68 D.L.R. (3d) 220 at 230 (Ont. Div. Ct.) and Prospect Investments Ltd. v. New Brunswick (Liquor Licensing Board) ([1991] N.B.J. No. 8) for the proposition that regulatory decisions which depart from the object and purpose of the enabling statute, in this case the Letters Patent, are justiciable.
[26] As to mootness, the plaintiff argues that his challenge has been mischaracterized, and that the prerogative to award or withhold honours was in fact never exercised in this case. He distinguishes both Black and Vancouver Island in that, unlike the case at bar, the proper body had exercised royal prerogative in both of those cases.
Analysis
[27] A party applying to strike out an action bears a heavy burden and must persuade the Court that the action has no chance whatsoever of success and must inexorably fail. The application fails if the claim discloses even a "germ" or "scintilla" of a cause of action: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Operation Dismantle Inc. et al v. Queen ,[1985] 1 S.C.R. 441, Perera v. Canada, [1997] F.C.J. 199 T.D.
[28] As to the defendant's contention that the action is moot, in my view this argument fails, as it is at the least debatable whether the plaintiff has achieved the remedy he is seeking. Indeed, whether his father's eligibility may be said to have been considered by the Committee on its merits or, otherwise stated, whether it is within the Committee's powers to decline to further consider the application, is precisely what is at issue in this proceeding.
[29] The Crown's principal objection is that the action cannot succeed because it relates to an exercise of Crown prerogative, which is beyond the jurisdiction of the Court. For the following reasons, I am not satisfied that the plaintiff's claim in this regard is bereft of all possibility of success.
[30] Undoubtedly, the exercise of Crown prerogative has traditionally been immune from scrutiny by the courts. This is substantiated by the paucity of jurisprudence in the area. However, recent decisions indicate some erosion of that immunity. In Operation Dismantle, supra, for example, the Supreme Court of Canada held that Crown prerogative can be subject to judicial scrutiny to determine whether an impugned decision is constitutional.
[31] Further, if a prerogative power has been supplanted by a statutory one, the exercise of the statutory power is subject to review. In Re Doctors Hospital and Minister of Health et al., supra; for example, the Ontario High Court of Justice held that a decision of the Lieutenant-Governor in Council was not made pursuant to royal prerogative but rather was made pursuant to the statutory authority contained within section 4(5) of the Public Health Act and as such was reviewable to ensure that it was made pursuant to the objects and policy of the statute.
[32] There are also other grounds on which the exercise of prerogative power may be reviewed. Brown and Evans state, in Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 2000 at 13:1110):
Furthermore, even when judicial review of an exercise of the prerogative power is unavailable, a court still can be called upon to decide whether the prerogative power exists in law, and if it does, how broad the power is and whether the action taken fell within its scope.
[33] The authors cite Vancouver Island, supra, as support for the proposition. We recall that in that case, the Court found that the decision in question was not subject to review. MacKay J. concluded, however, at page 131:
... In the case of claimed prerogative powers the question will be whether the power exercised is within prerogative powers.
[34] In the same vein, two British cases point out that the exercise of Crown prerogative may be scrutinized by the Court having regard both to the breadth of the power exercised and the nature of the decision which it is sought to exempt from review.
[35] The CCSU case cited with approval in Black, like Vancouver Island, deals with delegated prerogative power exercised by Order-in-Council. In that case, the Order-in- Council was made pursuant to a prerogative power to regulate the terms and conditions of the civil service. The House of Lords heard argument that a decision made pursuant to delegated power, that is, power delegated by the sovereign pursuant to the prerogative, is immune from review in the same manner as a direct exercise of prerogative power. The House of Lords concluded that whatever the instrument of delegation, the Court retains the authority to review the impugned decision to ensure that powers are not exceeded:
... I am unable to see why the words conferring the same powers should be construed differently merely because their source was an Order in Council made under the prerogative...the Order in Council, being made under the prerogative, derives its authority from the sovereign alone and not, as is more commonly the case with legislation, from the sovereign in Parliament. Legislation frequently delegates power from the legislating authority-the sovereign alone in one case, the sovereign in Parliament in the other-to some other person or body and, when that is done, the delegated powers are defined more or less closely by the legislation, in this case by article 4. But whatever their source, powers which are defined, either by reference to their object or by reference to procedure for their exercise, or in some other way, and whether the definition is expressed or implied, are in my opinion normally subject to judicial control to ensure that they are not exceeded...
(supra, at 399)
[36] Lord Scarman distills the essence of these remarks at page 407 of that judgment:
...the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.
[37] The High Court of Justice later appliedCCSU in Lustig-Pream v. Admiralty Board of Defence Council, [1995] E.W.J. No. 4735, and concluded at page 14:
I have no hesitation in holding this challenge justiciable. To my mind only the rarest cases will today be ruled strictly beyond the Court's purview-only cases involving national security properly so-called and where in addition the Courts really do lack the expertise or material to form a judgment on the point at issue. This case does not fall into that category. True, it touches on defence of the realm but it does not involve determining "whether...the armed forces [should be] Disposed of in a particular manner" (which Lord Roskill in CCSU thought plainly unreviewable...). No operational considerations are involved in this policy. Now, indeed, that the "security implications" have disappeared, there appears little about it which the courts are not perfectly well qualified to judge for themselves.
[38] Essentially, the plaintiff's case is that the subject matter of his claim is not the bestowal of honours or awards, but the institution of a two-year limitation which is alleged to be beyond the delegated authority of the Committee. The question at issue then is whether the Committee's decision to apply a time bar, rather than examine the plaintiff's nomination on the merits, is an exercise of Crown prerogative which is beyond the scope of review by this Court. To the extent that this calls for a determination of the scope of the Committee's powers by reference to the Letters Patent and the Regulations it is arguably a proper subject for judicial inquiry.
[39] Indeed I conclude from a review of the jurisprudence that questions relating to the exercise of prerogative powers ought not to be dealt with summarily. Whether there may be judicial control of a particular decision made by virtue of a delegated Crown prerogative requires determination on its merits, on a case by case basis, having regard to the nature of the impugned decision.
[40] As to the final element of the Crown's argument, I agree that an action for mandamus is improper and without foundation. This, however, is essentially a defect as to form which I assume is due to the fact that the litigant is self represented. In such instances Rule 57 may be invoked to convert an action to a judicial review. Rule 57, which stipulates that an originating document is not to be set aside merely because another ought to have been used has been interpreted and applied by this Court to permit the conversion of a proceeding improperly commenced as an action to an application for judicial review. See McLean v. Canada, [1999] F.C.J. No. 400, Khaper v. Canada, [1999] F.C.J. No. 1735, Khaper v. Canada, [1999] F.C.J. No. 2014, Niederawer v. Canada (Minister of National Revenue), [2000] F.C.J. No. 928 and Métis National Council of Women v. Canada, [2000] F.C.J. No. 1961.
[41] Accordingly, I shall strike the action on that basis with leave to the plaintiff to bring a motion to convert the action to an application for judicial review and for leave to extend the time for bringing the application for judicial review.
[42] A separate Order will issue. The costs of the motion shall be in the cause.
_________________________
Prothonotary
OTTAWA, Ontario
May 22, 2001
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