Supreme Court of Canada
Attorney General (Que.) et al. v. Farrah, [1978] 2 S.C.R. 638
Date: 1978-05-01
Attorney General of the Province of Quebec and the Transport Tribunal (Defendants) Appellants;
and
Joseph Farrah (Plaintiff) Respondent;
and
Curtis J. Sommerville et al. Mis en cause;
and
Attorney General of Alberta Intervenor.
1977: November 14; 1978: May 1.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law—Transport Tribunal—Judges appointed by the province—Exclusive appellate jurisdiction over questions of law—Supervisory power conferred on courts referred to in s. 96 of the B.N.A. Act—Writ of evocation—British North America Act, s. 96—Transport Act, L.Q. 1972, c. 55, ss. 24, 30, 56, 58, 59, 72—Code of Civil Procedure, art. 846.
Respondent Farrah obtained a writ of evocation from a judge of the Superior Court of Quebec to prevent the Transport Tribunal from hearing the appeal from a decision of the Transport Commission. Farrah argued that s. 58(a) of the Transport Act, which gives the Transport Tribunal exclusive and final appellate jurisdiction, on any question of law, from any decision of the Transport Commission which terminates a matter, was ultra vires the provincial legislature. Both the Superior Court and the Court of Appeal unanimously accepted the validity of this argument because, in their view, the province acted contrary to the B.N.A. Act by conferring on this tribunal a jurisdiction that s. 96 reserves for superior courts, whose judges are appointed by the Governor General in Council. Hence the appeal to this Court.
Held: The appeal should be dismissed.
Per Martland, Ritchie, Pigeon, Beetz and Pratte JJ.: In 1867, the superintending and reforming power of the Superior Court over inferior tribunals was not restricted to matters of jurisdiction but extended to controlling the legality of decisions of inferior tribunals which, though not invalid owing to excess of jurisdiction, were never-
[Page 639]
theless vitiated by certain errors of law on the face of the record.
Section 58(a) of the Transport Act gives the Transport Tribunal exclusive appellate jurisdiction from any decision of the Transport Commission which terminates a matter. Sections 24 and 72 are aimed at protecting the decisions of the Transport Commission and the Transport Tribunal from the superintending and reforming power of the Superior Court. The combined effect of these three provisions is therefore simultaneously (i) to withdraw from the superintending and reforming power of the Superior Court the decisions of the Transport Commission which, though within its jurisdiction, are nevertheless tainted with an error of law on the face of the record, and (ii) to transfer this superintending and reforming power from the Superior Court to the Transport Tribunal, a body whose members are not appointed by the Governor General in Council. By thus conferring on the Transport Tribunal part of the supervisory authority that was vested in the Superior Court at the time of Confederation, the province exceeded its jurisdiction.
Per Laskin C.J. and Spence, Dickson and Estey JJ.: The most recent decisions of the Privy Council and of this Court have clearly established that s. 96 of the B.N.A. Act cannot properly be interposed against a provincial administrative agency merely because it was empowered to exercise judicial functions. It is open to a province to endow an administrative agency, which has adjudicative functions, with power to determine questions of law in the exercise of its authority under a valid provincial regulatory statute. It is also open to a province to establish an administrative tribunal of appeal as part of a valid regulatory statute and to invest such a tribunal with power to make decisions on questions of law in the course of exercising an appellate authority over decisions of the primary agency. In s. 58(a), however, the province goes further than this. The Transport Tribunal becomes an appeal agency which concerns itself primarily with questions of law and which does so “to the exclusion of any other court”. The effect of s. 58(a) and of the privative provisions of ss. 24 and 72 of the Transport Act is to constitute the Transport Tribunal as the final court of appeal in matters within s. 58(a), and to oust the superintending and reforming authority of the Superior Court over decisions of the Commission as well as over decisions of the Transport Tribunal. By substituting an administrative tribunal of appeal for a s. 96 appellate court, the province has entered territory forbidden to it by that section.
[Page 640]
Per Ritchie, Pigeon and Beetz JJ.: Prior to 1972, the decisions of the boards which the Transport Commission replaced were subject, not to the superintending power of the Superior Court, but to a right of appeal to the Court of Appeal on questions “of jurisdiction or law”. With regard to s. 96 of the B.N.A. Act, this presented no problem since the Court of Appeal is a “superior court” within the meaning of that section. The expression “question of law” includes questions of jurisdiction. Section 58(a) of the Transport Act was therefore intended to transfer to the Transport Tribunal all the jurisdiction previously exercised by the Court of Appeal and concerned solely with questions of law. These are powers that a province may not transfer to a tribunal of which it appoints the judges.
Séminaire de Chicoutimi v. City of Chicoutimi, [1973] S.C.R. 681, applied; Toronto v. York, [1938] A.C. 415; Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., [1949] A.C. 134; A.E. Dupont v. Inglis, [1958] S.C.R. 535; Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112; Bradley v. Canadian General Electric Co. Ltd., [1957] O.R. 316; Farrell v. Workmen’s Compensation Board (B.C.), [1962] S.C.R. 48; L’Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; Executors of Woodward Estate v. Minister of Finance (B.C.), [1973] S.C.R. 120; Three Rivers Boatman Ltd. v. Canada Labour Relations Board, [1969] S.C.R. 607; Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147; R. v. Northumberland Compensation Appeal Tribunal, [1952] 1 K.B. 338; R. v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128; Metropolitan Life Insurance Company v. International Union of Operating Engineers, [1970] S.C.R. 425; Jarvis v. Associated Medical Services Inc., [1964] S.C.R. 497; Komo Construction Inc. v. Labour Relations Board of Quebec, [1968] S.C.R. 172; White Sister Uniform Inc. v. Le Tribunal du travail, [1976] C.A. 772; General Motors v. Brunet, [1977] 2 S.C.R. 537; The Provincial Secretary of the Province of Prince Edward Island v. Egan, [1941] S.C.R. 396; Pringle v. Fraser, [1972] S.C.R. 821; Jones v. Edmonton Catholic School District, [1977] 2 S.C.R. 872; Shell Co. of Australia v. Federal Commissioner of Taxation, [1931] A.C. 275; O. Martineau & Sons Ltd. v. City of Montreal, [1932] A.C. 113, referred to.
APPEAL from a decision of the Court of Appeal of Quebec dismissing the appeal from a
[Page 641]
judgment of the Superior Court authorizing a writ of evocation to be issued. Appeal dismissed.
Pierre Lamontagne, Q.C., Roger Thibaudeau, Q.C., Ross Goodwin and Françoise Guénette, for the appellants.
André Joli-Cœur, for the respondent.
William Henkel, Q.C., for the interverior.
The judgment of Laskin C.J. and Spence, Dickson and Estey JJ. was delivered by
THE CHIEF JUSTICE—The issue in this appeal does not turn on any doubt as to provincial regulatory authority in relation to provincial transport. It has to do rather with adjudicative authority and with whether a Province offends s. 96 of the British North America Act if it includes in an otherwise valid regulatory statute adjudicative provisions such as those found in s. 58(a) of the Transport Act, L.Q. 1972, c. 55.
The Act establishes a regulatory regime in respect of public and private transport and confides administration in the first instance to the Quebec Transport Commission, a statutory body operating through four administrative divisions as prescribed by s. 15 of the Act and exercising powers given by the Act within the scope of regulations of the Lieutenant-Governor in Council. Within the administrative structure of the Act is a Transport Tribunal (comprised of provincial judges) which is given certain appellate jurisdiction over the Commission. Section 58 refers to this appellate jurisdiction as follows:
58. The Transport Tribunal shall also have jurisdiction, to the exclusion of any other court, to hear and dispose of:
(a) in appeal, on any question of law, any decision of the Commission which terminates a matter;
(b) in appeal, decisions of the Commission under section 30;
(c) any matter, by evocation, when the Commission has omitted or neglected to render its decision within six months following the making of the application.
[Page 642]
Only s. 58(a) is in issue in this appeal, but other provisions of the Act, which will be mentioned later in these reasons, have a bearing on the proper assessment of s. 58(a).
I begin this assessment with two propositions which, in my opinion, admit of no challenge. First, it is open to a Province to endow an administrative agency, which has adjudicative functions, with power to determine questions of law in the exercise of its authority under a valid provincial regulatory statute such as the one involved in the present case. Indeed, it is difficult to appreciate how such an agency can operate effectively if it is precluded from interpreting and applying the statute under which it exercises its jurisdiction. Second, it is also open to a Province to establish an administrative tribunal of appeal as part of a valid regulatory statute and to invest such a tribunal with power to make decisions on questions of law in the course of exercising an appellate authority over decisions of the primary agency.
The time has long gone when s. 96 of the British North America Act could be properly interposed against a provincial administrative agency merely because it was empowered to exercise judicial functions. Toronto v. York, which raised a ban on this ground against provincial administrative tribunals, was severely restricted in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. There the Privy Council pointed out that the application of s. 96 is not determined by a holding that a provincial administrative tribunal exercises judicial power, but it is necessary to go on to inquire whether in that exercise it is a tribunal analogous to a superior, district or county court. This Court has adopted and refined the test by noting, as in A.E. Dupont v. Inglis, that a distinction must be made between the character of a tribunal and the type of judicial power, if any, exercised by it. Rand J., who spoke for this Court in the Dupont case, pointed out that where judicial power is not of the type belonging exclusively to courts within s. 96 it may be conferred upon a
[Page 643]
provincial tribunal whatever its character; and he added, making an observation that is relevant here, that the fact that a right of appeal is given as part of and within the administrative organization cannot have any significant bearing on the issue.
In a more recent decision, Tomko v. Labour Relations Board (Nova Scotia), this Court, referring, inter alia, to the John East and Dupont cases, said that in considering the application of s. 96 to a provincial administrative agency “it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation” (at p. 120).
Applying the foregoing considerations to the present case, it would, in my view, be competent for the Province to invest the Transport Tribunal with power to decide questions of law in the course of hearing appeals from decisions of the Transport Commission. Although such a power involves the exercise of a judicial function, it is not on that account alone beyond the constitutional authority of a Province to repose in a provincially appointed board. The case law supports an even wider authority in this respect, authority to vest unreviewable power to determine all questions of law which arise in the course of the exercise of the provincial tribunal’s statutory functions. Privative clauses to this effect have been so construed: see Bradley v. Canadian General Electric Co. Ltd.; and cf. Farrell v. Workmen’s Compensation Board (B.C.).
The difficulty in the present case is that the Transport Tribunal has not been constituted as simply a tribunal of appeal within the administrative structure of the Transport Act, empowered to hear appeals from decisions of the Transport Commission and to decide questions of law in the course of a general appellate authority. It is constituted as an appeal agency which, under s. 58(a),
[Page 644]
is primarily concerned with questions of law. This is evident from ss. 66 and 67 of the Act which require previous leave to appeal where the powers under s. 58(a) are involved but not in respect of the Transport Tribunal’s powers under s. 58(b) which refers back to s. 30 of the Act (relating to the withdrawal of registration markers and registration certificates of a vehicle in certain circumstances) or under s. 56 (which relates to appeals respecting suspension, cancellation or refusal of permits or registration certificates). Neither s. 58(6) nor s. 56 involves a function which can be designated as “judicial” for the purposes of s. 96 of the British North America Act; s. 58(a) obviously does.
Moreover, the authority conferred upon the Transport Tribunal by s. 58(a) is given to it “to the exclusion of any other court”, and the exclusion is fortified by other preclusive provisions, namely, the privative provisions of ss. 24 and 72. As a matter of historical record, predecessor legislation had invested the Quebec Court of King’s Bench, Appeal Side, and later the Quebec Court of Queen’s Bench, Appeal Side with appellate authority in respect of questions of jurisdiction and of law: see, for example, the Transportation and Communication Act, R.S.Q. 1941, c. 143, s. 28; the Transportation Board Act, R.S.Q. 1964, c. 228, s. 48. That Court is now stripped of this authority by a Tribunal which differs from it only in name and in its appointed members. Under s. 24 of the present Act, decisions of the Commission are excluded from the provisions for extraordinary recourse under art. 834 to 850 of the Quebec Code of Civil Procedure; similarly, under s. 72, such recourse is denied to the decisions of the Transport Tribunal.
It will be appreciated that under the key art. 846 of the Code of Civil Procedure the superintending and reforming power of the Quebec Superior Court extends to variety of matters including questions of jurisdiction and questions of law. It is important to examine the entire article which is as follows:
[Page 645]
846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases:
1. when there is want or excess of jurisdiction;
2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect;
3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done;
4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice.
However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.
The effect of this article under the concluding paragraph thereof is to preserve the superintending and reforming power of the Superior Court where a want or excess of jurisdiction is alleged, even though there is a right of appeal.
There is no such reservation of the authority of the Superior Court under the Transport Act either in respect of the decisions of the Commission or in respect of the decisions of the Transport Tribunal, whether under s. 58(a) or otherwise. In what I have said to this point I have excluded questions of jurisdiction as contrasted with questions of law, but it is quite clear under the judgments of this Court that attempts to foreclose review on questions of jurisdiction raise different considerations from those that arise in respect of questions of law: see L’Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec, at p. 155; Executors of Woodward Estate v. Minister of Finance (B.C.). Even if it be urged that ss. 24 and 72 should be read as being incapable of denying recourse to the Quebec Superior Court on questions of alleged want or excess of jurisdiction and thus as not excluding entirely the reviewability of decisions of the Commission or of the Tribunal by the Superior Court, the validity of ss. 24 and 72
[Page 646]
is not directly in issue here. As they stand, they shed light on the purpose of the Transport Act to immunize decisions of both the Commission and the Tribunal from judicial review. Indeed, it is by no means clear that when s. 58(a) excludes any other court from any involvement in questions of law arising in the decisions of the Commission it does not also purport to exclude appellate review of jurisdictional issues, these being a fortiori questions of law. The distinction is not made and ss. 24 and 72 indicate that no distinction is intended.
It is undeniable that s. 96 of the British North America Act may apply to an administrative tribunal of appeal as well as to one concerned with direct enforcement of a regulatory statute, a so-called primary tribunal. Where an administrative appeal agency is constituted, divorced, as is the Transport Tribunal here, from involvement in the exercise of original jurisdiction under the Transport Act and given a purely appellate authority which includes the power conferred by s. 58(a), there is a meshing both of jurisdiction and power, giving it the form and authority of a s. 96 Court. The fact that by s. 59 of the Transport Act, the tribunal “may confirm, vary or quash any decision submitted to it and render the decision which, in its opinion, should have been rendered in the first instance” simply underlines appellate authority of a kind which is normally given to appellate courts that meet the tests of s. 96.
It is pertinent to refer again to what Rand J. said in the Dupont case, supra. Since the power in s. 30 of the Transport Act, in respect of which an appeal is given by s. 58(b) is not of a type belonging to a s. 96 Court, appeal jurisdiction in respect thereof may be vested in an administrative tribunal, whatever its character and institutional arrangement. With respect to s. 58(a), however, which concerns an authority or function analogous to that exercisable by a s. 96 Court, the validity of the bestowal of such authority must depend on whether the institutional arrangements under which it is exercised mark it off from those under which s. 96 Courts exercise the same kind of appellate power.
[Page 647]
In my opinion, there has been here a substitution of an administrative tribunal of appeal for a s. 96 appellate Court. The effect of ss. 58(a), 24 and 72 is to constitute the Transport Tribunal as the final court of appeal of Quebec in matters within s. 58(a), and to oust the superintending and reforming authority of the Superior Court over decisions of the Commission as well as over decisions of the Transport Tribunal. The Province has thus entered territory forbidden to it by s. 96 of the British North America Act, and s. 58(a) is consequently ultra vires: see Séminaire de Chicoutimi v. City of Chicoutimi.
I point out that this has significance for the appellate jurisdiction of this Court under s. 41 of the Supreme Court Act, R.S.C. 1970, c. S-19, as enacted by 1974-75 (Can.), c. 18. s. 5. I do not have to decide here whether the highest court of final resort in the Province in which judgment may be had in the particular case sought to be appealed may be a non-s. 96 provincial tribunal. It would be at least unusual to find this to be the case.
For the foregoing reasons, differing in some measure from those given by the Quebec Court of Appeal, I would dismiss the appeal, with costs in this Court payable by the Attorney General of Quebec to the respondent Farrah in accordance with the terms on which leave to appeal was granted. I would make no other order as to costs.
The judgment of Martland, Ritchie, Beetz and Pratte JJ. in which Pigeon J. concurred was delivered by
PRATTE J.—This is an appeal from a judgment of the Court of Appeal of the Province of Quebec affirming the judgment of the Superior Court (Côté, J.) which held that s. 58(a) of the Transport Act, under which the Transport Tribunal was granted exclusive and final appellate jurisdiction, on any question of law, from any decision of the Quebec Transport Commission which terminates a matter, was ultra vires the Legislature of the Province of Quebec.
[Page 648]
The Transport Act (L.Q. 1972, c. 55) establishes the framework for the regulation of public transportation in Quebec. Under s. 31, no one may provide transportation for remuneration unless he holds the required permit. There is created under s. 11 of the Act a “body” known as the Quebec Transport Commission (the “Commission”) which is responsible for administering the regulations enacted by the Lieutenant-Governor in Council in matters of public transport. The Commission can be categorized as an administrative tribunal and its jurisdiction, which is set out in ss. 28 and 29, includes the issuance of transport permits and fixation of rates and tariffs. The Commission is further empowered under s. 30 to “order the director of the Motor Vehicle Bureau to withdraw the registration markers and registration certificate of any vehicle it designates” when it is “informed that a carrier is endangering public health and safety”.
The decisions of the Commission are protected from interference by the courts by virtue of a privative clause (s. 24) which reads as follows:
24. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the Commission or its members acting in their official capacity.
Two judges of the Court of Appeal may, upon motion, annul summarily any writ, order or injunction issued or granted contrary to the preceding paragraph.
There is also created under the Act (s. 52) a Transport Tribunal “consisting of three judges of the Provincial Court appointed by the Lieutenant-Governor in Council”. The role of this Transport Tribunal is mainly of an appellate nature. Its jurisdiction is spelled out in ss. 56 and 58 which read as follows:
56. An appeal shall lie to such Tribunal from any decision of the director of the Motor Vehicle Bureau suspending, cancelling or refusing a permit or registration certificate, excepting cases in which he is called upon by law to do so.
58. The Transport Tribunal shall also have jurisdiction, to the exclusion of any other court, to hear and dispose of:
[Page 649]
(a) in appeal, on any question of law, any decision of the Commission which terminates a matter;
(b) in appeal, decisions of the Commission under section 30;
(c) any matter, by evocation, when the Commission has omitted or neglected to render its decision within six months following the making of the application.
There is no appeal from the decisions of the Commission except with leave of the Transport Tribunal (s. 66); when sitting in appeal the Trans-port Tribunal “may confirm, vary or quash any decision submitted to it and render the decision which, in its opinion, should have been rendered in first instance” (s. 59). Any appeal to the Transport Tribunal is heard “on the record established in first instance before the Commission or. before the director of the Motor Vehicle Bureau, as the case may be” (s. 69). The decisions of the Transport Tribunal are also protected by a privative clause reading as follows:
72. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction shall be granted against the Transport Tribunal or the members of such Tribunal acting in their official capacity.
Two judges of the Court of Appeal may, upon motion, annul summarily any writ, order or injunction issued or granted contrary to the preceding paragraph.
There is no attack on the constitutionality of the Commission and, in so far as the Transport Tribunal is concerned, the attack is limited to s. 58(a).
It is contended that this provision is ultra vires because the jurisdiction conferred to the Transport Tribunal thereunder would be similar or analogous to the jurisdiction the courts covered by the enumeration contained in s. 96 of the B.N.A. Act.
Ever since its creation in 1849 the Superior Court has been the court of original general jurisdiction in Quebec and has exercised over tribunals of inferior jurisdiction a supervisory power similar to that enjoyed at common law in England by the Court of King’s Bench. In Three Rivers Boatman
[Page 650]
Ltd. v. Canada Labour Relations Board, Chief Justice Fauteux speaking for the Court said, at p. 615:
[TRANSLATION] At its creation in 1849, the Superior Court acquired in its entirety the original civil jurisdiction, in particular the supervisory jurisdiction, that had until that time been exercised by the Court of King’s Bench: cf 12 Victoria, c. 38, s. VII. At the same time it was provided that prerogative writs pertaining to the exercise of this supervisory jurisdiction would thenceforth emanate from the Superior Court: cf 12 Victoria, c. 41, s. XVI. The Superior Court was thus invested with the supervisory power, based on the common law, that was exercised in England by the Court of King’s Bench on which our Court of King’s Bench was modelled. This law of judicial control over courts, legal entities or corporations exercising judicial or quasi-judicial powers comes to us from the English public law introduced into Quebec at the time of and as a result of the cession. This supervisory jurisdiction, which in England was held by the Court of B.R. (Banco Regis), is referred to in Groenvelt v. Burwell, (1699), 1 Ld. Raym. 454, 3 Salk. 354, 91 E.R. 1202, which involved an appeal by a doctor from a decision of the Censors of the College of Physicians of London sentencing him to a fine and imprisonment. It was objected that the doctor had no remedy, since the statute contained no provision for a writ of error or of certiorari. Holt C.J. held:
That a certiorari lies, for no court can be intended exempt from the superintendency of the king in this court of B.R. (Banco Regis). It is a consequence of every inferior jurisdiction of record that their proceedings be removable into this court, to inspect the record and see whether they keep themselves within the limits of their jurisdiction…
[TRANSLATION] Applications of this law regarding judicial control are found in Quebec prior to 1849 in Hamilton v. Fraser, (1811), Stu. K.B. 21, in which the Court of King’s Bench, in a decision delivered in 1811, allowed an application for prohibition against the Vice-Admiralty Court, and in King v. Gingras, (1833), Stu. K.B. 560, in which the Provincial Court of Appeal, in a decision delivered in 1833, granted an application for certiorari against the commissioners for erecting churches.
A few years later, Chief Justice Fauteux expressed the same views in Séminaire de Chicoutimi v. City of Chicoutimi, and he said, at p. 687:
[Page 651]
Indeed, it is known that on the eve of Confederation the Superior Court still exercised—as it had done since its creation in 1849—(a) the general jurisdiction which was conferred by s. 6 of the Act of 1849, and extended by s. 2 of c. 78, C.S.L.C. 1860, to hear and determine in the first instance all suits or actions which were not exclusively matters for the Circuit or Admiralty Courts, and (b) the special jurisdiction conferred on it by s. 7 of the Act of 1849, and extended by s. 4 of c. 78, C.S.L.C. 1860, to exercise a superintending and reforming power and control over courts of inferior jurisdiction and, in particular, over bodies politic and corporate within Lower Canada, including of course municipal corporations. This general jurisdiction, which makes the Superior Court the court of original general jurisdiction, is recognized in art. 28 of the 1867 Code of Civil Procedure, and while no specific provision is to be found in that Code relating to this special superintending and reforming power and control by the Superior Court, it can be seen that this power was extended before and after 1867, as appears in s. 2329 of the 1888 Revised Statutes, the relevant provisions of which were substantially reiterated in Art. 50 of the 1897 Code and in art. 33 of the present Code.
This supervisory power of the superior courts over inferior tribunals was not exercised by means of an appellate procedure but rather through writs of prerogative like mandamus, prohibition and certiorari. The action in nullity or declaratory action was also recognized both in England and here as a proper procedure for the exercise of the control power (Anisminic Ltd. v. Foreign Compensation Commission, at p. 196; L’Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec, at p. 167).
At the time of Confederation the control by superior courts over inferior tribunals was effected mostly through the writ of certiorari.
In England and in the common law Provinces, the grounds for certiorari fell into two broad categories—(i) want or excess of jurisdiction; and (ii) failure on the part of the tribunal to observe the law in the exercise of its jurisdiction when such failure was apparent on the face of the record.
[Page 652]
Although the “illegalities” of the second category (generally referred to as “error of law on the face of the record”) were within the jurisdiction of inferior tribunals, the courts nevertheless interfered in certiorari proceedings with the erroneous determination of such tribunals.
In Rex v. Northumberland Compensation Appeal Tribunal, Singleton L.J. spoke thus, at p. 341:
Error on the face of the proceedings has always been recognized as one of the grounds for the issue of an order of certiorari.
Lord Denning reached the same conclusion and added, at p. 346,
…the Court of King’s Bench has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of a power to quash any determination by the tribunal which, on the face of it, offends against the law. The King’s Bench does not substitute its own views for those of the tribunal, as a Court of Appeal would do. It leaves it to the tribunal to hear the case again, and in a proper case may command it to do so. When the King’s Bench exercises its control over tribunals in this way, it is not usurping a jurisdiction which does not belong to it. It is only exercising a jurisdiction which it has always had.
and Morris L.J. said, at p. 357:
It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown. The control is exercised by removing an order or decision, and then by quashing it.
That such was also the law in Canada is beyond question. In Rex v. Nat Bell Liquors Ltd., Lord Sumner pointed out the two areas where the con-
[Page 653]
trol (as opposed to review) could be exercised when he said, at p. 156:
That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.
and later, at p. 161, he added:
It follows that there is not one law of certiorari before 1848 and another after it, nor one law of certiorari for England and another for Canada.
In Quebec, the situation was not substantially different. The supervisory power of the Superior Court extended beyond questions of jurisdiction to include illegalities committed by inferior tribunals in the exercise of and within their jurisdiction. Be it sufficient to refer to art. 1221 of the first Code of Civil Procedure, in force at the time of Confederation, which dealt with certiorari as follows:
1221. The remedy lies, nevertheless, only in the following cases:
1. When there is want or excess of jurisdiction;
2. When the regulations upon which a complaint is brought or the judgment rendered are null or of no effect;
3. When the proceedings contain gross irregularities and there is reason to believe that justice has not been or will not be done.
Article 1293 of the second Code of Civil Procedure in force from 1897 to 1965 was essentially to the same effect; article 846 of the present Code which combines prohibition and certiorari into the single remedy of evocation is even broader; it reads as follows:
846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases:
1. when there is want or excess of jurisdiction;
2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect;
[Page 654]
3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done;
4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice.
However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.
It is not necessary for the purposes of this case to determine with any degree of precision whether at the time of Confederation the grounds for certiorari were identical in Quebec and in England and the common law Provinces. It is sufficient to acknowledge that throughout, certiorari was not restricted to matters of jurisdiction but was also available to correct certain types of illegalities that did not go to jurisdiction but were committed by inferior tribunals within their jurisdiction. Further, the language of paras. 2 and 3 of art. 1221 of the first Code of Civil Procedure was broad enough to include within its meaning at least some of the “illegalities” that would, under the common law, be considered as “error of law on the face of the record”.
This power of the Superior Court to correct certain types of illegalities committed by inferior tribunals in the exercise of their jurisdiction was an integral part of the Court’s supervisory authority as it existed in 1867; it is therefore clear that such control power cannot be validly transferred by the Legislature from the Superior Court to a court that is not comprised within the enumeration contained in s. 96 of the B.N.A. Act. In Séminaire de Chicoutimi v. City of Chicoutimi, Chief Justice Fauteux said, at p. 686: “this provision in s. 96 implicitly denies the provinces the power of bestowing upon those courts which are presided over by judges they appoint the jurisdiction of the courts described in this section”.
I have already mentioned that the decisions of both the Commission and the Transport Tribunal are protected by privative clauses (ss. 24 and 72).
Privative clauses of the type found here have often been considered by the courts, both here and in England, and the decided cases are to the effect
[Page 655]
that while they are ineffective to oust the supervisory power of superior courts in cases of want or excess of jurisdiction of inferior tribunals, they are nevertheless effective to preclude interference by the courts in cases of “illegalities” committed by such tribunals in the exercise of their jurisdiction and for which, barring a privative clause, certiorari would otherwise lie. The law in this regard which is the same in Quebec and in the common law Provinces has been clearly and succinctly stated by my brother Martland in Woodward Estate v. Minister of Finance, at p. 129:
The writ of certiorari has been the means by which a superior court may control the conduct of an inferior tribunal in two instances: (1) where the tribunal has exceeded its jurisdiction; and (2) where there has been an error of law on the face of the record. The decided cases have held that a privative provision is effective to exclude a review in the latter case.
See also Farrell v. Workmen’s Compensation Board; Metropolitan Life Insurance Company v. International Union of Operating Engineers; Jarvis v. Associated Medical Services Inc.; Komo Construction Inc. v. Labour Relations Board of Quebec; White Sister Uniform Inc. v. Le Tribunal du travail.
A provincial Legislature is therefore competent to reduce the scope of the supervisory power of a superior court by precluding the review by that court of the decisions of an inferior tribunal which while taken within jurisdiction are however tainted with “illegality” (i.e. error of law on the face of the record) and might otherwise be quashed on certiorari. This is indeed what the Quebec Legislature has done when it enacted the privative clause contained in ss. 24 and 72 of the Transport Act. But, it has done more: by s. 58(a) it has also bestowed on the Transport Tribunal the jurisdiction to rule on questions of law in appeal from the decisions of the Commission. This jurisdiction of the Transport Tribunal clearly includes the power
[Page 656]
to review and correct on appeal such errors of law as may be committed by the Commission within its jurisdiction and which in the absence of both the privative clauses and the right of appeal to the Transport Tribunal could have been corrected by the Superior Court on evocation (formerly certiorari). The net combined effect of s. 58(a) and of the privative clauses (ss. 24 and 72 of the Transport Act) is therefore to transfer to the Transport Tribunal part of the inherent supervisory authority that was vested in the Superior Court at the time of Confederation.
For these reasons and without expressing any opinion on the other points raised in this appeal or dealt with in the courts below, I come to the conclusion that s. 58(a) of the Transport Act is ultra vires; I would therefore dismiss the appeal; the Attorney General of Quebec should pay the costs of respondent Farrah in this Court in accordance with the terms on which leave to appeal was granted; I would make no other order for costs.
Ritchie and Beetz JJ. concurred with reasons delivered by
PIGEON J.—I am in agreement with Pratte J.’s reasons and conclusions. However, I wish to make the following further observations.
Prior to 1972, the decisions of the boards which the Commission replaced were subject, not to the superintending and reforming power of the Superior Court, but to a right of appeal to the Court of Appeal on questions “of jurisdiction or law”. From a constitutional point of view, the transfer of this jurisdiction to the Court of Appeal, whose judges are appointed by the federal government under s. 96 of the B.N.A. Act, presented no problem: The Court of Appeal comes together with the Superior Court of Quebec within the meaning of s. 96. From a constitutional point of view, it is undoubtedly a “superior court”. However, on the contrary, the provincial legislation now in question confers jurisdiction to a tribunal composed of judges appointed by the province.
It appears to me that the jurisdiction which the statute thus seeks to transfer is precisely the same
[Page 657]
as that which was previously exercised by the Quebec Court of Appeal. Section 58(a) of the Transport Act provides that the Transport Tribunal shall have “jurisdiction to the exclusion of any other court, …in appeal, on any question of law”. This expression “question of law” itself indisputably includes questions of jurisdiction. There can be no doubt that the right of appeal granted by s. 618(1)(a) of the Criminal Code “on any question of law on which a judge of the court of appeal dissents” extends to questions of jurisdiction as well as to any other questions of law. There is no need to cite further examples, since it is clear from the words themselves that a provision conferring appeal jurisdiction “on any question of law” takes in questions of jurisdiction.
I see no reason to depart from the literal meaning of this legislation, which is perfectly clear. It is pointless to say that if the previous legislation made special mention of questions of jurisdiction, this indicates that the Legislature did not regard them as included in the expression “question of law”. This argument might have some weight if the new legislation merely modified the former provision by taking out the word “jurisdiction”. It could then be presumed that the Legislature had not simply been improving the style by removing superfluous words. But the Act in question is not an amendment of the previous legislation but a new statute replacing all previous legislation on the subject. In my view, the meaning of the expressions used can no more be limited by comparison with the previous legislation than the meaning of any enactment can be limited by comparison with the wording of other legislation (see General Motors v. Brunet).
I am not forgetting that there is a considerable body of opinion that gives a restrictive interpretation to what are called private clauses, a fairly common type of provision used to exclude any legal remedy against certain administrative bodies. There are two such clauses in the Transport Act of 1972, namely s. 24 and s. 72. If only those privative clauses were to be considered it would no
[Page 658]
doubt have to be decided that the right of evocation to the Superior Court was not removed but limited only. The principle that would give a limited interpretation to these “privative clauses” is stated as follows by Lord Wilberforce in Anisminic Ltd. v. Foreign Compensation Commission, at p. 207:
…These clauses in their nature can only relate to decisions given within the field of operation entrusted to the tribunal…
This principle was approved by this Court in Metropolitan Life v. Union of Operating Engineers, which involved a “privative clause” in an Ontario labour relations statute. It has never been regarded as applicable to the interpretation of provisions conferring a right of appeal. On the contrary, in The Provincial Secretary of the Province of Prince Edward Island v. Egan, this Court unanimously rejected the contention that, even when a statute gave a right of appeal, it was necessary to proceed by a writ of certiorari or prohibition in order to raise a question of jurisdiction. Duff C.J. said (at p. 399):
The fact that the County Judge has acted without jurisdiction does not, in my opinion, affect this right of appeal. Once the conclusion is reached that the section intends to give an appeal to the Supreme Court, even where the County Court Judge is exercising a special jurisdiction and not as the County Court, I can see no reason for limiting the scope of the appeal in such a way as to exclude questions of jurisdiction…
In Pringle v. Fraser, we went further and held that a federal statute establishing an exclusive appeal jurisdiction over all questions of fact or law in immigration matters, excluded all provincial courts jurisdiction, even by certiorari. It is true that the legislation (s. 22 of the Immigration Appeal Board Act, 1966-67 (Can.), c. 90) said “all questions of fact or law, including questions of jurisdiction”, but I fail to see what was added by the last phrase. As I have pointed out, these words are not in s. 618(1)(a) of the Criminal Code. They were not in the legislation considered in Egan
[Page 659]
(S.P.E.I. 1940, c. 5, s. 1), nor do they appear in subs. 1 of s. 41 of the Supreme Court Act, although they do occur in subs. 3. The meaning of the main provision, subs. 1, cannot be limited because it does not include this frequent verbiage. I think, therefore, that the provision at issue purports to transfer to the Transport Tribunal all of the jurisdiction that the previous legislation gave to the Court of Appeal. This conclusion is supported by the following section, s. 59, which defines the powers of the tribunal in the same way as those of an ordinary court of appeal are defined:
59. Such Tribunal sitting in appeal may confirm, vary or quash any decision submitted to it and render the decision which, in its opinion, should have been rendered in first instance.
None of the cases cited by counsel for the appellants tends to show that a province may transfer such powers to a tribunal of which it appoints the judges.
In Dupont v. Inglis, the jurisdiction conferred on the commissioner appointed by the province of Ontario was not the same as the jurisdiction that had previously been conferred upon the Court of Appeal of Ontario, which jurisdiction remained intact and is still to be found in s. 163 of the Mining Act (R.S.O. c. 274).
In Jones v. Edmonton Catholic School District, we were concerned with a Court of Revision of municipal assessments. It was held that the function of that Court did not conform to the type of jurisdiction exercised by Superior, District or County Courts. The legislation made it apparent that its function was strictly administrative. In exercising such a function it obviously had to take into account the provisions of the law, since this is a duty common to all, but there was nothing resembling the superintending and reforming power of a superior court. Concerning the earlier decisions that were cited in that case, as in the case at bar, the following comments were made (at pp. 892-893):
[Page 660]
The cases cited must be considered in the light of subsequent decisions in respect of the application of s. 96 of the British North America Act. The most recent case dealing with this matter is Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112, delivered on December 19, 1975. In that case this Court rejected the contention that certain of the statutory powers given to the Nova Scotia Labour Relations Board were invalid because they were similar to powers which could be exercised by a Superior Court, Chief Justice Laskin stated the governing principle in this way (at p. 120):
In my opinion, the judgment of the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., [1949] A.C. 134, and of this Court in Tremblay v. Commission des Relations de Travail du Québec, [1967] S.C.R. 697, have properly emphasized what other cases have reflected in their consideration of the force of s. 96 (as for example, Dupont v. Inglis, [1958] S.C.R. 535, Attorney General for Ontario and Display Services Co. Ltd. v. Victoria Medical Building, [1960] S.C.R. 32, and Brooks v. Pavlick, [1964] S.C.R. 108), namely, that it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation.
It would be tedious to repeat the analysis of each of the cases thus considered in Jones. It is clear from reading them that all the tribunals that were found to be validly constituted were administrative agencies, not courts entrusted exclusively with the duty of deciding questions of law. This conclusion is consistent with the remarks of the Privy Council in Shell Co. of Australia v. Federal Commissioner of Taxation, an Australian case cited in various Canadian cases, including O. Martineau & Sons Ltd. v. The City of Montreal, at p. 122. There also, the issue was whether a tax assessment review board was a judicial or an administrative body. The following appears at p. 294:
[Page 661]
…Instead of assimilating the Board to the Court, as in the old s. 44, the Board in the new s. 44 is assimilated to the Commissioner…
…The first exception is patently immaterial here.
…The second exception, when carefully examined, is really to negative the notion of the Board being judicial. It allows an appeal to the Court from any decision which, in the opinion of the Court, is a question of law…
Appeal dismissed.
Solicitors for the appellants: Goodwin, De Blois and Ass., Quebec; Courtois, Clarkson, Parsons & Tétrault, Montreal; Roger Thibeaudeau, Quebec.
Solicitors for the respondent: Joli-Coeur, Mathieu, Ménard & Masson, Quebec.
Solicitor for the intervenor: William Henkel, Edmonton.
Email this Content