Judicial Review Under Sections 18 and 28 of the
Federal Court Act
Norman M. Fera *
The Federal Court Act 1 was an attempt to reform the process
of judicial review of administrative decisions made by federal
tribunals and commissions. Unfortunately, in its efforts to consoli-
date the common law prerogative remedies into a codified statutory
form, Parliament hag enacted a review procedure which is potentially
quite confusing. Particularly complicated is the relationship between
sections 18 and 28 of the Act, and the effect of these provisions on
the prerogative remedies at common law. This paper is an attempt
to sort out some of the complexities and to analyze the present
procedure of obtaining judicial review under the Federal Court Act.’
Under section 18 of the Federal Court Act,2 it appears that the
Trial Division of the Federal Court has “exclusive original juris-
diction” to supervise within the scope of the extraordinary remedies
any “federal board, commission or other tribunal”3 However, section
28 of the same Act does much to curtail the Trial Division’s super-
visory capacity. Subsection (3) makes it clear that “where the Court
of Appeal has jurisdiction under section [28] …
to review and set
aside a decision or order, the Trial Division has no jurisdiction to
entertain any proceeding in respect of that decision or order”. And
the powers of review given the Appeal Court under section 28(1) are
relatively extensive:
… the Court of Appeal has jurisdiction to hear and determine an appli-
cation to review and set aside a decision or order, other than a decision
B.A. (Laurentian), B.A., M.A. (Carleton).
‘S.C. 1970-71-72, c.1.
2 S.18 reads: “The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of
mandamus or writ of quo warranto, or grant declaratory relief against
any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in
the nature of relief contemplated by paragraph (a), including any pro-
ceeding brought against the Attorney General of Canada, to obtain relief
against a federal board, commission or other tribunal.”
3 That is, “any body or any person having or exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act of the Parliament
of Canada”. See s2(g) of the Federal Court Act.
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or order of an administrative nature not required by law to be made on
a judicial or quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the ground
that the… [agency]
(a) failed to observe a principle of natural justice or otherwise acted
beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the
error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the
material before it0
It should be noted, however, that the right to approach the Court
of Appeal under section 28 applies only to decisions made after the
Federal Court Act came into force,5 that is, June 1, 1971.
In supervising administrative agencies, then, what is the Trial
Division’s power and what is the Appeal Court’s power?
(1) It appears that, with reference to decisions of federal boards
the Trial Division has exclusive
made before June 1, 1971,
jurisdiction to issue the traditional remedies.
(2) With regard to decisions made after that date and, presumably,
also on that date,6 the Appeal Court has sole supervisory juris-
diction if:
(a)
the action of the administrative tribunal can be character-
ized as a “decision or order”;
(b)
the decision or order is not “a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis”; 7
(c) the tribunal violates one of the grounds listed in section
28(1).
It would appear, therefore, that certiorari as it relates to decisions
made on or after June 1, 1971, is definitely barred from the Trial
Division’s jurisdiction, as there are no grounds for certiorari which
are not covered in section 28(1). Since certiorari has normally not
issued against a decision or order which is purely administrative in
4 S.28(1) of the Federal Court Act.
5 S.61(1) says: “Where the Act creates … a right to apply to the Court of
Appeal under section 28 … such a right applies … in respect of a judgment …
made after this Act comes into force… “.
6 The Federal Court Act itself says nothing about decisions made on the day
the Act comes into force.
7 That is to say, the Appeal Court may not review administrative decisions
(as opposed to judicial ones) which are not required by law to be made on a
judicial or quasi-judicial basis.
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SECTIONS 18 AND 28 OF THE FEDERAL COURT ACT
257
nature, there appears to be no restriction in section 28 which has
not also been recognized under the “common law” remedies.
Prohibition, however, does not appear to be totally removed
from the hands of the Trial Court. That remedy generally involves
a decision which has not yet been made. Hence there is no “decision
or order” to give the Court of Appeal jurisdiction.
Declaratory relief can be used to declare an existing state of
affairs. But where such a declaration amounts to a statement that
the “decision” of a federal tribunal is invalid, that jurisdiction now
appears to be vested in the Court of Appeal under section 28. At
common law, the two basic grounds of invalidity of administrative
decisions are (1) jurisdictional defect and (2) error of law on the
face of the record.8 Certainly these grounds are covered in section 28.
It might even be argued that mandamus is no longer available
in the Trial Court: If failure to perform a public duty or exercise
a statutory discretion were considered to be a “decision or order”
constituting a jurisdictional defect, then the right to compel per-
formance would rest with the Appeal Court under section 28 and
not the Trial Division.
Fortunately it is not necessary to rely on speculation to determine
the effect of sections 18 and 28. A number of cases heard by the
Federal Court help clarify the rather complex statutory arrangement
noted above. First we shall look at the status of the most important
prerogative writ at common law, certiorari, and how it has been
affected by the Federal Court Act. We shall then look at the other
writs and recourses to assess the present state of federal judicial
review.
Certiorari
The Proper Forum
One of the important questions arising early in the life of the
new Court was that of deciding the correct forum. In National
Indian Brotherhood et al. and Pierre Juneau et al. [No. 1],. applic-
ation was made to the Trial Division for writs of mandamus and
certiorari. The applicants were challenging a decision of the Execu-
tive Committee of the C.R.T.C., dated May 28, 1971, not to inquire
into the complaints of the Indian Brotherhood and three other
8Declarations may be available for all errors of law: I. Zamir, The
Declaratory Judgment (1962), 157-166. See, however, Punton v. Ministry of
Pensions and National Insurance (No. 2) [1964] 1 W.L.R. 226.
9 [1971] F.C. 66.
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associations against the telecast of an allegedly slanderous film about
Indians. Noting that the Brotherhood had also proceeded under
section 28, Walsh J. refused to consider the merits of the application
until the Appeal Court had made a decision regarding its own juris-
diction in the matter.
Meanwhile, in National Indian Brotherhood [No. 2],0 the Appeal
Court held that it had no jurisdiction to review and set aside a
decision or order made on May 28, 1971. It cited section 61(1)” as
authority for its conclusion.
In the Medi-Data case,’12 Walsh J., noting the allegation that the
Postmaster General had failed to give notice of a prohibitory order 3
within a prescribed period, made it clear that the plaintiff should
proceed by way of certiorari. But he added:
Since this [Appeal] Court does not have jurisdiction over such proceedings
with respect to an order made prior to June 1, 1971, I express no views on
whether such proceedings would have succeeded… .14
It would appear, therefore, that certiorari or, at least, certiorari-
like jurisdiction as it reiates to certain types of decisions made
before June 1, 1971,15 is not to be found in the Court of Appeal; with
reference to decisions made after that date, the Appeal Court does
have such jurisdiction. Does this mean, however, that when the
Appeal Court has such power under section 28, the Trial Division has
no jurisdiction to issue certiorari? A positive response seems indi-
cated if one applies the provisions of 28(3)1″ of the Federal Court
Act. Such a response is also suggested by some Court judgments
which have helped to clarify the issue.
In M.N.R. and the Queen v. Creative Shoes Ltd.,17 the main
question raised was whether certiorari and prohibition proceedings
were available to remove into the Trial Division the record relating
to certain prescriptions made on May 31, 1971, by the Minister of
National Revenue. Mr Justice Thurlow, delivering the judgment of
10 [1971] F.C. 73.
11 Noted supra, f.n.4.
12Medi-Data Inc. v. A-G. of Canada [1972] F.C. 469.
13 The order made under s.7 of the Post Office Act, R.S.C. 1970, c.P-14,
prohibited mail service to two U.S. firms on the ground that they were com-
mitting offences by transmitting obscene material through the mails.
14 Supra, f.n.12, 497.
15 That is, before the Federal Court Act came into force.
16That section says: “Where the Court of Appeal has jurisdiction… to
review.., a decision or order, the Trial Division has no jurisdiction to
entertain any proceeding in respect of that decision or order”.
17 [1972] F.C. 993.
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SECTIONS 18 AND 28 OF THE FEDERAL COURT ACT
259
the Appeal Court, dealt with that issue and concurred with a Trial
Division decision of Walsh J. that
18
… with respect to decisions or orders of federal [administrative agencies]
made on or after June 1, 1971, section 28(3) of the [Federal Court] Act
applies to oust the jurisdiction of the trial division which otherwise
would arise under section 18 of the Act to grant relief in respect of such
decisions or orders …
It should be emphasized at this point that it is well established
in common law that certiorari lies only to quash something which is
a determination or a decision 19 and that it is available to question
only judicial and quasi-judicial functions and does not issue against
strictly administrative ones.2 We shall see how these principles have
been interpreted by the Federal Court in qualifying its review juris-
diction.
“Decision or Order”
In National Indian Brotherhood [No. 2] 20a Chief Justice Jackett
gave some insight into his thinking about the expression “decision
or order”. He said:
Clearly, those words apply to the decision or order that emanates from a
tribunal in response to an application that has been made to it for an
exercise of its power after it has taken such steps as it decides to take
for the purpose of reaching a conclusion as to what it ought to do in
response to the application.2 ‘
In the same case, the Chief Justice made it clear that he did not think
that interlocutory decisions such as those relating to setting dates,
allowing or dismissing requests for adjournments, or even decisions
concerning the admissibility of evidence were intended to be reviewed
under section 28. He did note, however, that irregular decisions
made during the adjudication process might “well be part of the
picture in an attack made on the ultimate decision of the tribunal
on the ground that there was not a fair hearing”.22
18Ibid., 998. For other cases on point see Gabriel v. The Queen [1972] F.C.
1148 and Armstrong v. State of Wisconsin and U.S.A. [1972] F.C. 1228.
19 See R. v. Statutory Visitors to St. Lawrence’s Hospital [1953] 2 All E.R.
766; R. v. Ontario Labour Relations Board (1966) 57 D.L.R. (2d) 521; The
Queen v. Board of Broadcast Governors (1962) 33 D.L.R. (2d) 449.
20 See Galloway Lumber Co. Ltd. v. British Columbia Labour Relations
Board et al. (1964) 44 D.L.R. (2d) 575; Re Low and Minister of National Revenue
[1966] 2 O.R. 455 (Prohibition). But see the British decision In re H.K. (an
infant) [1967] 2 Q.B. 617.
20a Supra, f.n.10.
21 Ibid., 78.
22 Ibid.
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In Puerto Rico v. Hernandez,1 The Appeal Court was unanimous
in holding that the refusal of an extradition judge to issue a com-
mittal warrant 4 could not be considered a “decision or order”
within the meaning of the Federal Court Act. In rendering that
decision, the Appeal Court followed the judgment of the Supreme
Court of Canada in U.S.A. v. Link and Green.25
In Armstrong v. State of Wisconsin and U.S.A.,20 the question arose
as to whether a decision to actually issue a committal warrant was
reviewable under the terms of the Federal Court Act. In the Appeal
Court, the majority held that such an action was, indeed, a “decision
or order” and hence subject to section 28 review. Sweet D.J., however,
did not agree with that part of the majority judgment. It was his
view that if a refusal to commit a fugitive was not a “decision or
order” within the meaning of the Federal or Supreme Court Acts,
then the issuance of a warrant of committal was, for the same
reasons, not a “decision or order”.
Rulings made by a board as to its own jurisdiction are not
reviewable as “decisions” under section 28. In A-G. of Canada v.
Cylien,2 7 the Appeal Court held that the “conclusion” of the Immigra-
tion Appeal Board as to the nature of its statutory duty under section
11(3) of the Immigration Appeal Board Act 28 was not a “decision”
made by it in the exercise of its power to make decisions. Similarly,
in B.C. Packers Ltd. v. Canada Labour Relations Board,0 the Appeal
Court held that the position taken by the Board as to its jurisdiction
was not a “decision” within the meaning of section 28.
It is significant to note, however, that in In re McKendry,30 the
Appeal Court accepted a decision rendered during the hearing of a
reference to adjudication as a “decision or order” that might be
reviewed under section 28. In that case, an adjudicator, in hearing
a grievance under section 90(1) of the Public Service Staff Relations
Act, 31 was asked early in the proceedings to rule on whether certain
23 [1972] F.C. 1076.
24 Such action is authorized by s.18(1) of the Extradition Act, R.S.C. 1970,
c.E-21.
23 [1955] S.C.R. 183. In that case the Supreme Court was unanimous in
holding that the refusal of an extradition judge was not a decision or order
which could be appealed under the terms of the Supreme Court Act, R.S.C.
1952, c.259.
26 Supra, f.n.18.
2T [1973] F.C. 1166.
28 S.C. 1973-74, c.27.
29 [1973] F.C. 1194.
30 [1973] F.C. 126.
31 R.S.C. 1970, c.P-35.
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SECTIONS 18 AND 28 OF THE FEDERAL COURT ACT
261
evidence could be properly adduced by the employer.32 The adju-
dicator’s ruling in favour of the employer was challenged in section
28 proceedings. But the Appeal Court held the ruling to be correct
and the application was dismissed. There was no discussion either
by the respondent or the judges of the Court as to the Court’s juris-
diction to review the “decision” in question under the terms of
section 28.
Strictly Administrative Decisions
It will be remembered that under section 28(1), the Court of
Appeal has no jurisdiction to review “a decision or order of an
administrative nature not required by law to be made on a judicial
or quasi-judicial basis”. In National Indian Brotherhood [No. 2], 3 3
discussed above, the Chief Justice took considerable time to speculate
about the type of decision or order that might not be reviewed
because of the exception. It was then his view that a typical example
of such a decision would be one made by a Cabinet Minister in ful-
filling his duty to manage a government department. Chief Justice
Jackett also queried whether a decision made under section 19
of the Broadcasting Act4 would be strictly administrative in na-
ture 5 Under that section, the C.R.T.C. is empowered to hold a
public hearing “if the Executive Committee is satisfied that it would
be in the public interest to hold [one]”. Consequently, there was
some doubt in the Judge’s mind as to whether a Committee decision
either to hold or not to hold a hearing could be reviewed by the
Court of Appeal. Such a decision appeared to him as “one of absolute
unconditional discretion for the Executive Committee” 6 But clearly
these dicta are obiter.
In the Gateway case,31
the Chief Justice again took to spe-
culation s This time he wondered whether a decision taken by the
Canadian Transport Commission under section 170 or 181 of the
32That is, whether to admit evidence of after discovered facts.
a3 Supra, f.n.10.
34 S.C. 1967-68, c.25.
35 As used here, “strictly administrative” or “purely administrative” in nature
is an administrative decision not required by law to be made on a judicial
or quasi-judicial basis.
36 Supra, f.n.10, 79.
37 Gateway Packers Ltd. v. Burlington North (Man.) Ltd. [1971] F.C. 359.
3 8 In these early cases Mr Justice Jackett was inclined to raise “questions…
so that counsel [would] be prepared to assist the Court on them when they
[arose] in a particular matter”. See National Indian Brotherhood [No. 2],
supra, f.n.10, 79.
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Railway Act 39 would be a purely administrative act. Under that
latter section, “any deviation, change or alteration” in a railway
must “be submitted for the approval of the Board, and may be
sanctioned by the Board”. The Chief Justice had little doubt that an
authority to exercise a supervisory and restraining power over the
way in which a railway carries out its statutory power is of an
administrative nature.4 He would, nevertheless, be inclined to
treat such an administrative act as one which had to be made on a
judicial or quasi-judicial basis even though there was no statutory
direction to that effect. Indeed, he would even be prepared to grant
a right to be heard to “intervenants” on the question of whether or
not such transportation services should be terminated.41
Moving away from speculation, we find that the Federal Court
has so far held the two following administrative decisions to be ones
which must be exercised on a judicial or quasi-judicial basis: the
issuance or cancellation of a trustee licence by the Minister of
Consumer and Corporate Affairs under the Bankruptcy Act;42 and
the refusal by the Secretary of State to grant a certificate of citizen-
ship under the Canada Citizenship Act.43 The following administra-
tive decisions, however, have been held to be ones which do not
have to be exercised on a judicial or quasi-judicial basis: prescrip-
tions made by the Minister of National Revenue under the Customs
or Anti-dumping Acts as to the value of imported goods where there
is not sufficient information to determine the normal or export
price; 44 and decisions by the National Parole Board revoking
paroles 4 5
Summary
Assuming that the Federal Court is not inclined to issue certiorari
except along traditional lines,46 it is safe to suggest that certiorari
39 R.S.C. 1952, c234.
4o Supra, f.n.37, 372.
41 In this case the intervenant was not in any strict sense either seeking an
order or in jeopardy of having an order made against him, but was rather a
businessman who depended on the transportation services which might be
changed on application by a railway to the Canadian Transport Commission.
42 Blais v. Basford [1972] F.C. 151.
43 Lazarov v. Secretary of State [1973] F.C. 927.
44 M.N.R. v. Creative Shoes Ltd., supra, f.n.17.
45 Howarth v. National Parole Board [1973] F.C. 1018.
46 It must be realized that the provisions in the Federal Court Act do not
compel the Trial Court to issue the writs along traditional lines or as issued
in some particular jurisdiction. The.Trial Division could conceivably (although
not likely) blaze a trial of its own as to the issuance of the extraordinary
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SECTIONS 18 AND 28 OF THE FEDERAL COURT ACT
263
per se no longer exists with respect to federal administrative agencies.
The situation is this:
(1) As it relates to federal agencies, certiorari no longer seems
available in the provincial superior courts.4 7
(2) With reference to federal administrative decisions made before
June 1, 1971, certiorari is not likely to issue at this late date
from the Trial Court.
(3) As for decisions made on or after June 1, 1971, the Trial Division
is denied the certiorari jurisdiction it appears to have under
section 18 of the Federal Court Act by subsection 28(3) of the
same Act, which makes it clear that where the Court of Appeal
has jurisdiction to review an administrative decision,48 the Trial
Division has no jurisdiction to entertain any proceeding in
respect of the decision or order.
(4) Certiorari-like jurisdiction is continued in the Federal Court of
Appeal through the application “to review and set aside”. Sec-
tion 28(1) of the Federal Court Act codifies the grounds on
which judicial review may be sought in that forum: breach of
the rules of natural justice; jurisdictional error; error of law;
and factual error.
The loss of certiorari proceedings in the Trial Division is un-
fortunate. Even if the draftsmen intended to provide a similar,
though somewhat broader, proceeding in the Appeal Court, it may
remedies. Of course, it should be remembered that an appeal as of right lies
from the judgment of the Trial Division to the Court of Appeal and from
there to the Supreme Court of Canada, with leave of either the Appeal Court
or the Supreme Court.
47 See, for example, Re Milbury and the Queen (1972) 25 D.L.R. (3d) 499.
The Appeal Division of the New Brunswick Supreme Court held that the
jurisdiction of the provincial courts to issue certiorari against federal agencies
has been excluded by the Federal Court Act.
Prior to the coming into force of that Act, federal boards were under the
supervision of the provincial superior courts. S.18 of the Act appears to
transfer that supervisory authority exclusively to the Trial Division. But does
Parliament have the constitutional authority to exclude the review jurisdiction
of the provincial courts as it relates to federal boards? The consensus at this
time seems to be that Parliament is within its jurisdiction to do so with
perhaps one exception: since the Supreme Court of British Columbia was
created by imperial statute, some difficulty may arise in interfering in any
way with its imperially derived power to issue the prerogative writs. See
ss.101 and 129 of the British North America Act, 1867.
48 Here “administrative decision” refers to a decision which must be made
along judicial or quasi-judicial lines.
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have been wise to leave certiorari in the Trial Court as well.4 9 It is
certainly more convenient in terms of saving time and money for the
litigant to obtain a hearing in the Trial Court than in the Appeal
Division. Further, offering a choice of forums could reduce the case
load of the Appeal Division.
Prohibition
Unfortunately, there have been very few judicial pronouncements
with reference to the writ of prohibition. It is therefore difficult to
make a reasonably accurate assessment of its status in light of the
provisions of section 28(3). Prohibition, of course, does not
significantly differ from certiorari except in terms of timing. 0 In
very general terms, prohibition seeks to prevent a tribunal from
acting, while certiorari quashes something already done.
Some basic points may be extracted from a few cases in the Trial
Division which have dealt with the writ of prohibition:
(1) The Court will consider an application for prohibition against
decisions “a made well after the Federal Court Act came into
force,51 unlike the situation as regards certiorari.
(2) The Trial Court will consider an application for prohibition
where there is an attempt to prohibit some hearing from pro-
ceeding 2 or continuing. 53
(3) Where the decision of a tribunal is the subject of section 28
proceedings, the Trial Division will probably not consider an
application to review that same decision until the Appeal Court
determines whether or not it has jurisdiction. 4
49 The idea of having the old common law remedies exist alongside statutory
review proceedings has been seen by others as well to have some merit,
For example, the Ontario Judicial Review Procedure Act, S.O. 1971, c.48, as
originaily drafted provided for such a scheme. And the New Zealand Public
and Administrative Law Reform Committee made the same recommendation.
50 In Quebec, the two remedies have been combined into the “writ of evo-
cation” (s.846ff. C.C.P.).
55a As it relates to prohibition, “decision” is often not the final decision
rendered by a tribunal after the completion of a hearing.
51 In Wardair v. Canadian Transport Commission [1973] F.C. 597, the de-
cision challenged was made in May of 1973. In A-G. of Can. v. Morrow J. [1973]
F.C. 889, the Trial Court was asked to prohibit a hearing in progress in June,
1973.
52 See the Wardair case, ibid., and Bell Canada v. Earl Palmer [1973] F.C.
982.
53 See A-G. of Can. v. Morrow J., supra, f.n.51.
54 This may be properly inferred from statements of Walsh J. in the Wardair
case, supra, f.n.51, 599-600.
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SECTIONS 18 AND 28 OF THE FEDERAL COURT ACT
265
(4) For a writ of prohibition to lie, there has to be lack of juris-
diction, bias, an error of law or a breach of natural justice in
the finding of the tribunal.5 5 Prohibition cannot be used to stay
the judgment of a tribunal which is under review or appeal in
the Federal Court of Appeal. 6
Mandamus
The question of whether or not the Trial Division has jurisdiction
to issue mandamus to secure the performance of some public duty
has not been finally settled. So far the remedy has been sought to
compel the Minister of Public Works to remove a television cable
from a bridge; 57 to compel the Chief Returning Officer to accept the
nomination papers of a federal candidate; 58 to compel an extradition
judge to hear an application for bail under section 457(1) of the
Criminal Code;59 and to compel the Canadian Transport Commission
to issue certain licences in accordance with its usual practice. 0 In
each of the above cases, the application for mandamus was against
some “refusal to act” taken well after the Federal Court Act came
into force.
It does not appear that the Trial Court considers the refusal of
an administrative agency to perform some public duty to be a
“decision or order” within the meaning of section 28 of the Federal
Court Act. The several cases noted in this section bear this out. If
such a refusal were indeed a “decision or order”,61 the Trial Court
would most likely lose its mandamus jurisdiction to the Court of
Appeal per section 28(3). Eventually, it will surely be argued that
when an agency refuses, for instance, to proceed with a hearing, it
has considered the merits of the request and hence rendered a
“decision”. The validity of such an argument will be, of course,
ultimately decided by the Court of Appeal acting in its appellate
capacity62 or possibly by the Supreme Court of Canada.6 3
55 Per Walsh 1. in the Wardair case, ibid., 602.
56 Ibid., 603.
57 Weatherby v. Minister of Public Works [1972] F.C. 952.
58 Szoboszloi v. Chief Returning Officer [1972] F.C. 1020.
59 Commonwealth of Virginia v. Cohen [1973] F.C. 622.
6 o Kaps Transport Ltd. v. Canadian Transport Commission [1973] F.C. 739.
It might be noted that in each of the cases the application for mandamus
was considered on its merits and then dismissed.
61 It is probably the Federal Court of Appeal that will ultimately make
this determination.
62 See s.27 of the Federal Court Act.
63 It might be noted that an appeal to the Supreme Court from a decision
of the Federal Court of Appeal under s.28 does not lie as of right but only
with leave of either Court. See s.31 of the Federal Court Act.
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Injunction
There is not enough case law so far to fully clarify whether or not
injunctive relief against federal boards is within the domain of the
Trial Division. But it is well to note a general statement of the Court
of Appeal in C.R.T.C. v. Teleprompter Cable Communications Corp.’
The Court was in unanimous agreement with the decision of Pratte J.
in an unreported Federal Court case that the Trial Division
… has jurisdiction to make a declaration of the kind sought, [i.e., that
the operation of the applicant is not a broadcasting undertaking within the
terms of the Broadcasting Act] if in the exercise of its discretion it should
think fit to do so after a hearing on the merits, and also.., the [Trial]
Court has jurisdiction to grant injunctive or prohibitory relief against the
appellant.., in an appropriate situation. 5
In administrative law, an injunction restrains an inferior tribunal
from acting or from carrying into effect some action which it has
already taken but which is beyond its powers. The injunction granted
may be temporary (i.e., until the court can more fully look into the
matter) or it may be permanent. It may be mandatory in the sense
that it requires an administrative agency to exercise its judicial
power, or it may be preventive in that it seeks to prohibit some course
of action. A mandatory injunction,6 then, resembles mandamus. If
the latter remedy remains in the Trial Division, as seems indicated at
this time, it is only logical that the former, for similar reasons, should
remain in the same division as well. A prohibitory injunction, of
course, may be likened to prohibition. Because of that similarity,
it also should and is apt to remain in the same forum, the Trial
Division.
But injunctive relief is sometimes sought after a tribunal has
rendered a final decision to prevent it from carrying that decision
into effect. In such cases, it could be argued, at least where the
tribunal’s decision is quasi-judicial in nature, 7 that the injunctive
-jurisdiction of the Trial Division is removed by section 28(3). Such
an argument, however, could not apply where the decision challenged
was strictly administrative in nature0 8
64 [1972] F.C. 1265.
65 Ibid., 1270 (emphasis added).
66 In public law, mandatory injunctions are rare.
67 That is, required by law to be made on a judicial or quasi-judicial basis.
68 Injunctive relief has been available
to a tribunal exercising strictly
administrative functions. But proceedings under s28 are restricted to de-
cisions which, though administrative in nature, are required by law to be
made on a judicial or quasi-judicial basis.
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SECTIONS 18 AND 28 OF THE FEDERAL COURT ACT
267
Declaration
Some Canadian writers and jurists have suggested that a wide
scope be given to declaratory relief as a supervisory vehicle for
control of federal inferior tribunals. It seems unlikely, however, that
the Appeal Court will allow”” that remedy to grow to such an extent
that it would virtually usurp its own power of review under section
28.70 In other words, it seems unlikely that the Appeal Court would
interpret section 28(3) as denying the Trial Court certiorari, proceed
to clarify its own review power under 28(1), and then give back to
the Trial Court a certiorari-like jurisdiction by permitting a broad
scope for the declaratory judgment.7′ Yet it is true that judicial
reasoning is sometimes difficult to appreciate and it might indeed
happen. But in the few cases available to date there are no in-
dications that the Federal Court is leaning in that direction; only
very basic points have been enunciated so far.
As noted above, 72 the Appeal Court has in general terms affirmed
the Trial Court’s jurisdiction to grant declaratory relief. Moreover,
in Landreville v. the Queen,73 the Trial Division made it quite clear
that it had jurisdiction to make declarations “which, though devoid
of any legal effect, would from a practical point of view, serve some
useful purpose”. 74 In that case, the plaintiff was seeking two de-
clarations: first, that a federal commission operating under certain
Letters Patent dated March 2, 1966 did, among other things, exceed
its jurisdiction; and that the chief and sole commissioner, the
Honourable Ivan C. Rand, did not conduct the inquiry properly.
09 It must be remembered that under s.27 of the Federal Court Act, an
appeal lies to the Appeal Division from, among other things, any final
judgment of the Trial Division.
70 It was suggested before Bill C-192 became law that “the intention of the
draftsmen [was] to abolish substantially the use of the injunction, the pre-
rogative writs and declaratory relief in the field of federal administrative
law”: see G.V.V. Nicholls, Federal Proposals for Review of Tribunal De-
cisions (1970) Chitty’s LJ. 254, 256.
7 1 The declaration has issued for violation of natural justice, bias, bad faith,
and more generally, for lack of jurisdiction: see D.T. Warren, The Declara-
tory Judgment: Reviewing Administrative Action (1966) 44 Can. Bar Rev. 631.
It might be noted, however, that in Hollinger Bus Lines Ltd. v. Ontario Labour
Relations Board [1952] 3 D.L.R. (2d) 162, it was held that to the extent that
certiorari, prohibition or mandamus provided an aggrieved person with a
remedy, a declaration was not available as an alternative. Of course, in the
issuance of common law and equitable remedies, the Federal Court is under
no obligation to follow precedents in any jurisdiction.
72 In a passage from the Teleprompter case, supra, f.n.64.
73 [1973] F.C. 1223.
74 Ibid., 1230.
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[Vol. 21
The questions of law”5 determined in the Landreville case do not
disturb the following analysis:
(1) Where the intention is to have the court declare the “decision”
of a tribunal null and void, the Trial Division has jurisdiction if
such a decision was made before the Federal Court Act came
into force.
(2) Where such a “decision” was made after June 1, 1971, the Trial
Court has no jurisdiction to issue a declaration. This is by virtue
of section 28(3), which prohibits the Trial Division from review-
ing a decision which may be the subject of section 28 pro-
ceedings.
(3) When the “decision” (irrespective of when it was made) is a
purely administrative one, the Trial Division has sole jurisdiction
to declare it null and void. Section 28(1) only permits review
by the Court of Appeal of decisions required by law to be made
on a judicial or quasi-judicial basis.
(4) Where there is no intention to quash a “decision or order” made
by a tribunal, the Trial Division has jurisdiction to make a
declaration on a legal issue.
Habeas Corpus
The final prerogative remedy to be discussed is that classic one,
habeas corpus. Habeas corpus is still available in the provincial
superior courts even in relation to federal administrative agencies,
since it does not appear to have been transferred by any provision in
the Federal Court Act to either the Trial Division or the Appeal
Court. In the Armstrong case, 6 Thurlow J. and Cameron DJ. noted
that by applying to the provincial court for habeas corpus, the
applicant involved could test the validity of the committal for
extradition. And early in 1973, 77 the superior court of Ontario heard
an application for habeas corpus (with certiorari in aid) against a
federal penitentiary warden. Thus, unlike the other writs discussed
above, habeas corpus remains unaffected by the Federal Court Act
as a common law remedy.
75 The Landreville case was a reference to the Trial Court for the determi-
nation before trial of three questions of law.
76 Supra, f.n.18, 1232.
77 Ex parte Marcotte (1973) 10 C.C.C. (2d) 441.
