Legislative Limitations On The Courts’ Power
To Review Administrative Action In Quebec *
Ren6 Dussault **
Introduction
SECTION I – The Power of Limitation
Para. I
–
Its Source: The Doctrine of the Sovereignty of
Parliament
A) Judicial Manifestation of Its Incorporation
in the Canadian Constitution
B) Particular Situation in the Provinces
Para. II
– Constitutionality of the Power
A) Argument based upon Section 96 of the
British North America Act
a) Strict Interpretation of Section 96 of the
British North America Act
b) Broad Interpretation of Section 96 of the
British North America Act
B) Argument based upon the General Tenor of
the Canadian Constitution
SECTION II- The exercise of the Power of Limitation
Para. I
– Different Types of Privative Clauses
A) Nature and Origin of Privative Clauses
a) Development in England
b) Development in Canada and in Quebec
The present work is part of a thesis for which the author has been awarded
the degree of Ph.D. in laws of the University of London, England.
** B.A., L.L.L. (Laval) Ph.D. (London), Member of the Quebec Bar, Legal
adviser to the Quebec Federal-Provincial Affairs Department, Lecturer in Public
Law, Faculty of Law, Laval University.
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B) Indirect Privative Clauses
a) Non-Express Privative Clause: “The King
Can Do No Wrong”
b) Very General Privative Clauses
i) The Henry VIII Clause
ii) Provisions Affording Very Extensive
Discretionary Powers
1. In British and Canadian Law
2. In Quebec Law
C) Direct Privative Clauses
a) In British and Canadian Law
i) Partial Clauses
ii) Total Clauses
b) In Quebec Law
i) General Privative Clauses
ii) Special Privative Clauses
1. Partial Clauses
2. Total Clauses
Para. II
–
Judicial Effect of Privative Clauses
A) Nature of the Problem
a) Meaning of the Phrase “Court of Inferior
Jurisdiction”
b) Proposed Statutory Interpretation
B) Interpretation given by the Courts
a) In England
b) In the Common Law Provinces
c) In Quebec
i) Older Case Law
ii) Modern Case Law
Conclusion
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 25
INTRODUCTION
The important role which the courts of justice play in matters
of public law is often considered as an essential element in the good
functioning of a democratic constitution.’ In Canada, they assure the
protection of the rights and liberties of the citizens and see to the
just and lawful execution of the administrative policies of the Central
Government as well as those of the different provinces. The various
statutory instruments issued by these governments, and the bodies
they set up in order to further their policies, as well as their proper
functioning, are, under Canadian constitutional law, subject to the
control and supervision of a minister responsible to Parliament or
to one of the ten Provincial Legislatures.
Yet, the courts question, and with good reason, whether this
theory of ministerial responsibility adequately safeguards the rights
and liberties of the citizens especially in the case of administrative
decisions where arbitrariness and injustice are not always apparent.
The marked tendency of the courts to consider themselves the main,
if not the sole guardians of individual rights and liberties 2 has led
them to resist vigorously any attempt to deprive them of their
supervisory jurisdiction. But their slowness and adherence to form,
often inconsistent with the modern necessity for prompt and defi-
nitive administrative action, have constantly forced the Executive
branch to seek the right to supervise in a final manner, free from
judicial intervention, the agencies it has established to further its
policies.
In Quebec, as in the other provinces, the Legislature has yielded
more and more to the urgent demands of the Administration for
the enactment of laws to protect the latter against intervention by
the courts. The method usually preferred has been to insert in the
L Lederman, Independence of the Judicary, [1956] Can. Bar Rev., 1139 at 1178;
Bernard Schwartz, Case and Comment, (1950) 28 Can. Bar Rev., 679; L. Lesage,
Le Bref de Prohibition, (1953) R. du B., 305 at 313; Gerald E. Le Dain, The
Supervisory Jurisdiction in Quebec, (1957) Can. Bar Rev., 788 at 818.
2 As Farwell J. pointed out in the case of Dyson v. Att.-Gen. [1911] I.K.B. 410
at 424 “the courts are the only defence of the liberty of the subject against depart-
mental aggression”. See also the remarks of Lemieux J. in the case of Mathieu V.
Wentworth, (1899) 15 C.S. 504 at 507: “J’ajouterai seulement que si le l~gislateur
enlevait ou pouvait enlever aux tribunaux sup6rieurs le droit de surveillance et
de contrle sur les cours inf6rieures, ce serait dans bien des cas consacrer
l’arbitraire et l’injustice, et mettre en p6ril la libert6 des citoyens dont la loi
est toujours jalouse”.
McGILL LAW JOURNAL
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various Acts creating administrative bodies specific clauses sup-
pressive of the common law judicial power of review. Such clauses
are commonly called “privative clauses”. They may be defined as
legislative provisions, forming part of a general or special Act, the
judicial effect of which is to remove the action of certain public
officers or administrative agencies more or less completely from
the common law judicial power of review, by exluding the various
methods by which that power might be exercised.
By means of these privative clauses, which are sometimes direct
and sometimes rather indirect, the Quebec Legislature has tended
more and more to impose a maximum limitation on the courts’ power
to review administrative action. It cannot be disputed that this atti-
tude imperils the very existence of the judicial power of review.
It is therefore necessary to examine, in the first section, this
power of limitation, and in the second section, the use made of it by
the Quebec Legislature.
SECTION I – THE POWER OF LIMITATION
It is most important to determine, in the first place, the exact
source of the power of limitation, i.e. the true judicial foundation
upon which the Legislature bases itself and gains support for the
enactment of clauses suppressive of judicial authority and, in the
second place, the constitutional status of this power in Canada.
Para. I –
Its Source: The Doctrine of the Sovereignty of Parlia-
ment
The authority enjoyed by Parliament to limit the common-law
power of the courts to review administrative action is rooted in the
historical concept of the Sovereignty of Parlament. As professor
Yardley recently pointed out:
The principle of Parliamentary sovereignty ensures that Parliament is able,
should it so desire, to pass an Act rendering the executive completely
immune all forms of judicial control.3
This doctrine of the Sovereignty of Parliament, which acquired
considerable scope and development in England in the seventeenth
century following the Parliament’s victory over the King, was im-
3A Source Book of English Administrative Law, 222. As was also stressed by
E.C.S. Wade in the preface to the tenth edition of Dicey’s work, The Law of the
Constitution, at XXVI:
It is of course possible for the Parliament using its sovereignty to decree
that administration should be at the absolute discretion of the administrator.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 27
planted in Canada in common with many other English doctrines
and constitutional principles. The intention to bestow upon Canada
“a Constitution similar in principle to that of the United Kingdom”
is indeed quite explicit in the very preamble of the British North
America Act.4
By its incorporation in the Canadian Constitution the English
doctrine of the Sovereignty of Parliament has necessarily undergone
some modification due to the federal character of that Constitution.
The modification has been limited to matters of form; the substance
has remained unchanged.5 The only ground the courts can invoke
to invervene in the exercise of absolute sovereignty by the Central
Parliament or by any of the ten Provincial Legislatures is that of
jurisdictional competence. In so far as the Canadian Parliament
legislates in a sphere which is not explicitly reserved to the provinces
by section 92 of the British North America Act, that is, as long as
it acts within the limits of its jurisdiction, it knows no other law
than that of its free will and enjoys an absolute sovereignty. 6 The
same applies to the Provincial Legislatures, when they legislate
within the limits of their jurisdiction. Indeed, as was pointed out
by F.P. Walton:
The Constitutional doctrine of the Sovereignty of Parliament is as applicable
to the provincial Legislatures as the Parliament of the Dominion or even
the Imperial Parliament, provided always that the province was dealing
with a subject included in the field of legislation assigned to it.i
It is in virtue of this sovereignty that the Quebec Legislature, s
within the limits of its own jurisdictional competence, prides itself
4 See M. Olivier, British North America Act and Selected Statutes, 1867-1962.
5 As pointed out by J. T. Thorson in, The Rule of Law in a Changing World,
[1960] U.B.C.L. Rev., 176 at 182:
It was therefore not to be expected that such countries would accept the
doctrine of the Sovereignty of Parliament and confidence in the executive
that we in Canada have inherited from Great Britain.
G As was pointed out by C.-A. Sheppard in an article, Is Parliament still Sover-
eign ?, [1964] C.B.J., 39 at 42:
this theory of absolute Parliamentary supremacy, even tough it originated
in England, is highly relevant to Canada.
7 The Legal System in Quebec, (1913) 33 Can. Law Times, 280 at 296. Voir
aussi Beardmore V. City of Toronto, (1910) 21 O.L.R. 505.
8 Although the term “Legislatures” is used in the British North America Act
to designate the provincial legislative authorities, one could just as well speak
here of the “Quebec Parliament”. In fact, the Quebec Legislature possesses all
the attributes of a Parliament, as do those of the other provinces also. See Louis
Philippe Pigeon, Are the Provincial Legislatures Parliaments ?, [1943] Can. Bar
Rev., 826. See also Beaudoin, Les aspects giniraux du droit public dans Ia, pro-
vince de Qudbec, (1965). See Stephen Scott, Thrice the Brinded Cat Hath Mewed,
[1965] McGill L.J. 356.
McGILL LAW JOURNAL
[Vol. 13
upon legislating as it wishes, even to the point of seeking to with-
draw, by means of appropriate privative clauses, the acts and
decisions of the Administration from the common law judicial power
of review.
A) Judicial Manifestation of Its Incorporation in the Canadian
Constitution
Notwithstanding the inherent limitations of the federal division
of constitutional powers and of the colonial status which, until the
Statute of Westminster, 1931, was the juridical status of Canada,”
the English doctrine of the Sovereignty of Parliament has profundly
affected the Canadian Parliament and the Provincial Legislatures,
with the many political and legal consequences that this implies.
This was due, for the most part, to the influence of the English
jurists who sat on the Judicial Committee of the Privy Council in
London.
It
is difficult not to be impressed by the clarity, vigour and
precision of their many obiter dicta on the question.’ 0 In the well
known case of Hodge v. The Queen,”1 for instance, Lord Fitzgerald
expressed himself in unequivocal terms:
Within these limits of subjects and area (prescribed by sect. 92)
the local
legislature is supreme and has the same authority as the Imperial
Parliament or the Parliament of the Dominion would have under like
circumstances.
A few years later, in Re The Initiative and Referendum Act,1
Viscount Haldane declared:
Within these limits of area and subjects, its local legislature, so long as
the Imperial Parliament did not repeal its own act conferring this status
was
to be supreme and has such powers as the Imperial Parliament
possessed in the plenitude of its own freedom before it handed them over
to the Dominion and the provinces, in accordance with the scheme of dis-
tribution which it enacted in 1867.
9 The power of the Imperial Government to disallow a law passed by the
Canadian Parliament has not in strict theory been abolished by the Statute of
Westminster, 1931. It is however difficult to imagine a situation where it could
be used, for since then, the Queen acts on the advice of her Canadian Ministers
in relation to Canadian affairs. It must be added that even prior to the Statute
of Westminster, this power was scarcely used by the British Government. In
fact only one Canadian law was disallowed. This was in 1873. See Clokie, Canadian
Government and Politics, 32, 115.
10 See Dobil v. The Temporalities Board, [1882] A.C. 136 at 146, 147, per
Lord Watson; Henrietta Miur Edwards v. Att.-Gen. for Canada, [1930] A.C. 125
at 136, per Lord Sankey; Croft v. Dunphy, [1933] A.C. 156 at 163, per Macmillan
L. J.; British Columbia Electric R. Co. V. The King, [1946] 4 D.L.R. 91 at 87,
per Viscount Simon.
11 [1883] A.C. 117 at 132.
12 [1919] A.C. 935 at 942.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 29
Finally, Lord Atkin sanctioned the same principle in Shannon v.
Lower Mainland Dairy Products Board: 13
Within its appointed sphere the Provincial Legislature is as supreme as any
other Parliament.
It appears from all these observations, that the Canadian Parlia-
ment and the Provincial Legislatures do not act under the orders
of the Imperial Parliament and consequently are neither its delegates
nor its representatives. Within the sphere prescribed by sections 91
and 92 of the B.N.A. Act their scope of legislation is as complete and
extensive as that of the Imperial Parliament in London; their
legislative sovereignty is as absolute.14
Many Canadian judges have expressed the same opinion as the
Privy Council on the question. In Florence Mining Co. Ltd. v. Cobalt
Lake Mining Co. Ltd.,’- Riddell J. of the Court of Appeal of Ontario
asserted categorically:
The Legislature within its jurisdiction can do anything that is not naturally
impossible and is restrained by no rule human or divine. If it be that the
the Legislature had the power to take
plantiff acquired any rights,…
them away.16
Many years later, Middleton J. of the same Court of Appeal
re-emphasized this principle:
in matters within
The Legislature
supreme.’ 7
Henderson J., also of the Court of Appeal of Ontario, in the
King ex rel Tolfree v. Clark, Conant and Drew, 8 expressed himself
as follows:
is unquestionably
its competence
It is well settled by authority that the Legislature when legislating upon
a subject matter within the jurisdiction has plenary powers with which the
courts have no jurisdiction to interfere.
Finally, Bissonnette J. of the Quebec Court of Appeal, in the case
of Switzman v. Dame Elbing,19 summarized the question in these
explicit terms:
En r~sum6 dans l’exercice de l’autorit6 ldgislative qui lui est conferge par
l’art. 92, la Legislature de Quebee a une souverainet6 aussi totale, aussi
13 [1938] A.C. 708 at 722.
14See H. H. Lefroy, The Law of Legislative Power in Canada, 699. Also by the
same author, Canada’s Federal Ssystem, 64-67.
IS [1909] 18 O.L.R. 275 at 279, affirmed by the Privy Council at [1918] 43
O.L.R. 474.
16 This is precisely what the Quebec Legislature is trying to do as far as the
common law judicial power of review is concerned. Relying on its legislative
sovereignty, it enacts clauses designed to suppress that power.
17Beauharnois Light, Heat and Power Co. Ltd. v. The Hydro-Electric Power
Commission of Ontario, [1937] O.R. 796 at 822. See also Reference re Adoption
Act, [1938] S.C.R. 398 at 399, per Sir Lyman Duff.
18 [1943] 3 D.L.R. 684 at 688-689.
19 [1954] B.R. 421 at 431.
McGILL LAW JOURNAL
[Vol. 13
ample que le Parlement imperial lui-m~me poss~de. Et cette souverainet6,
elle la tient de la prerogative royale, sans aucune subordination au Parle-
ment f6ddral.
B) Particular Situation in the Provinces
The fact remains that in matters of sovereignty the Provincial
Legislatures do not enjoy the same position as the Federal Parliament.
The division of the legislative powers, as it exists in the B.N.A. Act,20
excludes the possibility of the provinces becoming real sovereign
states in an international sense,21 most of the necessary powers to
that end (External Affairs – Defence – Immigration etc.) being
vested in the Federal Parliament. When one speaks of sovereignty
for the provinces, one uses the word solely in the restricted sense
of internal legislative powers, 22 and even then, that sovereignty is
not perfect.23
First, it should be noted that, although section 92 (1) of the Act
of 1867 grants to the provinces the power to amend their constitu-
tions, there is an exception relative to the appointment of the Lieu-
tenant-Governor. Moreover, provincial laws are always subject to
disallowance by the Federal Government for reasons of disagreement
or non-approval. 24 In matters of concurrent jurisdiction, provincial
legislation has effect only as long as it is not repugnant to any
federal legislation.25 In addition, there is a judicial principle, recogn-
ized by the courts, whereby the Federal Parliament, in cases of
urgent need, has an unlimited jurisdiction even in matters strictly
reserved to the provinces by section 92 of the B.N.A. Act.26 It is true
20 ss. 91, 92.
21 See Michel St. Aubin, La Province de Quebec est-elle un Etat ?, (1963) 45
Thdmis, 51 at 54. See also Marc Brire, Souverainet6 au Canada, [1953] Th~mis,
125.
22 Me Maximilein Caron, Notre Milieu, 383.
23 F. R. Scott, Centralization and Decentralization in Canadian Federalism,
(1951) 29 Can. Bar Rev., 1095 h 1100-1101.
24 See G. V. La Forest, Disallowances and Reservations of Provincial Legisla-
tion, Department of Justice, Ottawa 1955. The author cites 112 laws which have
been disallowed since the Confederation, only twelve of them from 1924 to our
day. The Federal Government uses this power of disallowance less and less. The
last law to be disallowed by the Governor General was entitled Act to Prohibit
the sale of the Land to any, Enemy, Alien or Hutherite for the Duration of the
War, S.A. 1946, c. 16. It was disallowed on the recommandation of the Hon. Louis
St. Laurent then Minister of Justice in the Government of McKenzie King. See
also Beaudoin, op. cit. 34, 35.
25B.N.A. Act., s. 95.
2GFort Francis v. Manitoba Free Press, [1923] A.C. 695: See also J. P.
-6 U. of
Humphrey, The Theory of the Separation of Functions, (1943-46)
T.L.J., 331 at 347.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 31
that laws so enacted are of a temporary nature and cease to be effect-
ive when the emergency ceases; nevertheless this is an important
legislative restriction to the absolute sovereignty of the provinces in
matters within their legislative competence. Furthermore, in matters
of education, Provincial Legislatures are prohibited from “prejudici-
ally affecting any right or privilege with respect to denominational
schools which existed by law at the time of the Union”. 27 Finally,
the Legislatures cannot validly set up administrative tribunals vested
with jurisdiction which would make them similar to superior, district
or county courts unless they allow the Federal Government to appoint
their members.28 If they did so, these tribunals would not be un-
constitutional for that reason alone, but it would be impossible for
them to exercise validly their jurisdiction from a constitutional view-
point, because their members would not have been validly appointed.
Excepting these and other minor restrictions, the will of the
Provincial Legislatures is supreme when they act within the limits
of their jurisdictional competence. It is by basing itself upon this
supreme authority that the Quebec Legislature claims the right to
decide whether or not the public interest requires such and such
legislation, and to judge if in any particular sphere the common
law judicial power of review is being abused, and is consequently
causing more harm than good. In cases where the legislature is of
the opinion that an accelerated form of procedure is less prejudicial
to citizens than the slow procedure of the courts,29 it tries to protect
the action of the various agents, tribunals and administrative bodies
from judicial review by means of clauses suppressive of judicial
authority, which it causes to be enacted in their constituent statutes.
The Quebec Legislature displays great boldness in drafting such
privative clauses, as it feels it is supported by two very significant
facts.30 In the first place, it is clearly established by the terms of
section 4 of the Statute of Westminster, 1931, that no Dominion law
is null because it is contrary to the law of England and, by virtue
of section 7(2) of the same statute, this principle also applies to
any law passed by a province. In the second place, section 92(14)
of the B.N.A. Act confers upon it exclusive jurisdiction in the
creation, maintenance and organization of courts of justice in the
province. The only exception to its legislative power in that sphere
is procedure in criminal matters.31 It is admitted that it cannot
27 B.N.A. Act, s. 93. See also D. A. Schmeiser, Civil Liberties in Canada, 12.
28B.N.A. Act, s. 96.
29 This is the motive normally invoked by the Legislature to justify the presence
of privative clauses.
0 Voir L. E. B6langer, Corps Administratif – Brefs de Prerogatives, [1964]
3
McGill L.J., 217 at 223.
McGILL LAW JOURNAL
[Vol. 13
validly create a court analogous to that provided for in section 96,
unless it allows the federal power to appoint its judges, but this
restriction is not of a legislative nature. The appointment of the
members of Superior, District, and County courts by the Governor-
General is a purely executive act.
It would therefore seem that by the use of appropriate words,
the Quebec Legislature could deprive the Superior Court of its power
to review the action of administrative tribunals or bodies which it
has set up. Indeed the doctrine of the Sovereignty of Parliament,
which Quebec has inherited from Britain as a member state of the
Canadian Federation, justifies at least in theory, the steps taken by
the Quebec Legislature with the object of limiting and even of totally
suppressing the control exercised by the courts over the activities of
the provincial Administration.
However, since Quebec is part of a federal state with a written
constitution which established between the General Parliament and
the Provincial Legislatures not only a division of legislative powers 32
but also the necessity for close co-operation in the administration of
justice,33 the power of the Quebec Legislature to limit judicial review
can raise very serious constitutional problems.
Para. II – Constitutionality of the Power
It is most important to determine if the power of limitation of
judicial review has any constitutional basis in Canada, i.e., if from
a constitutional standpoint it is possible for the Quebec Legislature
to use this power validly by enacting clauses suppressive of judicial
authority.3 4 Canadian courts have generally avoided pronouncing
explicitly on this point, though certain judges have on occasion
manifested their wish to do so. 35
31B.N.A. Act, s. 91 (27).
32 B.N.A. Act, ss. 91, 92.
33 Ibid., s. 96.
34 Voir J. G. Pink, Judicial “Jurisdiction” in the presence of Privative Clauses,
[1965] U. of T.F.L. Rev., 5 at 9 et seq…
manifested their wish to do so.y
35 Miron et Fr res Ltd. v. Commission des Relations Ouvrisres, (1956) C.S.
389 et 389a, per Caron, J.; L’Alliance des Professeurs Catholiques de Montreal v.
Labour Relations Board, [1953] 2 S.C.R. 140 at 155, per Rinfret, J.; Syndicat
National des Travailleurs de la Pulpe et du Papier v. Commission des Relations
Oun-ires, (1958) B.R. 1 at 24, per Hyde J.; The E. B. Eddy Co. v. Commission
des Relations Ouvriares, [1958] B.R. 542 at 546, per Rinfret J.,; Dauphin v.
Director of Public Welfare, [1956] 5 D.L.R. (2d) 274; Ontario Labour Relations
Board, Bradley et al. V. Canadian General Electric Co. Ltd., [1957] O.R. 316
or [1957] 8 D.L.R. (2d) 65; Slax Inc. V. La Commission des Relations Ouvriares
de Quebec et Amalgamated Clothing of America, local 115, [1964] R.D.T. 1 at 6,
per Brossard, J.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 33
Two main arguments are usually raised against the constitutional
validity of these legislative limitations. The first, of a specific
nature, is based upon a definite section of the British North America
Act, to wit, section 96. The second, of a general character, is based
upon the general tenor of the Canadian Constitution. The inter-
pretation which has been given to them by the courts and their
present judicial value in Canadian constitutional law will now be
examined.
A) Argument based upon Section 96 of the
British North America Act.
To endeavour, by means of privative clauses, to render unassail-
able the decisions of administrative tribunals, and render them
exempt from the power of review of the superior courts, is equivalent
to the turning of those tribunals into superior courts, in the sense
of section 96 of the B.N.A. Act, which means that their members
should have been appointed by the Governor-General of Canada in
Council, and not by a provincial Lieutenant-Governor in Council.
Such is the argument most often put forward in contesting the
constitutional validity of privative clauses in Canada.
The case law is far from being in agreement on this question
so that it is difficult to draw reliable guidance from it, at least in
the present state of the law.36
In their effort to determine whether or not certain provincial
administrative tribunals or bodies had been, for all practical purposes,
empowered to act as superior courts within the meaning of section
96 of the B.N.A. Act, and were therefore, from a constitutional
point of view, in the impossibility of exercising validly their juris-
diction, the Canadian courts have put forward three more or less
obscure criteria which they have used with very little consistency.
The first, of an institutional character, consists in questioning
whether the administrative body concerned possesses the normal
attributes of a superior court of justice.3 The second, of a more or
36 See Marc Lapointe, La Place des Tribuiaux du Travail dans l’ensemble de
l’Organisation Judiciaire, (1961) 16th Congr s des Relations Industrielles de
l’Universit6 Laval, 93 et 103-104; J. Willis, Administrative Law and the British
North America Act, (1939-40) 53 Harv. L. Rev., 251 at 261 et seq..
37 See J. Willis, Section 96 of the British North America Act, (1940) 18 Can.
Bar Rev., 517; See also Kowanko v. J. H. Tremblay Co. Ltd., (1920) 50 D.L.R.
578; Procureur G6ngral de la Province de Qudbec v. Slanec et Grimstead, (1933)
54 B.R. 230; Toronto Corporation v. York Corporation, [1938] A.C. 415; Re
Toronto Ry Co. and City of Toronto, (1918) 43 D.L.R. ;739.
McGILL LAW JOURNAL
[Vol. 18
less historical character, consists in questioning whether or not it
possesses powers and functions which belonged to the superior courts
at the time of Confederation.38 Finally, the third, of a substantive
character, consists in questioning whether, in its very substance
and taken as a whole, a law presently entrusted for administration
to, i’ provincial administrative body should not rather have been
entrusted to the administration of a superior- court.3 9 The absence
of precise rules as to the use of these criteria has brought about a
division of the case law into two groups of decisions each with
specific tendencies.
a) Strict interpretation of Section 96
of the British North America Act.
The first tendency is based on a number of decisions which, by
a somewhat literal interpretation of section 96 of the B.N.A. Act,
seeks to protect the supervisory jurisdiction of the Superior Court
against any progressive encroachment by the provinces.40 Criteria
of an institutional and historical character have been most often used
for this purpose.
This type of interpretation first appeared in the case of Toronto
Corporation v. York Corporation.4′ Although the Privy Council held
that the jurisdiction exercised by the Municipal Commission of
Ontario was of an administrative nature, Lord Atkin pointed out
3s See
i. C. Shumiatcher, Section 96 of the British North America Act re-
examined, (1949) 27 Can. Bar Rev., 131; McLean Gold Mine Ltd. v. Att.-Gen.
for Ontario, [1924] 1 D.L.R. 10; Martineau and Son v. Cit de Montrial, (1931)
50. B.R. 545, Reference re the Adoption Act, [1938] S.C.R. 398, per Duff J.;
Labour Relations Board of Saskatchewan v. John East Iron Work Ltd., [1949]
A.C. 134.
39 Lederman, The Independence of the Judiciary, [1956] Can. Bar Rev., 1139 at
1170-1171. This substantive criterion is very closely linked with the historical
one. It was especially put forward in the case of Labour Relations Board of
Saskatchewan v. John East Iron Work Ltd., [1949] A.C. 134. Its effects is to
widen and to give more flexibility to the historical criterion. See also Att.-Gen.
for Ontario and Display Service Co. Ltd. v. Victoria Medical Building Ltd., [19601
S.C.R. 32.
.40 Clubins v. Clubine, [1937] 3 D.L.R. 754; Toronto Corporation v. York Corpo-
ration, [1938] A.C. 415 or [1938] 1 D.L.R. 593; Quance v. Thomas A. Ivey and
Sons -Ltd., [1950] 3 D.L.R. 656; City of Toronto v. Olympia Edward Recreation
Club Ltd., [1955] S.C.R.454; Mindamar Metals Corp. Ltd. v. Richemond County,
[1955] 2 D.L.R. 183; R.-v. Ontario Labour Relations Board, ex p. Ontario Food
Terminal Board4 (1963) 38 D.L.R. (2d) 530; Bertrand v. Bussigre et les Com-
iihissaires dEcole pour la Municipalitg de Jacques Cartier, [1962] C.S. 480;
Re Constitutionalitd de la cour de Magistrat, [1965] B.R. 1, reversed by [1965]
S.C.R. 772.
41 [1938] A.C. 415.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 35
it constitutionally
that the fact of its possessing certain powers of a judicial nature
would render
invalid with respect to those
powers.42 It was with the support of this opinion that the Ontario
Court of Appeal held some years later that the same Municipal
Commission of Ontario had no jurisdiction to decide whether or not
a given individual was subject to municipal taxation. Jurisdiction to
decide this question was vested in the Superior Courts of the Pro-
vince both before and at the time of Confederation and could not
now be exercised by a tribunal whose members were provincially
appointed. As Robertson C.J. pointed out :43
It is clear that the Board has assumed, under an authority that the
Legislature has assumed to give it, to exercise the jurisdiction of a Superior
Court, or a tribunal anologous thereto.
Subsequently, in the case of City of Toronto v. Olympia Edward
Recreation Club Ltd.,” the Supreme Court of Canada held on similar
grounds that the question decided by the Municipal Commission of
Ontario was a question of law over which it had no authority.45 In
1960, the same court decided that the Ontario Legislature did not
have the required authority to confer judicial powers upon the
Master 46 of York County and to make his judgment final, since the
nature of the jurisdiction so conferred broadly conformed to the
type of jurisdiction exercised by the Superior, District, or County
courts at Confederation 47
In the recent case of R. v. Ontario Labour Relations Board, ex p.
Ontario Food Terminal Board, Ladlaw J., speaking on behalf of the
Ontario Court of Appeal, stated that the Labour Relations Board
was not empowered to determine whether Commission created by
statute was or was not a Crown agency, that being a question of law
which could be determined only by a judge appointed by the Gov-
42Ibid., at 427: “It is primarily an administrative body: so far as legislation
has purported to give it judicial authority that attempt must fail. It is not validly
constituted to receive judicial authority”.
43Quance v. Thomas A. Ivey and Sons Ltd., [1950] 3 D.L.R. 656 at 666.
44[1955] S.C.R. 454.
45 See Bora Laskin, Municipal Tax Assessment, [1955] Can. Bar Rev., 993. He
criticises the division made between the taxation and evaluation functions. His
suggestion to leave both functions to the administrative tribunal with provision
for an appeal on question of law to courts listed in section 96 of the B.N.A. Act
is certainly expedient. This happens more and more frequently in England since
the Tribunals and Inquiries Act, 1958.
46 Court’s officer who assists a High Court’s Judge generally in matter of
procedure.
47Att.-Gen. for Ontario and Display Service Co. Ltd. v. Victoria Medical
Building Ltd., [1960] S.C.R. 32; see also Tremblay V. La Commission des relations
ouvriares, [1966] B.R. 44 at 57, per Montgomery J. (dissenting).
McGILL LAW JOURNAL
(Vol. 13
ernor-General of Canada under section 96 of the B.N.A. Act.48
Finally, in Re. ConstitutionalitM de la Cour de Magistrat,49 the Court
of Appeal of Quebec recently declared that the Magistrate’s Court
which replaced the Circuit Court existing at the time of Confederation
was a Superior, District or Country court within the meaning of
section 96 of the B.N.A. Act and that consequently its members had
to be appointed in accordance with this section.
b) Broad Interpretation of Section 96
of the British North America Act
The indisputable weight of this first group of cases is vigorously
opposed by a much nfore liberal interpretation of section 96 of the
B.N.A. Act, expressed in an even greater number of decisions, 0 to
the effect that the provinces may vest administrative
tribunals
with judicial powers, provided that their functions are predominantly
administrative. The majority of the Canadian judicial decisions in
this group have to do with the Workmen’s Compensation and Labour
Relations Boards of the various provinces, and in such cases it is
the criterion relating to the very substance of the law establishing
such tribunals which has especially been used, with the subsidiary
aid of history.
The decisions rendered by Duff C.J. of the Supreme Court of
Canada, -in Reference Re the Adoption Act,5 1 and by the Privy Council
in the case of Labour Relations Board of Saskatchewan v. John East
Iron Work Ltd,-2 are without doubt the two principal decisions in
this group. An examination of these decisions shows that a provincial
48 (1963) 38 D.L.R. (2d) 530. See the stern criticisms of this decision by B.
Laskin, [1963] Can. Bar Rev., 446.
49 [1965] B.R. 1 reversed by the Supreme Court of Canada, but on a much
more restricted issue. See [1965] S.C.R. 772.
5 OKowanko v. J. H. Tremblay Co. Ltd. et al., (1920) 5$ D.L.R. 578; Re Toronto
Ry Co. and City of Toronto, (1918) 43 D.L.R. 739; Workmen’s Compensation
Board v. C.P.R., [1920] A.C. 184; Martineau and Son v. City of Montreal, (1931)
50 B.R. 545 affirmed by [1932] A.C. 113; Procureur Giniral de la Province de
Quebec v. Slanec et Gi-imstead, (1933), 54 B.R. 230; Reference Re The Adoption
Act, [1938] S.C.R. 398; Labour Relations Board of Saskatchewan v. John East
Iron Work Ltd., [1948] 4 D.L.R. 673 or [1949] A.C. 134; Acme Home Improve-
ments Ltd. v. Workmen’s Compensation Board, (1958) 11 D.L.R. (2d) 461; Dupont
v. Inglis [1958] S.C.R. 535; Alcyon Shipping Co. Ltd. v. O’Krane, [1961] S.C.R.
299; Shell Co. of Australia v. Federal Commissioner of Taxation, [1931] A.C.
275; R. v. Ontario Labour Relations Board, ex p. Taylor, (1964) 41 D.L.R. (2d)
456.
51 [1938] S.C.R. 398.
52 [1949] A.C. 134 or [1948] 4 D.L.R. 673.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 37
administrative body may exercise certain judicial functions which
belonged to the Curia Regis in 1867, without for this reason coming
under section 96 of the B.N.A. Act.53 Carrying out duties normally
exercised by a Superior Court is not a determining factor and does
not necessarily make of the tribunal in question a Superior Court,
or a court analogous thereto.54 The functions of the tribunal must
be considered as a whole.55
The courts had long before made decisions along these lines, but
so clear and comprehensive an indication of the criteria and motives
on which they were based had never been made. In 1920 the Court
of Appeal of Manitoba, in the case of Kowanko v. J.H. Tremblay Co.
Ltd. et a., 56 had held that the provisions of the Manitoba Workmen’s
Compensation Act,57 relative to the appointment of members of the
Board were intra vires of the Provincial Legislature and therefore
did not conflict with any power reserved to the Federal Parliament
under sections 96-100 of the British North America Act.58
A few years later, the Court of Appeal of Quebec declared in
two famous decisions 59 that the Public Service Board 30 and the Work-
men’s Compensation Commission 61 did not exercise the functions of
a Superior Court according to section 96 of the constitutional law of
1867, and that their members could therefore be legally appointed
by provincial authority. Again, the principles and criteria at the
basis of these decisions were not exceptionally clear or coherent. 62
53 Ibid.
54 Reference Re The Adoption Act, [1938] S.C.R. 398 at 414, per Duff, C.J.
,5 The test proposed by Lord Simonds in the John East Iron Works’ Case, [1948]
4 D.L.R. 673 at 685, reads as follows:
Does the jurisdiction conferred by the Act upon the appelant Board broadly
conform to the type of jurisdiction exercised by the Superior, District, or
County court?
See also at 682:
It is relevant to consider the alleged judicial function of the Board under
s. 5 (a) of the Act in relation to its other duties.
56 (1920 50 D.L.R. 578.
57 S.M. 1916, c. 125.
58This decision was based on Re Toronto Ry Co. and City of Toronto, (1918)
43 D.L.R. 739 and Workmen’s Compensation Board V. C.P.R., [1920] A.C. 184.
59Martineau and Son v. City of Montreal, (1931) 50 B.R. 545 affirmed by
[1932] A.C. 113; Proanreur Giniral de la Province de Quibec v. Slanec et Grim-
stead, (1933) 54 B.R. 230.
60 Established by the Public Service Act, R.S.Q. 1925, c. 17.
61 Established by the Workmen’s Compensation Act, S.Q. 1928, c. 79 s. 36.
62 In Martineau’s case, for instance, it seems that the decision on behalf of
the Public Services Board was largely determined by the fact that this Board
was the successor of a body which was already in existence in 1867 and was then
exercising a similar jurisdiction.
McGILL LAW JOURNAL
[Vol. 13
In fact, the decision of the Privy Council in John East Iron
Works,63 that the Labour Relations Boards of Saskatchewan did not
constitute a Superior Court under section 96 of the B.N.A. Act, was
really the first judicial decision to state explicity the need for
considering the functions of an administrative tribunal in a global
perspective. Subsequently the Supreme Court of Canada, on several
occasions, approved this view,64 and in the very recent case of R. V.
Ontario Labour Relations Board, ex p. Taylor, McRuher J. of the
Ontario High Court substantiated this point of view when he de-
clared:
I do not think it was beyond the powers of the Legislature to clothe the
Labour Relations Board with jurisdiction to make decisions of law incidental
to its administrative duty. 65
In times or rapid evolution, with multiple changes occurring in
the social and economic structure of Canada, when new procedures of
adjudication have become necessary –
in labour relations, workmen’s
compensation, social insurance, valuation for taxation etc., –
this
second judicial trend which gives a much more liberal’ interpretation
of section 96 of the B.N.A. Act seems more realistic, comprehensive,
and adaptable than the first. When the traditional system becomes
inadequate to deal effectively with new situations, the creation of
new and appropriate tribunals must be encouraged.
In view of this second judicial tendency, it is submitted that
provincial administrative tribunals are in no way restricted to the
functions of the lower courts at the time of Confederation, 60 and
that they may validly perform all types of new functions now re-
quired for the specific application of a particular law. The constitu-
tional validity of provincial legislation setting up an administrative
body which possesses some of the functions and duties of a Superior
Court depends on whether that body, viewed in a global perspective,
bases its decisions on policy and expediency, or on objective norms
laid down by the legislature.67
63 [1948] 4 D.L.R. 673 or [1949] A.C. 134. See also Procureur Gingral do la
Province de Qudbec v. Slanec et Grimstead, (1933) 54 B.R. 230 at 234, per Letour-
neau J.
64Dupont v. Inglis [1958] S.C.R. 535 at 541, per Rand J.; Aloyon Shipping
Co. Ltd. v. O’Krane, [1961] S.C.R. 299; Farrell et al. v. Workmen’s Compensation
Board, [1962] S.C.R. 48; Att.-Gen. for Ontario V. Scott, [1956] S.C.R. 137; Brooks
v. Pavlih et al., [1964] 42 D.L.R. (2d) 572 or [1964] S.C.R. 108.
65 [1964] 4 D.L.R. (2d) 456 at 462. See also Tremblay v. La Commission des
relations ouvri~res, [1966] B.R. 44 at 52, per Casey J.
66 Tremblay v. La Commission des -elations ouvriares, [1966] B.R. 44 at 47,
per Hyde J.
67 See B. Jackson, Recent Judicial Consideration of the Privative Clause in
Workmen’s Compensation Legislation, [1961] Alberta Law Rev., 583 at 587. See
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 39
B) Argument based upon the General Tenor
of the Canadian Constitution
From the very nature and terms of the Canadian Constitution
it follows that the power of supervision and review of the Superior
Court has a constitutional basis, and that any attempt to deprive it
of that power is therefore unconstitutional. Such is the second argu-
ment generally used to contest the constitutional validity of privative
clauses in Canada.
The main contention is that the judicial power of review, though
not created by any precise text of law, is nonetheless a necessary
corollary of the essential characteristics of the Canadian Constitu-
tion. The fact alone, it is said, that a country is endowed with a
constitution, implies that in that country, authority is derived from
the law and cannot be exercised otherwise than in the manner pres-
cribed by the law. It is the purpose of a constitution to determine
how authority shall be both constituted and exercised.
The admission of this elementary and fundamental principle
demands, in any country which possesses a democratic constitution,
the establishment of a judicial power distinct from the legislative
and executive branches of Government in order that the law may
be properly observed and that such authority be exercised within the
limits prescribed by law. The judicial power must be the independent
arbiter in any dispute that may arise, not only between individuals,
but also between the authorities and the citizenry. The power of
the courts to curb abuses by those who exercise powers delegated
to them by Parliament or the Legislature, would therefore stem
from the fact that Canada has a democratic constitution providing
for an independent system of courts whose powers cannot be abro-
gated without violation of principles essential to the proper function-
ing of that constitution.
In fact ,this is the meaning many writers on constitutional law
have ascribed to the doctrine of Supremacy of the law or the Ruile
of Law, when they have affirmed that it is one of the essential
characteristics of the British and Canadian Constitutions. 8 In
Canada, and especially in Quebec, the authors of a number of arbicles
also D. M. Gordon, Administrative Tribunals and the Courts, (1933) 49: L.Q.R.,
94 at 108: “In contrast, non judicial tribunals of the type called ‘administrative’
have invariably based their decisions and orders not on legal rights and liabilities
but on policy and expendiency”.. See also Leeds (Corp.) v. Ryder, [19073 A.C.
420 at 423-424, per Loreburn L. J.; Boutler v. Kent, J. J., [1897] A.C. 556 at
564; Shell Co. of Australia v. Federal Commissioner of Taxation, [1931] A.C.
215 at 295. Tremblay V. La Commission des relations ouvriares, [1966] B.R. 44
at 47, per Hyde, J.
McGILL LAW JOURNAL
[Vol. 13
on administrative and constitutional
law have suscribed to this
opinion.69 They were no doubt prompted by Lord Atkin’s statement in
Toronto Corporation v. York Corporation 70 that the provisions of
the B.N.A. Act concerning the organization of the courts of justice 71
are “three principal pillars in the temple of justice”.72
However attractive it may be, especially to lawyers filled with the
desire to see all citizens protected from even the possibility of abuse
by the Administration, this thesis is of doubtful legal authority,
since it is not supported by any precise text of the B.N.A. Act or by
any principle of established law.
However, by reason of the division of powers now existing in
Canada between the Central Parliament and the provincial legisla-
tures, 2 the supremacy of the judicial power in constitutional matters
is an accepted fact. The Supreme Court of Canada is the supreme
arbiter in all disputes between the Federal Parliament and that of a
province, or between two or more provinces. Therefore, neither the
Federal Parliament nor a Provincial Legislature could remove from
a statute, even by express words, the right of appeal to the Supreme
Court of Canada to decide a constitutional matter.7 4
Moreover, in 1960 the Federal Parliament passed the Bill of
Rights, the purpose of which is not only to guarantee to individuals
the protection of their rights and fundamental liberties, but also to
prevent them from being deprived of such rights without a fair
hearing and an equitable trial.75 However, the Canadian Bill of Rights
possesses no fundamental character.70 It is a law like any other, and
68 Dicey, op. cit.; R. M. Dawson, The Government of Canada (4th ed.), 88;
J. A. Corry, Dewocratic Government and Politics.
69 W. R. Lederman, The Independence of the Judiciary, [1956] Can. Bar Rev.,
768 and 1139. The author’s attempt to give a constitutional basis to the judicial
power of review and to the supporting decisions seems to be unsuccessful. See
also Bernard Schwartz, Case and Conment, (1950) 28 Can. Bar Rev., 679; Louis
Lesage, Bref de Prohibition, [1953] R. du B., 316; Philip Cutler, The Controversy
on Prerogative Writs, [1963] R. du B., 197; Jean Beetz, Le Contr6lo Jurdiction-
nel du Pouvoir Ldgislatif et les Droits de l’Hommc dans la Constitution du Ca-
nada, [1958] R. du B., 364 at 367-370.
70 [1938] A.C. 415.
71 ss. 96, 99, 100.
72 [1938] A.C. 415 at 426.
73 B.N.A. Act, ss. 91, 92.
74 IO.F. v. Bd. Trustees Lethbridge Nor. Irr. Dist., [1938] 3 D.L.R. 89 at 102-
103, per McGillivray J. A.; Re Tank Truck Transport Ltd., (1960) 25 D.L.R.
(2d) 161; See also the Supreme Court Act, R.S.C. 1952, c. 259 s. 55.
7-5 An Act for the Recognition and Protection of Human Rights and Funda-
mental Freedoms, S.C. 1960, c. 44 ss. 1 (a), 2 (e). See Bora Laskin, Canada’s Bill
of Rights: a Dilemma for the Courts ?, [1962] I.C.L.Q., 519.
76 Schmeiser, Civil Liberties in Canada, 37.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 41
might be repealed in accordance with ordinary parliamentary proce-
dure.77 It would have to be incorporated in the Canadian Constitution
in order to acquire any significant or reliable protective value. It
therefore does not compare in any way with the famous phrase
‘Due Process of Law’ which was made an integral part of the United
States Constitution by the Fifth Amendment. Furthermore, the
Canadian Bill of Rights has no positive judicial value as regards the
Quebec administration, for it is clearly specified in the Act itself
that its provisions “must be interpreted as referring only to matters
under the jurisdiction of the Canadian Parliament”.78 Provincial laws
are in no way affected by this Act.
It would seem that despite these two peculiarities, there exists
in Canada no positive constitutional principles upon which the
Superior Courts could base a claim to the right to review the decisions
of administrative tribunals which do not come under section 96 of
the B.N.A. Act and which are entrusted with the application of laws
on matters within the legislative competence of a province.7 9 An
identical situation prevails in England.8 0
The power of the Legislature to immunize administrative bodies
which are within its legislative competence against possible inter-
vention by the courts is therefore a fundamental attribute of its
sovereignty, which the doctrine of the Rule of Law cannot impair.
The Canadian Parliament and the Provincial legislatures, despite
the jurisdictional limits imposed by the Constitutional Law of 1867,
possess to the same extent as the British Parliament an absolute
legislative sovereignty and supremacy. They can in theory enact
unjust, oppressive, unreasonable, and even immoral laws. They can
derogate from the rules of international law 8I and even from the
rule which asserts that a Parliament or Legislature has not the
77 See J. Y. Morin, Une Charte des Droits de t’Homme pour le Quebec, [1963]
McGill L. J., 273 at 303. The author proposes a procedural solution which would
give to this Act a special status and a more definite character.
78 S.C. 1960, c. 44 s. 5(2) (3). This provision is necessary to deter the Federal
Parliament from interfering in some legislative sphere which belongs exclusively
to the provinces.
79 Ottawa Valley Power Co. v. Att.-Gen. for Ontario, [1936] 4 D.L.R. 594 at
603, per Masten J. See also Bora Laskin, Certiorari to Labour Boards: The Ap-
parent Futility of Privative Clauses, (1952) 30 Can. Bar Rev., 986 at 989; Yves
Ouellette, Les Clauses Privatives en Droit Administratif Qujbgcois, (1963) 44
Th~mis, 235 at 246; J. Willis, Section 96 of the British North America Act, (1940)
18 Can. Bar Rev., 517 at 523 approved by Laskin in Canadian Constitutional
Law, 777.
80 As was pointed out by Garner, Administrative Law, 123, “there is no prin-
ciple by which the validity of a statutory provision may be called into question”.
1 British Columbia Electric R. Co. v. The King, (1946) 46 D.L.R. 81 (P.C.).
42 * –
McGILL LAW JOURNAL
[Vol. 13
right to adopt retroactive laws.32 In such cases the control is poli-
tical, 3 not judicial.
The Canadian courts do not derive their jurisdiction from the
Constitution, as is the case in the United States. By virtue of sections
92(14), 96 to 101 and 129 of the B.N.A. Act, their jurisdiction
proceeds from the joint action of Parliament and the Legislatures
and is therefore at their mercy. The role of the courts in the Cana-
dian legal system is solely to examine if the law is enacted according
to the jurisdiction conferred on the Legislature, and to apply it
whether it is just or not.8 4
In recent years, and particularly since the abolition of appeals
to the Judicial Committee of the Privy Council in London,8 members
of the Supreme Court of Canada seem to have elaborated a new
theory to restrict the Sovereignty of Parliament and the Legislature,
especially in cases where fundamental public liberties appear to be
in danger.8 This altogether new tendency departs from the tradi-
tional paths and does not rely upon the division of legislative powers.
Rather is it based on the substance of the federal character of the
Canadian State and on the position of interdependence in which the
Federal Parliament and the Provincial Legislatures stand in relation
to the proper functioning of their parliamentary institutions.
In the Alberta Press Bill case 87 of 1938, the Supreme Court of
Canada held that a provincial law attempting to regulate newspapers
by way of compulsory publication of prescribed matter was invalid
because it constituted a possible obstacle to the proper function of
federal institutions.88 It follows clearly that even on a subject which
82 Western Minerals Ltd. v. Gaumont, [1953] 3 D.L.R. 245 at 269, per Cart-
wright J. See also La Cie de Publication La Presse Ltie V. Le Procureur Gngral
du Canada, [1964] Ex. C.R. 627 at 639, per Dumoulin J.: “Si en principe, la
rdtroactivit6 d’une mesure fiscale ou autre est condamnable, il ne reste pas
moins, que, ddcrdtde par une loi du Parlement du Canada ou d’une LUgislature
provinciale, elle devra recevoir sa pleine application.”
83 It consists in a free and enlightened electorate.
84 As was pointed out by Riddell, J. in the case of R. cx rel Tolfree V. Clark,
Conant and Drew [1943] 3 D.L.R. 684 at 686: “the court is to look to the
ambit of the jurisdiction conferred on the Legislature and has no right to con-
sider the justice, the wisdom, the result of the legislation.”
85 The Supreme Court Act, S.C. 1949, c. 37 s. 3.
86 See Jean Beetz, Le Contrble Juridictionnel du pouvoir Ldgislatif et lee Droits
de l’Homme dans Ia Constitution du Canada, [1958] R. du B., 361 at 366. See
also J. Yvan Morin, Une Charte des Droits de l’Homme pour le Qudbec, [1963]
McGill L. J., 273 at 297-298.
87 Reference Re Alberta Statutes, [1938] S.C.R. 100.
88 This criterion for review was put forward by Duff and Davis JJ. Cannon J.
relied on the traditional criterion of invasion of the field reserved to the Federal
Parliament. (Bias Criminal Law).
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 43
is explicity reserved to them by section 92 of the B.N.A. Act, the
provinces cannot always legislate as they see fit, for they must not
enact laws which would hamper or invalidate any federal institution.
In several recent decisions mainly concerned with fundamental public
liberties 89 this opinion has been followed to such an extent that
Abbott J. in the case of Switzman v. Elbling and Att.-Gen. for Que-
bec,90 contrived to read into the Constitution implied limitations on
the power of any Legislature in Canada to eat away fundamental
freedoms:
I am also of the opinion that as our Constitutional Act now stands, Parlia-
ment itself could not abrogate this right of discussion and debate. The
power of Parliament to limit it is, in any view, restricted to such powers
as may be exerciseable under its exclusive legislative jurisdiction with
respect to criminal law and to make law for the peace, order and good
government of the nation.9 ‘
This view, although not as yet generally endorsed, 2 could lead
to the adoption in Canada of a new theory which restricts the sove-
reignty of the Federal Parliament and that of the Provincial Legisla-
tures even in matters within their own jurisdictional competence
whenever legislation adopted by the one interferes with the proper
functioning of the democratic and parliamentary institutions of the
other. This is certainly a happy development in the very important
matter of the protection of public liberties and fundamental rights
in Canada. However, it would be very difficult to predict if this
new judicial theory could protect the right of citizens to appeal to
the courts either to attack or to have annulled improper administra-
tive acts or decisions affecting them.
It was -in 1962 that for the first time – with the exception of
cases under section 96 of the B.N.A. Act –
the Supreme Court of
Canada was called upon to make an explicit statement as to the
constitutionality of the Legislature’s power to limit judicial review
8 9 Boucher v. The King, [1951] S.C.R. 265; Saumur v. City of Quebec, [1953]
S.C.R. 299; Chaput v. Romain [1955] S.C.R. 834; Chabot v. Les Commissaires
d’Ecoles de Lamorandiare, [1957] B.R. 707; Henry Birks and Sons (Montreal)
Ltd. v. City of Montreal, [1955] S.C.R. 799.
1) [1957] S.C.R. 285. See also Jank. Wanczycki, Union Dues and Political Contri-
butions Gr-eat Britain, United States, Canada – A Comparison, [1966] 21 Indus-
trial Relations, 143 at 197.
91 Ibid., at 328.
92 See however Chemical and Atomic Workers International Union V. Imperial
Oil Ltd. and al., [1963] S.C.R. 584 where Cartwright, Abbott and Judson JJ.,
all dissenting, upheld the proposition asserted by Abbott J. in the Switzman’s
Case. See especially the remarks of Abbott, J. at 599, 600. This case is com-
mented on at [1964] Osgoode Hall Law Journal, 203 at 209.
McGILL LAW JOURNAL
[Vol. 13
by means of privative clauses.93 This was in an appeal from a judg-
ment of the Supreme Court of British Columbia, Division of
Appeals. 4
In this case, the widow of *an employee of North Vancouver
General Hospital who, according to medical evidence, had died as a
consequence of physical exercises required in the course of his
duties, appeared before the Workmen’s Compensation Board of
British Columbia to seek monetary compensation for herself and
her children. Her claim was disallowed, the Board holding that the
husband’s death had not resulted from a work accident. The widow
then petitioned the Supreme Court’s Trial Division to issue a writ of
nwndamus, with a certiorari in aid to quash the Commission’s de-
cision. Notwithstanding the presence in section 76 (1) of the Work-
men’s Compensation Act 95 of a forceful clause suppressive of judicial
authority, Manson J. acceded to her request and decreed that this
clause was ultra vires of the Provincial Legislature for the two
reasons previously studied, namely that such a legislative provision
makes the Workmen’s Compensation Board a Superior Court under
section 96 of the B.N.A. Act, and that in view of the general tenor
of the Canadian Constitution a Legislature has no authority to
deprive citizens of their right of access to the courts.0 6 The Supreme
Court of British Columbia, Division of Appeals, later reversed this
decision.9 7 The case came before the Supreme Court of Canada, where
the only argument invoked was that based on constitutional princi-
ples guaranteeing the power of judicial review. Judson J. speaking
on behalf of the Court, declared as follows:
If an argument based upon section 96 of the B.N.A. Act is untenable, the
other argument based upon right of access to the courts falls with it…..
Short of an infringement of this section, if the legislation is otherwise
within the provincial power, there is no constitutional rule against the
enactment of section 76 (I).98
The Supreme Court of Canada appears to have clearly established
that there are no constitutional principles to prevent a Provincial
Legislature from enacting, in a matter within its competence, a clause
suppressive of judicial authority, provided that this does not entail
an infringement of section 96 of the B.N.A. Act.
It is to be regretted ,however, that the highest court in the
country did not take advantage of this opportunity to make a thor-
93 FarreU et al. v. Workmen’s Compensation Board, (1962) S.C.R. 48.
94 (1961) 26 D.L.R. (2d) 185.
95 R.S.B.C. 1948, c. 370 s. 76 (1) now R.S.B.C. 1960, c. 413 s. 77 (1).
906 (1960) 24 D.L.R. (2d) 272.
D7 (1961) 26 D.L.R. (2d) 185.
9s [19621 S.C.R. 48 at 52.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 45
ough study of the authorities and the doctrine on this obscure and
controversial problem. It is also surprising, that in an absolutely
identical case, involving . the Workmen’s Compensation Board of
British Columbia,99 the Supreme Court of Canada decided along the
same lines as in the Farrell case but without alluding, to the privative
clause in section 77 (I).100 One may conclude that the Commission’s
decision could have been quashed if there had been any defect as to
its jurisdiction. 0 1 Thus the court overlooked another – opportunity
to make more explicit its opinion on this matter.
It cannot be said that the problem has been solved to the intel-
lectual satisfaction of all litigants. It is not altogether impossible
that some may again contest the constitutional validity of privative
clauses on the basis of this argument, hoping to obtain, if not a
reversal or a modification of the opinion of the Supreme Court of
Canada, at least a more detailed and judicially more satisfactory
statement of reasons for judgment.102
Consequently, even though, historically speaking, the superior
courts in Canada have always exercised an inherent power of super-
vision and review over lower and administrative tribunals, it does
not appear that such power is based on any juridical constitutional
guarantee, at least when a Provincial Legislature enacts laws on a
matter within its competence. It would, therefore, be theoretically
and constitutionally possible for the Quebec Legislature to use the
sovereignty it enjoys within its legislative competence to render, by
means of appropritately worded clauses, finally and totally judge-
proof, the decisions of administrative tribunals which it has set
up, 10 3 provided of course that such tribunals successfully met the
test of section 96 of the B.N.A. Act.
99 Rammell v. Workmen’s Compensation Board, [1962] S.C.R. 85.
100 Workmen’s Compensation Act, R.S.B.C. 1960, c. 413 replacing R.S.B.C. 1948,
c. 370 s. 76 (1).
to See S. M. Chumir, Case and Comment, [1963] Alberta Law Review, 124 at
128. The author affirms that the Supreme Court’s decision in both cases is due
to the presence in s. 77(1) of the Workmen’s Compensation Act not only of a
common ‘no certiorari clause’ but also of a clause which confers on the Workmen’s
Compensation Board an exclusive jurisdiction.
102 Y. Ouellette, in Les Clauses Privatives en Droit Administratif Qu~b~cois,
(1963) 44 Th~mis, 235 at 247, expresses the opinion that the question is definitely
settled by the Farrell case. Such an opinion seems to be premature.
103 As was pointed out by St. Jacques J. in the case of La Commission des
Relations Ouvrigres de la Province de Quebec v. L’Alliance des Professeurs Catho-
liques de Montrial, [1951] B.R. 752 at 768:
C’est au L~gislateur –
et A lui seul et non aux cours civiles qu’il appartient
d’accorder ou de supprimer le recours aux bref exceptionnels de prohibition
ou de certiorari, pour tester la juridiction ou la competence des tribunaux
inf~rieurs ou des corps politiques qui exercent des pouvoirs quasi-judiciaires.
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Therefore, it is necessary to determine if the Quebec Legislature
has, in practice, really been able to remove administrative action
from review by the courts; and to this end, one must examine care-
fully how the legislative power to limit juidcial review has been
exercised in Quebec.
SECTION II – THE EXERCISE OF THE POWER
OF LIMITATION
The method generally adopted by the Quebec Legislature with a
view to limiting the power of the courts to review the acts and
decisions of the Administration is to insert, in laws which confer
very wide powers upon administrative agencies, provisions calculated
either directly or indirectly to limit or even suppress entirely the
judicial power of review. There follows an examination of, first,
the different types of privative clauses which at present exist in
Quebec statutes and second, the attitude of the courts towards them,
i.e., the interpretation which they have given to them, and therefore
the actual judicial effect of these clauses in Quebec administrative
law.
Para. I – Different Types of Privative Clauses
Before a detailed examination is made of the principal types of
privative clauses which at present exist in Quebec statutes, some
particulars of their nature and historical origins must be given.
A) Nature and Origin of Privative Clauses
Since they first occurred in British statutes, it is important to
give a short historical outline of their development in English law.104
a) Development in England
The Justices of the Peace in England in the seventeenth century
possessed great judicial and administrative powers. Many statutes
conferred upon them the power of summary conviction of an indi-
vidual without previous arraignment. 05 However, it was a well-
established fact that such a conviction could be quashed upon appli-
104 See Yardley, D. C. M., Statutory Limitations on the Powers of the Preroga-
tive Orders in England, (1957] U. of Q. L.J., 103.
105 Paley, Summary Convictions (10th ed.) Introduction 3-6; T. F. T. Plucknett,
Bbnham’s Case and Judicial Review, (1926-27) 40 Harv. L. Rev., 30.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 47
cation for certiorari before the Court of King’s Bench, either for
excess of jurisdiction or for error on its face. 06
The courts of justice reluctantly accepted this procedure by
summary conviction without previous formal arraignment, and then
interpreted the statutes in a somewhat restrictive manner. 0 7 When
Parliament enacted laws creating new jurisdictions, 08 particularly
laws relating to municipal or school matters, the courts interpreted
such laws in the same manner; so much so that they even quashed
decisions and orders for merely technical and unimportant faults.
This attitude provoked a defensive reaction by Parliament, which
is understandable. Parliament then incorporated in many statutes
granting summary jurisdiction, provisions designed to obviate any
possibility of obtaining the issuance of a writ of certiorari. It pro-
ceeded either by inserting special words to that effect,0 9 or by
providing that the final decision would be made by the Justices of
the Peace, or by some other officers of the Court.110
It is in this historical context that the first examples of privative
clauses in England originated. It must be stated, however, that the
Court of King’s Bench did not easily accept the suppression by these
clauses of its judicial powers in matters of certiorari, especially when
there was evidence of an error of law “‘ or lack of jurisdiction. 11″2
b) Development in Canada and in Quebec
legislators,
The procedure followed by Canadian
in framing
legislation to abolish review of administrative decisions by the courts,
differed somewhat from that followed by the British Parliament.
Not only did it differ in point of time, but also in its historical
setting. It must be admitted that this procedure, while not quite
identical with that followed at Westminster, had a similar purpose.”8
The earliest evidence of clauses suppressive of judicial review
which we were able to find in Canada was in the Intemperence
106 Groenvett v. Burwell, 12 Mod Rep. 386, per Holt J.; R. v. Corden, [1769]
4 Burr. 2279.
107 Warwick v. White, (1769) 4 Bunb. 106.
1o8 Paley, op. cit., 2; Holdsworth, History of English Law, vol. X, 248, 250, 251.
1o9 Conventicle Act, 1670, 22 Car. 2, c. 1 s. 6; Gaming Act, 1738, c. 28 s. 6.
See also R. V. Mahony, [1910] 2 I.R. 695 at 730, per Gibon J.
11o Paley, op. cit., 800.
M R. v. Plowright, (1686) 3 Mod. 95.
12R . v. Moreley (1760) 2 Burr. 1041; Hartley v. Hooper, (1777) 2 Cowp. 523;
R. v. Jukces, (1800) 8 T.R. 542; R. v. Reeve, Morris, Osborne, [1760] 1 BL.W. 231
at 233, per Lord Mansfield.
“3 Philip Cutler, The Controversy on Prerogative Writs, [1963] R. du B., 198
at 210.
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Repression Act,” 4 1853. Section 6 of this Act deprived the parties
convicted by Justices of the Peace under the said Act of the benefit
of the writ of certiorari in the following terms:
And, be enacted, that no judgment or conviction in pursuance of the Act
cited in the preamble of this Act, or adjudication on appeal therefrom, shall
be removed by certiorari, or otherwise, into any of Her Majesty’s Superior
Courts of Record in Lower Canada.
After the Constitutional Act of 1867, this sort of legislative
provision appeared more and more frequently in federal and pro-
vincial statutes. One may find in certain federal statutes of the time
very significant examples of such privative clauses. 15
As regards Quebec, it has already been stated that privative
clauses were on record there as far back as in any other part of
Canada. 116 This is so manifestly true that a number of Quebec statutes
of that time include such legislative provisions. 17
It should be noted that the historical and social contingencies
which favoured the inclusion of certain privative clauses in the
statutes seem to be less specific in Canada than in England.”, It
would seem that after the enactment of the B.N.A. Act, Canadian
administrations became more aware of their strength and of the
need for real autonomy. Legislators were disposed to protect the
administrations from too frequent intervention by the courts in
certain specific cases which required some freedom of administrative
action.
Legislative attempts to remove the action of administrative offi-
cers or bodies from the control of the courts have adopted one or the
other of two distinct methods. The first, of a rather indirect nature,
consists in including in certain laws formulae of a general nature
which often seem innocuous at first sight, but which prove to be
formidable barriers behind which the Administration entrenches
itself. The second, of a much more direct nature, consists in including,
114 C.S. 1853, c. 214 s. 6 reproduced in the R.S.L.C. 1861, c. 6 s. 49.
115 An Act to amend the agricultural Act, C.S. 1861, c. 30 s. 15; An Act pro-
riding fbr the Organisation of the Department of the Secretary of State for
Canada, S.C. 1868, c. 42 s. 21; Canada Temperance Act, S.C. 1878, c. 16 s. 111;
Indians Act, S.C. 1880, c. 28 s. 97 as amended by S.C. 1884, c. 27 s. 15.
116 G. Le Dain, The Supervisory Jurisdiction in Quebec, [1957] Can. Bar Rev.,
788 at 822.
117 Quebec Corporation Act, S.Q. 1868, c. 33 s. 19; An Act respecting District
Magistrates in this Province, S.Q. 1869, c. 23 s. 29 as amended by S.Q. 1870, c. 11
s. 4; Town Corporation’s General Clause Act, S.Q. 1876, c. 29 s. 440.
118 The exact influence of the presence in English statutes of certain model
privative clauses upon the Canadian statutes is not easy to define. It can be
said that English legislators opened the way in this sphere for Canadian legis-
lators.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 49
in statutes which confer powers on the Administration, provisions
directly and expressly limiting or suppressing the common law judicial
power of review.
B) Indirect Privative Clauses
The Legislature that wishes to limit or exclude the judicial power
of review in an indirect manner has more than one method at its
disposal. It can, for example, forbid recourses to the courts unless
prior authorization has been given by a minister 119 or by the At-
it can also prescribe common procedures for
torney-General;120
summary convictions or even refrain from insisting in the statute
that the Administration justify its decision. Examination here will
be restricted to, on the one hand, the indirect limiting effect of the
famous maxim “The King can do no wrong” on the judicial power
of review, and on the other hand, all those formulae of a very general
nature which confer, in vague and inexplicit terms, very wide powers
on the Administration.
a) Non-Express Privative Clause:
“The King Can Do No Wrong”
This ancient maxim, the very basis of British common and public
law, is without doubt the most pervasive and least conspicuous
principle suppressive of judicial review that is to be found in law.
It is the first clear judicial manifestation of the innate desire of all
state authority to protect its action and decision against intervention
by the courts of justice. In the Middle Ages this maxim meant that he
power of the King extended to doing only what was right. Then it
came to mean that no intention of abusing his power can be attributed
to him. Finally it acquired its present meaning, namely that whatever
the King does is right.12 1 The universal character of this maxim
stems from the fact that it does not appear in any statute.
The purpose here is not ta make a profund study of the practical
implications of this maxim in modern law, but rather to show the
ultimate motivation which brought it into being, and also its restrict-
ive judicial effect on the common law judicial power of review. This
effect, although not immediately apparent in the maxim itself,
nevertheless dominates modern judicial relations between adminis-
trators and those administered, in British law as well as in Canadian
and Quebec law.
119 Employment Discrimination Act, R.S.Q. 1964, c. 142 s. 7.
120 Labour Code, R.S.Q. 1964, c. 141 s. 131.
121 Keir and Lawson, Cases in Constitutional Law (4th ed.), 46.
McGILL LAW JOURNAL
[Vol. 13
The origins of the rule are shrouded in the obscurity of the
Middle Ages and cannot be easily traced. 122 The rule appears to stem
from the fact that before the victory of Parliament over the Crown
in the seventeenth century, and especially under the Tudor dynastry,
the King enjoyed almost absolute authority and was even considered
in the seventeenth century, and especially under the Tudor dynasty,
nistration forced the King to delegate ever greater authority to new
inferior jurisdictions or Justices of the Peace who enjoyed a great
freedom of action. In order to maintain a proper balance between
the Crown and its subjects, the medieval maxim to the effect that
the King was the source of all justice and equity and could permit
recourse to justice against his own administration was then applied.
From this originated the procedure known as Petition of Right.
In modern law, the restrictive judicial effect of this maxim, which
tends to grant the privilege of immunity to the Crown, is still felt,12 4
despite an increasing tendency to place the Crown on the same footing
as a private individual as far as liability is concerned. Thus, in 1947
the British Parliament enacted a law which many considered revolu-
tionary.125 For the first time in England liability for tort was imposed
upon the Crown. ‘ 2 6 The Canadian legislator followed Suit 127 and in
122 See W. I. C. Binnie, Attitudes toward State Liability in Tort; a Compara-
tive Study, [1964] U. of T.F.L.R., 88 at 92-94.
123 Holdsworth, op. cit., Vol. IX, 4, 5.
124 This maxim still had its full application in Confederation days. See F. Do-
rion, R6clamation en dommages-intdrats contre la couronne – Faute commune,
[1947] R. du B., 397. The first Canadian Act on the subject: Petition of Right
Act, was enacted in S.C. 1875, c. 12, now R.S.C. 1952, c. 210.
125 The Crown Proceedings Act, U.K. 1947, c. 44; See the comments by Sir
Thomas Barnes, The Crown Proceedings Act, 1847, (1948) Can. Bar Rev., 387.
As far as the United States are concerned, see the Federal Tort Claim Act, U.S.
1946, c. 753 commented on by Borchard, Government Liability in Tort, [1948]
Can. Bar Rev., 399.
126 The Crown Proceedings Act, U.K. 1947, c. 44 s. 2.
There are three classes:
a) Tort committed by servants or agents.
b) Breaches of the duties which a private employer owes to his servants or
agents at common law by reason of being their employer.
c) Breaches of duties attaching at common law to the ownership, occupation,
possession or control of property.
127 See the stern criticism of the existing situation by D. Park Jamieson,
Proceedings by and against the Crown in Canada, [1948] Can. Bar Rev., 373 at
385. In order to have a precise idea of the position of the Crown in matters of
liability before 1952, see Farthing v. The King, [1948] 1 D.L.R. 385, per OfCon-
nor J.
No. 11 LEGISLATIVE LIMITATIONS ON COURTS’ POWER 51
1952 a law concerning the responsibility of the Crown was enacted. 2 8
In Quebec, the right of recourse against the Crown in matters of delict
and quasi delict was, until 1965, governed by the Code of Civil Pro-
cedure which required that permission be obtained before an action
might be taken against the Government.1 9 But the Royal Commission
set lip in 1945 130 to improve the Code of Civil Procedure, -in its final
reports made recently, 13 1 strongly recommended that the Legislature
of Quebec, following the example of the Federal Parliament and the
other Provincial Legislatures as well as those of other countries of
the Commonwealth, adopt in this respect a law as wide as possible to
replace procedure by Petition of Right. 3 2 This was very recently done
by the addition to the Code of Civil Procedure of arts 94 to 94 K.
The Petition of Right is a modern residual manifestation of the
restrictive effect of the maxim “The King can do no wrong”, on the
power of the judiciary to review the action of the Crown. At a time
when the increasing activity of the Crown and its agents in the
different sectors of economic and social life is giving rise to more
and more disputes it seems only fair and right that private individuals
should no longer be at a disadvantage in asserting their rights. The
Petition of Right is an obsolete procedure and it is with good reasons
that it has been abolished.
b) Very General Privative Clauses
The principal types of formulae which confer in vague and inex-
plicit terms very wide powers on administrative authorities will be
examined under this heading.
i) The Henry VIII Clause 133
Here, without doubt, is the most outstanding of the very general
formulae designed to protect the Administration against intervention
128 The Crown Liability Act, S.C. 1952-53, c. 30 s. 3. See also Cdt6 v. Guardian,
[1959] R.L. 438. This case clearly indicates the evidence required to succeed
against the Crown especially in Quebec. See also H. Immarigeon, La responsabilit6
extra-contractuelle de la Couronne au Canada, 1965.
129 Arts. 1011 to 1025 C.C.P.
130 An Act to imtprove the Code of Civil Procedure, S.Q. 1945, c. 69.
131 Proposed new Code of Civil Procedure, art. 94.
132 It is interesting to note that in English law the Petition of Right has been
abolished except with regard to proceedings against Her Majesty in her private
capacity. See The Crown Proceeding Act, U.K. 1947, c. 44 s. 1.
133 This clause, which appeared for the first time in the Statute of Proclama-
tions, 1539, 31 Henry VIII c. 8, gave to the King Henry VIII, on the advice of
his majority Council, the power to issue Proclamations which would have the
same effect as a law enacted by Parliament.
McGILL LAW JOURNAL
[Vol. 13
by the courts of justice. In British statutes, it is usually worded as
follows:
The Board of Trade, (or Minister) may from time to time make such
general rules and do such things as they think expedient, subject to the
provisions of this Act.1*34
From this clause was derived another very similar formula which
was very popular with the British legislator during the first quarter
of the twentieth century. The following is the usual form:
The order of the Minister when made shall have effect as if enacted in this
Act.135
The problem is to know what happens when the order or regulation
is contrary to the initial purport of the statute. The two main decisions
on this point come from the House of Lords, but unfortunately they
cannot be easily reconciled. 136
In the first case, Institute of Patent Agents v. Lockwood,1 7 the
decision was that the courts could not intervene to question the
validity of a regulation made under the aegis of a statutory provision
defined in terms as broad as these.
In the second case, Minister of Health v. R. ex p. Yaff6,13s the
House of Lords concluded that such a legislative provision did not
prevent intervention by the courts when the latter considered that
the order was not consistent with the provision of the law author-
izing it. The opinion of the highest British Court was well summed
up by Viscount Dunedin, when he stated that “it is inconceivable
that the protection afforded by such a legislative provision should
be limitless”. 139 It is also a well established principle that the proce-
dure required by the parent Act must be observed even though author-
ity to enact subordinate legislation has been granted in broad terms.140
This type of clause came under violent attack and criticism from
Lord Hewart’ 4 1 and the Donoughmore Committee on Ministers’
Powers. 142 Since then, the clause has not reappeared in British
statutes, with perhaps one exception. 143 The reason for this seems to
134Patent Act, U.K. 1883, c. 57 s. 101; The Pharmacy Act (Ireland), Ireland
1875, c. 57 s. 17.
135 Housing Act, U.K. 1925, c. 14 part. 11 s. 40 (5).
13 6 de Smith, op. cit., 234.
137 [1894] A.C. 347.
138 [1931] A.C. 494. See J. A. Corry, Administrative Law and the Interpreta-
tion of Statutes, [1935-36] U. of T.L.J., 286 at 307-308.
139 Ibid., at 501-503.
140R. v. Minister of Health, ex p. Davis, [1929] 1 K.B. 619.
141 The New Despotism, (1929).
142 Cmd. 4060 (1932).
143 Emergency Powers (Defence) Act, U.K. 1939, c. 62.
No. 1] LEGISLATIVE LIMITATIONS O COURTS’ POWER 53
be entirely of a political nature, as there is no doubt that the enact-
ment of such clauses is legally valid. 44
It is interesting to note that very few examples of this clause
can be found in Canadian statutes, whether Federal 145 or Pro-
vincial.14 This may be due simply to the fact that our legislators,
enjoying as they do a certain historical perspective over the British
legislator, have been able to foresee and have even profited by the
unfortunate experiences of the latter in this domain.
ii) Provisions Affording Very Extensive Discretionary Powers.
1. In British and Canadian Law
It is easy to find in British statutes 147 as well as in those emana-
ting from the Canadian Parliament 14s a great many instances -of this
legislative tendency to delegate discretionary powers in extremely
broad terms. It has become customary for legislators to insert in
statutes delegating powers phrases which confer upon ministers or
other public authorities extensive administrative, legislative or judi-
cial authority, defined in such terms that it is practically impossible
for the courts to decide whether or not such authority has been
exceeded.
These phrases, obviously designed to remove the action of ad-
ministrative authorities from review by the courts, are perhaps the
most effective means used by the legislator along these lines. 149 Very
often, the courts have found themselves powerless before such
statutory phrases which exlude their authority. The principal judicial
14 4 Garner, op. cit., 128.
145 Post Office Act, R.S.C. 1927, c. 161 s. 7 (2) ; Live Stock Pedigree Act, R.S.C.
1927, c. 121 s. 3(2); Militia Act, R.S.C. 1927, c. 132 s. 140.
146 Liquor Control Act, R.S.Q. 1927, c. 257 s. 10(1).
147 Town and Country Planning Act, U.K. 1962, c. 38 s. 7 (I) (b): “If the
Minister is satisfied”; Highway Act, U.K. 1958, c. 25 s. 215 (I): “Where in the
opinion of the Minister…”; Pipe Lines Act, U.K. 1962, c. 58 s. 11(2): “The
Minister shall have the power in his discretion”; Ibid., s. 13(1): As he thinks
fit…”
148 Custo s Tariff Act, R.S.C. 1952, c. 60 s. 5(5): “If at any time it appears
to the satisfaction of the Minister”; Defence Production Act, R.S.C. -1952, c. 62
s. 21 (5) : “Mere the Minister is satisfied . . .”; Ibid., s. 24 (I) : “The Minister may
where he deems it necessary”; Excise Act, R.S.C. 1952, c. 99 s. 27: “The Minister
may for sufficient cause, of which sufficiency he shall be the sole judge…”;
Veterans Insurance Act, R.S.C. 1952, c. 279 s. 13: “The Minister may… where…
in his opinion…”; Visiting Forces Act, R.S.C. 1952, c. 284 s. 24(1): “…as in
the opinion of the Minister.., are reasonable”.
149 As has been pointed out by Professor de Smith, op. cit., 247 the courts are
more likely to give up their power of review in cases where the legislator has
spoken in vague and general terms than in those where he has spoken clearly.
54
McGILL LAW JOURNAL
[Vol. 13
decisions in this regard were rendered in wartime and in the imme-
diate post-war period. In the case of Liversidge v. Anderson,150 the
House of Lords, reluctant to obstruct the war effort of the Admin-
istration, decided not to question the reasonableness of the motives
which prompted the Secretary of State to use his discretionary
powers. 51 In Canada, there are two decisions to the effect that it is
up to the Governor-General in Council or to the officer to whom his
authority has been delegated, and not to the courts, to define the
motives which determine the necessity or desirability of a decision.5 2
It must be emphasized that such a judicial interpretation was influ-
enced by the public interest, and that nothing prevents it from being
altered. 53
2. In Quebec Law
The Quebec Legislature has certainly not been exempt from this
legislative tendency to suppress the common law judicial power of
review. The statutes abound with instances where discretionary
powers have been conferred in excessively broad terms, not only on
the Lieutenant-Governor in Council 154 but also on ministers, 15 senior
150 [1942] A.C. 206.
151A defence regulation No. 18B, made under the Emergency Power (Defence)
Act, U.K. 1939, c. 62 enabled the secretary of State to detain without trial any
person whom he had “reasonable cause to believe to be of hostile origin or associa-
tion”.
152 See Reference Re Validity of Regulations in ‘elation to Chemicals, [1943]
S.C.R. 1 at 12, per Duff C.J. In this case the discretionary powers were given
to the Governor-General in Council by the War Measure Act, R.S.C. 1927, c. 206
s. 3. See also Att.-Gen. for Canada v. Hallet and Carey Ltd., [1952] A.C. 427
at 450, per Lord Radcliffe, where the powers were given to the Governor-General
in Council by the National Emergency Transitional Powers Act, S.C. 1945,
c. 60 s. 2 (I). See also In Re Gray, (1919) 57 S.C.R. 150.
’53 Minister of Transport v. Upminster Service, [1934] I K.B. 277.
154 Quebec Licence Act, R.S.Q. 1964, c. 79 s. 2: “The Lieutenant-Governor in
Council may, as he deems expedient…”;Quebec Municipal Commission Act, R.S.Q.
1964, c. 170 s. 14: “Whenever he deems it necessary…”; Lands and Forests Act,
R.S.Q. 1964, c. 92 s. 57: “Whenever it is shown to the satisfaction of the Lieu-
tenant-Governor in Council”; Ibid., s. 117: “He may, whenever it shall be deemed
advisable…”; Workmen’s Compensation Act, R.S.Q. 1964, c. 159 s. 96: “When-
ever the Lieutenant-Governor in Council is of the opinion that…”
155 Lands and Forests Act, R.S.Q. 1964, c. 92 s. 42: “if the Minister be satis-
fied…”; Public Work Act, R.S.Q. 1964, c. 138 s. 41; “The Minister, whenever
he deems it advisable … may…”; Hospital Insurance Act, R.S.Q. 1964; c. 163;
see regulations s. 8 (1) : “If in the opinion of the Minister… “; Department of
Agriculture and Colonisation, Act, R.S.Q. 1964, c. 101 s. 6: “The Minister
shall, when he deems it expedient…”; Quebec Bureau Statistics Act, R.S.Q.
1964, c. 207 s. 7: “The Minister shall determine what.., deemed necessary…”
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 55
officers,15 6 commissions, 15 7 and boards of every kind.158 The Quebec
courts, in cases where they did not have to support the Administration
in efforts useful to the community, as for instance in time of war,
interpreted certain of these phrases in a rather restrictive manner.
For example, in the case of Procureur G6n6ral de Qu6bec V. Lazaro-
vitch and Joint Committee of Shoe Repairers of the District of
Montreal,159 the Quebec Court of Appeal declared that it had the
power to question whether or not the Lieutenant-Governor had ex-
ceeded his discretionary powers under the relatively broad terms of
section 10 of -the Collective Labour Agreement Act.160 The remarks of
Barclay J. were very clear on this point:
If the appellant is to succeed at all, he must do so in virtue of the last
clause of section 10 of the Act, which confers a discretion upon the Lieute-
nant-Governor in Council, namely to enact such provisions as he may deem
in conformity with the spirit of the Act. But this is not an unlimited
discretion, as contended for by the appellant, but one limited to such provi-
sions as upon a true construction come within the subject and area of the
Act, and does not permit the passing of rules and regulations which may
be the result of a fanciful view of the spirit of the Act. The exercise of this
limited discretion is therefore open to the scrutiny of the courts.’61
In conclusion, it seems that the Legislature’s intent in conferring
discretionary powers in such broad terms is to grant permission to
administrative authorities to act practically as they think fit. This
method should be used with the utmost care and only in exceptional
156 Quebec Public Health Act. R.S.Q. 1964, c. 161 s. 131: “Whenever he thinks
necessary, the executive officer…”
157 Act respecting Securities, R.S.Q. 1964, c. 274 s. 40; “Where the Commission
deems it necessary…”; Ibid., s. 50 (6): “The Commission may when it deems
it exepedient… “; Workmen’s Compensation Act, R.S.Q. 1964, c. 159 s. 63:
“The Commission may adopt such conclusions as it may deem just”; Ibid., 86 (2) :
“the Commission, if satisfied…”; Ibid., s. 89 (4) : “If the Commission sees fit…”.
isS Labour Code, R.S.Q. 1964, c. 141 s. I (m): “A person who, in the opinion
of the Board”;Quebec Agricultural Marketing Act, R.S.Q. 1964, c. 120 s. 14:
“The Board, whenever it deems it necessary…”; Quebec Water Board Act,
R.S.Q. 1964, c. 183 s. 18: The Board may make.., such orders as it deems it
proper…; Transportatiou Board Act, R.S.Q. 1964, c. 21 s. 22 (2): “It shall
adjudicate at its discretion…”.
159 (1940) 69 Que. K. B. 214.
160 S.Q. 1937, c. 49 as amended by S.Q. 1938, c. 52 s. 10: “… and also such
provisions as the Lieutenant-Governor in Council may deem in conformity with
the spirit of this Act”.
161 (1940) 69 B.R. 214 at 228. See also on the interpretation of this type
of formulae, the interesting and important New Zealand decision Reade V. Smith,
[1959] N.Z.L.R. 996 where the Supreme Court decided that the words “in the
opinion of the Governor-General” did not give the Governor-General a complete
and unexaminable discretion. The courts can examine if this opinion is reasonable
according to the facts and the law of the case.
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cases, where the public interest has to be considered before that of
the individual. 162
C) Direct Privative Clauses
The second method used by the Legislature in its efforts to free
administrative action from the common law judicial power of review
is the direct insertion in a considerable number of statutes of legisla-
tive provisions of a clearly restrictive nature.
a) In British and Canadian Law
i) Partial Clauses
Following the almost complete disappearance of the Henry VIII
clause in British statutes, there appeared regulations which instituted
new procedures and special recourses. These were evidently intended
to block, at least partially, recourse to the courts of justice by ordinary
means; and the one most frequently employed is without doubt that
which declares that the validity of administrative decisions may be
contested before the High Court within six weeks only after their
enactment, and that thereafter they are not to be subject to attack
by prohibition, certiorari or any other legal means. 163
ii) Total Clauses
There are also in England many laws designed to remove all
possibility of recourse to the ordinary courts of justice. They contain
provisions to the effect that a determination by an administrative
body or order of a minister shall not be called in question in any court
of law. The legislator’s intent could not be clearer. Notable examples
of these may be seen in the Foreign Coimpensation Act 164 and the
National Service Act.165
As regards the Canadian Common Law Provinces, an excellent
study of the different kinds of privative clauses was published in
1952 by the Canadian Bar Review.’60 We therefore do no more than
refer to it.
162 Professor de Smith, op. cit., 247, states in substance, that it is much more
prejudicial to permit the Administration to be the sole judge of its motives when
using discretionary powers, than it is to exclude by precise words the power of
judicial review when an administration has been granted very definite authority.
163Housing Act, U.K. 1930, c. 39 s. 2.; Acquisition of Land Act, U.K. 1946, c.
49 schedule I (16) ; Town and Country Planning Act, U.K. 1962, c. 38 ss. 176, 177.
164 U.K. 1950, c. 12 s 4 (4).
165U.K. 1948, c. 64 ss. 15 (2), 22 (2).
166 H. Sutherland, Case and Comment, [1952] Can. Bar Rev., 69. See also, J.G.
Pink, Judicial “Jurisdiction” in the Presence of Privative Clauses, [1965] U. of
T.F.L. Rev., 5 at 7 et sep….
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 57
b) In Quebec Law
i) General Privative Clauses
The Quebec legislator, by reason of the general grouping of all
rules of procedure in a single code,e67 enjoyed a great advantage over
his other Canadian and British common-law colleagues, as it was
possible for him to introduce into this very broad legislation privative
clauses of an extremely general nature, which could be applied to
all other specific statutes.
The opportunity so offered was utilized to insert a legislative
provision of very wide scope in the Code of Civil Procedure of Quebec.
Indeed article 100 of this Code declares that “no extraordinary re-
course or provisional remedy lies against a minister of the govern-
ment of the province or any officer acting upon his instructions to
force him to act or to refrain from acting in a matter which relates
to the carrying out of his duties or to the exercise of any authority
conferred upon him by any law of the province”. 168 The purpose
of this provision is evidently to place the actions of the Quebec
Administration beyond the review of the courts of justice.
ii) Special Privative Clauses
Besides this general provision of the Code of Civil Procedure,
there is a large number of other privative clauses contained in specific
statutes with limited application.
These clauses appear in different forms and include one or more
of the three following elements; exclusion of appeal and revision -by
the courts; exclusion of prerogative writs and of procedure by in-
junction; exclusion of the power of supervision and review of the
Superior Court, i.e. of article 33 of the Code of Civil Procedure.169
For purposes of classification we shall term “principal element” that
which relates to prerogrative writs and procedure by injunction. The
other two will be called “secondary elements”.
I. Partial Clauses
The privative clauses that have a merely partial effect may be
divided into five groups of increasing restrictiveness. The first are
those which provide for an appeal to the Magistrate’s Court.170 Their
restrictive nature is rather subtle. The Legislature wishes to divert
167 The Quebec Code of Civil Procedure put into effect on June 28th 1867
and revised in 1897 and 1965.
138 Art. 87a in the former Code, enacted by S.Q. 1929, c. 79 s. 1. See Thdberge
v. Galinee Mattagami Mines Ltd., [1965] C.S. 384 at 391, per Bernier J.
169 Article 50 in the former Code.
170 Now called “Provincial Court”.
McGILL LAW JOURNAL
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to provincially oppointed District Judges the review of decisions of
administrative tribunals established under certain provincial laws.171
There are also clauses which, altough exluding the right of appeal,
favour the use of certior iri7 2 or else leave the recourse to article 33
of the Code of Civil Procedure open.173 Thirdly, there are legislative
provisions designed to exclude completely any appeal to the higher
courts.1 74
Fourthly, there are privative clauses which exclude either what
has been called the “principal element”, i.e. prerogative writs and
procedure by injunction, 175 or the two secondary elements at one
time.176
Finally, there are also clauses which exclude the principal element
and one of the secondary elements 7″
171Pharmacy Act, R.S.Q. 1964, c. 225 s. 58 (6); Veterinary Surgeons of the
Province of Quebec Act, R.S.Q. 1964, c. 259 s. 59; Optometrists and Opticians Act,
R.S.Q. 1964, c. 257 s. 47 (g); Dispensing Opticians Act, R.S.Q. 1964, c. 28 (5);
Education Act, R.S.Q. 1964, c. 235 ss. 508, 515.
172Licence Act, R.S.Q. 1964, c. 199
(3). This act prescribes very precise
conditions which must be fulfilled to permit legal use of certiorari an prohibition
writs. For instance the party aggrieved has to apply for them within the 8 days
which follow the decision. See also Medical Act, R.S.Q. 1964, c. 249 s. 76; Dental
Act, R.S.Q. 1964, c. 253 s. 155.
173Medical Radiological Technicians Act, R.S.Q. 1964, c. 251 s. 11; Speech
Therapist and Audiologist Act, R.S.Q. 1964, c. 256 s. 17.
1 74 Notarial Act, R.S.Q. 1964, c. 248 s. 131; Dental Act, R.S.Q. 1964, c. 253 ss.
121, 133 (8).
175 Workmen’s Compensation Act, R.S.Q. 1964, c. 159 s. 59; Aiutorouto Act,
R.S.Q. 1964, c. 134 s. 12; Highway Victims Indemnity Act, R.S.Q. 1964, c. 232
s. 70; Water Board Act, R.S.Q. 1964, c. 183 s. 12. This Act provides for an appeal
to the Court of Queen’s Bench from any order of the Board on a point of law but
only upon leave granted by a judge of that court. It is interesting to note that the
Quebec Legislature protected these new administrative bodies by strong privative
clauses. This is a good example of the increasing development of this legislative
slightly different, the Hydro-Quebec Act, R.S.Q.
tendency in Quebec. See also –
1964, c. 86 s. 16. The Act contains a provision which excludes recourse by way of
mandamus, prohibition, quo warranto and injunction, but nothing is said there in
relation to certiorari. Engineers Act R.S.Q. 1964, c. 262 s. 26. This Act excludes
recourse by way of prohibition or injunction but provides for recourse by way
of certiorari against a final decision of the Council or of a Committee. One should
note that in the new Mining Act, S.Q. 1965, c. 34 s. 278, an exclusive jurisdiction
over all litigation respecting any rights, privileges or title conferred by this Act
has been vested in a District Judge. There is an appeal to the Court of Queen’s
Bench sitting in appeal from any final decision of this judge. See Raoul Barbe,
Tribunal Minier du Qugbec, [1966] C.B.J., 227.
176 Bar Act, R.S.Q. 1964, c. 247 s. 56; Adoption Act, R.S.Q. 1964, c. 218 s. 19;
Public Inquiry Commission Act, R.S.Q. 1964, c. 11 s. 17.
177 Liquor Board Act, R.S.Q. 1964, c. 49 s. 83. This act excludes the appeal
and recourse by way of prerogative writs or injunction; Act respecting the
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 59
2. Total Ciauses
Total privative clauses in Quebec statutes are legislative provi-
sions which, by combining all the three exclusive elements mentioned
above, appear to take away completely the common law judicial
power of review. 178 In enacting such clauses the purpose of the Legisla-
ture is to remove absolutely from the control of the courts the acts
and decisions of the administrative agency concerned. Two recent
measures show particularly well all the subtlety and agility displayed
by the Legislature to attain its ends. They contain privative clauses
which in our opinion are the most powerful to be found at this time
in the statutes of Quebec.
The first, the Quebec Agricultural Marketing Board Act,1″ 9 con-
tains a privative clause which reads as follows:
Notwithstanding any legislative provision inconsistent herewith,
a) the decisions of the Board can be revised only by the Lieutenant-
Governor in Council.
b) No writ of quo warranto, mandamus, certiorari, or prohibition shall be
issued and no injunction shall be granted against the Board, or against
its members acting in their official capacity.
c) The provision of article 50 of the Code of Civil Procedure shall not
apply to the Board or to its members acting in their official capacity.
Two judges of the Court of Queen’s Bench may annul summarily, upon
petition, any writ, order or injunction issued or granted contrary to this
section.
This clause is very ingenious in that it not only excludes the
usual means of review through regular judicial channels, but it
provides also for an appeal against the decisions of the Board within
the administrative hierarchy itself, in this instance to the Lieutenant-
Governor in Council i.e. for all practical purposes, to the Cabinet. 8 0
Montreal Transportation Commission, S.Q. 1950-51, c. 124 s. 2; Act respecting
regulation of Rentals, S.Q. 1950-51, c. 20 s. 17; Civil Service Act, S.Q. 1965,
c. 14 s. 15; Quebec Deposit and Investment Fund Act, S.Q. 1965, c. 23 s. 17;
Quebec Pension Plan Act, S.Q. 1965, c. 24 s. 23. These acts are exclusive of
recourse by way of prerogative writs and procedure by injunction and also of
recourse to article 50 C.C.P. (art. 33 in the new Code).
178 See Securities Act, R.S.Q. 1964, c. 274, s. 13. See also the former Quebec
Labour Relations Act, R.S.Q. 1941, c. 162A s. 41a.
179 R.S.Q. 1964, c. 120 s. 8 as amended by S.Q. 1965, c. 44 s. 1.
180 See sub-paragraph
(a). There is a similar privative clause in the Act
respecting the production etc… of Newsprint, S.Q. 1955-56, c. 26 s. 17. This Act
provided for an appeal to the Chief District Judge in Quebec, Division III of
the Act, including ss. 9 to 26, which created the Newsprint Board, was never
put into effect, the necessary proclamation by the Lieutenant-Governor in Council
never having been made.
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The second measure, the Labour Code,1 contains the following
privative clause:
s. 121 No action under article 50 of the Code of Civil Procedure or re-
course by writ of prohibition, quo warranto, certiorari or injunction
shall be exercised, against any council of arbitration, court of arbi-
tration, conciliation officer or the Quebec Labour Relations Board,
or against any member of such bodies, on account of any act,
proceeding or decision relating to the exercise of their functions.
s. 122 Two judges of the Court of Queen’s Bench may annul summarily
upon petition, any writ, order or injunction, issued or granted
contrary to the proceeding section.’8 2
The second part of both these clauses, which empowers two judges
of the Court of Queen’s Bench to annul summarily, upon petition,
any writ, order or injunction granted despite the first part, certainly
constitutes a very determined attempt by the Quebec Legislature to
free completely the Agricultural Marketing Board, the councils of
arbitration, courts of arbitration, conciliation officers, and the
Labour Relations Board from the intervention of the courts of justice.
The foregoing discussion makes it clear that the statutes of Quebec
contain many express restrictive provisions designed to thwart the
exercise of judicial review. The order of increasing restriction in
which they have been examined shows effectively all their possible
variations and also demonstrates the farthest point to which the
Quebec Legislature has so far ventured in this field.’8 3
18′ R.S.Q. 1964, c. 141 ss. 121, 122 replacing R.S.Q. 1941, c. 162A s. 41a.
182 There exists a similar clause in the Provincial Controverted Elections Act,
R.S.Q. 1964, c. 8 s. 93 whose purpose is to deny to the Superior Court and its
judges any jurisdiction in respect of a contestation of the election of a member
of the Legislative Assembly. It should be observed that this clause aims to protect
against the intervention of the Superior Court not an administrative tribunal
or body but a Magistrate’s Court the members of which are appointed by the
Lieutenant-Governor of the province. This provision forms part of the recent
legislative tendency in Quebec which aims to vest the Magistrate’s Court with
wider jurisdiction sometimes very similar to that of the Superior Court. See
Act to amend the Code of Civil Procedure, S.Q. 1952-53, c. 18 s. 12; S.Q. 1954-55,
c. 34 s. 2; Act respecting Municipal and School Offices, S.Q. 1957-58, c. 38 s. 1;
Act respecting the jurisdiction of the Magistrate’s Court, SQ. 1963, c. 62. Upon
a reference by the Quebec Legislature as to the constitutionality of the last mem-
tioned statute, the Quebec Court of Queen’s Bench held that the whole court
was unconstitutional. See Rifirence re Cons titutionalitj de la Cour du Magistrat,
[1965] B.R. 1. The Supreme Court of Canada’recently reversed this judgment
but only on a restricted issue. It held that the precise statute referred to it was
constitutional and it did not discuss the constitutionality of the whole court. See
(1965) S.C.R. 772. This case was commented on by J. Westmoreland, The Inceased
Jurisdiction of the Magistrate’s Court of Quebec, [1966] Th6mis, 155.
183 It should be noted that there cannot be found in Quebec statutes any clause
similar to the powerful “exclusive jurisdiction clause” which exists in the Ontario
Labour Relations Act, S.O. 1960, c. 202 s. 80.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 61
Para. II –
Judicial Effect of Privative Clauses
As was declared by Kellock J. of the Supreme Court of Canada
in the case of Chaqut v. Romain.:184
–
to the ordinary tiibunals.
The highest minister of -the Crown and the humblest official are equally
answerable for the legalityof their act
The citizen’s right to be protected against illegal administrative
action is a matter of public order and cannot be waived.18 5 The
Canadian and Quebec courts have always been ready to, afford this
protection and they have occasionally shown a. certain hostility
towards legislative provisions designed to deprive them of this right.
In the recent case of Guay v. Lafleur 186 Brossard J. of the Quebec
Superior Court declared:
Pas plus en pays de libertd d6mocratique qu’en pays de dictature l’Etat
n’est justifi6 au nom de ce qu’il consid6re le bien commun, de ddpouiller
l’individu de la protection de la loi quant A sa personne et i seg biens.
It is then very important to know the exact judicial effect of the
various privative clauses.1s7 Do these legislative provisions effectively
remove the decisions of the administrative authorities which they
protect from all power of review by the Superior Court ? This is what
the following study should try to determine.
A) Nature of the Problem
The Superior Court, as a tribunal of original general jurisdiction,
has powers of supervision and reform over all courts of inferior
jurisdiction, bodies politic and corporate, and all persons in the pro-
vince.188 The question as to the exact judicial import of clauses sup-
pressive of the Superior Court’s authority arises only where an
inferior tribunal or court of inferior jurisdiction abuses or exceeds
its jurisdiction; for it is recognized that when a decision is made
by such a body within the limits of the powers assigned to it by the
Legislature, privative clauses are fully effective, although one may
wonder whether they are really necessary to protect the validity of
such a decision and to make it unassailable.
184 [1955] S.C.R. 834 at 854.
185 Alfred Lambert Inc. v. La C.R.O. et le Syndicat des Employis du Commerce
de Gros de Montrial, [1963] R.D.T. 519 at 527, per Archambault J.
186 [19623 C.S. 254 at 271-272.
87SRubenstein, Jurisdiction and Illegality, 85 et seq… See also J. F. W.
Weatherill, Labour Relations Board and the Courts, [1966] 91 Industrial Rela-
tions, 58 at 72; J. G. Pink, Judicial “Jurisdiction” in the Presence of Privative
Clauses, [1965],U. of T.F.L. Rev., 5 at 13 et seq…
18s Art. 33 C.C.P. See also Vassard v. Commission des Relations Ouvrigres de
Qugbcc, [1963] B.R. 1 at 4, per Rivard J.; Alfred Lambert Inc. v. La C.R.O. et
le Syndicat des Employ6s du Commerce de Gros de Montrial, [1963] R.D.T. 519
at 526, per Archabault J.: Garant v. Lacroix, [1916] 50 C.S. 436.
McGILL LAW JOURNAL
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a) Meaning of the Phrase “Court of Inferior Jurisdictio”‘1 89
Originally, the decided cases limited the scope of the phrase to
those courts whose jurisdiction extended only to legal issues. 19 0 This
interpretation was subsequently modified 191 and
over-restrictive
today it seems incontestable that the phrase includes all adminis-
trative tribunals or public bodies whose decisions are of a judicial or
quasi-judicial nature.192 In the case of Canadian Britisk Aluminium
v. Dufresne,193 Lafleur J. of the Quebec Superior Court recently
summarized this point:
D’apr~s la jurisprudence actuelle, le tribunal infdrieur visd par l’article
1292 C.P. et que mentionne la premilre partie de l’article 1307 C.P. signifie
toute personne, corporation, association, commission ou conseil d’arbitrage
qui, en droit, est appel6 A agir judiciairement, i.e., A ddpartager ou d~ter-
miner les droits entre deux ou plusieurs parties.
It is pertinent also to refer to the decision of the Supreme Court
of Canada in the case of l’Alliance des Professeurs Catholiques de
Montrgal,94 in which Rinfret C.J. declared as follows:
18 9 1n the new Code of Civil Procedure the phrase has been replaced by the
other: “Court subject to its superintending and reforming power”. (See article
846). It is submitted however that this substitution of words does not eliminate
the difficulties raised by the phrase.
19o Gaynor and Green v. Lafontaine, (1906) 7 P.R. 240. See also Claude Dugas,
Du Bref de Prohibition, [1951] Thdmis, 99, 100; Breton v. Landry, [1898] 13 C.S.
31; ex p. B6langer, 2 R.J.R.Q. 351.
191 See A. Desgagn6, Des Procedures en uoie de Disparition: le Bref de Prohi-
bition et le Bref de Certiorari, [1965] R. du B., 129 at 130, 131.
La jurisprudence a toutefois reconnu que les organismes administratifs qui
exercent aussi des pouvoirs. judiciaires ou quasi-judiciaires en rendant des
d6cisions de caractlres judiciaire constituent, dans l’exercice de ces pouvoirs,
des tribunaux judiciaires de jurisdiction infdrieure sans pour autant les assi-
miler au cours de justice r~gulibre; d’ou l’application h ces organismes
des dispositions relatives au bref de prohibition et au certiorari.
192 See Louis Pratte, Brefs de Prohibition et Conseil d’Arbitrage, [1954] R. du
B., 469 at 470-71. See the cases cited there. See also Yardly, The Grounds for
Certiorari and Prohibition, [1959] Can. Bar Rev., 294 at 295 note 3; The Scope
of the Prerogative Orders in Administrative Law, (1957-58) 12 Northern Ireland
Legal Quaterly, 78 at 83, 84 and 142 at 149; Gosselin v. Bar of Montreal, [1912]
2 D.L.R. 19 (B.R.); Rayonnaise Textile Ltd. V. Conseils d’Arbitrage et Autres
Ouvriers Unis des Textiles d’Am=rique, [1959] C.S. 313 at 315, per Jean J.;
Maillet v. Bureau des Gouverneurs des Chirurgiens Dentistes, (1919) 18 B.R.
539 at 542, per Carroll J.; Brique Citadelle Ltde v. Gagng, [1954] C.S. 262 at
267; Kearney v. Desnoyers, (1901) 19 C.S. 279 at 282, per Davidson J.: “Licence
commissioners, although not among the inferior courts mentioned in C.C.P., arts.
59, 63, 64, 65 are called to the performance of duties of a judicial character,
which on proper occasion, subject them to the superintending authority of this
court”.
193 [1964] C.S. 1 at 17.
194 [1953] 2 S.C.R. 140. See also the case of Donatelli Shoes Ltd. v. Labour
Relations Board, [1964] C.S. 193 at 199 where Brossard J. pointed out:
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 68
‘article 1003
Que l’on ddcore du nom de tribunal administratif une commission du genre
de la commission intimde, dbs qu’elle exerce un pouvoir quasi-judiciaire…
elle doit 6tre assimilde h un tribunal infdrieur dans le sens de
du Code de Procedure Civile.19 5
Further on, the Chief Justice added:
I1 est de jurisprudence constante que m6me les commissions administratives
sont sujettes b. la prohibition telle qu’ddictde h l’article 1003 du Code de
Procddure Civile lorsqu’elles exercent les fonctions judiciaires ou quasi-judi-
ciaires.196
It would therefore seem logical to conclude that administrative
tribunals, such as the Labour Relations Board, are subject to super-
vision and review by the Superior Court. However, it has been
asserted that this power of supervision and review has been taken
away by the privative clauses contained in the statutes which establish
these tribunals.
According to this assertion these provisions would, as far as
administrative tribunals are concerned, take away all power of
supervision and review by the Superior Court; and all the decisions
of these tribunals, even if clearly ultra vires, would be valid and
binding for all parties, having the same force and effect as decisions
rendered within the limits of their jurisdiction. 197
What can be thought of such a claim ? Can it properly be stated
that privative clauses have the effect of removing the administrative
bodies, which they protect, from review by the courts, even in cases
where jurisdiction has been exceeded ? This is what must now be
determined.
b) Proposed Statutory Interpretation
Any delegation of power, as such, has some limitation, and what-
ever the extent of the delegatory terms used, they will always include
the implication that they must have some limit. The very fact that
an administrative body receives its authority from Parliament or
from the Legislature, necessarily implies a limited jurisdiction.
Therefore the Quebec Legislature, when for example, it created the
Labour Relations Board, clearly indicated that a body having limited
jurisdiction was intended. Turning to a formula used by Rand J. in
105 [1953] 2 S.C.R. 140 at 148.
106 Ibid., at 149.
197 In the case of Burlington Mills Hosiery Co. V. Commission des Relations
Ouvri~res de Quebec, [1960] P.R. 64, counsels for the Board made a total inscrip-
tion in law in which they submitted that the privative clause contains in s. 41a
of the Quebec Labour Relations Act, R.S.Q. 1941, c. 162A, fully prohibited re-
course to prohibition or certiorari, even in cases where the Board exceeded its
jurisdiction. Batshaw J. dismissed the inscription in law.
McGILL LAW JOURNAL
[Val. 13
the case of Toronto Newspaper Guild, local 87, and Globe Printing
Co.,195 8it may be stated that a reference to the Quebec Labour Code 19
would. enable to determine:
The real scope of action within which the body created is contemplated and
intended by the legislator to act.
To maintain that the Labour Relations Board is not subject to
review by the courts, even in cases where it exceeds its powers, is
to admit that decisions rendered outside its jurisdiction have the
same value as those made under an authority recognized by law. It
would also be affirming that the Legislature, while limiting the powers
of the board, at the same time endowed it with unlimited powers by
denying access to a court of justice in protest against such excess of
power.
It is difficult to believe that the Legislature can have intented such
an absurdity.200
Statutes will be construed as far as possible to avoid absurdity.20 ‘
This contention was substantiated by Rinfret C.J. in somewhat
different terms in the case of l’Alliance des Professeurs Catholiques
de Montrdal v. La Commission des Relations Ouvri res de Qu6bec.20 2
Le lgislateur, mgme s’il le voulait, ne pourrait d~clarer l’absurdit6 qu’un
tribunal qui agit sans juridiction peut 6tre immunis6 contre l’application
du bref de prohibition. La d~cision est nulle et aucun texte d’un statut ne
peut lui donner de la validit6 ou d6cider que, malgr6 sa nullit6, cette d6cision
devrait quand m~me 6tre reconnue comme valide et exdcutoire.
It would in fact be contradictory to grant limited jurisdiction to
a tribunal and then to recognize as valid decisions rendered by the
same tribunal outside the limits of its jurisdiction. As was pointed
by Brossard J. in the recent case of Slax Inc. v. La Commission des
Relations Ouvri~res de Qu6bec et Amalgamated Clothing of America,
local 115:203
Appliquer l’art. 41a, mgme aux actes de la Commission et de ses membres
qui pourraient Atre ultra vires des pouvoirs qui leur sont conf~r~s en termes
198 [1953] 2 S.C.R. 18 at 28.
199 R.S.Q. 1964, c. 141.
200 Alfred Lambert Inc. v. La C.R.O. et le Syndicat des Employds du Commerce
de Gros de Montrdal, [1963] R.D.T. 519 at 528, per Archambault J.
201 C. E. Odgers, The Construction of Deeds and Statutes (4th ed.), 188. See
also the case of La Mdnag~re Corp. v. Le Comiti paritaire du Commerce de Gros
et de Ddtail de Rimouski, [1962] C.S. 164 at 185 where Blois J. pointed out:
Considrant que dans l’interpr~tation d’un statut, il existe en faveur du
l~gislateur certaines pr6somptions, savoir qu’il n’a pas voulu excder l’objet
sp~cifique de la loi… et qu’il n’a pas voulu non plus crier une injustive ou
6noncer une absurdit6.
202 [1953] 2 S.C.R. 140 at 155.
203 [1964] R.D.T. 1 at 4.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 65
explicites et limitatifs par la loi, serait nier toute signification et tout effet
juridique aux dispositions relatives A ces pouvoirs en supprimant toute
sanction l6gale A la violation d’icelle; on ne saurait prAter au lgislateur des
intentions aussi contracdictoires.
A restrictive interpretation of clauses suppressive of judicial
authority would therefore seem to be imperative and it is actually
along these lines that English and Canadian case law, as well as that
of Quebec, has developed.
B) Interpretation Given by the Courts
a)
In England
As early as the -seventeenth century, English courts had to speak
out on the scope of such legislative provisions;24 and the decision
(f the Court of Appeal in ex. p. Hopwood 205 shows clearly that in
1850 there existed a similar judicial tendency. In that case it was
necessary to determine whether a conviction should be quashed by
certiorari under the Factory Act,206 section 69 of which prohibited
any recourse to certiorari. Lord Campbell, commenting on the manner
in which this provision should be considered, declared:
The certiorari is taken away so that we cannot interfere unless they act
altogether without jurisdiction.
A few years later in the case of R. v. Cheltenham Commis-
sioners, 07 Denman C.J. affirmed:
We have already stated our opinion that the clause which takes away the
certiorari does not limit our exercising a superintendence over the pro-
ceedings so far as to see that what is done shall be in pursuance of the
statute. The statute cannot affect our right and duty
to see justice
executed.
In 1878, the same Court of Appeal, in ex. p. Bradlaugh,20 8 had to
decide as to the admissibility of an application for certiorari by
means of which it was sought to quash the order of a magistrate
under the Act respecting Metropolitan Police Courts.20 9 The Court
granted the certiorari, regardless of a provision expressly prohibiting
it.210
In rendering this decision the Court only followed an already
well-established line of cases which had been up-held a few years
204R. v. Plowright, [1686] 3 Mod. 95; R. v. Moreley, [1760] 2 Burr. 1041;
Hartley V. Hooper, [1777] 2 Cowp. 523; R. v. Jukes, [1800] 8 T.R. 542.
205 [1850] 15 Q.B. 121.
206 U.K. 1844, c. 15 s. 69.
207 [1841] 1 Q.B. 467.
208 [1877-783 3 Q.B. 509.
209 U.K. 1839-40, c. 71.
210 Ibid., at s. 49.
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previously by the Privy Council in the case of Colonial Bank of
Australasia v. Willan.211 Recent British decisions in the matter show
that such precedents are always adhered to. 2 12
b) In the Common Law Provinces
The principles thus formulated in Britain guided Canadian courts
whenever similar provisions had to be interpreted. As early as 1859,
the Ontario Court of Appeal, Queen’s Bench Division, in referring
to the prerogative writ, held that:
this remedy would be assessible if a statute had declared that a certiorari
…
should not issue, because that prohibition would not be held to apply when
the justices or sessions have entertained a matter not within their juris-
diction 213
Another of the early decisions rendered in the Province of Ontario
on this question dates from 1883.214 It concerned an application for
the issue of a writ of certiorari against a judgment rendered under
the Canada Temperance Act.2 15 The court granted the certiorari in
spite of a clause which expressly prohibited it.21 e
In their recent decisions, 2 17 the Ontario courts were influenced
by the same principles, to which, in any case, the Supreme Court of
Canada gave unqualified approval in Re Toronto Newspaper Guild,
Local 87, and Globe Printing Co. 18 In this case there came before
the court a petition for a certiorari against a decision of the Labour
Relations Board of Ontario. The certiorari was granted, regardless of
the apparently clear restrictive terms of section 5 of the Ontario
Labour Relations Act.21e
211 [1874] L.R. 5 A.C. 417.
212 R. v. Nat Bell Liquors Ltd., [1922] 2 A.C. 128; R. v. Medical Appeal Tri-
bunal, ex p. Gilmore, [1957] 1 Q.B. 574 at 585, 588; Pyx Granite Co. Ltd. v.
Ministry of Housing and Local Government, [1958] 1 Q.B. 554.
213 Hespeller v. Shaw, (1859) 16 U.C.Q.B. 104 at 105-106.
214R. v. Wallace, 4 O.L.R. 127. See also R. V. Eli, [1886] 10 O.R. 727; Re
Holland, [1875] 37 U.C.Q.B. 214.
215 S.C. 1878, c. 16.
216 Ibid., at s. 111.
217tKnapman v. Board of Health for Saltfleet Township, [1955] 3 D.L.R. 248;
McCord and Co. Ltd. v. Ontario Labour Relations Board, [1956] O.R. 645; Ontario
Labour Relations Board, Bradley et al. v. Canadian General Electric Co. Ltd.,
(1957) 8 D.L.R. (2d) 65 at 79; R. v. Ontario Securities Commission, ex p. Bishop,
(1963) 37 D.L.R. (2d) 308.
218 [1953] 2 S.C.R. 18. This case is commented on by E. F. Whitmore, [1953]
Can. Bar Rev., 679.
219 S.O. 1948, c. 51. Now R.S.O. 1960, c. 202 ss. 79, 80. The case shows clearly
that where the courts desire to intervene they ignore privative clauses. See
especially the remarks of Rand J. at 28. See also Jarvis v. Associated Medical
Services Inc. at al., [1964] S.C.R. 497.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 67
The Province of Saskatchewan, by reason of its avant-garde
position as regards economic and social legislation, has experienced
a great deal of litigation on this question. The unanimity of its court
decisions is clearly revealed by the frequent upholding of certiorari
against decisions of the Labour Relations Board, and this in spite
of section 15 of the Trade Union Act, 1944,220 which expressly prohi-
bited it.221 These decisions of the Saskatchewan courts were approved
by the Privy Council in the case of Labour Relations Board of Sas-
katchewan v. John East Iron Works Ltd.222
The courts of the Provinces of Manitoba, Alberta and British
Columbia, as well as those of the Maritime Provinces, have inter-
preted the clauses suppressive of judicial authority in more or less
the same way. Thus, in the case of Town of Dauphin v. Director of
Public Welfare,223 the Court of Appeal of Manitoba held that section
682 of the Criminal Code -22 4 did not prevent recourse to certiorari
in cases where a lower court had acted without jurisdiction. In R. V.
Richmond,225 the Court of Appeal of Alberta, having to decide as to
the effect of section 12 of the Opium Drug Act,226 held that such a
text of law should not apply in cases of excess of jurisdiction. It
restated this principle unequivocally in a recent decision regarding
the public utilities Board of Alberta.227 Brtish Columbia case law
220 Now R.S.S. 1953, c. 259 s. 17.
221 Burton V. Regina City Policemen’s Association Local No. 155, [1945] 3
D.L.R. 437; Labour Relations Board of Saskatchewan V. Speers, [1948] 1 D.L.R.
341; John East Iron Work Ltd. v. Labour Relations Board et al., [1949] 3 D.L.R.
51; Regina Grey Nun’s Hospital Employees Association V. Labour Relations Board
et al., [1950] 4 D.L.R. 775; Marshall Wells Co. Ltd. V. Retail Wholesale and
Department Store Union Local 454, [1955] 4 D.L.R. 591 affirmed by [1956] 2
D.L.R. (2d) 569; Labour Relations Board of Saskatchewan v. The Queen ex rel.
F. W. Woolworth Co. Ltd. et al., [1955] 5 D.L.R. 607.
222 [1948] 4 D.L.R. 673 or [1949] A.C. 1S4.
223 [1956] 5 D.L.R. (2d) 274. See also Creamette Co. of Canada Ltd. v. Retail
Store Employees Local Union 830 et al., [1956] 4 D.L.R. (2d) 78; Re Workmen’s
Compensation Act and C.P.R., [1950] 2 D.L.R. 630; R. v. Sparrow, (1964) 3
C.C.C. 33.
224 No conviction or order shall be removed by certiorari
a) where an appeal was taken, whether or not the appeal has been carried
to a conclusion, or
b) where the defendant appeared and pleaded and the merits were tried,
and an appeal might have been taken, but the defendant did not appeal.
225 (1918) 39 D.L.R. 117.
226 S.C. 1911, e. 17: “No conviction, judgment or order in respect of an offence
against this Act should be removed by certiorari into any of His Majesty Court
of Record”.
227 City of Calgary Home Oil Co. Ltd. V. Madison Natural Gas Ltd. and British
American Utilities Ltd., (1959) 19 D.L.R. (2d) 655, 656.
McGILL LAW JOURNAL
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also contains many decisions having the same effect, 2 and in the
Provinces of Nova Scotia and New Brunswick the courts have very
often made decisions along the same lines. 229
Privative clauses have therefore been interpreted rather restrict-
ively by both English and Canadian common law provinces’ courts
and it would seem to be a well-established fact that such legislative
provisions should not apply in cases of exceeded jurisdiction.
c) In Quebec
The nature and scope of the authority enjoyed in Quebec by
English and Canadian decisions in matters of public law have been
discussed elsewhere. 230 It must merely be pointed out here that the
case law of the Common Law Provinces has been cited and applied
consistently by the Quebec Courts, which have in fact reached solutions
identical with those of the other provinces.
Quebec decisions on this question may be divided chronologically
into two distinct periods, the first from before Confederation up to
the 1920’s, the second from then on and still current, the point of
demarcation between the two being the Alcoholic Liquor Act 231
which included the first modern type of privative clause in Quebec.
228 Labour Relations Board of B.C. v. Canada Safeway Ltd., [1952) 3 D.L.R.
855 affirmed by [1953] 2 S.C.R. 46; Regina and MoDonell v. Leong Ba Chai,
[1952] 4 D.L.R. 715 affirmed by [1954] 1 D.L.R. 401; Re Hotel and Restaurant
Employees International Union, Local 28 v. Labour Relations Board, [1954] 1
D.L.R. 772; Martin and Robertson Ltd. v. Labour Relations Board, [1954] 2 D.L.R.
622; Re British Columbia Hotel Employees Union, local 260, and Labour Relations
Board, [1956] 2 D.L.R. (2d) 460; Battaglia v. Workmen’s Compensation Board,
(1960) 32 W.W.R. 1; Re Workmen’s Compensation Act: Re Ursaki’s Certiorari
and Mandamus Application, (1960) 33 W.W.R. 261; Society of the Love of Jesus
v. Smart, [1944] 2 D.L.R. 551.
229 Re Lunenburg Sea Products Ltd., (1947) 3 D.L.R. 195; R. v. Labour Rela-
tions Board of Nova Scotia, [1951] 4 D.L.R. 227; Re Labour Relations Board of
Nova Scotia, [1952] 3 D.L.R. 42 affirmed by Smith and Rhuland Ltd. v. R. e.. rel
Price Andrews et al., [1953] 2 S.C.R. 95; Ex. p. Hill, (1891) 31 N.B.R. 84; Re
Canadian Fish Handlers’ Union, local 4, [1952] 2 D.L.R. 621.
230 See E. Lareau, Histoire du Droit Canadien, 54; F. P. Walton, The Legal
System of Quebec, (1913) 33 Can. Law Times, 280 at 281, 287, 289; G. E. Le Dain,
The Supervisory Jurisdiction in Quebec, [1957] Can. Bar Rev. 788 at 796; L. P.
Pigeon, Ridaction et interprdtation des lois, 35 et seq… (cours donns en 1965
aux conseillers juridiques du gouvernement du Quebee); Louis A. Pouliot, L’au-
torit6 de la jurisprudence dans notre droit, Etudes Juridiques en Hommage c M.
le Juge Bernard Bissonnette, (Montr6al, 1963) 475 at 480. See also Chaput V.
Romain, [1955] S.C.R. 854, per Kellock J.; Lynch v. Poisson, [1955] C.S. 20 at
27, per Challies J.; Langelier V. Giroux (1932) 52 B.R. 113 at 116, per Dorion J.;
Canadian Copper Refiners Ltd. v. Labour Relations Board, [1952] C.S. 295 at
307 per Choquette J.
231 S.Q. 1921, c. 24 s. 131.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 69
i) Older Case Law
The privative clauses in older statutes were not as effective as
they are now, and generally were content to exclude the possibility
of attack by certiorari on the decisions of a magistrate, Justice of
the Peace, or other executive officers.
From the very first, the Quebec courts recognized the principle
that there can be no limited jurisdiction without review.232 As early
as 1863 the Superior Court, in ex p. Church,233 granted a certiorari
against a decision by a Justice of the Peace, in spite of the fact that
recourse to certiorari was prohibited by the statute under which the
conviction occurred.23 4
A few years later, Mackay J. of the Superior Court, in the case of
ex p. Morrisson,23
5 was confronted with an application for a certiorari
against a decision made under an Act Providing for the Organization
of the Departnent of the Secretary of State of Canada,36 section 21
of which excluded recourse in the following terms:
The said Secretary of State, or such officer or person as aforesaid, shall
cause the judgment or order against the offender to be drawn up, and
such judgment shall not be removed by certiorari or otherwise, or be ap-
pealed from, but shall be final.
Notwithstanding this unequivocal text of law, the judge granted the
certiorari.
In the case of ex p. Lalonde,237 the Superior Court decided also
for the certiorari in spite of section 15 of an Act to amend the Agri-
cultural Act,238 which expressly prohibited it. Similarly, Meredith J.
of the Superior Court, in ex p. Matthews,2 39 granted a certiorari
against a decision of the Recorder of the City of Quebec, regardless
of the fact that such recourse was expressly prohibited by the
statute.2 40 The judge held that the Recorder, in acting without juris-
diction, had placed himself beyond protection by the statute. In 1890,
232 Hamtilton v. Fraser, (1811) Stuart’s Reports, 21.
23313 R.J.R.Q. 49 or 14 L.C.J. 318.
234 Intemperance Repression Act, R.S.L.C. 1861, c. 6 s. 49.
2351 R.L. 437.
236 S.C. 1868, c. 42.
237 (1871) 15 L.C.J. 251.
2s C.S. 1861, c. 30 s. 15:
No judgment rendered in virtue of the said Act or of this Act shall be con-
tested or set aside by writ of certiorari.
239 (1875) 1 Q.L.R. 353.
240 Quebec Corporation Act, S.Q. 1868, c. 33 s. 19:
, and no appeal or writ of certiorari shall lie or be taken from any deci-
…
sion given in the said recorder’s court, in any civil case before the said court,
to any other court in this province, any law to the contrary notwithstanding.
241 16 Q.L.TR. 210.
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Larue J. in the case of Nadeau. v. La Corporation de L6vis, 241 de-
clared:
Lors mbme que le certiorari serait enlev6 expressdment, n~anmoins ce writ
s’accorde, lorsqu’il y a absence de juridiction de la part d’un tribunal in-
fdrieur.242
This was the opinion that prevailed thereafter ;243 it was approved
by Bruneau J. in the case of Dgm6tr6 v. La Citg de Montrdal,244
where he stated that even an express statutory prohibition did not
remove the right of recourse to certiorari, not only in cases of excess
of jurisdiction or of the illegal constitution of the tribunal, but also
in all cases where the decision of the inferior tribunal had been
obtained -by fraud. 245
ii) Modern Case Law
The constant growth of the Administration led the Quebec Legis-
lature to extend to various administrative ,bodies the protection of
privative clauses which had previously been restricted mainly to
magistrates and Justices of the Peace. In modern times the restrictive
judicial interpretation of these clauses continued, and even developed
further, stimulated by increasingly severe privative clauses designed
for the most part to protect provincial administrative action against
any intervention by the courts.
However the appearance in the Alcoholic Liquor Act 246 of the
first modern privative clause took some Quebec judges by surprise,
and a dictum of Lord Sumner -in the case of R. v. Nat Bell Liquor
Ltd., 47 persuaded them to accord strict respect to privative clauses
2421 Ibid., at 212.
243 Therrien v. McEachern, (1898) 4 R. de Jur. 87; Mathieu v. Wentworth,
[1899] 15 C.S. 504. In the judgment rendered in the latter case, Lemieux J. cited
two unreported cases to the same effect. They are, Fournier v. Darche, [1868],
per Mondelet J. and South Eastern Reg. v. Les Commissaires d’Ecoles, [1866],
per Sicotte J.; See also Desormeaux V. La Corporation do la Paroisse do Ste-Thd-
rase, [1910] 19 B.R. 481 at 499.
244 [1911] P.R. 232. See also Boivin v. Sdnical, (1912) 14 P.R. 183, per Beau-
doin J.
245 1911 P.R. 232 at 234.
246 S.Q. 1921, c. 24 s. 131.
247 [1922] 2 A.C. 128 at 162: “… and it follows prima facie that Canadian
Legislation, affecting summary convictions and the powers of Superior Courts
to quash them upon certiorari, is to be construed, in accordance with the older
English decisions, as limiting the jurisdiction by way of certiorari only where
explicit language is used for that purpose… Of course, it is competent for the
Legislature to go further than this, and, where the language used shows such
an intention, the presumption above stated is negative”.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 71
and to see that they were fully effective.248 This literal interpretation
regained favour at intervals 240 but there can be no doubt that it is
contrary to the trend of modern case law.2 50
In 1953 the Supreme Court of Canada rendered its now famous
decision in the case of L’Alliance des Professeurs Catholiques de
Montreal V. La Commission des Relations Ouvri6res.25′ It held that
the Board had gone beyond its jurisdiction in depriving L’Alliance
des Professeurs of its right to be recognized as negotiating agent,
without first affording it an opportunity of being heard, not only
as to the fact but also as to the law; and then, reversing a judgment
of the Quebec Court of Appeal,252 it granted a writ of prohibition
against the Board.
It should be noted that when this dispute was initiated, section
41a had not yet been added to the Labour Relations Act and that it
was by virtue of section 36 of that Act that the Board enjoyed the
248 Damne Wafer v. Perrault, [1923] 61 C.S. 205, per Martin J.; Dub6 V. La-
vwnde, [1929] 32 P.R. 151. These two cases refusing recourse to prerogative
writs, even where jurisdiction had been exceeded, provoked indignation in certain
circles. In 1935, L. Calder published Comment s’6teint la libert6, in which he
criticized vehemently both decisions.
249In the case of Johnson Woolen Mills Ltd. v. Southern Canada Power et le
Secritaire de la Province, [1945] B.R. 133 at 137, full effect was given to the
privative clause contained in art. 87a C.C.P. See also Daigneault V. Meunier,
[1946] C.S. 437 at 439, per Lazure J.; MoFall v. Lafl~ehe, [1951] P.R. 378;
Commission des Relations Ouvriares de la Province de Qu6bec v. L’Alliance des
Professeurs Catholiques de Montreal, [1951] B.R. 752. See especially the remarks
of St. Jacques J. at 769; Coca-Cola Ltd. v. Ouimet, [1950] Montreal C.S. No.
32514, May 13th; Price Brothers and Co. Ltd. v. Letarte, [1953] B.R. 307 at 316,
322; Cortler v. Lamarre, [1954] C.S. 225, per Pr6vost J.; Transport Boischatel
tel Lt~e V. Commission des Relations Ouvri~res [1957] B.R. 589 at 590. In this case
St. Jacques, J. shows himself far less explicit than in the Alliance case; Lagre-
nade Shoes Manufacturing Ltd. v. Commission des Relations Ouvriares, [1961]
C.S. 305 at 309; Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46 at 61, per
Anglin J.:
I find here a positive and clear enactment that the jurisdiction of the Board
shall be exclusive and nothing to warrant a refusal to give to that word its
full effect;
Langlais v. S.R.B., [1932] 52 B.R. 282 at 291, 294; Robitaille et autres v. Les
Commissaires d’Ecoles de Thetford-les Mines, [1965] R.D.T. 345 at 348, per
Cannon J.
250 See Furness Withy Co. Ltd. v. McManamy, [1943] C.S. 276; Grondin V. Les-
sard et Roy, [1948] C.S. 368; Canadian Copper Refiners Ltd. v. Labour Relations
Board, [1952] C.S. 295, per Choquette J.; St. Aubin v. Courchesne, [1952]
Montreal C.S. No. 318315, July 24th; L’Association Patronale des Manufactures
de Chaussures de Quebec v. Blois, [1951] C.S. 453: Pionner Laundry and Dry
Cleaners Ltd. V. Minister of National Revenu [1940] A.C. 127.
251 [1953] 2 S.C.R. 140.
252 [1951] B.R. 752.
McGILL LAW JOURNAL
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powers, immunity and privileges of a commissioner appointed under
the Public Inquiry Commission Act.2 5 3 No writ of prohibition or
injunction was supposed to have the power to thwart or halt its
proceedings. However, the Supreme Court, determined to right an
injustice, ignored the privative clause..2 54 Quebec judges, taking ad-
vantage of the opportunity afforded them by this decision, granted
writs of prohibition and of certiorari more and more frequently
against decisions of administrative trbunals, more particularly the
Labour Relations Board, and this notwithstanding unequivocal pri-
vative clauses. 250
Thus, in the case of John Murdock Ltd. v. La Commission des
Relations Ouvri~res,2 50 Boulanger J. spoke of the effect which should
be given to the privative clause in section 41a of the Labour Rela-
tions Act and expressed the following forceful opinion:
Si l’article 41a de ]a loi des Relations Ouvri6res, comme le pr6tend ]a Com-
mission, autorise cette derni~re A violer impun6ment la loi, ce texte est
immoral et contraire h l’ordre public et, s’il n’y a pas de recours contre los
actes ill6gaux et injustes de la Commission, autant vaudrait proclamer ce
dogme tout de suite de l’infaillibilit6 de ]a Commission et l’excommunication
de ceux qui osent mettre cette infaillibilit6 en doute.2 57
In another case, the Syndicat National des Travailleurs de la
Pulpe et du Papier de la Tuque Inc. V. La Commission des Relations
Ouvrires de la Province de Quibec,25 three dissenting judges of the
Court of Appeal, Hyde, Owen and Choquette JJ., declared categori-
cally that section 41a of the Labour Relations Act does not apply
when the Commission exceeds its jurisdiction. The remarks of Cho-
quette J. were exceptionally clear and concise on this point:259
253 R.S.Q. 1941, c. 9 s. 17.
254 See [1953] 2 S.C.R. 140 at 154, per Rinfret C.J.
255 Brique Citadelle v. Gagn6, [1954] C.S. 262 at 267, per Dion J.; Lynch V.
Poisson [1955] C.S. 20, per Challies J.; Miron et Frares Ltde v. Commission des
Relations Ouvriares, [1956] C.S. 389; Canadian Ingersol-Rand Ltd. V. Commis-
sion des Relations Ouvrigres, [1958] C.S. 217; Hdpital St. Luc. v. Building Service
Employees, [1958] C.S. 606 at 612; Fraterniti des Policiers de Granby V. Delany,
[1961] C.S. 367 at 369; Cie Ligar6 Lte V. Commission des Relations Ouvriarcs,
[1962] Que. C.S. 281; Boulanger V. La Commission Royale d’Enqudte, Quebec
C.S. No. 109859, per Dorion J. reversed by [1962] B.R. 251; Service Larammdc
Inc. V. Marchand et Procureur Ggnjral, [1955] St. Frangois No. 13126, November
13th.
256 [1956) C.S. 30.
257 Ibid., at 36.
25$ [1958] B.R. 1. See also Price Brothers v. Letarte [1953] B.R. 307, per
Barclay J. dissenting; The E.B. Eddy Co. V. Commission des Relations Ouvriares
de Quebec, [1958] B.R. 542.
259 [1958] B.R. 1 at 50.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 73
S’il est vrai que l’Art. 41a pris isolement, supprime: 1- L’appel et la revision
des d~cisions de ]a Commission; 2- Les brefs de prerogative contre la Com-
mission ou ses membres ‘agissant en leur qualit6 officielle’; et 3- L’article
50 C.P.C.; A leur 4gard, il n’en est pas moins vrai que d’autres dispositions
de la m~me loi accordant des droits certains aux personnes on associations
qu’elle indique, imposent des obligations pr~cises i la Commission intim4e
et fixent aux pouvoirs de celle-ci des limites qu’elle ne saurait franchir.
C’est cette contradiction de la loi elle-mgme –
cette absurdit6, dirait l’ancien
juge-en-chef du Canada –
qui rend inop~rante la clause suppressive de
PART. 41a, dans le cas d’incomp~tence ou d’exc~s de pouvoirs de la Com-
mission et laisse subsister le bref de prohibition, m~me si ce bref ne peut
se concevoir sans unoexc~s de juridiction.,
Recently, Batshaw J. -of the Superior Court, declaring himself
60
bound by the decisions of the Supreme Court in the Alliance Cas
and in Re Toronto Newspaper Guild, Local 87, and The Globe Printing
Co.,2 61 rejected the total inscription in law of counsel for the Labour
Relations Board to the effect that section 41a protected the Board’s
decision against any intervention by the courts, even
in cases
where its jurisdiction was exceeded.26 2 The Court of Appeal of
the same case,2 3 affirmed Batshaw J.’s
Quebec, in -its decision in
decision on the total inscription in law,264 quashed the judgment of
the Superior Court on the merits 263 and granted a writ of prohibition
against the Board, declaring that it had exceeded it jurisdiction and
that consequently, section 41a offered no obstacle to such relief.2 66
Finally, in the recent case of Slax Inc. v. La Commission des Rela-
tions Ouvri~res de Qu6bec, 2 7 Brossard J. of the Superior Court ex-
pressed himself as follows regarding the effect which should be given
to the privative clause in section 41a:
Nonobstant les dispositions suppressives de l’autorit6
la
Cour Sup6rieure est investie contenues en
‘art. 41a de la Loi sur les rela-
tions ouvri~res de Qu~bec, ]a Cour Sup6rieure a juridiction rations materiae,
‘art. 48 C.P.C., et rations personae, en vertu de l’art. 50 C.P.C.
en vertu de
‘art. 36 de la Loi sur les tribunaux judiciaires, pour reconnalitre comme
et de
judiciaire dont
260 [1953] 2 S.C.R. 140.
261 [1953] 3 D.L.R. 561 or [19531 2 S.C.R. 18.
2 62 Burlington Mills Hosiery Co. of Canada V. La Commission des Relations
Ouvrigres, [1960] P.R. 64. See Laurent E. B6langer, Corps administratifs – Brefs
de Prgrogative, [1964] McGill L.J., 217.
263 [1962] B.R. 469.
264 Ibid., at 475, per Choquette J.
205 Montreal S.C. No. 412695, January 14th 1960, per Bertrand J.
260 This decision of the Court of Queen’s Bench of Quebec was reversed by the
Supreme Court of Canada at [1964] S.C.R. 342, but not on the matter of privative
clauses. The Supreme Court of Canada simply decided that the Labour Relations
Board had not exceeded its jurisdiction.
267 [1964] R.D.T. 1.
2 68 Ibid., at 4.
McGILL LAW JOURNAL
[Vol. 13
6tant nul et sans effet juridique tout acte de ]a Commission des relations
ouvribres ou de ses membres qui est ultra vires des pouvoirs de cette Com-
mission ou de ses membres.26s
Consequently the Quebec courts have opposed legislative pro-
visions which aim at suppressing their power of review over the
lower courts, administrative tribunals or agencies, by interpreting
them restrictively. Taking into consideration the restrictive meaning
which has long been given by the courts to clauses suppressive of
judicial authority, it would seem that in enacting such provisions
the Legislature intends nothing more than to remove the admin-
istrative tribunals concerned from the power of review of the
Superior Court in case where they do not exceed the authority specifi-
cally assigned to them by statutes.269 No other interpretation of these
provisions seems possible without giving to the law a meaning which
it does not possess.
The Quebec Legislature seems to have conceded the point in the
new Labor Code by inserting in section 121 the words “relating to
the exercise of their functions”. As Casey J. pointed out in the recent
case of Commission des Relations du Travail de Qu6bec V. Civic
Parking Centre Ltd.270 “the text of the law now justifies the propo-
sition -that if the Board steps outside its field it will not enjoy the
protection of the privative clause”. 271
It is submitted however, that this sort of privative clause cannot
be really effective for it does not prevent the Courts which want to
intervene in a particular case from considering the irregularities
that occur -in the exercice of jurisdiction as justification for an attack
on jurisdiction. 272 This happens particularly in case where there is
breach of the rule audi alteram partem, i.e., when the Board acting
within its jurisdiction condemns someone unheard. The courts then
generally consider “that -the violation of this rule vitiates the proceed-
ings in which it occurs and entitles -the party aggrieved to attack the
269 A similar opinion was expressed by Rand J. in Re Toronto Newspaper Guild
Co., local 87, and Globe Printing Co., [1953] 3 D.L.R. 561 at 572:
Any other view would mean that the Legislature intended to authorize the
Tribunal to act as it pleased, subject only to the legislative supervision…
The acquiescence of the Legislature, particularly during the past 50 years,
in the rejection by the courts of such view confirms the interpretation which
has consistently been given to the privative clauses.
270 [1965] B.R. 657.
271Ibid., at 663.
272 This type of privative clause only forces the courts to stretch the concept
of jurisdiction and to rationalize into defects of jurisdiction many errors which
should be considered as mere errors in the exercise of jurisdiction. This contributes
largely to the obscurity that pervades that part of administrative law.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 75
decision”..2 73 Naturally, as Casey J. so well pointed out, “if audi
alteram partern were no more than a rule of procedure the Board
would be covered by section 121”.274 But he declared himself “not
prepared to decide whether the Legislature may eliminate this doc-
trine from our law, as it may well have tried to do by the wording
of section 121”.275
Moreover, it is submitted that section 122 of the Labour Code,276
which empowers two judges of the Court of Queen’s Bench to annul
summarily, upon petition, any writ, decree or injunction directed
against the Labour Relations Board despite section 121 which ex-
pressly prohibits them, does not totally suppress the review of the
courts; for the Legislature does not require, but merely permits the
two judges of the Court of Appeal to annul them. This text is there-
fore intended simply to stem the flood of useless prerogative writs
that have assailed the Board in the past few years. It is in order to
avoid lengthy contestations on the merits that power has been given
to the two judges to quash them summarily when they should mani-
festly not have been issued. This does not prevent the judges from
upholding these writs when they feel that the latter have been issued
for a good reason.
Such was the case in the very recent decision of Houghco Products
Ltd. v. Commission des Relations du Travail,277 where this provision
came for the first time under judicial interpretation. Owen J. of
the Quebec Court of Appeal, speaking on behalf of his colleague
Badeau J., declared:
I see no substantial difference in the wording of the ‘clauses privatives’
contained in sect. 41a of the Quebec Labour Relations Act and sect. 121 of
the Quebec Labour Code.278
Further on, he added:
There is strong authority for the proposition that if a body such as the
Quebec Labour Relations Board exceeds its jurisdiction the privative clauses
such as sect. 121 of the Quebec Labour Code do not apply.279
He finally concluded:
This power or discretion given to two judges of this Court by sect. 122 of
the Quebec Labour Code which, in this case, can be said to exceed the
powers of the full Court which has no power to hear appeals in matters of
certiorari, should in my opinion be exercised sparingly. Unless it is clear
that there was no excess of jurisdiction, the two judges of this Court should
273 [1965] B.R. 657 at 663, per Casey J.
274 Ibid.
275 Ibid.
276 R.S.Q. 1964, c. 141.
277 [1965] R.D.T. 252.
278 Ibid., at 253.
279 Ibid., at 256.
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not usurp the functions of the Superior Court by annulling the writ of
certiorari which has been issued and, thereby, preventing any decision on
the merits.280
Subsequently, in the case of Labour Relations Board v. J. Pascal
Hardware Co. Ltd., Choquette J. also defended the principle of judi-
cial review:
J’ajoute que je ne vois aucune difference essentielle entre l’ancien article
41a et le nouvel article 121, si ce n’est que l’ancien 6tait d’ordre encore plus
g~ndral que le nouveau.
Comment alors interpreter l’article 122 portant que deux juges do la Cour
du Banc de la Reine peuvent sur requite annuler sommairement tout bref
ou tout ordonnance ou injonction d~livrde ou accordde h l’encontre de l’article
pr6cedent ? Les mots article pr6c6dent doivent s’entendre L mon avis, do
l’article pr6cedent tel qu’interpr&t6 par la jurisprudence en matibre do
clauses dites privatives. 281
However, in the same case, Taschereau J. advocated a much more
restrictive interpretation.282 In doing so, he merely corroborated the
opinion previously given by Brossard and Casey JJ. in Commission
des Relations Ouvriares v. Civic Parking Centre Ltd.2 3 Indeed in this
case, Brossard J., advocating a restrictive interpretation of the prin-
ciple of judicial review and therefore of ss. 121 and 122 of the Labour
Code, stated :284
Ce n’est plus uniquement ]a juridiction de la Commission quo le l6gislateur
entend prot~ger, mais ce sont aussi et surtout los actes, proc6dures et d6-
cisions qu’elle fait ou rend ‘en rapport’ avec l’exercice de sa juridiction. La
Commission et ses membres, ainsi que leurs actes, demeurent sujets A, entre
autres procedures, celle du certiorari d~s lors qu’il n’xiste aucun lien entre
ces actes et ]a juridiction, tels, h titre d’exemples extremes, l’octroi de
dommages et int~r~ts ou le prononc6 d’une s6paration de corps, mais si un
tel rapport existe, le l6gislateur entend soustraire ces actes, proc6dures et
d4cisions au droit de ‘contr8le’ et de surveillance des tribunaux, pour sup-
primer los d~lais et retards inhrents aux procedures devant los tribunaux
ordinaires.
Further on, he added :285
L’effet de la derni~re manifestation d’intervention du l~gislateur exprim6e
par l’article 121 doit 6tre de rendre los tribunaux circonspects dans Pap-
plication par eux d’un droit d’intervention pouvant tirer sa source de textes
de loi ou de concepts juridiques entrant en conflit avec los textes forniels du
Code du travail; les tribunaux n’ont pas A corriger la loi lorsqu’elle est
claire; ils ont le devoir de l’appliquer; tout particuli~rement ils ne peuvent
attribuer A aucun tribunal provincial une juridiction que ]a L~gislature
provinciale lui refuse.
280 Ibid.
281 [1965J B.R. 791 at 795.
282Ibid., at 798-799.
283 [1965J B.R. 657.
284 Ibid., at 665.
285Ibid., at 667.
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 77
Nous ne pouvons non plus m~connaltre que, par ces clauses privatives par
lesquelles il entend prot~ger le libre exercice de leurs fonctions par les
membres des tribunaux dits administratifs, le 16gislateur a exprim6 sa con-
fiance en l’esprit de justice et de bonne foi des juges et autres personnes
qui president ces tribunaux, notamment, dans le cas de la Commission des
l’article 117 du Code du travail, le
relations de travail, en lui accordant,
droit de reviser ou rdvoquer pour cause toute ddcision et tout ordre rendus
par elle.
The foregoing shows that the interpretation given by the courts
to ss. 121 and 122 of the Labour Code up to now is contradictory.
One must hope that further light will be brought on soon. For the
time being, it seems that the principles on this matter still remain
those stated by Rinfret J. in the Alliance case:
Toute restriction aux pouvoirs de contr6le et de surveillance d’un tribunal
sup6rieur est n~cessairement inop6rante lorsqu’il s’agit pour lui d’empbcher
l’exdcution d’une dcision, d’un ordre ou d’une sentence rendue en l’absence
de juridiction. 28 6
However, the question whether a privative clause places any limit
in fact on the power of supervision and review of the Superior Court
which would otherwise be exercised, has been squarely raised in Que-
bec until the recent case of La Commission des Ecoles Catholiques de
Shawinigan v. Roy.-287 There it was held by Laroche J. of the Superior
Court that the privative clause contained in the Act respecting Munic-
ipal and School Corporations and their Employees, 2 8 protected the
Council of Arbitration set up under this Act from having its decisions
quashed by certiorari on the grounds provided for by. article 1293
(la) (2), (3) of the former Code of Civil Procedure,289 but not on
those provided for by (I) of the same article :290
L’Art. 15 par. b prdcit6, ne prive pas du recours au certiorari, mais en
restreint le champ d’application au premier cas pr~vu par 1293 C.P. (Lors-
qu’il y a ddfaut ou exc6s de juridiction). En d’autres termes, la ‘clause pri-
vative’ n’an6antit pas le droit de ‘contrble’ de la Cour Sup~rieure, mais en
286 L’Alliance des professeurs catholiques de Montreal v. La Commission des
Relations Ouvri~res de la province de Quebec, [1953] 2 S.C.R. 140 at 155. See
also : B. Starck, Aspects juridiques du syndicalisme qudbcois: l’acciditation,
[1966] Can. Bar Rev., 173 at 225.
287 [1965] C.S. 147.
288 S.Q. 1949, c. 26 s. 15, amended by S.Q. 1952-53, c. 15 s. 4, now Labour Code,
R.S.Q. 1964, c. 141 s. 121.
289 Art. 1293: “The remedy lies, nevertheless, only in the following cases:
(la) When the decision of a court entails grave injustice amounting to
fraud;
(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”.
290 Art. 1293 (1): “When there is a want or excess of jurisdiction”.
McGILL LAW JOURNAL
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2 9 1
limite l’exercice aux cas les plus graves d’abus de pouvoirs et d’excbs do
juridiction. I1 ne suffit pas qu’il ait M commis des irr~gularit~s proc~du-
rales, que le tribunal inf6rieur ait mal interpr~t6 un point de droit, certains
61ments de la preuve, mais il faut que ce tribunal inf6rieur ait abus6 de
ses pouvoirs on qu’il se soit arrog6 des pouvoirs que la loi ne lui destinait
pas.
The case still leaves unsettled the question of the effect of priv-
ative clauses on error of law on the face of the record.292 The latter
would appear to be another logical point which might give rise to the
whole question of the efficacity of privative clauses in relation to
defects within jurisdiction. However this criterion for review has
not yet been used as such in Quebec administrative law.
In conclusion, it appears that the Quebec Legislature, in enacting
privative clauses, has not yet seen fit to use language so clear as to
make judicial interpretation impossible and to compel the acquies-
cence of the courts,293 since that would necessitate the use of terms
which the political morality of the times would condemn as indecent,
immoral, and dictatorial.
An examination of Canadian and especially Quebec case law has
revealed that the method of statutory interpretation, which consists
in denying the intent of the Legislature expressed in these clauses
by affirming that such intent cannot be inferred from the text in
question, has in fact been the real stumbling block which permitted
our judges to offer an almost systematic resistance to clauses sup-
pressive of judicial authority.
In fact, although Canadian and Quebec judges have repeatedly
agreed 294 that the Legislature could exclude, by clear and explicit
words, the superintending and reforming power of the Superior Court
under art. 33 of the Code of Civil Procedure, one very seldom comes
across instances where the words of the Legislature in enacting
privative clauses were held so clear and explicit as to exclude that
291 [1965] C.S. 147 at 151.
292 There would appear to be a certain conflict of opinion in the common law
provinces of Canada as to whether privative clauses exclude recourse to certiorari
for an error of law on the face of the record. Compare: R. v. Labour Relations
Board of Saskatchewan, ex p. Tag’s Plumbing and Heating Ltd., (1962) 34 D.L.R.
(2d) 128; Re Ontario Labour Relations Board, Bradley V. Canadian General
Electric Co. Ltd., (1957) 8 D.L.R. (2d) 65; with R. v. Canada Labour Relations
Board, ex p. Federal Electric Corporation, (1964) 44 D.L.R. (2d) 440.
293 See G. Le Dain, The Supervisory Jurisdiction in Quebec, [1957] Can. Bar
Rev., 788 at 789; John Willis, Administrative Law in Canada, [1961] Can. Bar
Rev., 251 at 257.
294 Rex v. Gingras, 1 R.J.R.Q. 413 at 414; Commission des Relations Ouvriares
de la Province de Quebec v. L’Alliance des Professeurs Catholiques de Montreal,
[1951] B.R. 752 at 769, per St. Jacques J.; Lynch V. Poisson, [1955] C.S. 20 at
29, per Challies J.; Syndicat National des Travailleurs de la Pulpe et du Papier
No. 1] LEGISLATIVE LIMITATIONS ON COURTS’ POWER 79
power. In the case of Canadian Copper Refiners Ltd. v. Commission
des Relations Ouvri~res,295 Choquette J. expressed himself unequi-
vocally on this point:
Pour supprimer cette autorit6 mbme dans le cas d’excbs de pouvoir ou d’excbs
de juridiction, il faudrait que le l~gislateur le dise express6ment ou s’ex-
prime en des termes qui ne souffrent aucune discussion; mais jusqu’ici aucun
Parlement, aucune L6gislature ne semble avoir cru sage, du moins en temps
normal, de dcr~ter cette suppression totale.
It is therefore suggested that the only way to prevent the courts
of justice from exercising their power of review over administrative
officers, tribunals and agencies would to expressly deny them that
power by law, being very careful to add “even in cases of excess, lack
or complete refusal of jurisdiction.”2 96 Even then the reaction of the
courts would be most interesting to observe.2 9
7
CONCLUSION
A court of law has nothing to do with a Canadian Act of Parliament law-
fully passed except to give it effect according to its tenor.29 8
not even in our
Acts of Parliament and Legislature are not sacrosanct –
democratic system. The right of the subject to have his rights determined
by a court of law is, in my view, more sacred than an Act of a Legislature.
It is said that Parliament is supreme. That is too wide a statement. Both
Parliament and Legislature can only legislate within the limits prescribed
by our Constitution.2 99
v. Commission des Relations Ouvriares, [1958] B.R. 1 at 24, per Hyde J.; John
East Iron Work Co. Ltd. v. Labour Relations Board of Saskatchewan, [1949] 3
D.L.R. 51 at 64; Bennett and White (Calgary) Ltd. V. Municipal District of Sugar
City No. 5, [1951] A.C. 808, 809, 812; Balfour v. Malcom [1842] 8 CL. & F. 485
at 500.
295 [1952] C.S. 295 at 298.
290 As was recently pointed out by Spence J., of the Supreme Court of Canada
in the case of Jarvis V. Associated Medical Services Inc. et al., [1964] S.C.R.
497 at 524:
2 9
Until the relevant legislative enactment expressly prohibits the Superior
Court’s investigation of whether the inferior tribunal has exceeded its juris-
diction and so acted beyond any power granted it by the Legislature, I
conceive it the duty of the Superior court to litigant to exercise such function.
7 Moreover, it would be interesting to observe the reaction of the courts if
they were confronted with a clause giving to an administrative tribunal an
exclusive jurisdiction to decide questions preliminary or collateral to its juris-
diction, i.e., whether or not it has jurisdiction. See R. v. Ontario Labour Relations
Board, ex p. Taylor, [1964] 41 D.L.R. (2d) 456. See also T. G. Pink, Judicial
“Jurisdiction” in presence of Privative Clauses, [1965] U. of T.F.L. Rev., 5 at 12-13.
298Att.-Gen. for Ontario v. Att.-Gen. for Canada, [1912] A.C. 571 at 583, per
Loreburn J.
at 277, per Manson J.
299 Farrell et al. v. Workmen’s Compensation Board, (1960) 24 D.L.R. (2d) 272
80
McGILL LAW JOURNAL
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These two opinions, the one uttered by a Lord of the Judicial
Committee of the Privy -Council and the other by a judge of the
Supreme Court of British Columbia, illustrate very well the contro-
versy between the Legislature and the Judiciary on the question of
judicial review of administrative action, a controversy which imperils
the very existence of that review.
In Canada, a court of justice cannot attack a law -which lies within
the jurisdictional competence of the authority which enacted it,
except when that law has not received the full assent of the parties in
dicated by the British North Americ. Act as being essential to the
legitimate process of law-making.300 Subject to these conditions, both
federal and provincial legislators have sovereign power in the ela-
boration of any legislative measure which is within the limits of
their respective legislative competence.
Consequently, it seems that in point of strict law, it is possible
for the Quebec Legislature, by virtue of the almost absolute sovereign-
ty it enjoys within the limits of its own jurisdictional competence,
to suppress totally the common law judicial power of review over
the Administration’s activity, without the judges being able to attack
such a measure. Such a legislative attitude would not run counter
to any constitutional principle, provided of course that it met the
requirements of section 96 of the B.N.A. Act.
By means of ever improved privative clauses, the Quebec Legisla-
ture has frequently attempted to suppress the authority of the courts
of justice over the Administration’s acts and decisions. However,
restrained mainly by political considerations, it has never dared to
draw up these clauses in absolutely clear fashion which would leave
no room whatever for judicial interpretation. These clauses have
never, in Quebec administrative law, proved to be barriers behind
which the Administration could entrench itself in complete immunity.
The courts have very often been able to get round them without too
much difficulty by clever interpretation of the statute. The effect of
the clauses, although not quite negligible, has never been very power-
ful.
Consequently, even though the common law judicial power of
review is sometimes restricted by a clause suppressive of judicial
authority, there exists in Quebec a quite definite and sometimes fairly
vigorous review by the courts over the activities of the Administration.
300 In the case of a law which proceeds from the Legislature of Quebec,
the necessary parties are: the Legislative Assembly, the Legislative Council
and the Lieutenant-Govrnor. See the B.N.A. Act, ss. 71, 92.
