COMMENTS
COMMENTAIRES
Martineau and Butters v. Matsqui Institution Inmate
Disciplinary Board’: Its Potential Impact on the Jurisdiction
of the Trial Division of the Federal Court
Introduction
This controversial decision of the Supreme Court of Canada has
already been dealt with in at least two Canadian legal periodicals.2
My purpose in writing this piece is not to go over all of the same
ground canvassed by Professors Price and Janisch, but rather to
concentrate on an aspect of the decision which has potentially
significant ramifications for the availability of judicial review
from the Federal Court: is there any possibility of seeking judicial
review on procedural fairness grounds in the Trial Division if the
matter is not one over which the Federal Court of Appeal has ex-
clusive, original judicial review jurisdiction?3
1 (1977) 14 N.R. 285 (S.C.C.).
2 Price in Doing Justice to Corrections? Prisoners, Parolees and the Cana-
dian Courts (1977) 3 Queen’s L.J. 214, 267-76, discussed this case in terms of its
ramifications for the law of corrections. Janisch in What is “Law” – Directives
of the Commissioner of Penitentiaries and Section 28 of the Federal Court Act
– The Tip of the Iceberg of “Administrative Quasi-Legislation” (1977) 55 Can.
Bar Rev. 576, commented on the interpretation the Supreme Court gave to the
words “required by law” as they appear in s.28(1) of the Federal Court Act,
S.C. 1970-71-72, c.1.
3At this point, I should note that this issue is not overlooked in Professor
Price’s comprehensive article. See particularly, supra, note 2, 220, 228-29, 241-
42, 248, 275-76, and 283-84. I should also note that in this comment. I am not con-
cerned directly with the arguably more general question of whether certiorari
is available from the Federal Court Trial Division. This matter is canvassed
not only in the Evans-Fera debate in this Law Journal (see Fera, Conservatism
in the Supervision of Federal Tribunals: The Trial Division of the Federal
Court Considered (1976) 22 McGill L.J. 234; Evans, The Trial Division of the
Federal Court: An Addendum (1977) 23 McGill LJ. 132; Fera, Certiorari in the
Federal Court and Other Matters: A Reply to the “Addendum” (1977) 23
McGill LJ. 497) but also by Lemieux and Valli~res, La competence de la Cour
f~ddrale comme organisme bidivisionnel de contr6le judiciaire (1976) 17 C.de D.
379, 423-25. This includes such issues as whether certiorari might be available
with respect to non-final decisions and other interlocutory rulings which are
not covered by the exclusive judicial review jurisdiction of the Court of
19781
COMMENTS – COMMENTAIRES
Basically, the problem amounts to this: the exclusive jurisdiction
of the Court of Appeal as a court of first impression in judicial
review matters is contingent upon a decision or order “other than
[one] of an .administrative nature not required by law to be made
on a judicial or a quasi-judicial basis” One view of the common
law is that the courts will only engraft procedural requirements
upon a statute if they consider the function to be one of a judicial
or quasi-judicial character.’ Against this background, the notion
suggested by the Federal Court Act of an administrative function
which has to be exercised in a judicial or quasi-judicial manner
seems rather incongruous, the term “administrative” being seen
as antithetical to “judicial” or “quasi-judicial”. On this view of the
law, a terminological difficulty is raised immediately by the Federal
Appeal under s.28. It also includes whether certiorari might be sought with
respect to the decisions of bodies such as Cabinet which are excluded from
original Federal Court of Appeal jurisdiction by virtue of s.28(6). (I unx-
derstand that this issue is presently being litigated in the Trial Division of
the Federal Court by Andrew J. Roman of the Public Interest Advocacy Centre
on behalf of the Inuit Tapirasat of Canada and the National Anti-Poverty
Organization. This is in the context of an allegation that the Cabinet is under
a duty to act in a procedurally fair manner when hearing appeals from federal
regulatory bodies.) It should also be remembered that the procedural fairness
or natural justice arguments can also be made in the Trial Division with
respect to bodies, otherwise subject to Court of Appeal review under s.28,
in the context of prohibition applications, before a “decision or order” has
been made.
4 See the Federal Court Act, S.C. 1970-71-72, c.1, s.28(1) which states:
“Notwithstanding section 18 or the provisions of any other Act, the Court
of Appeal has jurisdiction to hear and determine an application to review
and set aside a decision or order, other than a decision or order of an ad-
ministrative nature not required by law to be made on a judicial or quasi-
judicial basis, made by or in the course of proceedings before a federal
board, commission or other tribunal, upon the ground that the board, com-
mission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted
beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the
error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the material
before it.”
5 This and the following four paragraphs summarize a lot of material that
I have developed elsewhere and the points made are documented and foot-
noted there. See The Federal Court Act: A Misguided Attempt at Administra-
tive Law Reform? (1973) 23 U.of T.L.J. 14, 29-31; Fairness: The New Natural
Justice? (1975) 25 U.of T.LJ. 281, 293-96. See also the pioneering piece on the
Federal Court Act: Nicholls, Federal Proposals for Review of Tribunal De-
cisions (1970) 18 Chitty’s L.J 254.
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Court Act. In what sense is the word “administrative” being used?
For example, does the Act suggest an extension of the categories
of function with respect to which procedural requirements may
apply? This inquiry is complicated further by the emergence
in
England about the same time as the enactment of the Federal Court
Act in Canada of what has been seen as new law in relation to pro-
cedural fairness arguments. This notion, which has since gained
some currency in Canada, is that all statutory decision-makers are
obliged to act fairly and that for some, this will involve procedural
requirements, irrespective of whether their functions are classified
in traditional terms as administrative, quasi-judicial or judicial.’ ”
In some respects the foregoing account is oversimplified but it
nevertheless indicates that difficult problems are involved in an-
swering the question posed at the outset. Among the alternative
resolutions are the following: 1. Despite the English developments,
the law in Canada remains that, before procedural requirements
can be imposed on a tribunal or other decision-maker, its function
must be at least partially judicial or quasi-judicial in nature and,
as section 28 covers all such functions, there is no possibility of the
Trial Division having jurisdiction. Thus, the word “administrative”
in section 28 may be viewed as being used, not in contradistinction
to judicial or quasi-judicial, but in a more general sense, as in the
term “Administrative Law”. Another possibility is that the tradi-
tional law recognized that some administrative functions had to be
exercised in a judicial or quasi-judicial manner. 2. The notion of
an administrative decision being required to be “made” on a judicial
or quasi-judicial basis developed in section 28(1) covers the poten-
tial area of the new English doctrine of procedural fairness irrespec-
tive of classification. Therefore that doctrine can only be argued
for, if at all, at the Federal Court of Appeal level. 3. Given one or
other of the interpretations of “administrative” described above and
Canadian acceptance of the English fairness doctrine, the Court of
Appeal’s jurisdiction depends upon the function exercised being at
least partially judicial or quasi-judicial in the traditional sense;
this leaves room for the possible application of the English pro-
cedural fairness doctrine at the Trial Division level with respect to
those functions that are neither judicial nor quasi-judicial nor
5a See, e.g., In re H.K. (an Infant) [1967] 2 Q.B. 617 (C.A.); Schmidt v. Secre-
tary of State for Home Affairs [1977] 2 Ch.149; R. v. Gaming Board for Great
Britain, Ex parte Benaim and Khaida [1970] 2 Q.B. 417 (C.A.). On the advent
of this doctrine in Canada see generally, Fairness: The New Natural Justice?,
supra, note 5, 288 et seq.; see also the recent decision of the Federal Court,
Trial Division, in Desjardins v. Bouchard (1976) 71 D.L.R. (3d) 491.
1978]
COMMENTS – COMMENTAIRES
purely administrative. 4. To “make” a decision or order on a
judicial or quasi-judicial basis connotes a certain level of procedural
fairness. However, there may be lesser degrees of procedural fairness
for which the appropriate forum is the Trial Division.
The first and the third analyses focus on the “nature” of the
function while the second and the fourth are concerned with how
the decision-maker acts. Are they different? One view is that only
decisions of a judicial or quasi-judicial “nature” have to be “made”
on a judicial or quasi-judicial basis, subject to express statutory
direction. In other words, you ask the same questions in determin-
ing the nature of the function as in determining the manner of its
exercise. On another view, there is not this identity between the two
questions and the manner of making a decision does not necessarily
follow the classification of the nature of the function.
Another dimension is added to the problem by the language of
section 28(1) (a) which talks about review for breach of the rules
of natural justice. This is a part of the codification of the grounds
of judicial review under section 28 and constitutes the only refer-
ence to procedural deficiencies. Is fairness simply an aspect of the
rules of natural justice or is it separate from the rules of natural
justice? If the fairness doctrine is accepted in Canada, and fairness
is an aspect of natural justice, then analysis two has a stronger claim
to recognition. On the other hand, if fairness and natural justice
are different, then analyses three and four may be closer to the
mark.
Putting it another, way, deciding whether natural justice in
section 28(1)(a) includes fairness probably says something about
the meaning to be attributed to the earlier words in the section,
“other than a decision or order of an administrative nature not
required by law to be made on a judicial or quasi-judicial basis”.
If making a decision on a judicial or quasi-judicial basis involves
adhering to the rules of natural justice and natural justice is a
separate concept from fairness, then the place for fairness argu-
ments, if at all, is probably in the Trial Division. Conversely, if
natural justice includes fairness then making a decision on “a
judicial or quasi-judicial basis” may encompass some, if not all,
of the situations in which procedural fairness is raised.
There is, of course, no compelling logical solution to these inter-
pretative problems to be found in either the fairness or the pre-
fairness cases or in the structure of section 28(1). They merely in-
dicate extremely haphazard and at times incomprehensible de-
velopment of the common law as well as the poor drafting of
McGILL LAW JOURNAL
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section 28(1). What is in fact needed is a hard-nosed policy analysis
of a number of basic questions. First, should the fairness doctrine
be accepted in Canada and what should be its limits? Secondly,
assuming some acceptance of the fairness doctrine, should section 28
of the Federal Court Act be interpreted in such a way as to make the
Court of Appeal the body with exclusive, original jurisdiction where
any question of procedural fairness is raised or is a narrower in-
terpretation more appropriate, leaving room for Trial Division juris-
diction in some areas of procedure?
Suffice it to say that despite much argument by counsel on this
matter and several passing references in judgments, no court had
really come to grips with these difficulties before the decision of
the Supreme Court of Canada in Martineau and Butters. Indeed,
it is fair to say that no explicit answer is provided by that decision
either. However, the principal matter which will be discussed below
is whether the judgment in Martineau and Butters, when read to-
gether with other relevant Supreme Court of Canada decisions,
does tell us anything about this problem of both substantive and
remedial significance, despite the complicating factor that in that
case the meaning of the additional words in section 28, “by law”,
came up for judicial scrutiny for the first time.
Facts and decision
Martineau and Butters were inmates of the Matsqui Institution.
They were charged with having committed a “flagrant and serious
disciplinary offence” 0 Of this they were found guilty by the Institu-
tion’s Inmate Disciplinary Board and sentenced to fifteen days in
the Special Corrections Unit. This involved such punishments as a
restricted diet and loss of privileges. Following this decision, the
two inmates commenced proceedings in the Federal Court of Appeal
to have it set aside under section 28. Among their allegations was
one of a failure by the Disciplinary Board to give them a fair hear-
ing. In a majority decision, the Federal Court of Appeal held that
the matter did not come within its jurisdiction under section 287
6 (1976) 12 N.R. 150, 153 (Fed.C.A.).
7Ibid. The majority judgment of Jackett C.J. and Sheppard D.J. was de-
livered by the Chief Justice. Ryan J. dissented. He held that the Directives
were crucial in adding a quasi-judicial element to what would otherwise be
an administrative function. He did note, however, that if the function were
purely administrative, the Board would still be obliged to act fairly, though
with no mention of whether this had procedural content (ibid., 174-75).
19781
COMMENTS – COMMENTAIRES
and this was upheld by the Supreme Court of Canada by a majority
of five to four.”
The main basis of the judgment of four members of the majority
of the Supreme Court of Canada, as revealed in the judgment of
Pigeon J., was simply that the Commissioner’s Directives sa issued
under the authority of the Penitentiary Act9 and providing for a
hearing in relation to “flagrant and serious disciplinary offences”
were not “law” in terms of section 28(1) and therefore it could
not be said that the disciplinary decision was one that was “requir-
ed by law to be made on a judicial or quasi-judicial basis”.’ 0 Laskin
C.J.C. wrote the dissenting judgment.’ in which he described this as
“much too nihilistic a view of law”‘ 2 and accepted that the command
to hold a hearing contained in the Directives clearly brought this
decision-making process within the ambit of section 28(1).’
Of course, even if the Court was correct that the Directives are
not of themselves “law”, this did not mean the end of the case. It
was then necessary to consider whether “law” in some other sense
required the decision to be made on a judicial or quasi-judicial
basis. Here, of course, the r~le of the Court is to consider whether
the common law justifies drawing an implication from the nature
of the power and the consequences of its exercise that the body is
obliged to act in a judicial or a quasi-judicial manner. While
Pigeon J. is not explicit on this point, he seems to deal with the
argument in the latter part of his judgment when he says such
things as:
At the risk of repetition, I will stress that this does not mean that when-
ever the decision affects the right of the applicant, there is a duty to act
judicially.14
and
I think JackettC.J., correctly disagreed [in the Court of Appeal]
with the view … that the possibility of reduction of statutory remission
by disciplinary decisions would imply a duty to act judicially. 15
sSupra, note 1. Pigeon J. delivered the judgment of himself, Ritchie, Beetz
and de Grandpr6 JJ. dismissing the appeal. Judson J. agreed with the reasons
of Jackett CJ. in the Federal Court of Appeal. Laskin C.J.C. delivered the
dissenting judgment of himself, Martland, Spence and Dickson JJ.
Sa Commissioner’s Directive no.242, issued Dec. 18, 1973.
9 R.S.C. 1970, c.P-6, s29.
‘0 Supra, note 1, 296-97.
11 While Janisch, supra, note 2, 578-79 favoured this judgment he would have
preferred a closer examination of the issues by the minority.
‘2 Supra, note 1, 290.
‘s Ibid., 291-92. The judgment contains nothing directly on the issue which
is the focus of this comment.
14 Ibid., 300.
16 Ibid., 298.
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This also emerges more clearly from the judgment of fackett C.S.
in the Court of Appeal’ with which the fifth member of the majority
in Martineau and Butters, Judson J., simply agreed 7 In particular,
the following lengthy extract from Jackett C.J.’s judgment would
appear to be pertinent, particularly as it also bears upon whether
the Trial Division has any jurisdiction to intervene on procedural
grounds in such cases:
In my view, disciplinary decisions in the course of managing organized
units of people such as armies or police forces or in the course of
managing institutions such as penal institutions are, whether or not such
decisions are of a routine or penal nature, an integral part of the manage-
ment operation. As a matter of sound administration, as such decisions
touch in an intimate way the life and dignity of the individuals concerned,
they must be, and must appear to be, as fair and just as possible. For that
reason, as I conceive it, there has grown up, where such decisions are of
a penal nature, a practice of surrounding them with the phraseology and
trappings of criminal law procedure. Nevertheless, in my view, disci-
plinary decisions are essentially different in kind from the class of ad-
ministrative decisions that are impliedly required, in the absence of ex-
press indication to the contrary, to be made on a judicial or quasi-
judicial basis in such a way that they can be supervised by judicial pro-
cess. In my view, that is the principle underlying Howarth v. National
Parole Board (1974), 3 N.R. 391; 50 D.L.R. (3d) 349, The Queen and Archer
v. White, [1956] S.C.R. 154, Regina v. Metropolitan Police Commissioner
Ex p. Parker, [1953] 1 W.L.R. 1150, and Ex p. Fry, [1954) 1 W.L.R.
730. … For that reason, I conclude that the disciplinary decisions
here in question, even though of a penal nature and even
though
they are required by administrative rules to be made fairly and justly,
are not decisions that are required to be made on a judicial or quasi-
judicial basis within the meaning of those words in section 28 of the
Federal Court Act.’8
The thrust of this statement seems to be that, even though the
rules or Directives provide for certain procedural protections, this
does not mean that the decision is automatically required to be
made on a judicial or a quasi-judicial basis in terms of section 28.
In other words, although section 28 appears to focus on the type
of procedures to be followed as the touchstone for its applicability,
in Jackett C.J.’s view, it is really the nature of the function that
governs. In so far as it opens the possibility of section 28 not
applying even in cases where detailed procedures are mandated
this view is simply contrary to the language of the section.’9 How-
16 Supra, note 6, 170-72.
17 Supra, note 1, 292.
IsSupra, note 6, 170-71.
19bMy reading of Jackett C.J.’s judgment in Martineau and Butters, supra,
note 6, is that he did not deal with the issue of whether the Directive was
“law” for the purposes of section 28 and this view is also expressed by
19781
COMMENTS – COMMENTAIRES
ever, for present purposes, perhaps the more important thing is that
Jackett C.J. talks about the obligation to follow the requirements of
fairness laid down by the rules. This suggests the possibility of
review in some other court if those rules are not followed or, more
generally, if fairness in a procedural sense is not accorded in certain
situations. It is also sigiiificant that the possibility is not rejected
by Pigeon J.; in the relevant part of his judgment he asks simply
whether a duty to act judicially is present.19a Nowhere does he say
that the duty to act in a procedurally fair manner is equivalent to,
or is defeated by the absence of, a “duty to act judicially”.
On the other hand, it also has to be acknowledged that Pigeon 3.
says nothing explicit to indicate acceptance of the view that there
can be procedural requirements imposed on decision-makers who
are not obliged to act judicially and who do not come within section
28. Indeed, his analysis2 of the earlier decision of the Supreme
Court of Canada in Saulnier v. Quebec Police Commission2 appears
to suggest the contrary. That case did not involve relief sought under
section 28 of the Federal Court Act but rather a straightforward
claim for procedural fairness from the provincial Police Commis-
sion. In this light, Pigeon J.’s statement that “[j]udicial review was
granted because, not only was there a duty to act judicially but the
decision affected the rights of the applicant” 22 might be seen as
suggesting that the duty to act judicially is indeed a prerequisite
before a court can consider implying procedural protections.23
MahoneyJ. in Martineau v. Inmate Disciplinary Board, Matsqui Institution
(No. 2) (1977) 37 C.C.C. (2d) 58, 61-2, n.1 (F.C.T.D.). If accurate, then this
means that only four members of the nine person Supreme Court of Canada
decided that the Directives were not “law” and that therefore that is still an
open issue. This view is shared by Janisch, supra, note 2, 578, n.4. However,
Collier J., in delivering judgment in Magrath. v. The Queen (1977) 38 C.C.C.
(2d) 67 (F.C.T.D.), argues that when Jackett C.J.’s judgment is read together
with the dissenting judgment of RyanJ. “the inference (as Laskin, C.J.C.,
suggests), must be that the majority decision in the Federal Court of Appeal
did not consider the directive to be ‘law’.” (Ibid., 80, n.4). Indeed, it is perhaps
only by drawing this inference that Jackett C.J.’s seeming failure to consider
the language of s28 referred to in the text can be explained. Laskin C.J.C., by
the way, does not in fact really say anything about Jackett C.J.’s judgment
in the course of his dissenting judgment in Martineau and Butters.
“)a Supra, note 1, 298-300.
20 Ibid., 299-300.
21 (1975) 57 D.L.R. (3d) 545 (S.C.C.). See the discussion of this decision by
Jones, (1975) 53 Can.Bar Rev. 802, 808-10.
22 Supra, note 1, 300.
2 This statement is reminiscent of the much-maligned judgment of the
Judicial Committee of the Privy Council in Nakkuda Ali v. Jayaratne [1951]
A.C. 66 (Ceylon) and the support of Lord Radcliffe for the proposition that
McGILL LAW JOURNAL
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In a similar vein, the latter parts of the judgment of Jackett C.”.
in the Court of Appeal in Martineau and Butters can be viewed as
making the whole issue much more uncertain. Noting that the
Directives spell out a requirement of fairness, if not a duty to act
judicially, he goes on to discuss the necessity that such decisions
be taken in a “bona fide” manner 24 Does this suggest that all he
means by fairness is the obligation to act in good faith in a subs-
tantive rather than a procedural sense? Moreover, in the final
paragraph of his judgment, he talks about the result achieved by
legal analysis as “accord[ing] with the realities of the situation”,25
namely, that judicial review of such decisions would not improve
matters. Once again, this is indicative of a view that the decision
to deny relief here is not confined to section 28 but also forecloses
the possibility of judicial review on procedural grounds in any
other forum. 26
in considering whether certiorari is available, the court must determine not
only that the rights of a subject are affected but that there is as well the
“super-added” duty to act judicially (ibid., 78, citing Lord Hewart C.J. in The
King v. Legislative Committee of the Church Assembly [1928] 1 K.B. 411, 415).
The only difference’ is that he has reversed the order. Quaere, whether by so
doing he is saying that where otherwise there might be a duty to follow fair
procedures or act judicially, that will be defeated if rights are not affected.
24 Supra, note 6, 171.
25 Ibid., 172.
26 For a further indication of Jackett CJ.’s views, see Marcotte, Turner and
Whelan v. Commissioner of Penitentiaries (1976) 13 N.R. 490 (Fed.C.A.) (dis-
cussed by Price, supra, note 2, 281-84). This was not a s.28 matter but an appeal
from a refusal by a Trial Division judge to strike out a Statement of Claim.
In reversing the refusal, Jackett C.J. indicated that he saw his judgment in
Martineau and Butters as precluding an argument for “pre-decision procedural
steps” before a prisoner was transferred from one institution to another. At
284, Price notes that this may mean that the Court is either saying something
general about the possibility of making procedural fairness arguments in the
Trial Division or specifically about the availability of procedural fairness
arguments in an institutional context. Which one it is, is by no means cleat!
Price also discusses the decision of the Ontario Court of Appeal in Re Anaskan
and The Queen (1977) 15 O.R. (2d) 515. See Price, supra, note 2, 284-87. Here,
the judgment seems clear that no procedural protections attach to the trans-
fer process. This is confirmed by Magrath v. The Queen, supra, note 19, dis-
cussed in the text, infra, p.108. However, it is signifiant that the judge in
Magrath saw no impediment resulting from this to his finding of a duty to
act fairly in another context, namely, internal prison discipline. This indicates
that decisions about transfer decisions may be able to be confined to their
own facts and do not preclude argument for fairness in other contexts. It is,
of course, difficult to see any real distinction in practical terms between trans-
fer as a punishment and dissociation as a punishment.
1978]
COMMENTS – COMMENTAIRES
On balance therefore, it must be said that Martineau and Butters
is equivocal on the availability of procedural fairness arguments
in situations where the decision-maker in question does not come
within the ambit of section 28 and the exclusive original review
jurisdiction of the Federal Court of Appeal. Do any of the other
recent Supreme Court of Canada decisions tell us very much about
that question?
Other relevant Supreme Court decisions
In writing about the duty to act fairly this writer has noted27
that the earlier judgment of Pigeon J. in Howarth v. National Parole
Board&8 may have left open the possibility of procedural fairness
arguments being made in the Trial Division with respect to bodies
not covered by section 28. The key statement in that case is the
following:
The reason that I am stressing this point is that in argument, counsel
for the appellant relied mainly on cases dealing with the duty of fairness
lying upon all administrative agencies, in the context of various common
law remedies. These are, in my view, completely irrelevant in the present
case because a s.28 application is an exception to s.18 and leaves intact
all the common law remedies in the cases in wich it is without application.
The Federal Court of Appeal did not consider, in quashing the application,
whether the Parole Board order could be questioned in proceedings before
the Trial Division.29
2 tFairness: The New Natural Justice?, supra, note 5, 294-96, and, particularly,
n.72, where I refer to earlier Supreme Court of Canada hints at a willingness
to accept the English notion of a duty to act fairly. This point is also taken up
by Jones in Howarth v. National Parole Board: A Comment (1975) 21 McGill LU.,
434 and Price, supra, note 2, 241. Brun is not so optimistic. See La “discrg-
tion administrative” a la vie dure (1975) 16 C.de D. 723, 726, n.19. In his com-
ment on Howarth, Jones, ibid., 440, refers to Rule 359 of the General Rules
and Orders of the Federal Court by which the Chief Justice or his designate
may transfer proceedings commenced in the wrong division of the Court.
Interestingly, in neither Howarth nor Martineau and Butters was this broached
as a possibility by either the Supreme Court of Canada or the Federal
Court of Appeal. Can this be taken as any indication that there was seen to
be no possibility of procedural fairness arguments in the Trial Division?
28 (1974) 50 D.L.R. (3d) 349 (S.C.C.). In Howarth, Dickson J. delivered a
dissenting judgment with which Laskin C.J.C. and Spence J. concurred. After
noting that functions which are administrative in nature may require some
adherence to the rules of natural justice or acting judicially (ibid., 357),
he spent the rest of the judgment identifying judicial elements in the decision
to revoke parole. It is not helpful on the matter under discussion here.
29 Ibid., 352.
McGILL LAW JOURNAL
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Subsequently, in Mitchell v. The Queen,30 the Supreme Court
once again rejected an argument for procedural protections in rela-
tion to the process of suspension and revocation of parole. Mitchell
was not a section 28 matter but rather involved the seeking of
habeas corpus with certiorari in aid from a provincial superior
court. Of course, certiorari as a remedy has commonly been seen
as depending upon the function under challenge being of a judicial
or quasi-judicial nature.31 In that context a denial of the remedy
is not necessarily relevant to the availability of procedural fairness
arguments with respect to bodies which are not judicial or quasi-
judicial. Indeed, in Mitchell, the matter was further complicated by
the fact that four members of the five person majority, in a judg-
ment delivered by Ritchie J., held that even in proceedings where
certiorari is sought in aid of habeas corpus, the reviewing court
may go no further than to consider the sufficiency of the warrant
of committal.3 Ritchie J. also held that, after the Federal Court Act,
certiorari was not available in support of habeas corpus for the
reason that section 18(1) confers exclusive, original jurisdiction on
the Trial Division of the Federal Court to grant relief in the nature
30 (1975) 61 D.L.R. (3d) 77 (S.C.C.). See the article on this case by Wright,
Judicial Review of Parole Suspension and Revocation (1975-76) 18 Crim.L.Q.
435, 441, 461-63 and 467. See also Price, supra, note 2, 24349, where he not only
discusses Mitchell but also the subsequent natural justice cases
in this
area and that of mandatory supervision.
3 1 See, however, R. v. Hillingdon London Borough Council, Ex parte Royco
Homes Ltd [1974] Q.B. 720, 728 (Div.Ct) per Lord Widgery C.J. This decision
found approval in the dissenting judgment of Laskin C.J.C.
in Mitchell,
supra, note 30, 83. This will also presumably be a consequence of any finding
that certiorari is available to quash a final decision or order on procedural
fairness grounds in the Trial Division (unless, of course, the body is one
excluded from original Court of Appeal jurisdiction by s.28(6); discussed,
supra, note 3). See Martineau (No.2), supra, note 19, discussed in text, infra,
p.108. In this respect a recent English decision is worth noting. In R. v.
Board of Visitors of Hull Prison, Ex parte St. Germain, The Times, 7 Dec.
1977, the Divisional Court was asked to quash certain disciplinary decisions
of the respondents. After apparently holding that the Visitors were perform-
ing judicial acts, Lord Widgery C.J. then said that certiorari was not available
with respect to the disciplinary procedures of a disciplined body such as a
prison. What this seems to say about the English law is that certiorari is
sometimes available with respect to purely administrative functions but
on other occasions will not be appropriate with respect to clearly judi-
cial functions. Not only is this quite a dramatic change from the traditional
position but also it will undoubtedly lead to incredible confusion.
32 Supra, note 30, 90-04, per Ritchie J. delivering the judgment of himself,
Judson, Pigeon and Beetz JJ.
1978]
COMMENTS – COMMENTAIRES
of certiorari. 3 Given the technical nature of this judgment in
Mitchell and the resulting narrowness of the review inquiry, its
value to the present discussion is accordingly limited.
Nevertheless, scattered throughout RitchieJ.’s judgment are
reaffirmations- of the decision in Howarth,3
though without any
reference to the possibility raised by Pigeon J. of procedural fairness
arguments being made in the Trial Division. The other member of
the majority, Martland J., seemingly dealt with the matter as if it
were an application for habeas corpus with certiorari in aid and
also looked at the affidavits as well as the face of the warrant. In
so doing, he also reaffirmed Howarth 5 and described parole as a
matter within the “absolute discretion” of the Board3 and, quoting
an earlier decision,37 “not in any way a judicial determination”‘. 38
This language is much stronger than any employed by Pigeon J. in
Howarth and certainly may be seen as carrying the implication that,
irrespective of the remedy being sought, no procedural protections
at all attach to the parole suspension and revocation process. In-
terestingly, RitchieJ., while not endorsing the specific language,
stated at the end of his judgment that he would have reached the
same decision as Martland J. had he felt able to engage in the same
kind of broad inquiry3 9 The following statement of Ritchie J. might
also be seen as indicative of a rejection of procedural fairness in
parole, whatever the review forum:
The very nature of the task entrusted to this Board, involving as it does
the assessment of the character and qualities of prisoners and the decision
of the very difficult question as to whether or not a particular prisoner is
likely to benefit from reintroduction into society on a supervised basis,
33 Ibid., 94-95. Both this and the previous matter in fact continue to give
difficulties, not only because of the fact that they are not supported by a
clear majority of the Supreme Court of Canada, but also because of possible
variations as between the various provinces as to the availability of habeas
corpus with certiorari in aid. See Wright, supra, note 30, 452-66 and Price,
supra, note 2, 270. Also, see Cromwell, Habeas Corpus and Correctional
Law – An Introduction (1977) 3 Queen’s LJ. 295, 316-29.
34 Supra, note 30, 91, 93 and 95.
351Ibid., 89.
36 Ibid.
37Ex parte McCaud [1965] 1 C.C.C. 168, 169 (S.C.C.).
38Supra, note 30, 90.
39Ibid., 95. In Mitchell, LaskinCJ.C. (with whom DicksonI. concurred)
and Spence J. delivered dissenting judgments. Laskin CJ.C. described Howarth
as a case concerned with s28 of the Federal Court Act and then stated that
fair procedures could apply to bodies other than those of a judicial or quasi-
judicial nature (ibid., 83). This would seem to amount to an acceptance of
analysis three outlined above.
McGILL LAW JOURNAL
[Vol. 24
all make it necessary that such a Board be clothed with as wide a dis-
cretion as possible and that its decision should not be open to question on
appeal or otherwise be subject to the same procedures as those which
accompany the review of decision of a judicial or quasi-judicial tribunal.40
Of course, the mere fact that no procedural protections of any
kind may attach to the decision-making process in issue in Mitchell
does not foreclose the possibility of making procedural fairness
arguments in other situations where the decision is not of a judicial
or quasi-judicial nature or is not within section 28 of the Federal
Court Act. It seems clear that the English procedural fairness
doctrine does not impose procedural decencies upon all statutory
decision-makers.4 ‘
.The only other relevant Supreme Court of Canada decision since
Howarth is Hardayal v. Minister of Manpower and Immigration,42
judgment in which was delivered just over two months after
Martineau and Butters.43 This was another decision in which the
substance of the claim for procedural protections and the proce-
dural section 28 argument became inextricably intermingled with
the result that the key passage in the judgment is not easily sus-
ceptible of interpretation. In delivering the judgment of a unanimous
nine person Court, Spence J. had the following to say:
Having regard for the detailed directions as to permitting entry of immi-
grants and as to the refusal to permit entry, or the deportation of those
who have entered Canada, set out in the many provisions of the Immi-
gration Act, I am strongly of the view that the Minister’s power under s.8
of the Immigration Act to grant, to extend, or cancel a permit with no
direction as to the method which is to be used in the exercise of the
power and, for the present purposes, no limitation on the persons who may
be the subject of such permits, was intended to be purely administrative
and not to be carried out in any judicial or quasi-judicial manner, and
that, in fact, to require such permit to be granted, extended or canr
celled only in the exercise of a judicial or quasi-judicial function would
defeat Parliament’s purpose in granting the power to the Minister. As I
have said, the evidence indicates that the power is only used in exceptional
circumstances and chiefly for humanitarian purposes. Such power was,
in the opinion of Parliament, necessary to give flexibility to the adminis-
tration of the immigration policy, and I cannot conclude that Parliament
intended that the exercise of the power be subject to any such right of ,a
fair hearing as was advanced by the respondent in this case. It is true
that in exercising what, in my view, is an administrative power, the
Minister is required to act fairly and for a proper motive and his failure to
40 Ibid., 93. See also, ibid., 91.
41 See Fairness: The New Natural Justice?, supra, note 5, 285, n.19, and 288.
42 (1977) 15 N.R. 396 (S.C.C.).
42 Martineau and Butters was delivered on March 8, 1977 and Hardayat
on May 17, 1977.
1978]
COMMENTS – COMMENTAIRES
do so might well give rise to a right of the person affected to take pro-
ceedings under s.18(a) of the Federal Court Act but, for the reasons which
I have outlined, I am of the opinion that the decision does not fall within
those subject to review under s.28 of the said Federal Court Act.44
At one point in this statement, there seems to be a clear contrast
drawn between judicial or quasi-judicial functions, to which pro-
cedural protections attach and administrative functions, to which
no such protections attach.4 5 Moreover, the subsequent comment
that the Minister must act fairly has to be read subject to the
complete rejection of the arguments for a hearing in this case.
The applicant was simply seeking notice and the opportunity to
respond. Thus, when Spence J. says that there is no right to “a fair
hearing as was advanced by the respondent in this case”, the Court
in fact is rejecting completely the possibility of any procedural
protections in this decision-making process. Given this, to say the
Minister has nevertheless a duty to act fairly must mean no more
than a duty to act in good faith. On the other hand, the same might
be said of this case as was .said of Howarth and Mitchell. The anti-
thesis between judicial and quasi-judicial functions and adminis-
trative functions may only have been for section 28 purposes and
the rejection of any procedural fairness arguments may have been
intended to apply to this decision-making process alone, and not to
amount to a rejection of procedural fairness arguments in relation
to all federal statutory decision-makers not coming within section
28 of the Federal Court Act.46
In the last analysis, the most that can be said after all these
decisions is that the Supreme Court of Canada has not rejected
categbrically the English fairness doctrine as a possible basis on
which to apply procedural protections to bodies that are neither
judicial nor quasi-judicial. Similarly, the possibility remains that the
Federal Court Trial Division may be able to require fair procedures
of decision-makers not within the exclusive original jurisdiction
of the Court of Appeal. However, there are just enough hints in
the recent decisions, including Martineau and Butters, to suggest
that the prospects of ultimately being successful in this area are
not great. Furthermore, even if the theory is accepted that such
44 Supra, note 42, 404.
45 At the same time he seems to acknowledge that certain administrative
functions may have to be exercised in a judicial or quasi-judicial manner,
i.e., those which are not “purely” administrative. This, of course, is con-
sistent with one interpretation of s.28.
461In other words, analyses three or four may be possible in other
contexts.
McGILL LAW JOURNAL
[Vol: 24
review is possible, the chance also exists that, as in Hardayal, and
possibly Mitchell, the Supreme Court of Canada will hold that the
particular situation does not involve any procedural protections.
Subsequent Trial Division decisions
Since the Supreme Court of Canada decision in Martineau and
Butters, this issue has arisen at least twice before judges of the
Trial Division in relation to disciplinary offences in penitentiaries
and, on each occasion, the possibility of review on the basis of
procedural deficiencies has been upheld.
In fact, the first of these cases involved the unsuccessful Marti-
neau trying for a second time, on this occasion for an order in the
nature of certiorari from the Trial Division4 The matter came
before Mahoney J. under Rule 474 of the General Rules and Orders
of the Federal Court for a preliminary determination of the issue
of whether “in the circumstances” 48 the Trial Division had jurisdic-
tion to grant relief by way of certiorari. For Mahoney J. this in-
volved deciding whether the Disciplinary Board was obliged to act
in a procedurally fair manner in considering whether a “flagrant or
serious” disciplinary offence had been committed and to impose
punishment4 He did not rule on whether or not the procedures had
in fact been fair 0
The process by which Mahoney J. concluded that the Board was
obliged to act in a procedurally fair manner is rather difficult to
follow. Obviously the judgment of Pigeon J. in Howarth is his basis
for asserting the possibility of Trial Division scrutiny of the deci-
sion on the grounds of procedural fairness in situations where the
Court of Appeal has held itself to have no jurisdiction. He cites a
lengthy extract from that judgment, including the part reproduced
earlier in this comment.” The confusing part is how he sees fairness
as involving procedural content in this particular context.
47 Martineau (No.2), supra, note 19. Note that, besides the cases discussed
in this comment, there have been other decisions of the Trial Division
and Court of Appeal which bear to a greater or lesser extent on the issue. Most
are discussed by Price, supra, note 2. See, in addition: Sherman v. Com-
missioner of Patents (1974) 14 C.P.R. (2d) 177 (T.D.); “B” v. Department of
Manpower and Immigration [1975] F.C. 602 (T.D.).
48 Supra, note 19, 60.
49 Ibid.
50 Ibid., 64. “I am not, of course, deciding whether the remedy should be
granted but merely whether it could be granted…”.
51 Ibid., 63-64. See also text, supra, p.101.
1978]
COMMENTS – COMMENTAIRES
He starts off by stating that his jurisdiction to award certiorari
depends upon whether “some right of the applicant has been abridg-
ed or denied”.5 2 This he contrasts with a mere “loss of privileges”.
Given that procedural fairness in the English sense has not generally
been seen to depend necessarily upon “rights” rather than “privi-
leges” being affected,53 Mahoney J. seems to have built a consider-
able and unnecessary obstacle for himself at the outset. This is
particularly so given that the Ontario Court of Appeal in R. v.
Institutional Head of Beaver Creek Correctional Camp, Ex parte
McCaudM had decided that decisions such as the ones taken here
did not give rise to a duty to act judicially because they affected
only the applicant’s status as inmate, without interfering with his
civil rights as a person or any special statutory right given to him
as an inmate. Indeed, as acknowledged by Mahoney J., 55 the Federal
Court of Appeal 56 and the Supreme Court of Canada in Martineau
and Butters57 had held that Beaver Creek itself went too far in
suggesting that the loss of statutory remission gave rise to a duty
to act judicially although such a loss arguably affected both an
inmate’s civil rights as a person and his special statutory rights
as an inmate.
Mahoney J., however, simply refused to follow Beaver Creek58
and held that, though the decision did not affect any special
statutory rights of Martineau as an inmate, it did, for reasons that
are not clearly articulated, affect his civil rights as a person and,
therefore, gave rise to a requirement of procedural fairness. What
Mahoney J. seems to be saying is that if at any time punishment
is contemplated for an offence other than the one for which im-
prisonment was imposed in the first place, the process affects
the prisoner’s civil rights as a person.59 In arguing this he emphasis-
ed the fact that the source of both the offence and the punishment
was “law” in the sense of being found in the Act 5 9a and the Regula-
52Supra, note 19, 61.
531t has, admittedly, been used as the touchstone
Fairness: The New Natural Justice?, supra, note 5, 285, n.19.
in some cases. See
54 [1969] 1 O.R. 373, 378-80 (CA.).
55 Supra, note 19, 62.
505Supra, note 6, 176, n3.
57 Supra, note 1, 298.
58Supra, note 19, 62-63.
9After quoting Beaver Creek, he then seems to place his disagreement
with it on this basis. Ibid., 63.
59aPenitentiary Act, R.S.C. 1970, c.P-6.
McGILL LAW JOURNAL
[Vol. 24
tions59b as opposed to the Directives.0 Presumably, the purpose of
this emphasis was to circumvent the argument accepted in Beaver
Creek that the control of prisoners within an institution was a
purely discretionary matter within the control of the Director.0′ In
contrast, according to Mahoney J., the statutory source of the au-
thority seemed to indicate parameters within which the discretion
was to operate and therefore to give the prisoner “rights” to their
observance; this also defeated, at least in part, the argument in
Beaver Creek that in terms of his placement within the prison
system the prisoner is temporarily without “civil rights” 2
As indicated at the outset, it was arguably unnecessary in terms
of the English cases for Mahoney J. to search for a “right” that was
affected by the decision. It is also unfortunate that the rights/
privileges dichotomy has surfaced in the field of procedural fairness
since the avoidance of this ever-troublesome classification process
is one of the significant advantages of espousing the “duty to act
fairly” as the touchstone for procedural fairness arguments. What
remains to be seen is whether higher courts will agree both with
Mahoney J.’s acceptance that a gap for Trial Division jurisdiction
has been left by Howarth and Martineau and Butters and, if so,
that the gap exists in this particular context.P
The second Trial Division decision is that of Collier J. in Ma-
grath v. The Queen.”4 This was not a decision on a preliminary
matter but rather an action for a declaration of invalidity. Collier J.
relied principally on the earlier-quoted statements of Spence J. in
Hardaya15 as well as Martineau (No.2)60 as the bases for holding that
the Board had to act in a procedurally fair manner. He also made
reference to the procedural Directive in discussing the content of
the duty in this case. While feeling bound to accept the Supreme
Court of Canada’s decision that this was not “law”, T he never-
theless thought that it provided
… a guide to this Court in determining whether the manner in which the
disciplinary board came to its decision was carried out fairly. 8
59bPenitentiary Service Regulations, SOR/62-90, ss.2.28, 2.29 (am. SOR/72-
398).6oSupra, note 19, 63.
61 Supra, note 54, 377.
62 Ibid.
63 Martineau (No.2) is in fact on appeal.
64 Supra, note 19.
65 Ibid., 79-80.
NIbid., 78-79.
67 Ibid., 18.
68 Ibid., 80.
19781
COMMENTS – COMMENTAIRES
Two comments on the reasoning will suffice. First, as noted
earlier, it is difficult to read the reference to a “duty to act fairly”
in the judgment of Spence J. in Hardayal as. involving fairness in
any procedural sense. Secondly, while approving Mahoney J.’s judg-
ment in Martineau (No.2), Collier J. himself does not engage in any
discussion at this point about the necessity for a prisoner’s “rights”
to be affected before the duty to act fairly arises. However, a
second allegation in this case raised the lack of fair procedures in
a decision to transfer Magrath from one institution to another.69
Here, the judge quoted at length from the judgment of the Ontario
Court of Appeal in Re Anaskan and The Queen7l where the argument
for a hearing was rejected in a transfer case because the prisoner
had no “right” to be in a particular institution.72 He then said:
I do not say an inmate may never have a right to question, on grounds
of lack of fairness, a decision to transfer him. Some circumstances may
point to such a right. My opinion is confined to the matter of notice and
the right to a hearing of some kind.Y3
The most likely interpretation of this is that the only possible
allegation in such cases is lack of substantive, as opposed to pro-
cedural, fairness. However, it might possibly mean that fairness
in either sense may be applicable in some transfer cases but that
in this particular case, which was confined to allegations of pro-
cedural unfairness, no procedural duties arose. The latter inter-
pretation would of course mean that whether rights were affected
would be relevant to, but not determinative of, issues of procedural
fairness.
Conclusion
In at least three decisions the Supreme Court of Canada has
had an opportunity to articulate clearly the relationship between
sections 18 and 28 of the Federal Court Act, particularly as that rela-
tionship gives rise to arguments about the appropriate forum for
arguments about fair procedures. The three cases, Howarth, Marti-
neau and Butters, and Hardayal, plus Mitchell and perhaps others,
have also given the Court an opportunity to say something about the
possible application in Canada of the English theory of procedural
fairness. These opportunities have all been eschewed except for
69 Ibid., 81-87.
70 Ibid., 85-86.
71 Supra, note 26.
72 Ibid., 524-26.
’73Supra, note 19, 86.
McGILL LAW JOURNAL
[Vol. 24
some statements of a most cryptic kind. In another article, I have
developed at length arguments in favour of the English fairness ap-
proach7 4 However, the acceptance or rejection of those arguments
should not affect one’s concern with the failure of the highest
court in the land to deal more openly with this and the intimately
related matter of the Trial Division’s jurisdiction. Certainly, in the
three jurisdictional decisions, it can be argued that the Court was
only seised of the jurisdictional argument. Nevertheless the Court
had the benefit in each of these cases of arguments based on the
legitimacy of the applicants’ claims for some degree of procedural
protection. It would not seem improper for the Court to have at
least given a clearer indication as to whether its judgment pre-
cluded all procedural arguments in relation to the decision-maker
in issue or whether in fact the Trial Division had scope for engraft-
ing some form of procedural requirements on the relevant statute,
and if so, what those requirements were. To do any less is arguably
inappropriate in that it penalizes those seeking relief for what is
a poorly drafted, confusing and much criticized provision dividing
jurisdiction between the Trial Division and Court of Appeal. The
forms of action have defeated a proper consideration of the merits
of the matters in issue. Disappointed applicants, should they want
relief, are forced to start again in a different court but with little
or no indication of what the chances of ultimate victory are.
Hopefully, reform of this aspect of the Federal Court Act is not
too far distant, particularly given the recent tentative recommend-
ations of the Law Reform Commission of Canada 5 In the mean-
74 Fairness: The New Natural Justice?, supra, note 5.
75 See Law Reform Commission of Canada, Working Paper 18, Federal
Court –
Judicial Review (Ottawa: Supply and Services Canada, 1976). See
particularly Ch.III, where it is recommended that all judicial review of
federal administrative authorities should originate in
the Trial Division.
The Working Paper also makes some recommendations on the substantive
issue of the applicability of the rules of natural justice. See Ch.V. Here the
principal suggestion is:
“4.3 Future legislation providing for judicial review should avoid express
use of the judicial/administrative classification of statutory powers to en-
courage the courts to avoid the tortuous rigours of this classification.
Consideration should be given to legislation requiring or empowering the
court to review administrative, as well as judicial and quasi-judicial de-
cisions for conformity with natural justice unless the public interest that
decisions conform with natural justice is outweighed by another public
interest, such as efficiency in government, national security, confidentiality,
etc.”
If ever adopted, this may mean a relitigation of many of the situations
in which the courts have denied the application of procedural protections
19783
COMMENTS – COMMENTAIRES
time, despite Martineau and Butters, as well as Howarth , Hardayal
and Mitchell, the English procedural fairness doctrine and the
ability of the Trial Division of the Federal Court to review decisions
on procedural fairness ground remain possibilities, at least in some
contexts.:”
David J. Mullan*
in federal statutory decision-making. Quaere however whether the suggested
provision with its exemptions would lead to any different results.
7GAfter the submission of this comment, the Federal Court of Appeal re-
versed the decision of MahoneyJ. in Martineau (No.2) (unreported judgment,
delivered March 17, 1978, NoA-500-77). The narrow basis on which the Court
(Jackett C.J., Heald and Kelly JJ.) reversed was that the prerogative remedy of
certiorari was only available with respect to decisions “either judicial in
character or … required by law to be made on a judicial or a quasi- judicial
basis” (Memorandum judgment, 2, per Jackett CJ.). Royco Homes (supra, note
31) was somehow distinguished (ibid., 3, n.1) and the statement made that s.28
covered off “every method of reaching a decision or order that would support
an application by way of certiorari” (ibid.). Of itself this says nothing about
the merits of the procedural fairness argument and it represents another
glaring example of the intricacies of the Federal Court Act preventing a proper
consideration of the allegations made. However, ‘Jackett C.J. also added a quite
confusing Appendix to his judgment, which on one interpretation may possibly
say that the case could also have been lost on the merits. However, it is
certainly not clear and the writer understands a further appeal to the Su-
preme Court of Canada is being considered. Of somewhat less significance to
the main thrust of this article is the fact that the proceedings brought by
Andrew Roman, referred to in footnote 3, have been struck out. See Inuit
Tapirasat of Canada v. Leger, unreported decision of Marceau J. of the F.C.T.D.,
delivered March 9, 1978, No.T-4668-77. It was held that certiorari did not lie
against the Governor in Council under s.18 of the Federal Court Act because
the Governor in Council was the Crown (Memorandum judgment, 5) and
that a declaratory action was not appropriate because the Governor in
Council was not obliged to give any kind of hearing when hearing an appeal
under s.64(1) of the National Transportation Act, R.C.S. 1970, c.N-17 from a
rate decision of the C.R.T.C. (ibid., 7). The procedural fairness argument was
raised and rejected as having no application in this context. Indeed, it was
seen as being a “question of terminology rather than a question of substance”
(ibid., 9). Once again it is understood that an appeal is being contemplated.
* Visiting Professor, Queen’s University, Kingston. I am grateful for the
most helpful comments which I received from my colleagues, Professors R.R.
Price and J.D. Whyte, while I was writing this comment.
