THE M GILL
LAW JOURNAL
VOLUME 1
AUTUMN 1952
NUMBER 1
THE TWILIGHT OF JUDICIAL CONTROL
IN THE PROVINCE OF QUEBEC?
Gerald E. LeDain*
A serious situation is developing in Quebec with respect to the control
exercised over administrative bodies by the courts of law. That control, which
we have taken for granted as an essential safeguard of legal rights, has, in
fact, been far from what it might have been, but it now passes to another
stage where it threatens to disappear entirely. Provincial legislative policy,
deficiencies in our law of procedure, and -the attitude of the courts to both these
factors have combined so to restrict the application and scope of judicial
control as to make it no longer a general right, but a chance privilege in rare
cases.
Strangely enough the problem has aroused little or no comment in the
province. It may be that the general enfeeblement of judicial control has been
so gradual as to escape detection, or simply that a problem must reach the
level of public concern before it arouses the legal profession. It is the belief,
however, of the undersigned that there is a very real and widespread concern
in the profession over this question, and -that the time is now ripe for a public
debate of it.
The reason for the lack of criticism to date is more probably that we know
something of long and cherished tradition is being swept away, but we are
not absolutely convinced that it should not go. Those members of -the profes-
sion who are most concerned are bound to feel a certain sympathy for the
legislative attitude underlying attempts to prohibit recourse to the courts.
The practising lawyer who has conscientiously risked his client’s money on
a writ of certiorari or prohibition only to have his action dismissed for reasons
*B.C.L. (McGill); Docteur de l’Universit6 de Lyon; Sessional Lecturer in Admin-
istrative Law, McGill University.
McGILL LAW JOURNAL
[VOL. I
that are more metaphysical than legal is apt to conclude that perhaps after all
it is better to remove this expensive uncertainty. The right which exists on the
statute book and in the popular consciousness, but seldom exists in fact, is an
embarrassing allurement. That there should be some control over administrat-
ive acts is not seriously disputed, but among those who have considered the
question there is less general agreement as to what form it should take.’ It is
true that the weight of opinion in the Anglo-American world is apparently
that this control should be left to the courts of law. Often this opinion would
seem to rest, however, on nothing firmer than the complacency engendered by
certain niriteenth century gefieralities.2 Those who continue to see the
jurisdiction of the ordinary courts as an indispensable attribute of the Rule
of Law have not always taken the trouble to acknowledge and diagnose the
obvious weaknesses of the present system, which, if it is to be saved, must
undergo some reform. The challenging opinion today is that which urges an
entirely radical approach to the problem of legal safeguards by the institution
of administrative tribunals of general jurisdiction such as exist in western
Europe.3
This proposal, attractive as it may be, on the assumption that you must
fight fire with fire, is not likely to rally sufficient support for sometime yet
because of two kinds of objection to it. To begin with, it involves a sharp and
unnatural break with the continuity of our legal traditions: an innovation that
would seem to be without indigenous roots in our constitutional system.4
Judicial like legislative institutions inspire confidence and grow in effectiveness
as they evolve and develop naturally out of circumstances to which they are
particularly adapted. It is the experience of Europe itself that such institutions
are transplanted with difficulty. The French Conseil d’Etat, which now attracts
the admiring glances of Anglo-American lawyers (though to some extent still
beneath the raised eyebrows of A.V.Dicey) is an institution which survived
the Revolution and as such is one of the few embodiments of creative tradition
in French political life. The confidence which it inspires in the French people
is due to the fact that it is not a theoretical innovation like proportional
representation, but a venerable and tested institution that figures prominently
in the constitutional memory of the nation. The Conseil d’Etat in its present
‘See REPORT OF THE CommTrzz ON Mnrms’ms’ PoWRs, CmD. No 4060 at 110 (1932);
RoBsoN, JusTicE AND ADmiNisTRA=IW LAW 459-465 (3d ed. 1952).
2See Dicey’s concept of the Rule of Law and his opinion of the French droit adlfinistra-
tif in his LAW OF THE CONSTITUTION (9th ed. 1939). Cf. JENNINGS, THE LAW AND T E
CoNsmrrruxo
(3d ed. 1946) ; RoBsoN, op. cit. supra note 1, at 437-444.
3E.g., de Smith, The Limits of Judicial Review, 11 MOD. LAW REv. 306, 325 (1948);
RoBsoN, op. cit. supra note 1, at 459; Fitzgerald, Safeg~ards in the Exercise of Functions by
Administrative Bodies, 28 CAN. BAR REv. 538, 555-559 (1950); Schwartz, The Admin-
istrative Courts in France, 29 CANr. BA. REv., at 381-385 (1951).
4 Though see the parallel drawn by Schwartz in A Common Lawyer Looks at the Droit
Administratif, 29 CAN. BAP. REv. 121 (1951) between the evolution of the French Conseil
d’Etat and the English courts of equity.
1952]
TWILIGHT OF JUDICIAL CONTROL
form has grown as a logical necessity out of the French notion of the Separa-
tion of Powers. Again, this principle is truly French, not only in concepton
but in its realisation. As understood in France, it ,is chiefly and specifically
concerned with the separation of the administration and the judiciary, 5 and
it has its historical origin in Ithe hostile attitude of the Parlements toyward
administrative reforms in the latter days of the ancient Rggime. Acqrrqllary of
this first principle is the separation of the admjnistrative courts (iaWinisfra-
tion contentieuse) from the administration itself (l’administration active)
-though this separation has not been as fully realised as that between the
administration and the judiciary. As it is, some jurisdiction in administratiye
matters has been left to the civil courts, and the resultng conflicts of jurisdic-
tion must be settled by still another ,body, the Tribunal des Conflits. The
various jurisdictions in France make up a highly complex system of justice
that has taken more than a century to develop and is so typically a product
of French thought and historical circumstances that it would seem to defy
imitation by the Anglo-American world.
It does not necessarily follow, however, that the French system of administr-
ative Courts should not serve as an inspiration for a typically Anglo-American
experiment with the same general principle. There is no doubt that the French
enjoy a much greater measure of protection under their droit administratif
than that presently afforded by, our own courts. Yet the reason for this is not
altogether the specialized character of the French tribunals. Undoubtedly, the
fact that the Conseil d’Etat is not .only a -tribunal but an advisory body to
the government gives it an intimate knowledge of the administrative process
which contributes immeasurably to ‘the effectiveness of its judicial r6le. But
more important still is the fact that the jurisdiction of the French administr-
ative tribunals is a general one, firmly established by tradition and public
confidence. It can be said, at least with some justice of the French system
of administrative law, that where there is a wrong there is a remedy. It is
true that even the French have not solved ,the problem of delay caused ‘by
overcharged rolls,6 but recourse to the French tribunals has the merit of being
simple, direct and inexpensive. 7
5″Les fonctions judiciaires sont et demeureront toujours siparjes des fonctions admi-
nistratives. Les juges ne pourront, a peine de forfaiture, troubler de quelque manire que
ce soit les oprations de corps administratifs, ni citer devant eux les administrateurs par
raison de leurs fonctions.” – France: Law of Aug. 16-24, 1790, Vol. II, art. 13.
(Schwartz, supra note 3, at 407-410.
7The general procedure before the Conseil d’Etat is by written petition addressed to
the Secretary-General. The complainant is ordered to communicate his petition within a
delay of two months to the defendant who has a delay of fifteen days in which to reply. The
record consists of these written arguments, supporting documents and the observations
of a government official whose function is to advise the court. In the most important
recourse before the Conseil d’Etat it is not necessary that the parties be represented by
counsel. The judge ,directs the inquiry, which is based on the written argument and
evidence. The judgments are remarkable for their terseness.
MCGILL LAW JOURNAL
[VOL. 1
In considering the reform of our own judicial control, the procedural
simplicity of the French system ought first to attract our attention. For
here we find one of the most pronounced and fundamental contrasts with
our own system. In other respects the two types of judicial control present
striking similarities despite their institutional differences. This is especially
true of the principles applied by both to test the legality of administrative acts.
The doctrine of Ultra Vires as evolved by our courts is very like the French
notion of excbs de pouvoir (which is itself the gradual product of jurisprud-
ence) and hardly less effective when properly understood and unreservedly
applied.8
Here then is the second objection to the suggestion that we set up separate
administrative courts. This suggestion may not always be free from confusion
as to the true function of judicial control. If what is sought is an appeal on
the merits from administrative decisions then the civil courts are certainly
not suited for this purpose. Such an appeal, however, can be, and generally is,
the administrative hierarchy. Though a general appeal
provided within
tribunal of this type might be desirable, it does not seem to be the pressing
need of the moment. Judicial control is concerned with the legality and not
the wisdom of administrative acts, 9 and to determine this none seem to be
more competent that the courts of law. They are the institutions which have
developed the techniques of statutory interpretation and legal analysis, and it
is inconceivable that we should throw away this vast accumulation of exper-
ience and insights to confide the interpretation of the public law of the land
to persons whose only recomendation is that they are presumed to know better
than judges what the legislature had in mind.
If, on the other hand, it is intended that the new administrative courts
should be staffed by judges, then what is being proposed in effect is merely
a redistribution of labour within the present judicature. Can this purpose not
be achieved without the need for radical institutional innovation? Such
specialisation already exists in our Superior Court, for example, in the field
8The grounds of incompitence, violation forinelle de la r~gle de droit, vice de fornie,
and ditourneinent de pouvoir have their counterparts within the Anglo-American doctrine
of ultra vires, which includes, in addition to want or excess of jurisdiction in the objective
sense, procedural irregularity or violation of natural justice and extraneous considerations.
It must be conceded, however, that the French tribunals are often a good deal bolder
than our courts in the extent to which they will appreciate the facts where the terms of
the law are sufficiently precise to permit of it: See Treves, Administrative Discretion and
Judicial Control, 10 MOD. L. REv. 276 (1947).
9This is the cardinal principle of French judicial control. As often emphasised by the
Conseil d’Etat, the recours pour excas de pouvoir is a contr6le de la ligalit of administr-
ative acts and nof of their opportunit. E.g., Arr.t Dreyfus, July 7, 1916, S. 1917.3.41:
” . . . le ligislateur a entendu laisser a l’appriciation du gouvernement seul, le soit de
dccider souveraineiment de quelles sont celles des naturalisations postirieures au I fivrier
1913 qul seront inaintenues et qui seront rapporties; que par suite le sieur Dreyfus n’est
pas recevable a discuter devant le Conseil d’Etat l’opportuniti de la mesure prise a son
tgard.”
1952]
TWILIGHT OF JUDICIAL CONTROL
5
of bankruptcy. It is frankly conceded, however, that any reorganisation that
is not accompanied by thorough procedural simplification is doomed to
failure.-The need for some reform is unquestionably urgent, and the projected
revision of the Quebec Code of Civil Procedure would seem to offer an
excellent opportunity to attempt some of this needed reform within the
framework of the present system. Any proposal of this nature by the com-
mittee for revision would at least serve the useful purpose of bringing the
whole subject up for discussion by the legislature. If the result were nothing
more than to acquaint the public with the broad issues we should still have
taken an important step towards a solution.
For this reason special attention is drawn here to the situation in Quebec.
The problem is of course not confined to Quebec; it exists in varying degrees
throughout the Anglo-American world. If anything characterises the Quebec
situation, it is that the attitude of our judges seems to offer less resistance
than that of the common law courts to the statutory exclusion of judicial
control. This attitude combined with the recent emphasis in provincial
legislative policy on the denial of the prerogative writs and other recourse
from administrative decisions makes the virtual extinction of judicial control
almost a certainty.
THE GENERAL THEORY OF JUDICIAL CONTROL
In order to set the present problem in focus it is perhaps necessary to
consider briefly the general nature and scope of judicial control as it has been
developed and applied by Anglo-Canadian courts.
The general and limiting principle of judicial control is that so long as
an administrative authority has acted within its statutory jurisdiction a court
will not interfere with its decision. This axiom has been so long established
and so often stated that it is unnecessary to cite authority for it. It is some-
times emphasised by the statement that the courts do not exercise an appellate
jurisdiction over administrative bodies and that they will not substitute their
opinion on the facts for that of the administrator. The definition at various
times by the courts of what constitutes or goes to jurisdiction has, however,
qualified this general rule, so that it is more accurate to state that the
administrator’s decision is final on all facts except those upon which his
jurisdiction is based. For no matter how broad or absolute his discretion may
appear on the face of a statute, he cannot be allowed to be the final judge of
what persons or things the statute governs, and to give himself jurisdiction
over matters to which the statute does not apply.’0 Whether a particular
person or situation comes within the terms of a particular statute is a mixed
question of fact and law upon which judges very properly insist on having
the final say.
lOBattbury v. Fuller (1853), 9 Ex. 111, 140.
McGILL LAW JOURNAL
[VOL. I
Then there is the spirit as well as the letter of the law, and although the
letter is often rather silent as to how and for what reasons an administrator
may do a certain thing, the spirit, in a constitutional democracy, is that it
must be done in the public and not a private interest, in a spirit of fairness
and impartiality, and for lawful and proper reasons. It is not always easy to
say what would be lawful or proper reasons because that is getting too close
to the administrator’s discretion, but the courts will not tolerate obviously
unlawful or arbitrary motivation,”‘ such as the administrator’s or somebody
else’s private opinion, prejudice or wish, whether economic, political or
religious.’ 2 Where a statute confers a power for one purpose, an administrative
authority will not be allowed to exercise it for another, even though that other
purpose is also in a public interest. 13 It is unnecessary, of course, to speak of
fraud or other such manifest abuses of power.
Now to determine whether an administrator has made a Correct inter-
pietation of “jurisdictional fact” or whether his real reasons, stated or
involves an examination and
otherwise, were proper and lawful ones
appreciation of the facts of a case. So although it is quite true for the courts
to say that they do not exercise an appeal function in the sense that they
cannot revise or modify the administrator’s decision, they must be able to get
at the facts or reasons underlying that decision in order to make their control
at all effective.’ 4 It has, for instance, been held that an administrator must have
some evidence upon which, as a reasonable man, he could have come to his
conclusion,’ 5 though this appears to have been a highwater mark, from which
subsequent jurisprudence has receded.’ 6 In any event, the courts seem to have
established a contradictory and self-defeating principle that the administrator
need not disclose the reasons for his decision.’ 7 On one notable occasion it
24 Q.B.D. 371, 375-376.
lSharp v. Wakefield, [1891] A.C. 173, 179; R. v. Vestry of St. Pancras (1890),
121n Quebec see Jaillard v. City of Montreal (1934), 72 S.C. 112; Baikic v. City
of Montreal (1937), 75 S.C. 77; Bouchard v. Longueuil, [1942] S.C. 303; Leroux v.
City of Lachine, [1942] S.C. 352; Roncarelli v. Duplessis, Superior Ct. Montreal, May 2d,
1951, No. 253124, judgment of Mackinnon, J. (unreported).
‘ 3 Galloway v. Mayor & Comuwnalty of London (1866), L.R. 1 H.L. 43; Hanson v.
Radcliffe Urban District Council, [1922] 2 Ch. 490; Mun. Council of Sydney v. Campbell,
[19251 A.C. 338; see Treves, Administrative Discretion and Judicial Control, 10 MoD.
L. REv. 276 (1947).
1 4Re Silverberg, Re Bd. Police Commrs., [1937] 3 D.L.R. 509, 512.
‘ 6 Wilson v. Esquinalt and Nalrainm Ry.,
[1922] 1 A.C. 202; Re Boznnan, [1932]
2 K.B. 621, 634; Ltndon County Council (Riley Street Chelsea No. 1) Order 1938.
[1945] 2 All E.R. 484. See also Goldberg v. City of Montreal, 48 R.J. 309, 333 (S.C.,
1942) ; Normand v. Leroux, 11945] K.B. 101 ; for case where administrator decides in the
face of evidence see King v. Board of Education, [1910] 2 Y-B. 165, 175. But cf. Belleau
v. Minister of National Health, 11948] Ek. C.R. 288.
1 6E.g., Robinson v. Minister of Town and County Planning, [1947] K.B. 702.
“‘Sharp v. Wakefield, supra note 11, at 183; Cassel v. Ihglis, [1916] 2 Ch. 211; Robinson
v. Minister of Town and County Planning, supra note 16; Re Silverberg, supra note 14,
1952]
TWILIGHT OF JUDICIAL CONTROL
was very shrewdly said that though the administrator could not be forced to
give his reasons, if he chose not to disclose them, it would be presumed that
he had none which were lawful, and his decision would have to be quashed.’ 8
But again this effort to put a few more teeth in judicial control was apparently
considered too bold for imitation. 19
Any attempt to apply the requirements of “some evidence” or “reason-
ableness” to administrative decisions is generally defeated by the character
of modern legislation which confers such broad and subjective discretions
that the courts find themselves without any guide as to what grounds, if any,
are required to justify an administrative decision 20 judicial review of admi-
nistrative discretion is, therefore, generally confined to a determination of those
persons or things over which the administrator has jurisdiction. The other
grounds for upsetting his decision, namely, that the statute or regulation under
which he purported to act was ultra vires, that he failed to conduct a fair
hearing, or that he was manifestly motivated by improper considerations,
involve in no way an encroachment on his right to be the sole judge of the
facts. They are merely instances of want or excess of jurisdiction which no
body or law can be presumed to have authorised. 21
These common places are of some importance in considering the effect to be
given to statutory provisions prohibiting judicial control.
THE PROBLEM IN QUEBEC
Although the principles of judicial control in Quebec are those of English
public law, and common law decisions are cited and applied by our courts,
the general jurisdiction in administrative matters and the means by which that
jurisdiction is exercised are set out in the Code of Civil Procedure. The effect
of this codification, however general its terms, has been to give somewhat
less elasticity to the application of the prerogative writs than in common
law jurisdictions, where the development and extension of judicial control
for case where statute exempted authority from giving reasons; Villeneuve v. Corp St.
Alexander (1912), 42 S.C. 487, 493. Cf. Waller v. City of Montreal (1914), 45 S.C. 15,
24-25 per Greenshield, J. dissenting; see recommendation of Committee on Ministers
Powers in this regard, ‘CMD. No. 4060, at 100 (1932).
8 Wrights’ Can. Ropes v. Min. of Nat’l Rev., [1947] 1 D.L.R. 721.
1
19Poizer v. Ward, [1947] 4 D.L.R. 316. See criticism of this decision in 25 CAN. BAR.
REv. 1156 (1947).
20E.g., Liversedge v. Anderson, [1942] A.C. 202. See Poizer v. Ward, supra note 19,
for the expression “absolute discretion”.
21VTarrington, J. in Short v. Poole Corp., [1926] 1 Ch. 66, 91: “The only case in
which the court can interfere with an act of a public body which is, on the face of it,
regular and within its powers, is when it is proved to be in fact ultra vires, and the
references in the judgments . . . to bad faith, corruption, alien and irrelevant motives,
collateral and indirect objects, and so forth, are merely intended, when properly under-
stood, as examples of matters which, if proved to exist, might establish the ultra vires
character of the act in question.”
McGILL LAW JOURNAL
[VOL. 1
have been almost entirely
the work of jurisprudence. The point of
departure in Quebec for any consideration of whether a certain remedy will
lie is generally the terms of the Code rather than the principles to be discovered
in the common law. Even the grounds upon which a remedy may be sought
have to some extent been codified, though this cannot be said to have sensibly
restricted the scope of judicial control as defined by common law decisions.
The law provides that the “superintending and reforming power, order and
control of the Superior Court” over “all courts, circuit judges and magistrates,
and all other persons and bodies politic and corporate, within the Province”
is to be exercised “in such manner and form as by law provided. ’22 At the
very least, this is a statutory recognition of the general supervisory jurisdiction
which Superior Courts have traditionally exercised over inferior tribunals by
means of the prerogative writs.23 But so general are the terms of this provision
that it is difficult to conceive of any impediment or restriction, other than a
procedural one, to the jurisdiction of the Superior Court in administrative
matters generally. This part of the law, therefore, would not seem to require
any revision to assure a more general and adequate judicial control.
The expression “in such manner and form as by law provided” has been
taken to include, in addition to special appeals provided by other statutes, the
prerogative writs of certiorari, prohibition, mandamus, quo warranto and
habeas corpus, as well as injunction, and any other proceedings, 24 collateral
or enforcement, by which an administrative decision may be indirectly brought
within the purview of the Superior Court. It is difficult to see how, in the
absence of other provision, these words confer any right to attack an admin-
istrative decision by ordinary or direct action, though the jurisprudence has
left sufficient doubt on this question to make it still debatable.23 For the
purposes of this article, however, it is assumed that no such right exists in
Quebec with respect to the decisions of public administrative bodies other than
municipal corporations. Even if it did, it would not be a solution to the present
problem, but would merely remove procedural uncertainties in those cases
where judicial control had not been removed by law.
.
22C.C.P., art. 50.
23Rex v. Board of Education, [1910] 2 K.B. 165 per Farwell, L.J., at 178: ” .
. the
jurisdiction which the Court of King’s Bench for centuries, and the High Court since the
Judicature Acts, has exercised over such tribunals.”
24As to whether the declaratory action exists in Quebec, see R. v. Central Rly. Signal
Co. Ltd., [1933] S.C.R. 555; Corp. die Village de la Malbaie (1924), 36 K.B. 70;
Alexander Furs Ltd. v. Sadosky, [1947] K.B. 53, 55.
25See Bruneau, De l’article 50 du Code de procIure, 1R Du D. 403, 439 (1924-25);
Faribault, L’article 58 C.P.C. et les procedures municipales, 4 R. Du D. 582 (1926) ; with
regard to municipal acts, C6M v. County of Drummond, [1924] S.C.R. 186; Donohue v.
Malbaie, [1924] S.C.R. 510; with regard to judgments, Riberdy v. Tremblay (1918), 27
K.B. 385; Lacroix v. Tardif (1926), 29 Q.P.R. 13; Lamarche v. Cardin, [1949] S.C.
384; with regard to quasi-public bodies, Payment v. Acadiinie de Musique de Quibec
(1935), 59 K.B. 121; as to other provinces, see Lower Mainland Dairy Products v. Kilby
and Turner’s Dairy Ltd., [1941] S.C.R. 573.
1952]
TWILIGHT OF JUDICIAL CONTROL
It must be admitted, however, that these procedural uncertainties have in
some measure invited the statutory prohibition of judicial control. The
uncertainty with which the legislature is concerned is not so much that of
the private citizen as that of the administration, and the principal reason for
such prohibition is presumably the delay involved in recourse to the courts.
But the courts have so restricted the application of the writs of prohibition and
certiorari that their denial by statute is in many cases merely a legislative
recognition of the jurisprudence.
It was long ago recognised in English law that if the courts were to exercise
any control to speak of over administrative bodies, they would have to allow
themselves some latitude in the construction of the word “court” or “tribunal”
so as to make the writs of prohibition and certiorari applicable to bodies which
had few or none of the institutional characteristics of a court and in many
cases only a remote functional resemblance to one.26 Once admitted, this
principle became a very flexible one, without which the present development
of judicial control in the Anglo-American world would have been extremely
difficult, if not impossible. It has been said, perhaps with some justice, that
the courts have sometimes pushed the principle too far,27 but a more serious
criticism is that they have been inconsistent. As if afflicted by serious mis-
givings, they have by turns enlarged and restricted the application of prohibi-
tion and certiorari, so that the second state of the law is worse than the first.28
For a time it appeared as if a general criterion for the application of these
writs, reasonably free from semantic difficulties, was emerging from the
jurisprudence. Briefly stated, this criterion would recognise as a judicial
function for the purposes of certiorari or prohibition any decision or act which
imposed obligations on persons or determined their rights or property in
particular cases.2 9 Admittedly, this test would not be entirely free from
difficulties (which we cannot enlarge on here) but any possibilities inherent
in it, have been fairly well destroyed in Quebec by preoccupation with,
and confusion of, two kinds of theoretical distinction. The first of these
distinctions, made necessary by section 96 of the BNA Act, is the one
tribunals. This is an
between
the ordinary courts and administrative
26Brett, L.J., in Reg. v. Local Government Board (1882),
10 Q.B.D. 309, 321:
“My view of the power of prohibition at the present day is that the court should not be
chary of exercising it, and that whenever the Legislature entrusts to any body of persons
other than to Superior Courts the power of imposing an obligation upon individuals, the
Courts ought to exercise as widely as they can the power of controlling those bodies of
persons… ”
2 7E.g, Rex v. Electricity Commissioners, [1924] 1 K.B. 171. See Gordon, Administrat-
ive Tribunals and the Courts, 29 L. Q. REv. 419, 438.
2 8 Gordon, supra note 27; Finkleman; Separation of Powers; A Study in Administrat-
ive Law, 1 U. OF TORONTO L. J. 313 (1935-36).
2 9Reg. v. Local Gov’t Board, supra; Local Gov’t Board v. Arlidge, [1915] A.C. 120,
140; CoRRY, THE GROwTH OF GoVERNMENT AcrivimEs SINc- CONFEDmATioN 17 (1939).
McGILL LAW JOURNAL
[VOL. 1
essentially institutional distinction, but the Quebec courts have based it on
what they perceive to be a fundamental difference of function between courts
and administrative bodies, and have contrasted what they call the “judicial”
and “administrative” functions of these two institutions30 Whether or not
this is a valid or meaningful distinction is not really worth arguing for the
purposes of section 96 of the BNA Act, because, from a practical point of
view, it is inconceivable that the Canadian constitution should be allowed to
defeat the right of provincial legislatures to constitute and control their own
administrative bodies. The second distinction, however, is a more serious one
as far as judicial control is concerned. It is the distinction made between the
various functions within the administrative process.
Now certain of these functions, notably that of making regulations of
general applicability, are clearly of what might be called a legislative nature.
Others, consisting of well defined statutory duties involving little or no
discretion, are of a ministerial nature. The residue defies analysis, but is
unfortunately the principal object for judicial control. To call this residue
of powers “administrative” is to apply the generic term for all the various
types of function to one of them. To use the term “discretionary”
is to
describe one of their characteristics, but not really to distinguish them from
the powers of the courts and certainly not to say that they are non-judicial.
It is the judicial character of these powers, whatever form it takes, that we
are really interested in, for the writs of certiorari and prohibition apply not
merely to the institutions which we recognise as the regular courts of law,
but to all bodies exercising powers of a judicial nature. It is in the definition
of what constitutes or characterises the judicial function, regardless of in-
stitutional differences, that the difficulty arises. The distinction between
“law” and “discretion” which has so influenced the jurisprudence on this
point does not bear too close analysis. 31 The expression of this distinction in
any one of numerous other ways, such as by saying that the judicial function
is to declare existing rights and liabilities, but not to create them, or that
the courts are bound by law, but administrative bodies are a law unto
themselves, 32 is -hardly less free from objection. Be that as it may, there is
still room for discussion on this point, though such discussion has so far done
little or nothing to advance the cause of certainty in administrative law.
(Latterly, its most worthwhile effect has been to underscore the inadequacy
of the prerogative writs.)
30Attorney-General of Quebec v. Slanec and Grimstead (1933), 54 K.B. 230, 249.
3 1 See LAUTERPACHT, FUNcTIONs OF LAw IN THE INTERNATIONAL COMMUNITY (Oxford,
1933) ;’RoBsoN, op. cit., supra note 1, at 351, for criticism of this distinction.
32Gordon, supra note 27, at 106-108; Re Ashby, [1934] 3 D.L.R. 565, 568; Rex v.
Pantelidas, [19431 D.L.R. 569, 574; Re Brouwr and Brock and Rentals Administrator,
[1945] 3 D.L.R. 324: Commission des Relations Ouzvri~res v. Alliance des Professeurs
Catholiques de Montrial, [1951] K.B. 752, 772.
1952]
TWILIGHT OF JUDICIAL CONTROL
When, however, as in Quebec, the institutional distinction made for the
purpose of section 96 of the BNA Act is invoked to justify the functional
distinction with respect to certiorari or prohibition the confusion is only.
intensified. For example, the case of Slanec and Grimstead, which decided
that the Quebec Workmen’s Compensation Commission was not a court
within the meaning of section 96 of the BNA Act, is cited as authority in
Quebec cases where the sole question for determination is whether a certain
administrative body is exercising a judicial function so as to make it amenable
to prohibition or certiorari. 33 It may be argued that in such cases the courts
are merely referring for purposes of illustration to the analysis by the judges
in Slanec and Grimstead, but it is hard to escape the impression that they
actually consider that case to have decided the question before them.
Now, in the common law provinces, at least, it is assumed that the decision
of a workman’s compensation board is subject to review on certiorari, regard-
less of the fact that it may not be a count as understood in section 96 of the
BNA Act.3 4 So, for that matter, is a decision of a labour relations board. 35
Yet Quebec courts have in the last few years made it fairly clear that neither
prohibition nor certiorari will lie to our labour relations board.3 6 It is sub-
mitted that this result is due at least in part to a tendency to overlook the real
issue in Slanec and Grinstead.
This tendency has perhaps been furthered in Quebec by the terms of the
Code of Civil Procedure respecting the application of prohibition and
certiorari.37 Article 1003 of the Code states that
the writ of prohibition lies whenever a court of inferior jurisdiction exceeds its
jurisdiction. [Italics supplied]
Article 1292 provides that
In all cases where no appeal is given from the inferior court mentioned in articles
59, 61, 63, 64, and 65, the case may be evoked before judgment or the judgment may
be revised, by means of a writ of certiorari, unless this remedy is also taken away
by law.
3 3E.g., Prudential Assurance Co. of America v. La Commission des Relations Ouvri~res,
[1951] Q.P.R. 1, 2; Alliance des Professeurs Catholiques, supra note 32, at 765;
see Beaulieu, Ligislation du Travail, 10 R. Du B. 393, 394, 395 (1950).
3 4E.g., Re Workmen’s Compensation Act and CPR, [1950] 2 D.L.R. 630. See La
Commission des Accidents de Travail v. Laurentian Spring Water (1939), 43 Q.P.R., 432,
for proposition that the Quebec Workmen’s Commission is governed by art. 50, C.C.P.
3 5E.g., Capital Cab Ltd. v. Can. Brotherhood Ry. Employees, [1950] 1 D.L.R. 184;
Bruton v. Regina City Policeman’s Ass’n, [1945] 3 D.L.R. 437; Dominion, Fire Brick
Clay Products v. Labour Relations Bd., [1946] 4 D.L.R. 130.
36See note 33 supra; cf. Classon, Mills Ltd. v. Council of Arbitration et al., [1951]
K.B. 366; L’Assoc. Patronale des Manufacturiers de Chaussures, [1951] S.C. 453, showing
that prohibition will lie to an arbitration council.
3 7Dorion, J., in Rossi v. Lacroix (1929), 46 K.B. 405, 414: “Le Code de Procedure n’a
pas cri le bref de prohibition. I1 existait en vertu, du droit commun.”.
McGILL LAW JOURNAL
[VOL. I
In a recent Quebec case it was held that certiorari did not apply to the Labour
Relations Board because it was not a court within the meaning of article 1292
above.38 No reference was made to another article of the Code of Civil
Procedure which reads:
The procedure regulated by this Chapter applies also to all other cases in which
the writ of certiorari will lie, and against any other inferior court not referred to by
Article 1292 . .
[Italics supplied] 38a
This neglected article would seem to confer sufficient authority for the common
law application of certiorari to all other tribunals or bodies exercising powers
of a judicial nature.
It has been suggested by one writer 9 that there is something paradoxical
about the courts declaring that an administrative body is not a court within
the meaning of section 96 of the BNA Act, but that it is a court for the
purpose of certiorari or prohibition, and this may well be the view taken by
some Quebec judges. But the extended application of these writs by the
common law jurisprudence is a recognition not only of a practical necessity
if there is to be any judicial control, but of the fact that judicial functions
may be exercised by institutions other -than the courts of law. The choice is
between a paradox and a dilemma wherein the writs of certiorari and prohibi-
tion could not apply at all to administrative bodies, or where they did apply,
such bodies would be constituted in violation of section 96 of the BNA Act.
In any event, the question, so far as Quebec is concerned, is fast becoming
academic, because the legislator seems determined that there shall be neither
paradox nor dilemna. A recent amendment to the Quebec Labour Relations
Act reads as follows:
No writ of quo warranto, of mandamus, of certiorari, of prohibition or injunction
may be issued against the Board, or against any of its members, on account of a
decision, a procedure or any act whatsoever relating to the exercise of their functions.
Article 50 of the Code of Civil Procedure shall not apply to the Board.4 0
The same immunity has been conferred on the recently constituted Provincial
Rentals Commission 41 and Montreal Transportation Commission. 42 Such
legislative provisions barring recourse to the courts from administrative
decisions and purporting to exclude all judicial control whatsoever, even in
collateral proceedings, are not new to the law of Quebec. They are to be found
in numerous statutes, 43 even the one governing the legal profession, 44 and
38Prudential Assurance Co. v. La Commission des Relations Ouvri~res, supra note 39.
38aC.C.P., art. 1307.
3 9Willis, Section 69, British North America Act, 18 CAN. BAR. REv. 517, 538 (1940).
40 STATUTES OF QUEBEC, 1950-51, 14-15 GEo. VI, c. 36, 1.
41 STATUTES OF QUEBEC, 1950-51, 14-15 GwO. VI, c. 20, 17.
42 STATUTS OF QUEBEC, 1950-51, 14-15 GEo. VI, c. 124, 1.
43Notably Alcoholic Liquor Act, R.S.Q., 1941, c. 255, 139.
44Bar Act, R.S.Q., 1941, c. 262, 61.
1952]
TWILIGHT OF JUDICIAL CONTROL
the Code of Civil Procedure itself contains such a provision. 45 Nor, of course,
are they peculiar to Quebec. Many examples could be cited from the statute
law of the other provinces and of England. Such provisions are, in fact, a
general feature of modem legislation.
It is the attitude of our courts toward them that makes these provisions
of special interest in Quebec. Although the Quebec jurisprudence is not rich
in decisions on this point, the few isolated statements which may be found
rather indicate that our judges will, in contrast to their common law brethern,
give full effect to the terms of administrative finality. In the other provinces,
as in England, the general tenor of the jurisprudence has been that no statute
will be construed as conferring immunity on administrative authorities for
want or excess of jurisdiction, and that the control of the courts over such
questions cannot be ousted. 46 At first blush this may appear to be a perfectly
reasonable and even self-evident principle if there is to be any limit what-
soever to administrative conduct. But on closer inspection it is seen to be very
insecurely grounded in judicial rationalisation.
This fact is amply illustrated by a case comment in the Canadian Bar
Review on the recent decision of the Manitoba Court of Appeal in Re Work-
men’s Compensation Act and CPR.47 In that case it was held that despite the
statutory exclusion of judicial control in the Manitoba Workmen’s Com-
pensation Act, the Court was not prevented from reviewing the question of
whether an injured person was a “workman” within the meaning of the Act
as this point went to the jurisdiction of the Board, and the Court reversed the
Board’s finding on this fact. The commentator on the case,48 in expressing
his approval of it, says:
The approach of McPherson, C.J.M., enables the courts to maintain control over
administrative action despite the presence of a statutory provision for administrative
finality of the type of a ‘conclusive-evidence’ clause. In his view, such a clause means
only that the administrative discretion is, so long as the agency concerned keeps
within the limits the enabling statute allows, absolute; but the question of vires
is still within the judicial competence.
And he cites a number of English cases containing statements to similar effect,
notably that of Lord Slesser in Ex parte Yaffe that such a clause would valid-
45C.C.P., art. 87a.
46Minister of Health v. The King (ex parte Yaffe), [1913] A.C. 494; Canadian North-
ern Ry. Co. v. Wilson
(1918), 43 D.L.R. 412; The King v. National Fish Co.
[1931] Ex. C.I. 75; Re McEwen, The Board of Review for Manitoba v. Trust
& Loan, [1941] C.S.R. 452; Society of the Love of Jesus v. Smart and Nicolls, [1944]
2 D.L.R. 551; Bruton v. Regina City Policeman’s Ass’n. [1945] 3 D.L.R. 437; Don;.
inion Fire Brick and Clay Products and Sask. Labour Relations Board, [1946] 4 D.L.R.
130; Re Lunenburg Sea Products Ltd., Re Zwicker, [1947] 3 D.L.R. 195.
47[1950] 2 D.L.R. 630.
48Schwartz, 28 CAN. BaR. RE V. 673 (1950).
McGILL LAW JOURNAL
[VOL. 1
ate administrative action that was “legally intra vires but administratively
imperfect.
‘ 49
Such statements are, however, no more nor less than an expression of the
limits to which a court will interfere with an administrative decision under
any circumstances. As pointed out above, even where there is no statutory
exclusion of their control, the courts never claim more than the right to review
the jurisdiction of an administrative authority, to question the legality, but not
the wisdom, correctness or expediency of its decision. It has always ,been
assumed that within the limits of its jurisdiction, in the fullest sense given to
that term by the jurisprudence, the decision of the administrative authority
is final. To say, therefore, that the terms of statutory exclusion mean nothing
more than this, is, in fact, to ignore such terms altogether and to treat them
as a vain and repetitious attempt to confer on administrative bodies an authority
which the courts have never denied nor even seriously challenged.
Attempts have been made to make some real distinction for the case of
statutory exclusion, whereby the grounds upon which the courts may quash
an administrative decision are more limited than in ordinary cases where the
exercise of their jurisdiction is not prohibited by statute. For example, in the
case of Colonial Bank of Australasia v. WilliamP it was said that these
grounds were limited to “manifest defect of jurisdiction in the tribunal” or
“manifest fraud in the party procuring [the decision].” But this is admitting
the thin edge of the wedge and is hardly less difficult to justify than the un-
qualfied refusal to recognise statutory exclusion. The expression “administr-
atively imperfect” used by Lord Slesser above might conceivably be under-
stood to refer to procedural irregularity, but if such were the intention of the
legislature, it could be quite easily stated without the need for barring all
recourse whatsoever to the courts of law.
The truth of the matter is that the real reason or justification for statutory
exclusion is not so much that judicial control goes too far in its interference
with administrative discretion but that it causes delay and uncertainty in the
administrative process. It is not the theory or scope of judicial control which
is at fault, but the procedure or means by which it is exercised. This is
particularly true for legislation of a temporary and emergency nature. An
example of such legislation is the Quebec Rentals Act5 l, which expressly
provides that it is to be in force only until April 30th, 1953. If decisions under
this Act were exposed to attack in the courts, its usefulness would be greatly
impaired, and its operation could be brought to a virtual standstill. With the
present congested state of our rolls and the latitude which attorneys are in
the habit of extending to one another in the matter of delays, it is more than
likely that matters decided under the Act would still be in issue before the
Courts after the Act itself had ceased to be in force. This does not mean to
49[1930] 2 K.B. 98, 170.
50(1874) L.R. 5 P.C. 417, 442.
51 STATUThS OF QumEBc, 1950-51, 14-15 GEo. VI, c. 20.
195,2]
TWILIGHT OF JUDICIAL CONTROL
say that there should be no judicial control over administrative activity of
this kind, but that the control should be of the same swift and expeditious
chatacter as the administrative activity iself.
It is therefore apparent that if the Courts are to give effect to the obvious
intent of the legislature, statutory provisions for prohibiting judicial control
have to be taken seriously, however we may disapprove of them, and the remedy
is not to rationalise them away but to attempt to meet the legislator on his own
ground by proposals that will remove some, at least, of the more serious
objections to the present system. For this reason, the attitude of the Quebec
courts towards statutory exclusion, as far as it can be ascertained and predicted
from the juw-itpdeice, seems to be a more realistic one than that of common
law jurisdictions and better calculated to force a satisfactory solution of the
present problem.
A decision which contrasts the Quebec attitude sharply with that of common
law courts is to be found in the recent case of McFall v. Lafl~che.52 There
Judge Marier of the Superior Court was faced with section 15(2)5 3 of the
Wartime Prices and Trade Board Regulations (P.C. 8528) on an application
for certiorari to set aside a decision of the rentals administrator exempting a
lease from the provisions of the Regulations. Although Judge Marier based
his refusal of certiorari primarily on the ground that the administrator, in
exempting the lease, was exercising an “administrative” and not a “judicial”
function subject to review by certiorari, his pronouncement on the effect of
section 15(2) above, purporting to exclude judicial control, must be taken to
be not merely a loose obiter dictum, but a considered explre’ssion of the ‘Quebec
position on the question.
Said Judge Marier
The Court of Appeal in the case of Brown and Brock expressed the opinion that
section 15 of Order in Council P.C. 8528 would not be a bar to these proceedings
if the Order of the Deputy Administrator is a judicial one, and ‘the plaintiff’s attorney
has cited many judgments tendered by our Courts ‘tb The same effect, when there is
want or excess of jurisdiction or if the ‘decision tntails grave injufstice amounting to
fraud, but a more recent jurisprudence seemhs to the ‘effect ‘that when the proper
authority has by special law taken away the recourse to certiorari or injunction, etc.,
effect must be given to that special law.54
In point of fact, it was -the judgment appealed from In te Brown and Brock
and -not the Court of Appeal which held that this section was not a bar to
52[1951] Q.P.R. 378.
53″No proceedings by ‘vay of injunction, mandatory order, mandamus, prohibition,
certiorari or otherwise shall be instituted against any member -of “thie Board, Administr-
ator or other person for or in respect of any act or omission of himself or any other person
in the exercise or purported exercise of any power, discretion or authority or in the
performance or purported performance of any duty conferred Or imposed by or under
these regulations or any regulations for which these regulations are substituted or other-
wise conferred or imposed by the Governor in Council.”
54[1951] Q.P.R. at 383.
McGILL LAW JOURNAL
[VOL. I
judicial control. Robertson, C.J.O., speaking for the Court of Appeal, said:
Let me say at the outset that we are not to be taken as acquiescing in the view –
if any such view is expressed in the judgment appealed from –
that the privative
clause in the Order in Council is of no effect. We express no opinion one way or
another upon that. It has not been argued …
and we do not think it necessary to
determine the matter in disposing of this appeal. Therefore, we are not to be taken
as having dealt with it.
But the same section of the Wartime Prices and Trade Board Regulations
was considered by the Supreme Court of British Columbia in Society of the
Love of Jesus v. Smart and Nicolls,55 and the Court held, on a rather narrow
construction of its terms, that it did not take away the right to interfere where
the authority had exceeded its jurisdiction.
The recent jurisprudence to which Judge Marier referred in the McFall
case consisted of the decisions in Dub v. Lemonde56 and Daigneaudt v.
Meunier.57 The first of these cases concerned the effect of section 149 of the
Canada Temperance Act on an application for certiorari from a conviction
under that Act. Judge Stein, basing himself for the most part on the de-
cision of the Privy Council in Rex v. National Bell Liquors Ltd.,8 held that
the section was an effective bar to recourse by certiorari. Certain of his general
remarks bear quotation as illustrating the matter of fact attitude of Quebec
judges to such provisions. For example:
Puisque l’ot veut procider sous l’empire de l’art. 1292 de notre code de procidure,
et puisque cet article suppose qu’il peut ezister une loi qui refuserait le recours af
bref de certiorari, il me semble qu’il n’y a pas lieu de s’itonner qu’un juge donne
effet a une telle loi, quand on lui prisente une procidure prise sous son empire.69
And again:
De plus, remarquons que la plupart des jugements qui ont d~cid6 en faveur de
l’octroi du bref, malgri une prohibition ligale, sont des jugements rendus par des
tribunaux itrangers a cette province, dans le cas oil le bref de certiorari avait Jt9
6mis sous l’empire du Code Criminel, articles 1120 a 1132, articles qui ne contiennent
pas cette restriction de notre article 1292 C.P.6o
It is to be remarked that in this case Judge Stein was concerned with the
statutory remedy of certiorari provided for by article 1292 of the Code of
Civil Procedure and confined in its application by the terms of the Code to
“courts” in the strict sense of the word. Specific reference is not made to
article 1307 of the Code which, as stated above, may be considered to re-
65[1944] 2 D.L.R. 551.
56(1929), 32 Q.P.R. 151.
57[1946] S.C. 437, 439.
58[1922] 2 A.C. 128.
59(1929), 32 Q.P.R. at 154
6Od. at 155.
1952]
TWILIGHT OF JUDICIAL CONTROL
cognise the common law remedy, but allusion is indirectly made to it in the
following statement:
Les nombreux jugeinents qui veulent que ce recours existe malgri une telle prohi-
bition, lorsqu’il y a eu, de la part de la Cour infirieure, excs de juridiction, soutnet-
tent qu’il s’agit la dun bref de prerogative, d’un recours qui est toujours ouvert
un sujet britannique, quand it est lisi par suite du difaut de juridiction dune Cour
infirieure.6′
To this extent, therefore, the case of Dubg v. Lemonde is not directly applicable
in McFall v. Laflche. Moreover, the application given to the decision in
Rex v. National Bell Liquors Ltd. is itself not free from objection, but it is not
intended here to enter upon that particular criticism, because the problem
with which we are concerned is larger than judicial misunderstanding.
The case of Daigneault v. Meunier, cited by Judge Marier, might appear
to be even less solid authority for his statement. In an action in the Superior
Court to evict him pursuant to a decision of the rentals administrator exempt-
ing his lease from the application of the Wartime Regulations, the defendant
pleaded that the administrator’s decision was illegal as having been based on
false declarations. The ordinance governing the case provided that the
administrator’s decision should be final and conclusive. With reference to this
provision Judge Lazure of the Superior Court said:
Considirant que la loi diclare que la dicision de l’adntinistrateur est finale et
concluante, quil n’y avait pas lieu d’admettre ladite preuve des pritendues diclara-
tions fausses faites a l’adninistrateur par le demandeur et qu’en droit cette Cour
n’a pas te droit de reviser ladite dicision.62
Again, this is nothing more nor less than a statement of the limits of judicial
control in any case, whether there be terms of administrative finality in the
governing statute or not. It has never been the function of a Superior Court
to weigh the evidence before an administrative authority, though it might be
said with some justice that this particular case points up one of -the objection-
able features of the present informality of most administrative proceedings.
However one may succeed in weakening the force of Judge Marier’s
remarks in the McFall case by an analysis of -the authority which he invokes,
it is difficult to escape the conviction that his view is bound in the long run
to prevail. Breachs have already been made in the common -law bulwark, 3
and the Quebec jurisprudence itself is nat without other pronouncements to
61(1929), 32 Q.P.R. at 155.
62[1946] S.C. 437, 439.
03E.g., Rex v. Ludlow, ex parte Bainsley Corp., [1947] 1 All. E.R. 880; see also Ex parte
Rhger (1909), 25 L.T. 718; Institute of Patent Agents v. Lockwood [1894] A. C.
347, 369; see Editorial Note to Re Lunenburg Sea Products Ltd., Re Zwicker, .[19471
3 D.L.R. 195.
McGILL LAW JOURNAL
[VOL. I
the same effect. 64 It is submitted, therefore, that because of both the uncertain
and narrow application being given to the prerogative writs and the effect
which the Quebec courts may be expected to give to the statutory exclusion
of judicial control, it is time to consider some procedural reform of the
present system.
The effect which an unquestioned right of access to the courts may have
on their attitude and the effectiveness of their control65 is to be seen in the
recent judgment of the Quebec Court of Appeal in Giroux v. Maheux.06 This
case bears very favourable comparison with the decision of the same court in
Commission de Relations Ouvriares de la Province de Qu6bec v. Alliance des
Professeur Catholiques de Montral6 7 where the thought and energies of the
court were largely occupied with the question of whether a writ of prohibition
would lie, and only subsidiarily with the grounds of complaint. In the Giroux
case the Court was sitting on an appeal from a decision of the Provincial
Transportation and Communication Board granting a transportation monopoly
for a certain district to one of the parties. Maheux ‘had applied to the Board
for the right to operate a bus service between Ste. Th6r~se and Quebec and
had served his petition on Giroux because the latter was at ‘the time operating
an exclusive service between Laval and Quebec, including Ste. Th~r~se en
route. After hearing the parties in accordance with its rules of procedure, the
Board granted a permit to Maheux to operate a service between Ste. Th6r~se
and Quebec, thus removing the monopoly character of Giroux’s right. But
after publishing ?this decision and without hearing the parties again, the
Board revised its decision, annulled in part the permit of Giroux and granted
to Maheux the exclusive right to operate the service in question. As expressly
permitted by the Act, Giroux appealed to the Court of Queen’s Bench on the
ground that the Board bad exceeded its jurisdiction in revising its decision
in this way.
“As to art. 87a, C.C.P., see $ohnson Woolen Mills Ltd. v. Southern Canada Power
Co. and Sec. of Province, [1945] KB. 134, 137; Man. de Chaussures v. Dependable
Slipper & Shoe Mfg., Superior Ct. Quebec, Aug. 30, 1947, No. 52461, judgment of
Boulanger, J. (unreported) ; Alliance des Professeurs Catholiques, supra note 32, at 768,
769. Cf. L’Assoc. Patronale des Manufacturiers de Chaussures v. De Blois, [1951]
S.C. 453, per Savard, J., at 456: “Il est possible que c’itait l’intention du llgisla-
teurs d’abolir absolument le bref de prohibition dans tous les cas oil la commission des
relations ouvri res et les conseils d’arbitrage itaient intiressis. Seulement, la rdaction de
la loi ne va pas jusque-la, il s’agit d’une loi d’exception qui doit Rtre interpr~tee fr&s
strictement parce qu’elle enlkve un droit que conf9re la loi gdndrale”; see also Langlais v.
S.R.B. (1932), 62 K.B. 282, 287-291, 294.
65E.g., Bergman, J.A., in Poizer v. Ward, [1947] 4 D.L.R. 316, 323: “In the Wrights’
Ropes case the Judicial Committee was dealing with the scope of the right of appeal given
by the Income Tax against the decision of the Minister . . .and it exercised its right
of review under a statutory right of appeal. That decision has no application to a case
where, as here, relief is sought by way of mandamus.”
66[1947] K.B. 163.
67See notes 32, 33 and 64, supra.
1952]
TWILIGHT OF JUDICIAL CONTROL
The case is of interest from several points of view. One is the jurisdiction
given by statute to the Court of Appeal to review the decision of the Board
on questions of jurisdiction and law. The second is the character of the
procedure adopted by the Board. The law provides that the Board and its
members shall have the powers of a judge of the Superior Court and authorises
them to make rules of practice to govern their proceedings. The procedure
laid down by these rules of practice is avowedly modelled on that of a
Superior Court, though necessarily more expeditious. Every reasonable safe-
guard is provided for thoroughly
judicial proceedings. If these rules of
practice were more generally imitated by administrative tribunals there might
be less need for control by the courts of law.
The Court of Appeal held, three to two, that the decision of the Board
should be quashed. Even among the majority there was some divergence of
opinion, and discussion turned very largely on the terms of the statute and
rules of practice governing the Board. Pratte, J., held that the decision of the
Board constituted a violation of the audi alteram parten principle expressly
guaranteed by its own rules of practice, though he did not recognise in the
Board the judicial character which judges Galipeault and Marchand acknowl-
edged. These judges, while making mention of the same irregularity, declared
also that the Board’s. decision was ultra petita as there had never been any
question before it of granting a monopoly to Maheux. The dissenting judges
held in substance that the Board was exercising an administrative function
and was free to revise or correct its decision as it did. It is discouraging that
even this case should not have been free of that abstract discussion of the
terms “administrative” and “judicial” which has been the curse of the whole
subject to date, and which seems by its intellectual glitter to constitute an
irresistible attraction for lawyers and judges.
The discussion on this point was, however, not the essential basis of the
decision, nor even the important element that it was in the case of Alliance
des Professeurs Catholiques above. The latter case illustrates as forcefully
as anything the critical state of judicial control in this province. The syndicate
of Catholic School teachers appealed by way of prohibition from the revoca-
tion of their certificate without a hearing by the Labour Relations Board.
Two of the judges declared that the Board was not exercising a judicial
function subject to control by prohibition. Two of them confined themselves
to stating that prohibition was not in any event the proper remedy as there
remained nothing to prohibit. The fifth did not pronounce on either question
but found that the failure to hear the syndicate did not, it view of the silence
of the law on this question, constitute an excess of jurisdiction. His opinion
on this point was shared by two of the other judges.
Without passing criticism on these reasons for judgment, it is respectfully
submitted that, viewed in its entirety, this case reflects the disquieting un-
certainty of the present state of the law in Quebec. It is not the purpose of
McGILL LAW JOURNAL
[VOL. 1
this article to emphasise this uncertainty, in so far as it affects the scope or
theory of judicial control, though in this respect attention might be drawn
to the position adopted in this case on the requirement of a fair hearing. It is
enough for now to underline what appears to be the principal issue, namely
the right of access to the courts, and to make some modest suggestion of
reform in this regard.
A SUGGESTED REmEDY
Assuming always that the need for judicial control of some kind is gener-
ally acknowledged,
it would seem apparent that the jurisdiction of the
courts should not be left in doubt. It is therefore suggested that the Committee
for Revision of the Code of Civil Procedure propose the inclusion in the
Code of a new section to govern appeals from administrative decisions. A
direct appeal on questions of law or jurisdiction, similar to that exercised in
the case of Giroux v. Maheux, might be given to the Superior Court from all
* administrative decisions affecting the rights or obligations of individuals.
The delay for such appeal should be fairly short, say, ten days, and it
might even be by leave to be granted by a judge of the Court of Queen’s Bench.
Such leave could be sought on a simple notice outlining the grounds for
appeal. The administrative body concerned would have a certain delay to
file the decision appealed from, the reasons for it and all supporting documents.
This requirement that the administrative authority be forced to give the
reasons for its decision is most important if there is to be any effective judicial
control. The delays should be de rigueur and the appeal dismissed or the
administrative decision quashed by a judge of the Court of Queen’s Bench
upon failure of either party to comply with them.
Should leave to appeal be granted, the notice or application, together with
the administrative decision and reasons for it and all documents or affidavits
in support thereof, would be sent down to the Superior Court to be heard
summarily by three judges out of a number to be appointed especially for this
purpose, and on a date to be fixed by the registrar of a special division of the
Court established to look after such appeals. The decision of these judges
should be final. It should be left to their discretion to order any proof which
they deem necessary and to adjourn the case for this purpose, but as a general
rule, the appeals should be conducted in the form of a stated case. Serious
consideration should be given to the advisability of codifying in fairly specific
form the grounds for such appeal. There should be established for such
appeals a special tariff, designed to discourage frivolous proceedings, but at
the same time to make recourse available to -the citizens generally.
Such a reform might necessitate some changes in the Courts of Justice Act
and other statutes, but the Code could grant such appeal “notwithstanding any
other provision of law” so as to avoid the need for amendment to special laws
1952]
TWILIGHT OF JUDICIAL CONTROL
presently prohibiting recourse by the prerogative writs and otherwise. The
prerogative writs would remain in force, where they had not been expressly
taken away, and continue to serve a useful purpose in the control of inferior
courts of law.
No doubt the above proposal is open to some objections, and perhaps even
to fatal ones, but it is offered only as a point of departure for discussion, in
the hope that such discussion may place the problem in the kind of focus
that will force the Legislature and other responsible powers to consider the
real issue of our time; whether there are to be adequate safeguards for
‘the citizen in an age in which the public law spreads like a relentless lava over
the area of private legal relations.6 8
6 8Since the above article went to press, the Quebec Superior Court has made two very
interesting pronouncements on the scope and effect of the recent provision, quoted at page
12, purporting to confer immunity from judicial control on the Quebec Labour Relations
Board and Rentals Commission.
In the first of these decisions, Canadian Copper Refiners Limited v. Labour Relations
Board of the Province of Quebec and Oil Workers In’l Union, Superior Ct. Quebec, June
21, 1952, No. 65148, judgment of Mr. Justice Choquette (as yet unreported) the issue, on
inscription-in-law, was the right to bring a direct action to quash the certification of a
minority union. The Board invoked 41a of the Labour Relations Act which is re-
produced at page 12 of the foregoing article, but the Court held that the words “Article
50 of the Code of Civil Procedure shall not apply to the Board” had not taken away the
jurisdiction of the Superior Court in virtue of 36 of the Courts of Justice Act (1941
R.S.Q. c. 15) This section sets forth, in terms almost identical to those of art. 50 of
the Code of Civil Procedure, the general superintending and controlling power of the
Superior Court, making express reference to the statute, 12 Vic. c. 38, which transferred
that jurisdiction to the Superior Court from the Court of Queen’s Bench. Historically
and juridically, this is undoubtedly the true authority for the Superior Court’s jurisdiction
over inferior courts and other bodies, though in exercising that jurisdiction, judges have
generally made reference only to art. 50 of the Code of Civil Procedure, which stipulates
the jurisdiction of the civil courts as well as the procedure to be adopted before them.
Mr. Justice Choquette observes that art. 50 was merely the reproduction in the Code of
Civil Procedure of 1897 of the first paragraph of 2329 of the Revised Statutes of 1888,
now 36 of the Courts of Justice Act. This judgment, therefore, impliedly recognises
that the recent provincial legislation has, within its limits, achieved its intended purpose
(” . . . the legislature could suppress totally article 50 of the Code of Civil Procedure
without ipso facto touching in bearing article 36 of the Courts of Justice Act”) but it
is perhaps hasty to conclude that the effect of this judgment is merely to postpone the
ultimate triumph of the Legislature, for the court adds: “It cannot accept that being ruled
by a public system of law, the principles of which go back to the same source as that of
the other provinces, the citizens of the province of Quebec should be less protected by
those principles in their rights and liberty than the other citizens of Canada are. So with
all due respect to the contrary opinion, this Court does not feel inclined by reason of that
41a of the Labour Relations Act, to abdicate a power so essential for the safe-
guard of the right of the individuals, as that which has been conferred upon the Court
by the law which has given the Court its existence and constitution.”
In addition to the foregoing, this judgment is interesting for the fact that it recognises
the recourse by direct action against the decisions of an administrative tribunal, though
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no attempt is made to justify this in terms of the historical derivation of 36 of the
Courts of Justice Act.
The second decision, St. Aubin v. Courchesne, Superior Ct. Montreal, July 24, 1952,
No. 318315, judgment of Mr. Justice Montpetit, (as yet unreported) involved the same
provision of law in an Action to evict pursuant to a decision of the Quebec Rentals Com-
mission exempting a lease from the provisions of the Rentals Act. Plaintiff inscribed in
law (invodng 17 of the Rentals Act which is in the same terms as 41a of the Labour
Relations Act) against Defendantes allegation that the decision of the Commission was
ultra vires. Said Mr. Justice Montpetit: “La Cour n’arrive pas A se convaincre que le
lgislateur en idictant que ‘article 50 du Code de Procidure Civil ne s’applique pas a la
Commission, ni a ses membres, ni aux adminisirateurs (paragraphe 2 de l’article 17 de la
loi concernant la rigie des loyers) a voulu que [a Cour Supirieure endosse, sans broncher,
toutes les injustices on illigalitis qui pourraient, par hasard, se glisser days vne dicision
ou un ordre de cette Commission ou de l’un de ses inembres ou administrateurs. Si tel !tait
le cas, le ligislateur n’aurait-il pas ajouter dans le second paragraphe les Inots qui se
trouvent dans le premier… ‘en raison; dune dicision, d’une procidure ou d’un acte quel.
conque relevant de l’exercise de leurs fonctions” ”
The author’s reaction to the above judgments must be to admit that they tend to con-
firm his earlier misgivings about the justice of his title, for, although both of these
decisions suggest some embarrassment in the face of recent legislation, it is a matter of
satisfaction that they show at the same time a resistance on the part of Quebec judges
fully as vigorous and ingenious as that of their common law brethren. The problem,
however, remains, for we may expect the “intention” of the legislature to be rendered
increasingly manifest until we are forced to come to grips with the real problem, which
is one of procedural reform.