T-1326-00
2001 FCT 511
Richard George Chiasson (Plaintiff)
v.
Her Majesty the Queen (Defendant)
Indexed as: Chiassonv. Canada (T.D.)
Trial Division, Aronovitch P.--Vancouver, January 19; Ottawa, May 22, 2001.
Crown -- Prerogatives -- Motion to strike action for mandamus to compel submission of application for Canadian bravery decoration in recognition of rescue of American sailors in 1943 -- Nomination form indicating consideration given only to incidents less than two years prior to date of submission -- Plaintiff protesting two-year limitation -- Canadian Decorations Advisory Committee discussing protest, but upholding time limit, determining case inadmissible for consideration -- Crown submitting Canadian Bravery Decorations Regulations, 1996 giving Committee unrestricted prerogative authority to determine eligibility requirements, including imposition of time bar -- Recent cases indicating some erosion of immunity from judicial scrutiny of exercise of Crown prerogative -- Issue whether decision to apply time limit exercise of Crown prerogative, beyond scope of review -- To extent requiring determination of scope of Committee's powers by reference to letters patent and Regulations, may be subject to review -- Whether may be judicial review of particular decision made by virtue of delegated Crown prerogative, requiring determination on merits, on case-by-case basis, having regard to breadth of power, nature of impugned decision.
Practice -- Pleadings -- Motion to strike -- Motion to strike action for mandamus to compel submission of nomination for Canadian bravery decoration in recognition of 1943 rescue of American sailors -- Consideration given only to incidents less than two years prior to date of submission -- Plaintiff protesting two-year limitation -- Canadian Decorations Advisory Committee discussing protest, but upholding time limit, determining case inadmissible for consideration -- Crown submitting action moot as plaintiff already obtaining relief sought i.e. Committee already reviewing nomination -- Action not moot -- Issue precisely whether within Committee's powers to decline to further consider application -- Plaintiff's case not bereft of any possibility of success -- Cases indicating erosion of immunity from judicial scrutiny of exercise of Crown prerogative -- Determination of scope of Committee's powers by reference to letters patent, Regulations may be subject to judicial review.
Practice -- Commencement of proceedings -- Action for mandamus to compel submission of application for Canadian bravery decoration -- Federal Court Act, s. 18.1(3) providing writ of mandamus may only be sought by way of application for judicial review -- Although action for mandamus improper, defect as to form only -- Federal Court Rules, 1998, r. 57 may be invoked to convert action to judicial review application.
Administrative law -- Judicial review -- Mandamus -- Motion to strike action for mandamus to compel submission of application for Canadian bravery decoration for actions occurring more than two years previously for determination on merits -- Mandamus may only be sought by application for judicial review under Federal Court Act, s. 18.1(3), but action could be converted to application for judicial review under Federal Court Rules, 1998, r. 57 -- Motion dismissed -- Plaintiff's case not bereft of possibility of success -- Issue whether decision to apply time bar exercise of Crown prerogative, beyond scope of review -- To extent calling for determination of Committee's powers by reference to letters patent, Regulations may be subject to judicial review.
Federal Court Jurisdiction -- Trial Division -- Federal Court Act, s. 18.1(3) stipulating writ of mandamus may be sought only by application for judicial review -- Argued that Court lacking jurisdiction -- That plaintiff commenced proceeding for mandamus by action mere defect as to form -- Federal Court Rules, 1998, r. 57 could be invoked to convert action to judicial review application.
This was an application to strike the action for a writ of mandamus to compel the submission of the plaintiff's application to the Canadian Decorations Advisory Committee for determination on its merits. In March 2000 the plaintiff nominated his father for a Canadian bravery decoration in recognition of his 1943 rescue of American sailors from a vessel grounded outside Louisbourg Harbour. The form indicated that consideration is given only to deeds which have taken place less than two years prior to the date of submission. The plaintiff protested such a time limit in writing. At a meeting in June 2000, the Committee discussed the plaintiff's protest against the two-year rule. In September, the plaintiff was informed that the Committee had decided to uphold the two-year limit and had determined that his father's case was not admissible for consideration. In the meantime the plaintiff had issued his statement of claim.
The issues were: (1) whether the action was moot; (2) whether the matter was subject to judicial review; and (3) whether the Court had jurisdiction to entertain an action for mandamus.
Held, the application should be dismissed, and leave granted to the plaintiff to bring a motion to convert the action to an application for judicial review and for any necessary extensions of time.
(1) The Crown's argument, that the action was moot because the plaintiff had already obtained the remedy that he sought, failed. The Crown argued that the Committee had already reviewed the nomination and determined the plaintiff's father to be ineligible. Whether it was within the Committee's powers to decline to further consider the application, was precisely the issue herein.
(2) The Crown argued that the bestowal of honours was an exercise of unfettered prerogative not supplanted by legislation. It submitted that Canadian Bravery Decorations Regulations, 1996, sections 7 (setting out the composition of the Committee) and 8 (providing that the Committee shall determine whether nominees are eligible to be awarded a Canadian bravery decoration) give the Committee unrestricted prerogative authority to determine eligibility requirements, including the imposition of a time bar, and preclude any limitations on the exercise of the delegated prerogative so that decisions of the Committee were beyond the Court's jurisdiction.
While the exercise of Crown prerogative has traditionally been immune from scrutiny by the courts, recent decisions indicated some erosion of that immunity. The Supreme Court of Canada has held that the Crown prerogative may be subject to judicial scrutiny to determine whether an impugned decision is constitutional. Further, if a prerogative power has been supplanted by a statutory one, the exercise of the statutory power is subject to review. Brown and Evans state in Judicial Review of Administrative Action in Canada that even when judicial review of an exercise of the prerogative power is unavailable, a court can still be called upon to decide whether the prerogative power exists in law, and if it does, how broad the power is and whether the action taken fell within its scope.
The plaintiff submitted that the institution of a two-year limitation was beyond the delegated authority of the Committee. The question then was whether the Committee's decision to apply a time bar, to preclude further examination of the nomination of plaintiff's father, was an exercise of Crown prerogative which was beyond the scope of review by the Court. To the extent that this called for a determination of the scope of the Committee's powers by reference to the letters patent and the Regulations, it may arguably be subject to review.
Whether there may be judicial control of a particular decision made by virtue of a delegated Crown prerogative requires determination on its merits, on a case-by-case basis, having regard to the breadth of the power and nature of the impugned decision.
(3) Finally, the Crown argued that the Court had no jurisdiction to entertain an action for mandamus which was only available on judicial review. Federal Court Act, subsection 18.1(3) stipulates that a writ of mandamus may only be sought by way of an application for judicial review. While acknowledging that a proceeding that is improperly launched may be converted to the appropriate form, the Crown urged that the Court should not convert the action to an application because it was without foundation and out of time. An action for mandamus is improper and without foundation. This, however, was essentially a defect as to form, presumably due to the fact that the litigant was self-represented. In such instances, rule 57 has been interpreted and applied by this Court to permit the conversion of a proceeding improperly commenced as an action to an application for judicial review.
| statutes and regulations judicially considered |
| Canadian Bravery Decorations Regulations, 1996, P.C. 1997-123, C. Gaz. 1997.I.2091, ss. 7, 8, 10, 17. |
| Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(3) (as enacted by S.C. 1990, c. 8, s. 5). |
| Federal Court Rules, 1998, SOR/98-106, rr. 57, 221. |
| Public Hospitals Act, R.S.O. 1970, c. 378, s. 4(5). |
| cases judicially considered |
| applied: |
| Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481; 12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1. |
| considered: |
| Black v. Canada (Prime Minister) (2000), 47 O.R. (3d) 532; 184 D.L.R. (4th) 755; 43 C.P.C. (4th) 53 (Sup. Ct.); Council of Civil Service Unions v. Minister of Civil Service, [1985] 1 A.C. 374 (H.L.); Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102; (1993), 19 Admin. L.R. (2d) 91; 11 C.E.L.R. (N.S.) 1; 64 F.T.R. 127 (T.D.); Re Doctors Hospital and Minister of Health et al. (1976), 12 O.R. (2d) 164; 68 D.L.R. (3d) 220; 1 C.P.C. 232 (Div. Ct.); Lustig-Pream v. Admiralty Board of the Defence Council, [1995] E.W.J. No. 4735 (H.C.) (QL). |
| referred to: |
| Scrimbitt v. Canada (1997), 129 F.T.R. 17 (F.C.T.D.); Brar (Litigation Guardian of) v. Canada (1997), 126 F.T.R. 77 (F.C.T.D.); Prospect Investments Ltd. v. New Brunswick (Liquor Licensing Board) (1991), 113 N.B.R. (2d) 225; 48 Admin. L.R. 105 (Q.B.); Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; (1990), 74 D.L.R. (4th) 321; [1990] 6 W.W.R. 385; 49 B.C.L.R. (2d) 273; 4 C.C.L.T. (2d) 1; 43 C.P.C. (2d) 105; 117 N.R. 321; Perera v. Canada, [1999] F.C.J. No. 199 (T.D.) (QL); McLean v. Canada (1999), 164 F.T.R. 208 (F.C.T.D.); Khaper v. Canada (1999), 178 F.T.R. 78 (F.C.T.D.); Khaper v. Canada (1999), 182 F.T.R. 78 (F.C.T.D.); Niederauer v. Canada (Minister of National Revenue -- M.N.R.), [2000] F.C.J. No. 928 (T.D.) (QL); Métis National Council of Women v. Canada, [2000] F.C.J. No. 1961 (T.D.) (QL). |
| authors cited |
| Brown, Donald J. M. and John M. Evans. Judicial Review of Administrative Action in Canada, loose-leaf ed. Toronto: Canvasback Publishing, 2000. |
APPLICATION to strike an action for a writ of mandamus to compel the submission of an application to the Canadian Decorations Advisory Committee for determination on its merits, on the grounds that the bestowal of honours is a matter of Crown prerogative and not subject to review, the action was moot, and because mandamus is available only on judicial review. Application dismissed.
| appearing on his own behalf: |
| Richard George Chiasson. |
| appearances: |
| Edward Burnet and George C. Carruthers for defendant. |
| solicitors of record: |
| Deputy Attorney General of Canada for defendant. |
The following are the reasons for order rendered in English by
Aronovitch P.:
Background
[1]The plaintiff's father, Yvon Joseph Chiasson, served in the Canadian Merchant Navy in the Second World War. We are told that on about January 23, 1943, Joseph Chiasson, along with three fellow merchant seamen, rescued eight American sailors from a vessel grounded outside the harbour of Louisbourg, Nova Scotia. Seeking recognition for his father's courageous deeds, the plaintiff nominated his father for a Canadian bravery decoration.
[2]The Canadian Bravery decorations are established and awarded pursuant to regulations made further to Letters Patent issued by Her Majesty Queen Elizabeth II. They provide for the establishment of the Canadian Decorations Advisory Committee (the Committee) whose mandate essentially is to determine whether nominees are eligible for the award of a decoration and to submit lists of meritorious nominees to the Governor General of Canada (the Governor General).
[3]On March 31, 2000, the plaintiff forwarded a nomination form concerning his father to the attention of the Honours Directorate of the Chancellery of Honours, an administrative office of the Governor General. The form contained the following notice, "Consideration is only given to incidents less than two years prior to the date of submission".
[4]Mr. Chiasson also wrote to Marie de Bellefeuille-Percy, Director of the Honours Directorate at Rideau Hall and later, to the Governor General, Her Excellency the Right Honourable Adrienne Clarkson, protesting the two-year limitation rule and requesting that it be eliminated.
[5]On April 12, 2000, Mr. Chiasson received a reply from Lieutenant General James Gervais in his capacity as Deputy Secretary of the Chancellery. Lieutenant General Gervais informed Mr. Chiasson that Canada's Honours Policy does not permit awards to be granted for events which occurred before the creation of the current honours' system. He explained that the two-year rule was essentially adopted due to difficulties involved in investigating and verifying events that were long past.
[6]Further correspondence was exchanged, and on May 2, 2000, Mr. Chiasson received a letter from Lieutenant General Gervais stating that his comments on the two-year limitation issue would be brought to the attention of the Committee for discussion at its meeting in June of that year.
[7]The minutes of the Committee's meeting of June 14, 2000, indicate that there was in fact a discussion of Mr. Chiasson's challenge to the two-year rule. The minutes also state the Committee's view, which was that the two-year rule should not be included in the regulations. Instead, the Committee favoured a common sense approach in applying the rule when dealing with worthy cases very close to the borderline.
[8]Due to an administrative oversight the plaintiff was not informed of the discussion until September 2000. By letter dated September 7, 2000, Lieutenant General Gervais, in his capacity as Chairman of the Committee, wrote to the plaintiff, as follows:
Dear Mr. Chiasson:
This letter is further to my letter of May 2nd, 2000 in which I stated that your request for a Bravery Medal for your Father would be brought to the attention of the Canadian Decorations Advisory Committee.
The Committee met on Wednesday, June 14th and your request was placed on the agenda.
I would like to assure you that the matter received careful consideration by all members of the Committee. However, based on the Regulations which were adopted pursuant to the Letters Patent issued by the Queen in 1972, the Canadian Decorations Advisory Committee has decided that it will uphold the eligibility policy and the two-year limit. The Committee has determined, therefore, that your father's case, which took place in 1943, is not admissible for consideration given that the petition for an award exceeds the two-year limit.
[9]In the interim Mr. Chiasson, who was unaware of the Committee's decision, had commenced the within action to challenge the two-year rule. The plaintiff issued his statement of claim on July 20, 2000. The sole relief claimed is for a writ of mandamus to compel the submission of his application to the Committee for determination on its merits.
The Defendant's Submissions
[10]The Crown has advanced three grounds for its application to strike. The essential ground is that the action must fail as the bestowal of honours is a matter of Crown prerogative and therefore is not justiciable. The second is that the action is moot in that the plaintiff has already obtained the remedy he seeks. The third ground is that the Court has no jurisdiction to entertain an action for mandamus, which is only available on judicial review.
[11]On the first ground, the defendant outlined the history of the delegation of the prerogative relating to the granting of honours as follows. King George VI gave the Governor General the authority to exercise his royal prerogative by granting the Letters Patent of 1947. Thereafter, in 1967, Queen Elizabeth II, by Letters Patent, created the Order of Canada whereby the Governor General exercised the prerogative to determine who should receive the award.
[12]In 1972, Queen Elizabeth II signed Letters Patent that established the Canadian Bravery Decorations Regulations thereby expanding the awards to include awards for bravery, such as the Cross of Valour, the Star of Courage and the Medal of Bravery. In 1996, the 1972 Canadian Bravery Decorations Regulations were repealed and replaced with the Canadian Bravery Decorations Regulations, 1996 (the Regulations), which remain in effect today (P.C. 1997-123, Canada Gazette, Part I, Vol. 131, p. 2091).
[13]The defendant relied on Black v. Canada (Prime Minister) (2000), 47 O.R. (3d) 532 (Sup. Ct.) (hereinafter referred to as Black), for the principle that the assertion of prerogative power is not subject to review by courts. In Black, the Court quoted a decision by Lord Roskill, Council of Civil Service Unions v. Minister of Civil Service, [1985] 1 A.C. 374 (H.L.), at page 418, (hereinafter referred to as CCSU), in which the granting of honours is specifically mentioned as a prerogative power beyond the scope of judicial intervention [at paragraph 22]:
In this case the issue is the justiciability of the PM's actions. The outcome of this case depends entirely on the legal character of the actions of the PM alleged in the amended statement of claim. If they reflected an exercise of Crown prerogative in relation to the granting or withholding of honours, or in relation to advice given to another country, those actions are political matters beyond the reach of the court. In Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 A.C. 374 at p. 418, [1984] 3 All E.R. 935 (H.L.), Lord Roskill said:
| Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another. |
[14]The defendant also relies on the decision of Justice MacKay in Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 (T.D.), at page 131 (hereinafter referred to as Vancouver Island). The case involved two Orders in Council approving the visits of nuclear- carrying vessels and nuclear-propelled vessels to Canadian ports. The applicants in that case argued that the Orders in Council were not made pursuant to prerogative power since a number of statutes had supplanted that power. MacKay J. began his analysis by examining legislative decisions which are beyond review at page 131:
What constitutes a legislative decision that is beyond consideration by the Court, except in relation to issues of jurisdiction of the decision-maker, here the Governor in Council? At the very least it seems to me the decision must be discretionary, usually, but not always, general in application, based on the exercise of judgment after assessing factors of general policy, of public interest and public convenience, morality, politics, economics, international obligations, national defence and security, or social, scientific or technical concerns, that is, issues of policy which lie outside the ambit of typical concerns or methods of the courts.
[15]MacKay J. then dismissed the application, holding that none of the statutes and regulations referred to by the applicants affected the Crown's prerogative power to provide for visits of naval ships. The Orders in Council were held to be within the prerogative power to deal with international relations and defence. As the Orders in Council were legislative decisions, unaffected by statute and within the prerogative power, the Court held that the impugned decisions were beyond review by the Court. .
[16]The defendant's position is that the case at bar is a similar instance of an exercise of unfettered prerogative not otherwise supplanted by legislation. According to the defendant, sections 7 and 8 of the Regulations give the Committee unrestricted prerogative authority to determine eligibility requirements, including the imposition of a time bar. The Governor General, in turn, has full authority to award the decorations pursuant to section 17 of the Regulations. The Crown argues that the provisions taken together preclude any limitations on the exercise of the delegated prerogative by the Governor General and the Committee, with the result that decisions of the Committee are beyond the jurisdiction of the Court.
[17]For ease of reference, I have attached the text of sections 7, 8, 10 and 17 of the Regulations as an appendix to these reasons.
[18]The defendant's second argument is that this action should be struck because the relief sought has become moot. The plaintiff is seeking a writ of mandamus to compel the Committee to consider his nomination, when, according to the defendant, the Committee has already reviewed the nomination and determined Mr. Chiasson's father to be ineligible.
[19]Finally, the defendant maintains that the plaintiff can only proceed by judicial review in accordance with subsection 18.1(3) of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)] (the Act). The Act stipulates that a writ of mandamus may only be sought by way of an application for judicial review against a "federal board, commission or other tribunal". According to the defendant, the Committee may be said to be a body exercising powers conferred by a prerogative of the Crown and therefore come within the definition of a federal board, commission or other tribunal. However, the Crown argues, the Federal Court does not have jurisdiction to entertain an action for mandamus, and accordingly the action must be struck under rule 221 of the Federal Court Rules, 1998 [SOR/98-106] (the Rules) as beyond the jurisdiction of the Court and disclosing no cause of action.
[20]In written submissions, the defendant relied on Scrimbitt v. Canada (1997), 129 F.T.R. 17 (F.C.T.D.); and Brar (Litigation Guardian of) v. Canada (1997), 126 F.T.R. 77 (F.C.T.D.) for the principle that this Court lacks the jurisdiction to convert an action into an application for judicial review.
[21]At the hearing of the motion, however, the defendant cited the cases decided by this Court holding that a proceeding that is improperly launched may be converted to the appropriate form pursuant to rule 57 of the Rules. While acknowledging the principle, the defendant urges that the Court nevertheless ought not to convert the action to an application because it was without foundation and in any case out of time. The defendant points out that the plaintiff did not bring his application 30 days from either May 2, 2000, at which time he was told the two-year rule would be brought to the attention of the Committee, or September 7, 2000, when he was advised of his father's ineligibility.
The Plaintiff's Submissions
[22]The plaintiff argues that the language of the Regulations, and in particular section 8, is mandatory. The Committee "shall" consider all nominations submitted to determine who is eligible for an award. The plaintiff points out that the Regulations themselves do not impose a two-year limitation when asserting the royal prerogative. Indeed at page 2092 of the greeting in the 1996 Letters Patent, Her Majesty has stipulated that any substantive change to the Regulations must be enacted through Letters Patent, as follows:
AND WE DO direct that the award of the Canadian bravery decorations shall be governed by the annexed Canadian Bravery Decorations Regulations, 1996, as those Regulations may from time to time be amended, repealed or revised by Letters Patent issued by Us, Our heirs, and successors or Our Governor General of Canada on Our behalf.
[23]The plaintiff argues that the two-year rule is a de facto regulation that has been disguised as an administrative policy decision. The Committee has therefore usurped and violated the royal prerogative by creating a substantive amendment to the Regulations without authority.
[24]In this regard, the plaintiff cited Re Doctors Hospital and Minister of Health et al. (1976), 12 O.R. (2d) 164 (Div. Ct.), at page 174, and Prospect Investments Ltd. v. New Brunswick (Liquor Licensing Board) (1991), 113 N.B.R. (2d) 225 (Q.B.) for the proposition that regulatory decisions which depart from the object and purpose of the enabling statute, in this case the Letters Patent, are justiciable.
[25]As to mootness, the plaintiff argues that his challenge has been mischaracterized, and that the prerogative to award or withhold honours was in fact never exercised in this case. He distinguishes both Black and Vancouver Island in that, unlike the case at bar, the proper body had exercised royal prerogative in both of those cases.
Analysis
[26]A party applying to strike out an action bears a heavy burden and must persuade the Court that the action has no chance whatsoever of success and must inexorably fail. The application to strike fails if the claim discloses even a "germ" or "scintilla" of a cause of action: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Operation Dismantle Inc. et al. v. The Queen et al., [1985] 1 S.C.R. 441; Perera v. Canada, [1997] F.C.J. No. 199 (T.D.) (QL).
[27]I begin with the defendant's contention that the action is moot. In my view this argument fails, as it is arguable that the plaintiff has achieved the remedy he is seeking. Indeed, whether his father's eligibility may be said to have been considered by the Committee on its merits or, otherwise stated, whether it is within the Committee's powers to decline to further consider the application, is precisely what is at issue in this proceeding.
[28]Turning now to the Crown's principal objection; it is that the action cannot succeed as it relates to an exercise of Crown prerogative, which is beyond the jurisdiction of the Court. For the following reasons, I am not satisfied that the plaintiff's claim in this regard is bereft of all possibility of success.
[29]Undoubtedly, the exercise of Crown prerogative has traditionally been immune from scrutiny by the courts. This is substantiated by the paucity of jurisprudence in the area. However, recent decisions indicate some erosion of that immunity. In Operation Dismantle, supra, for example, the Supreme Court of Canada held that Crown prerogative can be subject to judicial scrutiny to determine whether an impugned decision is constitutional.
[30]Further, if a prerogative power has been supplanted by a statutory one, the exercise of the statutory power is subject to review. In Re Doctors Hospital and Minister of Health et al., supra, for example, the Ontario High Court of Justice held that a decision of the Lieutenant Governor in Council was not made pursuant to royal prerogative but rather was made pursuant to the statutory authority contained within subsection 4(5) of the Public Hospitals Act [R.S.O. 1970, c. 378] and as such was reviewable to ensure that it was made pursuant to the objects and policy of the statute.
[31]There are also other grounds on which the exercise of prerogative power may be reviewed. Brown and Evans state, in Judicial Review of Administrative Action in Canada (Toronto: Canvasback Publishing, 2000, at paragraph 13:1110):
Furthermore, even when judicial review of an exercise of the prerogative power is unavailable, a court still can be called upon to decide whether the prerogative power exists in law, and if it does, how broad the power is and whether the action taken fell within its scope.
[32]The authors cite Vancouver Island, supra, as support for the proposition. We recall that in that case, the Court found that the decision in question was not subject to review. MacKay J. concluded, however, at pages 131-132:
In the case of claimed prerogative powers the question will be whether the power exercised is within prerogative powers.
[33]In the same vein, two British cases point out that the exercise of Crown prerogative may be scrutinized by the Court having regard both to the breadth of the power exercised and the nature of the decision which it is sought to exempt from review.
[34]The CCSU case cited with approval in Black, like Vancouver Island, deals with delegated prerogative power exercised by Order in Council. In that case, the Order in Council was made pursuant to a prerogative power to regulate the terms and conditions of the civil service. The House of Lords heard argument that a decision made pursuant to power delegated by the sovereign pursuant to the prerogative, is immune from review in the same manner as a direct exercise of prerogative power. The House of Lords concluded that whatever the instrument of delegation, the Court retains the authority to review the impugned decision to ensure that powers are not exceeded (at page 399):
I am unable to see why the words conferring the same powers should be construed differently merely because their source was an Order in Council made under the prerogative . . . the Order in Council, being made under the prerogative, derives its authority from the sovereign alone and not, as is more commonly the case with legislation, from the sovereign in Parliament. Legislation frequently delegates power from the legislating authority--the sovereign alone in one case, the sovereign in Parliament in the other--to some other person or body and, when that is done, the delegated powers are defined more or less closely by the legislation, in this case by article 4. But whatever their source, powers which are defined, either by reference to their object or by reference to procedure for their exercise, or in some other way, and whether the definition is expressed or implied, are in my opinion normally subject to judicial control to ensure that they are not exceeded . . . .
[35]Lord Scarman distills the essence of these remarks at page 407 of that judgment:
. . . the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.
[36]The High Court of Justice later applied CCSU in Lustig-Pream v. Admiralty Board of the Defence Council, [1995] E.W.J. No. 4735 (H.C.) (QL), and concluded at paragraph 69:
I have no hesitation in holding this challenge justiciable. To my mind only the rarest cases will today be ruled strictly beyond the Court's purview--only cases involving national security properly so-called and where in addition the Courts really do lack the expertise or material to form a judgment on the point at issue. This case does not fall into that category. True, it touches on defence of the realm but it does not involve determining "whether . . . the armed forces (should be) Disposed of in a particular manner" (which Lord Roskill in CCSU thought plainly unreviewable. . .). No operational considerations are involved in this policy. Now, indeed, that the "security implications" have disappeared, there appears little about it which the courts are not perfectly well qualified to judge for themselves.
[37]Essentially, the plaintiff's case is that the subject-matter of his claim is not the bestowal of honours or awards, but the institution of a two-year limitation which is alleged to be beyond the delegated authority of the Committee. The question at issue then is whether the Committee's decision to apply a time bar, to preclude further examination of the plaintiff's nomination, is an exercise of Crown prerogative which is beyond the scope of review by this Court. To the extent that this calls for a determination of the scope of the Committee's powers by reference to the Letters Patent and the Regulations, it may arguably be subject to review.
[38]Indeed I conclude from a review of the jurisprudence that questions relating to the exercise of prerogative powers ought not to be dealt with summarily. Whether there may be judicial control of a particular decision made by virtue of a delegated Crown prerogative requires determination on its merits, on a case-by-case basis, having regard to the breadth of the power and nature of the impugned decision.
[39]As to the final element of the Crown's argument, I agree that an action for mandamus is improper and without foundation. This, however, is essentially a defect as to form which I assume is due to the fact that the litigant is self represented. In such instances rule 57 may be invoked to convert an action to a judicial review and has been interpreted and applied by this Court to permit the conversion of a proceeding improperly commenced as an action to an application for judicial review. See McLean v. Canada (1999), 164 F.T.R. 208 (F.C.T.D.); Khaper v. Canada (1999), 178 F.T.R. 68 (F.C.T.D.); Khaper v. Canada (1999), 182 F.T.R. 78 (F.C.T.D.), Niederauer v. Canada (Minister of National Revenue--M.N.R.), [2000] F.C.J. No. 928 (T.D.) (QL); and Métis National Council of Women v. Canada, [2000] F.C.J. No. 1961 (T.D.) (QL).
Conclusion
[40]Accordingly, a separate order shall issue granting leave to the plaintiff to bring a motion to convert the action to an application for judicial review and for any necessary extensions of time, failing which the action shall stand dismissed.
[41]In the circumstances, I find appropriate that each party bear its own costs of the motion.
APPENDIX
Section 7 of the Regulations states the following:
CANADIAN DECORATIONS ADVISORY
COMMITTEE
7. (1) There shall be maintained a Canadian Decorations Advisory Committee comprising
| (a) the Clerk of the Privy Council; |
| (b) the Secretary to the Governor General; |
| (c) the Deputy Minister of Canadian Heritage; |
| (d) the Deputy Minister of National Defence; |
| (e) the Deputy Minister of Transport; |
| (f) the Commissioner of the Royal Canadian Mounted Police; and |
| (g) not more than four other members who shall be appointed by the Governor General. |
(2) A member of the Committee referred to in any of paragraphs (1)(a) to (f) may designate an alternate to act as a member of the Committee in the event that the member is absent or unable to act in that capacity.
Section 8 of the Regulations states the following:
8. The Committee shall
| (a) consider nominations under section 10 of the award of |
| (i)the Cross of Valour, |
| (ii)the Star of Courage, and |
| (iii) the Medal of Bravery; |
| (b) determine whether nominees are eligible to be awarded a Canadian bravery decoration; |
| (c) compile and submit to the Governor General lists of those nominees who, in the opinion of the Committee, have the greatest merit for each of the decorations mentioned in paragraph (a); and |
| (d) advise the Governor General on such other matters concerning the award of Canadian bravery decorations as the Governor General may refer to the Committee for consideration. |
Section 10 of the Regulations states as follows:
NOMINATIONS
10. Any person or organization may submit to the Secretary of the Committee for consideration by the Committee a nomination of a person for the award of a Canadian bravery decoration.
Section 17 of the Regulations states the following:
GENERAL
17. Nothing in these Regulations limits the right of the Governor General to exercise all powers and authorities of Her Majesty in respect of Canadian bravery decorations.