T-1708-76
B. Keith Penner, Norman Cafik and Harry Assad
(Applicants)
v.
The Electoral Boundaries Commission for the
Province of Ontario, Campbell Grant, W. Tar-
nopolsky, F. L. Gratton and Nelson Castonguay,
as Members of the said Commission, and Nelson
Castonguay as the Representation Commissioner
(Respondents)
Trial Division, Thurlow A.C.J.—Ottawa, May 6
and 11, 1976.
Prerogative writs—Applicants seeking to prohibit respond
ents from completing report, from presenting copy to House of
Commons, and from preparing and transmitting representation
order to Secretary of State—Seeking mandamus to require
preparation of report containing reasons, to require holding of
public hearings based thereon and to require Commissioner to
transmit copy to Speaker of House of Commons—Electoral
Boundaries Readjustment Act, R.S.C. 1970, c. E-2, ss. 2 (as
am. S.C. 1974-75-76, c. 10, s. 2), 18, 19(1), 21, 22—Federal
Court Act, s. 28(2).
Applicants sought the above relief, claiming that the adver
tisement of sittings of the Electoral Boundaries Commission for
Ontario, published in August 1975, under section 17 of the
Electoral Boundaries Readjustment Act, and all subsequent
proceedings, including its report, were and are of no legal effect
because of the alleged failure of the Commission to express in
the advertisement and the report reasons justifying its recom
mendations (as per the definition of "recommendation" in
section 2).
Held, the application is dismissed. Assuming, but not decid
ing, that the Commission is amenable to process of this Court
and that, in a proper case, prohibition and mandamus would lie
to regulate it, and assuming applicants have status, the question
could have been raised in August of 1975 when it might have
been determined before the hearings were held and when, had
the advertisement been held invalid, there might have been
time to advertise again, and still complete the report within the
year prescribed by section 18. The complaint of inadequacy in
the reasons is now stale and forlorn, as it was not established
that the particular objection was raised at the time. The report
was laid before the House of Commons on February 27, 1976.
Its validity could have been reviewed in the Court of Appeal if
proceedings had been commenced within 10 days. This would
have been the correct manner and the proper forum in which to
question its validity. And, if the Court were to grant an
extension of time, such review is still available.
To grant prohibition now would prevent the Commission
from carrying out its statutory function within the prescribed
time. The Commissioner would also be prevented from fulfill
ing his function with respect to all the commissions. And, to
grant mandamus would be to require the Commissioner to
disregard these statutory limitations in favour of these ordained
by the Court. The Court has no such authority; to do so would
be to render illegal the report and any representation order
based thereon, and the whole operation would be aborted. If
respondents are left free to complete the act, and an appropri
ate proceeding to test its validity is then brought, applicants
will be in no worse or different position. No harm will befall
any of applicants' rights in refusing the relief, while, if the
Court were to hold that the report was open to objection, and
an appeal court were to decide otherwise, the consequences of
this Court having granted relief would be irreversible.
APPLICATION.
COUNSEL:
John D. Richard, Q.C., and G. Fisk for
applicants.
A. T. Hewitt for respondents.
SOLICITORS:
Gowling & Henderson, Ottawa, for
applicants.
Hewitt, Hewitt, Nesbitt, Reid, McDonald &
Tierney, Ottawa, for respondents.
The following are the reasons for judgment
delivered orally in English by
THURLOW A.C.J.: This is an application for
prohibition
(1) to prohibit the respondent Commission and
its members and the Representation Commis
sioner from completing the Commission's report
under the Electoral Boundaries Readjustment
Act, and
(2) to prohibit the Representation Commission
er from returning a certified copy of the report
to the Speaker of the House of Commons and
preparing and transmitting to the Secretary of
State for Canada a representation order with
respect to the said report.
and for mandamus directed to the Commission
and its members requiring them
(1) to prepare a report in accordance with the
Electoral Boundaries Readjustment Act con-
taining reasons for the recommendations made
in the report, and
(2) to hold public hearings based on such report
containing reasons
and for mandamus to the Representation Commis
sioner requiring him to transmit a copy of said
report to the Speaker of the House of Commons
pursuant to subsection 19(1) of the Electoral
Boundaries Readjustment Act.
The matter is one of urgency. I was informed by
counsel that the Commission is about to dispose of
the objections to its report raised in the House of
Commons under section 20 of the Act, and that
tomorrow, May 12, 1976, is the last of the thirty
days within which the Commission is required by
subsection 21(1) to consider and dispose of such
objections. If, therefore, prohibition as requested is
to issue and have any opportunity to operate, I
must deal with the application immediately.
The basis of the applicants' claim for relief, as I
understand it, is their contention that the adver
tisement of the sittings of the Commission pub
lished in August 1975 pursuant to section 17 of the
Act, and all subsequent proceedings of the Com
mission including its report laid before the House
of Commons on February 27, 1976, were and are
of no legal effect because of the alleged failure of
the Commission to express in the advertisement,
which is itself a report as defined in section 2, and
in the report laid before the House of Commons on
February 27, 1976, reasons that justified the Com
mission's recommendations. The term "recommen- .
dation" is defined in section 2 as meaning "a
recommendation that is justified by a reason
therefor".
In the view I have formed of the matter, assum
ing, but without deciding, that the Commission is
amenable to process of this Court, and that in a
proper case prohibition and mandamus would lie
to regulate its activities, and assuming as well that
the applicants, or some of them, have adequate
status to bring an application for such relief, the
question of the validity of the advertisement could
have been raised by such a proceeding as long ago
as last August when it might have been deter
mined before the hearings of the Commission were
held and when there might still have been time, if
the advertisement was held invalid, to advertise
again and yet complete the Commission's report
within the year prescribed by section 18, which in
this case ran from February 28, 1975. As a basis
for prohibition and mandamus at this stage the
complaint of inadequacy in the reasons for the
Commission's recommendations, as expressed in
the advertisement, appears to me to be stale, and
forlorn, as well, since it is not established on the
material before me that the particular objection
was raised at the time either before the Commis
sion or elsewhere.
Next, as previously mentioned, the report of the
Commission was laid before the House of Com
mons on February 27, 1976. We are now in May.
It is my opinion that the validity of the report
could have been the subject of a review in the
Court of Appeal under section 28 of the Federal
Court Act had proceedings been commenced
within the ten-day period referred to in subsection
28(2) of the Act. Such a review is still available if
that Court can be persuaded to extend the time for
bringing an application. In my view that would
have been the correct way and the right forum in
which to raise the question of the validity of the
Commission's report.
The stage which has now been reached is that of
the disposition by the Commission of objections to
the report raised in the House of Commons, after
which the Representation Commissioner is
required by section 21 to return to the Speaker of
the House of Commons a certified copy of the
report with or without amendment accordingly as
the disposition of the objections by the Commis
sion requires. Thereafter, a representation order is
to be issued as provided by section 22. I see no
escape from the conclusion that if prohibition is
granted the Commission will be prevented from
carrying out its statutory function within the time
which the statute ordains and the Representation
Commissioner, as well, will be prevented from
carrying out his functions not only with respect to
the report of this Commission but with respect to
the reports of all the commissions. Moreover, the
result of granting the mandamus requested, as I
see it, would be to require the Commission to
disregard the time limitations of the statute in
favour of limitations ordained by the Court. That,
in my opinion, the Court has no authority to do
and, if it did so, the result could be expected to be
that the report and any representation order based
thereon would be held to be illegal and the whole
operation of the statute commenced by the procla
mation of February 28, 1975, would be aborted.
That appears to me to be a serious result to
contemplate.
On the other hand, as I see it, the applicants will
be in no worse position for attacking the validity of
the final act, which they now seek to prohibit, if
the Commission is left free to complete that act
and an appropriate proceeding is then brought to
test its validity. Nor would their position, from the
point of view of attacking the validity of the
advertisement and the report tabled on February
27, 1976, be different or any worse than it is on
this application.
These considerations lead me to the conclusion
that even if I were of the opinion that the Commis
sion's report was open to the objections raised
against it, a question which in my view might well
be resolved either way, the discretion of the Court
to grant or refuse relief by way of prohibition or
mandamus should be exercised in favour of refus
ing it. As I see it, no harm will befall any rights
the applicants may have if the relief sought is
refused. On the other hand, if I were to conclude
that the report was open to objection and a court
of appeal were to take the other view the conse
quences of my having granted relief would be
irreversible.
The application is accordingly dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.