A-367-76
B. Keith Penner, Norman Cafik, Harry Assad and
the Northwestern Ontario Municipal Association
(Applicants)
v.
The Electoral Boundaries Commission for the
Province of Ontario and the Representation Com
missioner for Canada (Respondents)
Court of Appeal, Jackett C.J., Pratte and Ryan
JJ.—Ottawa, December 22, 23 and 24, 1976.
Jurisdiction—Application to review and set aside report of
Electoral Boundaries Commission for Ontario—Whether
report "justified by a reason therefor"—Final decision of
Governor in Council—Court has no jurisdiction to review
decision of Governor in Council—Federal Court Act, s.
28(1),(6)—Electoral Boundaries Readjustment Act, R.S.C.
1970, c. E-2, ss. 3, 12, 17-23 and as amended by S.C.
1974-75-76, c. 10, s. 1.
The applicants applied under section 28 of the Federal Court
Act to review and set aside the report of the Electoral Bound
aries Commission for Ontario delivered on May 13, 1976. The
report was made under the Electoral Boundaries Readjustment
Act which provides for redistribution of federal constituencies
after each decennial census. The ground of attack is that the
recommendations are not "justified by a reason therefor" as
required by the amendment to the Electoral Boundaries Read
justment Act, S.C. 1974-75-76, c. 10, s. 1.
Held, the application is dismissed. The report is only one of a
series of steps that lead to the legal duty and authority of the
Governor in Council to make an order that operates to give
something else the force of law. The Governor in Council must
decide, before he makes such an order, that such steps have
been taken in accordance with law, and this Court cannot make
an order setting aside the Governor in Council's decision or
order by virtue of section 28(6) of the Federal Court Act.
APPLICATION for judicial review.
COUNSEL:
John D. Richard and George E. Fisk for
applicants.
A. T. Hewitt, Q. C., and Peter R. Hughes 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
JACKETT C.J.: This is a section 28 application'
to set aside what is described therein as "a decision
or order entitled Report of the Electoral Bound
aries Commission for the Province of Ontario,
delivered on the 13th day of May 1976".
The report in question was made under the
Electoral Boundaries Readjustment Act 2 which
provides for redistribution of federal constituencies
after each decennial census by a procedure which
may be described in general steps, for present
purposes, as follows:
(1) a commission is established for each prov
ince "to consider and report upon the readjust
ment of the representation of the provinces in
the House of Commons required to be made
upon the completion of such census" (section 3);
Section 28(1) of the Federal Court Act reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
2 R.S.C. 1970, c. E-2.
(2) the Representation Commissioner 3 having
published the number of members assigned to
each province as a result of the census, the
Commission for the province is required to pre
pare a "report" setting forth its "recommenda-
tions" concerning
(a) the division of the province into electoral
districts, and
(b) the description of the boundaries of each
district and the representation and name to be
given thereto (section 12);
but, "before completing its report", it shall hold
at least one sitting for the hearing of representa
tions by interested persons (section 17(1)), 30
days notice of which "sitting" must have been
given (section 17(2)) by an advertisement
containing
(a) a map or drawing prepared by the Com
mission showing the proposed division and
indicating the representation and names pro
posed, and
(b) a schedule showing the proposed bound
aries of each district (section 17(3));
(3) Each commission's report, which must be
completed within one year, is required to be
transmitted to the Representation Commissioner
(section 18);
(4) Upon receiving the report of a commission,
the Representation Commissioner is required to
transmit a copy thereof to the Speaker of the
House of Commons (section 19(1));
(5) Upon receipt of the copy of a Commission's
report, the Speaker is required to cause such
report to be laid before the House or to be
published in the Canada Gazette, in which latter
case a copy is sent to each member of the House
from the province concerned (section 19);
(6) Within a limited time, not fewer than 10
members can file a motion with the Speaker
containing an objection to some provision in the
Report, in which event the House is required to
"take up the motion and consider the matter of
the objection" (section 20);
3 See the Representation Commissioner Act, R.S.C. 1970, c.
R-6.
(7) When an objection has been so considered
by the House, the Speaker is required to refer
the report back to the Representation Commis
sioner together with a copy of the objection and
of the House Debates with respect thereto "for
reconsideration by the commission having
regard to the objection";
(8) Within 30 days from the reference back of
the report, the commission is required to "con-
sider the matter of the objection and ... dispose
of the objection" (section 21(1));
(9) Forthwith after disposition of the objection
by the commission, "a certified copy of the
report of the commission, with or without
amendment accordingly as the disposition of the
objection requires" is to be returned by the
Representation Commissioner to the Speaker
(section 21(1)), who is to bring it to the atten
tion of the Members by laying it before the
House or otherwise in the same manner as is
laid down in respect of the report as originally
made (section 21(2));
(10) After all 10 reports have been processed in
the manner already indicated, the Representa
tion Commissioner is required to prepare and
transmit to the Secretary of State a "draft
order" (called a "representation order"), which
must
(a) specify the number of members to be
elected for each province "as calculated by
the Representation Commissioner ... ," and
(b) divide each province into electoral dis
tricts, describe the boundaries of each district
and specify the representation and name to be
given thereto "in accordance with the recom
mendations contained in the reports ..." (sec-
tion 22);
(11) Within 5 days after receipt of the draft
representation order by the Secretary of State,
"the Governor in Council shall by proclamation
declare the draft representation order to be in
force, effective upon the dissolution of the then
existing Parliament ... and upon the issue of the
proclamation the order has the force of law
accordingly" (section 23). °
An amendment was made to the Electoral Bound
aries Readjustment Act by chapter 10 of 1974-75-
76, which inserted therein, inter alia, the following
definitions:
"recommendation" with respect to a recommendation set forth
in a report, means a recommendation that is justified by a
reason therefor;
"report" means a report of a commission, and any newspaper
advertisements published under section 17(3), and in the
Canada Gazette as required pursuant to the provisions of this
Act, and the recommendations therein set forth.
In this case, what is attacked is described by the
section 28 application as being the report delivered
by the Ontario Commission on May 13, 1976, and
the ground of attack is that the recommendations
contained therein are not "justified by a reason
therefor". As I understand the record, the facts are
(a) that, before holding hearings, the Ontario
Commission did publish advertisements as
required by section 17(3) in which it set out the
proposed division of the province and also set
out reasons under the heading "Reasons for the
Original Proposed Boundaries";
(b) that, after the hearings, the Commission
made certain changes in the proposed division of
the province as advertised but, otherwise, used
the wording of the advertisement (including the
reasons and their heading as set out therein) in
its report under section 18, and
(c) that, after the reference back of its report
together with the objection and the House
Debates, the Commission made certain changes
in the description of the divisions and sent them,
together with its original report, back through
the Representation Commissioner as its disposi
tion of the matter under section 21(1).
On these facts, I am not persuaded that the argu
ment that the Commission's Report was not justi
fied by reasons should be accepted as a sufficient
ground for setting that Report aside under
Section 23 should be read with section 17(2) of the Inter
pretation Act, R.S.C. 1970, c. I-23, which provides that
"Where the Governor General is authorized to issue a procla
mation, the proclamation shall be understood to be a proclama
tion issued under an order of the Governor in Council ...".
section 28 of the Federal Court Act. As it seems to
me, it is not possible to say that "reasons" given by
one group of persons as justifying their recommen
dations are not reasons justifying their recommen
dations because some other person or group of
persons (in which I include a group of judges) do
not regard the reasons given as justification for the
recommendations in the sense of showing them "to
be just, right or proper". 5 In this context, in my
view, a recommendation must be regarded as "jus-
tified by a reason therefor" if something is
"employed as an argument" 6 to justify it. On this
view, reasons must be accepted as such regardless
of their merits in the mind of the recipients of the
recommendations. Unless it can be said that what
is described as "reasons" is a mere sham, I do not
think it can be said that they are not reasons at all.
In this connection, there is also a real question in
my mind whether the lack of any reasons at all
would, in this very special statutory scheme, make
a "report" a nullity. Put in other words, when the
frustrating effect of regarding reasons as mandato
ry is considered, I am not convinced that the
statute should be interpreted as implying that the
requirement of reasons is mandatory and not
merely directory.
However, it is not necessary to express any
concluded view on that aspect of the matter.
Assuming, as I do, that what the section 28
application is seeking to have set aside is the
original report as amended by the report of May
13, 1976, it does not constitute, in my view, a
"decision or order" that falls within the ambit of
section 28 (1) of the Federal Court Act. The report
is only one of a series of steps that lead to the legal
duty and authority of the Governor in Council to
make an order that operates to give something else
the force of law. The Governor in Council must, in
my view, decide, before he makes such an order,
that such steps have been taken in accordance with
law; and this Court cannot, under section 28(1) of
the Federal Court Act, make an order setting aside
5 Compare the sense of "justification" in The Shorter Oxford
English Dictionary, "The action of justifying or showing some
thing to be just, right or proper".
6 Compare the sense of "Reason" in the same dictionary, "A
statement of some fact (real or alleged) employed as an argu
ment to justify ... some act".
the Governor in Council's decision or order (sec-
tion 28(6) of the Federal Court Act'). If this
Court has no jurisdiction to set aside directly the
decision or order of the Governor in Council, it
cannot, in my view, do so indirectly by setting
aside one of the "decisions" that had no legally
operative effect except to operate as a condition
precedent to the duty and authority of the Gover
nor in Council to make the decision or order that
has legal effect.
In my view, for the above reasons, this Court
has no jurisdiction in respect of the subject of the
section 28 application and the application must,
for that reason, be dismissed. It is not, therefore,
necessary to express any opinion with regard to the
other objections raised by the respondents against
the section 28 application.
* * *
PRATTE J. agreed on the question of
jurisdiction.
* * *
RYAN J. agreed on the question of jurisdiction.
7 Section 28(6) of the Federal Court Act reads:
(6) Notwithstanding subsection (1), no proceeding shall
be taken thereunder in respect of a decision or order of the
Governor in Council, the Treasury Board, a superior court or
the Pension Appeals Board or in respect of a proceeding for a
service offence under the National Defence Act.
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.