A-695-76
Attorney General of Canada (Applicant)
V.
Public Service Staff Relations Board (Respond-
ent)
Court of Appeal, Pratte, Ryan and Le Dain J.J.—
Ottawa, March 15 and 25, 1977.
Judicial review — Decision of Public Service Staff Rela
tions Board — Whether Court's jurisdiction excluded by s.
100(1) of Public Service Staff Relations Act — Effect of
privative clauses in legislation enacted after coming into force
of Federal Court Act — Whether s. 92 of P.S.S.R.B. Regula
tions and Rules of Procedure ultra vires — Public Service
Staff Relations Act, R.S.C. 1970, c. P-35, ss. 19(1)(g) and (1),
23, 25, 100 — P.S.S.R.B. Regulations and Rules of Procedure,
ss. 8(2), 92 — Interpretation Act, R.S.C. 1970, c. 1-23, s. 36(1)
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Application under section 28 of the Federal Court Act to
review and set aside a decision of the Public Service Staff
Relations toard not to review an earlier decision made by it on
the grounds that the application was made out of time. The
respondent contends that section 100(1) of the Public Service
Staff Relations Act deprives the Court of its jurisdiction in this
matter, having been enacted after the coming into force of the
Federal Court Act. The applicant requested the Board to
review its earlier decision outside the time limits prescribed by
section 92 of the Board's Regulations and Rules of Procedure,
arguing that section 92 was ultra vires and, in any event,
inapplicable to the case since it was not in force at the time
when the decision appealed from was made. The Board held
that this was not the case and refused to review its earlier
decision.
Held, the Board's decision is set aside and the matter is
referred back to it so that the application for review may be
disposed of on the basis that section 92 of its Regulations and
Rules of Procedure is invalid. With regard to the Court's
jurisdiction to hear this application, section 28 of the Federal
Court Act applies to legislative provisions of all kinds, including
privative clauses, unless they constitute new law enacted after
the coming into force of the Federal Court Act. Section 100(1)
of the Public Service Staff Relations Act, which was enacted in
1975, is not new law within the meaning of the Interpretation
Act. With regard to the validity of section 92 of the P.S.S.R.B.
Regulations and Rules of Procedure, section 25 of the Public
Service Staff Relations Act provides for discretionary powers
which cannot be fettered by rules such as section 92: sections
19(1)(g) and (I) of the Act do not give the Board power to
enact such a rule because it is not procedural within the
meaning of section 19(1)(g) and the wording of section
19(1)(/) is too broad to authorize such a rule.
JUDICIAL review.
COUNSEL:
G. W. Ainslie, Q.C., and L. S. Holland for
applicant.
J. E. McCormick for respondent.
M. W. Wright, Q.C., and L. J. Soloway for R.
J. Kelly.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Public Service Staff Relations Board for
respondent.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for R. J. Kelly.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is an application under section
28 of the Federal Court Act' to review and set
aside a decision made by the Public Service Staff
Relations Board on September 10, 1976.
It is first necessary to consider whether the
Court has jurisdiction to entertain this application.
That problem was raised by the Chief Justice on
January 4, 1977, when counsel appeared before
him on a motion for an adjournment. The Chief
Justice then made the following statement from
the bench:
' Section 28(1) 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
(e) 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.
As it appears that there is a question whether the Court has
jurisdiction to hear this section 28 application, it is deemed
advisable (compare Westminster Bank Ld. v. Edwards [1942]
A.C. 529, per Viscount Simon L.C., at page 533) to raise the
question with counsel at this time with a view to giving counsel
(a) an opportunity to file supplementary memoranda with
regard thereto, and
(b) an opportunity to make submissions with regard thereto
on the day that will be hereafter fixed for the hearing of the
section 28 application.
The question is whether the Court is deprived of jurisdiction
to hear this section 28 application by section 100(1) of the
Public Service Staff Relations Act as enacted by section 29 of
chapter 67 of the Statutes of 1975, which was assented to on
July 30, 1975. That provision reads:
100. (1) Except as provided in this Act, every order,
award, direction, decision, declaration or ruling of the Board,
an arbitrator appointed under section 62 or an adjudicator is
final and shall not be questioned or reviewed in any court.
This provision is to be contrasted with section 122(1) of the
Canada Labour Code as enacted by chapter 18 of the Statutes
of 1972, which was assented to on July 7, 1972. That provision
reads:
122. (1) Subject to this Part, every order or decision of
the Board is final and shall not be questioned or reviewed in
any court, except in accordance with section 28 of the
Federal Court Act.
In this connection, reference might be made to the comments
concerning section 28(1) of the Federal Court Act to be found
in Howarth v. National Parole Board [1976] 1 S.C.R. 453, per
Pigeon J. (delivering the judgment of himself and Martland,
Judson and de Grandpré JJ.) at page 475.
That statement raises in effect, two separate
questions in respect of the jurisdiction of the
Court.
The first question is the question alluded to by
Pigeon J. in the last paragraph of his reasons for
judgment in the Howarth case ([19761 1 S.C.R.
453 at 475) where he said:
Because, in my view, s. 28.1 of the Federal Court Act is
inapplicable due to the nature of the decision under consider
ation, it is unnecessary to consider whether the opening words
"Notwithstanding s. 18 or the provisions of any other Act"
exclude the application of a provision such as s. 23 of the
Parole Act or whether they refer only to provisions of the same
kind as s. 18 of the Federal Court Act, that is a provision
conferring jurisdiction to some court or tribunal. It is apparent
that if those opening words are construed as nullifying every
provision restricting or denying the judicial review of decisions
of federal boards not coming within the stated exception, this
means that beyond a transfer of jurisdiction an important
change in the substantive law has been effected. On this point, I
am expressing no opinion any more than on the question
whether, notwithstanding s. 23 of the Parole Act, some remedy
before the Trial Division of the Federal Court is open in a case
like this.
I do not have any difficulty answering that first
question. In my respectful opinion, the meaning of
the words used in the opening part 'of section 28 is
clear. In their ordinary and natural sense those
words refer, in my view, to legislative provisions of
all kinds, including privative clauses, that would
otherwise limit the jurisdiction of the Court under
section 28. With respect, I cannot see any reason
for ascribing a more limited meaning to those
words. I am therefore of opinion that the opening
words of section 28 have the effect of nullifying
the privative clauses that were in existence at the
time of the enactment of the Federal Court Act.
The second question raised by the statement of
the Chief Justice is whether those opening words
of section 28 have the same effect in respect of
privative clauses which, like section 100 of the
Public Service Staff Relations Act, were enacted
after June 1, 1971, the date on which the Federal
Court Act came into force.
I would certainly hesitate before answering that
question if section 100 of the Public Service Staff
Relations Act, which was enacted in 1975, were
really new law. But this is not so. When the Public
Service Staff Relations Act was first enacted in
1967, section 100(1) read as follows:
100. (1) Except as provided in this Act, every order, award,
direction, decision, declaration or ruling of the Board, the
Arbitration Tribunal or an adjudicator is final and shall not be
questioned or reviewed in any court.
In 1975, Parliament adopted "An Act to amend
the Public Service Staff Relations Act" (S.C.
1974-75-76, c. 67). Section 29 of that Act reads as
follows:
29. Section 100 of the said Act is repealed and the following
substituted therefor:
"100. (1) Except as provided in this Act, every order,
award, direction, decision, declaration or ruling of the Board,
an arbitrator appointed under section 62 or an adjudicator is
final and shall not be questioned or reviewed in any court."
If section 29 is read in the light of section 36(f)
of the Interpretation Act, R.S.C. 1970, c. I-23, it is
clear that section 100(1) as it now stands, in spite
of it having been enacted in 1975, must be deemed
not to be new law. Section 36(f) of the Interpreta
tion Act reads as follows:
36. Where an enactment (in this section called the "former
enactment") is repealed and another enactment (in this section
called the "new enactment") is substituted therefor,
(/) except to the extent that the provisions of the new
enactment are not in substance the same as those of the
former enactment, the new enactment shall not be held to
operate as new law, but shall be construed and have effect as
a consolidation and as declaratory of the law as contained in
the former enactment;
For those reasons, I am of opinion that the
jurisdiction of the Court under section 28 to review
the decision under attack is not ousted by section
100 of the Public Service Staff Relations Act as
enacted in 1975.
This section 28 application is directed against a
decision of the Public Service Staff Relations
Board dismissing an application for review of one
of the Board's previous decisions.
On December 17, 1975, the Board had decided
a question of law that had been referred to it by
the Treasury Board pursuant to the then existing
section 23 of the Public Service Staff Relations
Act. On April 23, 1976, the Treasury Board
requested the Public Service Staff Relations Board
to review its decision of December 17, 1975. That
request was made under section 25 of the Act:
25. The Board may review, rescind, amend, alter or vary any
decision or order made by it, or may rehear any application
before making an order in respect thereof, except that any
rights acquired by virtue of any decision or order that is so
reviewed, rescinded, amended, altered or varied shall not be
altered or extinguished with effect from a day earlier than the
day on which such review, rescission, amendment, alteration or
variation is made.
That application, which was made more than
four months after the applicant had been notified
of the decision sought to be reviewed, seemed to be
clearly out of time since section 92 of the
P.S.S.R.B. Regulations and Rules of Procedure 2
provides that:
92. Where a party requests the Board to review, rescind,
amend, alter or vary any decision or order made by it, the
request shall, subject to subsection 8(2), be made before the
expiration of 25 days from the day the party making the
request is served with a copy of
(a) the decision or order, or
(b) the reasons for the decision or order
whichever day is later. 3
However, probably because the applicant, in its
correspondence with the Board, had contended
that section 92 of the Rules could not be applied in
the case, the Board directed that a hearing be held,
it being specified that "the hearing will be con
fined to the issue of the timeliness of the request
for review made by the employer of the Board's
decision of December 17, 1975, particularly having
regard to the provisions of section 92 of the
P.S.S.R.B. Regulations and Rules of Procedure".
A hearing was held following which the Board
rendered the decision that the applicant is now
attacking. In that decision, the Board first dis
missed the applicant's contentions that section 92
was ultra vires the powers of the Board, and that,
in any event, it could not be applied in the case
since it had not been in force at the time of the
adjudication which had given rise to the legal
question which had later been referred to the
Board under section 23. After having dismissed
those two arguments, the Board concluded as
follows:
10. The new P.S.S.R.B. Regulations and Rules of Procedure
came into force on and from October 22, 1975. Section 92 of
those Rules thus became applicable to any request for review
made subsequent to that date. Since the Employer's request for
review in the instant case was made more than four months
after receipt by it of the Board's decision of December 17,
1975, the request is untimely and accordingly is denied.
11. We would add that while the hearing in this matter was
confined to the question as to the timeliness of the request for
2 SOR/75-604.
3 Section 8(2) of the Rules, to which section 92 refers, reads
as follows:
8. (2) The Board may, upon such terms as it thinks
advisable, extend the time prescribed by these Regulations
for doing any act, serving any notice, filing any document or
taking any proceeding and may do so either before or after
the expiration of the time prescribed.
review, we are satisfied that the grounds upon which the
Employer has based its request do not fall within the purview of
the principles set out by the Chief Justice of the Federal Court
of Appeal in Professional Institute of the Public Service of
Canada v. Attorney General of Canada [1972] F.C. 1316 and
in the Board's decision in the Orton Case (file 172-2-76).
Moreover, counsel for the Employer made it clear that the
purpose in making the instant request was to present additional
argument based on authorities which, by counsel's own admis
sion, were available and could have been relied on by the
Employer at the original hearing before the Board. In essence
then, the request for review would appear to be a request by the
Employer to be allowed to re-argue its case.
12. In these circumstances, even assuming that the request for
review made by the Employer was not out of time, the Board,
in the exercise of its discretion under section 25, can see no
reason why it should review its decision of December 17, 1975,
in this matter.
The applicant submits that his decision should
be set aside on two grounds:
(a) The P.S.S.R.B. erred in deciding that section 92 of the
P.S.S.R.B. Regulations and Rules of Procedure had been
validly enacted by the Board in the exercise of its power,
under section 19 of the Act, to make procedural rules;
(b) The Board failed to observe a principle of natural justice
when it decided the merits of the application for review
without giving the applicant an opportunity to argue the
merits of its application.
In respect of the applicant's second ground of
attack, it is sufficient to say, in my view, that a
careful reading of the last three paragraphs of the
decision shows that the Board did not decide the
merits of the application. Having stated, in para
graph 10 of the decision, "the request is untimely
and accordingly is denied", the Board had dis
posed of the application for review and what it said
after that, in the last two paragraphs, was merely
an indication of the ,decision that the Board would
have rendered had it not dismissed the application
as untimely.
As to the applicant's first ground of attack, it is,
in my opinion, well-founded. Section 25 of the Act
endows the Board with a discretionary power that
it is bound to exercise, after having 'considered the
relevant facts of each particular case, every time
an application for review is made by a person
having the status to make such an application. A
rule like section 92 fetters the exercise of that
discretionary power and, for that reason, it could
not, in the absence of clear statutory authority, be
validly adopted by the Board. I cannot find any
thing in the Act giving the Board the power to
enact such a rule. In my view, the provisions of
section 19(1)(g) and 19(1)(1), the only ones to
which we were referred Dy counsel, do not give
that power to the Board. Section 19(1)(g) merely
empowers the Board to establish "rules of proce
dure for its hearings"; section 92, in my view, is
not such a rule. As to section 19(1)(1), it author
izes the making of regulations respecting "such
other matters and things as may be incidental or
conducive to the objects and purposes of the
Board, the exercise of its powers and the attain
ment of the objects of this Act"; in my view, such
a wide and general provision is not sufficient to
authorize the Board to adopt a regulation which in
effect fetters or hinders the exercise of a discre
tionary power expressly attributed to it by the
statute.
For those reasons, I would set aside the decision
of the Public Service Staff Relations Board and
refer the matter back to it so that the application
for review made by the applicant be disposed of on
the basis that section 92 of the P.S.S.R.B. Regula
tions and Rules of Procedure is invalid.
* * *
RYAN J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that section 92 of the
P.S.S.R.B. Regulations and Rules of Procedure is
ultra vires for the reasons given by Mr. Justice
Pratte. Alternatively it may be characterized as an
invalid attempt to qualify the substantive right to
have an application for review considered by the
Board. 4 In my opinion there must be explicit statu
tory authority for the imposition, by regulation, of
a time limit within which a right conferred by
4 Labour Relations Board of Saskatchewan v. The Queen on
the relation of F. W. Woolworth Co. Ltd. [1956] S.C.R. 82, per
Locke J. at pp. 86-87,_and- ?he--Queen v. Alaska Pine &
Cellulose Ltd. (1960)4 D.L.R. (LI) 24 . 1)(S.C.C.), per Kerwin
C.J.C. at p. 245.
statute may be exercised. It was argued before us
that, apart from section 92, delay would be a
proper consideration in the exercise of the discre
tion under section 25 of the Act, and that the
Board's decision should therefore not be invalidat
ed because of its reliance on section 92. I would
agree that delay may properly be considered in the
exercise of the discretion under section 25 of the
Act, but section 92 of the Regulations purports to
make a specific delay a ground upon which an
application for review may be denied without ref
erence to the merits, and this is in fact the manner
in which the section was applied in this case. I
agree with Mr. Justice Pratte's reasons for con
cluding that the Board did not decide on the merits
of the application but denied it on the ground that
it was untimely in the light of section 92.
Since the grounds of attack on this case are ones
that go to the jurisdiction of the tribunal—namely,
whether the regulation which it purported to apply
was ultra vires and whether there was a violation
of natural justice—it is not strictly necessary, for
purposes of the present case, to decide that a
privative clause such as that found in section 100
of the Public Service Staff Relations Act can have
no effect at all on the scope of review given to the
Court under section 28 of the Federal Court Act.
It would be sufficient to rely on the well-estab
lished judicial authority, for which no citation is
required, that such a provision cannot protect the
decision of a tribunal when it acts beyond its
jurisdiction. Nevertheless, once the issue of the
privative clause has been raised it appears to be
unavoidable that consideration be given to the
construction and application of the opening words
of section 28. I have given careful consideration to
the alternative possible construction suggested by
Mr. Justice Pigeon in the Howarth case which
would confine the words "the provisions of any
other Act", because of their juxtaposition with the
reference to section 18, to provisions that confer
jurisdiction on courts or tribunals. I am unable,
with great respect, to find that this is a sufficient
justification in the legislative context for imposing
this more limited meaning on the words. The result
of the broader construction, to include privative
clauses, is, as Mr. Justice Pigeon suggests, to effect
"an important change in the substantive law". It
is, however, one that is in my respectful opinion
consistent with the clear intention of Parliament to
create a new statutory power of review with a
scope of review extending beyond that obtainable
on certiorari. It seems to me to be logical that
Parliament should have intended that this new
jurisdiction with its enlarged scope of review
should be exercisable notwithstanding existing
privative clauses which might otherwise have the
effect of excluding review for non-jurisdictional
error. Given this view of section 28 and the open
ing words of the section, I would seriously question
whether a privative clause in the terms of section
100 of the Public Service Staff Relations Act,
even if it were considered to be new law enacted
after the Federal Court Act, would be a sufficient
ly clear or explicit expression of Parliament's
intention to exclude or limit the jurisdiction under
section 28, but for the reasons given by Mr. Justice
Pratte it is not necessary to express an opinion on
this question.
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.