T-1246-82
Cardinal Insurance Company (Plaintiff)
v.
Minister of Finance and the Superintendent of
Insurance (Defendants)
Trial Division, Cattanach J.—Toronto, March 1,
1982.
Jurisdiction — Trial Division — Application for interlocu
tory injunction to restrain defendants from taking control of
the plaintiffs assets in Canada pursuant to the order of the
Minister given under s. 103.2(2)(c) of the Canadian and British
Insurance Companies Act — Superintendent of Insurance
reported to the Minister that the plaintiffs assets were insuffi
cient to adequately protect policyholders — Defendants
submit that the Trial Division is without jurisdiction to hear
the motion because the matter is properly the subject of
judicial review — Whether the Minister's decision is a final
order — Whether the Minister's order is a decision or order of
an administrative nature required by law to be made on a
judicial or quasi-judicial basis — Motion is dismissed since
the Trial Division lacks jurisdiction to hear the matter —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28
— Canadian and British Insurance Companies Act, R.S.C.
1970, c. I-15, as amended, s. 103.2(1)(d),(2)(c).
National Indian Brotherhood v. Juneau [No. 2] [1971]
F.C. 73, applied. Minister of National Revenue v. Coopers
and Lybrand [1979] 1 S.C.R. 495, applied.
APPLICATION.
COUNSEL:
J. W. Brown, Q.C. and J. W. Mik for
plaintiff.
P. J. Evraire for defendants.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for
plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
CATTANACH J.: The plaintiff, by notice of
motion, seeks an interlocutory injunction restrain
ing the defendants from taking control of the
plaintiffs assets in Canada and limiting the plain-
tiffs certificate of registration to servicing existing
policies of insurance until the trial of this matter
or other disposition thereof.
Counsel for the defendants took the preliminary
objection that the Trial Division is without juris
diction to entertain the application and relief
sought under section 18 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, because the
matter is properly the subject of an application to
the Appeal Division pursuant to section 28 of the
Federal Court Act to review and set aside the
decision or order of the Minister given under
paragraph 103.2(2)(c) of the Canadian and Brit-
ish Insurance Companies Act, R.S.C. 1970, c.
I-15, as amended, pursuant to the report of the
Superintendent of Insurance to the Minister under
paragraph 103.2(1)(d).
Subsection 28 (1) of the Federal Court Act reads
in part:
28. (I) 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 ....
It is conceded that the Minister, acting as he
did, was a federal board.
The questions which arise are
(1) whether the decision made by the Minister is a
final order and if not
(2) whether it is subject to review by the Appeal
Division in that event as well.
In National Indian Brotherhood v. Juneau [No.
2] [1971] F.C. 73, Jackett C.J. at pages 77 and 78
alluded to the meaning of the words "decision or
order" as used in section 28 of the Federal Court
Act as being the "ultimate decisions" made by the
tribunal and not the myriad of decisions or orders
that the tribunal must make in the decision-mak
ing process leading to the ultimate decision,
although these decisions may be material to the
question of a fair hearing being accorded.
In my view the decision made by the Minister in
the present instance under subsection 103.2(2) of
the Canadian and British Insurance Companies
Act, whereby he directed the Superintendent to
take control of the plaintiff's assets has all the
attributes of the final ultimate order. In so saying I
fully realize that at some subsequent time the
continuance of the order may not be necessary
upon some condition imposed being complied with
by the plaintiff, and the order could thereby be
rescinded but that does not detract from it being
the ultimate order in the matter before the
Minister.
That being so I need not concern myself with a
consideration as to whether it is an interim order
and that, as such, it may still be the subject of
review by the Appeal Division.
The next question which arises is whether the
decision or order made by the Minister is a deci
sion or order of an administrative nature required
by law to be made on a judicial or quasi-judicial
basis in which event the principles of natural jus
tice shall run.
Subsection 103.2(2) of the Canadian and Brit-
ish Insurance Companies Act reads in part:
103.2 .. .
(2) Where the Minister, after full consideration of the matter
and after a reasonable time has been given to the company to
be heard, believes that the situation described in any paragraph
of subsection (1) exists ...
he may then take the appropriate course of action
subsequently prescribed in the subsection.
The Superintendent reported to the Minister
that the assets of the company were not sufficient,
having regard to all the circumstances, to give
adequate protection to the policyholders of the
company as provided in paragraph (d) of subsec
tion (1) of section 103.2.
In M.N.R. v. Coopers and Lybrand [ 1979] 1
S.C.R. 495, Dickson J. in delivering the judgment
of the Supreme Court of Canada, at page 504,
formulated several criteria for determining wheth
er a decision or order is one required by law to be
made on a judicial or quasi-judicial basis. He
made mention of four criteria not intended to be
exhaustive and no one of which is necessarily
determinative. All factors are to be weighed.
These criteria are four in number and I shall
consider them seriatim.
(1) Is there anything in the language in which the function is
conferred or in the general context in which it is exercised
which suggests that a hearing is contemplated before a decision
is reached?
Subsection 103.2(2) makes it mandatory that
the company shall be afforded the opportunity to
be heard after having been given a reasonable
time. While the precise requirements of the hear
ing are not prescribed, it is clear that a hearing
with respect to the affected company is contem
plated. This criterion is, therefore, applicable.
(2) Does the decision or order directly or indirectly affect the
rights and obligations of persons?
It cannot be disputed, nor is it disputed, that the
rights of the company are directly affected. The
very substructure of the future conduct of its
business is cut away by the order.
(3) Is the adversary process involved?
The concept of the usual judicial function is
bound up in the idea that there is a suit between
parties and it is the duty of the Court to decide the
issue between those parties.
In administrative law, issues arise between con
tending parties that differ from those determined
by the courts of justice.
This matter is, in my view, one such instance.
The plaintiff here seeks a legal privilege, that is
to carry on the insurance business in Canada.
The duty of the Superintendent of Insurance
and the Minister is to protect the public interest
and in the end result a refusal to grant a certificate
of registration may be construed as a decision in
favour of the public at large, who are not directly
represented at the hearing.
While there may not be a true lis inter partes
there is statutory interpolation of a procedure
which bears a superficial resemblance to a lis inter
partes which Lord Greene M.R. has characterized
as a quasi -lis.
(4) Is there an obligation to apply substantive rules to many
individual cases rather than, for example, the obligation to
implement social and economic policy in a broad sense?
Subsection 103.2(2) requires the Minister to
give his full consideration to the individual
instances and he decides each matter in accord
ance with the circumstances applicable in the par
ticular matter and takes the permitted action dic
tated thereby.
For the foregoing reasons the four criteria set
forth by Dickson J. are applicable to the present
decision by the Minister from which it follows that
his decision is an administrative one which is
required by law to be made on a judicial or
quasi-judicial basis.
That being so, the preliminary objection made
by counsel for the defendants that the Trial Divi
sion is without jurisdiction to entertain the matter
under section 18 of the Federal Court Act is well
taken and the remedy available to the plaintiff is
an application to the Appeal Division to review
and set aside the Minister's order pursuant to
section 28 of the Federal Court Act.
At the conclusion of the hearing of the prelim
inary objection to the jurisdiction of the Trial
Division to hear the matter, I adjourned to decide
that question.
If I should have been of the opinion that the
matter is not required by law to have been made
by the Minister on a judicial or quasi-judicial
basis, then the Trial Division is vested with
jurisdiction.
If the contrary is the case, as I have found it to
be, then the Trial Division is without jurisdiction.
Having concluded that the Trial Division is
without jurisdiction to hear this matter, the
application for an interlocutory injunction is
dismissed.
There shall be no order as to costs for or against
either of the parties.
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.