A-363-85
Canadian Imperial Bank of Commerce (Appli-
cant)
v.
Ellen Rifou (Respondent)
INDEXED AS: CANADIAN IMPERIAL BANK OF COMMERCE V.
RIFOU
Court of Appeal, Urie, Mahoney and Stone JJ.-
Toronto, May 12; Ottawa, July 9, 1986.
Labour relations - Application to set aside Adjudicator's
order reinstating bank employee, dismissed upon conviction of
theft under $200 from store - Application allowed under s.
28(1)(c) of Federal Court Act - Decision based on erroneous
finding of fact - Adjudicator finding job not involving hand
ling money; evidence to contrary - Labour Code, s. 61.5(9)(b)
power of reinstatement not infringing Charter s. 2(d) freedom
of association as no joint common interest objectives - Code
s. 61.5 intra vires - Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28(1)(c) - Canada Labour Code, R.S.C. 1970,
c. L-1, s. 61.5 (as enacted by S.C. 1977-78, c. 27, s. 21)
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982, Item 1), ss. 96,
97, 98, 99, 100, 101 - Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(d)
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 52 - Criminal Code, R.S.C. 1970, c. C-34, s.
294(b) (as am. by S.C. 1974-75-76, c. 93, s. 25).
Constitutional law - Distribution of powers - Canada
Labour Code, s. 61.5 intra vires - S. 61.5 giving to ad hoc
adjudicator appointed under Labour Code jurisdiction over
claim of unjust dismissal - Jurisdiction properly belonging to
superior, district or county court - Provincial ability to
bestow jurisdiction on provincial agency restricted when power
properly belonging to s. 96 court - Parliament not subject to
same restrictions in conferring jurisdiction on administrative
tribunals - Canada Labour Code, R.S.C. 1970, c. L-1, s.
61.5 (as enacted by S.C. 1977-78, c. 27, s. 21) - Constitution
Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix
II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.),
Schedule to the Constitution Act, 1982, Item 1), ss. 96, 97, 98,
99, 100, 101.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of association — Adjudicator reinstat
ing employee after dismissal from Bank upon criminal convic
tion — S. 61.5(9)(b) of Labour Code, giving Adjudicator power
of reinstatement, not infringing Charter s. 2(d) right of free
dom of association — Freedom of association meaning free
dom to enter into consensual arrangements to promote
common interest objectives of associating group — Here no
joint common interest objectives, much less group ones —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 1, 2(d) — Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 52.
Judicial review — Applications to review — Application to
set aside Adjudicator's order reinstating Bank employee, dis
missed upon conviction of store theft under $200 — Decision
based in part on finding employee's job not involving handling
money — Performance review listing duties, including selling
travellers cheques and other instruments — Application
allowed — Adjudicator overlooking relevant evidence — Not
necessary to refuse to take notice of material to come within s.
28(1)(c) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28(1)(c).
Judges and Courts — Judicial independence — Threatened
if Parliament having unfettered power to transfer judicial
roles from superior courts to administrative tribunals — Tests
in Residential Tenancies reference for usurpation of functions
of superior courts — Availability of judicial review — Impor
tant that tribunal sufficiently independent for task assigned —
S. 61.5 Canada Labour Code, giving Adjudicator power to
order dismissed employee's reinstatement, not ultra vires Par
liament — Powers necessarily incidental to broader policy
goal — Tribunal not operating like s. 96 court — Canada
Labour Code, R.S.C. 1970, c. L-1, s. 61.5 (as enacted by S.C.
1977-78, c. 27, s. 21).
The respondent was dismissed by her employer, a bank, after
she was convicted of the theft of store merchandise valued
under $200. An Adjudicator, appointed under section 61.5 of
the Labour Code, reinstated her in light of her previous
unblemished work record, the severity of the consequences of
termination and the distance between what she did and her
duties and opportunities at work. The employer asks the Court
to set aside the Adjudicator's order, pursuant to paragraph
28(1)(c) of the Federal Court Act, on the ground that the
Adjudicator made an erroneous finding of fact. It also submits
that paragraph 61.5(9)(b) of the Code, empowering the
Adjudicator to reinstate the respondent, infringes the appli
cant's fundamental "freedom of association" contrary to para-
graph 2(d) of the Charter. The applicant's final argument is
that the whole of section 61.5 of the Code is ultra vires as the
powers it purports to confer on an adjudicator in respect of
wrongful dismissal are "judicial powers" that cannot be
assigned to an adjudicator, but must either be left with a
superior, district or county Court of a province or assigned to a
court established under section 101 of the Constitution Act,
1867.
Held, the application should be allowed and the matter
referred back to the Adjudicator.
Per Stone J.: The Adjudicator based his decision in part upon
a finding that the respondent's job function did not involve
handling money. That was not in accordance with the evidence
since the respondent's duties, as listed in her performance
review, included selling travellers cheques, money orders and
other instruments. The respondent relied on Re Rohm & Haas
Canada Ltd., where it was held that the words "without regard
for the material before it" in paragraph 28(1)(c) of the Federal
Court Act connote ignoring or refusing to take notice of some
material. The Adjudicator did not refuse to take notice of the
performance review, but overlooked it. A tribunal that has
overlooked a piece of relevant evidence in arriving at a finding
of fact, and in deciding a matter on the basis of that finding has
"based its decision or order on an erroneous finding of fact that
it made ... without regard for the material before it".
The common thread running through the reported cases
dealing with freedom of association is that the freedom guaran
teed by paragraph 2(d) of the Charter is a freedom to enter
into consensual arrangements to promote common interest
objectives of the associating group. Paragraph 61.5(9)(b) of the
Code does not infringe the freedom of association guaranteed
by paragraph 2(d) of the Charter. There are not even joint
common interest objectives here, much less group ones. The
respondent is interested in gaining a livelihood from employ
ment; the applicant's ultimate objective is to realize a profit
from banking.
Within their spheres of legislative competence the provinces
are subject to some restriction on their ability to bestow
jurisdiction on a provincial agency, when that jurisdiction
properly belongs to a section 96 court. The applicant argues, on
the basis of McEvoy v. Attorney General for New Brunswick et
al., that the Parliament of Canada is subject to the same
restrictions when it attempts to transfer jurisdiction to a federal
agency. It submits that the test in the Residential Tenancies
case applies, and unless satisfied, section 61.5 is unconstitution
al. To read the McEvoy case as authority for this proposition
goes well beyond the question that it actually decided. The
Supreme Court of Canada was dealing with a proposal by
which a province would constitute a court and appoint the
judges thereof and to which Parliament would transfer the
jurisdiction of a superior court. The Supreme Court saw imple
mentation of this scheme as violating the "fundamental princi
ple" of the judicial independence of section 96 superior courts
guaranteed by the judicature sections of the Constitution Act,
1867. Those sections applied and so prevented Parliament from
transferring that jurisdiction and the province from appointing
those judges. There is no clear and authoritative statement on
the precise issue herein. The traditional view has been that
Parliament in exercising its legislative competence is not sub
ject to the same restrictions in creating and vesting with
jurisdiction administrative tribunals as those that bind the
provincial legislatures. Section 61.5 is not ultra vires the Parlia
ment of Canada.
Per Urie J. (concurring in the result): The potential for
erosion of judicial independence exists if Parliament has the
unfettered authority to remove traditional judicial roles from
superior courts to place them in the hands of other bodies.
Perhaps the requirement of judicial review is a sine qua non.
Recognizing that the Residential Tenancies reference was in
respect of the power of a provincial legislature to assign tradi
tional judicial powers to a provincial tribunal, the three tests
laid down therein have equal applicability in determining
whether Parliament has usurped the functions of superior
courts in assigning to other tribunals powers theretofore exer
cised by them. Applying those tests, section 61.5 of the Canada
Labour Code is not ultra vires because, viewing the Adjudica
tor's powers in "the `context' in which they are exercised", the
powers are "necessarily incidental to the achievement of a
broader policy goal". It is not the "sole or central function of
the tribunal ... so that the tribunal can be said to be operating
'like a s. 96 court' ".
Per Mahoney J. (concurring in the result): The power of
Parliament to transfer jurisdiction need not be utterly unre
strained. Perhaps the test should be whether the status of the
transferee tribunal is such that a reasonable, well-informed
person would perceive it to be sufficiently independent for the
task assigned and that it is, in fact, that independent. Perhaps
the availability of judicial review is a sine qua non. Adjudica
tors appointed ad hoc under subsection 61.5(6) enjoy the
necessary independence, and access to judicial review is not
restricted. Section 61.5 is not ultra vires.
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Re Rohm & Haas Canada Ltd. and Anti-dumping Tri
bunal (1978), 91 D.L.R. (3d) 212 (F.C.A.).
APPLIED:
Public Service Alliance of Canada v. The Queen, [1984]
2 F.C. 889 (C.A.); Collymore v. Attorney-General,
[1970] A.C. 538 (P.C.).
DISTINGUISHED:
Black & Company v. Law Society of Alberta (1986), 68
A.R. 259 (C.A.); Young, James and Webster v. United
Kingdom (1981), 4 E.H.R.R. 38; McEvoy v. Attorney
General for New Brunswick et al., [ 1983] 1 S.C.R. 704.
CONSIDERED:
Residential Tenancies Act, 1979, Re, [1981] 1 S.C.R.
714; Papp v. Papp, [1970] 1 O.R. 331 (C.A.); R. v.
Canada Labour Relations Board, Ex parte Federal
Electric Corp. (1964), 44 D.L.R. (2d) 440 (Man. Q.B.);
Canard v. Attorney-General of Canada et al. (1972), 30
D.L.R. (3d) 9 (Man. C.A.); rev'd sub nom. Attorney
General of Canada et al. v. Canard, [1976] 1 S.C.R. 170;
Valente v. The Queen et al., [1985] 2 S.C.R. 673.
REFERRED TO:
Re United Headwear, Optical and Allied Workers Union
of Canada, Local 3 et al. and Biltmore/Stetson (Canada)
Inc. et al. (1983), 43 O.R. (2d) 243 (C.A.); Re Service
Employees' International Union, Local 204 and Broad-
way Manor Nursing Home et al. and two other applica
tions (1983), 44 O.R. (2d) 392 (Div. Ct.); Dolphin
Delivery Ltd. v. Retail, Wholesale and Dept. Store
Union, Loc. 580 (1984), 52 B.C.L.R. 1 (C.A.); Re
Pruden Building Ltd. and Construction & General
Workers' Union Local 92 et al. (1984), 13 D.L.R. (4th)
584 (Alta. Q.B.); Chappell v. Times Newspapers Ltd.,
[1975] 1 W.L.R. 482 (Ch.D.); Reference re Authority to
perform functions vested by the Adoption Act, the Chil-
dren's Protection Act, the Children of Unmarried Parents
Act, the Deserted Wives' Act and Children's Mainte
nance Act, of Ontario, [1938] S.C.R. 398; Labour Rela
tions Board of Saskatchewan v. John-East Iron Works,
Ld., [1949] A.C. 134 (P.C.); Dupont and MacLeod v.
Inglis, Biron and Mann, [1958] S.C.R. 535; Tomko v.
Labour Relations Board (N.S.) et al., [1977] 1 S.C.R.
112; Attorney General (Que.) et al. v. Farrah, [1978] 2
S.C.R. 638; Mississauga (City of) v. Municipality of Peel
et al., [1979] 2 S.C.R. 244; Crevier v. Attorney General
of Quebec et al., [1981] 2 S.C.R. 220; Attorney General
of Quebec et al. v. Grondin et al., [1983] 2 S.C.R. 364;
B.C. Family Relations Act, Re:, [1982] 1 S.C.R. 62; R.
v. McDonald, [1958] O.R. 373 (C.A.); Valin v. Langlois
(1879), 3 S.C.R. 1.
COUNSEL:
D. J. M. Brown, Q.C. for applicant.
L. T. Roslyn for respondent.
SOLICITORS:
Blake, Cassels & Graydon, Toronto, for
applicant.
Leighton T. Roslyn, Sudbury, Ontario, for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J. (concurring in the result): I have had
the benefit of reading the draft reasons for judg
ment of both of my brothers, Mahoney and Stone
JJ. As does Mahoney J., I agree completely with
Stone J. on the result of the application and with
his conclusions on both the erroneous finding of
fact ground and on the ground relating to the
alleged violation of the applicant's freedom of
association as guaranteed by the Canadian Chart
er of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)].
However, I share with Mahoney J. the difficulty
in reconciling the constitutional status of an
independent judiciary "with the notion that, within
the sphere of its legislative competence, Parlia
ment is entirely free to assign elsewhere the juris
diction traditionally exercised by that judiciary",
which is, in effect, the conclusion to which our
brother Stone has come on question of the vires of
Parliament to enact section 61.5 of the Canada
Labour Code [R.S.C. 1970, c. L-1, as enacted by
S.C. 1977-78, c. 27, s. 21]. His conclusion is an
extension of the principles enunciated in the judg
ments of the Supreme Court of Canada in numer
ous cases but, in particular, in the Residential
Tenancies Act, 1979, Re, [1981] 1 S.C.R. 714 and
McEvoy v. Attorney General for New Brunswick
et al., [1983] 1 S.C.R. 704. It is that extension
with which I have difficulty.
Mahoney J. has succinctly expressed his doubts
based upon his perception of the potential erosion
of judicial independence if Parliament has the
unfettered authority to remove traditional judicial
roles from superior courts to place them in the
hands of other bodies. He suggests that, perhaps,
the possibility of judicial review is a sine qua non.
I harbour the same doubts and have the same view
as to the requirement, at least, of judicial review.
However, I would go one step further. Recogniz
ing that the Residential Tenancies reference was
in respect of the power of a provincial legislature
to assign traditional judicial powers to a provincial
tribunal, it appears to me that the three tests laid
down therein by Dickson J. (as he then was) have
equal applicability in determining whether Parlia
ment has or has not usurped the functions of
superior courts in assigning to other tribunals
powers theretofore exercised by them. Applying
those tests to the case at bar, I have no difficulty in
concluding that, contrary to what was argued by
counsel for the applicant, the enactment of section
61.5 of the Canada Labour Code is not ultra vires
the Parliament of Canada because, inter alia, in
the third step, viewing the Adjudicator's power in
"the `context' in which [these powers are] exer
cised" the powers are "necessarily incidental to the
achievement of a broader policy goal". It is not the
"sole or central function of the tribunal ... so that
the tribunal can be said to be operating 'like a s.
96 court' ". One need only view the scheme of the
Act to verify that that is a correct view of the
legislation.
That being so, I agree with my brothers that
section 61.5 is not ultra vires the Parliament of
Canada. I would, therefore dispose of the matter
in the manner proposed by Stone J.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J. (concurring in the result): I have
had the advantage of reading in draft the reasons
for judgment prepared by my brother Stone
herein. I agree in the result and am in complete
agreement with his reasons on the questions of the
Adjudicator's erroneous finding of fact and the
alleged violation of the applicant's Charter guar
anteed freedom of association.
There is an aspect of his reasons relative to the
ultra vires argument which disturbs me a great
deal. As Mr. Justice Stone has very clearly demon
strated, there is a substantial body of highly
respectable judicial opinion supporting the propo
sition that Parliament is under no constitutional
restraint whatever in assigning to federal adminis
trative tribunals, or to federal officials, jurisdiction
traditionally exercised by section 96 courts. I must
say that I find that baldly stated proposition
repugnant.
While McEvoy v. Attorney General for New
Brunswick et al., [1983] 1 S.C.R. 704, dealt with
a Charter guaranteed right, and this issue is not
based on the Charter, it was said there, at page
720:
The traditional independence of English Superior Court
judges has been raised to the level of a fundamental principle of
our federal system by the Constitution Act, 1867 and cannot
have less importance and force in the administration of crimi
nal law than in the case of civil matters. Under the Canadian
constitution the Superior Courts are independent of both levels
of government. The provinces constitute, maintain and organize
the Superior Courts; the federal authority appoints the judges.
The judicature sections of the Constitution Act, 1867 guarantee
the independence of the Superior Courts; they apply to Parlia
ment as well as to the Provincial Legislatures.
I cannot, with respect, reconcile the constitutional
status of an independent judiciary with the notion
that, within the sphere of its legislative compe
tence, Parliament is entirely free to assign else
where the jurisdiction traditionally exercised by
that judiciary. What is the point of a constitution
ally enshrined independent judiciary if Parliament
is at liberty to strip it of its jurisdiction?
It almost goes without saying that the practical
requirements of the administration of justice will
no more be satisfactorily met in the future, than in
the past, by a static division of jurisdiction be
tween section 96 courts and other tribunals. That
does not, however, necessitate that the power of
Parliament to transfer jurisdiction be utterly
unrestrained.
A good deal of the discussion of judicial in
dependence in Valente v. The Queen et al., [1985]
2 S.C.R. 673, is of some relevance to this question,
although it, too, was a Charter case. Perhaps, as
suggested there, at page 689, the test should be
whether the status of the transferee tribunal is
such that a reasonable, well-informed person
would perceive it to be sufficiently independent for
the task assigned and that it is, in fact, that
independent. Perhaps, too, the availability of judi
cial review is a sine qua non.
On that basis, I have no difficulty agreeing in
that section 61.5 of the Canada Labour Code is
not ultra vires Parliament. Adjudicators appointed
ad hoc under subsection 61.5(6) enjoy the neces
sary independence, and access to judicial review is
not restricted.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.: Mrs. Rifou, a long-time employee,
lost her job with the Bank after being convicted of
a criminal offence. An Adjudicator appointed and
acting pursuant to section 61.5 of the Canada
Labour Code, R.S.C. 1970, c. L-1, as amended,
reinstated her to employment without compensa
tion or other benefits. This Court is now asked to
set aside the Adjudicator's decision and order
which is dated March 27, 1985.
The decision and order was made in the follow
ing circumstances. On June 18, 1984 the respond
ent's employment was terminated by notice in
writing of the same date. In the previous month
she had been convicted of stealing store merchan
dise of a value not exceeding $200 contrary to
paragraph 294(b) of the Criminal Code [R.S.C.
1970, c. C-34 (as am. by S.C. 1974-75-76, c. 93,
s. 25)]. At the time of her conviction she was
serving the applicant as a Liability or Loans Offi
cer. She had held various positions with the Bank
from the time she entered into employment in
1967. Her work record was without blemish prior
to this occurrence, leading the Adjudicator to con
clude that it showed "a high sense of responsibility
and a high level of competence and collegiality".
He went on to state at pages 7-8 of his decision
and order:
I conclude that the theft was an aberration, for which there
may not be an explanation known to the Complainant, and
that, given the event of criminal conviction and suspension from
employment, which may be much more reliable conditioners
than an excuse which may be contrived or an expression of
remorse that may be fabricated, the aberration is a much less
plausible base for projecting future conduct than the Complai
nant's long and commendable work record. I note also that her
job function is clerical, and does not involve handling money or
like property. I note also that the theft was not work related
and occurred off duty and off the employer's premises. I accept
the Complainant's explanation for the incorrect and cryptic
statements in the Unemployment Insurance events. The expla
nations are credible and I believe them.
I conclude, therefore, that the facts do not establish a case for
an uncompromising response from the Employer to the Com
plainant's culpable behaviour. That conclusion lets in the Com
plainant's case for mitigation, mainly her work record, the
complex severity of the consequences of termination, and the
distance between what she did and her duties and opportunities
at work.
The applicant makes three separate attacks on
the decision and order. It says that the learned
Adjudicator based his decison upon an erroneous
finding of fact made without regard for the ma
terial before him and, accordingly, that the deci
sion and order should be set aside in accordance
with paragraph 28(1)(c) of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10. Secondly, it says
that the provisions of paragraph 61.5(9)(b) of the
Code empowering the Adjudicator to reinstate the
respondent infringes the applicant's fundamental
"freedom of association" contrary to paragraph
2(d) of the Canadian Charter of Rights and Free
doms and that that paragraph is not saved by
section 1 of the Charter. Finally, the applicant
argues that the whole of section 61.5 of the Code is
ultra vires the Parliament of Canada in that the
powers it purports to confer on an adjudicator,
being in respect of wrongful dismissal from
employment, are "judicial powers" that cannot be
assigned to an adjudicator but must either be left
with a superior, district or county court of a
province or assigned to a court established under
section 101 of the Constitution Act, 1867 [30 &
31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II,
No. 5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982,
Item 1)]. I shall deal with these issues in turn.
ERRONEOUS FINDING OF FACT
The basis of this attack is the above quoted
finding of the Adjudicator that the respondent's
"job function ... does not involve handling money
or like property". Counsel argues that the finding
simply does not accord with the evidence and, in
particular, with that contained in a performance
review dated April 24, 1984 in which the respon
dent's regular duties are enumerated. The perfor
mance review document required that those duties
"be listed in order or importance" and that less
significant duties "be clustered into fewer state
ments where the content and ratings do not require
special attention". Among the regular duties enu
merated are the following found in item 11 among
the 14 items listed in the document:
11. Transact business with customers and non customers, sell
ing travellers cheques, drafts, money orders, CSB's, GIC's,
Term Deposit, Safety Deposit Boxes, cables, etc. as well as all
other instruments.
There can be little doubt that this evidence,
involving as it does "selling" by the respondent of
travellers cheques and other instruments, points
rather plainly to the handling of money by her as
one of her regular duties. Even so, it is argued, the
decision and order was not based upon that finding
but rather upon a finding that the theft "is a much
less plausible base for projecting future conduct
than the Complainant's long and commendable
work record". I am quite unable to accept this
submission. A reading of the decision and order as
a whole convinces me that the Adjudicator did
base his decision to reinstate the respondent to
employment at least in part upon his finding that
her work "did not involve handling money or like
property". It is among the several reasons he gives
for doing so.
Was the finding in issue made "without regard
for the material before" the Adjudicator within
the meaning of paragraph 28(1)(c) of the Federal
Court Act? That paragraph reads:
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
(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.
It is not contended that the finding was made "in a
perverse or capricious manner". The respondent
relies on certain views expressed by this Court in
Re Rohm & Haas Canada Ltd. and Anti-dump-
ing Tribunal (1978), 91 D.L.R. (3d) 212 (F.C.A.),
concerning the meaning of the words "without
regard for the material before it". They are found
in the following passage of the judgment, at pages
214-216, where Chief Justice Jackett stated:
In considering an attack based on s. 28(1)(c) it should be
kept in mind that, for such an attack to succeed, there are,
according to the wording of s. 28(1)(c), three conditions prece
dent, viz.:
(a) the Tribunal must have made an "erroneous" finding of
fact;
(b) that erroneous finding must have been made
(i) in a perverse or capricious manner, or
(ii) without regard for the material before the Tribunal,
and
(c) the decision attacked must be "based" on the erroneous
finding.
In my view, none of the alleged "erroneous" findings can be
said, on a fair reading of the Tribunal's "Statement of Rea
sons" to meet the second of these requirements. It was not
suggested that the Tribunal was guilty of perversity (i.e.,
wilfully going contrary to the evidence) or of capriciousness. As
to the words "without regard for the material before it", in my
view, they connote that the Tribunal has ignored (i.e., refused
to take notice of) that material or some significant part of it
and not merely that the supervisory Court would have evaluat
ed it differently than the Tribunal did. [Footnotes omitted.]
Counsel for the respondent submits that, in
arriving at his decision, the Adjudicator did not
refuse to take notice of the performance review for
it is explicitly referred to on pages 1 and 2 of his
decision and order and, inferentially, by his refer
ence to the respondent's "work record" made else
where in the decision. On the other hand, it would
seem that the Adjudicator failed to notice the
content of item 11 of that review. If he had noticed
it he would not have found that the respondent's
"job function ... does not involve handling money
or like property". It is not suggested that he
refused to notice that particular piece of evidence
but only that he appears to have overlooked it. I
agree. In my view, a tribunal that has overlooked a
piece of relevant evidence in arriving at a finding
of fact and in deciding a matter on the basis of
that finding has "based its decision or order on an
erroneous finding of fact that it made . .. without
regard for the material before it". That, surely, is
what occurred here. I think the applicant has made
out its case on the point and, ordinarily, that the
decision and order should be set aside and the
matter referred back with directions.
Before considering this latter aspect, however, I
should address the second issue for, if the appli
cant be correct in that contention, the powers of
the Adjudicator under section 61.5 of the Code
would necessarily be limited, so much so that he
could not order reinstatement even if his conclu
sion on the merits remains unchanged. He would
be left to select another remedy or remedies pro
vided for in subsection 61.5(9). The third issue
also requires attention at this stage for if, as is
claimed, section 61.5 is ultra vires the Parliament
of Canada, the Adjudicator would be powerless to
award any remedy at all.
FREEDOM OF ASSOCIATION
The provisions of paragraph 61.5(9)(b) of the
Code, it is argued, infringes the freedom of asso
ciation guaranteed to the applicant by paragraph
2(d) of the Charter:
2. Everyone has the following fundamental freedoms:
(d) freedom of association.
It was conceded for the purpose of this argument
that the word "everyone" includes the applicant
although it is a corporate entity. The applicant
goes on to argue that paragraph 61.5(9)(b) of the
Code is not saved by section 1 of the Charter:
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
Paragraph 61.5(9)(b) is found in Division V.7 of
the Code under the heading "UNJUST DISMISS
AL". Subsection (1) thereof entitled the respon
dent to make a complaint in writing to an inspec
tor if she considered her dismissal to be unjust.
Upon receipt of an inspector's report the Minister
is authorized by subsection (6) to appoint an
adjudicator "to hear and adjudicate upon the com
plaint" and to "refer the complaint to the
adjudicator". The remedial powers conferred are
found in subsection 61.5(9):
61.5...
(9) Where an adjudicator decides pursuant to subsection (8)
that a person has been unjustly dismissed, he may, by order,
require the employer who dismissed him to
(a) pay the person compensation not exceeding the amount
of money that is equivalent to the remuneration that would,
but for the dismissal, have been paid by the employer to the
person;
(b) reinstate the person in his employ; and
(c) do any other like thing that it is equitable to require the
employer to do in order to remedy or counteract any conse
quence of the dismissal.
If we were to accept the applicant's submission
that paragraph 61.5(9)(b) is inconsistent with the
Charter the provisions of subsection 52(1) of the
Constitution Act, 1982 [Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)] would apply. It reads:
52. (1) The Constitution of Canada is the supreme law of
Canada, and any law that is inconsistent with the provisions of
the Constitution is, to the extent of the inconsistency, of no
force or effect.
The applicant's argument runs as follows: that it
ought not to be forced by law to employ a person
in whom it has lost confidence due to a criminal
conviction; that paragraph 2(d) of the Charter
frees the applicant from doing so by guaranteeing
everyone the freedom to associate with whomever
he pleases in whatever context; that that freedom
implies choice as to with whom one wishes to
associate and without that choice "freedom of
association would have little practical meaning";
and that because it is being required to re-employ
the respondent, paragraph 61.5(9)(b) infringes its
"freedom of association" guaranteed by paragraph
2(d). On the other side it is argued that paragraph
2(d) does not apply because it guarantees freedom
to enter into consensual arrangements to promote
the common interest objectives of the associating
group rather than the one-on-one relationship that
results from a contract of employment.
So far as I can determine, the precise point has
not heretofore been passed upon by a Canadian
court in any of the reported cases. There are,
however, a number of decisions in the books deal
ing with the application of paragraph 2(d) (see e.g.
Re United Headwear, Optical and Allied Workers
Union of Canada, Local 3 et al. and Biltmore/
Stetson (Canada) Inc. et al. (1983), 43 O.R. (2d)
243 (C.A.); Re Service Employees' International
Union, Local 204 and Broadway Manor Nursing
Home et al. and two other applications (1983), 44
O.R. (2d) 392 (Div. Ct.); Dolphin Delivery Ltd. v.
Retail, Wholesale and Dept. Store Union, Loc.
580 (1984), 52 B.C.L.R. 1 (C.A.); Public Service
Alliance of Canada v. The Queen, [1984] 2 F.C.
889 (C.A.)). I do not think it is necessary to
analyze all of these cases for, in general, they are
concerned with whether association activities are
covered by paragraph 2(d) rather than with free
dom to enter into an association.
There is, I think, a common thread running
through most of the reported cases. It is this, that
the "freedom of association" guaranteed by para
graph 2(d) is a freedom to enter into consensual
arrangements to promote common interest objec
tives of the associating group. The underlying case
is a decision of the Privy Council in Collymore v.
Attorney-General, [1970] A.C. 538 in an appeal
from the Court of Appeal of Trinidad and Tobago.
The issue there was whether a public statute which
provided a system for the compulsory settlement of
labour disputes and which prohibited strikes and
lock-outs infringed the "freedom of association"
recognized and declared in section 1(j) of The
Trinidad and Tobago [Trinidad and Tobago
(Constitution) Order in Council 1962, S.I. 1962/
1875]. Section 1 of that Constitution read [as
quoted at pages 543-544]:
1. It is hereby recognised and declared that in Trinidad and
Tobago there have existed and shall continue to exist without
discrimination by reason of race, origin, color, religion or sex,
the following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law; (b) the right of
the individual to equality before the law and the protection of
the law; (c) the right of the individual to respect for his private
and family life; (d) the right of the individual to equality of
treatment from any public authority in the exercise of any
functions; (e) the right to join political parties and to express
political views; (/) the right of a parent or guardian to provide a
school of his own choice for the education of his child or ward;
(g) freedom of movement; (h) freedom of conscience and
religious belief and observance; (i) freedom of thought and
expression; (j) freedom of association and assembly; and (k)
freedom of the press.
Lord Donovan summarized the arguments on both
sides of the issue, at page 546:
The appellants now claim that the Act is void since it
infringes their freedom of association which section 1 of the
Constitution declares has existed "and shall continue to exist":
and any abrogation, abridgment or infringement of which is
forbidden by section 2, save in circumstances which admittedly
do not exist in the present case.
The argument runs thus: "Freedom of Association" must be
construed in such a way that it confers rights of substance and
is not merely an empty phrase. So far as trade unions are
concerned, the freedom means more than the mere right of
individuals to form them: it embraces the right to pursue that
object which is the main raison d'être of trade unions, namely,
collective bargaining on behalf of its members over wages and
conditions of employment. Collective bargaining in its turn is
ineffective unless backed by the right to strike in the last resort.
It is this which gives reality to collective bargaining. Accord
ingly, to take away or curtail the right to strike is in effect to
abrogate or abridge that freedom of association which the
Constitution confers.
The argument of the respondent is that "freedom of associa
tion" in section 1(j) of the Constitution means no more than it
says, that persons are free to associate. It does not mean that
the purposes for which they associate, and the objects which in
association they pursue, are sacrosanct under the Constitution
and cannot be altered or abridged save by the special procedure
provided by section 5.
That case, like some of the decided cases in this
country, was concerned with whether association
activities were protected by "freedom of associa
tion". Nevertheless, in affirming the decision of
the Court of Appeal for Trinidad and Tobago the
Privy Council appears clearly to have endorsed the
notion that "freedom of association", at least in
the context of section 1 of that Constitution, refers
to freedom to enter into consensual arrangements
to promote common interest objectives of the
associating group. The opinion of the Court
appealed from was quoted by Lord Donovan, at
page 547 of the report:
In my judgment, then, freedom of association means no more
than freedom to enter into consensual arrangements to promote
the common interest objects of the associating group. The
objects may be any of many. They may be religious or social,
political or philosophical, economic or professional, educational
or cultural, sporting or charitable. But the freedom to associate
confers neither right nor licence for a course of conduct or for
the commission of acts which in the view of Parliament are
inimical to the peace, order and good government of the
country.
Among the cases which have dealt with the
meaning of paragraph 2(d) of the Charter is the
decision of this Court in Public Service Alliance of
Canada v. The Queen (supra). It affirmed a deci
sion of the Trial Division which held that the right
of employees to bargain collectively through their
union was not protected by paragraph 2(d). In his
majority judgment, Mr. Justice Mahoney made
reference to the Collymore case, at page 894 of the
report as follows:
In Collymore v. Attorney-General of Trinidad and Tobago,
([1969] 2 All E.R. 1207 (P.C.)) the Judicial Committee of the
Privy Council upheld the judgment of the Court of Appeal of
Trinidad and Tobago which held that legislation abridging the
right to bargain collectively and to strike did not breach the
right to freedom of association guaranteed by that country's
constitution. In so doing, the judgment of the Court of Appeal
was quoted with approval [at page 1211]:
In my judgment, then, freedom of association means no more
than freedom to enter into consensual arrangements to pro
mote the common interest objects of the association (sic)
group.
I agree.
The recent decision of the Court of Appeal of
Alberta in Black & Company v. Law Society of
Alberta (1986), 68 A.R. 259 was a case of a
different kind than those already mentioned.
There, certain Rules of the Law Society of Alberta
were challenged by a group of Alberta solicitors
as, among other things, infringing the "freedom of
association" guaranteed to them by paragraph
2(d) of the Charter. The Rules forbade an active
member ordinarily residing and carrying on prac
tice within the Province from entering into or from
continuing "any partnership, association or other
arrangement for the joint practice of law with
anyone who is not an active member ordinarily
resident in Alberta" and prohibited any member
from being a partner in or being associated for the
practice of law with more than one law firm. The
Court of Appeal considered the Rules to be invalid
as infringing the freedom of the Alberta solicitors
guaranteed to them by paragraph 2(d) of associat
ing with a group of solicitors residing and practis
ing their profession in Ontario. The views of the
Court on the point are found in the judgment of
Kerans J.A. and in the separate judgment of Ste-
venson J.A. (concurred in by Lieberman J.A.). On
the issue of "freedom of association" Kerans J.A.
said, at page 274:
... the solicitors have the right to associate among themselves
and with others inside and outside Alberta for the purpose of
seeking a livelihood in the profession for which they were
qualified.
Stevenson J.A. came to the same conclusion. At
page 302 he said:
I agree that both rules also violate s. 2(d) which protects the
formation of an association for the earning of a livelihood. The
learned trial judge suggested that the office of s. 2(d) was to
protect association for the purpose of advancing the freedoms
recognized by ss. 2(a) and (b). His interpretation would not
protect the formation of trade unions unless formed for political
purposes, yet he acknowledges that the expression "freedom of
association" must be understood to extend the formation of
such associations. I agree that the formation of such associa
tions is Charter protected and once formed purposes found
within ss. 2(a) and (b) are also Charter protected. Once the
formation of associations for the improvement of working
conditions is protected I conclude that "freedom of association"
extends to association with the object of the earning of a
livelihood. I need not consider the extent, if any, to which the
Charter protects the objects as the impugned rules strike at
formation.
That case, unlike the present one, was concerned
with freedom to enter into consensual arrange
ments to promote common interest objectives of
the two groups of solicitors involved. That is not
the situation here. On the other hand, the appli
cant relies on a decision of the European Court of
Human Rights in Young, James and Webster v.
United Kingdom (1981), 4 E.H.R.R. 38. It was
decided under Article 11 of the European Conven
tion for the Protection of Human Rights and
Fundamental Freedoms [European Conventions
and Agreements, Council of Europe, Strasbourg,
1971, Vol. 1, p. 21; ETS 5]:
Article 11
1. Everyone has the right to freedom of peaceful assembly
and to freedom of association with others, including the right to
form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or
crime, for the protection of health or morals or for the protec
tion of the rights and freedoms of others. This article shall not
prevent the imposition of lawful restrictions on the exercise of
these rights by members of the armed forces, of the police or of
the administration of the State.
A "closed shop" agreement entered into by an
employer, British Rail, in 1975, required the dis
missal from employment of the three non-union
employees hired in earlier years. The employees
argued that the trade union membership condition
required by that agreement infringed their "free-
dom of association" in its negative sense of not to
be compelled to join the union. The Court agreed.
It gave its opinion on the point, at page 54:
55. The situation facing the applicants clearly runs counter
to the concept of freedom of association in its negative sense.
Assuming that Article 11 does not guarantee the negative
aspect of that freedom on the same footing as the positive
aspect, compulsion to join a particular trade union may not
always be contrary to the Convention.
However, a threat of dismissal involving loss of livelihood is a
most serious form of compulsion and, in the present instance, it
was directed against persons engaged by British Rail before the
introduction of any obligation to join a particular trade union.
In the Court's opinion, such a form of compulsion, in the
circumstances of the case, strikes at the very substance of the
freedom guaranteed by Article 11. For this reason alone, there
has been an interference with that freedom as regards each of
the three applicants.
A Canadian jurist has observed that that case "has
been the subject of much discussion, if not to say
controversy" (per Sinclair J. in Re Pruden Build
ing Ltd. and Construction & General Workers'
Union Local 92 et al. (1984), 13 D.L.R. (4th) 584
(Alta. Q.B.), at page 597). In any event, it was
concerned with freedom to enter into consensual
arrangements (membership in a trade union) in
the negative sense discussed by the European
Court of Human Rights. It was not concerned with
interference with a desire of an employer not to
continue an employment relationship due to loss of
confidence in an employee. I am unable to gain
any real assistance from that case.
The question we have to decide is whether para
graph 61.5(9)(b) of the Code infringes the "free-
dom of association" guaranteed to the applicant
under paragraph 2(d) of the Charter. I have come
to the conclusion that it does not do so. There are
not in this case even joint common interest objec
tives much less group ones. The respondent is
basically interested in gaining a livelihood from
employment in a position which she had held for
many years and in which she had performed well;
the applicant's ultimate objective, on the other
hand, is to realize a profit from an operation in the
banking industry. In my judgment, paragraph
61.5(9)(b) of the Code does not infringe the free
dom guaranteed by paragraph 2(d) of the Charter
and, accordingly, there is no need to consider the
section 1 argument.
THE ULTRA VIRES ARGUMENT
I come, finally, to the third ground of attack. It
is here argued that the whole of section 61.5 of the
Code (or at least paragraph (9)(b) thereof) is
ultra vires the Parliament of Canada in that it
purports to transfer to an ad hoc adjudicator
appointed under the Code jurisdiction or power
over a claim that the respondent was "unjustly
dismissed" within the meaning of the Code and the
legal consequences of that dismissal when that
jurisdiction or power properly belongs to a Supe
rior, District or County Court under section 96 of
the Constitution Act, 1867 or to a Court estab
lished under section 101 thereof. At common law,
it is argued, a superior court does not attempt to
reinstate a dismissed employee (see e.g. Chappell
v. Times Newspapers Ltd., [1975] 1 W.L.R. 482
(Ch.D.), at page 496; aff d loc. cit. page 496
(C.A.)). The Adjudicator purported to do so pur
suant to the Code. At the opening of the hearing
counsel for the applicant filed a supplemental
memorandum of argument on the point and
informed us that it had been served on the Attor
ney General of Canada but that the latter had
decided not to participate. This new point was not
addressed in argument before us. Instead, the par
ties were invited to submit written argument and
that has now been done.
Sections 96 and 101 are found in the JUDICA
TURE section of the Constitution Act, 1867 which
consist of sections 96 to 101 reading as follows:
96. The Governor General shall appoint the Judges of the
Superior, District, and County Courts in each Province, except
those of the Courts of Probate in Nova Scotia and New
Brunswick.
97. Until the Laws relative to Property and Civil Rights in
Ontario, Nova Scotia, and New Brunswick, and the Procedure
of the Courts in those Provinces, are made uniform, the Judges
of the Courts of those Provinces appointed by the Governor
General shall be selected from the respective Bars of those
Provinces.
98. The Judges of the Courts of Quebec shall be selected
from the Bar of that Province.
99. (1) Subject to subsection (2) of this section, the judges of
the superior courts shall hold office during good behaviour, but
shall be removable by the Governor General on address of the
Senate and House of Commons.
(2) A judge of a superior court, whether appointed before or
after the coming into force of this section, shall cease to hold
office upon attaining the age of seventy-five years, or upon the
coming into force of this section if at that time he has already
attained that age.
100. The Salaries, Allowances, and Pensions of the Judges of
the Superior, District, and County Courts (except the Courts of
Probate in Nova Scotia and New Brunswick), and of the
Admiralty Courts in Cases where the Judges thereof are for the
Time being paid by Salary, shall be fixed and provided by the
Parliament of Canada.
101. The Parliament of Canada may, notwithstanding any
thing in this Act, from Time to Time provide for the Constitu
tion, Maintenance, and Organization of a General Court of
Appeal for Canada, and for the Establishment of any addition
al Courts for the better Administration of the Laws of Canada.
It seems now to be well settled that within their
spheres of legislative competence the provinces are
subject to some restriction on their ability to
bestow jurisdiction or power on a provincial
agency when that jurisdiction or power properly
belongs to a section 96 court (Reference re Au
thority to perform functions vested by the Adop
tion Act, the Children's Protection Act, the Chil
dren of Unmarried Parents Act, the Deserted
Wives' Act and Children's Maintenance Act, of
Ontario, [1938] S.C.R. 398; Labour Relations
Board of Saskatchewan v. John-East Iron Works,
Ld., [1949] A.C. 134 (P.C.); Dupont and Mac-
Leod v. Inglis, Biron and Mann, [1958] S.C.R.
535; Tomko v. Labour Relations Board (N.S.) et
al., [1977] 1 S.C.R. 112; Attorney General (Que.)
et al. v. Farrah, [1978] 2 S.C.R. 638; Mississauga
(City of) v. Municipality of Peel et al., [1979] 2
S.C.R. 244; Residential Tenancies Act, 1979, Re,
[1981] 1 S.C.R. 714; Crevier v. Attorney General
of Quebec et al., [1981] 2 S.C.R. 220; Attorney
General of Quebec et al. v. Grondin et al., [1983]
2 S.C.R. 364). This is not to say that a province is
entirely without ability to do so but when it acts it
must do so in a manner that is constitutionally
acceptable according to the decided cases (B.C.
Family Relations Act, Re:, [1982] 1 S.C.R. 62, at
pages 112-113). Specifically, the jurisdiction or
power conferred must meet the tests of those cases
and, in particular, the three-part test laid down by
the Supreme Court of Canada in the Residential
Tenancies case, at pages 734-736, where Dickson
J. [as he then was] stated:
The jurisprudence since John East leads one to conclude that
the test must now be formulated in three steps. The first
involves consideration, in the light of the historical conditions
existing in 1867, of the particular power or jurisdiction con
ferred upon the tribunal. The question here is whether the
power or jurisdiction conforms to the power or jurisdiction
exercised by superior, district or county courts at the time of
Confederation. This temporary segregation, or isolation, of the
impugned power is not for the purpose of turning back the
clock and restoring Toronto v. York as the governing authority,
an approach deplored in Mississauga. It is rather the first step
in a three step process.
If the historical inquiry leads to the conclusion that the
power or jurisdiction is not broadly conformable to jurisdiction
formerly exercised by s. 96 courts, that is the end of the matter.
As Rand J. noted in Dupont et al. v. Inglis et al. ([1958]
S.C.R. 535), "Judicial power not of that type, [i.e. that exer
cised by s. 96 courts at Confederation] such as that exercised
by inferior courts, can be conferred on a provincial tribunal
whatever its primary character" (p. 542). If, however, the
historical evidence indicates that the impugned power is identi
cal or analogous to a power exercised by s. 96 courts at
Confederation, then one must proceed to the second step of the
inquiry.
Step two involves consideration of the function within its
institutional setting to determine whether the function itself is
different when viewed in that setting. In particular, can the
function still be considered to be a `judicial' function? In
addressing the issue, it is important to keep in mind the further
statement by Rand J. in Dupont v. Inglis that "... it is the
subject-matter rather than the apparatus of adjudication that is
determinative". Thus the question of whether any particular
function is `judicial' is not to be determined simply on the basis
of procedural trappings. The primary issue is the nature of the
question which the tribunal is called upon to decide. Where the
tribunal is faced with a private dispute between parties, and is
called upon to adjudicate through the application of a recog
nized body of rules in a manner consistent with fairness and
impartiality, then, normally, it is acting in a `judicial capacity'.
To borrow the terminology of Professor Ronald Dworkin, the
judicial task involves questions of `principle', that is, consider
ation of the competing rights of individuals or groups. This can
be contrasted with questions of `policy' involving competing
views of the collective good of the community as a whole. (See
Dworkin, Taking Rights Seriously (Duckworth, 1977) pp.
82-90.)
If, after examining the institutional context, it becomes
apparent that the power is not being exercised as a "judicial
power" then the inquiry need go no further for the power,
within its institutional context, no longer conforms to a power
or jurisdiction exercisable by a s. 96 court and the provincial
scheme is valid. On the other hand, if the power or jurisdiction
is exercised in a judicial manner, then it becomes necessary to
proceed to the third and final step in the analysis and review
the tribunal's function as a whole in order to appraise the
impugned function in its entire institutional context. The
phrase—`it is not the detached jurisdiction or power alone that
is to be considered but rather its setting in the institutional
arrangements in which it appears'—is the central core of the
judgment in Tomko. It is no longer sufficient simply to exam
ine the particular power or function of a tribunal and ask
whether this power or function was once exercised by s. 96
courts. This would be examining the power or function in a
`detached' manner, contrary to the reasoning in Tomko. What
must be considered is the `context' in which this power is
exercised. Tomko leads to the following result: it is possible for
administrative tribunals to exercise powers and jurisdiction
which once were exercised by the s. 96 courts. It will all depend
on the context of the exercise of the power. It may be that the
impugned `judicial powers' are merely subsidiary or ancillary to
general administrative functions assigned to the tribunal (John
East; Tomko) or the powers may be necessarily incidental to
the achievement of a broader policy goal of the legislature
(Mississauga). In such a situation, the grant of judicial power
to provincial appointees is valid. The scheme is only invalid
when the adjudicative function is a sole or central function of
the tribunal (Farrah) so that the tribunal can be said to be
operating 'like a s. 96 court'.
The present case, of course, does not involve a
transfer by a provincial legislature of jurisdiction
or power from a section 96 court to a provincial
administrative tribunal. Nevertheless, the argu
ment is made that the reasoning which has gone
into the decisions that have restricted transfer of
such jurisdiction or power at the provincial level
operates with equal force at the federal level. In
other words, it is said that any attempt by the
Parliament of Canada to transfer such jurisdiction
or power to a federal agency must be treated in
precisely the same way as an attempt by a provin
cial legislature to transfer jurisdiction or power of
the same nature to a provincial agency. The test
laid down in the Residential Tenancies case, it is
submitted, applies in a situation like that of the
present and unless that test is satisfied section 61.5
of the Code must be viewed as being unconstitu
tional.
The applicant relies upon the decision of the
Supreme Court of Canada in McEvoy v. Attorney
General for New Brunswick et al., [1983] 1 S.C.R.
704 as supporting this submission. The Supreme
Court was there concerned with the constitutional
validity of a proposal to establish a unified crimi
nal court in the Province of New Brunswick.
According to the proposal the new Court would
exercise complete criminal jurisdiction, would
replace the Provincial Court and its judges would
be appointed by the province. Another element of
the proposal would require the Parliament of
Canada to amend the Criminal Code and other
federal statutes so as to confer jurisdiction in
criminal matters on the proposed Court. The effect
of the judgment rendered by the Court of Appeal
for New Brunswick was to approve the proposal as
being constitutionally valid. But the Supreme
Court of Canada disagreed. In the course of its
judgment the Supreme Court observed (at page
718) that the proposal would "separate the new
Court from provincial Superior Courts" and it
added at pages 718-719:
Will that help or advance the matter if functional consider
ations have to be considered? It has long been the rule that s.
96, although in terms an appointing power, must be addressed
in functional terms lest its application be eroded. What then, is
the relation between the proposed new statutory Court and s.
96? This is the key constitutional issue in the present case and,
as we view the matter, the result is to defeat the new statutory
Court because it will effectively be a s. 96 Court.
This is followed by a recital of sections 96-100 of
the Constitution Act, 1867 which are noted as
being "couched in mandatory terms" and as not
resting "merely on federal statutory powers".
There then follows the Court's opinion on the
constitutional validity of the proposal. It said at
pages 719-721:
What is being contemplated here is not one or a few transfers
of criminal law power, such as has already been accomplished
under the Criminal Code, but a complete obliteration of Supe
rior Court criminal law jurisdiction. Sections 96 to 100 do not
distinguish between courts of civil jurisdiction and courts of
criminal jurisdiction. They should not be read as permitting the
Parliament of Canada through use of its criminal law power to
destroy Superior Courts and to deprive the Governor General
of appointing power and to exclude members of the Bar from
preferment for Superior Court appointments.
Parliament can no more give away federal constitutional
powers than a province can usurp them. Section 96 provides
that "The Governor General shall appoint the Judges of the
Superior, District, and County Courts in each Province". The
proposal here is that Parliament transfer the present Superior
Courts' jurisdiction to try indictable offences to a provincial
court. The effect of this proposal would be to deprive the
Governor General of his power under s. 96 to appoint the
judges who try indictable offences in New Brunswick. That is
contrary to s. 96. Section 96 bars Parliament from altering the
constitutional scheme envisaged by the judicature sections of
the Constitution Act, 1867 just as it does the provinces from
doing so.
The traditional independence of English Superior Court
judges has been raised to the level of a fundamental principle of
our federal system by the Constitution Act, 1867 and cannot
have less importance and force in the administration of crimi
nal law than in the case of civil matters. Under the Canadian
constitution the Superior Courts are independent of both levels
of government. The provinces constitute, maintain and organize
the Superior Courts; the federal authority appoints the judges.
The judicature sections of the Constitution Act, 1867 guarantee
the independence of the Superior Courts; they apply to Parlia
ment as well as to the Provincial Legislatures.
Both sides of the proposal under review are flawed. Parlia
ment cannot in effect give away the Governor General's s. 96
appointing power under colour of legislation vesting jurisdiction
to try all indictable offences in a provincial court. New Bruns-
wick cannot exercise an appointing power in respect of courts
with s. 96 jurisdiction under colour of legislation in relation to
the constitution, maintenance and organization of courts with
criminal jurisdiction.
The applicant argues on the basis of that deci
sion that the Parliament of Canada acting within
its own field of legislative competence can no more
remove or restrict the core of jurisdiction guaran
teed to a "Superior Court" by sections 96-100 of
the Constitution Act, 1867 than can a provincial
legislature do so acting within its field of legisla
tive competence. The question has been the subject
of much debate by the textwriters both pro (Dean
W. R. Lederman, "The Independence of the
Judiciary", (1956) 34 Can. B. Rev. 769, 1139;
Professor R. Elliot, "New Brunswick Unified
Criminal Court Reference", (1984) 18 U.B.C. L.
Rev. 127) and con (Professor A. Abel, Laskin's
Canadian Constitutional Law, 1975 (Rev. 4th
ed.); Professor P. Hogg Constitutional Law of
Canada, 1985 (2nd ed.)) and both prior and subse
quent to the McEvoy decision. I do not think it
would profit us to discuss these differing views for
it seems to me that the primary focus must surely
be on the implications for this case of the Supreme
Court's decision in the McEvoy case. If that case
stands for the proposition urged by the applicant,
then our duty could only be to apply it and then
move on to a consideration of whether or not the
test laid down in the Residential Tenancies case is
satisfied by section 61.5 of the Code.
In my judgment, to read the McEvoy case as
authority for that proposition would be to go well
beyond the question that it actually decided.
There, the Supreme Court of Canada was dealing
with a proposal by which a province would consti
tute a court and appoint the judges thereof and to
which the Parliament of Canada would transfer
jurisdiction of a superior court. The Supreme
Court saw implementation of the scheme as violat
ing the "fundamental principle" of judicial in-
dependence of section 96 Superior Courts guaran
teed by the judicature sections of the Constitution
Act, 1867. Those sections applied and so prevented
Parliament from transferring that jurisdiction and
the province from appointing those judges. In my
view, it would require a clear and authoritative
statement upon the precise issue facing us before I
could be persuaded that it has been decided in the
manner argued for by the applicant. I do not find
such a statement in the McEvoy case.
The traditional view, it would appear, has been
the opposite to that urged by the applicant. It is
that the Parliament of Canada in exercising its
legislative competence is not subject to the same
restrictions in creating and vesting with jurisdic
tion administrative tribunals as those that bind the
provincial legislatures. Proponents of that view are
found among the textwriters: see Laskin's Canadi-
an Constitutional Law (4th ed.), at page 762;
Dean R. A. Macdonald, "The proposed section
96B: An Ill-Conceived Reform Destined to Fail
ure", (1985) 26 C. de D. 251, at page 263, and
Hogg, Constitutional Law of Canada (2nd ed.).
At page 149 of his work Professor Hogg asserts:
However, the point that sections 96, 97, 98 and 100 of the
Constitution Act, 1867 do not apply is still important, because
it means that the federal Parliament, unlike the provincial
Legislatures, is not under any constitutional restraint in assign
ing jurisdiction to federal administrative tribunals or officials
(or to federal inferior courts, if it chose to create some): such
bodies may be invested with functions of a kind traditionally
exercised by a superior, district or county court if the Parlia
ment so enacts.
There is, I think, some support for this view in
the decided cases. A firm expression of it is found
in the judgment of the Ontario Court of Appeal in
Papp v. Papp, [1970] 1 O.R. 331 where Laskin
J.A. said, at page 339:
It is the appellant's further contention that even if custody is
competently comprehended by the Divorce Act, it is offensive to
s. 96 of the B.N.A. Act to vest interim custody jurisdiction in
the Master. This submission can only be advanced if the source
of the Master's custody jurisdiction is provincial legislation.
Section 96 does not inhibit the federal Parliament: see R. v.
Canada Labour Relations Board, ex p. Federal Electric Corp.
(1964), 44 D.L.R. (2d) 440, 47 W.W.R. 391 sub nom. Federal
Electric Corp. v. Int'l Brotherhood of Electrical Workers Local
Union 2085 and Canada Labour Relations Bd. It has long been
the law, declared and reiterated by the Supreme Court of
Canada, that the federal Parliament may repose jurisdiction, in
respect of any matter within its competence, in provincially
appointed officers: see Re Vancini (1904), 34 S.C.R. 621;
Couglin v. Ontario Highway Transport Board, [1968] S.C.R.
569,68 D.L.R. (2d) 384.
See also R. v. McDonald, [1958] O.R. 373 (C.A.).
In R. v. Canada Labour Relations Board, Ex
parte Federal Electric Corp. (1964), 44 D.L.R.
(2d) 440, the Manitoba Court of Queen's Bench
had this to say (per Smith J., at pages 462-463) in
speaking of the respondent Board:
Finally, it is a Federal Board and, as such , is not subject to any
limitations that may have been said ... to attach to Provincial
Boards, arising from the fact that such Boards are created by
Provincial Legislatures which have no power to create superior,
county, or district Courts under s. 96 of the B.N.A. Act.
Eight years later the question once again arose
in Manitoba, this time in Canard v. Attorney-
General of Canada et al. (1972), 30 D.L.R. (3d) 9
(Man. C.A.). One of the issues there was whether
the Parliament of Canada under the subject "Indi-
ans, and Lands reserved for the Indians" in sub
section 91(24) of the Constitution Act, 1867 could
oust the jurisdiction of a provincial court in favour
of a federal Minister to appoint an administrator
of the estate of a deceased Indian pursuant to
section 42 et seq. of the Indian Act, R.S.C. 1970,
c. I-6. The opinion of the Manitoba Court of
Appeal upholding the federal power was delivered
by Dickson J.A. and is found at pages 17-18 of the
report. He said:
Counsel for Mrs. Canard argued that if s. 42 et seq. are
within s. 91, para. 24 of the B.N.A. Act, 1867, they are none
the less invalid for the reason that they effect an ouster of the
jurisdiction of a provincial Court. They do indeed effect such
an ouster but there is ample authority to the effect that
Parliament has the right to establish Courts having exclusive
jurisdiction in a field that is within the jurisdiction of Parlia
ment and to oust the jurisdiction of provincial Courts in that
field. The only question is whether the words by which that
object is sought to be achieved are apt for the purpose. As long
ago as 1879 in Valin v. Langlois (1879), 3 S.C.R. 1 at p. 75,
Taschereau, J., said:
... cannot Parliament, in virtue of section 101 of the Act,
create new courts of criminal jurisdiction, and enact that all
crimes, all offences shall be tried exclusively before these new
courts? I take this to be beyond controversy.
And at p. 76:
I also think it clear, that Parliament can say, for instance,
that all judicial proceedings on promissory notes and bills of
exchange shall be taken before the Exchequer Court or
before any other Federal Court. This would be certainly
interfering with the jurisdiction of the Provincial Courts.
But, I hold that it has the power to do so quoad all matters
within its authority.
Section 101 of the B.N.A. Act, 1867, provides that the
Parliament of Canada may from time to time provide for the
establishment of any additional Courts for the better adminis
tration of the laws of Canada and Parliament has in the past
acted under this power in establishing the Income Tax Appeal
Board, Admiralty Court, Bankruptcy Courts, Labour Board,
Immigration Appeal Board and the like. Among the cases in
which an ouster of a provincial Court has been considered are:
Delorimier v. Cross, supra (ouster of Superior Court of Quebec
in favour of the Exchequer Court, by the Indian Act); Nanaimo
Community Hotel v. Board of Referees, [1945] 3 D.L.R. 225,
[1945] 2 W.W.R. 145, [1945] C.T.C. 125 (ouster of Supreme
Court of British Columbia in favour of the Exchequer Court,
by the Income War Tax Act); Pringle et al. v. Fraser, a
judgment of the Supreme Court of Canada pronounced March
30, 1972, not yet reported [since reported 26 D.L.R. (3d) 28];
reversing 19 D.L.R. (3d) 129, [1971] 2 O.R. 749; R. v. Beattie,
Ex p. Edery (1969), 7 D.L.R. (3d) 654, 70 W.W.R. 553, and
R. v. Department of Manpower & Immigration, Ex p. Hosin
(1970), 12 D.L.R. (3d) 704, [1970] 3 O.R. 268 (ouster of the
ordinary Courts in favour of the Immigration Appeal Board, by
the Immigration Appeal Board Act); Klingbell v. Treasury
Board, [1972] 2 W.W.R. 389 (ouster of Court of Queen's
Bench of Manitoba in favour of the Federal Court, by the
Federal Court Act).
Counsel then submitted that if ouster of jurisdiction is possi
ble, there is nevertheless a distinction between transferring
jurisdiction from one Court to another Court or to a board, and
transferring it from a Court to a Minister of the Crown; that
the former may be within the federal power but the latter is
not. I cannot accept this argument. Acting within the area of its
legislative competence Parliament may limit or oust the juris
diction of a provincial Court and give the jurisdiction which
would otherwise reside within that Court to a federal Court or
to a federal board or, if Parliament so wishes, to a Minister of
the Crown. [Emphasis added.]
I observe that the suggestion of Taschereau J. in
the Valin [Valin v. Langlois (1879), 3 S.C.R. 1]
case concerning transfer of all criminal law power
to a new Court created by Parliament was repu
diated by the Supreme Court of Canada at page
722 of the McEvoy case.
The Canard case reached the Supreme Court of
Canada: Attorney General of Canada et al. v.
Canard, [ 1976] 1 S.C.R. 170. The appeal was
allowed on another ground but some members of
the Court expressed views which appear to me to
be generally supportive of those expressed by
Dickson J.A. on the particular constitutional point.
That is especially so of those expressed by the
Chief Justice of Canada with whom Spence J.
agreed. While dissenting on the ground upon
which the appeal was decided, he expressed the
following views, at page 176:
Again, I am in entire agreement with the Manitoba Court of
Appeal that Parliament, in legislating in the exercise of its
exclusive power under s. 91(24) of the British North America
Act, may include in such legislation testamentary provisions
which would, according to their reach, govern the issue of
letters of administration of the estate of an Indian intestate.
Moreover, I see no constitutional infirmity in the assignment of
jurisdiction in such matters to a federal functionary. Any
constitutional limitation which might arguably reside in s. 96 of
the British North America Act if provincial legislation was
involved does not apply to the otherwise valid legislation of
Parliament. [Emphasis added.]
Beetz J. also expressed some views on the point
and while they are cast in narrower terms than
those of the Chief Justice they appear to represent
qualified agreement with those views. After quot
ing at some length from the judgment of Dickson
J.A. he said, at pages 202-203:
We are not called upon to decide the constitutional validity
of ss. 42 et seq. in all their substantive and jurisdictional
ramifications. Yet, for the purposes of this case, I find myself in
agreement with the general propositions that testamentary
matters and causes with respect to deceased Indians come
within the class of subjects of "Indians and Lands reserved for
the Indians" and that Parliament can constitutionally oust the
jurisdiction of provincial courts in these as well as in other
federal matters and vest it in a federal agency, subject perhaps
to an obvious qualification: while Parliament has the power to
establish courts for the administration of the laws of Canada, it
does not necessarily follow that it can clothe a Minister, or any
official or board of a non-judicial nature with all the functions
of a superior court; the powers of Parliament are limited by the
wording of s. 101 of the British North America Act, 1867, as
well as by the federal and fundamental nature of the Constitu
tion which implies an inherent and entrenched jurisdiction in
the courts to adjudicate in constitutional matters. [Emphasis
added.]
And again, at page 203 Beetz J. continued:
In a matter of exclusive federal competence, such as "Indians
and Lands reserved for the Indians" there is nothing unconsti
tutional in Parliament excluding the authority of provincial
courts over this subject and bestowing it upon a Minister,
particularly if it makes it subject to a form of judicial control as
is provided by s. 47 of the Indian Act.
Ritchie J., was in some measure of agreement with
Beetz J. on the point for he said, at page 192, that
"the power to appoint an administrator of the
estate of a person who has died intestate is not one
which must necessarily be assigned to a court and
that there is nothing unconstitutional in Parlia
ment excluding the authority of provincial courts
over this subject and bestowing it upon a
Minister".
It must be acknowledged that the views on the
question expressed by members of the Supreme
Court of Canada in the Canard case did not
represent the opinion of that Court as a whole.
Those views as expressed both in the intermediate
and in the final appeal are of course obiter dicta
but when coupled with those of the Manitoba
Court of Queen's Bench in the Federal Electric
case and of the Ontario Court of Appeal in the
Papp case, the whole constitutes a considerable
body of judicial thought running counter to the
submission advanced by the applicant. I propose to
adopt those views. I do not detect from an exami
nation of the Supreme Court's decision in the
McEvoy case that these contrary views were
argued or considered. I would not be prepared to
hold, therefore, that that case has determined this
point in a way that is binding upon this Court. As
I have already indicated, it decides only that the
judicature sections of the Constitution Act, 1867
therein discussed neither permitted the Parliament
of Canada to invest a provincially appointed court
with jurisdiction to try indictable offences nor the
Province to appoint the judges of such a court. I
have concluded that section 61.5 of the Code is not
ultra vires the Parliament of Canada.
CONCLUSION
In view of the conclusions I have reached on the
second and third issues discussed above, there is no
legal barrier to referring the matter back to the
Adjudicator for reconsideration on the basis that
he cannot base his decision and order on a finding
that the respondent's "job function ... does not
involve handling money or like property" because
the evidence is contrary to that finding. I would
therefore set aside the decision and order of the
Adjudicator herein and refer the matter back to
him for reconsideration on the above basis.
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.