Harelkin v. University of Regina

Harelkin v. University of Regina
Collection
Supreme Court Judgments
Date
1979-03-30
Report
[1979] 2 SCR 561
Judges
Martland, Ronald; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Saskatchewan
Subjects
Education law
Decision Content
SUPREME COURT OF CANADA
Harelkin v. University of Regina, [1979] 2 S.C.R. 561
Date: 1979-03-30
George S. Harelkin Appellant;
and
The University of Regina Respondent.
1978: June 13, 14; 1979: March 30.
Present: Martland, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Colleges and universities — Student required by university authorities to discontinue studies — Unsatis­factory academic performance — Whether student had right to be heard by committee of university council — Whether Court of Appeal right in refusing certiorari and mandamus because student should have pursued right of appeal to university senate before resorting to prerogative writs — The University of Regina Act, 1974, 1973-74 (Sask.), c. 119, ss. 33(1)(e), 78(1)(c).
The appellant, a student in the School of Social Work, Saskatoon Faculty, University of Regina, was required by university authorities to discontinue his studies. The University Act provided an appeal to a committee of the university council, obligated to "hear and decide". The committee heard one side—the university—and decided adversely to the student, all in the absence of the student. The student did not know what was placed against him in the committee nor was he afforded an opportunity to correct or contradict any statement pre-judicial to his position. Some months later, following an exchange of correspondence between appellant's counsel and the university authorities, in which a rehearing was requested and refused, certiorari and mandamus pro­ceedings were launched. It was contented on the part of the university that the student was not damnified because he had a further appeal to a committee of the senate of the university also charged with the duty, on appeal, to "hear and decide". The trial judge rejected the contentions of the university and granted certiorari quashing the order of the council committee. He directed the university to hold a hearing, pursuant to s. 78(1)(c) of The University of Regina Act, 1974, and to allow the applicant to be present, to be heard, to present evidence and to be represented by counsel, with respect to the refusal of the School of Social Work to allow him to pursue further studies. The Court of Appeal for Saskatchewan reversed, holding that, where there is a right of appeal certiorari should not be granted except under special circumstances and no special circumstances were established. From this decision the student appealed to this Court.
Held (Spence, Dickson and Estey B. dissenting): The appeal should be dismissed.
Per Martland, Pigeon, Beetz and Pratte JJ.: The contentions made against the judgment of the Court of Appeal could be summarized in four main propositions: (I) failure by the council committee to respect the principle audi alteram partem was akin to a jurisdic­tional error and the writs should issue ex debito jus­titiae; (2) the decision of the council committee was an absolute nullity from which there could be no appeal to the senate committee; (3) even if there could be an appeal to the senate committee, appellant's right of appeal was not an adequate alternative remedy; (4) the principle audi alteram partem had in this case been given statutory force and the Courts should exercise their discretion with a view to enforcing the statute.
1. Failure to respect the principle audi alteram partem and issuance of the writs ex debito justitiae,
The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate. It is based on a contradiction and imports a great deal of confusion into the law. A writ cannot at once be a writ of grace and a writ of right. To say in a case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the discretion even in cases involving lack of jurisdiction. A fortiori does the discretion remain in cases not of lack of jurisdiction, but of excess or abuse of jurisdiction such as those involving a breach of natural justice.
2. Whether the decision of the council committee was a nullity from which there could be no appeal.
There was no want of jurisdiction in the committee of the council to hear and decide upon appellant's applica­tion or memorial. In the exercise of this jurisdiction, the committee erred in failing to observe the rules of natural justice. While it could be said in a manner of speaking that such an error was "akin" to a jurisdictional error, it did not entail the same type of nullity as if there had been a lack of jurisdiction in the committee. It simply rendered the decision of the committee voidable at the instance of the aggrieved party and the decision remained appealable until quashed by a superior court or set aside by the senate. To hold otherwise would produce undesirable practi­cal effects. For instance, an aggrieved student who had less time than appellant and who cared more about the expenditure could not appeal directly to the senate; he would have to seek relief from the courts, go back before the committee of the council, and from there to the senate, if need be. A purely conceptual view of absolute nullity which would, in this type of case, cause such inconvenient and impractical results could not be theoretically sound.
Alternatively, the motion that was passed by the council committee to review the action taken by the Faculty of Social Work in evaluating appellant's aca­demic performance could be said to be a "decision" within the meaning of s. 33(1)(e) of the Act. It was a motion whereby the council committee "decided upon, subject to an appeal to the senate, an application or memorial by a student in connection with any faculty of the university" within the meaning of s. 78(1)(c) of the Act. The council committee in effect decided that appel­lant's application or memorial was without merit and implicitly dismissed it. Even though this decision was arrived at in defiance of natural justice, it nonetheless remained a "decision" disposing of appellant's case and was "subject to an appeal to the senate" pursuant to s. 78(1)(c).
Furthermore, and even if it could be said that the decision of the council committee was a nullity, it was still appealable to the senate committee for the simple reason that the senate committee was given by statute the power to hear and decide upon appeals from the decisions of the council, whether or not such decisions were null.
3. Whether appellant's right of appeal to the senate committee was an adequate alternative remedy—The balance of convenience.
The trial judge erred in holding that there was noth­ing in the appeal procedure whereby the senate was required "to hear" the appellant. First, it was clear that the senate was required to hear appellant, as was council since the same wording "to hear and decide" is found both in s. 33(1)(e) and in s. 78(1)(c); having rightly decided upon the basis of that wording, that the council was required to hear appellant, the trial judge could not, without contradicting and misdirecting himself, hold that there was nothing in the appeal procedure whereby the senate was required to hear appellant. Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the trial judge refused to take into consideration a major element for the determination of the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene.
In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composi­tion of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors included the burden of a previous find­ing, expeditiousness and costs. A consideration of all the factors led to the conclusion that appellant's right of appeal to the senate committee did provide him with an adequate alternative remedy. In addition this remedy was a more convenient remedy for appellant as well as for the university in terms of costs and expeditiousness. Also, the council committee's refusal to grant a rehear­ing to appellant was not a sufficient reason for issuing certiorari and mandamus.
4. Statutory force of the rule audi alteram partem
The submission that in a case such as the present, where the duty of the council committee to hear appel­lant was imposed by statute, the courts should not decline to enforce the statute but ought to exercise their discretion, if any, so as to uphold it was not accepted. Sections 78(1)(c) and 33(1)(e) are inspired by the gen­eral intent of the Legislature that intestine grievances preferably be resolved internally by the means provided in the Act, the university thus being given the chance to correct its own errors, consonantly with the traditional autonomy of universities as well as with expeditiousness and low cost for the public and the members of the university. While of course not amounting to privative clauses, provisions like ss. 55, 66, 33(1)(e) and 78(1)(c) are a clear signal to the courts that they should use restraint and be slow to intervene in university affairs by means of discretionary writs whenever it is still possible for the university to correct its errors with its own institutional means. In using restraint, the courts do not refuse to enforce statutory duties imposed upon the governing bodies of the university. They simply exercise their discretion in such a way as to implement the general intent of the Legislature.
King v. University of Saskatchewan, [1969] S.C.R. 678, approved; Smith v. The Queen, [1959] S.C.R. 638, distinguished. Per Spence, Dickson and Estey JJ., dissenting: Three grounds were relied upon by the Court of Appeal in denying the appellant the right, which the statute plain­ly gave him, namely the right to be heard by the committee of council: (1) the absence of "special cir­cumstances"; (2) the committee acted within its jurisdiction, rightly or wrongly; (3) the appellant had an unexploited right of appeal to the senate of the universi­ty. The Court of Appeal was in error in relying on any of these grounds for the following reasons; (1) the principle of exclusion of certiorari in the absence of "special circumstances", where there is a right of appeal, applies only to errors within jurisdiction; (2) a decision made without natural justice is not a decision within jurisdiction; (3) when a tribunal so acts within jurisdiction, certiorari will be granted ex debito jus­titiae, notwithstanding a right of appeal to another administrative tribunal.
The conclusion to this appeal could be reached by a series of propositions which were fully supported by the authorities, namely:
(1) A statutory duty resting upon a committee "to hear and decide" imports, at the very least, a duty to afford the parties an opportunity to be heard. The appellant was entitled to know why he was being expelled—be it unsatisfactory marks, as stated in a letter to him from the Dean, or a tendency to be neurotic in his ideas, as stated by the chairman of the student progress review committee. And he was entitled to respond to and correct any statements prejudicial to his position. In failing to afford that opportunity, the committee of council breached the audi alteram partem rule and the appellant was denied natural justice.
(2) Procedural error in failing to hold a hearing pursuant to staturory duty is "error going to jurisdic­tion" and not "error within jurisdiction". The error of the council committee was not a mere error of law within jurisdiction. Failure to hear the appellant went to the "very root of the determination" of the committee and, as such, amounted to jurisdictional error.
(3) Where there has been a denial of natural justice (and hence a lack of jurisdiction) certiorari will issue, notwithstanding a right of appeal to an administrative or domestic body, where that body exercises purely appellate functions. This point raised the general issue of the discretionary nature of certiorari. In this context the authorities draw a distinction between jurisdictional and non-jurisdictional error and between a right of appeal to an administrative or domestic tribunal and a right of appeal to the courts. Generally speaking, the rule is that, if the error is jurisdictional, certiorari will issue ex debito justitiae, but if the error is error in law, then in the absence of a privative clause, certiorari may issue. The discretion is broad when the error is non-jurisdic­tional and there is an appeal to the courts, but virtually disappears when the error is jurisdictional and the right of appeal, if any, is to an administrative or domestic tribunal sitting in a purely appellate role.
In all the circumstances, and on the footing (i) that the council of the university had no jurisdiction to deny the appellant a hearing, and (ii) that the appeal given to the appellant was administrative and not to the courts, there was simply no authority for the decision of the Court below. An appeal was simply not a sufficient remedy for the failure to do justice in the first place. The appellant should be able to look to the courts for relief if he is treated unfairly by the council, regardless of what might have occurred before the senate, had he pursued that route. At the time he was faced with the choice of senate appeal or certiorari he had no assurance that he would be heard by the senate appeals committee. The council committee, whose statutory duty to "hear and decide" was framed in the same terms as senate, had preferred an in camera session from which he was excluded. There was nothing, at the time, to say that senate would not adopt the same attitude.
APPEAL from a judgment of the Court of Appeal for Saskatchewan allowing an appeal from a judgment of Bence C.J.Q.B.[1], wherein writs of certiorari and mandamus were granted against the University of Regina because of its failure to allow the appellant to be heard as to why he felt he had been unjustly refused further opportunity to attend classes at the School of Social Work, University of Regina. Appeal dismissed, Spence, Dickson and Estey JJ, dissenting.
K. E. Norman and W. J. Wardell, for the appellant.
T. C. Wakeling, Q.C., for the respondent. The judgment of Martland, Pigeon, Beetz and Pratte JJ. was delivered by
BEETZ J.—This case raises two main issues. The first issue relates to the question whether appellant had the right to be heard by the committee of the university council. The second issue arises from the discretionary nature of certiorari and mandamus; it is whether the Saskatchewan Court of Appeal was right in refusing certiorari and mandamus because appellant should have pursued his right of appeal to the university senate before resorting to prerogative writs.
On the first issue, I agree with my brother Dickson, whose opinion I have had the advantage of reading that, under s. 78(1)(c) of The Universi­ty of Regina Act, 1974, (the Act), the power exercised by the committee of the university coun­cil was quasi-judicial in nature and the committee had a statutory duty to hear appellant, which duty was not complied with. I also agree that all those persons connected with the university who were concerned with appellant's case acted in good faith: the Act was new legislation; by-laws and regulations applying to all the proceedings of the university governing bodies had not yet been enacted and the university council, misapprehend­ing its own statutory position, must have been relying either upon recent and erroneous practice or on practices followed by other universities gov­erned by different statutory provisions.
But I cannot agree that the case is one of elementary justice. Nor do I agree that appellant's application for certiorari and mandamus should have been allowed: appellant had and still has a better alternative remedy in his right of appeal to the senate committee; he ought to have exercised it.
I—The facts
Appellant had enrolled in the Faculty of Social Work, Saskatoon Faculty, for the Fall Semester in 1974 and also in the Winter and Fall Semesters of 1975. He alleges that at the end of the 1975 Fall Semester, he was informed by an instructor that he would no longer be permitted to continue. The Faculty Regulations provided: Students who are unable to attain a satisfactory stand­ard in their studies may be required to discontinue or withdraw.
According to the affidavit of Professor Hanow­ski, chairman of the student progress review com­mittee, appellant had failed to maintain the required 2.5 scholastic grade average for the courses which he had taken during the previous semesters. However no decision had yet been taken with respect to the discontinuation of his studies nor could one be taken unless and until a confer­ence had been held with him to assess his academ­ic situation. Professor Hanowski considered it necessary to hold such a conference, but appellant did what he could to elude it.
There was no oral evidence in the case, but it can be gathered from various letters and notes annexed to Professor Hanowski's affidavit that arrangements had been made. by telephone with someone in appellant's residence for Professor Hanowski and appellant to meet in Saskatoon on January 13, 1976. Before he left for Saskatoon, Professor Hanowski received from appellant on January 12 a letter dated January 19 referring to Professor Hanowski's wish to have an interview with appellant. The letter was to the effect that the matter had been taken to the Provincial Ombuds­man whose deputy was to get in touch with Profes­sor Hanowski; in the meanwhile, appellant proposed to attend classes as planned. Nevertheless, Professor Hanowski proceeded to Saskatoon where he did not succeed in meeting appellant in spite of several attempts to contact him by telephone. Professor Hanowski wrote a report dated January 13 where he indicated that the ombudsman's office had confirmed that appellant had registered a complaint against the university; but the ombuds­man's office had also advised that they had no jurisdiction in the matter; the professor whose class appellant was to attend was to inform him that he was requested to meet Professor Hanowski before he could proceed with his courses. There followed a letter dated January 19 where Professor Hanowski summarized the preceeding events to appellant and referred to a telephone conversation with him on January 15 in which it emerged that appellant was not prepared to indicate when it would be possible for them to meet; Professor Hanowski ended his letter by asking appellant to initiate contact with him. Appellant replied by a letter dated January 21 that there had been a misunderstanding with respect to the appointment of January 13 which had been made for January 8 and that the Ombudsman had come to the realiza­tion that an instructor had failed to mark an assignment completely and did not want to mark part of another; appellant suggested that if Profes­sor Hanowski could not come to Saskatoon, another professor could be instrumental in settling the grievance; appellant concluded his reply by saying he was waiting to hear from Professor Hanowski regarding the date of a meeting in Saskatoon. Professor Hanowski heard nothing from appellant but on February 2, he received copy of a letter from Ms. Thérèse E. Lemire to the appellant; Ms. Lemire's status is not clear; she referred to a request made by appellant that she act as his advocate; she advised him to meet Professor Hanowski before going to an appeal board; she encouraged him "to communicate with the school and explore all of the mechanisms that exist within it to settle your difficulties before going to an outside body that doesn't have jurisdic­tion in these matters in any case"; if after a meeting with Professor Hanowski, appellant still wanted to proceed with a re-evaluation of his work, he could then explore the appeal procedure for a "re-read" within the faculty.
Appellant and Professor Hanowski finally met in Saskatoon on February 2. In his affidavit, Professor Hanowski stated that he advised appel­lant of his concern as chairman of the student progress review committee and told him that the matter of the appellant's continuance as a student would have to be considered by the Faculty of Social Work Admissions and Studies Committee for final decision.
Professor Hanowski thereafter received from appellant a letter dated February 2 in which appel­lant wrote: "You told me that the marks were not the reason for me being asked to withdraw from the studies completely, but my ideas had a tenden­cy to be neurotic"; appellant also wrote that he had asked for a written reason why he could not continue his studies; this was needed as he intended to seek legal advice regarding his forceful evic­tion from the university.
The Faculty Committee of Admissions and Studies met on February 23. According to Profes­sor Hanowski's affidavit, he reported to them on appellant's "work, his attitude, his ability and his progress as a student" and, after discussion, a motion was passed to the effect that appellant should receive a letter from the Dean requiring him to discontinue. A registered letter to this effect dated February 27 was accordingly sent to appellant by the Dean; the letter quoted the Facul­ty Regulations reproduced above relating to a student's cumulative grade point average dropping below 2.5.
Appellant retained counsel at the Saskatoon Legal Assistance Clinic Society. A letter dated March 3 was sent by his counsel to the university president in which one reads:
Attempts to ascertain the reason were unsuccessful. For example, Mr. Harelkin asked Mr. Hanowski for a written statement of explanation, but was refused.
Therefore, Mr. Harelkin wishes to have the provisions of Section 78(1)(c) of The University of Regina Act started or if such a committee has already considered the matter to have an appeal to the Senate under Section 33(1)(f) of the same Act commenced.
I have checked to see if any regulations to the Act have been introduced, but I have not found any in regard to these sections. Therefore, please consider this an application for the appropriate hearing either to the Council or Senate as the case may be.
Section 78(1)(c) of the Act provides that the university council shall:
(c) appoint a committee to hear and decide upon, sub­ject to an appeal to the senate, all applications and memorials by students or others in connection with any faculty of the university; Section 33(1)(e) of the Act (to which the law­yer's letter should have referred) provides that the senate shall:
(e) appoint a committee to hear and decide upon appeals by students and others from decisions of the council;
The president replied that the matter was being referred to the university secretary, Mr. Lowery and counsel's request was repeated in a letter addressed to the latter on April 1.
After a further exchange of correspondence be­tween counsel for appellant and the university secretary, the latter wrote on April 29 that he had received a report from the Faculty of Social Work concerning the procedures followed in evaluating appellant's academic performance; in his opinion, the faculty had acted within its jurisdiction in applying its academic performance standards to the appellant who had received due process; the letter continued as follows:
Nonetheless, I am prepared to accept your March 3 and April 1 letters as a formal appeal and will have this matter reviewed by a committee of the University of Regina Council. The Council committee will be asked to review the case in detail to ensure that the Faculty of Social Work approved academic performance standards have been followed and that Mr. Harelkin has received due process.
Following receipt of the report from this Council committee concerning its review of Mr. Harelkin's case, I will forward directly to your attention, a copy of this report. If this report indicates a need for University corrective action in the case of Mr. Harelkin, I will see that this action is undertaken.
Upon the receipt of this letter, appellant's coun­sel did not inquire as to the date when council committee would meet. Nor did he state that appellant was available or request that appellant be given the right to be present and make representations. I am not intimating that he was legally obliged to do so but his doing so would not have been unusual or extraordinary, given the tenor of the letter's concluding paragraph and the position later taken by appellant.
On October 13, the university secretary wrote to appellant's counsel to advise that the University Committee on Admissions and Studies (the com­mittee of the council) had met on September 27 to review the action taken by the Faculty of Social Work in evaluating appellant's academic performance and that on the basis of this review, the following motion had been passed:
"Moved that the University Committee on Admissions and Studies, having reviewed the evidence concerning Mr. George HareIkin, is satisfied that Mr. Harelkin received due process. CARRIED"
On November 29, appellant's counsel replied that they had not been notified of the hearing date as a result of which they had not been allowed to present evidence of appellant; they requested a rehearing of which they should be given notifica­tion so that they might be present to give evidence and be heard.
The university secretary responded on Decem­ber 17 that it had not been the practice to have official representation at such internal hearings and it was not the intention of the university to hold a rehearing of this case.
Appellant's counsel further wrote to the univer­sity president on December 22, requesting a rehearing pursuant to s. 78(1)(c) of the Act.
The university secretary replied on January 24, 1977, that there had already been a hearing under s. 78(1)(c) and it was not the university's intention to initiate a rehearing.
In his affidavit, the university secretary stated that he had never received any request from appellant for the implementation of an appeal from the decision of council to the senate.
The certiorari and mandamus proceedings were launched in February 1977. Appellant prayed that the decision taken by the committee of the council on September 27, 1976, be quashed and that a writ of mandamus issue ordering the University to hold a hearing pursuant to s. 78(1)(c) of the Act and to allow applicant to be heard, to present evidence and to be represented by counsel. It must be noted that neither in his application for certiorari and mandamus nor in his affidavit did appellant allege or swear that the faculty or the committee of the council were biased, acted in bad faith or were inspired by any improper motive. The sole basis of his application is that he was not heard by the committee of the council. Appellant's letter of February 2, 1976, in which he wrote that he was told that the reason why he was being asked to discontinue was not his marks but his tendency to be neurotic was filed on behalf of the university. It is an unsworn statement upon which appellant did not rely in his pleadings. This unsworn statement, although not specifically con­tradicted, is not consistent with several paragraphs of Professor Hanowski's affidavit according to which the reason why appellant might be asked to discontinue his studies was his failure to maintain an adequate academic standard. This reason was confirmed by the Dean's letter to appellant dated February 27, 1976. Furthermore, and in reply to questions asked by members of the Court in the course of argument, appellant's counsel answered that what appellant wanted, ultimately and basi­cally, was to have his marks revised after the committee of the council had determined in a properly held hearing, whether the evaluation process was rightly challenged by appellant.
II—Judgments of the Courts below
The learned trial judge, the late Chief Justice Bence, quashed the order of the council committee and directed the university to hold a hearing pursuant to s. 78(1)(c) of the Act, and to allow appellant to be present, to be heard, to present evidence and to be represented by counsel.
His judgment was set aside by the Court of Appeal. Woods J.A., who delivered the unanimous judgment said:
While the general rule is that an application for certiorari will not be entertained where there is a right of appeal, the practice followed in this jurisdiction is set out by Culliton, C.J.S., for this Court in Re Wilfong, (1962), 37 W.W.R. 612 at page 615 as follows: "In this province the practice has been that when there is a right of appeal a certiorari should not be granted except under special circumstances".
No special circumstances have been established in this case. The Committee on Admissions decided that the words "to hear and decide upon" did not require it to hear the respondent in person. Whether such an inter­pretation was right or wrong in law, the Committee acted within its jurisdiction and that same matter will be dealt with on appeal. There is a right of appeal to the Senate and the respondent has not taken advantage of it. In other words, the respondent has not utilized the means of redress provided by the appellant.
I am of the view that the Court of Appeal reached the right conclusion.
The contentions made against the judgment of the Court of Appeal can be summarized in four main propositions: first, failure by the council committee to respect the principle audi alteram partem was akin to a jurisdictional error and the writs should issue ex debito justitiae; second, the decision of the council committee was an absolute nullity from which there could be no appeal to the senate committee; third, even if there could be an appeal to the senate committee, appellant's right of appeal was not an adequate alternative remedy; fourth, the principle audi alteram partem had in this case been given statutory force and the Courts should exercise their discretion with a view to enforcing the statute.
I propose to deal in turn with each of these propositions.
III—Failure to respect the principle audi alteram partem and issuance of the writs ex debito justitiae
The principle that certiorari and mandamus are discretionary remedies by nature cannot be disput­ed. The principle was recently reaffirmed with respect to certiorari in a unanimous decision of this Court, P.P.G. Industries Canada Ltd. v. The Attorney General of Canada[2], at p. 749. And mandamus is certainly not less discretionary than certiorari: The award of the writs usually lies within the discre­tion of the court. The court is entitled to refuse certio­rari and mandamus to applicants if they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty. On applications by subjects for certiorari to remove indictments the courts have always exercised a very wide discretion.
The fact that some of the prerogative writs were discretionary came to be directly linked with their desig­nation as prerogative writs. Thus, in one case, it was said: "An application for mandamus is an application to the discretion of the court; a mandamus is a prerogative writ and is not a writ of right". But although none of the prerogative writs is a writ of course, not all are discre­tionary. Prohibition, for example, issues as of right in certain cases, and habeas corpus ad subjiciendum, the most famous of them all, is a writ of right which issues ex debito justitiae when the applicant has satisfied the court that his detention was unlawful. These two writs, therefore, are not in the fullest sense writs of grace. (de Smith, Judical Review of Administrative Action, 3rd ed., p. 510).
Over the years, the courts have elaborated vari­ous criteria which provide guidance as to how the discretion should be exercised. In the process, the area of discretion has been more or less reduced depending on the circumstances of each case. In some cases, particularly those involving lack of jurisdiction, courts have gone as far as to say that certiorari should issue ex debito justitiae. And, on the more than dubious assumption that cases involving a denial of natural justice, could be equated with those involving a lack of jurisdiction, it has also been said that certiorari should issue ex debito justitiae where there was a denial of natu­ral justice.
The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate. It is based on a contradiction and imports a great deal of confusion into the law.
Ex debito justitiae literally means "as of right", by opposition to "as of grace" (P. G. Osborne, A Concise Law Dictionary, 5th ed.; Black's Law Dictionary, 4th ed.); a writ cannot at once be a writ of grace and a writ of right. To say in a case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the discretion even in cases involving lack of jurisdiction.
A fortiori does the discretion remain in cases not of lack of jurisdiction, but of excess or abuse of jurisdiction such as those involving a breach of natural justice. The following cases are authority to that effect. I refer to them without expressing any view as to whether in each one I would necessarily have exercised the discretion in the same manner.
Regina v. Halifax-Darmouth Real Estate Board[3], was a case of expulsion from a real estate association; the expelled party had apparently not been notified of one of the charges made against him; the order of expulsion was quashed by the trial judge on a certiorari application; his judg­ment was reversed by the Nova Scotia Court of Appeal on the grounds, inter alfa, that the conclu­sion that there was a violation of natural justice, if tenable, was very weak and that adequate other remedies were available to the applicant, such as an action for damages for wrongful expulsion.
In Re McGavin Toastmaster Ltd. and Powlowski[4], the Manitoba Human Rights Com­mission had acted in breach of natural justice: Hall J.A., speaking for the majority of the Manito­ba Court of Appeal said at p. 118:
As to the right of appeal by trial de novo, that does not immune that process from judicial review by certiorari proceedings but is a factor to be taken into account in deciding whether the discretion of the Judge on review should be exercised for or against an order of certiorari. In that case, the writ was issued but its discretion­ary nature was recognized.
In Regina v. Aston University Senate[5], students who had failed certain examinations could resit the whole examination or be required to withdraw; certain students who, without being heard, had been required to withdraw applied for certiorari to quash the order asking them to withdraw and for mandamus to compel the university to determine in accordance with law, whether they should be allowed to re-sit examinations or be asked to withdraw. It was held that the university had been in breach of natural justice. But in as much as the prerogative orders were discretionary remedies and should not be made available to those who slept upon their rights, it was held that the applicants by their inaction had forfeited any claim for relief.
Glynn v. Keele University[6] is a case of injunc­tion involving disciplinary action in a university. The applicant had been identified as one of a number of undergraduates who had been seen naked in the precincts of the university. He was punished by the vice-chancellor by a fine of 10 pounds and by exclusion from residence for the ensuing academic year. The vice-chancellor did not give the applicant the opportunity to be heard but wrote to him to inform him of his right to appeal against his decision. The applicant wrote expressing his wish to appeal but he went abroad and, in his absence, the vice-chancellor's decision was upheld by the appeal committee. On his return, the applicant did not ask for a rehearing but sought an injunction restraining the university from excluding him from residence for the remainder of the academic year. Pennycuick V.C. held that the powers conferred on the vice-chancellor of the university to impose the penalties which he did were not merely magisterial powers of a tutor over his pupil and had to be exercised in a quasi-judi­cial capacity. The vice-chancellor had failed to comply with the requirements of natural justice. Pennycuick V.C. went on at pp. 495, 496 and 497: I now have to reach the second decision in this case which I have found of considerable difficulty. It is not I think in doubt that in deciding whether to grant an injunction the court has a judicial discretion and that that judicial discretion is comparable to the judicial discretion exercised in the other division when an application is made to quash a decision of a quasi-judi­cial body. Upon that matter of discretion I was referred to the judgment of Singleton L.L. Ex parte Fry [1954] 1 W.L.R. 730, 736, and to a very recent decision in the Queen's Bench Divisional Court in Reg. v. Oxford Uni­versity, Ex parte Bolchover, The Times, October 7, 1970, in which the university had expelled a post-gradu­ate member and he applied for an order of certiorari to quash the decision. In a very short judgment Lord Parker C.J. said:
"The court has carefully considered the papers in this case, and of course, all that you have so ably urged, but at the end of the day we remain uncon­vinced that the conduct of the hearing before the proctors offended against such rules of natural justice as were applicable in the circumstances. To put it more simply, they are not satisfied that that hearing was unfair".
So far the judgment has no application here, because I have held that there was a failure of natural justice. Then come these most important words:
"But it is only right to add that even if the court felt there might be something to be inquired into, nevertheless as a matter of discretion they would, having regard to the appeal, refuse you leave. In the result leave is refused."
So in that passage Lord Parker C.J. stated plainly that the court has a discretion as to whether to set aside by way of certiorari a decision of a quasi-judicial body even where there has been a failure in natural justice. In another recent case, namely Buckoke v. Greater London Council [1970] 1 W.L.R. 1092, 1097 Plowman J. after quoting Ex parte Fry [1954] 1 W.L.R. 730 said: "In my judgment the ratio decidendi of that case is just as applicable to a claim for an injunction as to a claim for an order of certiorari; both are discretionary remedies."
I have, again after considerable hesitation, reached the conclu