A.G. Can. v. Law Society of B.C.

A.G. Can. v. Law Society of B.C.
Collection
Supreme Court Judgments
Date
1982-08-09
Report
[1982] 2 SCR 307
Case number
16298, 16299
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
British Columbia
Subjects
Competition law
Constitutional law
Courts
Decision Content
SUPREME COURT OF CANADA
A.G. Can. v. Law Society of B.C., [1982] 2 S.C.R. 307
Date: 1982-08-09
The Attorney General of Canada, the Restrictive Trade Practices Commission, L.A. Couture, in his capacity as Acting Chairman of the Restrictive Trade Practices Commission, and Robert J. Bertrand in his capacity as Director of Investigation and Research, Combines Investigation Act Appellants;
and
The Law Society of British Columbia and Victor McCallum Respondents;
and
The Attorney General of Ontario, the Attorney General of Quebec, the Attorney General of New Brunswick, the Attorney General of British Columbia, the Attorney General of Saskatchewan, the Attorney General of Alberta, the Law Society of Upper Canada, Federation of Law Societies of Canada/Fédération des professions juridiques du Canada, Prepaid Legal Services Program of Canada Interveners;
and between
Donald Jabour Appellant; and
The Law Society of British Columbia and Harry Rankin representing the Benchers of the Law Society of British Columbia Respondents;
and
The Attorney General of Canada, the Attorney General of Ontario, the Attorney General of Quebec, the Attorney General of New Brunswick, the Attorney General of British Columbia, the Attorney General of Saskatchewan, the Attorney General of Alberta, Prepaid Legal Services Program of Canada Interveners.
File Nos.: 16298 and 16299.
1981: May 25, 26 and 27; 1982: August 9.
[page 308]
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Courts — Jurisdiction — Provincial superior courts — Power to declare federal statute ultra vires — Nature of exclusive powers of Federal Court (Trial Division) to grant injunctive and declaratory relief — Constitutional Act, 1867, ss. 91(2), 91(27), 92(15), 96, 100, 101 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 17. 18.
Combines — Provincial law society — Advertising restrictions — Whether or not Combines Investigation Act applicable to restrictions — Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 2, 8. 17(1), 32.
Civil rights — Freedom of speech — Law society restrictions as to advertising — Whether restrictions imposed under valid provincial law — Whether restrictions on member's right to advertise a violation of right to freedom of speech — Combines Investigation Act, R.S.C. 1970. c. C-23. ss. 2, 8, 17(1), 32 — Legal Professions Act, R.S.B.C. 1960, c. 214 (now Barristers and Solicitors Act, R.S.B.C. 1979, c. 26), ss. 1, 2(3), 36, 36A, 37, 43, 48(b), 62.
The Law Society of British Columbia initiated steps to discipline Jabour, a member who had advertised his practice contrary to the Society's rules, for "conduct unbecoming a member". In the B.C. Supreme Court, Jabour sought: 1) a declaration that the Law Society's rulings and orders were null and void because they offended the Combines Investigation Act and infringed upon Jabour's freedom of speech; and 2) an interlocutory injunction restraining the Law Society from proceeding pending the Court's determination of the issues raised. The request for the interlocutory injunction was rejected. The Law Society's Discipline Committee found Jabour guilty and recommended suspension of his licence to practice. Jabour, however, successfully sought an order enjoining the Law Society from considering the Committee's report pending disposition of the Court action. The order was sustained on appeal.
[page 309]
The Law Society started an action in the British Columbia Supreme Court after it received a notice of investigation under the Combines Investigation Act. The action sought: 1) an injunction preventing the Director from continuing with the inquiry relating to the Law Society and 2) declarations that the Combines Investigation Act did not apply to the Law Society, and if it did, that that Act was ultra vires Parliament to that extent.
Held: The appeals should be dismissed.
The British Columbia courts have jurisdiction to entertain the claims for declarations relating to the applicability of the Combines Investigation Act to the Society and its members. Although Parliament might establish a court for the better administration of the laws of Canada, it lacks the constitutional authority to strip the provincial superior courts of the power to declare a federal statute beyond Parliament's competence. These courts occupy a position of prime importance in the constitutional pattern of this country and their power to consider the constitutionality of federal statutes is fundamental to the federal system established by the Constitution. Section 101 cannot justify such an exclusion of authority. Moreover, the British Columbia courts have jurisdiction to entertain a plea for injunction on these proceedings instituted under the Combines Investigation Act because it is a remedy ancillary to the court's principal determination and a part of the court's inherent general jurisdiction.
Section 32 of the Combines Investigation Act did not apply to the Law Society in the circumstances of this appeal. The Benchers' disciplining Jabour for advertising was authorized by the Legal Professions Act. That Act caused the discipline committee to be established, authorized disciplinary action for "conduct unbecoming a member of the society", and broadly defined that conduct to include "any matter, conduct or thing ... deemed in the judgment of the Benchers to be contrary to the best interests of the public or of the legal profession." The Benchers, in agreeing that Jabour was guilty of professional misconduct, did not conspire contrary to s. 32(1) of the Combines Investigation Act. Rather, they were discharging their duties under a valid provincial act. Where a federal statute can be properly interpreted so as not to interfere with a provincial statute, that interpretation is to be applied in preference to other constructions that would bring about a conflict between the two statutes. The defence, created by s. 32(6), dealing with conspiracy in relation to service or standards
[page 310]
of competence reasonably necessary to protect the public in the practice of a profession, did not expand the charging section or otherwise fundamentally change the plain meaning of the section's main operating provision. It was not necessary to consider whether the Combines Investigation Act was intra vires Parliament.
Appellant's right to freedom of speech was not violated by the Bencher's ruling. This freedom, absent constitutional entrenchment placing it beyond the reach of Parliament or the Legislature, can be curtailed by valid statute law. The ethical, moral and financial aspects of a trade or profession can be regulated by a province within its boundaries. The Benchers' ruling here was exercised under valid provincial law and the fact that it reduced a member's right to freedom of economic speech (advertising) did not invalidate this otherwise validly delegated power.
R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695; Ontario Boys' Wear Ltd. et al. v. The Advisory Committee et al., [1944] S.C.R. 349; Reference re The Farm Products Marketing Act, [1957] S.C.R. 198; Attorney General (Can.) and Dupond v. Montreal, [1978] 2 S.C.R. 770, applied; Merchant v. Benchers of the Law Society of Saskatchewan, [1973] 2 W.W.R. 109; Pharmaceutical Society of Great Britain v. Dickson, [1967] 2 All E.R. 558 (C.A.), affirmed [1968] 2 All E.R. 686 (H.L.); R. v. Chung Chuck, [1929] 1 D.L.R. 756; R. v. Can. Breweries Ltd., [1960] O.R. 601, considered; Dyson v. Attorney-General, [1911] I K.B. 410; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; R. v. Bradley, [1914] S.C.R. 270; Valin v. Langlois (1879), 3 S.C.R. 1; Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170; Denison Mines Limited v. Attorney General of Canada (1972), 32 D.L.R. (3d) 419; City of Hamilton v. Hamilton Harbour Commissioners, [1972] 3 O.R. 61; British Columbia Power Corporation, Ltd. v. British Columbia Electric Company, et al., [1962] S.C.R. 642; Re Bridgman and City of Toronto, [1951] O.R. 489; R. v. Shamrock Fuel Co., [1924] 3 W.W.R. 454; R. v. Simoneau (1935), 65 C.C.C. 19; Cherry v. The King ex rel. Wood (1937), 69 C.C.C. 219: Goldfarb v. Virginia State Bar (1975), 421 U.S. 773; Bates v. State Bar of Arizona (1977), 433 U.S. 350; Parker v. Brown (1943), 317 U.S. 341;
[page 311]
Reference re Alberta Statutes, [1930] S.C.R. 100, referred to.
APPEAL from a judgment of the British Columbia Court of Appeal (Law Society of British Columbia et al. v. Attorney-General of Canada et al.) (1980), 108 D.L.R. (3d) 753, 18 B.C.L.R. 181, [1980] 4 W.W.R. 6, dismissing an appeal from a judgment of Mackoff J. dismissing an application to strike out the writ of summons and to dismiss the action for want of jurisdiction. Appeal dismissed.
APPEAL from a judgment of the British Columbia Court of Appeal (Jabour v. Law Society of British Columbia et al.) (1980), 115 D.L.R. (3d) 549, 24 B.C.L.R. l, [1981] 2 W.W.R. 159, allowing an appeal from a judgment of Mackoff J. relating to the Law Society's power to regulate advertising and the applicability of the Combines Investigation Act. Appeal dismissed.
Counsel at hearings: Attorney General of Canada et al. v. Law Society of British Columbia and Victor McCallum.
W. I. C. Binnie, Q.C., L. A. W. Hunter, and Morris Rosenberg, for the appellants.
M. M. Goldie, Q.C., D. G. S. Rae and W. S. Martin, for the respondents.
Lorraine E. Weinrit and John Cavarzan, Q.C., for the intervener the Attorney General of Ontario.
Henri Brun, for the intervener the Attorney General of Quebec.
Bruce Judah, for the intervener the Attorney General of New Brunswick.
R. A. Edwards, for the intervener the Attorney General of British Columbia.
John D. Whyte, for the intervener the Attorney General of Saskatchewan.
William Henkel, Q.C., for the intervener the Attorney General of Alberta.
[page 312]
Brendan O'Brien, Q.C., for the intervener the Law Society of Upper Canada.
Marcel Cinq-Mars, Q.C., and E. Neil McKelvey. Q.C., for the Federation of Law Societies of Canada.
Ian G. Scott, Q.C., for the intervener Prepaid Legal Services Program of Canada.
Counsel at hearings: Donald Jabour v. The Law Society of British Columbia et al.
Bryan Williams, Emilio S. Binavince, and Michael Mangan, for the appellants.
W. I. C. Binnie, Q.C., and L. A. W. Hunter, for the respondents.
J. A. Macaulay and A. D. Treleaven, for the interveners the Law Society of British Columbia et al.
Morris Rosenberg, for the intervener the Attorney General of Canada.
Lorraine E. Weinrit, for the intervener the Attorney General of Ontario.
Henri Brun, for the intervener the Attorney General of Quebec.
Bruce Judah, for the intervener the Attorney General of New Brunswick.
E. R. A. Edwards, for the intervener the Attorney General of British Columbia.
John D. Whyte, for the intervener the Attorney General of Saskatchewan.
William Henkel, Q.C., for the intervener the Attorney General of Alberta.
The judgment of the Court was delivered by
ESTEY J.—These two appeals are concerned with the answer to a series of questions settled by orders of this Court, some raising constitutional issues. These questions are as follows:
A. The action instituted by the Law Society of British Columbia:
[page 313]
1. Does the Combines Investigation Act, R.S.C. 1970, c. C-23 as amended, apply to the Law Society of British Columbia, its governing body or its members?
2. If the Combines Investigation Act does apply, is it in that respect intra vires the Parliament of Canada?
These questions were not in terms put before the learned trial judge but were answered in substance as below indicated.
3. Does the Federal Court, Trial Division, have exclusive jurisdiction to grant declaratory or injunctive relief against the Attorney General of Canada, The Restrictive Trade Practices Commission, the Chairman of the said commission, and the Director of Investigation and Research, in connection with:
i) the interpretation or
ii) constitutional applicability of the Combines Investigation Act to the Law Society of British Columbia, its governing body or its members?
This question was the object of interlocutory procedures and was answered in the negative in both courts below.
B. The proceedings instituted by Donald Jabour:
(No. 1—same as in Law Society action)
1. Does the Combines Investigation Act, R.S.C. 1970, c. C-23 as amended, apply to the Law Society of British Columbia, its governing body or its members'?
(No. 2—essentially same as in Law Society action)
2. If the Combines Investigation Act does apply, is it in that respect valid Federal legislation under the Criminal law and/or the Trade and Commerce Powers contained in Section 9i(27) and 91(2) respectively of the British North America Act, (U.K.) 30 and 31 Victoria c. 3 and amendments thereto?
3. Does the ruling of the Benchers of the Law Society of British Columbia prohibiting the
[page 314]
Appellant from informing the public about the type and cost of legal services provided, violate the Appellant's right to freedom of speech in Canada?
Question one, which is common to both actions, the learned trial judge answered as follows:
There being no specific implicit authorization in the Legal Professions Act for the defendants to impose what this Court has found to be a blanket restraint, tantamount to a complete prohibition of advertising by members of the Law Society to the public at large, the Combines Investigation Act does apply to the defendants.
The Court of Appeal of British Columbia answered the question in the negative, finding that the Combines Investigation Act, supra, does not apply to the conduct of the Society relating to the advertising by the appellant Jabour.
The second question, which in substance is also common to the two actions, is answered:
(a) by the trial judge in the negative, that is to say the Combines Investigation Act is not ultra vires as it purports to apply to the Law Society; and
(b) by the Court of Appeal, having found that the Combines Investigation Act does not apply to the Law Society, concluded that it was unnecessary to answer this question.
On the third question in the Law Society action both courts found jurisdiction in the British Columbia Supreme Court to entertain the action for a declaration and that ss. 17 and 18 of the Federal Court Act did not oust such jurisdiction. The constitutionality of these sections was not found to be an issue for determination in either court.
The third question in the Jabour action relates to the alleged infringement by the Law Society of the appellant Jabour's right of freedom of speech. The trial judge, having found that the Law Society action taken with respect to the advertising activities by Jabour was unauthorized by the provincial
[page 315]
statute, considered it was unnecessary to answer this question. The Court of Appeal decided that the Benchers had the right in law "to ban" the activity in question by Jabour and thus the issue of freedom of speech did not arise.
The Law Society is an institution established under the Legal Professions Act, R.S.B.C. 1960, c. 214 (now the Barristers and Solicitors Act, R.S.B.C. 1979, c. 26). (For convenience 1 will follow the practice of the Court of Appeal and continue to refer to the section numbers of the old Act.) Its membership comprises all those persons called to the Bar in British Columbia who have remained in good standing under the Act and applicable regulations, together with retired members. The Society is governed by the Benchers, being twenty-three members elected by the membership together with the Attorney General of the province as an ex officio member, and persons who have been elected and re-elected for a period of time prescribed by the statute who remain Benchers so long as they continue to be members of the Society. By subs. 2(3) "Every member of the Society admitted as a solicitor of the Supreme Court is an officer of all the Courts of the Province". By s. 36 of the Act the Benchers are directed to "govern and administer the affairs of the Society" and, in particular, to provide for the printing of legal decisions in the courts; to take "such action . . . as they may consider necessary for the promotion, protection, interest, or welfare of the Society"; and to "establish and maintain a system of legal education ...." By s. 36A the Benchers are directed by the statute to continue in force the insurance fund required for the payment of group insurance contract premiums and to make rules respecting the levy upon members of the Society of annual assessments for the maintenance of such insurance fund and the payment of premiums in respect of group insurance contracts relating thereto, all to the end no doubt of protecting the public from loss and/or damage due to errors and omissions on the part of members of the profession acting in the course of the practice of law.
[page 316]
The Legislature by s. 37 empowered the Benchers to make rules concerning the maintenance of the Society's standards and honour and for the protection and well-being of those engaged in the practice of law in the province; for enrolling articled students and calling persons to the Bar of the province and admitting persons as a solicitor of the Supreme Court of British Columbia; for providing for precautions to be taken by members for the care of clients' funds or other trust funds or property; and for the implementation of the insurance fund program, and the general discharge by the Society of its duties under the statute. By s. 43 et seq. the Benchers are directed to establish a discipline committee for the investigation into the conduct or competence of members and for determining:
... whether a member or former member has been guilty of
(i) misappropriation or wrongful conversion by him of money or other property entrusted to or received by him in his capacity as a member of the Society; or
(ii) other professional misconduct; or
(iii) other conduct unbecoming a member of the Society; or
(iv) a breach of any provision of this Act or the Rules made hereunder.
[s. 48(b)]
By s. 1 "conduct unbecoming a member of the Society" includes:
any matter, conduct, or thing that is deemed in the judgment of the Benchers to be contrary to the best interest of the public or of the legal profession, or that tends to harm the standing of the legal profession.
From action taken by the Benchers and their Discipline Committee, an appeal lies to the Court of Appeal of the province. Reference should be made to s. 71 of the Act which requires the Benchers to continue the "Special Fund" established for the reimbursement of:
pecuniary losses sustained by any person by reason of the misappropriation or wrongful conversion by a member of the Society . .. of money or other property entrusted to or received by him in his capacity as such …
[page 317]
In related sections of the Act provision is made for the protection of the public by the seizure of moneys and properties in the possession of a member of the Society when disbarred, suspended, or where the member appears to have absconded.
Related to the activities of the Benchers under the Act is the establishment of the "Law Foundation" by s. 71E et seq. for the purpose of establishing and maintaining:
... a fund to be used for the purpose of legal education, legal research, legal aid, law reform, and the establishment, operation, and maintenance of law libraries.
[s. 71G(1)]
The Board of Governors of the Foundation comprises eighteen members of which twelve are members of the Law Society appointed by the Benchers and the remainder are appointed either by the Attorney General or the Canadian Bar Association. Into this Foundation is paid by reason of other provisions in the statute, interest accumulations on trust accounts maintained by lawyers for the holding of clients' moneys. The ordinary solicitor-client relationship and responsibilities are set aside in this context by the statute and the moneys are made, by operation of law, the property of the Foundation to be applied to the discharge of the above objects.
I will return to other provisions of the statute relating to the taxation of solicitors bills later in these reasons.
In the discharge of their functions the statute accords to the Benchers and its committees powers under the Public Inquiries Act, R.S.B.C. 1960, c. 315. The statute expressly protects members of the Benchers from action for anything done in their capacity as Benchers so long as it is done in good faith.
[page 318]
Law societies in other provinces* are similarly established by statute and have the same general self-governing authority and characteristics as the Law Society here. Sometimes the rule-making function is subject to confirmation by the Lieutenant Governor in Council (vide The Law Society Act, R.S.O. 1970, c. 238, s. 55); sometimes the Attorney General as a member of the Benchers is directed to "serve as guardian of the public interest in all matters within the scope of this Act or having to do with the legal profession in any way ... " (ibid., s. 13(1)). There are other variations and differences which have no relevance to these appeals.
The appellant Jabour, a member of the Law Society of British Columbia had some correspondence with the Benchers in connection with his practice of law. The advertising consisted of four advertisements in local newspapers in and around Vancouver and the installation of an illuminated sign measuring three feet in height by sixteen feet in length on the exterior of the office building in which his office is located. The newspaper article took the following form:
DONALD E. JABOUR
Barrister & Solicitor wishes to
announce the opening of a new
concept of law office
LEGAL SERVICES AT PRICES
MIDDLE INCOME FAMILIES
can afford
Buying or selling a home. Writing a will.
Motor vehicle accidents or offences.
Landlord/tenant problems. Family matters.
Incorporations. Estates. Court appearances.
[page 319]
These are the kinds of situations where middle income families need legal assistance. Now it is available at moderate cost, with pre-set fees for many services.
Some sample fees (excluding out-of-pocket expenses):
Simple will $ 35
Uncontested Divorce from $195
Advice on Interim Agreements $ 25
Purchase of Home (any value) $175
Incorporations from $ 165
Advice on Consumer Contracts $ 15
Review your present will Free
INITIAL CONSULTATION FREE
Opening February 1st, 1978
The North Shore 142A W. 15th St.,
NEIGHBOURHOOD North Vancouver.
LEGAL CLINIC 936-4225
HOURS: 9 a.m. to 5 p.m. As a convenience to clients we will also be open Wed. Eve. 7 to 9 p.m. Sat. from 10.30 a.m. to 1 p.m.
Call or write for free brochure.
The sign on the building displayed the words "The North Shore Neighbourhood Legal Clinic, Donald E. Jabour, Barrister and Solicitor".
History of Proceedings
These proceedings find their source in the initial steps taken by the Benchers to discipline the appellant Jabour for "conduct unbecoming a member" contrary to s. 48(b)(iii) of the Act by reason of the advertising activities mentioned. The appellant then issued a writ in the Supreme Court of British Columbia seeking a declaration that the rulings and orders of the Law Society were null and void by reason of the provisions of the Combines Investigation Act (hereafter for brevity referred to as
[page 320]
the CIA) and in violation of the appellant's right to freedom of speech; and an interlocutory injunction to restrain the Law Society from proceeding pending the determination in court of the issues raised by the appellant. This request for an interlocutory order was rejected by Anderson J. of the Trial Division.
The Law Society continued the discipline proceedings before its Discipline Committee. The Committee found the appellant guilty and recommended suspension of licence to practice for a period of six months. The appellant successfully sought an order in the Supreme Court enjoining the Law Society and the Benchers from proceeding with consideration of the Committee's report pending the disposition of the court action. The interlocutory order was sustained on appeal.
Following a sporadic exchange of communications over a two-year period and after the Discipline Committee's report had been issued, the appellant, the Director of the Investigation and Research, commenced an inquiry under the CIA into "the Production, Purchase, Sale and Supply of Legal Services and Related Products in the Province of British Columbia". In the notice to the Law Society the Director stated, "The conduct of the Society will be enquired into .... " Earlier letters from the Director of the Law Society had implied that regulation of advertising by the Benchers may have amounted to criminal offences under Part V of the CIA. Specifically the letters raised the issue of Law Society compliance with the amended s. 32.
Shortly after the receipt of the Director's Notice of Investigation the Law Society started an action in the Supreme Court of British Columbia in which the Society sought declarations that the CIA was not applicable to it or, if it purported to be applicable, the CIA was to that extent ultra vires the Parliament of Canada; together with an injunction preventing the Director from continuing with the enquiry. The two actions in the Supreme
[page 321]
Court were heard consecutively and the evidence in the first was by agreement applicable in the second. Both courts below disposed of both actions in single judgments.
It should be noted that in addition to the two actions in the Supreme Court of British Columbia, the enquiry under the CIA, and the discipline proceedings under the Legal Professions Act, it is said in the judgment of the Court of Appeal that there is a right of appeal by the appellant Jabour under s. 62 of the Act. This is an appeal from the acceptance by the Benchers of the recommendations of the Discipline Committee, should that come to pass. Since the injunction issued by Anderson J. against implementation of the Discipline Committee report pending the outcome of these proceedings, no further action has been taken in implementation of the recommended suspension and hence no appeal is outstanding.
Finally the Attorney General of Canada and the Attorney General of British Columbia joined the Jabour and Law Society actions respectively as interveners when/ notices were given under the Constitutional Questions Determination Act, R.S.B.C. 1960, c. 72. The provinces of Ontario, Quebec, New Brunswick, British Columbia, Saskatchewan and Alberta as well as the Prepaid Legal Services Program of Canada, The Law Society of Upper Canada and the Federation of Law Societies of Canada/Fédération des professions juridiques du Canada also appeared as interveners before this Court.
Jurisdiction of the Supreme Court of British Columbia
I will turn at the outset to the threshhold [sic] question of the jurisdiction of the British Columbia Supreme Court to entertain the action by the Law Society. This action was commenced after the Jabour action (so referred to for easy reference) in response to notification by the Director of Investigation and Research, Combines Investigation Act, of his intention to hold an enquiry under s. 8 of that Act into the rulings, policies and activities of
[page 322]
the Law Society in relation to those regulations or policies concerning advertising by members of the Law Society.
The respondents, in their writ of summons, seek three declarations:
(a) that the CIA, in whole or in part, does not apply to the Law Society or to its members;
(b) alternatively, that if the CIA does apply to the Law Society or its members, then to such extent the CIA or part thereof is ultra vires the Parliament of Canada;
(c) that the respondent McCallum is under no obligation to comply with the direction given by the appellants to attend and to be examined upon oath in the investigation under the CIA.
The respondents further seek in the writ of summons herein injunctions against the appellants restraining the conduct of the aforementioned enquiry under the CIA in so far as it relates to the respondents. This submission relates principally to the provisions of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2, 17 and 18, the applicable parts of which are as follows:
2. ...
[m] "relief" includes every species of relief whether by way of damages, payment of money, injunction, declaration, restitution of an incorporeal right, return of land or chattels or otherwise;
17. (1) The Trial Division has original jurisdiction in all cases where relief is claimed against the Crown and, except where otherwise provided, the Trial Division has exclusive original jurisdiction in all such cases.
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to
[page 323]
obtain relief against a federal board, commission or other tribunal.
These provisions of the Federal Court Act, assuming for the moment they are constitutionally valid, are applicable only if the remedies sought by the respondents fall within the definition of "relief" and if they are in essence claims "against the Crown". The fundamental remedies sought by the respondents are the declarations relating to the federal statute, the CIA; the injunctions claimed are ancillary and predicated only on the success of the first remedy.
The appellants in the Law Society action challenged the jurisdiction of the Supreme Court of British Columbia to grant the declaratory and injunctive relief sought herein against the Attorney General for Canada, the Restrictive Trade Practices Commission and its Chairman and Director on the ground that the Trial Division of the Federal Court of Canada has the exclusive jurisdiction so to do.
The declaratory action has long been known to the courts here and in the United Kingdom. In its modern form it is epitomized in the case of Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.), where the courts found the plaintiff entitled to proceed against the Crown for a declaration without proceeding by way of petition of right. Cozens-Hardy M.R., at p. 416, recognized the court's jurisdiction to receive such a case ". . . although the immediate and sole object of the suit is to affect the rights of the Crown in favour of the plaintiffs". This form of action takes on much greater significance in a federal system where it has been found to be efficient as a means of challenging the constitutionality of legislation. Vide Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, per Laskin J. (as he then was) at p. 162; and Wade, Administrative Law, 4th ed., p. 500.
The definition of "relief" in s. 2 includes "a declaration" specifically. It was said in the courts
[page 324]
below that the reference to "declaration" in s. 2(m) is to a remedy, collateral or ancillary to other remedies, but is not to be read as including a declaration as an independent remedy. The trial judge put it this way:
The addition of "declaration" in the definition of "relief" in the Federal Court Act, which was not present in the definition of the Petition of Right Act, refers, in my opinion, to declarations associated with and incidental to the actions formally requiring a fiat and proceeding by petition of right in the Exchequer Court. In other words, it only adds a form of relief associated with and incidental to the actions formally requiring a fiat and proceedings by a petition of right in the Exchequer Court and it does not add an additional cause of action. The inclusion of "declaration" in the definition of "relief" does not extend the jurisdiction of the Federal Court beyond that possessed by the Exchequer Court.
Both courts below were of the view that the declaration in question did not come within the expression "claims against the Crown" as the term is employed in s. 17 of the Federal Court Act. The trial judge stated:
Such proceedings to determine whether it is within the legislative competence of Parliament to enact a certain Federal Act involves not the Crown but rather Parliament. What is sought here is merely a determination of whether Parliament has exceeded the limits of its authority and this can in no sense be characterized as a case where "relief is claimed against the Crown".
This view was upheld in the Court of Appeal where Hinkson J.A. (Nemetz C.J.B.C. and Macdonald J.A. concurring) drew a distinction between relief for which a petition of right had been necessary and the 'Dyson' type declaration, concluding that the provisions of the Federal Court Act referred only to the former. Hinkson J.A. stated:
An examination of the definition of relief as contained in the Federal Court Act and of the provisions of ss. 17
[page 325]
and 18 of that Statute appears to indicate that the exclusive jurisidiction [sic] of the Federal Court involves claims by a subject against the Crown in which the subject is seeking to have something done in order to give effect to his legal rights against the Crown or seeking a decision that he is entitled to property or some interest therein or to possession thereof as against the Crown. It is in that sense that the definition of "relief" is found in the Federal Court Act.
Applying the distinction between the ancient procedure by petition of right for a claim against the interests of the Crown on the one hand, and the 'Dyson' type declaration on the other, Hinkson, J. A. concluded:
... it is clear that the respondents are not seeking a judgment which would declare or decide that the respondents are entitled to have something done in order to give effect to their legal rights as against the Crown or that they are entitled to property or some interest therein or to the possession thereof. Rather, they are seeking declarations of the same nature as those sought in Dyson v. Attorney-General.
Such was the case in R. v. Bradley, [1941] S.C.R. 270, where a holder of a patent sought compensation from the Crown in the right of Canada for unauthorized use of his invention. The plea for a declaration that the Crown had made use of the plaintiff's patents was accompanied by a claim that the Crown "be condemned to pay to your suppliant the amount of compensation so found to be reasonable . . . " The Court contrasted this form of declaratory relief with the simple declaration in Dyson concerning the validity of a notice issued under a taxation statute:
This, of course, is a vastly different thing from a judgment such as that in Dyson v. Attorney-General (supra), which does not declare or decide that the subject is entitled to have something done in order to give effect to his legal rights as against the Crown, or that he is entitled to property or some interest therein, or to the possession thereof. The proceeding by petition of right is not applicable to such a claim as that in question in Dyson v. Attorney-General. Such a proceeding is only competent where a petition of right does not lie.
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(Esquimalt and Nanaimo Rly. Co. v. Wilson, [[1920] A.C. 358, at 364, 365, 367 and 368]). [per Duff C.J., at p. 276.]
This same idea was reflected in Thorson, supra, per Laskin J., as he then was, at pp. 151-52 where it was stated:
The question of the constitutionality of legislation has in this country always been a justiciable question. Any attempt by Parliament or a Legislature to fix conditions precedent, as by way of requiring consent of some public officer or authority, to the determination of an issue of constitutionality of legislation cannot foreclose the Courts merely because the conditions remain unsatisfied: Electrical Development Co. of Ontario v. Attorney General of Ontario, [[1919] A.C. 687,] B.C. Power Corp. Ltd. v. B.C. Electric Co. Ltd., [[1962] S.C.R. 642.]
The claims for declaration made here are unaccompanied by any claim for recovery of property or rights from the defendants in the action but are indeed the core of the action, the only goal sought by the plaintiffs (respondents).
The statutory interpretation approach may prove or demonstrate more than this Court in this action is required to determine. This is so because if s. 2(m) is read down as proposed in the courts below to exclude the so-called 'Dyson' declaration, not only does this protect the Supreme Court of British Columbia from the claim of exclusivity made in ss. 17 and 18 but also throws into question the jurisdiction of the Federal Court to entertain a claim for such a declaration even on the basis of a concurrent jurisdiction. This question need not and should not be determined in this action. 1 therefore, with respect, conclude that the issue raised on this third question cannot be resolved on the basis proposed below, namely by the interpretation of these provisions in the Federal Court Act.
There is, however, another and more fundamental aspect to this issue. The provincial superior
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courts have always occupied a position of prime importance in the constitutional pattern of this country. They are the descendants of the Royal Courts of Justice as courts of general jurisdiction. They cross the dividing line, as it were, in the federal-provincial scheme of division of jurisdiction, being organized by the provinces under s. 92(14) of the Constitution Act and are presided over by judges appointed and paid by the federal government (sections 96 and 100 of the Constitution Act). As was said by Pigeon J. in R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695, at p. 713:
It must be considered that the basic principle governing the Canadian system of judicature is the jurisdiction of the superior courts of the provinces in all matters federal and provincial. The federal Parliament is empowered to derogate from this principle by establishing additional courts only for the better administration of the laws of Canada.
Earlier in his judgment Pigeon J. quoted from Chief Justice Ritchie in Valin v. Langlois (1879), 3 S.C.R. 1, at pp. 19-20:
... These courts [provincially organized superior courts] are surely bound to execute all laws in force in the Dominion, whether they are enacted by the Parliament of the Dominion or by the Local Legislatures, respectively. They are not mere local courts for the administration of the local laws passed by the Local Legislatures of the Provinces in which they are organized. They are the courts which were the established courts of the respective Provinces before Confederation, . . . They are the Queen's Courts, bound to take cognizance of and execute all laws, whether enacted by the Dominion Parliament or the Local Legislatures, .. .
The jurisdiction of superior courts, and indeed other courts in the provinces, to review the constitutionality of federal statutes was the subject of comment in this Court in Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170, where Beetz J. at p. 216 stated:
Once it is conceded that the Minister has jurisdiction to appoint an administrator, the exercise of this jurisdiction can only be reviewed in accordance with the Indian Act and the Federal Court Act and not by the Courts of Manitoba. It is