Strickland v. Canada (Attorney General)

Strickland v. Canada (Attorney General)
Collection
Supreme Court Judgments
Date
2015-07-09
Neutral citation
2015 SCC 37
Report
[2015] 2 SCR 713
Case number
35808
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne
On appeal from
Federal Court of Appeal
Subjects
Courts
Notes
SCC Case Information: 35808
Decision Content
SUPREME COURT OF CANADA
Citation: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713
Date: 20150709
Docket: 35808
Between:
Robert T. Strickland, George Connon,
Roland Auer, Iwona Auer-Grzesiak, Mark Auer and
Vladimir Auer by his Litigation Representative Roland Auer
Appellants
and
Attorney General of Canada
Respondent
Coram: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
Reasons for Judgment:
(paras. 1 to 65)
Joint Concurring Reasons:
(paras. 66 to 85)
Cromwell J. (McLachlin C.J. and Rothstein, Moldaver, Karakatsanis, Gascon and Côté JJ. concurring)
Abella and Wagner JJ.
Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713
Robert T. Strickland, George Connon,
Roland Auer, Iwona Auer-Grzesiak,
Mark Auer and Vladimir Auer by his
Litigation Representative Roland Auer Appellants
v.
Attorney General of Canada Respondent
Indexed as: Strickland v. Canada (Attorney General)
2015 SCC 37
File No.: 35808.
2015: January 20; 2015: July 9.
Present: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.
on appeal from the federal court of appeal
Courts — Federal Court — Judicial review — Jurisdiction — Family law — Divorce — Child support — Guidelines — Lawfulness of federal child support guidelines challenged by means of judicial review — Federal Court declined to undertake judicial review — Whether provincial superior courts have jurisdiction to address validity of federal child support guidelines — Even if they do, whether federal courts erred in refusing to hear judicial review application on its merits — Federal Courts Act, R.S.C. 1985, c. F-7, s. 18 — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), s. 26.1(2) — Federal Child Support Guidelines, SOR/97-175.
The appellants brought an application for judicial review in the Federal Court seeking a declaration that the Federal Child Support Guidelines are unlawful as they are not authorized by s. 26.1(2) of the Divorce Act . They claim that the Guidelines are not based on the “relative abilities to contribute” of both spouses and that they do not reasonably calculate the amounts required “to maintain the children”. The application judge held that the Federal Court is not an appropriate forum in which to address the validity of the Guidelines. Given the minor role the Federal Court plays in issues under the Divorce Act and the breadth of the jurisdiction and expertise of the provincial superior courts in matters related to divorce and child support, it was found that it would be inappropriate for the Federal Court to consider the judicial review application on its merits. The Federal Court of Appeal upheld this conclusion.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatsanis, Gascon and Côté JJ.: The Court’s jurisprudence supports the principle that the provincial superior courts, in the context of proceedings properly before them, can address the legality of the conduct of federal boards, commissions and tribunals, where doing so is a necessary step in resolving the claims asserted in those proceedings. This means that in the context of family law proceedings otherwise properly before them, the provincial superior courts can decide that the Guidelines made by the Governor in Council are ultra vires and decline to apply them if doing so is a necessary step in resolving the matters before them.
Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief. Declarations of rights, whether sought in judicial review proceedings or in actions, are similarly a discretionary remedy. The discretionary nature of judicial review and declaratory relief is continued by the judicial review provisions of the Federal Courts Act . Section 18.1(3) provides that “[o]n an application for judicial review, the Federal Court may” make certain orders in the nature of those traditional remedies. As a result, judges of the Federal Court have discretion in determining whether judicial review should be undertaken. The fact that undertaking judicial review is discretionary means that the Federal Court judge’s exercise of that discretion is entitled to deference on appeal.
One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative. In order for an alternative forum or remedy to be adequate, neither the process nor the remedy need be identical to those available on judicial review. The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate. Ultimately, this calls for a type of balance of convenience analysis which should take account of the purposes and policy considerations underpinning the legislative scheme in issue.
In this case, the appellants’ position that they are entitled to a ruling on the legality of the Guidelines through a judicial review is fundamentally at odds with the discretionary nature of judicial review and with the broad grounds on which that discretion may be exercised. The appellants do not have a right to have the Federal Court rule on the legality of the Guidelines; the Federal Court has discretion to do so which it has decided not to exercise. Further, the appellants’ position that the alternative is not adequate because it does not provide identical procedures or relief cannot be accepted. The appellants’ arguments focus too narrowly on how challenging the Guidelines in the context of family law litigation in the provincial superior courts will not provide everything that might be available to them on judicial review. Here, the appellants request a judicial determination of, among other things, whether the Guidelines are based, as they are required to be by s. 26.1(2) of the Divorce Act , on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation. Making that determination will inevitably engage family law expertise in relation to, among other things, the nature and extent of the obligation to maintain children and how the relative abilities of parents to do so should be assessed. The provincial superior courts deal day in and day out with disputes in the context of marital breakdown concerning the needs of children, as well as what custody and support arrangements are in their best interests. Parliament has entrusted, for practical purposes, this entire area of law to the provincial superior courts. Having done so, it would be curious to say the least, if the legality of a central aspect of that regime were to be finally decided by the federal courts which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters.
It would not be more efficient in this case to obtain a ruling in the Federal Court, as such a ruling would not be binding on any provincial superior court. Regardless of what the Federal Court might decide, before a ruling could have any practical effect, the issue would have to be re-litigated in the superior courts, or, alternatively, litigated up to this Court. It would be for the provincial courts to decide the impact of the illegality of the Guidelines on particular support orders and that could only be done in the context of a multitude of individual cases. Further, the appellants’ judicial review proceedings exclude direct adversarial participation by other directly affected parties: spouses and former spouses seeking child support orders or variations of them under the Divorce Act . However, adjudicating the issue in the context of Divorce Act or child support proceedings would ensure full participation of these parties.
In summary, the Federal Court did not make any reviewable error in exercising the discretion not to entertain the judicial review application for declaratory relief. Provincial superior courts have jurisdiction to address the validity of the Guidelines where doing so is a necessary step in resolving a case otherwise properly before them. Judicial review in the Federal Court is manifestly inappropriate in this case and the Federal Court reasonably exercised its discretion not to engage in it.
The parties assumed that the Federal Court has exclusive original jurisdiction to grant judicial review remedies directed against regulations promulgated by the Governor in Council and as a result, that point is not before the Court for decision. But as presently advised, the concerns expressed in the minority opinion in relation to this issue are not shared. The language of the Federal Courts Act can be taken as a clear and explicit expression of parliamentary intent. No one questions that s. 18 does not withdraw the authority of the provincial superior courts to grant the traditional administrative law remedies against federal boards, commissions and tribunals on division of powers grounds, but with respect to judicial review on administrative law grounds, it has been expressly confirmed that the Federal Court has exclusive original jurisdiction as described in s. 18 of the Federal Courts Act .
Per Abella and Wagner JJ.: Although there is agreement with the result reached by the majority opinion, there is concern that the reasons not be seen as representing a definitive view from this Court that the provincial superior courts cannot declare federal regulations invalid on administrative grounds. The parties did not argue the issue of whether s. 18 of the Federal Courts Act grants the Federal Court exclusive original jurisdiction to declare invalid federal regulations promulgated by the Governor in Council. As a result, this case should not be seen as categorically endorsing the assumption that the Federal Court has exclusive jurisdiction to declare invalid all such regulations. This Court has said that provincial superior courts have jurisdiction to declare invalid the federal laws they administer. Any derogation from the jurisdiction of the provincial superior courts requires clear and explicit statutory wording to this effect. Section 18 of the Federal Courts Act does not clearly and unequivocally strip the provincial superior courts of their jurisdiction to declare federal regulations made by the Governor in Council to be invalid on administrative grounds. The Federal Court was created to remove from the provincial superior courts the jurisdiction to supervise federal administrative tribunals, not to strip them of their jurisdiction to determine the vires of the federal regulations they apply. There is no evidence that Parliament intended to limit the subject-matter jurisdiction of the provincial superior courts by preventing them from determining the vires of the regulations they apply. At the very least, this argues for caution and full argument before this Court declares — or is seen to declare — that s. 18 of the Federal Courts Act means that the Federal Court has exclusive jurisdiction over all federal regulations even if they are not part of legislative schemes over which the Federal Court has jurisdiction or expertise, such as the Divorce Act .
Cases Cited
By Cromwell J.
Adopted: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Canada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626, aff’g 2008 ONCA 892, 94 O.R. (3d) 19; Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada, 2010 SCC 66, [2010] 3 S.C.R. 657; referred to: Saskatchewan Wheat Pool v. Canada (Attorney General) (1993), 67 F.T.R. 98; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Canada Labour Relations Board v. Paul L’Anglais Inc., [1983] 1 S.C.R. 147; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Morgentaler (1984), 41 C.R. (3d) 262; R. v. Miller, [1985] 2 S.C.R. 613; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332.
By Abella and Wagner JJ.
Distinguished: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Canada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626; referred to: Ordon Estate v. Grail, [1998] 3 S.C.R. 437; Sorbara v. Canada (Attorney General), 2009 ONCA 506, 98 O.R. (3d) 673, leave to appeal refused, [2009] 3 S.C.R. x; Saskatchewan Wheat Pool v. Canada (Attorney-General) (1993), 107 D.L.R. (4th) 63; Messageries publi-maison ltée v. Société canadienne des postes, [1996] R.J.Q. 547; Waddell v. Governor in Council (1981), 30 B.C.L.R. 127, aff’d (1982), 142 D.L.R. (3d) 177; Re Williams and Attorney-General for Canada (1983), 45 O.R. (2d) 291; British Columbia Milk Marketing Board v. Aquilini, [1997] B.C.J. No. 843 (QL), rev’d in part (1998), 165 D.L.R. (4th) 626, notice of discontinuance filed, [1999] 2 S.C.R. v; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Wakeford v. Canada (2002), 58 O.R. (3d) 65, leave to appeal refused, [2002] 4 S.C.R. vii; Lavers v. British Columbia (Minister of Finance) (1989), 64 D.L.R. (4th) 193; International Fund for Animal Welfare, Inc. v. Canada (Attorney General) (1998), 157 D.L.R. (4th) 561; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; Dyck v. Highton, 2003 SKQB 396, 239 Sask. R. 38; Ward v. Canada (Attorney General) (1997), 155 Nfld. & P.E.I.R. 313, rev’d (1999), 183 Nfld. & P.E.I.R. 295, rev’d 2002 SCC 17, [2002] 1 S.C.R. 569; Souliere v. Leclair (1998), 52 C.R.R. (2d) 156; Premi v. Khodeir (2009), 198 C.R.R. (2d) 8; Grenon v. Canada (Attorney General), 2007 ABQB 403, 76 Alta. L.R. (4th) 346; Canada Labour Relations Board v. Paul L’Anglais Inc., [1983] 1 S.C.R. 147.
Statutes and Regulations Cited
Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 .
Canadian Charter of Rights and Freedoms .
Combines Investigation Act, R.S.C. 1970, c. C-23.
Constitution Act, 1867, s. 101 .
Criminal Code, R.S.C. 1985, c. C-46 .
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), s. 26.1 .
Extradition Act, S.C. 1999, c. 18 .
Federal Child Support Guidelines, SOR/97-175, ss. 7, 10.
Federal Court Act , S.C. 1970-71-72, c. 1, ss. 17, 18.
Federal Courts Act, R.S.C. 1985, c. F-7 [am. 2002, c. 8, s. 14], ss. 2 “federal board, commission or other tribunal”, 17 [am. 1990, c. 8, s. 3], 18, 18.1(3).
Authors Cited
Brown, Donald J. M., and John M. Evans, with the assistance of Christine E. Deacon. Judicial Review of Administrative Action in Canada. Toronto: Carswell, 2013 (loose-leaf updated December 2014, release 3).
Bushnell, Ian. The Federal Court of Canada: A History, 1875-1992. Toronto: University of Toronto Press, 1997.
Canada. House of Commons. House of Commons Debates, vol. IV, 2nd Sess., 34th Parl., November 1, 1989, pp. 5413-14.
Canada. House of Commons. House of Commons Debates, vol. V, 2nd Sess., 28th Parl., March 25, 1970, pp. 5469-71.
de Smith, S. A. Judicial Review of Administrative Action, 4th ed., by J. M. Evans. London: Stevens & Sons, 1980.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 1. Toronto: Carswell, 2007 (loose-leaf updated 2014, release 1).
Jones, David Phillip, and Anne S. de Villars. Principles of Administrative Law, 6th ed. Toronto: Carswell, 2014.
Mullan, David J. “The Discretionary Nature of Judicial Review”, in Robert J. Sharpe and Kent Roach, eds., Taking Remedies Seriously: 2009. Montréal: Canadian Institute for the Administration of Justice, 2010, 420.
Pound, Richard W. Chief Justice W.R. Jackett: By the Law of the Land. Montréal and Kingston: McGill-Queen’s University Press, 1999.
APPEAL from a judgment of the Federal Court of Appeal (Blais C.J. and Sharlow and Gauthier JJ.A.), 2014 FCA 33, 460 N.R. 240, [2014] F.C.J. No. 998 (QL), 2014 CarswellNat 3631 (WL Can.), affirming a decision of Gleason J., 2013 FC 475, 432 F.T.R. 152, [2013] F.C.J. No. 529 (QL), 2013 CarswellNat 1363 (WL Can.). Appeal dismissed.
Glenn Solomon, Q.C., and Laura Warner, for the appellants.
Anne M. Turley and Catherine A. Lawrence, for the respondent.
The judgment of McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatsanis, Gascon and Côté JJ. was delivered by
Cromwell J. —
I. Introduction
[1] The appellants seek to make a point: that the Federal Child Support Guidelines, SOR/97-175, are unlawful. They chose to make it by bringing a judicial review application in the Federal Court. The Federal Court, however, found that this was not an appropriate means by which to raise this issue and dismissed their application. It did so by exercising the well-established discretion to decline to undertake judicial review when some other, more suitable remedy is available. The Federal Court of Appeal upheld that decision. In my view, it made no mistake in doing so.
[2] The appellants’ challenge to the child support Guidelines raises an issue of fundamental importance to, and with broad ramifications for child support on divorce, an area entrusted by Parliament mainly to the provincial superior courts. Questions about the nature and objectives of child support on divorce, which are squarely within the expertise of those courts, will be central to resolving the appellants’ challenge. While the appellants point to procedural and efficiency advantages of addressing these questions by means of judicial review in the Federal Court, any advantages are, on closer examination, largely illusory. I would therefore affirm the decision of the Federal Court of Appeal.
II. Overview of the Facts, Judicial History and Issues
[3] The Governor in Council has made guidelines, by regulation, respecting child support orders: Guidelines. The power to do so is conferred by s. 26.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .). That provision authorizes the Governor in Council to make such guidelines “based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” (s. 26.1(2) ).
[4] The six appellants are potentially affected by the Guidelines in different ways. Three of them pay child support. Robert T. Strickland entered into an interim child support agreement through court-mandated mediation during a divorce action. George Connon, who is separated from his wife, voluntarily pays child support calculated in accordance with the Guidelines. Roland Auer pays child support to his second wife, the amount of which was initially calculated with reference to the Guidelines and has since been varied twice by the Alberta Court of Queen’s Bench. The other three appellants are Roland Auer’s first wife, Iwona Auer-Grzesiak, and two of his sons. They argue that they are affected by Mr. Auer’s obligation to pay child support to his second wife.
[5] The appellants maintain that the Guidelines are not authorized by s. 26.1(2) and are therefore unlawful (or as lawyers say, are ultra vires). They claim that, contrary to what that section requires, the Guidelines are not based on the “relative abilities to contribute” of both spouses and that they do not reasonably calculate the amounts required “to maintain the children”. To advance this position, the appellants brought an application for judicial review in the Federal Court seeking a declaration to this effect.
[6] The Federal Court has “exclusive original jurisdiction . . . to . . . grant declaratory relief, against any federal board, commission or other tribunal”: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18(1) (a). The parties argued the appeal on the assumption that, under the Federal Courts Act , the application for a declaration that the Guidelines are ultra vires is, by virtue of this provision, within the exclusive jurisdiction of the Federal Court. There was no argument to the contrary and I accept that assumption for the purposes of my reasons. However, the Attorney General of Canada brought a motion to dismiss the judicial review application arguing, among other things, that the Federal Court should exercise its discretion to decline to hear the application.
[7] The Federal Court agreed and dismissed the appellants’ judicial review application: 2013 FC 475, 432 F.T.R. 152. The application judge, Gleason J., held that the Federal Court is not an appropriate forum in which to address the validity of the Guidelines. She reasoned that the provincial superior courts have jurisdiction over a claim that the Guidelines are ultra vires if that claim is made in proceedings in which those courts are asked to apply them. Given the minor role the Federal Court plays in issues under the Divorce Act and the breadth of the jurisdiction and expertise of the provincial superior courts in matters related to divorce and child support, it would be inappropriate for the Federal Court to consider the judicial review application on its merits. The Federal Court of Appeal upheld this conclusion: 2014 FCA 33, 460 N.R. 240.
[8] The appellants’ appeal to this Court, as I see it, raises two related questions:
1. Do the provincial superior courts have jurisdiction to address the validity of the Guidelines?
2. Even if they do, did the federal courts err in refusing to hear the judicial review application on its merits?
[9] In my view, the provincial superior courts have jurisdiction to address the validity of the Guidelines where doing so is a necessary step in resolving a case otherwise properly before them and the Federal Court did not err by refusing to hear the appellants’ judicial review application.
III. Analysis
A. First Issue: Do the Provincial Superior Courts Have Jurisdiction to Address the Validity of the Guidelines?
(1) Position of the Parties
[10] The Federal Court’s refusal to undertake judicial review was based on a central premise: the provincial superior courts may rule on the legality of the Guidelines when that question arises in a proceeding otherwise properly before them. The appellants challenge that premise. Their position is based on two uncontroversial propositions.
[11] They say, first, that s. 18 of the Federal Courts Act gives the Federal Court exclusive original jurisdiction to (among other things) “grant declaratory relief, against any federal board, commission or other tribunal”. (The full text is in the Appendix.) This leads to their second point, which is that this exclusive jurisdiction undisputedly includes the jurisdiction to declare regulations promulgated by the Governor in Council, such as the Guidelines, to be ultra vires: Saskatchewan Wheat Pool v. Canada (Attorney General) (1993), 67 F.T.R. 98, at paras. 8 and 12. The appellants submit that it follows from these two points that litigants like themselves, who are seeking a public law remedy against a federal entity, may proceed only in the federal courts: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at para. 19.
[12] The appellants note that there are only two exceptions to this exclusive jurisdiction of the Federal Court, neither of which applies here. First, Parliament may create express exceptions, as it has done in the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 , and the Extradition Act, S.C. 1999, c. 18 . There is no such express exception for the appellants’ judicial review proceeding. Second, Parliament cannot, through s. 18 of the Federal Courts Act or otherwise, deprive provincial superior courts of the ability to determine the constitutional validity and applicability of legislation: Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Canada Labour Relations Board v. Paul L’Anglais Inc., [1983] 1 S.C.R. 147. But that principle does not apply here because the appellants challenge the Guidelines on administrative law, not on constitutional grounds.
[13] Based on these points, the appellants submit that, contrary to the view of the federal courts, “the weight of authority, and strong policy considerations, favour concluding that the provincial superior courts do not require jurisdiction to determine administrative validity as part of being asked to apply the Guidelines” and that provincial superior courts must presume the Guidelines to be valid unless found to be invalid by a court of competent jurisdiction: A.F., at para. 83 (emphasis deleted).
[14] The respondent Attorney General rejects this contention and supports the conclusion of the federal courts on this point.
[15] In my respectful view, the Attorney General is correct. A provincial superior court can hear and determine a challenge to the legality of the Guidelines where that determination is a necessary step in disposing of support proceedings properly before it. This, in my view, is clear from a line of very recent authority from this Court. I will turn to review it and explain why it applies here after a brief account of the purposes of the Federal Court’s exclusive jurisdiction.
(2) Section 18 and the Federal Court’s Exclusive Jurisdiction
[16] In 1970, Parliament enacted the Federal Court Act , S.C. 1970-71-72, c. 1. The Act was subsequently renamed the Federal Courts Act , S.C. 2002, c. 8, s. 14 , which is the legislation in force today. For clarity, when I refer to the “Act” in these reasons, I refer to the enactment that was in force at the relevant time.
[17] Before the Act, judicial review of federal administrative action was conducted by the provincial superior courts as an aspect of their inherent jurisdiction. However, with the growth of federal regulatory regimes and administrative tribunals, several disadvantages of this arrangement became apparent. These included the possibility of multiple proceedings involving a federal decision that could lead to conflicting decisions and “a perceived lack of familiarity with federal legislation by judges who encountered it only occasionally”: D. J. M. Brown and J. M. Evans, with the assistance of C. E. Deacon, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 2:4100.
[18] To respond to these concerns, Parliament consolidated judicial review of federal boards, commissions and tribunals within the exclusive jurisdiction of the Federal Court: s. 18 of the Act. This, it was hoped, would ensure uniformity and prevent a multiplicity of proceedings: see, e.g., TeleZone, at paras. 49-50; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, at para. 35. The then-Minister of Justice stated that this consolidation was “designed to create a single and uniform basis of superintending jurisdiction in relation to federal boards and commissions and to place them on the same footing in this regard as provincial boards and commissions”: TeleZone, at para. 50, citing House of Commons Debates, vol. V, 2nd Sess., 28th Parl., March 25, 1970, at p. 5471. Thus, with the passage of the Act, Parliament “remove[d] from the superior courts of the provinces the jurisdiction over prerogative writs, declarations, and injunctions against federal boards, commissions and other tribunals and . . . place[d] that jurisdiction (slightly modified) in a new federal court”: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 34; see also Paul L’Anglais Inc., at p. 154.
[19] The Act also gave the Federal Court exclusive jurisdiction over proceedings against the federal crown: s. 17. However, this scheme proved unworkable in practice by virtue of the constitutional limits of the court’s jurisdiction under s. 101 of the Constitution Act, 1867 . That meant that the Federal Court generally had no jurisdiction over Crown servants or over other co-defendants, third parties or defendants by counterclaim and that those persons and proceedings had to be addressed in parallel proceedings in the provincial superior courts. This unsatisfactory state of affairs was resolved by amendments in 1990 making the Federal Court’s jurisdiction over claims against the federal Crown concurrent with that of the provincial superior courts rather than exclusive: S.C. 1990, c. 8, s. 3; and see generally, P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 1, at pp. 7-33 and 7-34. Thus, since 1990, the Federal Court’s exclusive jurisdiction with respect to judicial review is a qualification of the general rule of concurrent jurisdiction between it and the provincial superior courts.
(3) The TeleZone Principle
[20] I have already referred briefly to the practical problems which arose by virtue of the attempt to confer on the Federal Court exclusive jurisdiction over claims against the federal Crown. The conferral of exclusive jurisdiction in judicial review of federal tribunals has also given rise to some practical problems. The main one, which arose in a line of recent cases, is whether this exclusive judicial review jurisdiction means that a claim for damages based on allegedly unlawful conduct by a federal board, commission or tribunal cannot be brought in the provincial superior courts without the claimant first successfully applying for judicial review of that conduct in the Federal Court: TeleZone; Canada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626; Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada, 2010 SCC 66, [2010] 3 S.C.R. 657.
[21] The Attorney General of Canada adopted the position that bringing an action in the provincial superior courts without first challenging the legality of the conduct by way of judicial review in the Federal Court was an impermissible evasion of the Federal Court’s exclusive judicial review jurisdiction under s. 18 and therefore constituted an impermissible collateral attack on the actions of the federal tribunal. This Court, however, unanimously rejected this contention, noting that accepting it would create a “bottleneck” that was “manifestly not the intention of Parliament”: TeleZone, at para. 3.
[22] TeleZone and the related cases, although they did not decide the precise point in issue here, support the principle that the provincial superior courts have the authority to consider and rule on the legality of the actions of federal tribunals when doing so is a necessary step in adjudicating claims properly before the superior courts. As in my view this principle is central to this case, a brief review of the key cases is in order.
[23] In TeleZone, the plaintiff company sued the federal government in the Ontario Superior Court of Justice, seeking damages in tort, contract and equity stemming from a decision not to include TeleZone among the successful bidders for licences to provide personal communication services — essentially a cell phone network. It alleged that the Minister of Industry Canada had breached a term of the department’s policy statement which had accompanied its call for licence applications and had failed to treat TeleZone fairly as required by the tendering process. TeleZone neither impugned the Minister’s decision to issue the licences nor sought a licence for itself. It simply sought damages for the Minister’s allegedly illegal conduct in denying it a licence and for failing to treat it fairly. The Crown argued that by virtue of the Federal Court’s exclusive jurisdiction under s. 18 of the Act, TeleZone could not advance these claims in the Superior Court unless it first obtained from the Federal Court an order quashing the Minister’s decision.
[24] The Court rejected the Crown’s position, holding that the Ontario Superior Court of Justice could determine whether the Minister’s decision was lawful or not for the purposes of the damages claim. The claim as pleaded was “dominated by private law considerations”: TeleZone, at para. 80. The Court explained that the grant of exclusive jurisdiction in s. 18 must be understood in the broader context of the Act. Section 17 of the Act (as amended in 1990) explicitly confers concurrent jurisdiction on the provincial superior courts “in all cases in which relief is claimed against the Crown”. The exclusive jurisdiction provision in s. 18 must be understood as “a reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s. 17”: para. 5. Thus, the provincial superior courts may exercise their concurrent jurisdiction where the attack on a law or an order is essential to the cause of action and adjudication of that allegation is a necessary step in disposing of the claim: para. 67. As Binnie J. put it on behalf of the Court, s. 18 of the Act does not “shield the Crown from private law damages involving [federal boards, commissions and tribunals] in respect of losses caused by unlawful government decision making without first passing through the Federal Court”: para. 3. The provincial superior courts, in the context of matters properly before them, have the authority “to determine every legal and factual element necessary for the granting or withholding of the remedies sought”, including the potential unlawfulness of government orders: para. 6. Binnie J. was careful to point out that this principle will not apply unless the validity of the underlying order is genuinely a necessary step in an otherwise valid proceeding and is not simply made to appear as such as the result of “artful pleading”: para. 75.
[25] The companion case of McArthur supports the premise relied on by the Federal Court in this appeal. In McArthur, the plaintiff sued the federal Crown in the Ontario Superior Court of Justice. He sought damages and constitutional remedies for what he alleged was wrongful or false imprisonment and emotional harm stemming from time he spent in solitary confinement, segregation and a special handling unit. The Court stated the issue to be whether Mr. McArthur could pursue his damages claim in the Superior Court for arbitrary detention and alleged mistreatment without first seeking judicial review in the Federal Court to quash the segregation orders that were the basis of his claim: para. 1. Mr. McArthur alleged that the segregation orders were made without just cause and lacked the reasonable grounds required under the relevant statute. As Binnie J. noted, Mr. McArthur was “putting in issue the lawfulness or validity of the segregation orders, but he [did] so as an element of a private law cause of action over which the provincial superior court ha[d] jurisdiction”: para. 13.
[26] The Court rejected the Crown’s position that Mr. McArthur must first seek judicial review in the Federal Court to quash the segregation orders that founded his claim: paras. 2 and 11. The Superior Court had jurisdiction to entertain the claim because its authority extended to “the person and the subject matter in question and, in addition, [because it] has authority to make the order sought”: para. 17, citing Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 960, quoting Brooke J.A. in R. v. Morgentaler (1984), 41 C.R. (3d) 262 (Ont. C.A.), at p. 271. Thus, in adjudicating the claim, the Court could consider “the validity of Mr. McArthur’s detention in the context of a damages claim, as well as the impact, if any, of a valid order on Crown liability”: para. 15 (emphasis in original). Binnie J. concluded that “[t]here is nothing in the Federal Courts Act to give the Federal Court the exclusive jurisdiction to determine the lawfulness or validity of the order of a ‘federal board, commission or other tribunal’ when Mr. McArthur does not seek any of the remedies listed in s. 18 of the Federal Courts Act ”: para. 17.
[27] I acknowledge that, unlike in McArthur, the appellants in this case do seek a s. 18 remedy, a declaration of invalidity. However, the question at this point in the analysis focuses on the authority of the superior courts to deal with the Guidelines. McArthur strongly supports the premise of the Federal Court’s decision in the present case, that is, that the provincial superior courts have the authority to determine the “lawfulness or validity” of the Guidelines in the course of proceedings properly before them in which doing so is a necessary step in resolving those proceedings. As I will discuss below, this was a key consideration for the federal courts in exercising discretion not to undertake judicial review.
[28] In the last of the relevant cases in the TeleZone line, Canadian Food Inspection Agency, the Agency contested the jurisdiction of the Quebec Superior Court to entertain recourses in warranty alleging that a direction the Agency had issued was the cause of any damage meat producers had suffered from being unable to market some of their product: para. 9. The Agency’s position was that the claims could not succeed without first attacking the lawfulness or validity of its decision by way of judicial review in the Federal Court: paras. 16 and 20. Once again, this Court affirmed that “[s]uccessfully challenging an administrative decision of a federal board on judicial review is not a requirement for bringing an action for damages with respect to that decision”: para. 21. Since the Quebec Superior Court had jurisdiction over the parties and the subject matter of the dispute, the claims were properly before it: para. 29.
[29] This decision, too, supports the premise of the Federal Court in the present case: the superior court can rule on the legality of the federal administrative action in proceedings properly before it in which deciding that issue is an essential step.
[30] Another line of cases illustrates and supports this approach. They affirm the view that a provincial superior court dealing with an application for habeas corpus with certiorari in aid can assess the legality of detention resulting from the decision of a federal board. These cases rejected the contention that certiorari in aid of habeas corpus was no longer available in the provincial superior courts by virtue of the exclusive jurisdiction provision in s. 18 of the Act.
[31] In R. v. Miller, [1985] 2 S.C.R. 613, the Court noted that Parliament intended to leave with provincial superior courts “the jurisdiction by way of habeas corpus to review the validity of a detention imposed by federal authority”: p. 624. This parliamentary intent combined with the importance of certiorari in aid to the effectiveness of habeas corpus led the Court to conclude that a provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to assess the validity of detention: p. 625. Certiorari in aid was consi