Canada (Attorney General) v. TeleZone Inc.

Canada (Attorney General) v. TeleZone Inc.
Collection
Supreme Court Judgments
Date
2010-12-23
Neutral citation
2010 SCC 62
Report
[2010] 3 SCR 585
Case number
33041
Judges
Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Ontario
Subjects
Courts
Notes
SCC Case Information: 33041
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Attorney General) v. TeleZone Inc.,
2010 SCC 62, [2010] 3 S.C.R. 585
Date: 20101223
Docket: 33041
Between:
Attorney General of Canada
Appellant
and
TeleZone Inc.
Respondent
Coram: Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 81)
Binnie J. (LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ. concurring)
Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585
Attorney General of Canada Appellant
v.
TeleZone Inc. Respondent
Indexed as: Canada (Attorney General) v. TeleZone Inc.
2010 SCC 62
File No.: 33041.
2010: January 20, 21; 2010: December 23.
Present: Binnie, LeBel, Deschamps, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Courts — Jurisdiction — Provincial superior courts — Action brought against federal Crown in Ontario Superior Court of Justice seeking damages for breach of contract, negligence and unjust enrichment arising from decision rejecting application for telecommunications licence — Whether plaintiff entitled to proceed by way of action in Ontario Superior Court of Justice without first proceeding by way of judicial review in Federal Court — Federal Courts Act, R.S.C. 1985, c. F-7, ss. 17 , 18 ; Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, s. 21 .
In 1995, Industry Canada issued a call for personal communication services licence applications, and released the policy statement within which potential service providers could shape their applications. The statement provided that Industry Canada would grant up to six licences on the basis of criteria it set out. T submitted an application, but when Industry Canada announced its decision, there were only four successful applicants and T was not among them. T filed an action against the Federal Crown in the Ontario Superior Court of Justice for breach of contract, negligence and unjust enrichment, and sought compensation for claimed losses of $250 million. It claimed that it was an express or implied term of the policy statement that Industry Canada would only issue fewer than six licences if fewer than six applications met the criteria. Since its application satisfied all the criteria, it says, Industry Canada must have considered other undisclosed factors when it rejected T’s application. The Attorney General of Canada, relying on Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, challenged the jurisdiction of the Superior Court on the ground that the claim constituted a collateral attack on the decision, which is barred by the grant to the Federal Court, by s. 18 of the Federal Courts Act , of exclusive judicial review jurisdiction in relation to decisions of all federal boards, commissions or other tribunals. The Superior Court dismissed the objection on the ground that it was not plain and obvious that the claim would fail. The Court of Appeal upheld the decision, holding that Grenier was wrongly decided. In that court’s view s. 17 of the Federal Courts Act and s. 21 of the Crown Liability and Proceedings Act conferred concurrent jurisdiction on the superior courts and the Federal Court for claims against the Crown, and s. 18 of the Federal Courts Act did not remove relief by way of an award of damages from the jurisdiction of superior courts.
Held: The appeal should be dismissed.
This appeal is fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary costs and complexity. The Court’s approach should be practical and pragmatic with that objective in mind. Acceptance of Grenier would tend to undermine the effectiveness of the Federal Courts Act reforms of the early 1990s by retaining in the Federal Court exclusive jurisdiction over a key element of many causes of action proceeding in the provincial courts despite Parliament’s promise to give plaintiffs a choice of forum and to make provincial superior courts available to litigants “in all cases in which relief is claimed against the [federal] Crown” except as otherwise provided.
Apart from constitutional limitations, none of which are relevant here, Parliament may by statute transfer jurisdiction from the superior courts to other adjudicative bodies including the Federal Court. However, any derogation from the jurisdiction of the provincial superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory language. Nothing in the Federal Courts Act satisfies this test. The explicit grant to the provincial superior courts of concurrent jurisdiction in claims against the Crown in s. 17 of that Act (as well as s. 21 of the Crown Liability and Proceedings Act ) directly refutes the Attorney General’s argument. The grant of exclusive jurisdiction to judicially review federal decision makers in s. 18 is best understood as a reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s. 17 “in all cases in which relief is claimed against the [federal] Crown”. This reservation or subtraction is expressed in s. 18 of the Federal Courts Act in terms of particular remedies. All the remedies listed are traditional administrative law remedies and do not include awards of damages. If a claimant seeks compensation, he or she cannot get it on judicial review, but must file an action.
The Federal Courts Act contains other internal evidence that Parliament could not have intended judicial review to have the gatekeeper function envisaged by Grenier. Section 18.1(2) imposes a 30-day limitation for judicial review applications. A 30-day cut off for a damages claimant would be unrealistic, as the facts necessary to ground a civil cause of action may not emerge until after 30 days have passed, and the claimant may not be in a position to apply for judicial review within the limitation period. While the 30‑day limit can be extended, the extension is discretionary and would subordinate the fate of a civil suit brought in a superior court to the discretion of a Federal Court judge ruling upon a request for an extension of time for reasons that have to do with public law concerns, not civil damages. Moreover, the grant of judicial review is itself discretionary and may be denied even if the applicant establishes valid grounds for the court’s intervention. This does not align well with the paradigm of a common law action for damages where, if the elements of the claim are established, compensation ought generally to follow as a matter of course. Further, s. 8 of the Crown Liability and Proceedings Act , which codifies the defence of statutory authority, is evidence that Parliament envisaged that the lawfulness of administrative decisions could be assessed by the provincial superior court in the course of adjudicating a claim for damages.
The Grenier approach cannot be justified by the rule against collateral attacks. T’s claim is not an attempt to invalidate or render inoperative the Minister’s decision; rather, the decision and the financial losses allegedly consequent to it constitute the very foundation of the damages claim. In any event, given the statutory grant of concurrent jurisdiction in s. 17 of the Federal Courts Act , Parliament has stated that provincial superior courts possess the concurrent necessary jurisdiction to dispose of the whole of a claim and this includes any attack on the validity of the Minister’s decision where this issue is essential to the cause of action and where adjudicating the matter is a necessary step in disposing of the claim. While the doctrine of collateral attack may be raised by the Crown in the provincial superior court as a defence, the possible availability of the defence is not an argument against provincial superior court jurisdiction. Similarly, while it may be open to the Crown, by way of defence, to argue that the government decision maker was acting under statutory authority which precludes compensation for consequent losses, this is not a matter of jurisdiction and can be dealt with as well by the provincial superior court as by the Federal Court.
It is true that the provincial superior courts and the Federal Court have a residual discretion to stay a damages claim if, in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong. However, where a plaintiff’s pleading alleges the elements of a private cause of action, the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that could be pursued on judicial review. If the plaintiff has pleaded a valid cause of action for damages, he or she should generally be allowed to pursue it.
Here, T’s claim as pleaded is dominated by private law considerations. It is not attempting to nullify or set aside the decision to issue licences. Nor does it seek to deprive the decision of any legal effect. T’s causes of action in contract, tort and equity are predicated on the finality of that decision excluding it from participation in the telecommunications market. The Ontario Superior Court of Justice has jurisdiction over the parties and the subject matter, and has the power to grant the remedy of damages. There is nothing in the Federal Courts Act to prevent the Ontario Superior Court from adjudicating T’s claim.
Cases Cited
Overruled: Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287; referred to: Canada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626; Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38; The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; Agricultural Research Institute of Ontario v. Campbell‑High (2002), 58 O.R. (3d) 321, leave to appeal refused, [2003] 1 S.C.R. vii; Ryan v. Victoria (City), [1999] 1 S.C.R. 201; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551; R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706; Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FCA 215, [2009] 1 F.C.R. 476; Parrish & Heimbecker Ltd. v. Canada (Minister of Agriculture and Agri-Food), 2008 FCA 362, [2009] 3 F.C.R. 568, rev’d 2010 SCC 64, [2010] 3 S.C.R. 639; Donovan v. Canada (Attorney General), 2008 NLCA 8, 273 Nfld. & P.E.I.R. 116; Lidstone v. Canada (Minister of Canadian Heritage), 2008 PESCTD 6, 286 Nfld. & P.E.I.R. 244; River Valley Poultry Farm Ltd. v. Canada (Attorney General), 2009 ONCA 326, 95 O.R. (3d) 1; Los Angeles Salad Co. v. Canadian Food Inspection Agency, 2009 BCSC 109, 92 B.C.L.R. (4th) 379; Leroux v. Canada Revenue Agency, 2010 BCSC 865, 2010 D.T.C. 5123; Fantasy Construction Ltd., Re, 2007 ABCA 335, 89 Alta. L.R. (4th) 93; Genge v. Canada (Attorney General), 2007 NLCA 60, 270 Nfld. & P.E.I.R. 182; Gestion Complexe Cousineau (1989) Inc. v. Canada (Minister of Public Works and Government Services), [1995] 2 F.C. 694; Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, 314 D.L.R. (4th) 340, leave to appeal refused, [2009] 3 S.C.R. vii; Martel Building Ltd. v. Canada, 2000 SCC 60, [2000] 2 S.C.R. 860; R. v. Al Klippert Ltd., [1998] 1 S.C.R. 737; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; Pringle v. Fraser, [1972] S.C.R. 821; Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626; Peacock v. Bell (1667), 1 Wms. Saund. 73, 85 E.R. 84; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Morgentaler (1984), 41 C.R. (3d) 262; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; 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 (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; Wilson v. The Queen, [1983] 2 S.C.R. 594; Garland v. Consumers’ Gas Co., 2004 SCC 25, [2004] 1 S.C.R. 629; R. v. Litchfield, [1993] 4 S.C.R. 333; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181; City of Manchester v. Farnworth, [1930] A.C. 171; Sutherland v. Canada (Attorney General), 2002 BCCA 416, [2002] 10 W.W.R. 1, leave to appeal refused, [2003] 1 S.C.R. xi (sub nom. Jones v. Attorney General of Canada); Lake v. St. John’s (City), 2000 NFCA 48, 192 Nfld. & P.E.I.R. 84; Neuman v. Parkland (County), 2004 ABPC 58, 36 Alta. L.R. (4th) 161; Danco v. Thunder Bay (City) (2000), 13 M.P.L.R. (3d) 130; Landry v. Moncton (City), 2008 NBCA 32, 329 N.B.R. (2d) 212; Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee, [1992] 1 A.C. 624.
Statutes and Regulations Cited
Civil Code of Québec, R.S.Q., c. C-1991.
Constitution Act, 1867, ss. 96 , 101 .
Corrections and Conditional Release Act, S.C. 1992, c. 20 .
Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, ss. 3 , 8 , 21 .
Federal Court Act , S.C. 1970-71-72, c. 1.
Federal Courts Act, R.S.C. 1985, c. F-7, ss. 2(1) “federal board, commission or other tribunal”, 17, 18, 18.1, 18.4, 39, 50(1).
Radiocommunication Act, R.S.C. 1985, c. R-2 .
Authors Cited
Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (loose-leaf updated July 2010).
Canada. House of Commons. Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-38, No. 1, 2nd Sess., 34th Parl., November 23, 1989, pp. 14-15.
Canada. House of Commons Debates, 2nd Sess., 28th Parl., March 25, 1970, pp. 5470-71.
Canada. House of Commons Debates, 2nd Sess., 34th Parl., November 1, 1989, p. 5414.
Craig, Paul P. Administrative Law, 6th ed. London: Sweet & Maxwell, 2008.
Hogg, Peter W., and Patrick J. Monahan. Liability of the Crown, 3rd ed. Scarborough, Ont.: Carswell, 2000.
Horsman, Karen, and Gareth Morley, eds. Government Liability: Law and Practice. Aurora, Ont.: Cartwright Law Group, 2007 (loose-leaf updated 2010).
Mullan, David J. “Administrative Law Update — 2008-2009”, prepared for the Continuing Legal Education conference, Administrative Law Conference—2009. Vancouver: The Continuing Legal Education Society of British Columbia, 2009.
Woolf, Harry, Jeffrey Jowell and Andrew Le Sueur. De Smith’s Judicial Review, 6th ed. London: Sweet & Maxwell, 2007.
APPEAL from a judgment of the Ontario Court of Appeal (Laskin, Borins and Feldman JJ.A.), 2008 ONCA 892, 94 O.R. (3d) 19, 303 D.L.R. (4th) 626, 245 O.A.C. 91, 86 Admin L.R. (4th) 163, 40 C.E.L.R. (3d) 183, [2008] O.J. No. 5291 (QL), 2008 CarswellOnt 7826, affirming a decision of Morawetz J. (2007), 88 O.R. (3d) 173, [2007] O.J. No. 4766 (QL), 2007 CarswellOnt 7847. Appeal dismissed.
Christopher M. Rupar, Alain Préfontaine and Bernard Letarte, for the appellant.
Peter F. C. Howard, Patrick J. Monahan, Eliot N. Kolers and Nicholas McHaffie, for the respondent.
The judgment of the Court was delivered by
[1] Binnie J. — TeleZone Inc. claims it was wronged by the decision of the Minister of Industry Canada that rejected its application for a licence to provide telecommunications services. It seeks compensation in the Ontario Superior Court of Justice against the Federal Crown for its claimed losses of $250 million. It pleads breach of contract, negligence, and, in the alternative, unjust enrichment arising out of monies it had thrown away on the application.
[2] The Attorney General challenges the jurisdiction of the Superior Court to proceed with the claim for compensation unless and until TeleZone obtains from the Federal Court of Canada an order quashing the Minister’s decision. TeleZone’s claim, he says, constitutes an impermissible collateral attack on the Minister’s order. Such a collateral attack is barred, he argues, by the grant to the Federal Court of exclusive judicial review jurisdiction in relation to decisions of all federal boards, commissions or other tribunals — Federal Courts Act, R.S.C. 1985, c. F-7, s. 18 . The Attorney General relies on a line of cases in the Federal Court of Appeal to this effect, giving particular prominence to Canada v. Grenier, 2005 FCA 348, [2006] 2 F.C.R. 287, hence the “Grenier principle”.
[3] The definition of “federal board, commission or other tribunal” in the Act is sweeping. It means “any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown” (s. 2), with certain exceptions, not relevant here, e.g., decisions of Tax Court judges. The federal decision makers that are included run the gamut from the Prime Minister and major boards and agencies to the local border guard and customs official and everybody in between. The Grenier principle would shield the Crown from private law damages involving any of these people or entities in respect of losses caused by unlawful government decision making without first passing through the Federal Court. Such a bottleneck was manifestly not the intention of Parliament when it enacted the judicial review provisions of the Federal Courts Act .
[4] The Grenier principle would undermine s. 17 of the same Act granting concurrent jurisdiction to the provincial superior courts “in all cases in which relief is claimed against the Crown” as well as the grant of concurrent jurisdiction to the superior courts in s. 21 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 , to deal with tort claims. A central issue in some (but not all) damages claims against the federal Crown will be the “lawfulness” of the government decision said to have caused the loss. Grenier would deny the provincial superior courts the jurisdiction to deal with that central issue in a damages claim pending before them. Adoption of the Grenier principle would relegate the provincial superior courts in such matters to a subordinate and contingent jurisdiction — not concurrent, i.e., subordinate to the Federal Court’s decision on judicial review and contingent on the Federal Court being willing to grant a discretionary order on judicial review in favour of the plaintiff.
[5] The Ontario Court of Appeal rejected the Attorney General’s position, and in my respectful opinion, it was correct to do so. Grenier is based on what, in my respectful view, is an exaggerated view of the legal effect of the grant of judicial review jurisdiction to the Federal Court in s. 18 of the Federal Courts Act , which is best understood as a reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s. 17 “in all cases in which relief is claimed against the [federal] Crown”. The arguments of the Attorney General, lacking any support in the express statutory language of s. 18 , are necessarily based on suggested inferences and implications, but it is well established that inferences and implications are not enough to oust the jurisdiction of the provincial superior courts.
[6] In the present case, the Ontario Superior Court has jurisdiction over the parties, the subject matter and the remedies sought by TeleZone. That jurisdiction includes the authority to determine every legal and factual element necessary for the granting or withholding of the remedies sought unless such authority is taken away by statute. The Federal Courts Act does not, by clear and direct statutory language, oust the jurisdiction of the provincial superior courts to deal with these common law and equitable claims, including the potential “unlawfulness” of government orders. That being the case, the Superior Court has jurisdiction to proceed. The Ontario Superior Court ((2007), 88 O.R. (3d) 173) and the Ontario Court of Appeal (2008 ONCA 892, 94 O.R. (3d) 19) so held. I agree. I would dismiss the appeal.
I. Facts
[7] The alleged faults of the Minister of Industry Canada in dealing with the application under the Radiocommunication Act, R.S.C. 1985, c. R-2 , are detailed in the amended Statement of Claim. For present purposes, we must take TeleZone’s allegations as capable of proof.
[8] TeleZone was created in 1992 with the ultimate goal of obtaining a licence to provide personal communication services (“PCS”) — essentially a cell phone network. In December 1992, as a preliminary step toward this goal, TeleZone obtained a licence to provide personal cordless telephone service. Between 1993 and 1995, TeleZone alleges that it kept Industry Canada appraised of its efforts to raise capital and acquire the necessary expertise to provide PCS services. TeleZone says that Industry Canada encouraged it to continue these efforts.
[9] In June 1995, Industry Canada issued a call for PCS licence applications (the “Call”), and released a document setting out the policy and procedural framework within which potential service providers could shape their applications (the “Policy Statement”). The Policy Statement provided that Industry Canada would grant up to six PCS licences on the basis of criteria it set out. TeleZone alleges that Industry Canada promoted a general policy in favour of awarding more rather than fewer licences to encourage competition and consumer choice. TeleZone governed itself accordingly.
[10] Article 9.1 of the Call created a three-step application process: (1) expressions of interest by potential service providers; (2) detailed applications by potential service providers; and (3) the announcement and awarding of PCS licences by Industry Canada. Articles 9.4 to 9.5.6 set out the criteria that would be used to evaluate the applications. The Call did not explicitly reserve to Industry Canada the right to consider additional factors. TeleZone alleges that Industry Canada was prohibited from considering any criteria beyond the factors set out in the Call.
[11] In September 1995, TeleZone submitted its detailed application for a PCS licence to Industry Canada, which was prepared, it says, at a cost of approximately $20 million. In December 1995, Industry Canada announced its decision regarding the PCS licence applications. There were only four successful applicants. TeleZone was not among them.
[12] The amended statement of claim pleads that it was either an express or implied term of the Policy Statement that Industry Canada would only issue fewer than six licences if fewer than six applications met the criteria (para. 12). TeleZone says that its application satisfied all the criteria in the Call. Accordingly, it says, the Minister must have considered factors other than those in the Call when it rejected TeleZone’s application (para. 17). These other factors were not disclosed to TeleZone.
[13] On the contractual branch of its case, TeleZone argues that the tendering process gave rise to a tendering contract (Contract A) which imposed an obligation on Industry Canada to act in accordance with the Call and the Policy Statement and to treat all applicants fairly and in good faith in awarding the PCS licences (R.F., at para. 133). TeleZone submits that the Crown breached “Contract A” by (1) granting fewer licences than it represented would be awarded; (2) not adhering to the requirements of the Call including the listed criteria (para. 134); and (3) failing to conform to a duty of care and a duty to act in good faith (para. 135).
[14] In its amended statement of claim, TeleZone does not seek to impugn the Minister’s decision to award the licences. TeleZone does not seek a licence for itself or to remove licences from the successful applicants; it simply seeks damages. Accordingly, TeleZone submits that whether or not the licences were validly issued to the other applicants is irrelevant because under the Call and Policy Statement, there was still room for two more PCS licences and TeleZone only takes issue with the conduct of the Crown vis-à-vis TeleZone itself (para. 136).
II. Judicial History
A. Ontario Superior Court of Justice (Morawetz J.) (2007), 88 O.R. (3d) 173
[15] On a preliminary motion to dismiss TeleZone’s action for want of jurisdiction, the Attorney General argued that TeleZone must first have the Minister’s order quashed on judicial review in the Federal Court as a condition precedent to a civil suit against the Crown. TeleZone countered that its claim is based on causes of action that are distinct from an application for judicial review. It does not seek to set aside the licences. It seeks damages for negligence, breach of contract, or unjust enrichment. Morawetz J. dismissed the objection because, in his view, it was not plain and obvious that TeleZone’s claim in the Superior Court would fail.
B. Ontario Court of Appeal (Laskin, Borins and Feldman JJ.A.), 2008 ONCA 892, 94 O.R. (3d) 19
[16] Borins J.A., writing for a unanimous court, held that s. 17 of the Federal Courts Act and s. 21 of the Crown Liability and Proceedings Act conferred concurrent jurisdiction on the superior courts and the Federal Court for claims against the Crown. The Ontario Superior Court, as a court of general and inherent jurisdiction, may entertain any cause of action in the absence of legislation or an arbitration agreement to the contrary. Section 18 of the Federal Courts Act removed from the superior courts’ jurisdiction the prerogative writs and extraordinary remedies listed (para. 94). Since the relief sought by TeleZone (damages) is not listed in s. 18 , he concluded that the Superior Court continues to have jurisdiction. The appeal was dismissed.
III. Relevant Enactments
[17] Constitution Act, 1867
101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
Federal Courts Act, R.S.C. 1985, c. F-7
2. (1) . . .
“federal board, commission or other tribunal” means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867 ;
17. (1) [Relief against the Crown] Except as otherwise provided in this Act or any other Act of Parliament, the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.
(2) [Cases] Without restricting the generality of subsection (1), the Federal Court has concurrent original jurisdiction, except as otherwise provided, in all cases in which
. . .
(b) the claim arises out of a contract entered into by or on behalf of the Crown;
. . .
(d) the claim is for damages under the Crown Liability and Proceedings Act .
(5) [Relief in favour of Crown or against officer] The Federal Court has concurrent original jurisdiction
. . .
(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown.
18. (1) [Extraordinary remedies, federal tribunals] Subject to section 28, the Federal Court 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 obtain relief against a federal board, commission or other tribunal.
. . .
(3) [Remedies to be obtained on application] The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
18.1 (1) [Application for judicial review] An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
(2) [Time limitation] An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
(3) [Powers of Federal Court] On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
18.4 (1) [Hearings in summary way] Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
(2) [Exception] The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50
3. [Liability] The Crown is liable for the damages for which, if it were a person, it would be liable
(a) in the Province of Quebec, in respect of
(i) the damage caused by the fault of a servant of the Crown, or
(ii) the damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and
(b) in any other province, in respect of
(i) a tort committed by a servant of the Crown, or
(ii) a breach of duty attaching to the ownership, occupation, possession or control of property.
8. [Saving in respect of prerogative and statutory powers] Nothing in sections 3 to 7 makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority that, if those sections had not been passed, would have been exercisable by virtue of the prerogative of the Crown, or any power or authority conferred on the Crown by any statute, and, in particular, but without restricting the generality of the foregoing, nothing in those sections makes the Crown liable in respect of anything done or omitted in the exercise of any power or authority exercisable by the Crown, whether in time of peace or of war, for the purpose of the defence of Canada or of training, or maintaining the efficiency of, the Canadian Forces.
21. (1) [Concurrent jurisdiction of provincial court] In all cases where a claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect to it, the superior court of the province in which the claim arises has concurrent jurisdiction with respect to the subject-matter of the claim.
IV. Analysis
[18] This appeal is fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity. The Court’s approach should be practical and pragmatic with that objective in mind.
[19] If a claimant seeks to set aside the order of a federal decision maker, it will have to proceed by judicial review, as the Grenier court held. However, if the claimant is content to let the order stand and instead seeks compensation for alleged losses (as here), there is no principled reason why it should be forced to detour to the Federal Court for the extra step of a judicial review application (itself sometimes a costly undertaking) when that is not the relief it seeks. Access to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours.
[20] The Attorney General argues that a detour to the Federal Court is necessary because the damages action represents a “collateral attack” prohibited by “inferences” derived from s. 18 of the Federal Courts Act . His argument, in a nutshell, is:
Simply pleading damages, or some other remedy that is not available by way of judicial review in the Federal Court, should not be accepted as a means to bypass the intention of Parliament that review of federal administrative decisions must take place in the Federal Court.
(A.G. Factum,[1] at para. 4)
[21] The Attorney General accepts that judicial review is not required “for all proceedings that in any manner involve a decision or conduct of a federal board, commission or tribunal” (para. 29). However, the detour is required for claims that engage, directly or indirectly, the “validity and unlawfulness” of such decisions (para. 2). “Lawfulness” is a broad term. The Attorney General uses “invalid” and “unlawful” conjunctively (e.g., at para. 49). He seems to use the term “unlawful” to cover virtually any government order that could lay the basis for a finding of fault in the private law sense although he excludes such bureaucratic actions as providing erroneous information, performing a “physical task or activity” negligently, or breaching a duty to warn (Factum, at para. 50).
[22] The Attorney General’s concern is that permitting different damages claims to proceed in different provinces before a variety of superior court judges arising out of the same or related federal government decisions would re-introduce the spectre of inconsistency and uncertainty across Canada which the enactment of the Federal Courts Act was designed to alleviate. However, this concern must have been considered by Parliament when it granted concurrent jurisdiction in all cases in which relief is claimed against the federal Crown to the superior courts. Undoubtedly, the juxtaposition of ss. 17 and 18 of the Federal Courts Act creates a certain amount of subject matter overlap with respect to holding the federal government to account for its decision making. This degree of overlap is inherent in the legislative scheme designed to provide claimants with “convenience” and “a choice of forum” in the provincial courts (see statement of the Minister of Justice in Parliament, House of Commons Debates, 2nd Sess., 34th Parl., November 1, 1989, at p. 5414, reproduced below, at para. 58).
[23] I do not interpret Parliament’s intent, as expressed in the text, context and purposes of the Federal Courts Act , to require an awkward and duplicative two-court procedure with respect to all damages claims that directly or indirectly challenge the validity or lawfulness of federal decisions. Such an outcome would have to be compelled by clear and explicit statutory language. Neither the Federal Courts Act nor the Crown Liability and Proceedings Act do so, in my opinion. With respect, not only is such language absent, but the reasonable inferences from both statutes, especially the concurrent jurisdiction in all cases where relief is claimed against the Crown granted to the provincial superior courts, leads to the opposite conclusion.
A. The Nature of Judicial Review
[24] The Attorney General correctly points to “the substantive differences between public law and private law principles” (Factum, at para. 6). Judicial review is directed at the legality, reasonableness, and fairness of the procedures employed and actions taken by government decision makers. It is designed to enforce the rule of law and adherence to the Constitution. Its overall objective is good governance. These public purposes are fundamentally different from those underlying contract and tort cases or causes of action under the Civil Code of Québec, R.S.Q., c. C-1991, and their adjunct remedies, which are primarily designed to right private wrongs with compensation or other relief.
[25] Not all invalid government decisions result in financial losses to private persons or entities. Not all financial losses that do occur will lay the basis for a private cause of action. Subordinate legislative and adjudicative functions do not in general attract potential government liability for damages. For practical purposes, the real concern here is with executive decisions by Ministers and civil servants causing losses that may or may not be excused by statutory authority.
[26] The focus of judicial review is to quash invalid government decisions — or require government to act or prohibit it from acting — by a speedy process. A bookstore, for example, will have a greater interest in getting its foreign books through Canada Customs — despite ill-founded allegations of obscenity — than in collecting compensation for the trifling profit lost on each book denied entry (Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38). Thus s. 18.1 of the Federal Courts Act establishes a summary procedure with a 30-day time limit. There is no pre-hearing discovery, apart from what can be learned through affidavits and cross-examination. The applications judge hears no viva voce evidence. Damages are not available. Judicial review suits the litigant who wishes to strike quickly and directly at the action (or inaction) it complains about. A damages claimant, on the other hand, will often be unaware of the nature or extent of its losses in a 30-day time frame, and may need pre-trial discovery to either make its case or find out it has none.
[27] The question must therefore be asked: What is the practical benefit to a litigant who wants compensation rather than a reversal of a government decision to undergo the Grenier two-court procedure? TeleZone, for example, would acquire no practical benefit from a judicial review application. Its primary complaint is for damages arising from the breach of an alleged tendering contract. It no longer seeks the benefit of the contract (or the PCS licence). It seeks compensation for substantial costs thrown away and lost profits. The Crown does not argue that the tendering contract (if it was made) was ultra vires, or that the alleged breach (if it occurred) was mandated by statutory authority. The argument, instead, is that TeleZone’s claim constitutes a collateral attack on the ministerial order under the Radiocommunication Act that failed to award it a PCS licence. But in TeleZone’s circumstances, judicial review of the Minister’s decision would not address the claimed harm and would seem to offer little except added cost and delay.
[28] Negligence is also alleged by TeleZone. Tort liability, of course, is based on fault, not invalidity. As the Court made clear many years ago in The Queen in Right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, at