Martineau v. Matsqui Disciplinary Bd.

Martineau v. Matsqui Disciplinary Bd.
Collection
Supreme Court Judgments
Date
1979-12-13
Report
[1980] 1 SCR 602
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves; McIntyre, William Rogers
On appeal from
Federal Court of Appeal
Subjects
Courts
Decision Content
SUPREME COURT OF CANADA
Martineau v. Matsqui Disciplinary Bd., [1980] 1 S.C.R. 602
Date: 1979-12-13
Robert Thomas Martineau Appellant; and
Matsqui Institution Disciplinary Board
Respondent.
1979: May 3; 1979: December 13.
Present: Laskin C.J. and Martland, Ritchie, Pigeon, Dickson, Beetz, Estey, Pratte and McIntyre JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Jurisdiction — Certiorari — Disciplinary offence — Penitentiary disciplinary board —Inmate committed to special corrections unit — Jurisdiction of Trial Divi­sion of Federal Court of Canada — Judicial discretion — Duty to act fairly — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Penitentiary Act, R.S.C. 1970, c. P-6, s. 29 — Penitentiary Service Regulations and Directives.
For a disciplinary offence dealt with as "flagrant or serious", the appellant, an inmate of a federal peniten­tiary, was sentenced by the respondent Board to 15 days in the penitentiary's special corrections unit. He made application to the Federal Court for certiorari in the Trial Division and for judicial review under s. 28 of the Federal Court Act before the Court of Appeal. This application was dealt with first while the other was kept pending. It was dismissed by the Federal Court of Appeal and this dismissal was affirmed by a majority in this Court ([1978] 1 S.C.R. 118).
After the disposition of the application under s. 28 to review and set aside the respondent's order, proceedings were resumed on the application under s. 18 for certio­rari in the Trial Division. The parties appeared before Mahoney J. who issued an order that the Court had jurisdiction ([1978] 1 F.C. 312). He concluded that the respondent Board had a duty to act fairly in arriving at its decision to impose a punishment and that the Trial Division had jurisdiction to quash such an order by way of writ of certiorari if it was of the view that the tribunal had not acted fairly. However, dealing only with a preliminary point of law relating to jurisdiction, he did not have to decide whether, on the facts of the case, the respondent had acted in an unfair manner. The Federal Court of Appeal, in allowing the Board's appeal, proceeded on the basis that this Court had decided in the matter of the s. 28 application that the Federal Court of Appeal had no jurisdiction to set aside the order attacked on the ground that the "convictions" were administrative decisions that were "not required by law to be made on a judicial or quasi-judicial basis" within the meaning of those words in s. 28. The Court of Appeal was of the view that it followed from that decision that "the 'convictions' in question cannot be attacked under s. 18 of the Federal Court Act by a writ of certiorari or proceedings for relief in the nature of that contemplated by such a writ." From this decision the appellant appealed to this Court.
Held: The appeal should be allowed.
Per Martland, Ritchie, Pigeon, Beetz, Estey and Pratte JJ.: The reason for which the Federal Court of Appeal reversed the judgment of the Trial Division was that it did not accept that the common law remedy of certiorari may be available in the case of violation of the duty to act fairly in an administrative decision "not required by law to be made on a judicial or quasi-judi­cial basis". It said in a foot-note: " ... Any decision that is not judicial but is 'sufficiently near a judicial decision to be the subject of a writ of certiorari' is, in our view, a decision that is required to be made on a 'quasi-judicial basis' within the meaning of those words in section 28." This view could not be accepted.
In disciplinary offence proceedings respecting a prison inmate, the requirements of judicial procedure are not to be brought in and, consequently, these are not decisions which may be reviewed by the Federal Court of Appeal under s. 28 of the Federal Court Act, a remedy which is in the nature of a right of appeal. However, this does not mean that the duty of fairness may not be enforced by the Trial Division through the exercise of the discretion­ary remedies mentioned in s. 18 of the Federal Court Act.
The order issued by Mahoney J. dealt only with the jurisdiction of the Trial Division, not with the actual availability of the relief in the circumstances of the case. This is subject to the exercise of judicial discretion and in this respect it will be essential that the requirements of prison discipline be borne in mind, just as it is essential that the requirements of the effective adminis­tration of criminal justice be borne in mind when deal­ing with applications for certiorari before trial. It is specially important that the remedy be granted only in cases of serious injustice and that proper care be taken to prevent such proceedings from being used to delay deserved punishment so long that it is made ineffective, if not altogether avoided.
Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311; R. v. Board of Visitors of Hull Prison, Ex p. St. Germain, [1979] 1 All E.R. 701; Fraser v. Mudge, [1975] 1 W.L.R. 1132, applied; Bates v. Lord Hailsham, [1972] 3 All E.R. 1019; Attorney General of Quebec v. Cohen, [1979] 2 S.C.R. 305, referred to.
Per Laskin C.J. and Dickson and McIntyre JJ.: This appeal raised in general terms the question of the super­visory role of the Federal Court, Trial Division, over disciplinary boards within Canadian penitentiaries. It also called for consideration of three related issues of importance in Canadian administrative law: l. The review jurisdiction of the Trial Division and Court of Appeal under, respectively, ss. 18 and 28 of the Federal Court Act. 2. The duty to act fairly—the English "fair­ness doctrine". 3. The potential breadth of the common law remedy of certiorari in Canada.
For the purposes of the Federal Court Act, a distinc­tion has been drawn in administrative law between the duty to act judicially and the duty to act fairly. Though a duty to act fairly may not be relevant to the question of jurisdiction under s. 28, s. 18 vests in the Trial Division of the Federal Court the jurisdiction to grant the common law remedy of certiorari and that remedy avails at common law wherever a public body has the power to decide any matter affecting the rights, inter­ests, property, privileges or liberties of any person. The basis for the broad reach of the remedy is the general duty of fairness resting on all public decision-makers.
Although the courts will not readily interfere in the exercise of disciplinary powers, whether within the armed services, the police force or the penitentiary, there is no rule of law which necessarily exempts the exercise of such disciplinary powers from review by certiorari.
With respect to these several issues, the authorities support the conclusions set out at pp. 628-631 of the reasons for judgment.
Howarth v. National Parole Board, [1976] 1 S.C.R. 453; Nicholson v. Haldimand-Norfolk Regional Police Commissioners, supra; Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470; Roper v. Executive of Medical Board of Royal Victoria Hospital, [1975] 2 S.C.R. 62; R. v. Board of Visitors of Hull Prison, Ex p. St. Germain, supra; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; R. v. Local Government Board (1882), 10 Q.B.D. 309; The Case of Cardiffe Bridge, 1 Salk 146; Groenwelt v. Burwell (1700), 1 Ld. Raym. 467; R. v. Criminal Injuries Compensation Board, Ex p. Lain, [1967] 2 Q.B. 864; Re Liverpool Taxi Owners' Associa­tion, [1972] 2 All E.R. 589; Ridge v. Baldwin, [1964] AC. 40; R. v. Electricity Commissioners, Ex p. London Electricity Joint Committee Co. (1920), Ltd., [1924] I K.B. 171; Schmidt v. Secretary of State for Home Affairs, [1969] 2 Ch. 149; Nakkuda Ali v. Jayaratne, [1951] A.C. 66; R. v. London Borough of Hillingdon, Ex p. Royco Homes Ltd., [1974] 2 All E.R. 643; R. v. Barnsely Metropolitan Borough Council, Ex p. Hook, [1976] 3 All E.R. 452; In re H.K. (an infant), [1967] 2 Q.B. 617; Furnell v. Whangarei High Schools Board, [1973] A.C. 660; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12; R. v. Army Council, Ex p. Ravenscroft, [1917] 2 K.B. 504; Dawkins v. Lord Rokeby, L.R. 8 Q.B. 255; Re Armstrong and Whitehead, [197312 O.R. 495; Fraser v. Mudge, [1975] 3 All E.R. 78; Daemar v. Hall, [1978] 2 N.Z.L.R. 594; The Queen and Archer v. White, [1956] S.C.R. 154; R. v. Institutional Head of Beaver Creek Correctional Camp, Ex p. McCaud, [1969] 1 C.C.C. 371; Wolff v. McDon­nell, 418 U.S. 539 (1974); Russell v. Duke of Norfolk, [1949] 1 All E.R. 109, referred to.
APPEAL from a judgment of the Federal Court of Appeal[1] allowing the respondent Board's appeal from a judgment of Mahoney J. on an application by the appellant for a writ of certiorari under s. 18 of the Federal Court Act. Appeal allowed.
B. A. Crane, Q.C., and John Conroy, for the appellant.
T. B. Smith, Q.C., and Henry Mollot, for the respondent.
The reasons of the Chief Justice and Dickson and McIntyre JJ. were delivered by
DICKSON J.—The applicant, an inmate of a federal penitentiary in British Columbia known as Matsqui Institution, seeks an order in the nature of a writ of certiorari removing into the Trial Division of the Federal Court of Canada, for the purpose of quashing, a conviction by the Inmate Disciplinary Board of the penitentiary.
I
The appeal raises in general terms the question of the supervisory role, if any, of the Federal Court, Trial Division, in respect of disciplinary boards within Canadian penitentiaries. It also calls for consideration of three related issues of impor­tance in Canadian administrative law.
First, it compels resolution of the continuing debate concerning the review jurisdiction of the Trial Division and Court of Appeal under, respec­tively, ss. 18 and 28 of the Federal Court Act, an issue left open by this Court in earlier judgments. If the Court of Appeal lacks jurisdiction under s. 28 to entertain an application to review and set aside, then the question which must be asked, and to which this case must give the answer, is whether the impugned decision or order can be challenged by application for certiorari under s. 18 of the Act.
Second, the case calls for closer analysis of the duty to act fairly—the English "fairness doc­trine"—than has hitherto been necessary.
Third, the appeal raises the question of the potential breadth of the common law remedy of certiorari in Canada.
Helpful comment upon these several issues thus raised will be found in a number of scholarly articles. See, for example: Mullan, (1973) 23 U.T.L.J. 14; (1975) 25 U.T.L.J. 281; (L.R.C.C. 1977): Fera, (1977) 23 McGill L.J. 497; (1979) 11 Ott. L. Rev. 78: Price, (1977) 3 Queens L.J. 214: Janisch, (1977) 55 Can. Bar. Rev. 576: Evans, (1973) 36 Mod. L. Rev. 93; (1977) 23 McGill L.J. 132: Northey, (1974) N.Z.L.J. 133; (1974-5) 6 N.Z. Univ. L. Rev. 59: Taylor, (1972-3) 5 N.Z. Univ. L. Rev. 373; (1974-6) 1 Monash Univ. L. Rev. 258: Loughlin, (1978) 28 U.T.L.J. 215: Sykes and Tracey, (1975-6) 10 Melbourne Univ. L. Rev. 564. II
At the outset, it will be recalled that s. 18 provides that the Trial Division has exclusive origi­nal jurisdiction 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. Section 28(1) provides:
28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, com­mission or other tribunal, upon the ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Section 28(3) goes on to say:
28. (3) Where the Court of Appeal has jurisdiction under this section to hear and determine an application to review and set aside a decision or order, the Trial Division has no jurisdiction to entertain any proceeding in respect of that decision or order.
It has been argued that s. 18 purports to transfer jurisdiction from provincial courts to the Trial Division of the Federal Court and clothes the latter with exclusive jurisdiction to grant relief by way of certiorari against federal boards, commis­sions or other tribunals, but that s. 28 removes that jurisdiction from the Trial Division in respect of certiorari, despite the express words of s. 18. In other words, the terms of s. 28 completely exclude what s. 18 apparently granted. If that view be correct, and s. 18 is indeed sterile and without independent life, then a narrow reading of s. 28 will virtually deny Canadians recourse against fed­eral tribunals. It is not disputed that the Inmate Disciplinary Board of Matsqui Institution is a federal board, commission or other tribunal.
III
It is important to emphasize that the point, and the only point, in this appeal is as to jurisdiction. We are not concerned at this time with whether Martineau has a valid complaint. The only ques­tion before us is whether he has the right to have that complaint considered in the Trial Division of the Federal Court.
A detailed recital of the facts set out in the affidavits is unnecessary. Martineau and one But­ters, both inmates at Matsqui Institution, were charged with having committed two offences, (i) two inmates in a cell, and (ii) committing an indecent act (homosexual). The offences were categorized as "flagrant or serious", and thus were referred to a staff disciplinary board (assistant director of security, a security guard, and a living unit officer) for a hearing of the charges.
Martineau pleaded guilty to the first charge. On the second charge he was found guilty of the lesser offence of being in an indecent position and was sentenced to the special corrections unit (punitive isolation) for fifteen days on a restricted diet and loss of privileges. He challenged the conviction, relying upon Directive No. 213 of the Commis­sioner of Penitentiaries (issued pursuant to ss. 29(3) of the Penitentiary Act, R.S.C. 1970, c. P-6 and ss. 2.28, 2.29, 2.30 and 2.31 of the Penitentia­ry Service Regulations). Section 13(c) of the Directive provides that no finding shall be made against an inmate for a serious or flagrant offence unless (i) he has received written notice of the charge and a summary of the evidence alleged against him at least 24 hours before the hearing, (ii) he has appeared personally at the hearing so that the evidence against him is given in his pres­ence, and (iii) he has been given an opportunity to make full answer and defence to the charge. Martineau alleges a number of departures from these procedural safeguards. He says that neither he, nor anyone representing him, was permitted to be present when the disciplinary board heard evidence from the person alleged to have participated with him in the offence of which he was convicted. In essence his claim is grounded upon a breach of procedural fairness on the part of the disciplinary board.
So far as I have been able to determine, there is no provision for appeal to a higher authority by an inmate who feels aggrieved by a conviction or sentence of the disciplinary board.
IV
Faced with the difficult and uncertain language of ss. 18 and 28 of the Federal Court Act, Mar­tineau launched proceedings in both the Federal Court of Appeal and in the Trial Division of that Court. The Federal Court of Appeal before whom the matter first came on a s. 28 application, by a majority, dismissed the application for lack of jurisdiction ([1976] 2 F.C. 198). This Court, by a majority, dismissed the further appeal: Martineau and Butters v. The Matsqui Institution Inmate Disciplinary Board[2] (hereinafter referred to as Martineau (No. 1)). The Court held that the impugned order. was not within the scope of the opening words of s. 28 of the Federal Court Act and that the Directive of the Commissioner of Penitentiaries was not "law" within the meaning of the phrase "by law" in s. 28.
Unsuccessful in his challenge by way of the Federal Court of Appeal, Martineau resumed the proceedings, temporarily held in abeyance, which. he had commenced in the Trial Division of the Federal Court. Mr. Justice Mahoney of the Trial Division, by agreement, heard an application by Martineau under Federal Court Rule 474 for pre­liminary determination of a question of law: namely, whether or not the Federal Court, Trial Division, had jurisdiction in the circumstances. His conclusion ([1978] 1 F.C. 312, at 318-9):
I take it that in Canada, in 1975, a public body, such as the respondent, authorized by law to impose a punishment, that was more than a mere denial of privileges, had a duty to act fairly in arriving at its decision to impose the punishment. Any other conclusion would be repugnant. The circumstances disclosed in this applica­tion would appear to be appropriate to the remedy sought. I am not, of course, deciding whether the remedy should be granted but merely whether it could be granted by the Federal Court of Canada, Trial Division. In my view it could.
In Magrath v. The Queen[3], Collier J. of the Federal Court, Trial Division, agreed with the observations and conclusions of Mahoney J. in the Martineau case.
Shortly thereafter, however, Chief Justice Jack­ett gave judgment for a unanimous Federal Court of Appeal ([1978] 2 F.C. 637) allowing an appeal from the judgment of Mahoney J. in the Trial Division. The reasons of the Court are brief but amplified in footnotes and in an Appendix. This Court is taken to have decided in Martineau (No. 1) that the Appeal Division of the Federal Court lacked jurisdiction because "the 'convictions' were administrative decisions that were 'not required by law to be made on a judicial or quasi-judicial basis". It followed, in the view of the Federal Court of Appeal, that the "convictions" could not be attacked under s. 18 of the Federal Court Act by a writ of certiorari. The Court recognized that the ambit of certiorari has expanded from the time it was a writ whose sole function was to enable a superior court of law to review decisions of inferior courts of law. In the view of the Court, however, the writ continues to have application only where the decision attacked is either judicial in character, or is required by law to be made on a judicial or quasi-judicial basis. The conclusion of the Court is expressed in these words:
When we read ss. 18 and 28 of the Federal Court Act, we cannot escape the conclusion that the words "quasi-judicial basis" were intended to include every method of reaching a decision or order that would support an application by way of certiorari other than a purely "judicial ... basis". (p. 640)
The Appendix to the judgment reveals the basis for the Court's reading of Martineau (No. 1). If "quasi-judicial" in s. 28 is regarded as delimiting the range of decisions to which the "fairness" doctrine may apply, then should jurisdiction be lacking under s. 28, a remedy of certiorari grounded upon the fairness doctrine cannot avail an applicant under s. 18. With great respect, in my view, this Court's decisions in Howarth v. National Parole Board[4], and Martineau (No. l), and the Court's recent judgment in Nicholson v. Haldi­mand-Norfolk Regional Board of Commissioners of Police[5] (which post-dates the judgment of the Federal Court of Appeal in these proceedings) indicate a different approach. Particularly, the judgment in Nicholson betokens a significant de­velopment in our administrative law in its adoption of the English case authorities on the fairness doctrine.
V
Howarth brought to the fore a difference in perception of the relationship between ss. 18 and 28 of the Federal Court Act. The minority indicat­ed a desire to read the new s. 28 application to review and set aside as a remedy at least as broad as, if not broader than, certiorari, primarily by means of an expansive view of "decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis". The majority view, however, began with the premise that "s. 28 of the Federal Court Act operates as an exception to the general provision of s. 18, whereby supervisory jurisdiction over federal boards is wholly transferred from the superior courts of the provinces to the Trial Division of the Federal Court ...". Accordingly, "the new remedy created by s. 28 is restricted in its application to judicial decisions or to administrative orders required by law to be made on a judicial or quasi-judicial basis". Because of their importance in the resolution of the present appeal, I must quote in extenso from the judgment of Mr. Justice Pigeon, speaking for a majority of the Court in Howarth:
It will be seen that while supervisory jurisdiction over federal boards is conferred generally upon the Trial Division without any restriction as to the nature of the decision under consideration, the new remedy created by s. 28 is restricted to its application to judicial decisions or to administrative orders required by law to be made on a judicial or quasi-judicial basis. It is only in respect of such decisions or orders that the new remedy equivalent to an appeal is made available. Thus, the clear effect of the combination of ss. 18 and 28 is that a distinction is made between two classes of orders of federal boards. Those that, for brevity, I will call judi­cial or quasi-judicial decisions are subject to s. 28 and the Federal Court of Appeal has wide powers of review over them. The other class of decisions comprises those of an administrative nature not required by law to be made on a judicial or quasi-judicial basis. With respect to that second class, the new remedy of s. 28, the kind of appeal to the Appeal Division, is not available, but all the other remedies, all the common law remedies, remain unchanged by the Federal Court Act. The only difference is that the jurisdiction is no longer exercisable by the superior courts of the provinces, but only by the Trial Division of the Federal Court. The very fact that such a distinction is made shows that the s. 28 applica­tion is not intended to be available against all adminis­trative board decisions.
The reason I am stressing this point is that in argu­ment, Counsel for the appellant relied mainly on cases dealing with the duty of fairness lying upon all adminis­trative agencies, in the context of various common law remedies. These are, in my view, completely irrelevant in the present case because a s. 28 application is an excep­tion to s. 18 and leaves intact all the common law remedies in the cases in which it is without application. The Federal Court of Appeal did not consider, in quash­ing the application, whether the Parole Board order could be questioned in proceedings before the Trial Division. (pp. 471-2)
Thus Howarth distinguishes between s. 18 and s. 28 review jurisdiction in the Federal Court, the new remedy under s. 28 not being exhaustive of Federal Court jurisdiction to review federal gov­ernment action. The consequence, as Mr. Justice Pigeon puts it, is that under the Federal Court Act "a distinction is made between two classes of orders of federal boards".
Further, a distinction is clearly drawn between the duty to act judicially and the duty to act fairly. Pigeon J. rejects the argument that a duty to act fairly is relevant to the question of jurisdiction under s. 28, but the relevance of such an argument in the context of s. 18 is expressly left open.
The duty to act fairly was alluded to by Mr. Justice Spence, speaking on behalf of the full Court in Minister of Manpower and Immigration v. Hardayal[6], at p. 479. He said: "It is true that in exercising what, in my view, is an administrative power, the Minister is required to act fairly and for a proper motive and his failure to do so might well give rise to a right of the person affected to take proceedings under s. 18 (a) of the Federal Court Act ...". See also Roper v. Executive of Medical Board of Royal Victoria Hospital[7], at p. 67.
Martineau (No. 1) was wholly unconcerned with the issue of "fairness". The central issue there was whether the decision of the disciplinary board was within the scope of s. 28 as being "required by law to be made on a judicial or quasi-judicial basis".
Mr. Justice Pigeon, again speaking for a majori­ty of the Court, considered the question whether the directive of the Commissioner was to be regarded as "law" within the wording of s. 28 and concluded that, while Regulations under the Peni­tentiary Act were law, the same could not be said of the directives ... "It is not in any legislative capacity that the Commissioner is authorized to issue directives but in his administrative capacity." In the case of an inmate disciplinary board, the directive of the Commissioner lacks statutory force and, by implication then, Parliament did not intend the directive to have status as a procedural code defining rules of natural justice exhaustively for the board. Accordingly, the decision in ques­tion was not one required by law to be made on a judicial or quasi-judicial basis, and the applicant had not brought himself within the precise lan­guage of s. 28. That does not, however, determine the relevant question of a certiorari application under s. 18, where the inquiry is whether the public body may have a duty to act fairly in the broader, non-technical manner suggested in R. v. Board of Visitors of Hull Prison, Ex p. St. Germain[8].
The reasoning of the Court in Martineau (No. 1) is instructive on this point. Mr. Justice Pigeon, while denying that the directive was a "procedural code", also rejected the suggestion that mere fair­ness in its "good faith" sense, as employed by the Federal Court of Appeal fulfils the obligation of the board:
With respect, I find it difficult to agree with the view that Directive No. 213 merely requires that a discipli­nary decision such as the impugned order be made fairly and justly. (p. 127)
Implicitly, then, the majority in Martineau (No. 1) accepted a measure of procedural content in a duty of fairness resting upon the board—some­thing more than the absolute minimum of "good faith", but something less than strict application of the procedure set forth in the directive.
The Matsqui Institution Disciplinary Board, respondent in this appeal, has cited the following passage from the judgment of this Court in Minister of National Revenue v. Coopers and Lybrand[9], in support of the contention that non-reviewability under s. 28 forecloses review by writ of certiorari under s. 18: Accordingly, administrative decisions must be divided between those which are reviewable, by certiorari or by s. 28 application or otherwise, and those which are non-reviewable. The former are conveniently labelled "decisions or orders of an administrative nature required by law to be made on a judicial or quasi-judicial basis", the latter "decisions or orders not required by law to be made on a judicial or quasi-judicial basis." It is not only the decision to which attention must be directed, but also the process by which the decision is reached. (p. 501)
The issues to which Coopers and Lybrand was directed relate to the classification of decisions eligible for review under s. 28 of the Federal Court Act, the very classification process with which the Court was concerned in Howarth and Martineau (No. 1). This is implicitly recognized by mention of both cases in Coopers and Lybrand. If anything pertinent to the present discussion is suggested by the latter judgment, it is that "administrative deci­sion does not lend itself to rigid classification of functions". As such, it has no direct application to the new and broader territory, unhindered by exi­gencies of classification, that is now opened by evolution of the common law doctrine of fairness enforced by the common law remedies, including certiorari.
Restrictive reading of s. 28 of the Federal Court Act need not, of necessity, lead to a reduction in the ambit for judicial review of federal government action. Section 18 is available. Section 28 has caused difficulties, not only because of the lan­guage in which it is cast but, equally, because it tended to crystallize the law of judicial review at a time when significant changes were occurring in other countries with respect to the scope and grounds for review. Sections 18 and 28 of the Federal Court Act were obviously intended to concentrate judicial review of federal tribunals in a single federal court. As I read the Act, Parliament envisaged an extended scope for review. I am therefore averse to giving the Act a reading which would defeat that intention and posit a diminished scope for relief from the actions of federal tri­bunals. I simply cannot accept the view that Par­liament intended to remove the old common law remedies, including certiorari, from the provincial superior courts, and vest them in the Trial Division of the Federal Court, only to have those remedies rendered barren through the interaction of ss. 18 and 28 of the Act. I would apply the principle laid down by Brett L.J. in Reg. v. Local Government Board[10], at p. 321, that the jurisdiction of a court ought to be exercised widely when dealing with matters perhaps not strictly judicial, but in which the rights or interests of citizens are affected.
VI
The dominant characteristic of recent develop­ments in English administrative law has been expansion of judicial review jurisdiction to supervise administrative action by public authorities. Certiorari evolved as a flexible remedy, affording access to judicial supervision in new and changing situations. In 1700, Chief Justice Holt could say, in The Case of Cardiffe Bridge[11], "wherever any new jurisdiction is erected, be it by private or public Act of Parliament, they are subject to the inspections of this Court by writ of error, or by certiorari and mandamus". And in Groenwelt v. Burwell[12] Holt C.J. held again, in the context of the censors of the College of Physicians of London, that "it is plain that the censors have judicial power ... where a man has power to inflict impris­onment upon another for punishment of his offence, there he hath judicial authority ... for it is a consequence of all jurisdictions to have their proceedings returned here by certiorari to be examined here ... . Where any Court is erected by statute, a certiorari lies to it." Nor has percep­tion of certiorari an as adaptable remedy been in any way modified. The amplitude of the writ has been affirmed time and again. See, for example, the judgment of Lord Parker L.J. in R. v. Crimi­nal Injuries Compensation Board, Ex p. Lain[13], at p. 882. The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet chang­ing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty.
Roskill L.J. in Re Liverpool Taxi Owners' Association[14], at p. 596, expressed the thought in these words:
The long legal history of the former prerogative writs and of their modern counterparts, the orders of prohibi­tion, mandamus and certiorari shows that their applica­tion has always been flexible as the need for their use in differing social conditions down the centuries had changed. (p. 596)
The principles of natural justice and fairness have matured in recent years. And the writ of certiorari, in like measure, has developed apace. The speeches in Ridge v. Baldwin[15] show the evolutionary state of administrative law.
VII
Does certiorari lie to the Inmate Disciplinary Board? The usual starting point in a discussion of this nature is the "Electricity Commissioners" for­mula, found at p. 205 of R. v. Electricity Commis­sionners, Ex p. London Electricity Joint Committee Company (1920), Limited[16], where Atkin L.J. had this to say
Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. Difficulty has arisen from the statement of Atkin L.J., in part from the fact that his words have been treated as if they had been engraven in stone, and in part because it is not clear what Atkin L.J. meant. How far, if at all, did he mean to limit the use of orders for certiorari and prohibition by the phrase "and having the duty to act judicially"? What did he mean by "judicially" in the context? It will be recalled that in the Electricity Commis­sioner case itself certiorari and prohibition issued to a group of administrators who were acting far more as part of the legislative than of the judicial process.
"Rights of Subjects"
The term "rights of subjects" has given concern, often being treated by courts as the sine qua non of jurisdiction to permit review. There has been an unfortunate tendency to treat "rights" in the narrow sense of rights to which correlative legal duties attach. In this sense, "rights" are frequently contrasted with "privileges", in the mistaken belief that only the former can ground judicial review of the decision-maker's actions. Lain is invaluable on this branch of Lord Atkin's test.
There the absence of any legal right on the part of the claimants to ex gratia payments from the criminal injuries compensation board would seem to pose an insuperable obstacle, but Ashworth J. disposed of this impediment without trouble and in broadest language:
For my part, I doubt whether Atkin L.J. was propound­ing an all-embracing definition of the circumstances in which relief by way of certiorari would lie. In my judgment the words in question read in the context of what precedes and follows them, would be of no less value if they were altered by omitting "the rights of" so as to become "affecting subjects". (p. 892)
Lord Denning aptly summarized the state of the law on this aspect in Schmidt v. Secretary of State for Home Affairs[17]. There, the Master of the Rolls stated: The speeches in Ridge v. Baldwin ... show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say. (p. 170)
Professor Wade, in his book on Administrative Law (4th ed. 1977), has captured the relevance of this requirement of the test in this passage:
This requirement is really correlative to the idea of legal power, the exercise of which necessarily affects some person's legal rights, status or situation. The pri­mary object of certiorari and prohibition is to make the machinery of government operate properly in the public interest, rather than to prevent private rights ... The requirement of a decision 'affecting rights' is not therefore a limiting factor; it is rather an automatic conse­quence of the fact that power is being exercised. (pp. 541-2)
When concerned with individual cases and aggrieved persons, there is the tendency to forget that one is dealing with public law remedies, which, when granted by the courts, not only set aright individual injustice, but also ensure that public bodies exercising powers affecting citizens heed the jurisdiction granted them. Certiorari stems from the assumption by the courts of super­visory powers over certain tribunals in order to assure the proper functioning of the machinery of government. To give a narrow or technical inter­pretation to "rights" in an individual sense is to misconceive the broader purpose of judicial review of administrative action. One should, I suggest, begin with the premise that any public body exer­cising power over subjects may be amenable to judicial supervision, the individual interest involved being but one factor to be considered in resolving the broad policy question of the nature of review appropriate for the particular administra­tive body.
"Duty to Act Judicially"
Prior to the decision in Ridge v. Baldwin, it was generally accepted that certiorari would only be granted when the nature of the process by which the decision was arrived at was a judicial process or a process analogous to the judicial process: Nakkuda All v. Jayaratne[18]. This notion of a "super-added duty to act judicially", as a separate and independent pre-condition to the availability of natural justice, and inferentially, to recourse to certiorari, was unequivocally rejected by Lord Reid in Ridge:
If Lord Hewart meant that it is never enough that a body simply has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities. (p. 75)
In the Electricity Commissioners case itself, Lord Reid observed, the judicial element was inferred from the nature of the power.
Perhaps the best expression of the significance of the decision in Ridge v. Baldwin is found in the reasons of Lord Widgery C.J. in R. v. London Borough of Hillingdon, Ex p. Royco Homes Ltd.[19], wherein he considered the availability of certiorari to review the grant of a planning permis­sion by a local authority:
Accordingly it may be that previous efforts to use certiorari in this field have been deterred by Atkin L.J.'s reference to its being necessary for the body affected to have the duty to act judicially. If that is so, that reason for reticence on the part of applicants was, I think, put an end to in the House of Lords in Ridge v. Baldwin .. . in the course of his speech Lord Reid made reference to that oft quoted dictum of Atkin L.J. and pointed out that the additional requirement of the body being under a duty to act judicially was not supported by authority. Accordingly, it seems to me now that that obstacle, if obstacle it was, has been cleared away and I can see no reason for this court holding otherwise than that there is power in appropriate cases for the use of the prerogative orders to control the activity of a local planning authority.
A flexible attitude toward the potential applica­tion of certiorari was furthered in another recent English case, this one in the Court of Appeal, in R. v. Barnsely Metropolitan Borough Council, Ex p. Hook[20]. In a habeas corpus case, In re H.K. (an infant)[21], Lord Parker was of the opinion that the immigration officers who refused to admit a boy into the United Kingdom were