- An Application to the Federal Court of Appeal to Review and Set Aside the Decision or Order of a Federal Board, Commission or other Tribunal

    As previously stated, the jurisdiction of the Court of Appeal under this section has been the subject of some controversy. The key words giving rise to the various problems are "other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis". In other words, the Court of Appeal has jurisdiction if the decision or order in question is "required by law to be made on a judicial or quasi-judicial basis". The decisions of the Supreme Court of Canada in Martineau (No. 1) and in Martineau (No.2) clearly establish that this remedy is not available to review or set aside the decision of an Inmate Disciplinary Board, where the rules of procedure before the Board are set down in Commissioner's Directives which the courts have held do not have the force of "law". The decision of the Disciplinary Board was therefore characterized as a decision or order "not required by law to be made on a judicial or quasi-judicial basis". The judgments in both Martineau cases appear to suggest that the meaning of "required by law" contemplates a requirement imposed by "black letter law", such as a statute or regulation and that a legal requirement imposed by implication of common law or otherwise will not suffice. Bearing that prescription in mind, further criteria for determining the jurisdiction of the Court of Appeal under this section were enunciated by Dickson, J in Minister of National Revenue v Coopers and Lybrand where he said as follows:

    It is possible, I think to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.

(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?

(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?

(3) Is the adversary process involved?

(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?

    These are all factors to be weighed and evaluated, no one of which is necessarily determinative. Thus, as to (1), the absence of express language mandating a hearing does not necessarily preclude a duty to afford a hearing at common law. As to (2), the nature and severity of the manner, if any, in which individual rights are affected, and whether or not the decision or order is final, will be important, but the fact that rights are affected does not necessarily carry with it an obligation to act judicially. In Howarth v National Parole Board, a majority of this Court rejected the notion of a right to natural justice in a parole suspension and revocation situation. See also Martineau and Butters v Matsqui Institution Disciplinary Board.

    In more general terms, one must have regard to the subject-matter of the power, the nature of the issue to be decided, and the importance of the determination upon those directly or indirectly affected thereby: see Durayappah v Fernando. The more important the issue and the more serious the sanctions, the stronger the claim that the power be subject in its exercise to judicial or quasi-judicial process.

    The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating those of a Court add weight to (3). But, again, the absence of procedural rules analogous to those of Courts will not be fatal to the presence of a duty to act judicially.

    Administrative decision does not lend itself to rigid classification of function. Instead, one finds realistically a continuum. As paradigms, at one end of the spectrum are rent tribunals, labour boards and the like, the decisions of which are eligible for judicial review. At the other end are such matters as the appointment of the head of a Crown corporation, or the decision to purchase a battle ship, determinations inappropriate to judicial intervention. The examples of either end of the spectrum are easy to resolve, but as one approaches the middle the task becomes less so. One must weigh the factors for and against the conclusion that the decision must be made on a judicial basis. Reasonable men balancing the same factors may differ, but this does not connote uncertainty or ad hoc adjudication; it merely reflects the myriad administrative decision-making situations which may be encountered to which the reasonably well-defined principles must be applied.

Dickson, J then goes on to refer to an article entitled "Fairness: The New Natural Justice? by Professor D.J. Mullan, who expressed the matter as follows:

    Why not deal with problems of fairness and natural justice simply on the basis that, the nearer one is to the type of function requiring straight law/fact determinations and resulting in serious consequences to individuals, the greater is the legitimacy of the demand for procedural protection but as one moves through the spectrum of decision-making functions to the broad, policy oriented decisions exercised typically by a minister of the Crown, the content of procedural fairness gradually disappears into nothingness, the emphasis being on a gradual disappearance not one punctuated by the unrealistic impression of clear cut divisions presented by the classification process?

    In the case of Howarth v National Parole Board referred to by Dickson, J (as he then was) the Supreme Court of Canada ruled that there was no jurisdiction under s28 of the Federal Court Act to review and set aside a decision of the National Parole Board in a parole suspension and revocation situation. Since that decision, it should be noted, that there have been a number of significant amendments to both the Parole Act and Regulations which may well have changed the situation completely. Whereas by s6 of the Act the Board is still given "exclusive jurisdiction and absolute discretion to grant or refuse to grant parole or a temporary absence without escort pursuant to the Penitentiary Act and to revoke parole or terminate day parole," nevertheless, s13 has been amended to provide that "...subject to such Regulations as the Governor-in-Council may make in that behalf, the Board is not required, in considering whether parole should be granted or revoked, to personally interview the inmate or- An Application to th any person on his behalf".

    The Governor-in-Council has passed Regulations, s15 of which requires that reviews for the purposes of determining whether or not to grant full parole are to be conducted by way of a hearing before not less than two members of the Board, unless the inmate requests otherwise, or the inmate is in a provincial institution. If it is not possible to comply with this provision because the inmate is not in lawful custody, the Board is required to carry out the review as soon as practical after the inmate is returned to custody. Section 17 requires the Board to furnish an inmate, whose case is to be reviewed for full parole, orally, or in writing, with all relevant information in the possession of the Board, and by virtue of subs (2) when the Board decides to provide the information in writing it must do so at least fifteen days before the review hearing. The Board is not required to furnish information contained in the documents prepared before the coming into force of s17 (effective June 1,1978) nor any of the information described in paragraphs 54(a) to (g) of the Canadian Human Rights Act. Section 19 requires the Board to give written or oral reasons for its decision and if the decision is not to grant full parole, the Board must inform the inmate in writing within fifteen days. Further, s20 of the Regulations, supra, provides that upon suspension of a parole and upon referral of the case to the Board, the inmate can apply for a post-suspension hearing within fifteen days of the date of the referral to the Board and then the Board is required to commence a hearing as soon as practical thereafter and inform the inmate of the date of the hearing at least fourteen days before the date that the hearing is to commence. Section 21 requires the Board to notify the inmate in writing of a decision to revoke his parole and of the reasons therefore. In addition, s22 entitles an inmate to ask for the re-examination of a Board decision to deny full parole or to revoke parole. If the request is received within thirty days from the date of the Board's decision, the Board is mandatorily required to cause the decision to be re-examined by Board members who did not participate in the original decision being re-examined. If the request is not received within thirty days the Board has the discretion as to whether or not to re-examine the decision. These requirements for hearings, providing the inmate with relevant information and with reasons for decisions, having been promulgated in the Regulations, which clearly have the force of law, may be sufficient to characterize National Parole Board decisions as being "required by law to be made on a judicial or quasi-judicial basis". The Federal Court of Appeal would then have jurisdiction to review and set aside such decisions on any of the grounds specified in s28 of the Act. If this characterization is incorrect, then the parolee's remedy will lie under s18 of the Act at Trial Division.

In this regard, one should also give consideration to the meaning of the words "prescribed by law" in s1 of the Charter, the words "supreme law of Canada" in s52 and the words "law" in various parts of s15 of the Charter.