Federal Court Act

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FEDERAL COURT ACT

(RSC 1985 c F-7)
Note - The Revised Statutes 1985 came into force on December 12, 1988. Only sections and annotations specifically pertaining to prison matters have been set out. For more detailed reference to the Federal Court Act and Rules, see Butterworth's FEDERAL COURT SERVICE, by R Hughes.
This Act is printed as amended by SC 1990 c8, effective February 1, 1992.

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An Act respecting the Federal Court of Canada


SHORT TITLE

1. Short title - This Act may be cited as the Federal Court Act.
R.S., c. 10(2nd Supp.), s. 1.

INTERPRETATION

2. (1) Definitions - In this Act,
	"action for collision" includes an action for damage caused by one or more ships to another ship or ships or to property or persons on board another ship or ships as a result of carrying out or omitting to carry out a manoeuvre, or as a result of non-compliance with law, even though there has been no actual collision;
	"Associate Chief Justice" means the Associate Chief Justice of the Court;
	"Canadian maritime law" means the law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act, chapter A-1 of the Revised Statutes of Canada, 1970, or any other statute, or that would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that law has been altered by this Act or any other Act of Parliament;
	"Chief Justice" means the Chief Justice of the Court;
	"Court" means the Federal Court of Canada continued by section 3;
	"Court of Appeal" means that division of the Court referred to in section 4 as the Federal Court--Appeal Division;
	"Crown" means Her Majesty in right of Canada;
	"federal board, commission or other tribunal" means any body or any 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 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;
	"Federal Court of Appeal" has the meaning given in this section to "Court of Appeal";
	"final judgment" means any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding;
	"judge" means a judge of the Court and includes the Chief Justice and Associate Chief Justice;
	"laws of Canada" has the same meaning as those words have in section 101 of the Constitution Act, 1867;
	"practice and procedure" includes evidence relating to matters of practice and procedure;
	"property" means property of any kind, whether real or personal or corporeal or incorporeal, and, without restricting the generality of the foregoing, includes a right of any kind, a share or a chose in action;
	"relief" includes every species of relief, whether by way of damages, payment of money, injunction, declaration, restitution of an incorporeal right, return of land or chattels or otherwise;
	"Rules" means provisions of law and rules and orders made under section 46;
	"ship" means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion, and includes
(a)		a ship in the process of construction from the time that it is capable of floating, and
(b)		a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up;
	"Supreme Court" [Repealed, 1990, c. 8, s. 1]
	"Trial Division" means that division of the Court referred to in section 4 as the Federal Court--Trial Division.
(2) Senate and House of Commons - For greater certainty, the expression "federal board, commission or other tribunal", as defined in subsection (1), does not include the Senate, the House of Commons or any committee or member of either House.
R.S., 1985, c. F-7, s. 2; 1990, c. 8, s. 1; 2001, c. 6, s. 115.

*Judicial Consideration* -

s2(g)

Lingley v Hickman - [1972] FC 171, 10 CCC (2d) 362, 33 DLR (3d) 593 (TD)
		- The Board of Review appointed by the Lieutenant Governor of a province under s547 of the Criminal Code to review the case of every person in custody by virtue of s545 of the Code (supervision of insane persons) and/or s546 of the Code (mentally ill prisoners) is a "federal board" within the meaning of this paragraph as a board authorized by a federal as opposed to a provincial statute. Consequently, the Federal Court Trial Division has jurisdiction to review the decision or order of such a board under s18 of the Federal Court Act.

McNamara v Caras and Mendes - [1978] 1 FC 451 (TD)
		- The institutional physician in a federal penitentiary is not, when acting in his professional capacity in the treatment of inmates, a "federal board, commission or tribunal" as defined.

Desjardins v Bouchard et al - [1976] 2 FC 439, 31 CCC (2d) 506, 71 DLR (3d) 491 (TD)
		- The Governor in Council is not a "federal board, commission or tribunal" within the meaning of s2(g) of the Federal Court Act. Consequently, certain kinds of relief under s18 of the Act are not available and by virtue of s28(6) relief under s28 is specifically precluded. However, this does not mean that declaratory relief cannot be granted as against the Attorney General of Canada.

THE COURT

3. Original Court continued - The court of law, equity and admiralty in and for Canada now existing under the name of the Federal Court of Canada is hereby continued as an additional court for the better administration of the laws of Canada and shall continue to be a superior court of record having civil and criminal jurisdiction.
R.S., 1985, c. F-7, s. 3; 1993, c. 34, s. 68(F).

4. Court to consist of two divisions - The Court shall consist of two divisions, called the Federal Court--Appeal Division (which may be referred to as the Court of Appeal or Federal Court of Appeal) and the Federal Court--Trial Division.
R.S., c. 10(2nd Supp.), s. 4.



JURISDICTION OF TRIAL DIVISION

17. (1) Relief against the Crown - Except as otherwise provided in this Act or any other Act of Parliament, the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown.
(2) Cases - Without restricting the generality of subsection (1), the Trial Division has concurrent original jurisdiction, except as otherwise provided, in all cases in which
(a)		the land, goods or money of any person is in the possession of the Crown;
(b)		the claim arises out of a contract entered into by or on behalf of the Crown;
(c)		there is a claim against the Crown for injurious affection; or
(d)		the claim is for damages under the Crown Liability and Proceedings Act.
(3) Crown and subject: consent to jurisdiction - The Trial Division has exclusive original jurisdiction to hear and determine the following matters:
(a)		the amount to be paid where the Crown and any person have agreed in writing that the Crown or that person shall pay an amount to be determined by the Federal Court, the Trial Division or the Exchequer Court of Canada; and
(b)		any question of law, fact or mixed law and fact that the Crown and any person have agreed in writing shall be determined by the Federal Court, the Trial Division or the Exchequer Court of Canada.
(4) Conflicting claims against Crown - The Trial Division has concurrent original jurisdiction to hear and determine proceedings to determine disputes where the Crown is or may be under an obligation, in respect of which there are or may be conflicting claims.
(5) Relief in favour of Crown or against officer - The Trial Division has concurrent original jurisdiction
(a)		in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; and
(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.
(6) Trial Division has no jurisdiction - Where an Act of Parliament confers jurisdiction in respect of a matter on a court constituted or established by or under a law of a province, the Trial Division has no jurisdiction to entertain any proceeding in respect of the same matter unless the Act expressly confers that jurisdiction on the Court.
R.S., 1985, c. F-7, s. 17; 1990, c. 8, s. 3.

*Judicial Consideration* -

Oag v The Queen et al - (1987) 33 CCC (3d) 430 (FCA)
		- The plaintiff Gag, who had been unlawfully "gated" (see R v Moore; Gag v The Queen et al (1983) 4 CCC (3d) 216n, 147 DLR (3d) 538n, [1983] 1 SCR 658 at p659 and see annotations under s16 of the Parole Act sued the National Parole Board and certain individual members for damages in the Federal Court Trial Division. He claimed damages for false arrest, false imprisonment. assault and battery, negligence and a violation of his rights under ss7 and 9 of the Charter of Rights and Freedoms. The defendants moved to strike out the statement of claim as against the National Parole Board and the individual Board members. The Federal Court Trial Division granted the motion (see (1986) 23 CCC (3d) 20, [1986] 1 FC 472,22 CRR 171 -annotated under s2 of the Crown Liability Act, p6803). The plaintiff appealed that decision with respect to the jurisdiction of the Federal Court Trial Division to hear and determine the claims made in the action against the two individual Board members named as respondents. The appeal was allowed. The court held that the plaintiff, having been sentenced by a court of competent jurisdiction to a term of imprisonment lost his common law right to freedom during that time. The source of the freedom being enjoyed by him at the time of the alleged false arrest and imprisonment was found in federal law and, in particular, in s24(1) of the Penitentiary Act and ss1 0(1). 12 and 15(1) and (2) of the Parole Act. These sections provided a "detailed statutory framework" of federal law under which the plaintiff not only acquired the right to be free but also the right to remain free. The limits of his freedom were, however, demarcated by federal statute. Consequently, the torts depended for their existence upon federal law.

		The court referred to ITO -International Terminal Operators Ltd v Miida Electronics Inc et al (1986) 28 DLR (4th) 641 at p650. [1986] 1 SCR 752 at p766 where the Supreme Court of Canada laid down a three part test for determining the existence of jurisdiction in the Federal Court Trial Division. Macintyre, J. speaking for the court, stated as follows

			The general extent of the jurisdiction of the Federal Court has been the subject of much judicial consideration in recent years. In Quebec North Shore Paper Co v Canadian Pacific Ltd (1976) 71 DLR (3d) 111, [1977] 2 SCR 1054,9 NR 471, and in McNamara Construction (Western) Ltd v The Queen (1977) 75 DLR (3d) 273, [1977] 2 SCR 654, 13 NR 181, the essential requirements to support a finding of jurisdiction in the Federal Court were established. They are:
			1. There must be a statutory grant of jurisdiction by the federal Parliament.
			2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
			3. The law on which the case is based must be "a law of Canada" as the phrase is used in s 101 of the Constitution Act, 1867."

		The Federal Court of Appeal held that the second criteria was met by the "detailed statutory framework" of federal law under which Oag acquired his right to be free and to remain so. The court further held that the third requirement was also satisfied because the applicable body of federal laws fell within the legislative competence of Parliament over "criminal law" found in s91(27) of the Constitution Act, 1867 and its like competence over the "establishment, maintenance, and management of penitentiaries" found in s91(28) of that Act. In addition, the court held that the first criteria was met by the provisions of s17(4)(b) of the Federal Court Act, as the Board members were considered to be "officers" of the National Parole Board.

18. (1) Extraordinary remedies, federal tribunals - Subject to section 28, the Trial Division has exclusive original jurisdiction
(a)		to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b)		to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
(2) Extraordinary remedies, members of Canadian Forces - The Trial Division has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada.
(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.
R.S., 1985, c. F-7, s. 18; 1990, c. 8, s. 4.

*Judicial Consideration* -

McNamara v Caros et al - [1978] 1 FC 451 (TD)
		- Declaratory relief is not available in a proceeding commenced by originating notice of motion, such relief must be sought by way of an action commenced by statement of claim.

Hanna v Matsqui Institution Disciplinary Court - (1990) 10 WCB (2d) 432 (FCTD)
		- The court held that an application for an order pursuant to s24(1) of the Charter stating that legislation is invalid should be classified as a declaration and be commenced by way of an action. However, following R v Big M Drug Mart [1985] 1 SCR 295 (SCC) and Zwarich v AG Canada [1987] 3 FC 253 (FCA), Mr. Justice Teitelbaum agreed that an Independent Chairperson has jurisdiction to determine if legislation is contrary to the Charter, and of no force or effect under s52 of the Constitution Act.

Kula v Picard and The Queen - Unreported, March 18, 1982, No. T -1356-82 (FCTD)
		- Where a prisoner, on application, sought a ruling as regards to the time he still had to serve in prison, the Court commented that a declaratory judgment cannot be obtained by application, but nevertheless overlooked the procedural difficulty to dispose of the application on its merits in the interests of answering the question raised as soon as possible.

Lussier v Collin - Unreported, December 12, 1984, No. A-294-84 (FCA)
		- Damages are not available on an application under this section or under s24(1) of the Charter unless the usual rules of procedure governing such actions as opposed to applications are followed.

Bruce and Meadley v Commissioner of Corrections - (1979), 10 CR (3d) 166 (FCTD)
		- Injunctive relief must be sought by way of an action commenced by statement of claim. An interim or interlocutory injunction may be entertained before the action is heard. A notice of motion for an interim or interlocutory injunction may be served either at the same time or following the issuing of a statement of claim unless exceptional circumstances exist where the motion for interim relief may be launched prior to instituting the action but normally only upon an undertaking to file a statement of claim forthwith.

Marcotte v Warden of Joyceville Federal Institution - [1973] 3 OR 323 (summary) (CA)
		- This case is an example of an application for habeas corpus with certiorari in aid against a federal penitentiary warden which was brought in the provincial court there being no jurisdiction to grant habeas corpus under s18 of the Federal Court Act.

Johns v Commissioner of Penitentiaries - [1974] FC 545 (TD)
		- The Federal Court Trial Division does not have original jurisdiction to issue a writ of habeas corpus under s18. It is also "J" doubtful that the court has jurisdiction to grant declaratory relief in a case which properly should be dealt with by an application for a writ of habeas corpus.

Cavanaugh v Commissioner of Penitentiaries - [1974] 1 FC 515 (TD)
		- The Trial Division of the Federal Court did not have jurisdiction under s18 to issue writ of habeas corpus or any relief which is tantamount to habeas corpus.

In Rossi and The Queen - [1974] 1 FC 531, 17 CCC (2d) 1 (FCTD)
		- Mandamus lies to secure the performance of a public duty, in the performance of which the applicant has a sufficient legal interest. It does not lie to compel the performance of a mere moral duty or to order anything to be done that is contrary to law. Nor will it issue in respect of a merely private duty or against a respondent who is not commendable by the court or by whom the duty is not owed even if all the conditions for its issuance exists. It is a discretionary remedy and the court will refuse to issue it if it is unnecessary or the object of it has already been attained. It does not lie against the Crown itself but against a particular public officer representing the Crown.

Ex parte Quevillon - (1974), 20 CCC (2d) 555 (FCTD)
		- The Federal Court Trial Division does not I have jurisdiction under this section to grant habeas corpus ad subjiciendum.

Howarth v National Parole Board - [1976] 1 SCR 453, 3 NR 391, 50 DLR (3d) 349, 18 CCC (2d) 385
		- Section 28 of the Federal Court Act operates as an exception to the general provision of s18, whereby supervisory jurisdiction over federal boards is wholly transferred from the superior courts of the provinces to the Trial Division of the Federal Court. While supervisory jurisdiction over federal boards is conferred generally upon the Trial Division without any restriction as to the nature of the remedy under consideration the new remedy created by s28 is restricted in its application to judicial decision or to administrative decisions required by law to be made on a judicial or quasi-judicial basis. All 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 I' by the Trial Division of the Federal Court. A s28 application is an exception to s18 and leaves intact all common law remedies in the cases in which it is without application.

Auger v Canadian Penitentiary Service et al - [1975] FC 330 (TD)
		- The court was uncertain whether it had jurisdiction to deal with a petition for mandamus and certiorari regarding the forfeiture of mandatory supervision pursuant to s17(1) of the Parole Act. The court assumed jurisdiction and dismissed the petition.

McCann et al v The Queen et al - (1975),68 DLR (3d) 661,29 CCC (2d) 337 (FCTD)
		- Declaratory relief was granted to the effect that the conditions and circumstances of solitary confinement at the British Columbia Penitentiary amounted to "cruel and unusual treatment of punishment" contrary to s2(g) of the Canadian Bill of Rights. However, the court found no jurisprudence in support of the request for relief compelling the Crown to act in accordance with the declaration sought.

Desjardins v Bouchard - [1976] 2 FC 439, 71 DLR (3d) 491, 31 CCC (2d) 506 (TD)
		- The Federal Court Trial Division has jurisdiction under s18 to review a decision to revoke a pardon granted under the Criminal Records Act. The revocation of a pardon must be done with regard to the rules of natural justice.

Magrath v The Queen - (1977), 38 CCC (2d) 67 (FCTD)
		- The Trial Division has jurisdiction under s18 to grant declaratory relief, in effect setting aside an administrative decision made by a federal board when the board was not required to act on a judicial or quasi-judicial basis.

Ex parte Hinks - [1972] 3 OR 182,27 DLR (3d) 593,7 CCC (2d) 316 (HC)
		- Section 18 of the Federal Court Act gives the Federal Court Trial Division exclusive jurisdiction with respect to applications for certiorari in respect of federal boards or tribunals like the National Parole Board, the Director of a penitentiary and the Commissioner of Penitentiaries. The Supreme Court of Ontario does not have jurisdiction over these matters.

In Re Greene and Faquy - [1972] 3 OR 395, 28 DLR (3d) 297,7 CCC (2d) 388 (HC)
		- The provincial superior court does not have jurisdiction to grant mandamus to review the decision of a Director of a federal penitentiary. Such an application must be brought in the Federal Court under the provisions of s18.

R v Mitchell - (1975), 6 NR 389 (SCC)
		- A provincial superior court has no jurisdiction to issue a writ of certiorari whether alone or in aid of habeas corpus to inquire in- to and review the administrative acts of the National Parole Board. The jurisdiction over certiorari is exclusively within the powers of the Federal Court Trial Division under s18.

Editorial Note - The Supreme Court of Canada, in its recent decision in Miller v The Queen (1986) 23 CCC (3d) 97, held that the dissenting view of Laskin, CJC in Mitchell indicating that certiorari in aid was available, notwithstanding s18 of the Federal Court Act was the better view and LeDain, J, in giving jugment for the court in Miller expressly adopts Laskin's dissent in Mitchell. Mitchell is therefore no longer good law on this point.

R v Sowa - (1977), 5 CPC 79 (Sask QB)
		- The provincial courts do not have jurisdiction to question the legality of a transfer of a federal prisoner by the Commissioner of Corrections or his designate pursuant to the provisions of the Penitentiary Act.

Re Ostello and Solicitor of Canada et al - (1976), 26 CCC (2d) 262 (Ont HC)
		- An applicant who will be entitled to habeas corpus at a future time may be granted a declaration to that effect by a provincial superior court notwithstanding that exclusive jurisdiction over the granting of declaratory relief and mandamus in relation to federal boards, commissions or tribunals, has been transferred to the Federal Court under s18.

Ex parte Le Heinsworth - (1974), 21 CCC (2d) 26 (Ont HC)
		- There is a distinction between certiorari as such and certiorari in aid of habeas corpus. The former is in the exclusive jurisdiction of the Federal Court under s18 of the Federal Court but the latter is not.

Editorial Note - But see both the majority and minority judgments in R v Mitchell (1975),6 NR 389 (SCC), in which a majority of the members of the court appear to conclude that there is no distinction between certiorari and certiorari in aid. However, the majority also appears to hold that certiorari in aid of habeas corpus is not necessary to entitle the court to go behind the warrants of committal on habeas corpus.

Re Mitchell and The Queen - (1983) 42 OR (2d) 481 (HC)
		- On an application for a writ of habeas corpus ad subjiciendum with certiorari in aid or relief pursuant to s24(1) of the Charter it was held, following Re Cardinal and Oswald and The Queen (1982), 67 CCC (2d) 252 (BCCA) and R v Miller (1982), 70 CCC (2d) 129 (Ont CA) and R v Cadeddu (1983) 4 CCC (3d) 97 (Ont HC), that the court had jurisdiction to grant habeas corpus ad subjiciendum with certiorari in aid and that therefore, because the court had jurisdiction to deal with the matter in. dependent of the Charter, the court was a "court of competent jurisdiction" to grant a remedy under s24(1) of the Charter.

Editorial Note - The cases of Re Cardinal and Oswald and The Queen and Re Miller and The Queen together with Morin v Comite National Charge de L 'examen des cas d'USD et aI, Unreported, June 17, 1982, No. 500-10-000013-829 (Que CA) (all of which are annotated under Penitentiary Service Regulation, s40), were appealed to the Supreme Court of Canada and heard together on October, 1984 and on the 19th of December, 1985, judgment was rendered in all three cases and it was held that certiorari in aid of habeas corpus was available in the provincial superior courts, notwithstanding exclusive jurisdiction of the Federal Court Trial Division under s18 with respect to federal boards or tribunals. See annotations under s40 of the Penitentiary Service Regulations

Ex parte Kolot - (1973), 13 CCC (2d) 417 (BCSC)
		- Section 18 of the Federal Court Act does not prevent provincial superior courts from using the writ of certiorari in aid of habeas corpus. Section 2(c)(iii) of the Canadian Bill of Right applies.

Hewitt v The National Parole Board et al - Unreported, November 18, 1983 No. 3217/83 (Man QB)
		- An application for habeas corpus with certiorari in aid on grounds that a post-suspension hearing was fatally affected by procedural unfairness to the extent that the Board interviewed the parole officer and classification officer prior to the applicant entering the room at the hearing and that those officers remained in the room after the applicant left, was dismissed on jurisdictional grounds. The court took the position that even if the Judgment of Ritchie, J in Mitchell v The Queen [1976] 2 SCR 570 was not the opinion of the majority, nevertheless support for those reasons were found in the reasons of the majority delivered by Pigeon, J in Commonwealth of Puerto Rico v Hernandez [1975] 1 SCR 228, which was referred to by Ritchie, J in Mitchell. The court was of the view that those decisions should be followed as opposed to the decision of the Ontario Court of Appeal in Re Miller and The Queen (1982), 70 CCC (2d) 129, and the decision of the B.C. Court of Appeal in Re Cardinal and Oswald and The Queen (1982), 67 CCC (2d) 252. The court stated that if the applicant was to succeed, the review proceedings and the decision to revoke the parole would have to be set aside and quashed and that this could only be done by way of certiorari against the National Parole Board which was within the exclusive jurisdiction of the Federal Court Trial Division under s18 of the Federal Court Act.

Editorial Note - The cases of Re Cardinal and Oswald and The Queen and Re Miller and The Queen together with Morin v Comite National Charge de L 'examen des cas d'USD et al -Unreported, June 17, 1982, No. 500-10-000013-829 (Que CA) (all of which are annotated under Penitentiary Service Regulation, s40), were appealed to the Supreme Court of Canada and heard together on October 11 and 12, 1984 and on December 19th, 1985 judgment in all three cases was rendered, upholding the jurisdiction of provincial superior courts to grant habeas corpus with certiorari in aid, notwithstanding s18 of the Federal Court Act. Other cases touching on the jurisdictional issue prior to Cardinal and Oswald, Miller and Morin are Singer v The Queen - Unreported, December 16, 1983, Montreal, No. 6-000681-831 (Que SC) in which the Quebec Superior Court held that it did not have jurisdiction to grant habeas corpus with certiorari in aid in circumstances involving the suspension of mandatory supervision pursuant to s16 of the Parole Act and held that the questioning of the action on the part of the Parole Board would be better left to the Federal Court of Canada under s18 as Parliament clearly intended it to be. However, see also MacAllister v National Parole Board et al (1984) 40 CR (3d) 126 (Que SC) in which the Quebec superior Court held that it did have jurisdiction to grant habeas corpus with certiorari in aid in circumstances involving a suspension of parole pursuant to s16 of the Parole Act notwithstanding the decision of the Quebec Court of Appeal in Morin. See also Riches v The Warden of Leclerc Institution -Unreported, June 29,1984, No. 36-0000194-848 (Que SC) in which it was held that s18 of the Federal Court Act cannot be interpreted so as to oust the jurisdiction of the Superior Courts of the Provinces to entertain applications for writs of habeas corpus, even if in certain instances a review of an administrative decision may be required, when the main issue is the determination of whether or not continued detention is legal or illegal.

Editorial Note - See note re R v Mitchell, supra.

Re Baker et al - Unreported, February 25,1977 (Ont HC)
		- By virtue of s18 of the Federal Court Act, relief by way of prerogative writs against federal prison authorities must be sought in Federal Court and not in the provincial superior courts.

Martineau v Matsqui Institution Disciplinary Board (No.2) - (1979), 30 NR 119, 106 DLR (3d) 385, 50 CCC (2d) 353 (SCC), reversing [1978] 2 FC 637, 40 CCC (2d) 325, 22 NR 250 (FCA) and restoring [1978] 1 FC 312, 37 CCC (2d) 58
		- The Federal Court Trial Division has jurisdiction under s18 to grant certiorari or relief in the nature thereof against a federal board, commission or other tribunal acting in an administrative capacity and not required by law to act on a judicial or quasi-judicial basis within the meaning of s28. Hence, the court has jurisdiction to review on certiorari the decision of a federal prison Inmate Disciplinary Board but in so doing it must be remembered that the remedy is discretionary and should only be granted in cases of serious injustice, bearing in mind the requirements of prison discipline. An Inmate Disciplinary Board is not a court but a tribunal which has to decide rights after hearing evidence. Even though the Board is not obliged, in discharging what is essentially an administrative task, to conduct a judicial proceeding, observing the procedural and evidential rules of the court of law, it is, none the less, subject to a duty of fairness and a person aggrieved by a breach of that duty is entitled to seek relief from the Federal Court, Trial Division, on an application for certiorari. It should be emphasized that it is not every breach of prison rules of procedure which will bring intervention by the courts. The very nature of a prison institution requires officers to make "on the spot" disciplinary decisions and the power of judicial review must be exercised with restraint. Interference will not be justified in the case of trivial or merely technical incidents. The question is not whether there has been a breach of the prison rules, but whether there has been a breach of the duty to act fairly in all the circumstances. The rules are of some importance in determining this latter question, as an indication of the views of prison authorities as to the degree of procedural protection to be extended to inmates.

See also Re Martens and R (1984) 8 CCC (3d) 336, 35 CR (3d) 149 (BCSC) which followed the decision in Cardinal and Oswald and Miller as to the jurisdiction of the British Columbia Supreme Court to grant habeas corpus with certiorari in aid.

Editorial Note - See Miller v The Queen (1986) 23 CCC (3d) 97, Morin v National Special Handling Unit Review Committee et al (1986) 23 CCC (3d) 132 and Cardinal and Oswald v Director of Kent Institution (1986) 23 CCC (3d) 118, 49 CR (3d) 35, [1986] 1 WWR 577 (SCC) annotated under s40 of the Penitentiary Service Regulations.

Levesque v AG Canada et al - (1985) 25 DLR (4th) 184 (FCTD)
		- The court granted declaratory relief under s18, coupled with a writ of mandamus, against the Crown. The court declared that prisoners have a right to vote and that this right arises from s3 of the Charter and in order to give the declaratory order practical effect, found that s3 of the Charter implicitly imposed a duty on the authorities to enable per- sons to exercise their right and found that the rule of immunity of the Crown at common law to writs of mandamus was no longer applicable because of s24(1) of the Charter and the Charter generally, which applies to everyone including Crown or a Minister acting in his capacity as a representative of the Crown. The Crown is subject to the provisions of the Charter in the same way as any other individual.

Gammond v National Parole Board - Unreported, December 17, 1985, No. T-1580-85 (FCTD)
		- A prisoner applied for certiorari to quash the decision of the National Parole Board denying his request for day parole and unescorted temporary absences. He brought his motion pursuant to s18 of the Act and Rule 324 of the Federal Court Rules requesting to have the motion considered without personal appearance. Service of the intention to use Rule 324 was not properly effected. In addition, the court felt that the matter raised issues of gravest import which ought not to be disposed of without an oral hearing. This case contains a good exposition of the effect of the Federal Court Rules and the procedure required when requesting to bring a motion for certiorari to quash without personal appearance in court and an oral hearing.

MacDonald v National Parole Board - [1986] 3 FC 157 (FCTD)
		- A prisoner applied for certiorari to quash a decision denying him day parole and in the alternative, an order of mandamus to compel the Board to render a decision granting him day parole, or, in the further alternative, an order requiring an oral hearing on the day parole question. He brought his application under s18 and pursuant to rule 324 requesting that the matter be dealt with without an in-person hearing. The court referred to Gammond (supra) but distinguished it on its facts, service having been properly effected here, and further commented, that while the issues raised were of gravest import, nevertheless rule 324 "operates for the convenience of the Bar, if not also for the avoidance of expense for their client litigants", and that "fairness demands that it operate for the convenience of prison inmates too". Muldoon, J found that very special circumstances would be needed to deprive a prisoner of the convenient access to the court afforded by rule 324 which contemplates that there is always a judge available, no matter where the applicant may be imprisoned. He further noted that the court cannot compel an individual applicant to be represented by counsel and the undeniable right of access to an audience in the court upon compliance with procedural rules and the coram. In the circumstances, he "considered it expedient" that the motion be disposed of in accordance with rule 324. The motion was dismissed.
		On their merits, it was noted that applications for certiorari or mandamus are not appeals on the record and that the court is not entitled to usurp the National Parole Board's functions. The evidence was conclusive as to the legal propriety of the decisions rendered by the Board.
		The court further noted that such remedies are discretionary and will not normally be granted unless the applicant has exhausted all avenues of redress and appeal before invoking the court's powers. The court noted that no application pursuant to s22 of the Parole Regulations for re-examination of the initial decision had been made and no extraordinary reasons for by-passing such a request had been placed before the court. This was a factor considered by the court in holding that no in-person hearing was required on the question of whether or not to grant a day parole which was characterized as an application for an inception to the traditional obligations that run with a sentence of imprisonment.

Correctional Service of Canada v Deane; Correctional Service of Canada v Williams; Correctional Service of Canada v McDonald - Unreported, April 15, 1986, Nos. T -587-86, T -588-86, T -589-86 (FCTD)
		- An application to the Federal Court Trial Division to declare a sentence imposed pursuant to s137 of the Criminal Code to be illegal seeking mandamus to recalculate the sentence cannot be made by the Federal Court Trial Division because it lacks jurisdiction. The Federal Court of Canada Trial Division is not a court of competent jurisdiction in that regard. The Court has no jurisdiction to quash the impugned sentence.

Kinney et al v AG Canada and Commissioner of Corrections and D Kane, Warden of Drumheller Institution - Unreported, December 24, 1984, No. T-2286-83 (FCTD)
		- A number of prisoners sought declaratory relief pertaining to the calculation of their sentence and the interaction of ss14 and 20 of the Parole Act. One of the plaintiffs had applied for release on the same basis seeking habeas corpus and that application had been dismissed by the Court of Queen's Bench of Alberta. He had appealed that decision to the Alberta Court of Appeal but later abandoned that appeal. He then sought declaratory relief to obtain the same remedy. It was agreed that he was stopped from relitigating his case based on the doc- trine of res judicata. In this regard, reference was made to Angle v MNR [1975] 2 SCR 248; Town of Grandview v Doering [1976] 2 SCR 621; R v Duhamel (No.2) (1981) 131 DLR (3d) 352 (Alta GAl; Martin et al v Canadian Penitentiary Service et al (1983) 45 AR 280 (Alta QB); and Cavanagh v Commissioner of Corrections [1974] 1 FC 515 (FCTD).
		In addition, one of the other plaintiffs sought a similar declaration but his term of imprisonment in relation to which he sought the declaration had ended prior to the matter coming on for hearing. The court held there was no lis left to litigate once his term of imprisonment expired and in this regard referred to Les Terrasses Zarolega Inc et al v Olympic Installations Board [1981] 1 SCR 94, 124 DLR (3d) 204 (SCC). The court held that granting a declaratory judgment in such a case would serve little or no purpose.

Grey v National Parole Board - Unreported, April 11, 1986, No. T-9-86 (FCTD); Ecklund v National Parole Board -Unreported, April 11, 1986, No. T-57-86 (FCTD)
		- The applicants in these cases sought certiorari to quash a decision of the Parole Board denying day parole or, alternatively, mandamus to compel the National Parole Board to render a decision granting day parole or, in the further alternative, an order requiring a new hearing consistent with the principles of fundamental justice, namely, an oral or in-person hearing on the day parole question. The application was made pursuant to rule 324 in writing. The applicants had not asked for an oral hearing at the time they were considered for day parole, nor did they request a re-examination of the decision denying them day parole. The court referred to MacDonald v National Parole Board (supra) and pointed out that the court does not sit on appeal of National Parole Board decisions and has no power to review their decisions in the absence of a jurisdictional attack. There was no evidence that the Board had based its decision on external facts or at least on facts unknown to the applicant. With respect to the request for an oral hearing, the court distinguished parole decision making from applications for refugee status and hence, the decision of the Supreme Court of Canada in Singh et al MEI [1985] 1 SCR 177 (SCC). In addition, the court pointed out that the remedies of certiorari and mandamus are discretionary and while the failure of the applicants to ask for an in-person hearing before the Board did not bar them from making the application to Federal Court, the failure do to so prevented the court from exercising its discretionary power in favour of the applicant.

Demaria v Regional Transfer Board and Warden of Joyceville Institution (No. 2) - Unreported, January 29,1988, No. T-241 0-87 (FCTD)
		- The applicant sought certiorari to quash the decision of the warden of Joyceville Institution and the confirmation of that decision by the Regional Transfer Board transferring him from Joyceville Medium Security to Millhaven Maximum security. He also sought mandamus requiring a transfer back to Joyceville or some other medium security institution. He also sought to have a disciplinary court charge, which had not been heard, quashed.
		There had been problems at Joyceville Institution in August of 1987. The applicant was elected chairman of the inmate committee subsequently. A new warden was appointed to Joyceville shortly thereafter. The warden and the applicant met and briefly discussed a meeting with the committee to take place the following week relating to the lessening of restrictions in place at the institution since the riots of early August.
		The applicant then spoke with the Executive Assistant to his member of Parliament. A corrections officer was in the room at the time of the telephone conversation and reported the conversation to the warden. The corrections officer reported to the warden that the applicant had stated that if certain re- quests were not met, that something heavy was going to go down in the institution. Consequently, the warden prepared an emergency and involuntary transfer notice relating to the applicant. The grounds for transfer were that the applicant had made inciteful remarks to the M.P.'s office, threatening incidents at Joyceville if demands were not met and failed to negotiate in good faith with the warden on serious matters regarding the normalization routine. This latter ground was based on an original assertion that the applicant had agreed not to discuss the agenda for the inmate committee meeting with anybody outside the institution and the warden viewed this discussion with his M.P.'s office as a breach of that agreement. At the hearing of this matter, the warden resiled from that position and took the position that he simply thought it was inappropriate for the applicant to discuss the agenda with his M.P. or the M.P.'s Executive Assistant and, particularly, to indicate the high degree of tension in the institution. The day following the transfer notice, the warden circulated a notice to the prison population explaining his actions.
		It was not asserted that the applicant intended to or was involved in stirring up any trouble at the institution and no action was taken by the warden to investigate the report of the telephone conversation or to determine if, in fact, a disturbance was being planned. In fact, on cross-examination, the warden agreed that such a disturbance was unlikely because of extensive restrictions. The warden appeared to simply be annoyed at the fact that the applicant had spoken to his M.P. An affidavit was filed by the M.P.'s Executive Assistant con- firming the telephone conversation and deposing that the conversations were neither inciteful nor intimidative, that the applicant sought advice and assistance from his M.P. and made no demands or threats, and that the conversations were intended to be private and confidential.
		The corrections officer who wrote out the unusual occurrence report also wrote out the offence report which led to the applicant being charged with doing an act "calculated to prejudice the discipline or good order of the institution" contrary to s39(k) of the Penitentiary Service Regulations. In that report she stated that the applicant, during the conversation with his M.P. indicated that if inmate requests were not met, something might happen and that the committee had tried to defuse the situation but things were pretty hot and if something didn't happen, it would not be the inmate's fault. This report was much milder in tone than the unusual occurrence report. Furthermore, there was no reference to something happening "this weekend". The warden inquired into these differences and was advised by the officer/supervisor that the officer felt uneasy about the visibility that was being generated towards her as a result of the original report and consequently, she toned down the wording of the offence report.
		The warden, on cross-examination, indicated he was concerned that the comments by the applicant to his M.P. were inciteful and could constitute a threat to the security of the institution because they were made to the M.P.'s office and this might lead the information to be disclosed to the press who in turn would report it in newspapers and the newspapers would be read by the prisoners and this would have a "de-stabilizing" effect.
		The application for certiorari was granted, quashing the transfer decision but the application for mandamus was refused as being unavailable but not necessary in any event.
		The court concluded that it was acceptable for the Executive Assistant for the M.P. to stand in for the M.P. and that whatever privilege attached to the communications between the applicant and the M.P. would also attach to those with the M.P.'s Executive Assistant. While Directives provided for communications with an M.P. in writing to be privileged, the Directive was silent as to the status of oral communications. Nevertheless, the policy reasons for granting privileged status to written communications should be equally applicable to telephone communications. Such communications can be monitored as can written correspondence to ensure that they are bona fide. The court concluded that to base a decision to transfer a prisoner from medium to maximum security on the fact that he had a telephone conversation with his M.P., even if the prisoner was saying things the prison officials did not want said or even if the communications exaggerated, in some way, the actual facts amounted to an arbitrary exercise of administrative authority and further, that the choice of Millhaven Institution was arbitrary in the extreme, given the availability of other institutions closer to the applicant's family.
		The court pointed out that it is now well established that s7 of the Charter applies to decisions taken with respect to involuntary transfers of prisoners from one institution to another, at least where the transfer involves a move from lower to higher security. In addition, the court concluded that s7 has been interpreted to require not only procedural fairness in the narrow sense, but also that decisions not be made in an unreasonable or arbitrary manner. To set aside the decision of an administrative body on the ground that it is arbitrary, or unreasonable as having been made without evidence to support it, is one of the traditional grounds of judicial review and as such is within the concept of "fundamental justice".
		The court found that there was absolutely no evidence to support the transfer as being necessary on a "emergency basis". There was no suggestion that prison officials thought the applicant was causing or planning to cause disturbances in the institution and it was repugnant to think that a communication of information about the situation inside a prison to one's member of Parliament could be considered an inciteful activity. There was no evidence that the applicant was negotiating with the warden in bad faith. There was no indication that he was asked to keep the information concerning the agenda or propose negotiations within the institution. While the warden may have felt that that was inappropriate, there was no evidence that the applicant was told of this.
		The court accepted the doctrine of curial deference that administrative decision makers have the "right to be wrong" but found that that doctrine did not go so far as to prevent judicial review of an arbitrary decision as one made without a factual basis to support it. The court concluded that the decision was arbitrary and made in the absence of any evidence to support it.
		With respect to the disciplinary charge, the court was of the view that that issue was somewhat moot in light of the decision in respect of the transfer. If there is a lack of factual basis to support a decision to transfer, there is equally a lack of factual basis on which the charge could be supported. Nevertheless, the court declined to grant the remedy as the matter was not argued in detail.
		With respect to the request for mandamus, the court was of the view that quashing the original transfer order carried with it the requirement that the applicant be either transferred back to the original institution or to another medium security institution. A failure to do so on the part of the authorities would amount to a breach of the order of certiorari which was granted.
		A request for a declaration with respect to the privileged nature of oral com- o' I' munications between the applicant and his member of Parliament was not procedurally open in the context of the motion.

MacInnis v Canada (Solicitor General) et al - Unreported, July 5, 1991, No.T-1341-90 (FCTD)
		- In order for an order in mandamus to issue, the applicant must show a clear legal right to have the thing sought by him done, and done in the manner and by the person sought to be coerced. In this instance, s6 compels the Commissioner to prepare the cases but this does not mean that he must provide the results of tests that the inmate wants performed but only those tests that are reasonably required in order to allow the Board members to make an informed decision. This has been done in this case.
		In arriving at this decision, the court referred to the case of Sylvia Albertha Robinson and the Minister of Citizenship, unreported, No. T-1776-89, December 8, 1989 where the Associate Chief Justice said as follows concerning the requirements before a mandamus would issue:

		"...than an application for mandamus cannot succeed in the absence of a clear statutory duty on the part of the officer, in this case of the Department of the Secretary of State, to perform the action requested. As counsel for the respondent indicated, support for this position may be found in the Federal Court of Appeal's decision in O'Grady v Whyte [1983] 1 FC 719, where the Court held that before mandamus can be granted, the applicant must show that: 1) it has a clear legal right to have the thing sought by it done; 2) the duty whose performance it is sought to coerce is actually due and incumbent upon the officer at the time of seeking the relief; 3) the duty is purely ministerial in nature; and 4) there has been a demand and a refusal to perform the duty. Mr. Justice Urie in O'Grady, supra, quoted at some length from the Ontario Court of Appeal's decision in Karavos v Toronto et aI, [1948] 3 DLR 294, where Mr. Justice Laidlaw held, at p297:

			Before the remedy [mandamus] can be given, the applicant for it must show (1) "a clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced": High's Extraordinary Legal Remedies, 3rd ed p12, Ont. 9."

Attorney General of Canada v Daniels - Unreported, June 6,1991 No.5038 (Sask CA)
		- For the detailed annotation on the main issues, see the annotations under s731 of the Criminal Code and s15 of the Penitentiary Act.
		The trial judge's function ended with the imposition of sentence and she had no right to designate where the sentence was to be served. The administration of sentence is the responsibility of the Commissioner and since the trial judge's order was directed to the exercise or non-exercise of his powers and duties, it is in the nature of mandamus or prohibition. Such a remedy, directed to a federal tribunal (including the Commissioner) is within the exclusive jurisdiction of the Federal Court of Canada under s18 of the Federal Court Act, or the Federal Court of Appeal under s28. The application should have been brought in one of the federal court's and the trial judge should not have heard it. The trial judge's order was set aside.
		NOTE: For other aspects of this case see the annotations under s731 of the Criminal Code, s15 of the Penitentiary Act, and under s15 of the Constitution Act.

Horii v The Queen et al - Unreported, September 5, 1991, No. A-841-91 (FCA) (Butterworths No. 36191)
		- Horii is a female prisoner serving a life term for second degree murder with a minimum parole ineligibility period of ten years. For approximately two and a half years, she had been serving her sentence at Matsqui Institution in British Columbia which is normally a men's prison. Her situation at that location was exceptional but not unique because other women prisoners had been accommodated at that institution and the institution staff is made up of members of both sexes. She was participating in and was very successful in the university program offered at the institution which involved personal interaction between professors from Simon Fraser University and the students. She was the highest achiever in the program and was more than half-way towards an Honours Degree.
		After two and a half years at Matsqui Institution, she was notified that she would be subject to an involuntary transfer to the Burnaby Correctional Centre for Women, a provincial prison operated by the Corrections Branch of the province of British Columbia. She objected to the transfer on the grounds that the programs available to her at Matsqui Institution, and especially the university program, would not be available to her at the provincial facility and her privileges and access to programs would be impaired because of her sex. Her grievances were dismissed. She commenced an action in the Trial Division seeking declaratory relief, mandamus and a permanent injunction asserting a violation of her s15 Charter rights, namely, the right to be equal before and under the law and the right to the equal protection and equal benefit of the law without discrimination on the basis of sex. She moved for an interlocutory injunction to restrain the transfer pending the trial. The Associate Chief Justice dismissed her application for an interlocutory injunction and she appealed to the Court of Appeal.
		The Court of Appeal allowed the appeal and granted the injunction pending the trial.
		The Court of Appeal held that the classic tripartite test for the granting of interlocutory injunctions was authoritatively enunciated by the Supreme Court of Canada in Manitoba (AG v Metropolitan Stores Ltd [1987] 1 SCR 110 (SCC). That test has been commented on and applied on a number of occasions by the Federal Court of Appeal, for example, in Yri-York Limited et al v Canada (Attorney General) et al (1988) 83 NR 195 and Turbo Resources Ltd v PetroCanada Inc (1989) 91 NR 341. The three branches of the test are briefly stated as follows:

			(1) Has the applicant demonstrated that there is serious issue to be tried?

			(2) Will the applicant suffer irreparable harm if an injunction is not granted?

			(3) Will the harm to the respondent or to the public interest in the event that an injunction is granted outweigh the harm to the applicant (the "balance of convenience")?

		Applying this test to the undisputed facts, the court held:

			(1) If the appellant was not a woman, she would not, as a matter of longstanding Correctional Service policy, be transferred into a provincial institution without her consent. She is now threatened with such a transfer against her will solely because she is a woman. That raises a serious issue to be tried.

			(2) At Matsqui, the appellant has been following, with outstanding success, university courses organized and given by the Simon Fraser University in classrooms in the institution. She is presently more than half-way to an Honours Degree. If transferred to Burnaby, she would only be able to follow university courses by correspondence. The loss to her is immeasurable and will not be compensable by damages. That is irreparable harm.

			(3) The appellant has presently been at Matsqui for more than two and a half years. While her presence has not doubt caused the authorities some administrative inconvenience, they have, to their credit, overcome it. In those circumstances. the balance of convenience clearly favours the maintenance of the status quo by leaving her where she is. History has demonstrated that whatever damage may be caused to the public interest by leaving her in an institution primarily designed for men is relatively insignificant and has been adequately coped with to date.

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 order of a federal board, commission or other tribunal shall be made within thirty 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 thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
(3) Powers of Trial Division - On an application for judicial review, the Trial Division 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.
(4) Grounds of review - The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a)		acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b)		failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c)		erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d)		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;
(e)		acted, or failed to act, by reason of fraud or perjured evidence; or
(f)		acted in any other way that was contrary to law.
(5) Defect in form or technical irregularity - Where the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Trial Division may
(a)		refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b)		in the case of a defect in form or a technical irregularity in a decision or order, make an order validating the decision or order, to have effect from such time and on such terms as it considers appropriate.
1990, c. 8, s. 5.

*Judicial Consideration* -

Kelly v Commisioner of Corrections - Unreported, February 4, 1993, No. 92-T-1791 (FCTD) (Butterworths No. 38295)
		- The applicant applied pursuant to Rule 324 for and extension of time to file a Writ under s18 of the Federal Court Act challenging a Progress Summary Report which pertained to his parole. The inmate had two problems; first, he was out of time under s18.1(2) of the Federal Court Act and second, s18.1(2) refers to a "decision or order of a federal board, commission or other tribunal". A Progress Summary report is not a "decision or order". As a general rule, the extension of time will be granted if the entire span of the delay is satisfactorily accounted for and if the applicant discloses a fairly arguable case within the court's jurisdiction. The inmate had explained the delay fairly well, but his disclosure of an arguable case left much to be desired. The court held, however, that the inmate was entitled to be heard on the issue of whether judicial review should lie in regards to reports which cause displeasure to inmates. It extended the time period for bringing the application.

18.2 Interim orders - On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.
1990, c. 8, s. 5.

18.3 (1) Reference by federal tribunal - A federal board, commission or other tribunal may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Trial Division for hearing and determination..
(2) Reference by Attorney General of Canada - The Attorney General of Canada may, at any stage of the proceedings of a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations thereunder, to the Trial Division for hearing and determination.
1990, c. 8, s. 5.

18.4 (1) Hearings in summary way - Subject to subsection (2), an application or reference to the Trial Division under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
(2) Exception - The Trial Division may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
1990, c. 8, s. 5.

18.5 Exception to sections 18 and 18.1 - Notwithstanding sections 18 and 18.1, where provision is expressly made by an Act of Parliament for an appeal as such to the Court, to the Supreme Court of Canada, to the Court Martial Appeal Court, to the Tax Court of Canada, to the Governor in Council or to the Treasury Board from a decision or order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.
1990, c. 8, s. 5.



25. Extraprovincial jurisdiction - The Trial Division has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.
R.S., c. 10(2nd Supp.), s. 25.

26. (1) General original jurisdiction - The Trial Division has original jurisdiction in respect of any matter, not allocated specifically to the Court of Appeal, in respect of which jurisdiction has been conferred by any Act of Parliament on the Federal Court, whether referred to as such or as the Exchequer Court of Canada.
(2) Transfer of original jurisdiction to Court of Appeal - Notwithstanding subsection (1), the Rules may transfer to the Court of Appeal original jurisdiction to hear and determine a specified class of matter to which that subsection applies.
R.S., c. 10(2nd Supp.), s. 26.

JURISDICTION OF FEDERAL COURT OF APPEAL

27. (1) Appeals from Trial Division - An appeal lies to the Federal Court of Appeal from any
(a)		final judgment,
(b)		judgment on a question of law determined before trial,
(c)		interlocutory judgment, or
(d)		determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada,
of the Trial Division.
(1.1) Appeals from Tax Court of Canada - An appeal lies to the Federal Court of Appeal from
(a)		a final judgment,
(b)		a judgment on a question of law determined before trial, or
(c)		an interlocutory judgment or order
of the Tax Court of Canada, other than one in respect of which section 18, 18.29, 18.3 or 18.3001 of the Tax Court of Canada Act applies.
(2) Notice of appeal - An appeal under this section shall be brought by filing a notice of appeal in the Registry of the Court
(a)		in the case of an interlocutory judgment, within ten days, and
(b)		in any other case, within thirty days, in the calculation of which July and August shall be excluded,
after the pronouncement of the judgment or determination appealed from or within such further time as the Trial Division or the Tax Court of Canada, as the case may be, may, either before or after the expiration of those ten or thirty days, as the case may be, fix or allow.
(3) Service - All parties directly affected by an appeal under this section shall be served forthwith with a true copy of the notice of appeal and evidence of service thereof shall be filed in the Registry of the Court.
(4) Final judgment - For the purposes of this section, a final judgment includes a judgment that determines a substantive right except as to any question to be determined by a referee pursuant to the judgment.
R.S., 1985, c. F-7, s. 27; R.S., 1985, c. 51 (4th Supp.), s. 11; 1990, c. 8, ss. 7, 78(E); 1993, c. 27, s. 214.

28. (1) Judicial review - The Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals:
(a)		the Board of Arbitration established by the Canada Agricultural Products Act;
(b)		the Review Tribunal established by the Canada Agricultural Products Act;
(c)		the Canadian Radio-television and Telecommunications Commission established by the Canadian Radio-television and Telecommunications Commission Act;
(d)		the Canadian Radio-television and Telecommunications Commission established by the Canadian Radio-television and Telecommunications Commission Act;
(e)		the Canadian International Trade Tribunal established by the Canadian International Trade Tribunal Act;
(f)		the National Energy Board established by the National Energy Board Act;
(g)		[Repealed, 1992, c. 49, s. 128]
(h)		the Canada Industrial Relations Board established by the Canada Labour Code;
(i)		the Public Service Staff Relations Board established by the Public Service Staff Relations Act;
(j)		the Copyright Board established by the Copyright Act;
(k)		the Canadian Transportation Agency established by the Canada Transportation Act;
(l)		the Tax Court of Canada established by the Tax Court of Canada Act;
(m)		umpires appointed under the Employment Insurance Act;
(n)		the Competition Tribunal established by the Competition Tribunal Act;
(o)		assessors appointed under the Canada Deposit Insurance Corporation Act; and
(p)		the Canadian Artists and Producers Professional Relations Tribunal established by subsection 10(1) of the Status of the Artist Act.
(2) Sections apply - Sections 18 to 18.5, except subsection 18.4(2), apply, with such modifications as the circumstances require, in respect of any matter within the jurisdiction of the Court of Appeal under subsection (1) and, where they so apply, a reference to the Trial Division shall be read as a reference to the Court of Appeal.
(3) Trial Division deprived of jurisdiction - Where the Court of Appeal has jurisdiction to hear and determine any matter, the Trial Division has no jurisdiction to entertain any proceeding in respect of the same matter.
R.S., 1985, c. F-7, s. 28; R.S., 1985, c. 30 (2nd Supp.), s. 61; 1990, c. 8, s. 8; 1992, c. 26, s. 17, c. 33, s. 69, c. 49, s. 128; 1993, c. 34, s. 70; 1996, c. 10, s. 229, c. 23, s. 187; 1998, c. 26, s. 73; 1999, c. 31, s. 92(E).

Editorial Note - Pursuant to an arrangement with the Associate Chief Justice, an application that can be made to a single judge of the Court of Appeal can be made to a judge of the Trial Division sitting to hear motions. Consequently a motion for an extension of time under s28(2) can be made to a judge of the Trial Division sitting to hear motions. The applicant should also consider whether or not the motion should be made in writing under Federal Court Rule 324.

*Judicial Consideration* -

Attorney General of Canada v Daniels - Unreported, June 6, 1991 No. 5038 (Sask CA)
		- I See annotation under s18 of the Federal Court Act.

Martineau and Butters v Matsqui Institution Inmate Disciplinary Board (No.1) - [1978] 1 SCR 118, 14 NR 285, 33 CCC (2d) 366,74 DLR (3d) 1
		- Decisions of federal In- mate Disciplinary Boards are purely administrative decisions and are not required "by law" to be made on a judicial or quasi-judicial basis within the meaning of s28 of the Federal Court Act and consequently there is no jurisdiction in the Court of Appeal to review such decisions. The Commissioner's Directives which set out a procedure analogous to a judicial or quasi-judicial process do not have the force of law and consequently the Board is not "required by law" to act on a judicial or quasi-judicial basis. Just because "rights" are affected, does not mean that there is a duty to act on a judicial or quasi-judicial basis.

Editorial Note - See also the earlier decision of the Federal Court of Appeal in these proceedings, [1976] 2 FC 198, which was affirmed by the Supreme Court of Canada.

See also the decision of the Supreme Court of Canada in Martineau v. Matsqui Institution Disciplinary Board (No.2) (1979), 30 NR 119, 106 DLR (3d) 385, 50 CCC (2d) 353, pertaining to the jurisdiction of the Federal Court Trial Division under s18 which reversed the judgment of the Federal Court of Appeal, [1978] 2 FC 637, and restored the earlier decision of Mahoney, J. in the Trial Division, [1978] 1 FC 312. In considering the jurisdiction of the Federal Court of Appeal under S18, see also Minister of National Revenue v Coopers and Lybrand, [1979] 1 SCR 495, 92 DLR (3d) 1.

Howarth v National Parole Board - [1976] 1 SCR 453,3 NR 391,50 DLR (3d) 409,18 CCC (2d) 385
		- The decision of the National Parole Board to revoke a parole is a purely administrative decision, not required by law to be made on a judicial or quasi-judicial basis within the meaning of s28 of the Federal Court Act and consequently the Court of Appeal did not have jurisdiction to review such decisions. A s28 application is an exception to s18 which leaves intact all common law remedies in cases in which s28 is without application. Section 18 confers supervisory jurisdiction over federal boards generally upon the Trial Division without any restriction as to the nature of the remedy under consideration, whereas s28 is restricted in its application to judicial decisions or to administrative decisions required by law to be made on a judicial or quasi- judicial basis.

Editorial Note - The provisions of the Parole Act and the Parole Regulations have been substantially amended since this decision to provide a right to a hearing on the question of whether or not a parole should be granted and on the question of suspension and revocation of parole. The Regulations also entitle the parolee to be provided with all the relevant information in the possession of the Board prior to certain hearings and the right to reasons for the decision. Quaere: Now that hearings are "required by law" in the Regulations does this change the nature of the board's decision into one "required by law to be made on a judicial or quasi-judicial basis"? If so, the Federal Court of Appeal now has jurisdiction under s28. If not, the Trial Division has jurisdiction under s18. Earlier decisions holding a lack of jurisdiction under s28 over the National Parole Board are Auger v Canadian Penitentiary Service et al, [1975] FC 330 (TD); In Re Nicholson, [1975] FC 478 (TD).