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Judicial Review - Federal versus Provincial Courts. Strickland v. Canada (Attorney General)
In Strickland v. Canada (Attorney General) (SCC, 2021) the Supreme Court of Canada considered when provincial superior court were better suited to hear judicial review applications regarding challenges to federal regulations, here whether child support guidelines were ultra vires the Divorce Act. In the course of the case the court canvassed the relatively recent history of judicial review in the federal courts - and the Telezone principle, which set out that provincial superior courts, having extensive practical experience of such cases with actual facts - were better positioned to hear them:(2) Section 18 and the Federal Court’s Exclusive Jurisdiction
[16] In 1970, Parliament enacted the Federal Court Act, S.C. 1970-71-72, c. 1. The Act was subsequently renamed the Federal Courts Act, S.C. 2002, c. 8, s. 14, which is the legislation in force today. For clarity, when I refer to the “Act” in these reasons, I refer to the enactment that was in force at the relevant time.
[17] Before the Act, judicial review of federal administrative action was conducted by the provincial superior courts as an aspect of their inherent jurisdiction. However, with the growth of federal regulatory regimes and administrative tribunals, several disadvantages of this arrangement became apparent. These included the possibility of multiple proceedings involving a federal decision that could lead to conflicting decisions and “a perceived lack of familiarity with federal legislation by judges who encountered it only occasionally”: D. J. M. Brown and J. M. Evans, with the assistance of C. E. Deacon, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 2:4100.
[18] To respond to these concerns, Parliament consolidated judicial review of federal boards, commissions and tribunals within the exclusive jurisdiction of the Federal Court: s. 18 of the Act. This, it was hoped, would ensure uniformity and prevent a multiplicity of proceedings: see, e.g., TeleZone, at paras. 49-50; Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, at para. 35. The then-Minister of Justice stated that this consolidation was “designed to create a single and uniform basis of superintending jurisdiction in relation to federal boards and commissions and to place them on the same footing in this regard as provincial boards and commissions”: TeleZone, at para. 50, citing House of Commons Debates, vol. V, 2nd Sess., 28th Parl., March 25, 1970, at p. 5471. Thus, with the passage of the Act, Parliament “remove[d] from the superior courts of the provinces the jurisdiction over prerogative writs, declarations, and injunctions against federal boards, commissions and other tribunals and . . . place[d] that jurisdiction (slightly modified) in a new federal court”: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 34; see also Paul L’Anglais Inc., at p. 154.
[19] The Act also gave the Federal Court exclusive jurisdiction over proceedings against the federal crown: s. 17. However, this scheme proved unworkable in practice by virtue of the constitutional limits of the court’s jurisdiction under s. 101 of the Constitution Act, 1867. That meant that the Federal Court generally had no jurisdiction over Crown servants or over other co-defendants, third parties or defendants by counterclaim and that those persons and proceedings had to be addressed in parallel proceedings in the provincial superior courts. This unsatisfactory state of affairs was resolved by amendments in 1990 making the Federal Court’s jurisdiction over claims against the federal Crown concurrent with that of the provincial superior courts rather than exclusive: S.C. 1990, c. 8, s. 3; and see generally, P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 1, at pp. 7-33 and 7-34. Thus, since 1990, the Federal Court’s exclusive jurisdiction with respect to judicial review is a qualification of the general rule of concurrent jurisdiction between it and the provincial superior courts.
(3) The TeleZone Principle
[20] I have already referred briefly to the practical problems which arose by virtue of the attempt to confer on the Federal Court exclusive jurisdiction over claims against the federal Crown. The conferral of exclusive jurisdiction in judicial review of federal tribunals has also given rise to some practical problems. The main one, which arose in a line of recent cases, is whether this exclusive judicial review jurisdiction means that a claim for damages based on allegedly unlawful conduct by a federal board, commission or tribunal cannot be brought in the provincial superior courts without the claimant first successfully applying for judicial review of that conduct in the Federal Court: TeleZone; Canada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626; Canadian Food Inspection Agency v. Professional Institute of the Public Service of Canada, 2010 SCC 66, [2010] 3 S.C.R. 657.
[21] The Attorney General of Canada adopted the position that bringing an action in the provincial superior courts without first challenging the legality of the conduct by way of judicial review in the Federal Court was an impermissible evasion of the Federal Court’s exclusive judicial review jurisdiction under s. 18 and therefore constituted an impermissible collateral attack on the actions of the federal tribunal. This Court, however, unanimously rejected this contention, noting that accepting it would create a “bottleneck” that was “manifestly not the intention of Parliament”: TeleZone, at para. 3.
[22] TeleZone and the related cases, although they did not decide the precise point in issue here, support the principle that the provincial superior courts have the authority to consider and rule on the legality of the actions of federal tribunals when doing so is a necessary step in adjudicating claims properly before the superior courts. As in my view this principle is central to this case, a brief review of the key cases is in order.
[23] In TeleZone, the plaintiff company sued the federal government in the Ontario Superior Court of Justice, seeking damages in tort, contract and equity stemming from a decision not to include TeleZone among the successful bidders for licences to provide personal communication services — essentially a cell phone network. It alleged that the Minister of Industry Canada had breached a term of the department’s policy statement which had accompanied its call for licence applications and had failed to treat TeleZone fairly as required by the tendering process. TeleZone neither impugned the Minister’s decision to issue the licences nor sought a licence for itself. It simply sought damages for the Minister’s allegedly illegal conduct in denying it a licence and for failing to treat it fairly. The Crown argued that by virtue of the Federal Court’s exclusive jurisdiction under s. 18 of the Act, TeleZone could not advance these claims in the Superior Court unless it first obtained from the Federal Court an order quashing the Minister’s decision.
[24] The Court rejected the Crown’s position, holding that the Ontario Superior Court of Justice could determine whether the Minister’s decision was lawful or not for the purposes of the damages claim. The claim as pleaded was “dominated by private law considerations”: TeleZone, at para. 80. The Court explained that the grant of exclusive jurisdiction in s. 18 must be understood in the broader context of the Act. Section 17 of the Act (as amended in 1990) explicitly confers concurrent jurisdiction on the provincial superior courts “in all cases in which relief is claimed against the Crown”. The exclusive jurisdiction provision in s. 18 must be understood as “a reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s. 17”: para. 5. Thus, the provincial superior courts may exercise their concurrent jurisdiction where the attack on a law or an order is essential to the cause of action and adjudication of that allegation is a necessary step in disposing of the claim: para. 67. As Binnie J. put it on behalf of the Court, s. 18 of the Act does not “shield the Crown from private law damages involving [federal boards, commissions and tribunals] in respect of losses caused by unlawful government decision making without first passing through the Federal Court”: para. 3. The provincial superior courts, in the context of matters properly before them, have the authority “to determine every legal and factual element necessary for the granting or withholding of the remedies sought”, including the potential unlawfulness of government orders: para. 6. Binnie J. was careful to point out that this principle will not apply unless the validity of the underlying order is genuinely a necessary step in an otherwise valid proceeding and is not simply made to appear as such as the result of “artful pleading”: para. 75.
[25] The companion case of McArthur supports the premise relied on by the Federal Court in this appeal. In McArthur, the plaintiff sued the federal Crown in the Ontario Superior Court of Justice. He sought damages and constitutional remedies for what he alleged was wrongful or false imprisonment and emotional harm stemming from time he spent in solitary confinement, segregation and a special handling unit. The Court stated the issue to be whether Mr. McArthur could pursue his damages claim in the Superior Court for arbitrary detention and alleged mistreatment without first seeking judicial review in the Federal Court to quash the segregation orders that were the basis of his claim: para. 1. Mr. McArthur alleged that the segregation orders were made without just cause and lacked the reasonable grounds required under the relevant statute. As Binnie J. noted, Mr. McArthur was “putting in issue the lawfulness or validity of the segregation orders, but he [did] so as an element of a private law cause of action over which the provincial superior court ha[d] jurisdiction”: para. 13.
[26] The Court rejected the Crown’s position that Mr. McArthur must first seek judicial review in the Federal Court to quash the segregation orders that founded his claim: paras. 2 and 11. The Superior Court had jurisdiction to entertain the claim because its authority extended to “the person and the subject matter in question and, in addition, [because it] has authority to make the order sought”: para. 17, citing Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 960, quoting Brooke J.A. in R. v. Morgentaler (1984), 1984 CanLII 55 (ON CA), 41 C.R. (3d) 262 (Ont. C.A.), at p. 271. Thus, in adjudicating the claim, the Court could consider “the validity of Mr. McArthur’s detention in the context of a damages claim, as well as the impact, if any, of a valid order on Crown liability”: para. 15 (emphasis in original). Binnie J. concluded that “[t]here is nothing in the Federal Courts Act to give the Federal Court the exclusive jurisdiction to determine the lawfulness or validity of the order of a ‘federal board, commission or other tribunal’ when Mr. McArthur does not seek any of the remedies listed in s. 18 of the Federal Courts Act”: para. 17.
[27] I acknowledge that, unlike in McArthur, the appellants in this case do seek a s. 18 remedy, a declaration of invalidity. However, the question at this point in the analysis focuses on the authority of the superior courts to deal with the Guidelines. McArthur strongly supports the premise of the Federal Court’s decision in the present case, that is, that the provincial superior courts have the authority to determine the “lawfulness or validity” of the Guidelines in the course of proceedings properly before them in which doing so is a necessary step in resolving those proceedings. As I will discuss below, this was a key consideration for the federal courts in exercising discretion not to undertake judicial review.
[28] In the last of the relevant cases in the TeleZone line, Canadian Food Inspection Agency, the Agency contested the jurisdiction of the Quebec Superior Court to entertain recourses in warranty alleging that a direction the Agency had issued was the cause of any damage meat producers had suffered from being unable to market some of their product: para. 9. The Agency’s position was that the claims could not succeed without first attacking the lawfulness or validity of its decision by way of judicial review in the Federal Court: paras. 16 and 20. Once again, this Court affirmed that “[s]uccessfully challenging an administrative decision of a federal board on judicial review is not a requirement for bringing an action for damages with respect to that decision”: para. 21. Since the Quebec Superior Court had jurisdiction over the parties and the subject matter of the dispute, the claims were properly before it: para. 29.
[29] This decision, too, supports the premise of the Federal Court in the present case: the superior court can rule on the legality of the federal administrative action in proceedings properly before it in which deciding that issue is an essential step.
[30] Another line of cases illustrates and supports this approach. They affirm the view that a provincial superior court dealing with an application for habeas corpus with certiorari in aid can assess the legality of detention resulting from the decision of a federal board. These cases rejected the contention that certiorari in aid of habeas corpus was no longer available in the provincial superior courts by virtue of the exclusive jurisdiction provision in s. 18 of the Act.
[31] In R. v. Miller, 1985 CanLII 22 (SCC), [1985] 2 S.C.R. 613, the Court noted that Parliament intended to leave with provincial superior courts “the jurisdiction by way of habeas corpus to review the validity of a detention imposed by federal authority”: p. 624. This parliamentary intent combined with the importance of certiorari in aid to the effectiveness of habeas corpus led the Court to conclude that a provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to assess the validity of detention: p. 625. Certiorari in aid was considered to be distinct from the writ of certiorari to quash a decision of a federal authority and was therefore not within the exclusive jurisdiction of the Federal Court by virtue of s. 18. In May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, the Court reaffirmed this principle as it did once again most recently in Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502. The Court held that reasonableness of the decision to detain should be regarded as one element of its lawfulness. It followed that the provincial superior court may review for reasonableness in deciding an application for habeas corpus even though the court would, in effect although not in form, be assessing the legality on administrative law grounds of the federal board’s conduct and orders: para. 65.
(4) Conclusion on the First Issue
[32] The Federal Court of Appeal held that the Federal Court judge “did not err in law when she concluded that the provincial superior courts have jurisdiction to determine the vires of the Guidelines in the context of proceedings for which they have jurisdiction under the Divorce Act and to decline to apply them if found to be ultra-vires”: para. 7. I agree.
[33] The Court’s jurisprudence, which I have just reviewed, supports the principle that the provincial superior courts, in the context of proceedings properly before them, can address the legality of the conduct of federal boards, commissions and tribunals, where doing so is a necessary step in resolving the claims asserted in those proceedings. This means that in the context of family law proceedings otherwise properly before them, the provincial superior courts can decide that the Guidelines are ultra vires and decline to apply them if doing so is a necessary step in resolving the matters before them. It follows that the appellants’ position to the contrary on this point must be rejected and that the premise underlying the decisions of the Federal Courts to decline jurisdiction was correct.
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