[1973] F.C. 1223, 41 D.L.R. (3d) 574

1973 CarswellNat 99

Landreville v. R.

Leo A. Landreville (Plaintiff) v. The Queen (Defendant)

Federal Court of Canada -- Trial Division

Pratte J.

Ottawa: November 21, 1973

Ottawa: December 11, 1973

Counsel: Gordon F. Henderson, Q.C., and Y.A. George Hynna for plaintiff.

I.G. Whitehall and Paul Betournay for defendant.

Subject: Civil Practice and Procedure

Judges and Courts --- Exchequer and Federal Courts -- Jurisdiction.

Practice --- Judgments and orders -- Declaratory judgments or orders.

Jurisdiction -- Certiorari against Crown -- Royal Commission -- Report of, effect -- Jurisdiction to quash -- Declaratory judgment -- Jurisdiction to grant -- Federal Court Rule 474(1).

The plaintiff brought an action for a declaration that the appointment of a Commissioner to inquire into certain dealings between the Northern Ontario Natural Gas Ltd. and himself while he was a judge of the Supreme Court of Ontario was ultra vires and that the Commissioner did not conduct the inquiry as he should. Also the plaintiff asked for a writ of certiorari to remove all papers and documents relating to the inquiry to this Court and for a declaration quashing the report. The defendant challenged the jurisdiction of the Court to make these declarations on the ground that the matter is purely academic and the declarations would have no effect.

Three questions were submitted to the Court for opinion before trial: 1. Has the Court jurisdiction to issue a writ of certiorari against the Queen?; 2. Has the Court jurisdiction to quash the report of the Royal Commission?; 3. Has the Court jurisdiction to grant the declaratory relief asked for?

Held, the Court refused to answer the first question, as it has the right to do under Rule 474(1), on the ground that certiorari does not, in any event, lie in this case. The answer to the second question is in the negative. The report of a Royal Commission does not have any legal effect and, therefore, the Court cannot obliterate it. Certiorari only lies to quash something that is a determination or decision. In answer to the third question, the Court has the jurisdiction to make a declaration which, though devoid of any legal effect, would, from a practical point of view, serve some useful purpose.

Merricks v. Nott-Bower, [1964] 1 All E.R. 717, followed.

Reference to the Court for the determination of three questions of law before trial.

Pratte J.:

1 The parties to this action have agreed to submit three questions of law for determination before trial.

2 The plaintiff's Declaration reads as follows:

1. The Plaintiff is a Solicitor residing and carrying on the practice of his profession in the City of Ottawa, in the Judicial District of Ottawa-Carleton, Province of Ontario.

2. The Plaintiff was appointed a Judge of the Supreme Court of Ontario on the 10th day of October, 1956, and carried out his duties as a Judge of that Court until the month of June, 1967.

3. Letters Patent bearing date the 2nd day of March, 1966, purported to appoint the late Honourable Ivan C. Rand (hereinafter referred to as "the Commissioner") a Commissioner whose duties as set out in the said Letters Patent were to: --

(a) inquire into the dealings of the Honourable Mr. Justice Leo A. Landreville with Northern Ontario Natural Gas Limited or any of its officers, employees or representatives, or in the shares of the said Company; and

(b) advise whether, in the opinion of Our Commissioner, anything done by Mr. Justice Landreville in the course of such dealings constituted misbehaviour in his official capacity as a judge of the Supreme Court of Ontario or whether the Honourable Mr. Justice Landreville has by such dealings proved himself unfit for the proper exercise of his judicial duties;.

4. The said Letters Patent purported to be issued pursuant to the Order-in-Council P.C. 1966-128 approved on the 19th day of January, 1966. The said Order-in-Council purported to be passed under Part I of the Inquiries Act, being Chapter 154 of the Revised Statutes of Canada, 1952. The Plaintiff asks leave to refer to the said Letters Patent and Order-in-Council at the trial of this action. The conduct of a judge of a Superior Court cannot be the subject of an inquiry under the Inquiries Act and, for this and other reasons, the Order-in-Council is ultra vires and void.

5. The Commissioner proceeded to make an Inquiry and held public hearings on eleven days during the months of March and April, 1966.

6. On August 11, 1966, the Commissioner made a Report to His Excellency. The Plaintiff asks leave to refer to the said Report at the trial of this action.

7. In conducting the said Inquiry and in making the said Report, the Commissioner failed to act judicially, acted outside of, and in excess of, any jurisdiction which he possessed and failed to act in accordance with the principles of natural justice in the following and other respects:

(a) Instead of confining his Inquiry and Report to the matters into which he was by the Letters Patent directed to inquire, he entered upon inquiry as to irrelevant matters and made in his Report findings as to irrelevant matters and statements as to the character and personality of the Plaintiff which are damaging to him;

(b) He introduced in his Report statements of fact as to which there was no evidence, drew improper conclusions from such statements of fact to the detriment of the Plaintiff and further he appended to his Report a lengthy document said to have been issued by the Law Society of Upper Canada containing statements and expressions of opinion damaging to the Plaintiff, which document was inadmissible in evidence, was not properly proved and had been issued without the Law Society having given the Plaintiff any opportunity to be heard;

(c) He made the Report in violation of the terms of Section 13 of the Inquiries Act in that at the conclusion of hearing testimony the Commissioner stated that he adjourned the hearing and reserved his opinion and thereafter he made his Report without giving to the Plaintiff reasonable, or any, notice of the charge or charges of misconduct which the Commissioner was of opinion had been established and without allowing the Plaintiff full, or any, opportunity to be heard in person or by counsel in regard thereto;

(d) In such further and other respects as may appear from a reading of the said Letters Patent, the said Report and all records, proceedings, papers and transcripts of evidence relating to the said Inquiry.

8. The making and the existence of the said Report have caused and continue to cause injury and damage to the Plaintiff and infringe his rights to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit.

The Plaintiff claims as follows:

(a) A Declaration that the appointment of the said Commissioner was not authorized by the Inquiries Act and that consequently the said Report is null and void;

(b) A Declaration that, if the said Commissioner was validly appointed to hold an Inquiry and make a Report, which the Plaintiff denies, the said Report made by the Commissioner on August 11, 1966, should be removed into this Court to be quashed by reason of the matters set out in paragraph 7 of this Declaration;

(c) That a Writ of Certiorari be issued removing into this Court the said Report and all records, proceedings, papers and transcripts of evidence relating to the said Inquiry and to quash the said Report;

(d) His costs of this proceeding;

(e) Such further and other relief as the Plaintiff may be entitled to and as to this Court may seem meet.

3 The three questions of law that the parties have agreed to submit to the Court are the following:

1. Whether this Honourable Court has jurisdiction to issue a Writ of Certiorari against Her Majesty the Queen;

2. Whether this Honourable Court has jurisdiction to quash the report of the Royal Commission appointed by letters patent bearing date the 2nd day of March, 1966;

3. Whether this Honourable Court has jurisdiction to grant a declaration in the circumstances alleged in the Statement of Claim herein;

4 Before going any further, two observations are in order. The first relates to the prayer for relief in the plaintiff's Declaration; the second concerns the questions submitted for preliminary determination. A. The prayer for relief -- At first sight, it would seem that subparagraphs (b) and (c) of the prayer for relief relate to the same remedy. In both these subparagraphs, the plaintiff seems to claim the issue of a writ of certiorari. However, as it is unlikely that the plaintiff actually wanted to claim the same relief twice, I think that subparagraph (b) of the prayer for relief should not be construed literally. I will therefore assume that in subparagraph (b) the plaintiff claims a declaration that the Commissioner, for the reasons set out in paragraph 7 of the Declaration, conducted his inquiry irregularly and that his report should be quashed. B. The questions submitted for determination -- When an application such as the present one is made, the Court is not bound to determine the questions submitted by the parties. Rule 474 of the Federal Court Act reads in part as follows:

Rule 474. (1) The Court may, upon application, if it deems it expedient so to do,

(a) determine any question of law that may be relevant to the decision of a matter, ....

5 In the present case, I will not answer the first of the three questions submitted. In my view, it is not expedient to determine in this case whether the Court has jurisdiction to issue a writ of certiorari against Her Majesty the Queen. Even if the Court had that jurisdiction, it is my opinion, as I will mention later, that certiorari does not lie in this case.

6 I shall now turn to the two remaining questions.

1. Has the Court jurisdiction to quash the report of the Royal Commission?

7 The answer to this question is in the negative. The report of a Royal Commission does not have any legal effect. Once made, it is a mere document which, by the very nature of things, the Court cannot obliterate.

8 For the same reason, certiorari does not lie in this case. The Royal Commission had no power to make a decision and it is well established that certiorari only lies to quash something which is a determination or a decision. (R. v. Statutory Visitors to St. Lawrence's Hospital, [1953] 2 All E.R. 766; R. v. Ontario Labour Relations Board, 57 D.L.R. (2nd) 521; The Queen v. Board of Broadcast Governors, 33 D.L.R. (2nd) 449.)

2. Has the Court jurisdiction to grant a declaration in the circumstances alleged in the plaintiff's Declaration?

9 This question refers to the "jurisdiction" of the Court. The meaning of the term "jurisdiction", when applied to a court of justice, was considered by Bankes L.J., in Guaranty Trust Company of New York v. Hannay & Company , [1915] 2 K.B. 536 at page 567:

The term appears to be used in a double sense, sometimes as referring to a case where the matter in dispute is such that it is impossible for any Court, or sometimes for a particular Court, to entertain it; as for instance where a Court is asked to enforce an agreement which is made void by statute, or, as in Barraclough v. Brown, [1897] A.C. 615, where exclusive jurisdiction had been given by statute to a Court other than that in which the application was made; and sometimes as referring to a case where the particular Court refused to entertain some matter in dispute on the ground that it was not matter proper or convenient for it to adjudicate upon.

10 In the present case the "jurisdiction" of the Court to grant declaratory relief, in the first sense of the term, is not challenged. It is common ground that in a proper case the Court has jurisdiction to grant declaratory relief in an action brought against the Crown or the Attor ney General. What is here in question is the "jurisdiction" of the Court in the second sense of that term. In that sense, it is frequently said, for instance, that the Court does not have the jurisdiction to make declarations on purely hypothetical issues. (See: Zamir: The Declaratory Judgment, Stevens & Sons Limited, 1962; Mellstrom v. Garner, [1970] 2 All E.R. 9, at page 10, line g.)

11 The plaintiff, according to my interpretation of his Declaration, seeks two declarations: first, that the appointment of the Commissioner was ultra vires and, second, that the Commissioner did not conduct the inquiry as he should.

12 Counsel for the defendant challenged the "jurisdiction" of the Court to make these declarations on the ground that they would have no effect. The inquiry was conducted and the report was made many years ago. In these circumstances the question of the validity of the appointment of the Commissioner or of the irregularities he might have committed in the conduct of the inquiry are purely academic. The Court is empowered, said counsel, to grant declaratory relief; but in the present case the making of the declarations sought would not afford any relief to the plaintiff. In support of his submission, counsel referred me to the following authorities: Guaranty Trust of New York v. Hannay & Company, [1915] 2 K.B. 536; Maerkle v. British & Continental Fur Co., Ltd., [1954] 3 All E.R. 50; Hugh W. Simmons Limited v. Foster, [1955] S.C.R. 324; Charleston v. MacGregor (1958) 11 D.L.R. (2nd) 78. Counsel for the plaintiff retorted that the declarations sought would greatly benefit the plaintiff. He stressed the fact that, as alleged in the Declaration, the plaintiff's reputation had been greatly damaged by the report of the Commissioner. A declaration that the Commissioner had conducted his inquiry in disregard of the principles of natural justice would, counsel said, contribute to restore the plaintiff's reputation. As to the declaration concerning the invalidity of the Commissioner's appointment it would also, argued counsel, benefit the plaintiff since he thought it likely that such a declaration would incite the authorities to compensate the plaintiff for the damage suffered by him as a consequence of the inquiry; counsel also said that it was in the public interest that it be known that the conduct of a judge of a superior court cannot be the subject of an inquiry under the Inquiries Act.

13 These contradictory submissions can be briefly summarized. Counsel for the defendant argued that the declarations sought could not be made because they would not have any legal effect. Counsel for the plaintiff contended that these declarations could be made because they would, from a purely practical point of view, be beneficial to the plaintiff.

14 The question to be answered is therefore whether this Court has jurisdiction to make a declaration on a legal issue in a case where the declaration would be devoid of legal effects but would likely have some practical effects. This question was considered by Lord Denning M.R. and by Lord Salmon in Merricks v. Nott-Bower, [1964] 1 All E.R. 717. The two plaintiffs in that case were police officers. In 1957, following a report made by an inspector, they had been transferred from one Sub-Division of the Metropolitan police to another. In 1963, more than six years after their transfer, they brought an action seeking declarations that the transfers had been made without regard to the Police Regulations and without regard to the principles of natural justice. The defendants moved to strike out the statement of claim on the ground that the relief claimed by way of declarations was of no effect. The Court of Appeal dismissed this motion. The following observations made by the Master of Rolls (at page 721) deserve to be cited:

Then it is said: Accepting that view, what is the relief claimed? All that is claimed is a series of declarations, all of them to the effect that the transfer was made without regard to the regulations and without regard to the principles of natural justice. It is asked: What use can such declarations be at this stage, when the transfer took place six and a half years ago? What good does it do now? There can be no question of re-opening the transfers. The plaintiffs have been serving in these other divisions all this time. They cannot be transferred back to Peckham. On this point we have been referred to a number of cases which show how greatly the power to grant a declaration has been widened in recent years. If a real question is involved, which is not merely theoretical, and on which the court's decision gives practical guidance, then the court in its discretion can grant a declaration. A good instance is the recent case on the football transfer system decided by WILBERFORCE, J., Eastham v. Newcastle United Football Club. Ltd. ([1963] 3 All E.R. 139). Counsel for the plaintiffs said that, in this particular case, the declaration might be of some use in removing a slur which was cast against the plaintiffs by the transfer. He also put it on the wider ground of the public interest that the power to transfer can only be used in the interests of administrative efficiency and not as a form of punishment. He said that it would be valuable for the court so to declare. Again on this point, but without determining the matter, it seems to me that there is an arguable case that a declaration might serve some useful purpose. We cannot at this stage say that the claim should be rejected out of hand.

As to Lord Salmon, he had this to say on the same subject (at page 724):

It is said: Even if the plaintiffs' rights under the regulations were infringed, what good could the remedies which are claimed by the plaintiffs do them? Can they benefit by these declarations? If a plaintiff seeks some declaration in which he has a mere academic interest, or one which can fulfil no useful purpose, the court will not grant the relief claimed. In this case, however, again without deciding the point in any way, it seems to me clearly arguable that, if the declarations are made, they might induce those in authority to consider the plaintiffs' promotion, there being some evidence that the alleged transfers by way of punishment have prejudiced, and whilst they remain will destroy, the plaintiffs' chances of promotion. Again, it has been vigorously argued by counsel on behalf of the defendants that, even if the transfers had been used by way of punishment, still there was no breach of the regulations since the regulations confer an absolute unfettered power to transfer for any reason. If this declaration were to be made, it would make plain for the benefit of the whole Metropolitan Police Force that, contrary to the argument addressed to this court on behalf of the defendant, the present Commissioner, the regulations do in law prohibit a transfer by way of punishment.

15 From this, I infer that the Court has the jurisdiction to make a declaration which, though devoid of any legal effect, would, from a practical point of view, serve some useful purpose.

16 For these reasons, I am of the opinion that, in the circumstances alleged in the plaintiff's Declaration, the Court in its discretion could grant the declaration sought.

17 The costs of this application shall be in the cause.

Solicitors of record:

Gowling and Henderson, Ottawa, for plaintiff.

Deputy Attorney General of Canada for defendant.

History

(Showing 6 of 6 documents)

Direct History

Landreville v. R., 41 D.L.R. (3d) 574, [1973] F.C. 1223, 1973 CarswellNat 99 (Fed. T.D. Dec 11, 1973)

Negative Judicial Treatments (Canada)

Distinguished in

Rothmans of Pall Mall Canada Ltd. v Minister of National Revenue, 60 D.L.R. (3d) 650, [1976] 1 F.C. 314, [1976] C.T.C. 332, 1975 CarswellNat 337, 1975 CarswellNat 366 (Fed. T.D. Jul 28, 1975)

Royal Commission Inquiry into the Royal American Shows Inc. (No. 2), Re, [1977] 6 W.W.R. 673, 39 C.C.C. (2d) 28, 1977 CarswellAlta 248 (Alta. Bd. of Inquiry Sep 06, 1977)

Shea v. Manitoba Public Insurance Corp., [1994] 2 W.W.R. 580, 20 C.C.L.I. (2d) 161, 37 B.C.A.C. 147, 85 B.C.L.R. (2d) 347, 1993 CarswellBC 325, 60 W.A.C. 147, [1993] B.C.W.L.D. 2987 (B.C. C.A. Nov 24, 1993)

Brown v. Alberta, [1999] 3 W.W.R. 730, 225 A.R. 333, 64 Alta. L.R. (3d) 62, 1998 CarswellAlta 693, 24 C.P.C. (4th) 269, [1998] A.J. No. 871 (Alta. Q.B. Jul 28, 1998)

Toronto Dominion Bank v Real Estate Council (Alberta), [2002] 6 W.W.R. 276, 316 A.R. 280, 2002 CarswellAlta 155, 2002 ABQB 69, [2002] A.W.L.D. 179, [2002] A.J. No. 75, 1 Alta. L.R. (4th) 154 (Alta. Q.B. Jan 21, 2002)

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