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The Jurisdictional Fact Doctrine in the Supreme Court of Canada-A Mitigating Plea

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The Jurisdictional Fact Doctrine in the Supreme Court of Canada-A Mitigating Plea Osgoode Hall Law Journal Article 7 Volume 10, Number 2 (October 1972) The urJ isdictional Fact Doctrine in the Supreme Court of Canada-a Mitigating Plea David Mullan Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Mullan, David. "The urJ isdictional Fact Doctrine in the Supreme Court of Canada-a Mitigating Plea." Osgoode Hall Law Journal 10.2 (1972) : 440-449. http://digitalcommons.osgoode.yorku.ca/ohlj/vol10/iss2/7 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. THE JURISDICTIONAL FACT DOCTRINE IN THE SUPREME COURT OF CANADA - A MITIGATING PLEA By DAvID MULLAN* In a recent article in the Osgoode Hall Law Journal,' Professor P. W. Hogg criticized the decision of the Supreme Court of Canada in Bell v. Ontario Human Rights Commission.2 Principally his criticisms were threefold. First, he disapproved of the wide view the Court took of its powers to review decisions for jurisdictional error. Secondly, he took issue with the Court's finding that the accommodation in question was not a "self-contained dwell- ing unit".3 Finally, he rejected the Court's decision to inquire into the merits of the case in favour of the decision of 'the Ontario Court of Appeal4 that review was untimely until the board of inquiry had had an opportunity of determining the jurisdictional question. On the question whether the accommodation came within the Act, I accept Professor Hogg's analysis and agree with him that the Supreme Court was wrong at this point. However, with respect to the issues of the authority of the Court to review for jurisdictional fact and the timeliness of judicial review, there are certain points at which I find Professor Hogg's conclusions difficult to accept. The general basis upon which the courts define their power to review decisions for jurisdictional error is that in the conferring of statutory powers the legislature attributes tentative decision-making authority to the statutory decision-maker with respect to some issues and final decision-making auth- ority with respect to other issues. Those over which the decision-maker has only tentative authority are issues affecting his jurisdiction. Those over which he has final authority are those within his jurisdiction and are not generally subject to review.5 The principal difficulty in classifying various stages of the decision-making process into one of these two categories is caused by the fact that the legislature seldom, if ever, indicates which issues it considers juris- dictional and which it considers to be intra-jurisdictional. *Assistant Professor, Faculty of Law, Queen's University. I P. Hogg, The lurisdictional Fact Doctrine in the Supreme Court of Canada (1971), 9 O.H.LJ. 203. Further comment on Bell from another perspective is contained in Ian A. Hunter, ludicial Review of Human Rights Legislation: McKay v. Bell (1972), 7 U.B.C.L.R. 17. 2 [1971] S.C.R. 756; (1971), 18 D.L.R. (3d) 1. 3 Under The Ontario Human Rights Code certain discriminatory practices in rela- tion to the occupancy of "self-contained dwelling units" are forbidden. See R.S.O. 1970, c. 318, section 3. 4 Sub nom. R. v. TarnopoIsky; Exparte Bell, [1970] 2 O.R. 672; (1969), 11 D.L.R. (3d) 658. The unanimous judgment of a five man Court of Appeal was delivered by Laskin J.A. GSee a recent statement of this proposition in the judgment of Lord Wilberforce in Anisminik Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 at 207. 1972] JurisdictionalFact The conclusion Professor Hogg derives from such a failure on the part of the legislature is that the legislature therefore intended all questions to be determined exclusively by the decision-maker and that he should not be subject to judicial scrutiny for any form of preliminary or collateral jurisdic- tional error.6 Thus, in relation to Bell's case, the question of whether the accommodation was self-contained becomes a matter exclusively for the Ontario Human Rights Commission and the Board of Inquiry appointed under the Act,7 since the courts are given no specific role in relation to this issue by the Act. This, of course, is not the view the courts have taken of their role in relation to jurisdictional error and Professor Hogg acknowledges that it is now too late for the courts to deny their authority to review for jurisdictional error.8 Indeed, whatever may have been the position initially, even legislatures have both impliedly and explicitly acknowledged the role of the courts in relation to jurisdictional error. Continued legislative inactivity in the face of court assumption of power to review for jurisdictional error must be taken to provide some indication of legislative acquiescence in the system. This is particularly so when legislatures presumably have authority to include privative clauses in legislation specifically denying the courts review power for jurisdictional error. Instead legislatures have seldom gone beyond standard types of privative clause despite persistent judicial holding that these do not affect review for jurisdictional error.9 In recent months this implicit legislative acceptance of the system has been given more specific acknow- ledgement in relation to statutory decision-makers both in Ontario and at the federal level. The Judicial Review Procedure Act, 1971 of Ontario,'0 which creates a new judicial review remedy in this province, continues all the grounds for review presently available at common law while by virtue of the Federal Court Act, the Federal Court of Appeal is specifically given authority to review for jurisdictional error." Aside from legislative acceptance of the jurisdictional issue basis for judicial review, it can be questioned whether an alternative to such a system was ever open to the courts. Professor Hogg is full of admiration for the 6 Supra, note 1 at 210 and ff. 7 The Ontario Human Rights Code, R.S.O. 1970, c. 318, particularly sections 13 and 14. 8 Supra, note 1 at 216. 9 One Ontario example of such a privative clause is section 9(5) of the National Selective Service Mobilization Regulations, P.C. 10924 ([1942] C.W.O.R. 573) which was in issue in the case of R. ex rel Sewell v. Morrell, [1944] 3 D.L.R. 710 (Ontario H.C.). This specifically excluded jurisdictional error from the ambit of judicial review and was given effect to by the court in that case. Such examples are, however, rare. See also R. v. Commissioner of Police for The Northern Territory; Ex parte Holroyd (1965), 7 Fed. L.R. 8 (Supreme Court of the Northern Territory) and the recent Su- preme Court of Canada decisions in Pringle and Department of Manpower and Immi- gration v. Fraser (1972), 26 D.L.R. (3d) 28 and Woodward Estate v. Minister of Justice (1972), 27 D.L.R. (3d) 608. 1o S.O. 1971, c. 48. See section 2. "1Section 28, S.C. 1970-72, c. 1. Jurisdictional error is also legislatively recognized in a number of sections creating statutory rights of appeal to the courts from decisions of administrative tribunals. See e.g. section 26(1) of the Broadcasting Act, R.S.C. 1970, c. B-11, as amennded by section 64(3) of the Federal Court Act, S.C. 1970-72, c. 1. OSGOODE HALL LAW JOURNAL [VOL. 10, NO. 2 writings of D. M. Gordon, Q.C.12 who for many years has been exposing the frailities of the "jurisdictional fact" doctrine. Yet, the writings of Gordon are equally open to criticism and do not really offer a solution to the problem. In his 1929 Law Quarterly Review article, Gordon reveals himself as a sup- porter of the "pure" theory of jurisdiction.1 3 De Smith gives a definition of the pure theory of jurisdiction: Jurisdiction means authority to decide. Whenever a judicial tribunal is empowered or required to inquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding till reversed on appeal.14 The principal element in this definition is "authority to decide" or, as Lord Reid has recently described it, "entitle[ment] to enter on the inquiry in question."' 5 If this authority or entitlement does not exist, the tribunal is without jurisdiction and its decisions stand liable to be quashed. In contrast to this pure theory are the wider theories of jurisdiction. The basis on which these theories operate is stated by de Smith in the fol- lowing terms:- ...it must not be assumed that when Parliament empowers an inferior tribunal to inquire into certain facts it intends that the tribunal's conclusions on every one of those facts shall be unimpeachable.16 Accordingly there are certain questions, which while under the "pure" theory of jurisdiction do not go to the tribunal's authority to decide the matter, are of such importance that they are described as jurisdictional. In the recent House of Lord's decision in Anisminic v. Foreign Compensation Commis- sion, Lord Reid catalogued these errors which in his terms render a decision a nullity. Beside collateral or preliminary questions affecting jurisdiction he also listed the following: It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice.
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