A-450-76
Minister of National Revenue (Applicant)
v.
Dame L. H. MacDonald carrying on business as
"Hôpital Ste -Thérèse des Convalescents Enrg."
(Respondent)
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Montreal, December 15, 16 and 17, 1976;
Ottawa, January 21, 1977.
Judicial review — Unemployment insurance — Application
for review of Umpire's assessment of amounts payable by
employer — Whether Court has jurisdiction to hear appeal
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48,
ss. 70, 84, 85, 86 and 100 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
Applicant claims that the Umpire was wrong in deciding that
no assessments could be made under the Unemployment Insur
ance Act, 1971 with respect to amounts payable in 1970 and
1971 before the Act was proclaimed in force.
Held, the Umpire's decision was wrong in that he failed to
take into account the provisions of section 153 of the Act; that
part of his decision relating to the 1970 and 1971 assessments is
set aside. The matter is referred back (Jackett C.J. dissenting).
Section 85 of the Act does not mean the decision is not
reviewable under section 28 of the Federal Court Act.
Per Jackett C.J. (dissenting): Section 85 of the Unemploy
ment Insurance Act, 1971, states that the Umpire's decision is
final except as provided by the Act and there is evidence to
suggest that Parliament intended generally to exclude review
by the Federal Court in the fact that an express exception to
such exclusion is made in sections 86 and 100 of the Act.
Re Gilmore's Application [1957] 1 All E.R. 796, applied.
JUDICIAL review.
COUNSEL:
Claude Blanchard for applicant.
J. E. Lefebvre for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
J. E. Lefebvre, Repentigny, P.Q., for
respondent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a section 28 application'
to set aside such part of a decision of an Umpire
under section 84 of the Unemployment Insurance
Act, 1971 2 as set aside assessments made under
section 70 thereof of amounts payable under that
Act for the years 1970 and 1971 by the respondent
as an employer.
The decision in question is based on the view
that an assessment could not be made under the
Unemployment Insurance Act, 1971 for 1970 or
1971 because it was not in force in those years.
However, it does not appear that section 153 of the
Unemployment Insurance Act, 1971 had come to
the Umpire's attention. That section reads as
follows:
153. (1) Where any amount is owing to Her Majesty in
right of Canada under the former Act, that amount is owing to
Her Majesty under this Act and when paid or collected shall be
credited to the Unemployment Insurance Account established
under this Act.
(2) A refund of contributions payable under the former Act
shall be a refund of premiums payable under this Act in respect
of the employer or employees concerned.
•
(3) Where any person has failed to pay the amount of a
contribution under the former Act that he should have paid
under that Act and that amount is due and owing on the
commencement of Part IV, the amount shall, for the purposes
of subsection (6) of section 68, be deemed to have been
' Section 28(1) of the Federal Court Act reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) 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.
2 S.C. 1970-71-72, c. 48.
required to have been remitted to the Receiver General on the
day that Part IV comes into force.
In my view, when that section is read with the
definition of "former Act" in section 2(1)(0, 3 it
provides the necessary statutory foundation for the
assessments in question and the Umpire's decision,
in so far as attacked, is, therefore, wrong.
There is, however, a question as to whether this
Court has any jurisdiction to set aside a decision of
the Umpire made under section 84. On the one
hand, section 28(1) of the Federal Court Act,
which was assented to on December 3, 1970, says
that "Notwithstanding ... the provisions of any
other Act", this Court has jurisdiction to set aside
a class of decisions that prima facie includes deci
sions of the Umpire under section 84. On the other
hand, section 85 of the Unemployment Insurance
Act, 1971, which was assented to on June 23,
1971, says that a decision of the Umpire under
section 84 is "final and binding" for all the pur
poses of that Act "except as provided in this Act"
and, as far as I have been able to ascertain, the
only exception contained in that Act is the limited
class of appeals to the Pension Appeals Board
provided for by section 86. These two provisions
cannot, in my view, stand without implying some
modification in the terms of one or the other; 4 and
the application of the rule of interpretation that
the particular prevails over the general or the rule
of interpretation that the later enactment prevails
over the earlier would seem to require an interpre
tation that would exclude section 84 decisions
from the ambit of section 28 (1) of the Federal
3 Section 2(1)(i) of the Unemployment Insurance Act, 1971
reads as follows:
2. (1) In this Act, .. .
(i) "former Act" means the Unemployment Insurance
Act, chapter 50 of the Statutes of Canada, 1955... .
4 I am not unmindful of the fact that clauses declaring
decisions of a tribunal to be "final" have been held not to
exclude resort to the prerogative writ of certiorari. I have no
difficulty understanding the reasoning on which such decisions
are based in cases where such a clause is invoked to exclude the
setting aside of a decision that is outside the ambit of the
decision-making powers conferred on the tribunal when such
powers are determined in accordance with well established
principles. Compare Board of Health for the Township of
Saltfleet v. Knapman [1956] S.C.R. 877. In such a case the
"decision" attacked does not fall within the four corners of the
privative clause if the words thereof are given their ordinary
(Continued on next page)
Court Act. Some indication that Parliament so
intended is to be found
(a) in the provision for appeals, in certain cases,
from section 84 decisions to the Pension Appeals
Board, 5 and
(b) in section 100 of the Unemployment Insur
ance Act, 1971, which provides that a decision
of an Umpire on an appeal from a board of
referees concerning benefit claims is final and
"not subject to appeal or to review by any court
except in accordance with the Federal Court
Act". [The italics are mine.]
The fact that there is a system of appeals in
certain cases from Umpire decisions under
section 84 (concerning payments by employers
under the Act) to a Board whose decisions are not
subject to review by this Court may explain why
Parliament decided that such Umpire decisions
should not be subject to review by this Court; and
the fact that there is an express exception in favour
of review by this Court of Umpire decisions con
cerning benefits and no such exception in favour of
review by this Court of Umpire decisions concern
ing amounts payable under the Act by employers
is some indication that it was intended that there
should be a section 28 review in the one case and
not in the other.
In connection with the jurisdictional question, it
is well to have in mind the question raised in
Howarth v. National Parole Board 6 , per Pigeon J.
at page 475, where he said:
(Continued from previous page)
meaning. However, when such a clause is held not to exclude
the resort to a remedy such as certiorari where the attack is one
based on an error of law in the making of a decision that is
admittedly within the ambit of the tribunal's decision making
powers, as it seems to me, it must be based on the context in
which the clause is found or upon the prerogative nature of the
certiorari remedy and I can see no compelling reason for
applying the jurisprudence in question, as developed in connec
tion with that type of case, to the interpretation of modern
statutes creating completely new statutory remedies such as
that created by section 28. Compare Puerto Rico v. Hernandez
[ 1975] 1 S.C.R. 228, per Pigeon J. at pages 231-32.
5 Decisions of the Pension Appeals Board are excluded from
the ambit of section 28(1) by section 28(6) of the Federal
Court Act.
6 [1976] 1 S.C.R. 453.
Because, in my view, s. 28.1 of the Federal Court Act is
inapplicable due to the nature of the decision under consider
ation, it is unnecessary to consider whether the opening words
"Notwithstanding s. 18 or the provisions of any other Act"
exclude the application of a provision such as s. 23 of the
Parole Act or whether they refer only to provisions of the same
kind as s. 18 of the Federal Court Act, that is a provision
conferring jurisdiction to some court or tribunal. It is apparent
that if those opening words are construed as nullifying every
provision restricting or denying the judicial review of decisions
of federal boards not coming within the stated exception, this
means that beyond a transfer of jurisdiction an important
change in the substantive law has been effected. On this point, I
am expressing no opinion ....
I am of opinion, for the above reasons, that the
section 28 application should be dismissed for lack
of jurisdiction.'
* * *
The following are the reasons for judgment
rendered in English by
PRATTE J.: For the reasons given by the Chief
Justice, I am of opinion that the decision under
attack is wrong.
However, I am of the view that section 85 of the
Unemployment Insurance Act, 1971, does not have
the effect of rendering section 84 decisions
unreviewable under section 28 of the Federal
Court Act.
Section 85 provides that, "except as provided in
this Act", a decision of an Umpire under section
84 is "final". In my view, this simply means that,
except as provided by the Act, there is no appeal
from such a decision; it does not mean that the
decision is not reviewable under section 28 of the
Federal Court Act. No inference, in my view, can
be made from the fact that section 85 does not
expressly reserve, as section 100 does, the power of
' The hearing of this section 28 application was adjourned
from December 15, 1976 to December 16, 1976 so that counsel
for the applicant might have an opportunity to present further
argument on the jurisdiction question. Counsel for the respond
ent indicated that he would not be able to be present for the
adjourned hearing but was satisfied that he had had full
opportunity to present his side of the matter on all points and
that he was satisfied to have the Court dispose of the matter
after hearing counsel for the applicant further on the jurisdic
tion question even though he would not have been present
during such further argument or have had an opportunity to
reply thereto.
review of the Federal Court. There was no need for
such a reserve since section 85 does not provide
that the decisions to which it refers are not
reviewable.
It seems well established that a statute providing
that the decision of an inferior tribunal is final
does not have the effect of limiting the application
of the traditional remedy by way of certiorari (see
Re Gilmore's Application [1957] 1 All E.R. 796).
I cannot see why a similar provision should have a
greater effect in respect of the new remedy created
by section 28.
For these reasons, I would set aside that part of
the Umpire's decision relating to the 1970 and
1971 assessments; I would refer the matter back so
that it be decided on the basis that the Minister
has the power, under the Act of 1971, to assess
amounts payable under the Act of 1955.
* * *
The following are the reasons for judgment
rendered in English by
HYDE D.J.: For the reasons given by Mr. Justice
Pratte I would dispose of this application in the
manner he suggests.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.