T-743-83
Henri Joseph Lucien Zephrien Fortin (Petitioner)
v.
Commissioner of the Royal Canadian Mounted
Police, Solicitor General of Canada, Attorney
General of Canada (Respondents)
Trial Division, Rouleau J.—Montreal, May 6;
Ottawa, May 13, 1985.
Judicial review — Prerogative writs — RCMP — Certiorari
sought, by way of motion to re-amend, to quash decision to
discharge for age — Whether Commissioner's discharge power
ministerial or administrative — Whether certiorari available
— Use of certiorari to quash ministerial decisions — Evolu
tion of fairness doctrine — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 18 — Royal Canadian Mounted Police
Superannuation Regulations, C.R.C., c. 1393, s. 26(1)(f),(4) —
Royal Canadian Mounted Police Superannuation Act, R.S.C.
1970, c. R-11, s. 22 (as am. by R.S.C. 1970 (1st Supp.), c. 36,
s. 3; S.C. 1974-75-76, c. 81, s. 65) — Royal Canadian
Mounted Police Regulations, C.R.C., c. 1391, ss. 67, 80.
Practice — Amendments — Motion under R. 303 to
re-amend originating notice of motion in s. 18 application —
General rule re allowing amendments affecting cause of action
and tardy — Federal Court Rules, C.R.C., c. 663, RR. 2, 303,
324, 420(1), 421 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 18.
Practice — Motion to strike pleadings — Motion brought
on ground certiorari not available to attack decisions of minis
terial nature — Real and substantial dispute as to proper
characterization of power in question — Argument application
for certiorari really indirect attempt to obtain declaratory
relief rejected as impossible at this stage to tell what petitioner
will argue — Federal Court Rules, C.R.C., c. 663, R. 419.
The petitioner, a corporal in the RCMP, was discharged
from the force on the basis of age pursuant to paragraph
26(1)(/) and subsection 26(4) of the RCMP Superannuation
Regulations. His grievance against that decision having been
dismissed, the petitioner applied, by originating notice of
motion, for a writ of prohibition and for a declaration that
subsections 26(1) and (4) of the Regulations are invalid. The
respondents filed a motion to strike the pleadings under Rule
419(1)(a). After a substitution of attorney, the petitioner filed
a motion to re-amend by which he would desist from his
application for a declaration of invalidity and would ask for a
writ of certiorari to quash the decision to discharge him, in the
alternative to the writ of prohibition. The respondents object
that the proposed re-amendment would introduce a new cause
of action not instituted within a reasonable time following the
petitioner's discharge. They also argue that even if the
re-amendment is granted, the originating notice of motion
should be struck on the ground that certiorari is not available
to attack decisions of a ministerial nature.
Held, the motion for permission to re-amend should be
granted and the motion to strike should be dismissed.
The re-amendment does not raise an entirely new cause of
action and the respondents are not taken by surprise. The
general rule that amendments should be allowed in such cir
cumstances applies no matter how late the amendment is
requested or how negligent the party was in not seeking it
earlier. While certiorari is a discretionary remedy and the
conduct of an applicant, including delay, can be a ground for
refusal, the present case is not one where denial of the applica
tion for the writ is warranted. First, because the re-amendment
seeks only to slightly change the nature of the relief sought and
the original application for prohibition and declaratory relief
was promptly made. And second, because the exercise of the
discretion to grant or refuse certiorari will lie with the judge
hearing the merits of the application.
With respect to the motion to strike, the Court is not willing
to decide, at this time, that the power exercised by the Commis
sioner was ministerial. There is real and substantial dispute on
that point and it should be left to the judge hearing the merits
to decide.
In view of the evolution of the fairness doctrine (see Coopers
and Lybrand and Martineau (No. 2) and of the use of certiorari
in relation thereto (see especially Kruger Inc.), it is at least
arguable that certiorari would be available even if the decision
were ministerial.
The respondents' argument, that the application for certio-
rari is really an indirect attempt to obtain declaratory relief,
cannot succeed because it is impossible, at this stage, to tell
exactly what the petitioner will argue on the merits. Further
more, the respondents have conceded that the validity of a
regulation may be indirectly challenged if it forms the back
ground to an act which may be the object of certiorari.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of National Revenue v. Kruger Inc., [1984] 2
F.C. 535; 13 D.L.R. (4th) 706; 84 DTC 6478; (1984), 55
N.R. 255 (C.A.).
DISTINGUISHED:
Homex Realty and Development Co. Ltd. v. Corporation
of the Village of Wyoming, [1980] 2 S.C.R. 1011; Har-
elkin v. University of Regina, [1979] 2 S.C.R. 561;
P.P.G. Industries Canada Ltd. v. A.G. of Canada, [1976]
2 S.C.R. 739; R. v. Senate of the University of Aston, Ex
parte Roffey, [1969] 2 All E.R. 964 (Q.B.D.); South
Eastern Regional Shopping Centre Ltd. v. Steinbach,
Town of (1983), 20 Man. R. (2d) 54 (C.A.); R. v. Bales
et al., Ex parte Meaford General Hospital (1970), 17
D.L.R. (3d) 641 (Ont. H.C.).
REFERRED TO:
Hansen, C.K., v. The King, [1933] Ex.C.R. 197; The
Queen v. Hall, Alice Agnes et al., [1958] Ex.C.R. 110;
Sorbara, Sam v. Minister of National Revenue, [1964]
Ex.C.R. 161; Kayser-Roth Can. Ltd. v. Fascination Lin
gerie Inc., [1971] F.C. 84 (T.D.); Vapor Canada Ltd. v.
MacDonald et al. (No. 1), [1971] F.C. 452 (T.D.);
Montecatini Edison S.p.A. v. Standard Oil Co. (1974),
14 C.P.R. (2d) 190 (F.C.T.D.); Brady (W.H.) Co. v.
Letraset Canada Ltd. (1982), 14 A.C.W.S. (2d) 383; 82
DRS 53-584 (F.C.T.D.); McAlpine of Newfoundland
Ltd. v. R. (1984), 9 C.L.R. 276; 28 A.C.W.S. (2d) 364;
84 DRS 55-317 (F.C.T.D.); Minister of National Reve
nue v. Coopers and Lybrand, [1979] 1 S.C.R. 495;
Martineau v. Matsqui Institution Disciplinary Board
(No. 2), [1980] 1 S.C.R. 602.
COUNSEL:
Robert Donald and James R. K. Duggan for
petitioner.
Normand Lemyre and Claude Joyal for
respondents.
SOLICITORS:
Donald & Duggan, Montreal, for petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
ROULEAU J.: There are two somewhat separate
matters before the Court: a motion by the petition
er to re-amend his originating notice of motion in a
section 18 [Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10] application (Rule 303 [Federal
Court Rules, C.R.C., c. 663]) and a motion by the
respondents to strike (Rule 419). Counsel was
heard on both of these issues at Montreal on May
6, 1985.
I. FACTS AND PROCEDURAL HISTORY
The petitioner was a corporal in the RCMP,
having first joined the force on January 31, 1951
and was a contributor under the Royal Canadian
Mounted Police Superannuation Act, R.S.C.
1970, c. R-11, as amended, from that date. He was
informed that effective March 17, 1983 he would
be discharged from the force on the ground that he
had attained the age of 56 years, this pursuant to
paragraph 26(1) (f) and subsection 26(4) of the
Royal Canadian Mounted Police Superannuation
Regulations, C.R.C., c. 1393, as amended, made
under section 22 of the RCMP Superannuation
Act [as am. by R.S.C. 1970 (1st Supp.), c. 36, s. 3;
S.C. 1974-75-76, c. 81, s. 65]. He finally left the
force on or about May 31, 1983.
Having unsuccessfully grieved the decision to
discharge, the petitioner applied on March 16,
1983, by originating notice of motion, for a writ of
prohibition to prevent his discharge and for a
declaration that subsections 26(1) and (4) of the
RCMP Superannuation Regulations are invalid.
Simply put, the main argument for prohibition was
that the wrong Regulations had been applied and
that the question of discharge for age or maximum
period of service comes under sections 67 and 80 of
the Royal Canadian Mounted Police Regulations
[C.R.C., c. 1391] made under the Royal Canadian
Mounted Police Act [R.S.C. 1970, c. R-9]. It was
submitted that under the latter Regulations the
petitioner had only served thirty-two years out of a
maximum of thirty-five years of service. The dec
laration of invalidity was sought on certain
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] grounds
and, because the said subsections 26(1) and (4)
were said to discriminate on the basis of rank in a
manner not authorized by section 22 of the RCMP
Superannuation Act.
On September 16, 1983 the petitioner amended
his notice of motion (Rule 421(2)) to drop the
Charter and age discrimination grounds, but main
taining his prayer for prohibition and a declara
tion.
On September 27, 1983 the respondents submit
ted notes and authorities with respect to their
preliminary exceptions under Rule 419(1)(a). I
will return to these exceptions presently.
On February 11, 1985, there was a substitution
of attorney filed for the petitioner.
On February 22, 1985 the petitioner filed a
motion for permission to re-amend, without per
sonal appearance, his originating notice of motion
under Rules 303, 324 and 420(1) apparently with
a view to obviating certain procedural exceptions
raised by the respondents. The petitioner also sub
mitted short notes and authorities on the prelim
inary exceptions, dealing almost entirely with the
jurisdictional question.
By letter of February 27, 1985 the Crown
indicated its objection to the petitioner's proposed
re-amendment on the grounds that it was tardy
and introduced a new cause of action.
I refused to grant the motion to re-amend, with
out personal appearance (Rule 324), and the par
ties were instructed to be prepared to address both
the preliminary exceptions and the receivability of
the motion to re-amend at Montreal on May 6,
1985. Strictly speaking, amendments to an origi
nating notice of motion may be had only on per
mission under Rule 303 and not under Rules 420
or 421 (see the definitions of "pleading" and
"action" in Rule 2).
II. JURISDICTION OF THE COURT
The respondents had raised an objection as to
the jurisdiction of the Trial Division under section
18 of the Federal Court Act to entertain the
originating notice of motion. At the opening of the
hearing, counsel for the respondents admitted the
jurisdiction of this Court.
III. MOTION FOR PERMISSION TO RE-AMEND
The petitioner's proposed re-amendment of the
originating notice of motion would desist from the
declaration of invalidity he had originally sought
and would ask for a writ of certiorari to quash the
decision to discharge him, in the alternative to the
writ of prohibition sought from the outset.
The respondents object that the proposed
re-amendment would introduce a new cause of
action not instituted within a reasonable time fol
lowing the petitioner's discharge from the force.
I grant the petitioner's motion for permission to
re-amend under Rule 303. The re-amendment does
not raise an entirely new cause of action. Aban
doning the prayer for a declaration certainly does
not have such an effect. The addition of a request
for certiorari is certainly tardy, but reflects the
passage of time since the originating notice of
motion was first drafted. Identical facts and cir
cumstances, which might have previously justified
the issuance of a writ of prohibition, now might
support a claim for substantially similar relief by
way of certiorari. The respondents are not taken
by surprise.
The general rule as to amendments is that they
should be allowed so long as they do not introduce
a new cause of action and do not cause any
prejudice to the opposite party which cannot be
rectified by orders: such as examination of affi-
ants, sufficient time for the parties to prepare to
meet the case as amended, and costs. This rule
applies no matter how late the amendment is
requested or how negligent the party was for not
seeking the amendment earlier, or, including the
relief now sought by amendment in the original
pleadings.
The position of the Exchequer Court and of the
Federal Court has been constant in this regard:
Hansen, C.K., v. The King, [1933] Ex.C.R. 197;
The Queen v. Hall, Alice Agnes et al., [1958]
Ex.C.R. 110; Sorbara, Sam v. Minister of Nation
al Revenue, [1964] Ex.C.R. 161; Kayser-Roth
Can. Ltd. v. Fascination Lingerie Inc., [1971] F.C.
84 (T.D.); Vapor Canada Ltd. v. MacDonald et al.
(No. 1), [1971] F.C. 452 (T.D.); Montecatini
Edison S.p.A. v. Standard Oil Co. (1974), 14
C.P.R. (2d) 190 (F.C.T.D.); Brady (W.H.) Co. v.
Letraset Canada Ltd. (1982), 14 A.C.W.S. (2d)
383; 82 DRS 53-584 (F.C.T.D.); and McAlpine of
Newfoundland Ltd. v. R. (1984), 9 C.L.R. 276; 28
A.C.W.S. (2d) 364; 84 DRS 55-317 (F.C.T.D.).
The legal basis of the respondents' objections is
that certiorari is a discretionary remedy and that
the conduct of the applicant, including lateness in
seeking such relief, is grounds for refusing the
issue of the prerogative writ. The respondents cite
a number of authorities including Homex Realty
and Development Co. Ltd. v. Corporation of the
Village of Wyoming, [1980] 2 S.C.R. 1011, at
pages 1033-1035; Harelkin v. University of
Regina, [1979] 2 S.C.R. 561, at pages 574-577;
P.P.G. Industries Canada Ltd. v. A.G. of Canada,
[1976] 2 S.C.R. 739, at page 749; R. v. Senate of
the University of Aston, Ex parte Roffey, [1969] 2
All E.R. 964 (Q.B.D.), at page 976; and South
Eastern Regional Shopping Centre Ltd. v. Stein-
bach, Town of (1983), 20 Man. R. (2d) 54 (C.A.),
at pages 58-59.
I have no trouble with this proposition to a
limited extent, but I view the authority cited by
the respondents as being distinguishable and per
haps irrelevant to the preliminary question of
amendment; it really ought to be considered by the
judge who will eventually be seized of the merits.
The authority cited to me is distinguishable
because in those cases there had been a delay in
asking for any relief whatsoever. In contrast, the
present re-amendment seeks only to slightly
change the nature of the relief sought. The facts
have not changed; the original notice of motion
seeking prohibition and a declaration was very
prompt indeed.
I say that the authority is perhaps also irrele
vant. What is before the Court today is the ques
tion of re-amendment to include a prayer for
certiorari. The exercise of the discretion to grant
or refuse such relief will lie with the judge who
eventually hears the merits of the application,
taking into account all of the facts and circum
stances including, no doubt, the question of
tardiness.
In view of the fact that I am allowing the
petitioner's re-amendment, there remain only two
preliminary exceptions of a procedural nature
which must be settled. I turn to those now.
IV. NO CERTIORARI TO QUASH A MINISTERIAL
DECISION
The respondents argue that even if the
re-amendment is granted, which I have, the origi
nating notice of motion should be struck under
Rule 419(1)(a) on the ground that certiorari is not
available to attack decisions of a ministerial
nature. I do not think the respondents are entitled
to succeed on this point.
To reiterate, I am only seized of a motion to
re-amend and a motion to strike. I am not willing
to decide, at this time, that the power exercised by
the Commissioner was ministerial. There is real
and substantial dispute as to the proper characteri
zation of the power in question and will no doubt
be fully argued when the merits are heard. I think
it would be entirely possible for the judge hearing
the merits to find that the decision of the Commis
sioner was of a type which may be attacked by
certiorari.
It is not at all clear to me that the Commission
er's decision was in fact analytically ministerial in
nature. It is not true that the Commissioner simply
had to apply an objective standard to an objective
set of facts with no element of discretion. It is true
that the actual decision to discharge depends
essentially on the objectively verifiable fact of age
or number of years of service or pension fund
contribution. However, if the decision taken,
whether under subsections 26(1) and (4) of the
RCMP Superannuation Regulations or sections 67
and 80 of the RCMP Regulations, is viewed glo
bally it may be seen that it was not purely
mechanical. As a preliminary matter, the Commis-
sioner had to decide to ask himself the right
question: in this case, which Regulations to apply.
It is this decision which the petitioner seeks to
attack. Subsequently the Commissioner had to
decide whether the petitioner had reached the age
or had accumulated the number of years of service
or pension contribution which may lead to dis
charge. Finally, the Commissioner had to exercise
his discretion as to whether this was an appropri
ate case to authorize an extension of service.
Viewed in this way, it may be seen that there is
at least an arguable case that the Commissioner's
decision was not ministerial. The authority cited
by the respondents is of little help to them. R. v.
Bales et al., Ex parte Meaford General Hospital
(1970), 17 D.L.R. (3d) 641 (Ont. H.C.) may be
outdated and may stand for the opposite of the
proposition for which it is cited. It was held that
the "ministerial" power in question was purely
administrative and therefore could not be attacked
by prohibition. It is now clear that certiorari will
lie in this Court to quash a purely administrative
decision on substantive grounds such as those
invoked in Minister of National Revenue v.
Kruger Inc., [1984] 2 F.C. 535, at pages 543-546;
13 D.L.R. (4th) 706, at pages 712-714; 84 DTC
6478; (1984), 55 N.R. 255 (C.A.).
I do not think the decision of the Commissioner
was, as suggested by counsel, of a type analogous
to the mechanical ministerial duty of a justice of
the peace to receive any proper information. Again
here I would note that the cases cited predate the
landmark cases in the Supreme Court which saw
the breakdown of rigid classification of statutory
powers and the development of the doctrine of
fairness applicable to decisions which are not of a
judicial or quasi-judicial nature and before Minis
ter of National Revenue v. Kruger Inc. (supra).
Even assuming for the sake of argument that the
decision was analytically ministerial, I do not think
that the respondents' position is necessarily correct
in law.
One clear result of the fairness cases in the
Supreme Court has been that, except for purposes
of establishing the respective jurisdiction of the
Federal Court of Appeal and the Trial Division,
rigid classification of functions should be avoided
as a method of denying relief. The more proper
view is that there is no difference of kind but only
a difference of degree between administrative and
ministerial powers. In the case of judicial review
for procedural defects this has meant that there is
a continuum in the level of procedural protection
afforded by the fairness doctrine under section 18
of the Federal Court Act, with the content dwin
dling away to nothing in the case of pure policy or
legislative decisions: Minister of National Revenue
v. Coopers and Lybrand, [1979] 1 S.C.R. 495, at
page 505 and Martineau v. Matsqui Institution
Disciplinary Board (No. 2), [1980] 1 S.C.R. 602,
at pages 628-629.
It is true that there has been some doubt as to
the availability of certiorari on substantive (not
procedural) grounds where the power in question
is analytically not judicial or quasi-judicial (see
Evans et al. Administrative Law, 2nd ed., 1984 at
pages 752-754). Furthermore, at page 628 of
Martineau (No. 2), supra, Dickson J., as he then
was, states obiter that there is no procedural pro
tection in the case of a purely ministerial decision.
However, the Federal Court of Appeal has now
suggested that a purely administrative decision
may be attacked by certiorari on the substantive
grounds of lack of jurisdiction or error of law on
the face of the record "irrespective of the judicial
or administrative character of the decision under
attack ...": Minister of National Revenue v.
Kruger Inc. (supra) at page 544 F.C.; 713 D.L.R.
The petitioner's attack is obviously substantive,
going to the jurisdiction of the Commissioner to
make the decision he did under the Regulations
which he invoked.
In these circumstances, and always presuming
for the sake of argument that the decision was
ministerial, I find that the petitioner has at least
an arguable case that certiorari may be an avail
able remedy. Of course if the power is viewed as
administrative then Minister of National Revenue
v. Kruger Inc. (supra) is authority that an applica
tion for certiorari may be entertained.
V. NO CHALLENGE TO VALIDITY BY CERTIORARI
The final remaining procedural point raised by
the respondents' motion to strike is that the peti
tioner's application for certiorari is really an indi
rect attempt to obtain declaratory relief which
normally may only be had by way of an action and
not on an originating motion. It is argued that
there is an attempt here despite the re-amendment
to have subsections 26(1) and (4) of the RCMP
Superannuation Regulations declared invalid.
I do not think that the respondents can succeed
on this ground. At this stage, it is impossible to tell
exactly what the petitioner will argue on the
merits. Furthermore, it would appear that what
may be sought is a finding that the Regulations in
question were improperly applied to the situation
of the petitioner; that the Commissioner lacked
jurisdiction because he asked himself the wrong
question. It is not at all clear that such grounds for
quashing the decision would automatically require
a declaration that the said subsections of the
RCMP Superannuation Regulations are invalid.
Finally, the respondents concede in their notes and
authorities (at pages 20-21) that the validity of a
regulation may be indirectly challenged if it forms
the background to an act which may be the object
of certiorari.
VI. ORDER
In the result, the petitioner's motion for permis
sion to re-amend is granted and the respondents'
motion to strike fails.
Costs of the re-amendment will be borne by the
petitioner and costs arising from the motion to
strike will be paid by the respondents.
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.