Leo A. Landreville (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Pratte J.—Ottawa, November 21
and December 11, 1973.
Jurisdiction—Certiorari against Crown—Royal Commis-
sion—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 deal
ings 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 jurisdic
tion 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 determina
tion of three questions of law before trial.
COUNSEL:
Gordon F. Henderson, Q.C., and Y. A.
George Hynna for plaintiff.
I. G. Whitehall and Paul Betournay for
defendant.
SOLICITORS:
Gowling and Henderson, Ottawa, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
PRATTE J.—The parties to this action have
agreed to submit three questions of law for
determination before trial.
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 Commis
sioner 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 representa
tives, 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
héaring testimony the Commissioner stated that he
adjourned the hearing and reserved his opinion and there
after 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 evi
dence 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 Com
missioner 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.
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;
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 prelim
inary 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 Decla
ration, 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, ... .
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 wheth
er 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 opin
ion, as I will mention later, that certiorari does
not lie in this case.
I shall now turn to the two remaining questions
1. Has the Court jurisdiction to quash the report
of the Royal Commission?
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.
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 declara
tion in the circumstances alleged in the plain
tiff's Declaration?
This question refers to the "jurisdiction" of
the Court. The meaning of the term "jurisdic-
tion", 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 exclu
sive 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.
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 Declarato-
ry Judgment, Stevens & Sons Limited, 1962;
Mellstrom v. Garner [1970] 2 All E.R. 9, at page
10, line g.)
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.
Counsel for the defendant challenged the
"jurisdiction" of the Court to make these decla
rations on the ground that they would have no
effect. The inquiry was conducted and the
report was made many years ago. In these cir
cumstances 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 fol
lowing 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 Lim
ited 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 Declara
tion, the plaintiff's reputation had been greatly
damaged by the report of the Commissioner. A
declaration that the Commissioner had conduct
ed 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 conse
quence 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.
These contradictory submissions can be brief
ly 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.
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 Met
ropolitan 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 dis
missed 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., East-
ham v. Newcastle United Football Club. Ltd. ([1963] 3 All
E.R. 139). Counsel for the plaintiffs said that, in this par
ticular case, the declaration might be of some use in remov
ing 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 trans
fers 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, con
trary 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.
From this, I infer that the Court has the
jurisdiction to make a declaration which, though
devoid of any legal effect, would, from a practi
cal point of view, serve some useful purpose.
For these reasons, I am of the opinion that, in
the circumstances alleged in the plaintiff's Dec
laration, the Court in its discretion could grant
the declaration sought.
The costs of this application shall be in the
cause.
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