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Published online by Cambridge University Press: 07 November 2014
In the nineteenth century, the dominant theory of the state restricted the latter's activity to external and domestic defence and the provision of an adequate law of contract by reference to which disputes between individuals could be settled. The theory, however, never represented much more than an ideal. In the twentieth century, it became necessary to abandon even the ideal. Already, before the turn of the century, technological progress had created problems which could be solved only by state action. The demand of organized labour for a measure of security and improved working conditions produced others. Still others resulted from the concentration of capital and mass production. These and other factors forced the state to intervene in spheres which had been traditionally reserved for private enterprise. With the war came even greater problems; and the state became more and more involved. In 1918, a vain effort was made in some countries to return to “normal” conditions; but for the most part the evolution continued unabated though not always in the same tempo or in the same angle of direction. In a few states it produced collectivism, in others a “new deal,” in others fascism; but in none did laissez-faire survive.
1 The latter term implies a body exercising discretionary powers.
2 Halsbury, , Laws of England (London, 1932), vol. VI, p. 431 Google Scholar; Report of the Committee on Ministers' Powers (London, 1932), p. 4.Google Scholar
3 Finkelman, Jacob, “Separation of Powers” (University of Toronto Law Journal, vol. I, 1935–1936, p. 340)Google Scholar; Attorney-General of Ontario v. Attorney-General for Canada, (1912) A.C. 571. In the provincial area, however, there exists a constitutional difficulty which prevents the provinces from conferring judicial powers on provincially appointed authorities. See Slanec v. Grimstead et al., 54 K.B., at p. 267 (translated into English in 1933, 2 D.L.R. 289) and the critical note by Gordon, D. M. in Canadian Bar Review, vol. XI, 1933, p. 510.Google Scholar A similar difficulty exists in Australia. See Shell Oil Co. of Australia v. Federal Commissioner of Taxation, (1931) A.C. 275.
4 Hewart, Lord, The New Despotism (London, 1929)Google Scholar; Allen, C. K., Bureaucracy Triumphant (Oxford, 1931)Google Scholar; SirMulock, Wm. in Canadian Bar Review, vol. XII, 1934, p. 38 Google Scholar; Calder, R. L., Comment s'éteint la Liberté (Lachute, P.Q., 1935).Google Scholar
6 E.g., Gordon's, D. M. brilliant article “‘Administrative’ Tribunals and the Courts” (Law Quarterly Review, vol. XLIX, 1933, pp. 94, 419).Google Scholar
6 A system of controls over administrative action is also essential from the point of view of maintaining administrative efficiency.
7 Report on Ministers' Powers, p. 41.
8 Ibid., p. 67.
9 Ordinances of the Special Council, vol. V, c. 45.
10 Stuart's Reports (Quebec, 1834), p. 21.Google Scholar See also Key and Hubbard v. Pearse, and Lindo v. Rodney, both referred to by the Court. In the latter case, Lord Mansfield said: “the Courts of law in the colonies prohibit the Court of Admiralty just as the courts of Westminster Hall do here.” Reference should also be made to The King v. Gingras, Stuart's Reports, p. 560.
11 12 Vict., c. 38, s. 7.
12 1925 R.S.Q., c. 145.
13 Attorney-General v. Gray, 15 L.C.J. 306.
14 Gaynor v. Lafontaine, 15 K.B. 99; Grossberg v. Choquette el al., 36 K.B. 517 (see in particular the notes of Letourneau J., at p. 530). Authorities possessing powers equal to those of a judge of the Superior Court must, of course, be federal appointments. See supra, note 3.
15 See infra.
16 We say “in principle” because of the growing tendency to remove administrative authorities from this control.
17 The King v. Gingras, Stuart's Reports; Kearney v. Desnoyers et al., 19 S.C. 279, at p. 282; Molson v. Lambe, 15 S.C.R. 263; Vidal v. Le Barreau de Québec, 27 S.C. 115; Mignault, P. B., Droit paroissial (Montreal, 1893), p. 457.Google Scholar
18 Gordon, “‘Administrative’ Tribunals and the Courts.” Arts. 1292 and 1293 of the Quebec Code of Civil Procedure (which give the Superior Court the power on certiorari not only to revise the decisions of inferior courts, but also to intervene “when the proceedings contain gross irregularities and there is reason to believe that justice has not been or will not be done”) make no exception to these principles in so far as administrative authorities are concerned. The writ referred to in these articles is a statutory writ and is not available against administrative authorities. The article of the Code governing certiorari in administrative matters is art. 1307. See infra.
19 E.g. in Jaillard v. The City of Montreal, 72 S.C. 112, the Superior Court decided that “a discretionary power given to a public officer must be exercised not capriciously or arbitrarily, but must be based on some sound reason.” And see Clouette v. La Corporation des Huissiers, 37 R.L., n.s. 499.
20 Enacted in 1929.
21 1927 R.S.O., c. 88; repealed in 1930 by 20 Geo. V. (Ont.), c. 23.
22 “Government” is a term which like “Cabinet” is unknown to the law, but the title makes it clear that the provincial Crown is meant.
23 Art. 87A does not only take away the prerogative writs. In the cases mentioned, it also takes away all the special and provisional remedies mentioned in parts 4 and 5 of the Code of Civil Procedure including petition of right against the provincial Crown. This may be partly a result of bad draftsmanship. Chapter xlii of part 5, which governs petition of right, has been left intact, which is, of course, incompatible with art. 87A. The Legislature probably did not realize that petition of right was included in the terms of the latter article.
24 Certiorari is not mentioned in parts 4 and 5 of the Code.
25 There are special Acts governing habeas corpus in other than civil matters.
26 Ville de Roberval v. Moreau, 75 S.C. 25.
27 E.g., Alcoholic Liquor Act, 1925, R.S.Q., c. 37, s. 139. The taking away must be in express terms (The King v. Gingras, Stuart's Reports; Halsbury, , Laws of England, vol. IX, no. 1455).Google Scholar
28 Ibid., no. 1458; Demetre v. Cité de Montréal, 12 P.R. 232; ex parte Matthews, I Q.L.R. 353; ex parte Church, 14 L.C.R. 318 (head-note). For the effect of words giving the administrative order the same effect as if enacted in an Act of Parliament, see the remarks of Dunedin, Viscount in Minister of Health v. The King (on the prosecution of Yaffe), (1931) A.C. 494, at p. 501.Google Scholar
29 In Chicoutimi Pulp Co. v. Price, 39 S.C.R. 90, Fitzpatrick C. J. said that “the disturbance must be one of a permanent or recurrent nature; isolated acts of interference give rise to an action for damages.”
30 Art. 964 C.P.
31 Joly et al. v. Macdonald, 23 L.C.J. 16, at p. 30. Art. 87A adds nothing to the law in this respect.
32 Mustoe, N. E., Law and Organization of the British Civil Service (London, 1932), p. 108, and authorities there cited.Google Scholar
33 Ibid., p. 110.
34 Art. 958 C.P.
35 The proper remedy in the case of inaction is mandamus.
36 Art. 992 C.P. et seq.
37 Dagenais v. Desnoyers et al., 18 S.C. 16; Trudeau v. Labelle et at., 32 S.C. 42; Ballantyne v. Duplessis, 76 S.C. 448.
38 This principle was laid down as early as 1734 in the case of The King v. The Bishop of Lichfield, 7 Mod. 217, where Lord Hardwicke said: “If the bishop acts judicially, a mandamus lies not to compel him to grant a license, but only to determine the one way or the other.” In Jones et al. v. Laurent et al., M.L.R., I S.C. 438, a mandamus was issued ordering arbitrators to admit certain evidence.
39 Lamarre v. Woods, 14 S.C. I.
40 Atlantic and N.W. Railway Co. v. Turcotte et al., 2 K.B. 305.
41 McKenzie v. Bernier, 5 K.B. 251; Morin v. Perron, 44 K.B. 181. See Mustoe, , Law and Organization of the British Civil Service, p. 95.Google Scholar
42 See the obiter dictum in Ville de Roberval v. Moreau, 75 S.C. 25, to the effect that a registrar would not be protected by this article.
43 Art. 992 C.P. This rule is not restricted to cases where the equally convenient remedy is a common law remedy, but also applies where a special remedy is provided by statute (Ontario Express Co. v. Grand Trunk, M.L.R. 7 S.C. 308). But the fact that a public officer is liable to a fine or other punishment in the event of neglect or other omission of duty will not prevent the issue of a writ of mandamus (Lagacé v. Olivier, 21 S.C. 285; Cournoyer v. St. Martin, 21 S.C. 307).
44 Freund, E., Administrative Powers over Persons and Property (Chicago, 1928), p. 240.Google Scholar
45 Hancock, M., “Discharge of Deportees on Habeas Corpus” (Canadian Bar Review, vol. XIV, 1936, p. 116).Google Scholar
46 The Quebec Lunatic Asylum Act, 1925 R.S.Q., c. 190, provides special machinery for obtaining the release of inmates. See Dutil v. Les Soeurs de l'Hôpital St. Michel Archange, 66 S.C. 218.
47 The King v. Brixton Prison, (1916) 2 K.B. 742.
48 Martineau v. Martineau, 20 K.B. 512.
49 Art. 987 C.P. The remedy is available even where the officer has been appointed by the federal authority (Attorney-General v. Gray, 15 L.C.J. 306).
50 The writ of certiorari mentioned in art. 1292 C.P. is a statutory writ, and is available only against the inferior courts mentioned in arts. 59, 63, 64, and 65, viz. the Commissioner's Court, Justices of the Peace, the Recorder's Court, and Harbour Commissioners. In the cases in which art. 1292 applies, the Court has much wider powers than it has when it acts in virtue of the “common law” writ contemplated by art. 1307. See notes of Carroll, J. in Desormeaux v. Corporation de la Paroisse Ste. Thérèse, K.B. 481, at p. 506.Google Scholar
51 19 K.B. 481, at p. 483. And see Kearney v. Desnoyers et al., 19 S.C. 279, at p. 282; Guerette et al. v. Paroisse de St. David d'Escourt, 74 S.C. 543, and Robillard v. Blanchet, 19 S.C. 383.
52 City of Montreal v. Workman, R.A.C. 581; Lussier v. Corporation de Maisonneuve, 15 S.C. 45. On the question whether art. 430 of the Municipal Code has taken away the supervisory jurisdiction over corporations governed by that Code, see Shannon Realties v. Ville de St. Michel, (1924) A.C. 185.Google Scholar The latter judgment has not been followed by the Quebec courts. See Rainville v. Tetrault et al., 41 K.B. 292; Corporation de Charette v. Marcouiller et al., 42 K.B. 237; Corporation de la Rivière de Gouffre v. Larouche, 48 K.B. 565. The remedy invoked before the Superior Court in these cases was the “direct” action. See infra.
53 Chaine v. Commissaires d'Ecoles de St. Sévère, 18 R.J. 508; Lavoie v. Commissaires d'Ecoles de St. Ignace de Stanbridge, 23 P.R. 185; and Commissaires d'Ecoles de St. Julien, 32 R.J. 235. These were “direct” actions under art. 50.
54 Montreal Street Railway Co. v. Board Of Conciliation, 44 S.C. 350.
55 Kearney v. Desnoyers et al., 19 S.C. 279; Demers v. Choquet, 12 P.R. 411; Commissaires d'Ecoles v. Choquet, 12 P.R. 408; Gariepy v. Commissaires de License de Montréal, 10 P.R. 77.
56 Guerette et al. v. Syndics de la Paroisse d'Escourt, 74 S.C. 543.
57 The United Shoe Machinery Co. v. Laurendeau, 12 P.R. 319.
58 Shannon v. Montreal Park and Island Railway Co., 28 S.C.R. 374; Reid v. Charpentier, 45 S.C. 56; and Lachine, Jacques Cartier & Maisonneuve Railway Co. v. Reid et al., 23 K.B. 373.
59 Tremblay v. Bernier, 17 Q.L.R. 185; Larivière v. Conseil de la Chambre des Notaires, 32 P.R. 356.
60 O'Farrell v. Bar of Quebec, R.A.C. 582; Vidal v. Le Barreau de Quebec, 27 S.C. 115.
61 The King v. Gingras, Stuart's Reports.
62 Turcotte v. Beique et al., 21 R.L. 452.
63 Not all of these authorities are administrative tribunals in the strict sense.
64 Goodnow, F. J., “Writ of Certiorari ” (Political Science Quarterly, vol. VI, 1891, p. 507)Google Scholar; Freund, , Administrative Powers over Persons and Property, p. 260.Google Scholar
65 “‘Administrative’ Tribunals and the Courts,” p. 435.
66 Board of Education v. Rice, (1911) A.C. 179; Local Government Board v. Arlidge, (1915) A.C. 120; Wilson v. Esquimalt and Nanaimo Railway, (1922) I A.C. 202; The King v. Electricity Commissioners, (1924) I K.B. 171, at p. 205 Google Scholar; The King v. Minister of Health, ex parte Davis, (1929) I K.B. 619; The King v. London County Council: ex parte Entertainments Protection Association, (1931) 2 K.B. 215, at p. 223 Google Scholar; Minister of Health v. The King (on the prosecution of Yaffe), (1931) A.C. 494; The King v. Point Grey License Commissioners, 18 B.C.R. 648, at p. 653. And see the authorities mentioned by Gordon, in Law Quarterly Review, vol. XLIX, p. 435, note 74.Google Scholar
67 Supra.
68 Board of Education v. Rice, (1911) A.C. 179; Local Government Board v. Arlidge, (1915) A.C. 120; The King v. Minister of Health, ex parte Davis, (1929) I K.B. 619; Minister of Health v. The King (on the prosecution of Yaffe), (1931) A.C. 494. In the latter case, Lord Thankerton (at p. 532) said: “Unless Parliament expressly excludes the jurisdiction of the Court, the Court has the right and duty to decide whether the Minister has acted within the limits of his delegated power.”
69 Art. 43 C.P.
70 Art. 1008 C.P.
71 Bruneau, De l'art. 50 du Code de Procedure ( Revue de Droit, vol. III, pp. 403, 439).Google Scholar Note, however, that the remedy is mentioned in s. 381 of the Cities and Towns Act, 1925 R.S.Q., c. 102.
72 Supra.
73 Dyson v. Attorney-General, (1911) I K.B. 410.
74 See the remarks of SirLyman Duff, C.J. in The King v. Central Railway Signal Co., (1933) S.C.R., at p. 568.Google Scholar
75 As in the case of Lazarovitch v. Court of Sessions of the Peace, 77 S.C. 68.
75 1 Geo. VI, c. 11.
76 But it could be attacked by writ of certiorari.
78 Art. 164.
79 The right to obtain indemnification in cases where it exists does not, in any event, constitute an effective interference with the administrative process, because the illegal order or decision will stand until it has been attacked by some other means.
80 Nor will the courts often quash on the ground of procedural error. The procedure in administrative tribunals does not have to conform with the procedure followed in courts of law (Local Government Board v. Arlidge, (1915) A.C. 120; Wilson v. Esquimalt and Nanaimo Railway Co., (1922) I A.C. 202). Cf. Langlais v. Srb., 52 K.B., at p. 293.
81 Report, pp. 62, 99, 108, 177.
82 Gordon, , “‘Administrative’ Tribunals and the Courts,” pp. 440 ff.Google Scholar
83 In his Lectures on the Relation of Law and Public Opinion in England during the Nineteenth Century (ed. 2, London, 1930), p. 369 Google Scholar, Dicey lays it down “as a rule that judge-made law has, owing to the training and age of our judges, tended at any given moment to represent the convictions of an earlier era than the ideas represented by parliamentary legislation. If a statute … is apt to reproduce the public opinion not so much of today as yesterday, judge-made law occasionally represents the opinion of the day before yesterday.”
84 Willis, John, “Three Approaches to Administrative Law” (University of Toronto Law Journal, vol. I, 1935–1936, p. 60).Google Scholar
85 Hearings before the Subcommittee of the Committee on the Judiciary on S. 3676, United States Senate, 75th Congress, 3rd session.
86 Ibid., s. Ia.
87 Barthélmy, H., Traité de Droit Administratif (Paris, 1933), p. 150 Google Scholar; Rolland, L., Précis de Droit Administratif (Paris, 1938), p. 191.Google Scholar
