reform of administrative law remedies method or...

REFORM OF ADMINISTRATIVE LAW REMEDIES METHOD OR MADNESS?

BY DAVID MULLAN*

In the past few years, the subject of administrative law remedies has been studied intensively in many common law jurisdictions. In this article, David Mullan examines the various reforms and proposals for reform and concludes that none is completely satisfactory and indeed that some compound previous problems and create new ones as well. Nevertheless, he sees some merit in the New South Wales and Nova Scotia solutions which emerged as part of a general reform of the civil procedure rules and not as a separate statutory enactment.

Introduction

Reform of the law relating to judicial review of administrative action has been the subject of much attention in a number of Commonwealth jurisdictions in recent years.1 Often at the forefront, and always an integral part of these considerations, have been the remedial aspects of the law. Two general reasons for this prominence suggest themselves immediately. First, the remedial side of the law has sometimes been seen as more in need of legislative attention than the substantive aspects. Secondly, I think that it is probably true that in a sense legislative reform of the remedies is an easier and certainly less controversial exercise than the preparation of a statute dealing with the substance of judicial review. Everyone seems generally agreed about the need for remedial reform but the substance of judicial review is for many not the proper subject of a general statute, and, even if a statute is seen as desirable, then the debate becomes, if anything, fiercer: the protagonists being those wanting more review, those wanting less and those wanting

* LL.M. (Well.) LL.M. (Queen's); Associate Professor, Faculty of Law, Dalhousie University, Halifax, Nova Scotia. This article is a revised version of a paper presented to the Government Law Interest Group of the Australian Universities' Law Schools' Association at the 29th Annual Conference held at Monash Law School, 10-21 August 1974. The paper was prepared while Professor Mullan was a Visiting Lecturer at Victoria University of Wellington, and certain aspects of the paper have been developed more fully by him in the following articles: "The Federal Court Act: A Misguided Attempt at Administrative Law Reform?" (1973) 23 University of Toronto Law Journal 14; "Reform of Judicial Review of Administrative Action-The Ontario Way" (1974) 12 Osgoode Hall Law Journal 125; "Confusion Perpetuated: The Judicial Review Procedure Act Before the Divisional Court" (1974) 22 Chitty's Law Journal 297; "The Declaratory Judgment: its Place as an Administrative Law Remedy in Nova Scotia" (1975) 2 Dalhousie Law Journal 91, and "Judicial Review of Administrative Action" [1975] New Zealand Law Journal 154.

1 To my knowledge, in England, Scotland, New Zealand and federally in both Canada and Australia as well as in the Provinces of Quebec, Ontario, Nova Scotia and British Columbia and in the States of New South Wales and Victoria.

340

1975] Reform of Administrative Law Remedies 341

a codification of the status quo. Of course, this has not deterred some jurisdictions from dealing with both aspects together, as witness the Ontario legislation,2 the Federal Court Act of Canada3 and the recommendations of the Commonwealth of Australia Administrative Review Committee.4 Indeed, the English Law Commission was perhaps justifiably frustrated at its inability, because of its limited terms of reference, to deal with remedial and substantive reform together.5

This article is confined to a consideration of the narrower technical subject of remedial reform. Like the English Law Commission, I have chosen to regard the law relating to standing as being part of remedies,6

and I will not, except in passing, deal with the arguments concerning a separate administrative court.7 However, also like the Law Commission, I have considerable doubts about the utility of reforming remedies, either before or apart from a consideration of the substance of judicial review of administrative action.8 Indeed, I have a feeling that ultimately a great deal of time spent discussing remedial reform may prove to have been wasted in the sense that I believe that the only appropriate way of proceeding with a reform exercise in this area is by a detailed consideration of all statutory decision-making powers and working out in the context of that consideration what should be the appropriate role of the courts in relation to particular decision-making functions. This type of exercise leads almost inevitably to a situation where access to

2 Ss. 2(2) and (3) of The Judicial Review Procedure Act, 1971, 20 Eliz. II, c. 48 (Ontario), ostensibly increase from the common law position the ability of the newly-created Divisional Court to review for error of law and an absence of evidence. The Ontario remedial reforms were accompanied not only by the creation of a new court (The Judicature Amendment Act, 1970 (No.4), 19 Eliz. II, c. 97 (Ontario), as amended by The Judicature Amendment Act, 1971, 20 Eliz. II, c. 57 (Ontario)), but also by three statutes dealing with administrative procedure: The Statutory Powers Procedure Act, 1971, 20 Eliz. II, c. 47 (Ontario), The Public Inquiries Act, 1971, 20 Eliz. II, c. 49 (Ontario), and The Civil Rights Statute Law Amendment Act, 1971, 20 Eliz. II, c. 50 (Ontario).

3 1970, 19-20-21 Eliz. II, c. 1 (Canada), ss. 28(1)(b) and (c) are also designed to increase the common law power of the courts to review for error of law and an absence of evidence.

4 Parliamentary Paper No. 144, 1971, 77. The Committee (hereinafter called "the Kerr Committee") recommends a codification of the existing common law grounds for judicial review of administrative action.

5 Published Working Paper No. 40: Remedies in Administrative Law (1971) 2-3. On this matter, the ultimate view of Professor S. A. de Smith, one of the co-authors of the Paper, was expressed in the following terms: "One suspects, however, that a mere rationalisation of remedies without any legislative reform of the substantive law (including the law of damages and compensation) is not going to make a great deal of difference. This is not to say that supersession of existing remedies by a uniform application for review would have no beneficial side-effects at all. I believe it would prove beneficial." de Smith, Judicial Review of Administrative Action (3rd ed. 1973) 336.

6 The Law Commission Published Working Paper No. 40: Remedies in Administrative Law (1971) 3.

7Jd. 4. 8 Supra n. 5.

342 Federal Law Review [VOLUME 6

the ordinary courts will in a great number of cases be by way of statutory appeal and where judicial review proceedings will become, if not non-existent, then at least less frequent.9

Before I state in more detail my object and thesis in this article, there is another reservation which probably should be entered. As mentioned before, there seems to be almost universal acceptance of the need to reform the remedies in this area and indeed I will comment later on a number of the deficiencies of the old forms of relief. However, I am beginning to think that the old prerogative remedies and the equitable declaratory and injunctive orders were perhaps not quite the unruly servants we often have accused them of being. At least their deficiencies have probably been exaggerated.10 This view is of course influenced greatly by my horror at some of the statutory attempts at reform.

Objects and Preliminary Statement of Arguments

In the interests of time and also having regard to Professor Sykes' paper delivered at a plenary session of the Australian Universities' Law Schools' Association 29th Annual Conference,11 I will for the most part

9 For a neat, short and incisive advocacy of this type of approach see Willis, "The McRuer Report: Lawyers' Values and Civil Servants' Values" (1968) 18 University of Toronto Law Journal 351, 359. (''The principle of 'uniqueness' is the principle for me.") The McRuer Commission Report, on which the Ontario legislative reforms are based had categorically rejected this method of approach: Report of the Royal Commission: Inquiry into Civil Rights (1968) Vol. 1, 326. See also Whitmore, "Administrative Law in the Commonwealth: Some Proposals for Reform" (1972) 5 F.L.Rev. 7, 22, for a decisive condemnation of proceeding in this manner: "It is pointless to argue that further investigation of the administrative process is necessary. The process is well understood and indeed individual members of the Committee had some experience of working in the administration. Such arguments tend to be the crutches of timorous souls who are inclined to approach every problem in piecemeal fashion." It should be said that Professor Whitmore was a member of the Kerr Committee and the article is in essence a justification of the recommendations made by that Committee. Note, however, that the Kerr Committee and, more particularly, its successor, the Bland Committee, while rejecting the need for further empirical research and individual attention to particular statutory decision-making processes, were clearly in favour of increased scope for appeals from administrative decisions either as a supplement to or in place of common law judicial review. See the recommendations of the Kerr Committee (Parliamentary Paper No. 144, 1971, 115-117) and the Final Report of the Committee on Administrative Discretions ( 1973) (hereinafter called "the Bland Committee Report") seriatim.

to See particularly the criticisms of Professor K. C. Davis in ''The Future of Judge-Made Public Law in England: A Problem of Practical Jurisprudence" (1961) 61 Columbia Law Review 201, 204 and "English Administrative LawAn American View" [1962] Public Law 139, 149.

11 E. I. Sykes, "Current Reform Trends in Administrative Law" (unpublished). Professor Sykes' paper contains a very interesting discussion of the recommendations of the Bland Committee as well as touching on the Kerr Committee's recommendations on judicial review and the later Ellicott Committee Report (Report of Committee of Review on Prerogative Writ Procedures, Parliamentary Paper No. 56, 1973). The Ellicott Committee was appointed to consider further the problems of the reform of judicial review, but in a most disappointing document merely reiterated most of the recommendations of the Kerr Committee in this regard.


confine myself to an examination of the Canadian and New Zealand experiences in the reform of the judicial review remedies. They also happen to be the jurisdictions with which I am most familiar.

However, I will deal with the recent changes in the remedial structure in New South Wales and as well from time to time make passing reference to the English Law Commission's Working Paper, the equivalent document released by the Scottish Law Commission12 and the Kerr Committee's Report.

So far the Australian, Canadian and New Zealand experience reveals three rather distinct models for statutory reform. (Parenthetically, it should be said that my shameful but typical Canadian common lawyer's ignorance of comparatively recent remedial reforms in the Province of Quebec precludes any consideration in the present context of that Province's "solution".13 ) The first of the three models, as I see them, is the Ontario model,14 essentially copied by New Zealand15 and now advocated for British Columbia.16 The basic design of this model is a separate statute creating a new judicial review remedy intended to replace (though not quite completely) the old forms of relief. The second model is provided by the Federal Court Act,t7 a part of which establishes in Canada for the first time a federal court with general review jurisdiction over federal statutory decision-makers. This replaces the former authority of the provincial superior courts in this area and provides for a most curious amalgam of the old forms of relief and a new simplified remedy. The third model comes from the Canadian Province of Nova Scotia18 and the Australian State of New South W ales.19 In both these jurisdictions, limited remedial reform preserving the existing modes of relief took place in the context of a general civil procedure reform exercise.

My essential thesis will be that, of the three models, the one that has so far worked most satisfactorily and that has the potential to continue to do so is the Nova Scotia-New South Wales model. Certainly, it has its imperfections and is basically not very ambitious, but it is clearly superior to the Federal Court Act and, as recent litigation in Ontario has shown, it contains far less scope for confusion than the first model.

12 Scottish Law Commission Memorandum No. 14: Remedies in Administrative Law (H.M.S.O. Edinburgh, 1971).

13 See, however, Dussault, Le Controle Judiciaire de /'Administration au Quebec ( 1969) and R. v. Royal Institution for the Advancement of Learning; Ex parte Fekete (1969) 2 D.L.R. (3d) 129.

14 The Judicial Review Procedure Act, 1971, 20 Eliz. II, c. 48 (Ontario). 15 Judicature Amendment Act 1972 (N.Z.). 16 British Columbia Law Reform Commission Working Paper No. 10: A Pro-

cedure for Judicial Review of the Actions of Statutory Bodies ( 1973). 17 1970, 19-20-21 Eliz. II, c. 1 (Canada). 18 Nova Scotia Rules of Civil Procedure, 1972. 19 Supreme Court Act, 1970 (N.S.W.) and the Rules made thereunder contained

in the Fourth Schedule to the Act.


In fact, I would argue that of the three models the Nova Scotia-New South Wales model is the only one that will not eventually lead to greater remedial confusion than existed at common law. It is also perhaps worthy of comment that at least in Nova Scotia the reforms were not preceded by a lengthy and expensive inquiry, 20 nor were they the subject of arguably uninformed parliamentary debate,21 nor did their arrival precipitate editorial acclaim.22 Essentially, they were the work of one man with considerable experience in Civil Procedure but not, I think, professing any expertise in judicial review of administrative action.

My order of approach will be first to enumerate fairly briefly the perceived defects of the common law system of judicial review. I will then examine the way in which each of the three models has coped with those deficiencies and identify some of the new problems which have already surfaced or which seem likely to surface.

Perceived Defects

In some respects the remedial law relating to judicial review developed in different ways in different jurisdictions throughout the Commonwealth leading to varying levels of dissatisfaction. In many places statutory modification of the traditional procedures served to diminish some of the documentary and time-consuming requirements surrounding the prerogative writs. Yet, at the same time as the old writs were being superseded in some jurisdictions by simpler orders in the nature of those writs, other jurisdictions failed to follow suit, and, even where simplification had taken place, there often remained obscurities and idiosyncrasies in some of the rules of procedure while the courts at times fashioned further problems out of the existing structure.

It would take too long to go through the procedures of each jurisdiction and identify all the various problems. Nevertheless, there are just a few matters of regional peculiarity which deserve to be mentioned by way of illustrating the various types of difficulty. In Nova Scotia, until the recent reforms, the old writ procedure for prerogative orders still governed, with such quaint variations as mandamus having to be sought from the Court of Appeal (except in vacation) while the other writs were obtainable from the Supreme Court.23 New South Wales preserved the prerogative writs also and there too original jurisdiction to grant judicial review was divided between the Court of Appeal, the Supreme

2o Such as the McRuer Commission. 21 As evidenced by the debates in the Canadian Parliament over the Federal

Court Act (both in the House and the Senate). 22 "A New Magna Carta" (headline for a two-part editorial in the Toronto

Globe and Mail on 22 and 24 April 1972 in celebration of the coming into force of the McRuer package of legislation).

23 E.g. Re Fairbanks (1969) 5 D.L.R. (3d) 657; (1965-1969) 1 N.S.R. 616 (Dubinsky J.).


Court in common law and the Supreme Court in equity.24 Ontario had moved to orders in the nature of the prerogative writs, but for some obscure reason orders in the nature of certiorari had to be sought in open court while applications for the other prerogative orders could be made in chambers.25 It had also been established in Ontario26 (and, I believe, in Australia as wel1) 27 that not only could a declaration not be sought in the same proceedings as an order in the nature of the prerogative writs, but also that declaratory relief was simply not available as an alternative to such an order.

To such individual quirks can be added those familiar difficulties of almost universal concern:

(a) the dependence of the availability of relief in the nature of certiorari and prohibition upon an ability to classify the decisionmaking process as judicial or quasi-judicial;

(b) the unavailability of relief against the Crown except in declaratory proceedings;

(c) the inability of declaratory relief to quash as well as to declare, thus raising doubts about the availability of declaratory relief for non-jurisdictional error of law;

(d) the unavailability of the pre-trial devices of discovery and interrogatories in prerogative order proceedings, and the further difficulty of obtaining leave to adduce oral evidence in such proceedings;

(e) the inability, mentioned above, of an aggrieved person to combine applications for prerogative and non-prerogative relief (including damages) in the same proceedings; and

(f) the variations in the law of standing depending on the remedy being sought.

The essence of most of these problems was succinctly stated in the English Law Commission's Working Paper:

24 Report of the Law Reform Commission on Appeals in Administration (1973) (L.R.C. 16) 285, Annexure E, para. 3.

25 McRuer Commission Report: Inquiry into Civil Rights (1968) Vol. I, 317-318.

26 Hollinger Bus Lines Ltd v. Ontario Labour Relations Board [1952] O.R. 366; [1952] 3 D.L.R. 162.

27 Toowoomba Foundry Pty Ltd v. The Commonwealth (1945) 71 C.L.R. 545. Note, however, recent decisions which seem to acknowledge far greater scope for the use of the declaration than was thought to exist previously: Salmar Holdings Pty Ltd v. Hornsby Shire Council [1971] 1 N.S.W.L.R. 192 (noted (1972) 5 F.L.Rev. 143); Forster v. Jododex Australia Pty Ltd (1972) 127 C.L.R. 421; The Commonwealth v. Sterling Nicholas Duty Free Pty Ltd (1972) 126 C.L.R. 297. However, it is significant that in Forster at least one judge in the High Court of Australia took care to distinguish that case from Toowoomba and it seems there was concurrence in this by the remaining four judges. In Toowoomba, the decision had already been made. Not so in Forster (1972) 127 C.L.R. 421, 437 per Gibbs J. See also more recent New South Wales decisions, discussed infra.


the evil of the present system is not that there are many different forms of relief, but that it is impossible to apply for them, or some of them, by the same procedure.28

Procedural differences coupled with a frequent inability to combine applications for different kinds of relief-these were the major points of criticism and these were obviously the matters to be dealt with in any reform exercise. As the McRuer Commission Report emphasized, 29 no deserving applicant should be denied relief simply because the wrong remedy had been sought. Basically, the remedies need to be released from the shackles of procedural technicalities and the courts needed to be given flexibility against the background of a simpler procedure common to all forms of relief against unlawful administrative action.

Indeed, there is no doubt that this has been the philosophy behind all the reforms that have so far taken place. How and why have those reforms all gone at least partially wrong?

The Federal Court Act of Canadw0

My reasons for dealing first with the Federal Court Act are: (a) it was the initial attempt at reform in Canada apart from Quebec, (b) it is probably the worst, (c) it can be dealt with quite quickly, and (d) it is certainly never likely to be copied by any other jurisdiction,31 notwithstanding the seemingly limitless capacity of some law reform agencies mindlessly to plagiarize the work of the pioneer in a particular field of reform.

Those responsible for the drafting of the judicial review sections of the Federal Court Act had an almost unique opportunity to fashion a satisfactory remedial structure.32 After all they were not engaged in

28 Published Working Paper No. 40: Remedies in Administrative Law (1971) 56. 29 McRuer Commission Report: Inquiry into Civil Rights (1968) Vol. 1, 317. 30 1970, 19-20-21 Eliz. II, c. 1 (Canada). 31 I am not in this respect referring to the whole concept of a federal court

dealing with matters of judicial review of federal administrative action, but rather to the particular method by which the creation of such a court was achieved federally in Canada. The Kerr Committee Report, Parliamentary Paper No. 144, 1971, Ch. 11, 71-75 discusses how this problem should be tackled federally in Australia.

32 Note that under the Commonwealth Constitution the High Court of Australia is given original jurisdiction in all matters "[i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth" ( s. 7 5 ( v) ) . This provision quite clearly complicates the path of remedial law reform in Australia in that the creation of a single comprehensive remedy available from a specialist court only would not be possible without a constitutional amendment. (See also s. 75(iii) and the discussion of these sections in Howard, Australian Federal Constitutional Law (2nd ed. 1972) 227-229.) The Kerr Committee was not inclined to recommend this step (Parliamentary Paper No. 144, 1971 Ch. 4 "Constitutional Aspects of Administrative Law" 21. See also para. 241, 72). There were no such express constitutional obstacles to the creation of a federal court in Canada with exclusive judicial review jurisdiction over federal matters.

1975] Reform of Administrative Law Remedies :347

reform of an existing system. They were creating a new court with a new jurisdiction. Tradition should have nudged gently at their shoulders. Unfortunately, to be blunt, they failed badly.

The Federal Court is divided into two divisions-the Trial Division and the Court of Appeal.33 Original jurisdiction in judicial review matters is similarly divided,34 the justification for giving the three man Court of Appeal substantial original review jurisdiction being that such a state of affairs was far more acceptable than single trial judge review of multi-member tribunals. 35

The exclusive original jurisdiction of the Federal Court of Appeal is invoked by a simplified "application to review and set aside"36 and there can be no complaint with this movement towards a single remedy, particularly when section 52(d) confers on the court, in addition to its authority "to review and set aside", the power to refer any matter back to the statutory decision-maker "with such directions as it considers to be appropriate".37 This gives the court certain necessary remedial flexibility. However, the major criticism of the section creating the Court of Appeal's exclusive review jurisdiction stems from the terminology in which that jurisdiction is established. The Court is given authority over decisions and orders

. . . other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis.38

Not only does this increase the importance of the whole classification process, in that it becomes a necessary point of concern in every instance where proceedings are being contemplated in the Federal Court, 39 but it is also expressed in language designed further to complicate the morass established by the law relating to natural justice, certiorari and prohibition. Are there in fact decisions of an "administrative nature" which are "required by law to be made on a judicial or quasi-judicial basis"? In a regime where the term "administrative" is

33 S. 4. The Court of Appeal may also be referred to as the Appeal Division. 34 Ss. 18 and 28. 35 Statement of Mr D. S. Maxwell, Q.C., Deputy Minister of Justice, before the

House of Commons Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence of the Committee for Thursday, 7 May 1970: 28th Parliament, 2nd Session, No. 26, 26.

36 s. 28(1). 37 Still greater flexibility might have been ensured if the Court had also been

given the authority, where appropriate, to make the decision the statutory decision-maker should have reached. See also the broad range of relief advocated by the Kerr Committee, Parliamentary Paper No. 144, 1971, para. 263, 78.

38 s. 28(1). 39 At common law, the classification process is relevant with respect to deciding

whether the principles of natural justice are applicable and to the availability of certiorari and prohibition (subject, of course, to the as yet uncertain effect of the emergence of "fairness" as a concept relevant to, procedural obligations). To a


often used in contra-distinction to "judicial" and "quasi-judicial" the potential for confusion becomes rapidly apparent.40

Another major difficulty with the legislation results from section 18 which is the provision conferring review jurisdiction on the Trial Division. This too is stated to be "exclusive"41 but must in the event of conflict seemingly be read subject to section 28 ( 3) which gives the Court of Appeal exclusive review authority in its area of jurisdiction. The Trial Division's powers to grant relief are expressed in terms of the traditional modes of relief. It has jurisdiction

to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus, or writ of quo warranto, or grant declaratory relief ... 42

At once, the potential for overlap with the Court of Appeal's jurisdiction can be seen, and, immediately behind that comes the question as to whether the writs of certiorari and prohibition will ever be available from the Trial Division. After all, in traditional terminology such relief was only available in respect of decision-makers exercising judicial or quasi-judicial functions and, as already seen, section 28(1) seemingly makes the review of such functions the exclusive preserve of the Court of Appeal. So far the tentative judicial answer to this dilemma seems to have been that there is in fact no scope for seeking a writ of certiorari from the Trial Division but that prohibition may be sought.43 Because

certain extent criticism of the increased significance of this process under the Federal Court Act, is tempered by the ease with which proceedings can be transferred from one Division to another (Rule 359 of the General Rules and Orders of the Federal Court of Canada). Nevertheless, the difficulty still has to be faced as a matter of taking the original decision of where to commence proceedings. "Fairness" is also presumably going to create some problems as to the division of responsibilities under ss. 18 and 28. See Lazarov v. Secretary of State of Canada (1973) 39 D.L.R. (3d) 738 where this problem was toyed with by the Court, and Howarth v. National Parole Board (1974) 50 D.L.R. (3d) 349 in which it was decided (inter alia) that a challenge to a decision of the National Parole Board should have been commenced, if anywhere, in the Trial and not the Appeal Division of the Federal Court.

40 Lazarov is relevant on this question. I also discuss this problem in a lengthy footnote in my article, "The Federal Court Act: A Misguided Attempt at Administrative Law Reform?" (1973) 23 University of Toronto Law Journal 14, 29-30, n. 57.

41 "The Trial Division has exclusive original jurisdiction ... " 42 S. 18(a). Under s. 18(b) the Court is also given jurisdiction in these

terms: "to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief . . ." The purpose of this section is difficult to perceive, though it may be possible to interpret the section as authorizing actions, at least for declaratory relief, against the Crown in right of Canada. The Federal Court Act is not expressed to bind the Crown but, on the other hand, the Attorney General is not normally named as a defendant unless the Crown is being sued.

43 Vapor Canada Ltd v. MacDonald et al. (1971) 22 D.L.R. (3d) 607. Note, however, the recent English decision R. v. Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] 2 W.L.R. 805, 811, where Lord Widgery C.J.


section 28 uses the words "decision or order", prohibition can be sought under section 18 before there is a decision or order. Thus the peculiar position is reached that in such cases the Trial Division has exclusive jurisdiction before a decision is taken and the Federal Court of Appeal has exclusive jurisdiction after the decision.

The catalogue of difficulties created by the Federal Court Act is still larger. There is considerable obscurity about the availability of relief under either section 18 or 28 against the Crown.44 Section 18 presumably preserves the varying law of standing in relation to particular remedies which prevail under the common law, while section 28(2) introduces the undefined term "directly affected" as the criterion for the grant of an application to review and set aside. However, in addition to the flexibility and simplicity of the new remedy created by section 28, a further provision worthy of favourable comment is section 29 which restricts the review powers of the Trial Division and the Court of Appeal "to the extent" that there is a right of appeal from a federal statutory decision-maker to the Court itself, the Supreme Court, the Governor in Council or the Treasury Board. This at least recognizes the lack of need for judicial review in the face of a specially-devised statutory appeal; though arguably the section should have gone further and not allowed for review of matters beyond the reach or "extent" of the appeal rights. Not to do this would almost seem to amount to an nonacceptance of the limits of judicial concern as they had been worked out in the context of a particular statutory regime.

In summary then, the Act, while it reflects a certain attempt to achieve remedial simplicity and a recognition of the important place of statutory appeals, contains a confusing split of original jurisdiction between two courts, a split predicated on the long-criticized classification process. This alone prevents it from being a model worthy of serious consideration by any other law reform agency.

The Judicial Review Procedure Act, 1971 of Ontario46 and its New Zealand Cousin46

The Ontario legislation cost a Royal Commission.47 It took only a few meetings of the part-time New Zealand Public and Administrative Law Reform Committee for it to recommend a virtual copy of the remedial

suggests that certiorari is now available without regard to the traditional administrative-judicial classification process.

44 Supra n. 42. 4S 1971, 20 Eliz. II, c. 48 (Ontario). 46 Judicature Amendment Act 1972 (N.Z.). 47 The McRuer Commission. Of course, it should be said that the remedial

aspects of judicial review were virtually confined to three short chapters of a mammoth five volume report: Inquiry into Civil Rights (1968) Vol. 1, Chapters 20-22, 316-332.

350 Federal Law Review (VOLUME 6

aspects of the Ontario legislation.48 The Ontario legislation was greeted by an editorial fanfare.49 My recent visit to New Zealand gives me reason to believe that even a great number of the practising bar are still completely unaware of the thrust of the Judicature Amendment Act 1972 (N.Z.).50

Instead of a multiplicity of forms of applications to compel, prohibit or set aside the exercise of statutory powers, there should be a single application to the court in which all the relief obtainable under any of the existing remedies would be available without the technical complexities, provoking much legalistic debate, which often obstruct, delay and sometimes defeat a decision on the merits.51

This extract from Chapter 22 of Volume 1 of Ontario's McRuer Commission Report, particularly the words italicized, represents a clear commitment to the replacement of all the old remedies with a new simplified remedy covering all the grounds of judicial review relief which were available under the old remedial structure. In terms of a statement of the general purpose of remedial law reform, it cannot be quarrelled with. Unfortunately, the conversion of the recommendation into statutory form not only failed to give full effect to all of its aspects but also has created new "technical complexities, provoking much legalistic debate".

The Ontario Judicial Review Procedure Act, 1971, like the Federal Court Act, introduces a new simplified review remedy styled "Notice of Application for Judicial Review". 52 This new remedy, while designed to replace the old modes of relief, does not abolish them outright. Proceedings for orders in the nature of the prerogative writs may still be commenced, though the new Divisional Court is obliged to treat them as if they were applications for judicial review. 53 More significantly, the treatment of an action for an injunction or a declaration as an application for judicial review depends on the application of a party to the action and the exercise of discretion by a judge of the High Court. 54

This limited survival of the old forms of action goes directly against the McRuer recommendations, and it is difficult to see any justifiable

48 See particularly the fourth and fifth reports of the Committee, presented to the Minister of Justice in 1971 and 1972 respectively.

49 Supra n. 22. so For instance, in Tauhara Properties Ltd v. Mercantile Developments Ltd

[1974] 1 N.Z.L.R. 584, 585, the Supreme Court treated an application for certiorari and prohibition as an application for review by virtue of s.6 of the Judicature Amendment Act 1972.

51 McRuer Commission Report: Inquiry into Civil Rights ( 1968) Vol. 1, 325 (italics added) .

52 s. 2( 1) 0

53 S. 7. 54 s. 8.


reason for the preservation until it is realized that the new remedy (by accident or design, I am not sure) does not in fact cover all the grounds of relief against public authorities which were available at common law.

Section 2 ( 1 ) of the Act creates the new remedy in the following terms:

On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, notwithstanding any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following: 1. Proceedings by way of application for an order in the nature of

mandamus, prohibition or certiorari. 2. Proceedings by way of an action for a declaration or for an

injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

The term "statutory power" which is the key to relief in the nature of a declaration and injunction (and under the New Zealand Act to all kinds of relief) is defined as follows in section 1 (g):

. . . a power or right conferred by or under a statute, (i) to make any regulation, rule, by-law or order, or to give any

other direction having force as subordinate legislation, (ii) to exercise a statutory power of decision, (iii) to require any person or party to do or to refrain from doing

any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(iv) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.

"Statutory power of decision", a term included in the definition of "statutory power", is also defined (section 1 (f)) as:

. . . a power or right conferred by or under a statute to make a decision deciding or prescribing,

(i) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

( ii) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether he is legally entitled thereto or not,

and includes the powers of an inferior court.

Probably, the first reaction to the use of the term "statutory power" as a qualification on declaratory and injunctive relief under the new remedy is that it was included to prevent arguments being made that the new Act covered any of the private law uses of those remedies. The

352 Federal Law Review (VOLUME 6

English Law Commission has in fact suggested tentatively that at least some non-statutory bodies be subject to their proposed new remedial regime, mainly because of the public functions that they exercise and because of the basic similarity of review issues as between them and many statutory bodies.55 However, this aside, there are arguments for restricting the new remedy to issues of judicial review raised by statutes and, if this was all that the Ontario Act aimed at and caught, there could not be too much criticism.

Unfortunately, early litigation under the legislation demonstrates that the qualification in fact has succeded in eliminating more than just these types of proceedings from the ambit of the new, supposedly allpurpose, remedy.

In Re Lamoureux and Registrar of Motor V ehicles56 the Ontario Court of Appeal held that a driving suspension which arose by operation of statute rather than by the taking of a decision could not be questioned under the Judicial Review Procedure Act. The Court emphasized the word "exercise" in section 2 ( 1 ) and held that this precluded the Divisional Court from declaring that the statute did not apply to the applicant for relief. It could only use its declaratory powers when a decision had been taken under a statute. As a result the proceedings were dismissed and the applicant was left to start again-this time in the High Court of Ontario by way of an action for a declaration.

In Re Florence Nightingale Home and Scarborough Planning Board57

the three man Divisional Court held that, because a Planning Board made recommendations only, it was not exercising a "statutory power" or "statutory power of decision". The definitions were held to encompass only statutory functions having final or determinative effect. In so far as relief in the nature of certiorari or prohibition is not tied to the definition of "statutory power" in section 2 ( 1 ) , and to the extent that those remedies could be obtained in Ontario prior to the Act with respect to non-final decisions, this may not be seen as excluding much from the ambit of the Act. However, there have always been doubts about the availability of orders in the nature of prohibition and certiorari in such circumstances, 58 so once again the wise course of action for counsel is to ignore the Judicial Review Procedure Act and seek declaratory or injunctive relief from the High Court. In New Zealand, in fact, this problem is even more pronounced by virtue of the fact that "statutory power" operates as a qualification on all types of relief.59

55 Published Working Paper No. 40: Remedies in Administrative Law (1971) 65-67.

56 [1973] 2 O.R. 28; (1972) 32 D.L.R. (3d) 678. 57 [1973] 1 O.R. 615; (1972) 32 D.L.R. (3d) 17. 58 For a recent discussion of this problem in an Ontario context, see Howe,

"The Applicability of the Rules of Natural Justice to Investigatory and Recommendatory Functions" (1974) 12 Osgoode Hall Law Journal 179.

59 Judicature Amendment Act 1972 (N.Z.) s. 4.


In general, what emerges from these two decisions is a position where the new remedy in both Ontario and New Zealand does not embrace a number of causes of action normally considered an integral part of judicial review of administrative action. This of course has the effect of detracting greatly from the worth of the reform exercise. Perhaps disputes as to the application of a new statutory remedy are inevitable. Nevertheless, it is distressing to see such obvious problems raised by the legislation at so early a stage. It also takes one back to the criticisms which the McRuer Commission Report levelled against the old remedies:

Justice is often defeated because the litigant has selected the wrong remedy . . . the selection of the right remedy presents even experienced counsel with serious problems, and is something on which judges not infrequently differ . . . The unfortunate litigant is still often subjected to the injustice of having his application for relief dismissed with costs, with words of little consolation added, that the judgment is without prejudice to his right "to pursue such further other remedy as he may be advised" .60

While a number of the difficulties referred to by McRuer have been eliminated by the Judicial Review Procedure Act, it begins to seem that new and similar ones have been erected in their place.

Fortunately, the English Law Commission seems aware of these pitfalls and has recommended that the new remedy include all the roles presently performed in England by the declaration and injunction in their "true public law context",61 including the ability of the courts to issue a declaration of rights or entitlement under a statute-the precise matter held to be excluded by Lamoureux. In contrast, the Kerr Committee, while recognizing the need to pay attention to non-final recommendatory powers, speaks generally of "decisions" without reference to the broader public law uses of declaratory and injunctive relief in situations where there is no actual decision.62

Aside from these novel difficulties created by the language of the statute, the Divisional Court seems to have spawned additional and perhaps unnecessary difficulties for itself, as well as pointing to some of the old sources of tribulation not resolved by the Act.

Probably the most confusing decision so far has been Re Robertson et al. and Niagara South Board of Education.63 Here, a majority in the Divisional Court quite wrongly asserted that their ability to award relief

60 McRuer Commission Report: Inquiry into Civil Rights (1968) Vol. 1, 317. 61 Published Working Paper No. 40: Remedies in Administrative Law (1971) 68. 62 Parliamentary Paper No. 144, 1971 para. 253, 76. Perhaps the superficiality

of certain aspects of the Kerr Committee's Report finds some justification in the following statement by Professor Whitmore, "Administrative Law in the Commonwealth: Some Proposals for Reform" (1972) 5 F.L.Rev. 7, 8-9: "Because the Report was aimed at laymen as well as lawyers it was decided to avoid unnecessary technicality and complexity wherever possible and to keep case references to an absolute minimum."

63 [1973] 1 O.R. (2d) 548; (1973) 41 D.L.R. (3d) 57.


in the nature of certiorari and prohibition depended upon whether the function being exercised was a "statutory power of decision",64 for, in the Ontario legislation, it is quite clear that the availability of such relief is not tied to either of the terms "statutory power" or "statutory power of decision" but to the availability of that kind of relief at common law prior to the Act. The Court also asserted that a statutory decision to close a school did not constitute a deprivation of "a benefit or licence, whether [the pupils were] legally entitled thereto or not" in terms of section 1 (f), and was therefore not a "statutory power of decision",65 the effect of this being to exclude unnecessarily from the ambit of the Act another class of decisions obviously within the scope of common law review. Finally, two of the judges held that the parents of those children affected by the decision did not have standing to challenge it.66 Later, I will question the failure of the legislation to regularize the law of standing by adopting a common test irrespective of the relief being sought. However, at least it seemed abundantly clear that the Act preserved the previous common law of standing in relation to particular kinds of relief. Because of the strict standing test adopted by the court in certiorari-type proceedings,67 Robertson's case raises doubts about the correctness of this assumption and further muddies the already treacherous waters of the common law of standing.

Re Thomas and Committee of College Presidents68 also merits brief mention with respect to two points, one of which was argued before the Divisional Court but not decided. Prior to the Act in Ontario, according to McRuer:

... certiorari, prohibition and mandamus [lay] to supervise a nonincorporated tribunal, but an action [e.g. for a declaration or injunction] [did] not lie against a board unless it [was] created a body corporate by statute.611

In Thomas, it was argued that the new remedy did not lie against an unincorporated body but this quite important issue was left unresolved by the court as it was by the Act. 70 The ultimate basis upon which the Divisional Court refused jurisdiction in Thomas was the result of another restrictive reading of the statute. It was held that the Committee of College Presidents, seemingly set up under the umbrella of a university statute, was a domestic tribunal rather than a statutory one. The Court

'64Jd. 550 (59). 65 Id. 551-552 (60-61). 66 I d. 549 (58) (per Wright J., with whom Wells C.J.H.C. concurred). 67 Certiorari has always been regarded as having the most liberal standing

requirement among the traditional remedies: e.g. the English Law Commission's Working Paper No. 40 Rt!medies in Administrative Law (1971) 96.

68 [1973] 3 O.R. 404; (1973) 37 D.L.R. (3d) 69. 611 Report of the Royal Commission: Inquiry into Civil Rights, (1968) Vol. 1, 318. 70 [1973] 3 O.R. 404, 405-406; (1973) 37 D.L.R. (3d) 69, 70-71.


at one point oddly suggested that the test of whether a body was statutory depended upon whether it was under a statutory duty to decide anything. 71

As well as the difficulties so far identified by the reported cases, there are other obvious problems with the legislation. It seems fairly clear that damages cannot be sought in combination with the new remedy so that another aspect of the law of judicial review remains outside the jurisdiction of the Divisional Court. The Act does nothing to tidy up the law of standing and in such matters it is still necessary to refer back to the common law relating to the particular modes of relief. It is also questionable whether the Act binds the Crown at all. Finally, it is unclear the extent to which the existence of statutory appeals is relevant as a factor bearing on the availability of the new remedy. Section 2(1) provides that the Court "may, notwithstanding any right of appeal, by order grant relief ... ". It has yet to be determined whether this amounts to an instruction by the legislature that statutory appeal provisions are to be ignored by the court or that the court may, but need not necessarily, grant the new remedy in the face of a statutory right of appeal. Whatever interpretation is finally settled on by the court, it certainly does not go as far as the Federal Court Act and make judicial review subordinate to statutory appeal rights. In my view, this is regrettable.

The New Zealand legislation is very similar to that of Ontario. However, unlike the Ontario Act, it does not bring about any substantive reform. 72 The definition of "statutory power" is slightly but not significantly different, 73 but, as mentioned earlier, that definition is a qualification on the availability of all remedial relief, not just declaratory and injunctive relief as under the Ontario legislation. So far the Act does not appear to have generated many interpretative difficulties, though a number of the indications of the Ontario problems have manifested themselves. For example, in one reported case,74 the old remedies were sought after the coming into force of the Act and I gather from counsel involved that it was thought that the Act simply did not cover the matter in question because it involved a non-final decision. The same counsel has also been successful in having an action struck out on that very basis. In a slightly different vein, another lawyer, with a considerable administrative law practice, informed me that he still prefers to use, where possible, an action for an injunction against public authorities. He regards this as procedurally easier than the new remedy, particularly

1l[d. 406-407 (71-72). 72 In other words there is no equivalent to s.2(2) and (3) of the Judicial

Review Procedure Act, 1971 (Ontario) . 73 The word "party" in (iii) and (iv) is omitted and the words "notice or" are

added before "direction" in (i). 74 Lower Hutt City Council v. Bank [1974] 1 N.Z.L.R. 545.


because of the ability to seek an ex parte interim injunction on very short notice to the court, the grant of which frequently leads to settlement. 75

The major problem with both the New Zealand and the Ontario statutes is their failure to catch within their ambit all those matters commonly considered to be part of the law relating to judicial review of administrative action. This, of course, has made the perhaps fortuitous preservation of the old remedies a blessing in disguise, but it has also detracted considerably from the worth of the whole reform exercise which, at least according to the McRuer philosophy, was predicated on the need to build a totally new remedial foundation. What we have now in those two jurisdictions is an awkward combination of new and old, predicated principally on that eminently justiciable term "statutory power". In addition to this major problem, the legislation also fails to deal with a number of other matters of continuing concern under the common law system of remedies.

Recently the British Columbia Law Reform Commission has commented favourably on the Ontario and New Zealand legislation and proposes a similar Act.76 In my view any further carbon copies of that model would be disastrous-so beware British Columbia and those jurisdictions of similar persuasion!

The Nova Scotia Rules of Civil Procedure In 1972 the Province of Nova Scotia adopted a new code of civil

procedure, based principally on the English Rules of the Supreme Court but containing a number of borrowings from other jurisdictions and also some provisions of local origin. As part of that reform the rules relating to judicial review remedies were modified considerably.

Nova Scotia's solution differs from the other two models so far discussed in that it does not establish a new remedy. Rather, all the old remedies have been preserved in a much simplified form.77 Instead of the old prerogative writ procedure with all its procedural intricacies, all the remedies can now be sought by way of a simple application inter partes,78 though the potential still exists in certain cases for seeking a declaration or an injunction by way of an action.79 This in itself brought the Province's judicial review out of the dark ages and two further provisions in the Rules seem to make the exercise even more worthwhile. By virtue of Rule 5.01, as interpreted by the Nova Scotia

75 Presumably, this kind of remedial flexibility is in fact provided for in the Judicature Amendment Act 1972 s.8 which gives the Court authority to "make such interim order as it thinks proper pending the final determination of the application".

76 Supra n. 16. 77 See Rules 5.14 (declaration) and 56 (prerogative relief). 78 Rule 9.02. 79 Note, however, the mandatory effect of Rule: 9.02 described infra n. 81.


Court of Appeal in Lord Nelson Hotel Ltd v. City of Halifax,80 it is possible to combine applications for all the judicial review remedies in the one proceeding. It also seems fairly clear from Rule 9.0281 that a claim for damages can be combined with judicial review proceedings under the new application procedure, at least in situations where there are no substantial disputes of fact.

On the surface all of this does not seem to amount to very much. However, on reflection I think it becomes apparent that the new provisions achieve as much as the Ontario and New Zealand statutes in that the ability to combine applications for all the various modes of relief meets McRuer's principal concern with the old remedial structure and reflects the major aim of the Ontario legislation. Nova Scotia has avoided one of the major pitfalls of the Ontario and New Zealand legislation in that the availability of relief depends on the old law alone and not the old law plus that frightening term "statutory power". There is also an argument that such matters are best dealt with in a Code of Procedure rather than a special statute not only because it enables the judicial review remedies to be related to the general system of procedure and relief, but also for the reason that subordinate legislation is more easily amended than a statute.

Of course, it may be contended that to preserve the old remedies in even a streamlined form is to cement confusion and that the only satisfactory way of proceeding with the reform exercise is to completely move away from the old law and codify the grounds for review within the context of establishing a single new judicial review remedy. This is the path chosen by the Federal Court Act in section 28 (establishing the Court of Appeal's jurisdiction) and it is also the path advocated by the Kerr Committee Report.82 There are two factors, however, which may make this a less than worthwhile exercise. First, probably the least obscure aspects of the old remedies are the grounds on which they are available.83 Of course, much litigation revolves around the limitations of

80 (1973) 33 D.L.R. (3d) 98. 81 Rule 9.02 provides that in certain instances proceedings for declaratory and

injunctive relief must be commenced by originating application rather than by way of action, namely, where the sole or principal question to be determined is one of law in which there is unlikely to be any substantial dispute of fact.

82 Supra n. 62, para. 258, 77. This was one matter taken up by the Ellicott Committee (supra n. 11). Professor H. W. R. Wade had cautioned the Committee against codification because of the danger of stifling development of the law of judicial review. The Committee nevertheless considered that there should be specification of the grounds for review but, however, accepted Professor Wade's alternative suggestion that if there was to be a codification it should include the broad ground of review of action "contrary to law" (see paras. 41-43, 9-10).

83 Save perhaps for the doubts generated about whether a declaration is available for all types of error of law, though the orthodox view would seem to be that it is not. See, e.g., the English Law Commission's Working Paper (supra n. 67, 42-43).


those grounds. However, a code would presumably do no more than state the grounds, perhaps with extensions, and would not be of any assistance in defining the perimeters of those various grounds, e.g. jurisdictional error. Secondly, codification may prevent evolution and this is seen by some as undesirable. Moreover, whatever the merits of that debate, the establishment of a new remedy in Ontario and New Zealand was not accompanied by a codification of the grounds for review. The old law must still be looked to, so the creation of a new remedy in itself does not achieve all that much, though of course it must be said that the provision entitling the court to quash instead of issuing a declaration perhaps does still fill a void.84 Certiorari remains the only quashing remedy in Nova Scotia and its availability depends on the classification process.

Aside from this factor, there are other reasons for qualifying support of the Nova Scotia reforms. For example, there is a limitation period of six months from the date of the decision applicable to relief in the nature of certiorari85 but not to the other judicial review remedies. Relief against the Crown is still confined to declaratory proceedings.86

The law of standing still depends on the varying standards of the different remedies. Of course, none of these matters have been dealt with satisfactorily in the Ontario or New Zealand legislation either.

On the problem of standing, the judgment of Jones J. in the Lord Nelson HoteZS7 case highlights the problem in that he goes through the varying criteria that the courts have developed in relation to each of the remedies being sought by the applicants for reli\!f in that case. From such discussion, it becomes abundantly clear that some sort of reform is necessary. The differing rules of standing as between the various remedies are largely the product of separate historical development, and there appears no compelling reason for allowing the situation to continue, particularly under a new remedial structure. This argument is also strengthened by the fact that the courts have found it difficult to be consistent within the law relating to each of the historical remedies. The Robertson case,88 discussed above, provides strong evidence of this, as does the decision of the Judicial Committee of the Privy Council in Durayappah v. Fernando.89

In contrast to the Report of the Kerr Committee, 90 the McRuer

84 S. 2(4) of the Ontario Act and s. 4(2) of the New Zealand legislation. 85 Rule 56.06. 86 In other words the new Rules do not and probably could not have altered

the provisions of the Proceedings Against the Crown Act, R.S.N.S. 1967, c. 239. 87 (1973) 33 D.L.R. (3d) 98, 107-109. 88 [1973] 1 O.R. (2d) 548; (1973) 41 D.L.R. (3d) 57. 89 [1967] 2 A.C. 337. 90 Standing is dealt with in part of one short paragraph (para. 254, 76-77)

though it should be noted that the form of provisions advocated corresponds with that argued for subsequently in the text of this paper.


Commission91 and the New Zealand Public and Administrative Law Reform Committee,92 both the English93 and Scottish Law Commissions' Working Papers94 devote considerable attention to the problems of the law of standing. The English Law Commission in particular condemns the present situation and urges a new start with a "broad formulation of locus standi"95 in the statute establishing the new remedy:

We propose that the criterion for locus standi should be the same whatever form of relief is requested, or granted by the court. It would seem to us indefensible to perpetuate the present position under which an aggrieved citizen may be refused one remedy for lack of standing, although if otherwise available, the court would have held that he had sufficient standing to be granted another form of relief.96

The Scots were somewhat more cautious and perhaps justifiably so. While of the view that statutory intervention was probably desirable, the Scottish Working Paper also points out the difficult policy choices that would have to be made in drafting a suitable standing provision.97

In its most controversial aspect, this would require some decision as to the extent to which public interest groups should be able to assert and represent the public interest in judicial review proceedings. This, of course, begins to look more like a matter of substance than a question of remedies. Perhaps the answer lies ultimately in a two-part section which first makes provision for a universal test of standing for all kinds of judicial review relief and then confers on the court a discretion to give persons outside of the statutory formula leave to seek relief, having regard to criteria specified in the section.

This discussion of standing has taken us some way from a consideration of the Nova Scotia Rules of Civil Procedure. To return briefly to those Ru1es, the point deserves to be reiterated that, notwithstanding some fairly obvious deficiencies, the Rules at least avoid some of the blemishes of the Federal Court Act and the Ontario and New Zealand

91 Report of the Royal Commission: Inquiry into Civil Rights (1968) Vol. 1, 329: "13. The standing of a person to apply for review should be governed by the present principles, e.g. interest, etc." This represents the Report's sole contribution on the topic.

92 The only mention of standing in the relevant Reports of the Committee is at p. 11 of the 1971 Report where some comment is made as to the stringent standing requirements in injunction actions.

93 Aside 'from a summary of the present law (seriatim) the Working Paper deals with proposals for reform: supra n. 5, 95-101.

94 Scottish Law Commission Memorandum No. 14: Remedies in Administrative Law, (supra n. 12) 44-50.

us Published Working Paper No. 40: Remedies in Administrative Law, (supra n. 5) 95.

96 Jbid. 97 Scottish Law Commission Memorandum No. 14: Remedies in Administrative

Law, (supra n. 12) 49-50.


statutes. They are also in a form which make the necessary adjustments a comparatively easy task.

The New South Wales Supreme Court Act and Rules

As in Nova Scotia, New South Wales also achieved reform of the administrative law remedies as part of a comprehensive procedural reform exercise. This preceded the Nova Scotia reform by two years and was accomplished by the Supreme Court Act of 1970 and the Rules made under that Act. In many ways the remedial problems faced in New South Wales were more acute than elsewhere because of the continued existence of separate courts of common law and equity. In the area of judicial review of administrative action, as in other fields, this meant dual jurisdictions, the appropriate court depending in most cases upon the remedy being sought.98 It also at times involved overlapping jurisdictions as indicated by the following extract from the 1973 Report of the New South Wales Law Reform Commission on Appeals in Administration:

Before the Supreme Court Act 1970, review of official actions of public authorities was sought in the Supreme Court through the prerogative writs of mandamus, prohibition and certiorari (and certain other writs which we do not consider) or in the equity jurisdiction, by suit for injunction or declaration. In some circumstances the equitable remedy of injunction could be sought in the common law jurisdiction [Common Law Procedure Act, 1899, section 176] and power to give declaratory judgments in the same jurisdiction was also conferred in limited classes of cases. [Commercial Causes Act, 1903, sections 7 A and 7B.]99

While there are differences in the detail of the reforms as between Nova Scotia and New South Wales, the basic scheme is essentially the same. By virtue of section 69 ( 1 ) of the Supreme Court Act, the prerogative remedies, with the exception of habeas corpus ad subjiciendum,1 are now available by way of judgment or order instead of the old complicated writ procedure. In addition, section 66 confers power on the court to grant injunctive relief, both final and interlocutory, while section 75 creates declaratory jurisdiction in the same terms as the English and Nova Scotia Rules. Proceedings to obtain any of the prerogative remedies are generally commenced by summons2 while

98 Report of the Law Reform Commission on Appeals in Administration (1973). 99Jd. 285. 1 By virtue of s. 69(2), s. 69(1) does not apply to the writ of habeas corpus.

Habeas corpus is dealt with in s. 71 and is still sought by writ though flexibility is added even here in that the Court is empowered on an application for the writ to dispose of the proceedings "as the nature of the case requires". It is also worth noting that the preceding section, s. 70, authorizes the Court to issue declaratory and injunctive relief where an information in the nature of quo warranto was previously available.

2 Rules of the Supreme Court, Part 54, r. 4 (contained in the Fourth Schedule


claims for declaratory or injunctive relief are to be instituted by either summons or statement of claim, with two exceptions, at the option of the plaintiff.3 However, the more simplified summons procedure is not appropriate where damages are being sought in combination with one of the administrative law remedies. In such cases, the proceedings have to be commenced by way of statement of claim.4 It is however, significant that it is now possible to combine a claim for prerogative-type relief with a claim for damages.5 Further flexibility is given to the whole remedial structure also by Part 40, rule 1 of the Rules. This provides:

The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.

In other words, a person's right to judgment will not be defeated merely by the fact that the summons or statement of claim prayed for inappropriate relief.

In addition to the simplification and flexibility achieved by the Act and the Rules, the Supreme Court Act was also amended in 19736 to provide for an Administrative Law Division of the Supreme Court, which, by virtue of section 53(3B),7 is required to have assigned to it under the Rules what seem to be all proceedings of an administrative law nature.8 Because of the comparatively few cases of judicial review, this was probably not practically feasible in Nova Scotia. However, for

to the Supreme Court Act, 1970). This also applies to proceedings for an injunction under s. 70 and proceedings for an order for the issue of a writ of habeas corpus under s. 71.

a Rules of the Supreme Court, Part 4, r. 3 (1). The two exceptions are proceedings for injunctive relief under s. 71 and proceedings for injunctive relief which are coupled with a claim for damages in tort (infra n. 4).

4 Rules of the Supreme Court, Part 4, r. 2( 1 )(a). Presumably, as far as relief in the nature of the prerogative writs is concerned, this prevails over Part 54, r. 4.

5 Report of the Law Reform Commission on Appeals in Administration, (1973) 284.

6 Administration of Justice Act, 1973, s. 7. 7 As inserted by s. 7(1)(c)(ii) of the Administration of Justice Act, 1973. 8The word "seem" is used because s. 53(3B) does not refer specifically to

relief in the nature of certiorari. All other modes of relief are obviously covered and an argument can be made that sub-section (iii) is wide enough to cover relief in the nature of certiorari as well as declaratory relief which is mentioned specifically. This refers to proceedings " ... for determining by declaration or otherwise any matter concerning the powers of a public body or a public officer ... ". Still the matter is not free from doubt, nor is it clarified any by the Practice Note issued by the Chief Justice of New South Wales on 27 August 1973 ([1973] 1 N.S.W.L.R. 549). The Administration of Justice Act, 1973 was proclaimed in force as from 1 July 1973 and it is also worth noting that s. 53(3B) also gives the Administrative Law Division appellate jurisdiction from public bodies or officers specified in the Rules, thus ensuring involvement with administrative decision-makers both at the review and appellate levels,

L

362 Federal Law Review [VoLUME 6

New South Wales it will mean the opportunity for the development of a coherent body of jurisprudence with respect to the new remedial provisions within the framework of a specialist division of the Supreme Court. Moreover, unlike New Zealand's Administrative Division of the Supreme Court, the assignment of cases to the New South Wales Division is mandatory9 and not dependent on the discretion of the Chief Justice.10 This should go a good way towards establishing the separate identity of the Division.

So far, there have not been many decisions concerning the effect of the new Act and the Rules. However, in one case at least, the New South Wales Court of Appeal showed itself well aware of the thrust behind the new legislation and, at the same time, gave clear directions to counsel involved as to how to proceed in future when seeking judicial review. The decision was Dickinson v. Perrignon11 in which Street C.J. in Eq. made the following comments:

The greater part of the time occupied in hearing the present proceedings was devoted to an examination of the authorities touching upon the scope and exercise of the jurisdiction to grant mandamus. The question of substance-was the learned Chairman in error?received but passing attention in argument ...

In the view which I have formed it is unnecessary to take time to recount the arguments and to discuss the authorities put before the Court on the hearing in connection with the grant of mandamus. This Court's jurisdiction as a superior court having ultimate authority to exercise supervision over inferior courts and tribunals has been modernized, thus denying continuing relevance to the cases on the adjectival aspects of the prerogative writs ...

Where appropriate, as in a case such as the present, the substantive law underlying the grant of prerogative writs would have relevance to the exercise of jurisdiction under ss.75 and 65. But the court is relieved from the burden of evaluating a significant part of the technical and procedural considerations that have arisen to encumber rather than to enable the exercise of the court's supervisory powers.12

His Honour went on to emphasize the flexibility of declaratory relief under section 7 5 of the Act.13 These themes were also taken up by Mahoney J. in the later case of P. & C. Cantarella Pty Ltd v. Egg

9 S. 53 (3B): "There shall be assigned to the Administrative Law Division ... " (emphasis added.)

to Judicature Amendment Act 1972 (N.Z.) s. 15. 11 [1973] 1 N.S.W.L.R. 72. 12 I d. 82-83. 13 I d. 83-84. It must, however, be said that the justification for attributing such

width to declaratory relief was found not in the new legislation but in the recent High Court of Australia decision in Forster v. Jododex Australia Pty Ltd (1972) 127 C.L.R. 421. This decision was made under the former New South Wales provision for equitable relief, s. 10 of the Equity Act, 1901.


Marketing Board for the State of New South Wales.14 Here too the flexibility of declaratory relief was recognized.15 His Honour then dealt with the overall effect of the new legislation in the following terms: 16

It may, in my opinion, properly be inferred that it was the legislative intention that the remedy granted in each case would be such as would, as far as the circumstances would permit, achieve a resolution of the substantial matter at issue between the citizen and the portion of the executive arm of government involved.

What we have, in these admittedly general statements of Street C.J. in Eq. and Mahoney J., is a very clear commitment to an interpretation of the reforms which will be concerned with reaching the real issues raised in judicial review proceedings and which will not be deviated from despite the technical morass of the old law which surrounds the remedies. Hopefully, the other members of the Bench, and particularly of the Administrative Law Division, are of like persuasion in their views as to the effect of the new Act and the Rules, particularly as exemplified by Part 40, rule 1.

All this is not to say that the New South Wales reforms provide an ideal solution or that the courts will always give them a broad interpretation. For example, in Parramatta City Council v. Sandell,11 the New South Wales Court of Appeal stated that section 75 of the Supreme Court Act (the declaration section) was not as wide as section 10 of the Equity Act, 1901, and did not "permit mere declarations as to 'interests' ".18 This was said in the context of refusing to entertain an application for a declaration with respect to a matter which was collateral but not vital to a determination of the principal issue before the Court. While there is a certain logic in the Court's judgment on this issue, one would have thought that as all the affected parties were before the Court and as the matter was of some importance and had been argued, no harm would have been done and the flexibility of the new regime emphasized if a decision had been made on the merits.

The problem of locus standi is also one that has not been faced directly in the new legislation. Presumably, at least this adjectival aspect of the old law surrounding the remedies will continue to be relevant. For example, in Greater Wollongong City Council v. Dunn,t9

Hutley J .A. of the Common Law Division of the Supreme Court became involved in a discussion of when a stranger can apply for an

14 [1973] 2 N.S.W.L.R. 366. 15 I d. 382, though here too it was by reference to the Jododex case and, also,

The Commonwealth v. Sterling Nicholas Duty Free Pty Ltd (1972) 126 C.L.R. 297, another recent decision of the High Court of Australia.

16 [1973] 2 N.S.W.L.R. 366, 383. 17 [1973] 1 N.S.W.L.R. 151. 18 I d. 173 per Hutley J.A. 19 [1973] 1 N.S.W.L.R. 36.


order in the nature of prohibition. However, it does appear that there has been at least one change in the law of standing brought about by the new legislation. Section 65 ( 1) of the Act provides:

The Court may order any person to fulfil any duty in the fulfilment of which the person seeking the order is personally interested. [emphasis added]

This power, which is expressed by section 65 ( 3) to be in addition to any other powers possessed by the Court, seems to be, from one aspect anyway,20 a statutory form of mandamus supplementing the provisions for that remedy contained in section 69. Why this additional form of relief was thought to be necessary is not clear but, that aside, in Dickinson v. Perrignon21 the Court of Appeal was of the view that under this section there was no need to pay any attention to the sometimes strict law of standing applied by the courts to relief in the nature of mandamus. According to Moffitt J.A.:

In view of the provisions of s.65 it is sufficient to dispose of the submission, if it can be said that the Board has a personal interest in the exercise by the Appeal Board of its jurisdiction to hear the appeal which was before it. It is neither necessary nor desirable to attempt to define the words "personal interest" by seeking to substitute some different words for the wide and general terms of the section.22

While, on one argument, it may be quite appropriate to have a statutory provision making the standing requirements for relief in the nature of mandamus more liberal, this is nevertheless a far from adequate response to the broader problem of standing discussed in the previous section of this article and quite clearly there is still work to be done in this area.

As already noted, there is no essential difference between the Nova Scotia and New South Wales reforms. Indeed, one can detect in certain provisions of the Nova Scotia Rules virtually direct word for word borrowing of the New South Wales provisions.23 Both represent a limited response to a problem in jurisdictions where there had been little or no legislative action for years. However, as also noted above, both have the potential to be reasonably effective pieces of reform, primarily because the problem was tackled as part of a comprehensive procedural reform as well as from a civil procedure point of view. This prospect of success has been further enhanced in New South Wales by

20 Of course the section is much broader in its language than just this. It is not confined to statutory or public duties, the ambit of mandamus, and presumably has many other uses other than as a supplementary form of mandamus.

21 [1973] 1 N.S.W.L.R. 72. 22 /d. 79. See also the extract from the judgment of Street C.J. in Eq. previously

cited (supra p. 362 n. 12). 23 E.g. Part 4, r. 2(a) and (b) which have been copied in Rule 9.02 (a) and

(b) of the Nova Scotia Rules of Civil Procedure.


the establishment of a separate Administrative Law Division of the Supreme Court, and also by a seemingly strong commitment on the part of the judges not to be distracted any longer by the adjectival aspects of the old remedial law.

Conclusions

This article has consisted of an analysis and criticism of three models of remedial administrative law reform. The reform which appeared so simple because the defects were so obvious has generally not been done well. At the federal level in Australia, the Kerr Committee's Report, because of its superficial treatment of remedies,24 unfortunately contains the seeds of possible further disaster. This situation has not been improved any by the deliberations of the Ellicott Committee25 and, indeed, attention to the problem seems to have been diverted elsewhere with the appearance of the Bland Committee's Report.26 Nevertheless a plea for care and concern is perhaps still not out of place. In particular it appears that the English Law Commission's Working Paper, which substitutes basic practicality for the McRuer Commission's ethereal dogma, should commend itself to all involved in this kind of reform. It shows in general an acute awareness of the very real problem and difficulties of the statutory reform of administrative law remedies, an awareness which may lead ultimately to the most successful statute yet. Such a result would be a fitting tribute to the Paper's co-author, the late Professor S. A. de Smith.

Addendum

Since this paper was delivered and revised for publication, there have continued to be difficulties with the new legislation in Ontario and New Zealand and at the federal level in Canada. In Re Raney and The Queen in right of Ontario (1974) 4 O.R. (2d) 249, the Ontario Court of Appeal decided that the Statutory Powers Procedure Act 1971 of Ontario, had no application to the decisions of the Qualification Committee of the Ministry of Transportation and Communications because it was an internal administrative body with no statutory existence. (The Committee, which rated persons applying for department contracts, had reduced the applicant's rating causing him to have less chance of obtaining contracts.) However, in a rather remarkable decision, the Divisional

24 The present law is described (pp. 16-20) and reforms are recommended (pp. 76-79). (See, however, supra n. 62.)

25 Supra p. 342 n. 11. Presumably, the Ellicott Committee does not have the same excuses as the Kerr Committee-that it was producing a Report for laymen as well as lawyers (supra n. 62).

26 Supra p. 342 n. 9. The impression that I gained while in Australia was that early legislative action was much more likely on the Bland Committee's proposals for an administrative appellate structure and a Federal Ombudsman than on the Kerr and Ellicott recommendations for remedial reform. At least Bills had been drafted to give effect to the Bland recommendations.

366 Federal Law Review [VoLUME 6

Court decided that an application could be made under the Judicial Review Procedure Act 1971 of Ontario to set aside the decision of a non-statutory arbitral tribunal. In Re Ontario Provincial Police Association Inc. and The Queen in right of Ontario ( 1974) 3 O.R. (2d) 698, the Court held that the jurisdiction of a court to set aside arbitration awards was "in the nature of certiorari" and therefore came within section 2 ( 1 ) 1 of the Act.

In New Zealand, the prediction made in the text that the new remedy would be held not to be applicable to non-final decisions appears to have been vindicated in Thames Jockey Club Inc. v. New Zealand Racing Authority (N.Z.C.A. 13.12.74 as yet unreported), where it was held that an intermediate decision taking the form of an advisory recommendation was not a "decision" in terms of the Act.

Finally, the Canadian Federal Court has had to deal with the problem of whether various interlocutory rulings made by administrative tribunals on questions of jurisdiction and procedure are decisions or orders reviewable by the Federal Court of Appeal under section 28 of the Federal Court Act. In the decisions so far it has been held that the rulings in question were not decisions or orders, but it seems inevitable that the last has not been heard of this particular problem: see In re Anti-Dumping Act [1974] 1 F.C. 22; Re Attorney General of Canada and Cylien (1973) 43 D.L.R. (3d) 590; Re British Columbia Provincial Council United Fishermen and Allied Workers' Union and British Columbia Packers Ltd (1973) 45 D.L.R. (3d) 372; Re Millward and Public Service Commission (1974) 49 D.L.R. (3d) 295; Wardair Canada Ltd v. Canadian Transport Commission [1973] F.C. 597; National Indian Brotherhood v. Juneau ( No. 2) [1971] F.C. 73; Commonwealth of Puerto Rico v. Hernandez (1973) 41 D.L.R. (3d) 549.

reform of administrative law remedies method or...

Documents