Consortium Governance

Courts %ill soeties regard the e"istence of a specific reed0 in the epo%ering statute as e"cluding the a*ailabilit0 of coon la% Dudicial re*ie% as a atter of DurisdictionA $ore freEuentl0) the Euestion of alternati*e reedies is dealt %ith b0 reference to the courts>

o*erriding discretion to refuse relief e*en %here the substance of the applicants or plaintiff>s case a0 ha*e been ade outA +n such instances) the Euestions as1ed tend to be about the relati*e or coparati*e con*enience of Dudicial re*ie% as opposed to the alternati*e fors of relief that are also a*ailableA

Statutor( A##eals

Harelkin v. niversit of !egina 6<3<Q = SC JG6

(Sas1A#-? Student applied for certiorari and andaus) rather than pursuing the a*ailable right of appeal to a coittee of the uni*ersit0 senateA

? The court held that the appellant %as not entitled to assue that the senate coittee %ould ha*e denied hi a hearingA .or should he ha*e assued that since one go*erning bod0 of the school denied hi natural Dustice) another bod0 of superior  Durisdiction %ould of the saeA 4e should ha*e assued the oppositeA

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? +n order to e*aluate %hether appellantNs right of appeal to the senate coittee constituted an adeEuate alternati*e reed0 and e*en a better reed0 than a recourse to the courts b0 %a0 of prerogati*e %rits) se*eral factors should ha*e been ta1en into

consideration aong %hich the procedure on the appeal) the coposition of the senate coittee) its po%ers and the anner in %hich the0 %ere probabl0 to be e"ercised b0 a bod0 %hich %as not a professional court of appeal and %as not bound to act e"actl0 as one nor li1el0 to do soA Other rele*ant factors included the burden of a pre*ious finding) e"peditiousness and costsA ' consideration of all the factors led to the conclusion that appellantNs right of appeal to the senate coittee did pro*ide hi %ith an adeEuate alternati*e reed0A +n addition this reed0 %as a ore con*enient reed0 for appellant as %ell as for the uni*ersit0 in ters of costs and e"peditiousnessA 'lso) the council coitteeNs refusal to grant a rehearing to appellant %as not a sufficient reason for issuing certiorari and andausA

SCC reconfired 4arel1in in this case:

Canadian "acific >td. v. ,ats-ui &ndian Band 

? 9hether applicants) contesting propert0 ta") could proceed directl0 to Federal Court b0 application for 5 and b0pass appeals tribunals established b0 the ta"ing +ndian bands b0 %a0 of b0la%A

? The Euestion %as %hether the trial Dudge e"ercised proper discretion in refusing to entertain the respondents> application for Dudicial re*ie%) %hich then forced the to pursue their Dudicial challenge b0 eans of appeal procedures established b0 the +ndian  'ctA

? The presiding Dudge held that a *ariet0 of factors should be considered b0 courts in deterining %hether the0 should enter into Dudicial re*ie%) or alternati*el0 should reEuire an application to proceed through a statutor0 appeal procedureA (The court ust al%a0s bear in ind Parliaent>s obDecti*e in creating the +ndian ta"ation po%ers as

%ell#A

? These factors include: the con*enience of the alternati*e reed0) the nature of the error) and the nature of the appellate bod0 (iAeA) its in*estigator0) decision-a1ing and reedial capacities#A

? $ust consider the adeEuac0 of the statutor0 appeal procedures established b0 the bands and not sipl0 the adeEuac0 of the appeal tribunals ; noted that bands pro*ided for appeals fro the tribunals to the Federal CourtA

? The Dudge held that the original Dudge>s findings %ere not unreasonableA 'll he had to decide %as %hether it %as an adeEuate foru) not if it %as a better foru than the courtsA

? 4o%e*er) the trial Dudge failed to ta1e into account the lac1 of the +ndian tribunal>s lac1 of independenceA

Statutor( A##eal to the Courts

enerall0) Canadian Courts ta1e the position that if the grounds on %hich the applicant for 5 is rel0ing could ha*e been raised in the conte"t of a statutor0 appeal) the application %ill be

disissed ; ,ilner "ower &nv. ? 'l(erta nerg and tilities Board 

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Alternati!e Methods of Establishing Rights or Enforcing 0bser!ance of Statutes and 0rders

 ' different aspect of the issue of alternati*e reedies is raised %hen an attept is ade to use the courts to *indicate rights created b0arising under a statute or to enforce statutor0 or

adinistrati*e prohibitionsA There a0 be other ethods established to resol*e such atters ; egA 'dinistrati*e (not Dudicial# deterination or enforceent prosecution rather than

declarator0 or inDuncti*e relief 

Shore Disposal >td. v. d de Wolfe 9rucking >td. (6<3G#) 3= &L (@d# =6< (.S SC'&#

? The trial Dudge held that the appellant %as a carrier of freight for gain) that it had no license fro the Public 7tilities /oard and it %as therefore *iolating the 'ctA 4e granted a declarator0 DudgentA

? The Dudge declined to grant an inDunction to restrain the appellant fro engaging in the business of collecting and disposing of garbage until such tie it %as licensed under the 'ctA

? The Dudge based his refusal on the fact that the 'ct “contains sufficient reedies to ensure due copliance %ith its pro*isions) %ithout the necessit0 in this instance of a Court inDunctionA”

? This appeal court stated that the principle that a declaration should not be granted erel0 to enforce a criinal or penal offence is in 0 *ie% a branch of a %ider principle that the SC should not usuall0 interfere b0 declaration %here the atter in issue is placed %ithin the Durisdiction of another tribunal (in this case) the Public 7tilities /oard

%ho %ere alread0 ta1ing enforceent actionA

? The respondents are erel0 special prosecutors see1ing condenation of past cries b0 declaration alone %ithout due process of criinal la% the0 ha*e no special rights) %hich ight ha*e %arranted granting the an inDunction to ensure their future protectionA

Prematurit(

Preaturit0 in*ol*es an assertion b0 the court that) %hile the applicant a0 potentiall0 ha*e good cause of action) the atter is inappropriate for Dudicial inter*ention at presentA There are a nuber of reasons %h0 this ight be soA First) there is the possibilit0 that the atter a0 be resol*ed internall0 or %ithout the need for court inter*entionA

 'lso) an ad*antage of allo%ing the tribunal to proceed to a conclusion on the issue in Euestion is that it %ill be building an e*identiar0 record that %ill facilitate subseEuent 5A

The follo%ing case brings together the issues of preaturit0 and a*ailabilit0 of an adeEuate right of appeal in that the applicant for relief %as confronted b0 the dual arguent that the tribunal itself had not finall0 ruled on the issue that there %as a right of appeal fro the ultiate decision of the tribunal an0%a0A

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Howe v. &nstitute of Chartered 'ccountants of /ntario (6<<H#) 6< O (@d# H@ (C'#

? 4o%e %as charged %ith professional isconductA Prior to hearing of disciplinar0 coittee) 4 pro*ided %ith aterials but not a report of the in*estigator ; in*estigating coittee said it %as confidentialA 4 applied for 5 on the basis that he %as entitled to see the reportA &i*isional Court disissed his clai and he appealed to O Cof'A

? Per Finla0son (/roo1e 5' concurring# ; 9e are being as1ed to rule on the adeEuac0 of the disclosure ade to date b0 the prosecution %hen %e do not ha*e the

eans of gauging the significance of %hat has been disclosed against %hat is contained in the in*estigators reportA 'greed %ith the &i*isional Court that this application %as preatureA

? The courts should onl0 interfere %ith a preliinar0 ruling ade b0 an

adinistrati*e tribunal %here the tribunal ne*er had Durisdiction or has irretrie*abl0 lost itA

? 9e should not encourage applications li1e this %hich ha*e the effect of fragenting and protracting the proceedings e"cept in the clearest casesA  'ir Canada v. >oren@  =IIIQ 6 FC H<H (T&#

? L ade an unDust disissal case against 'ir CanadaA J da0s into hearing) 'ir Canada learned that adDudicator %as acting for a client in an unDust disissal case against an eplo0erA 'dDudicator refused to pro*ide the parties %ith an0 further details of the case or other unDust disissal cases on %hich he %as %or1ingA 'ir Canada as1ed that he recuse hiself on basis of reasonable apprehension of biasA 4e refused and 'ir Canada applied for 5 of his rulingA

? The Dudge held that it %ould be inappropriate for the Court to a1e a ruling before the adDudicator has rendered a final decision on the unDust disissal coplaintA

? 'ir Canada put forth an arguent that there %as a sense of bias and if the Dudge rules against it) the0 can sipl0 put forth an application for Dudicial re*ie% at that stageA

? The e"ercise of the CourtNs discretion here turns principall0 on a %eighing of t%o copeting considerationsA On the one hand are the possible hardships caused to 'ir Canada) and the tie and resources that %ill ha*e been %asted) if the bias Euestion is not deterined prior to the copletion of the proceeding before the adDudicatorA On the other hand) there are the ad*erse conseEuences of dela0ing the adinistrati*e process and of countenancing a ultiplicit0 of litigationA

? Factors considered:

B 4ardship to the applicant: This factor cannot be deterinati*e -This that a court %ould ha*e no discretion to disiss for preaturit0 %hen bias is alleged

B 9aste: +f 'ir Canada is reEuired to postpone its challenge until the end of that hearing) and its application is then successful) the resources de*oted to the last 6 da0s of the hearing %ill ha*e been %astedA

B &ela0: Copletion of the hearing before the adDudicator has been dela0ed b0 5 application (nearl0 t%o 0ears#A 'lso) if the Court %ere to decide 'ir  CanadaNs allegation of bias prior to the copletion of the adinistrati*e process it is all too li1el0 that participants in other adinistrati*e proceedings a0 resort to  Dudicial re*ie% for the purpose of dela0ing the proceedings) or forcing the ore

*ulnerable part0 to surrender or settleA

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B Fragentation: ' deterination of 'ir CanadaNs bias allegation at this tie a0 also proliferate litigationA Fragentation of the issues raised b0 an adinistrati*e proceeding is %asteful of court resources and undul0 burdens the adinistration of public prograsA

B Strength of the case: 'ir Canada did not satisf0 e that this is a clear and ob*ious case of biasA On the other hand) it clearl0 cannot be

characteri2ed as fri*olous eitherA 'ir CanadaNs allegation of bias is b0 no eans fancifulA

B Statutor0 conte"t: The a*oidance of dela0 and fragentation of the issues are factors that should be regarded in the conte"t of this statutor0 schee as carr0ing considerable %eightA !*en %hen an adDudicator is ipugned for bias) it %ill be the rare case indeed %hen the Court should deterine the

erits of the clai prior to the release of the adDudicatorNs ultiate decision) such as %hen the allegation re*eals a *er0 clear case of bias and the issue arises at the outset of a hearing that is scheduled to last for a significant length of tieA

Mootness

/0 the tie an application for Dudicial re*ie% coes on for a hearing or b0 the tie it reaches the appropriate Court of 'ppeal or SCC) the dispute %ill ceased to ha*e practical significance for the applicantA +f the decision of the court %ill ha*e no practical effect on the rights of the parties affected) the court %ill decline to decide the caseA

Dela(

&ela0 in coencing proceedings a0 go either to the Durisdiction or the discretion of the re*ie%ing courtA Failure to adhere to andator0 liitation statutes or pro*isions %ill pre*ent the court fro e*en considering the caseA 4o%e*er) if there is no liitation period) or e*en %ithin a liitation period) the courts %ill on occasion den0 relief to the applicant on the ground of undue dela0) the doctrine of lachesA

0riends of the /ldman !iver Societ v. Canada #,inister of 9ransport$ 6<<=Q 6 SC@

? The last substanti*e issue raised in this appeal is %hether the Federal Court of  'ppeal erred in interfering %ith the otions Dudge>s discretion not to grant the reedies

sought) nael0 orders in the nature of certiorari and andaus on the grounds of unreasonable dela0 and futilit0A

? Per $aDorit0: The Federal Court of 'ppeal did not err in interfering %ith the

otions DudgeNs discretion not to grant the reedies sought on the grounds of unreasonable dela0 and futilit0A espondent ade a sustained effort) through legal

proceedings in the 'lberta courts and through correspondence %ith federal departents) to challenge the legalit0 of the process follo%ed b0 the pro*ince to build the da and the acEuiescence of the appellant $inisters) and there is no e*idence that 'lberta has

suffered an0 preDudice fro an0 dela0 in ta1ing the present actionA &espite ongoing legal proceedings) the construction of the da continuedA The pro*ince %as not

prepared to accede to an en*ironental ipact assessent under the Order until it had

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e"hausted all legal a*enuesA The otions Dudge did not %eigh these considerations adeEuatel0) gi*ing the Court of 'ppeal no choice but to inter*eneA Futilit0 %as also not a proper ground to refuse a reed0 in the present circustancesA Prerogati*e relief should onl0 be refused on that ground in those fe% instances %here the issuance of a prerogati*e %rit %ould be effecti*el0 nugator0A +t is not ob*ious in this case that the ipleentation of the Order e*en at this late stage %ill not ha*e soe influence o*er the

itigati*e easures that a0 be ta1en to aeliorate an0 deleterious en*ironental ipact fro the da on an area of federal DurisdictionA

! v. Consolidated ,a(urn ,ines >td. 6<<Q 6 SC 3IG (OntA#

? 'ppellant copan0 operated a gold and copper ineA Ontario $inistr0 of the

!n*ironent concluded that it %as abandoned and that transforers containing PC/s presented a ris1 of en*ironental containationA &espite nuerous efforts to ha*e the copan0 ta1e correcti*e action) the condition of the site did not changeA $inistr0 issued an order and reEuired the appellants to address containation issuesA The appellants did not appeal to the !n*ironental 'ppeal /oard and basicall0 elected to disregard the orderA 9hen charged b0 the $inistr0 %ith failing to copl0 %ith the order) the appellants subitted b0 %a0 of defence that the order %as in*alidA

? The trial Dudge concluded that onl0 the order to dru and store the containated

aterial %as *alid and ordered the appellants to pa0 a fineA The Ontario Court (eneral

&i*ision# allo%ed the respondentNs appeal %ith respect to the counts relating to the failure to construct a storage area and to clean) and disissed the appellantsN appeal of the con*ictionA The court held that b0 re*ie%ing the *alidit0 of the order) the trial Dudge had e"ceeded his Durisdiction under the !n*ironental Protection 'ct and encroached on the !n*ironental 'ppeal /oardNs functionsA The Court of 'ppeal affired that  DudgentA

? The Court addressed the issue of %hether) and in %hat circustances) a part0 subDect to an adinistrati*e decision or order can) %ithout ha*ing appealed the decision or order) attac1 that decision or order in a subseEuent Dudicial proceedingA 9hen it is necessar0 for an aggrie*ed part0 to e"haust all adinistrati*e reedies prior to see1ing a reed0 in a Dudicial foruA

? Fi*e factors should be considered in deterining %hether a collateral attac1 is perissible: (6# the %ording of the statute (=# the purpose of the legislation (@# the a*ailabilit0 of an appeal (H# the nature of the collateral attac1 in light of the appeal tribunal>s e"pertise and raison d>etre (%here an attac1 on an order reEuires the

consideration of factors that fall %ithin the specific e"pertise of an adinistrati*e appeal tribunal) this is a strong indication that the legislature %anted that tribunal to decide the Euestion rather than a court of penal DurisdictionA Con*ersel0) %here an attac1 on an order is based on considerations %hich are foreign to an adinistrati*e appeal tribunal>s e"pertise or raison d>[tre) this suggests) although it is not conclusi*e in itself) that the legislature did not intend to reser*e the e"clusi*e authorit0 to rule on the *alidit0 of the order to that tribunal# and (J# the penalt0 on a con*iction for failing to copl0 %ith the orderA

? This reflects the general approach aied at deterining the legislature>s intention as to the appropriate foruA

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