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T-2333-80
Dr. May S.M. Tsang (Applicant) v.
Medical Council of Canada—Le Conseil médical du Canada (Respondent)
Trial Division, Jerome A.C.J.—Ottawa, December 5, 1980 and February 25, 1981.
Practice — Motion to strike pleadings — Application by respondent to strike out action for want of jurisdiction — The Medical Council of Canada, created in 1952 by an Act of Parliament, was issued letters patent in 1976 pursuant to Part III of the Canada Corporations Act — Whether Council is a 'federal board, commission or other tribunal" — Whether Federal Court has jurisdiction to entertain the action — Application dismissed — The Council is an "other tribunal" pursuant to s. 2 of the Federal Court Act — The issuing of letters patent does not repeal the provisions of the 1952 statute and does not alter in any way the national and public nature of the responsibilities of the Council — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 2.
Wilcox v. Canadian Broadcasting Corp. [1980] 1 F.C. 326, distinguished.
APPLICATION. COUNSEL:
J. Arthur Cogan, Q.C. for applicant.
Peter Newcombe, Q.C. and David C. Woods
for respondent.
SOLICITORS:
Cogan & Cogan, Ottawa, for applicant. (fowling & Henderson, Ottawa, for respond ent.
The following are the reasons for order ren dered in English by
JEROME A.C.J.: In this action, a preliminary question of the jurisdiction of the Federal Court of Canada having been raised by the respondent, I first heard counsel on this preliminary matter, then invited written submissions, and after an examination of the written submissions, invited counsel to re-attend to deliver final oral argument.
Having carefully considered all submissions, I am of the view that the respondent Council is the
kind of body contemplated in section 2 of the Federal Court Act', and that this Court therefore has jurisdiction. The Medical Council of Canada was originally established by an Act of the Parlia ment of Canada, The Canada Medical Act, 1902, S.C. 1902, c. 20, which was replaced in 1927 and in 1952 by a second and third Act under the same title 2 but without substantial alteration in the essential responsibilities of the Council which have always included authority to determine, at least in part, qualification to practice medicine in Canada, the issuing of a certificate of qualification known as the licentiate, the maintenance of a federal board of examiners, the maintenance of a register, authority to discipline registered members and, in appropriate cases, to erase or confirm members who are guilty of conduct contrary to certain standards. These authorities and powers are not possessed by any body established under provincial laws and it surely cannot be seriously contended that they are not of a public nature, but rather exist purely for internal management purposes. There could scarcely be any exercise to which the public is more sensitive than the qualification of those who practice medicine.
The only complicating factor in the jurisdiction al question lies in the fact that the Medical Coun cil of Canada exercised in 1976 the option open to it under Part III of the Canada Corporations Act 3 , sections 158 and 159, to have letters patent issued and it is the contention of counsel for the respond ent that this has two significant consequences: the first to change the nature of the Council from that of a statutory to a corporate creature, and in turn, since it is a corporate creature, to bring it within the reasoning of Thurlow A.C.J. [as he then was] in Wilcox v. Canadian Broadcasting Corporation'', but I reject both submissions. There is no indica tion before me that the issuing of letters patent in 1976 was such as to even pretend to repeal the provisions of the 1956 statute and, in any case, it does not in any way alter the national and public
' S.C. 1970-71-72, c. 1 [see now R.S.C. 1970 (2nd Supp.), c. 10] as amended by S.C. 1973-74, c. 17, s. 8; S.C. 1974-75-76, c. 18.
2 R.S.C. 1927, c. 129 and R.S.C. 1952, c. 27.
3 R.S.C. 1970, c. C-32.
4 [1980] 1 F.C. 326.
nature of the responsibilities, powers or authorities of the Medical Council of Canada. As to the latter point, the language of Thurlow A.C.J. in the Wilcox decision, supra, is as follows [at page 3291:
While I see no reason to doubt that the powers referred to in the definition of "federal board, commission or other tribunal" in section 2 are not confined to powers that are required by law to be exercised on a judicial or quasi-judicial basis, it appears to me that the expression "jurisdiction or powers" refers to juris diction or powers of a public character in respect of the exercise of which procedures by prerogative writs or by injunction or declaratory relief would formerly have been appropriate ways of invoking the supervisory authority of the superior courts. I do not think it includes the private powers exercisable by an ordinary corporation created under a federal statute which are merely incidents of its legal personality or of the business it is authorized to operate.
In that case, the powers to be exercised by the Corporation were found by the learned Associate Chief Justice to have been related entirely to internal management, and while the public was affected, it was as an incidental rather than a direct result. I cannot accept that description of the respondent Council. Even if the authority to determine who shall be admitted to medical prac tice in Canada is exercised in conjunction with provincial authorities, it still remains both national in scope and public in character. The responsibility to maintain a register carries with it the implicit power to strike persons from the register and, taken together with the disciplinary authority, entrusts to this body control over the opportunity to pursue a career in the medical profession in Canada, once again an obviously public responsi bility.
I am therefore of the view that the Medical Council of Canada is the kind of "other tribunal" described in section 2 of the Federal Court Act and that this Court has jurisdiction to entertain this action.
ORDER
This application to strike out the action for want of jurisdiction is dismissed with costs.
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