A-132-87
Attorney General of Canada (Applicant)
v.
David J. Vincer (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. VINCER
Court of Appeal, Pratte, Marceau and Stone JJ.—
St. John's, Newfoundland, September 1; Ottawa,
December 1, 1987.
Judicial review — Applications to review — Ad hoc Com
mittee set up under Family Allowances Act, 1973 to review
refusal of father's application for one half of family allowance
benefits, challenging constitutionality of legislation — Deci
sion set aside — Committee not court notwithstanding power
to finally dispose of case — Merely oversees administrative
process — Jurisdiction conferred by statute, not Charter —
Act not conferring power to pay benefits as claimed — Inter
pretation of "court" in Charter, s. 24 in Re Nash and The
Queen disagreed with — No distinction between declaring
legislation unconstitutional, and forming opinion as to invalid
ity and acting thereon — Although no express limitations on
authority, inherent restriction in constitution that control over
legal validity of legislation within exclusive jurisdiction of
judiciary.
Constitutional law — Charter of Rights — Enforcement —
Review Committee set up under Family Allowances Act, 1973
not "court of competent jurisdiction" under Charter, s. 24
Statute, not Charter, conferring jurisdiction — Interpretation
of "court" in Charter, s. 24 in Re Nash and The Queen
disagreed with.
Constitutional law — Charter of Rights — Equality rights
— Distinction created by Family Allowances Act, 1973 and
Regulations between men and women not amounting to dis
crimination — Justified by disparity of income between hus
bands and wives.
Construction of statutes — Bilingual legislation — Inter
pretation of "court" in Charter, s. 24 — Whether use of
"tribunal" in French version giving "court" broad meaning —
Re Nash and The Queen, wherein internal disciplinary panel
found to be court of competent jurisdiction, disagreed with —
Meaning ascribed to word in one version should not exceed
scope of corresponding word in other version.
This is an application to set aside a decision of a Review
Committee set up under the Family Allowances Act, 1973.
Pursuant to a separation agreement, the respondent and his
wife have joint custody of their children who reside with each
parent an equal amount of time. The respondent's application
to receive half the family allowance benefit was refused by the
Department. The Review Committee found in favour of the
respondent on the ground that the Act and Regulations violated
the Charter. The issue is whether an administrative tribunal
established as the ultimate level of an administrative process, is
entitled, in considering a claim, to question the constitutionality
of the legislative enactments it is to apply.
Held, the application should be allowed.
Per Marceau J.: The Review Committee does not have the
status of a court. It was submitted that since the Review
Committee had full power and authority to dispose of the case
in last resort, it was, for the purpose of interpreting and
implementing the rights and freedoms guaranteed by the Con
stitution, a "court of competent jurisdiction" within section 24
of the Charter where "court" is used in a loose sense as appears
from its translation as "tribunal" in the French version. The
Charter does not by itself confer jurisdiction on any court. The
jurisdiction of a statutory body must be found in a statute, and
must extend to the subject-matter, parties and the remedy
sought. Family allowance benefits are payable to the mother
unless she is dead or the father has custody of the child. Thus,
the statute does not confer the power to pay the benefits as
claimed. The reasoning in Re Nash and The Queen, a New-
foundland Provincial Court decision, wherein an internal disci
plinary panel was found to be a court of competent jurisdiction
within section 24 of the Charter, could not be agreed with.
There, "court" was given a broad meaning in light of the use of
"un tribunal" in the French version of section 24. In construing
bilingual legislation, a word should not be given a meaning that
the corresponding word in the other version cannot bear. The
fact that the words "court" and "tribunal" in the English legal
language have acquired a meaning which does not correspond
to that attributed normally to the French words "cour" and
"tribunal" may not have been considered.
There is no distinction between declaring the enactments to
be unconstitutional and forming such an opinion and acting
accordingly.
Finally, although there are no express restrictions on the
matters the Committee may consider in deciding cases brought
before it, there are certain restrictions inherent in our Constitu
tion which need not be expressly stated whenever they apply.
One of these is that the judiciary has exclusive control over the
legal validity of legislation. Sometimes it is difficult to deter
mine whether a particular tribunal has been accorded that
status, but the Review Committee has none of the attributes of
a judicial body.
Per Stone J.: The Review Committee's mandate is limited by
the Act and Regulations to reviewing the decision that no
allowance is payable. It does not have the power to determine
that Charter rights have been infringed, or to grant a remedy
under subsection 24(1). Zwarich v. Canada (Attorney General)
is distinguishable because there the umpire, who was determin
ing a question of law, qualified by being a sitting or former
judge. Here, the members of the Review Committee hold no
special qualifications to deal with a legal question of such
fundamental importance.
Per Pratte J. (concurring in the result): Although the Act
and Regulations create a distinction between men and women,
it does not amount to discrimination because the distinction is
justified by the obvious disparity of income between husbands
and wives.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 15, 24.
Canadian Human Rights Act, S.C. 1976-77, c. 33.
Constabulary Act, R.S.N. 1970, c. 58.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No, 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1).
Family Allowances Act, 1973, S.C. 1973-74, c. 44, ss.
7(1), 15.
Family Allowances Regulations, C.R.C., c. 642, ss. 9(1),
17, 19(1), 23(2).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Act, 1976, S.C. 1976-77, c. 52.
Official Languages Act, R.S.C. 1970, c. 0-2, s. 8(2).
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c.
48, ss. 92(1) (as am. by S.C. 1980-81-82-83, c. 158, s.
55), (1.1) (as am. by S.C. 1976-77, c. 54, s. 55), (1.2)
(as am. idem), (1.3) (as am. idem), (1.4) (as am.
idem), 96 (as am. idem, s. 56).
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Re Nash and The Queen (1982), 70 C.C.C. (2d) 490
(Nfld. Prov. Ct.).
DISTINGUISHED:
Law v. Solicitor General of Canada, [1985] 1 F.C. 62
(C.A.); Zwarich v. Canada (Attorney General), [1987] 3
F.C. 253 (C.A.).
REFERRED TO:
Attorney General v British Broadcasting Corpn, [1980] 3
All ER 161 (H.L.); Mills v. The Queen, [1986] 1 S.C.R.
863; Moore v. B.C. (Govt.) (1986), 4 B.C.L.R. (2d) 247
(S.C.); Théberge (J.R.) Ltée v. Syndicat National des
Employés de l'Aluminum d'Arvida Inc. et al., [1966]
S.C.R. 378.
AUTHORS CITED
Pépin, Gilles. "La compétence des cours inférieurs et des
tribunaux administratifs de stériliser, pour cause d'in-
validité ou d'ineffectivité, les textes législatifs et
réglementaires qu'ils ont mission d'appliquer" (1987),
47 R. du B. 509.
COUNSEL:
Bruce S. Russel for applicant.
Gregory W. Dickie for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
White, Ottenheimer & Green, St. John's,
Newfoundland, for respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J. (concurring in the result): Like my
brothers Marceau J. and Stone J., but for a differ
ent reason, I would grant this section 28 [Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10]
application and set aside the decision of the
Review Committee.
While I acknowledge the force of my brothers'
reasoning, I am not yet ready to concede that I
was wrong when I said, in Zwarich v. Canada
(Attorney General),' that all tribunals may, not
only construe the statutory provisions that they
have to apply but also determine their constitu
tional validity. However, I do not have, for the
purposes of this case, to discuss this problem since
I am of opinion that the Review Committee was
wrong in deciding that subsection 7(1) of the
Family Allowances Act, 1973 [S.C. 1973-74, c.
44] and paragraph 9(1)(b) of the Regulations
' [1987] 3 F.C. 253 (C.A.).
[Family Allowances Regulations, C.R.C., c. 6421 2
contravened section 15 of the Canadian Charter of
Rights and Freedoms [being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)].
Clearly those provisions make a distinction be
tween women and men; clearly they treat women
more favourably than men. However, in order for
section 15 to be contravened, it is necessary that
this distinction be unfair and unreasonable; other
wise it does not amount to discrimination. This is
not the case here since the statistics filed by the
applicant show that the distinction between women
and men that is made by the provisions in question
is fully justified by the obvious disparity of income
between husbands and wives.
I would for this reason allow the section 28
application, set aside the decision under attack and
refer the matter back to the Committee in order
that it be decided on the basis that subsection 7(1)
of the Family Allowances Act, 1973 and para
graph 9(1)(b) of the Family Allowances Regula
tions have been validly enacted.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.: The decision under attack in this
section 28 application was made by a Review
Committee established pursuant to the Family
Allowances Act, 1973, S.C. 1973-74, c. 44 (the
Act) and the Regulations enacted thereunder.
2 7. (1) Where payment of a family allowance is approved,
the allowance shall, in such manner and at such times as are
prescribed, be paid to the female parent, if any, or to such
parent or other person or such agency as is authorized by or
pursuant to the regulations to receive it.
9. (1) Where payment of a family allowance is approved,
the allowance shall be paid to the male parent where
(a) there is no female parent; or
(b) the female parent and male parent are living separate
and apart and the male parent has, in fact, custody of the
child.
Such review committee is a tribunal to which a
person whose claim for allowances has been denied
by officials of the Department of National Health
and Welfare (the Department) may appeal for
redress. Comprised of three members of no special
qualifications (one selected by the relevant region
al director of the Department, one by the claimant
and the third, the chairman, by the first two
members) the Committee has the power to con
firm or vary, rescind or amend the ruling appealed
from. 3
The facts which led to the impugned decision
are quite simple and may be stated briefly. The
respondent separated from his wife in February
1985. The separation was governed by an agree
ment providing that the two dependant children of
the marriage were to be under the joint custody
and control of both spouses. The mutual under
standing was that the children would reside with
each parent an equal amount of time. Relying on
3 The pertinent section of the Family Allowances Act, 1973
is section 15 and those of the Regulations enacted under the
Act are section 17 and subsection 19(1). These enactments read
as follows:
15. Where any person, department, agency or institution
is dissatisfied with a decision made under this Act that no
allowance is payable to him or it, that person, department,
agency or institution may appeal against the decision to a
tribunal to be established and conducted in accordance with
the regulations, and the tribunal may confirm or vary the
decision so made and, upon application made to it by the
person, department, agency or institution or the Minister
based on evidence not previously considered, it may rescind
or amend any decision made by it.
17. Where the Regional Director receives a notice of
appeal pursuant to section 16, he shall establish a tribunal
consisting of
(a) one member who shall be appointed by the Regional
Director;
(b) one member who shall be appointed by the appellant;
and
(c) one member who shall be appointed by the members
referred to in paragraphs (a) and (b).
19. (1) When the Regional Director and the appellant
have each appointed a member to the Review Committee,
the secretary shall request those members to appoint a third
member who shall be Chairman of the Review Commitee.
the responsibility he had thus assumed, the
respondent filed an application with the Depart
ment claiming half of the amounts payable pursu
ant to provisions of the Act with respect to the two
children. The application was refused on the
ground that a family allowance is not divisible and
is normally payable to the mother, the father being
eligible to receive it only in exceptional and very
precise circumstances, that being so by virtue of
subsection 7(1) of the Act and section 9 of the
Regulations, which read as follows:
7. (1) Where payment of a family allowance is approved,
the allowance shall, in such manner and at such times as are
prescribed, be paid to the female parent, if any, or to such
parent or other person or such agency as is authorized by or
pursuant to the regulations to receive it.
9. (1) Where payment of a family allowance is approved,
the allowance shall be paid to the male parent where
(a) there is no female parent; or
(b) the female parent and male parent are living separate
and apart and the male parent has, in fact, custody of the
child.
As to the impugned decision itself, which was
rendered by the Review Committee set up to con
sider the claim at the request of the respondent, it
was expressed quite succinctly in a text which
ought to be reproduced integrally. It read thus:
DECISION OF REVIEW COMMITTEE AND REASONS
The Review Committee finds in favour of Mr. David Vincer,
for the following reasons:
The Family Allowance Act, Chapter 44, S.C. 1973, Section
7.1 and Section 9.1 of the Family Allowance Regulations
appear to be in violation of the Canadian Charter of Rights
and also the Canadian Human Rights Act, Chapter 33, S.C.
1976-77, Section 2; 3.(1) and 63.(1).
It is the recommendation of the Review Committee that Sec
tion 7(1) of the Family Allowance Act, 1973 and Section 9.(1)
of the Family Allowance Regulations be reviewed to enable
proper accommodation of Mr. Vincer's case and such similar
cases that may, from time to time, arise.
The decision as formulated raised, on its face,
an obvious problem of form and characterization.
One was entitled to ask if it was in fact a genuine
decision subject to review. The Court was urged,
however, by both counsel to draw an intention on
the part of the Committee to dispose finally of the
appeal before it from the phrase "the Review
Committee finds in favour of [the respondent]",
and to interpret the ratio of that final disposition
as being a finding that subsection 7(1) of the Act
and section 9 of the Regulations were "in violation
of" the Canadian Charter of Rights and
Freedoms. 4 But then another difficulty emerged:
was the Review Committee entitled to conclude
that there was a Charter violation and on the sole
basis of that finding to render in favour of the
respondent and direct that his application be
accepted.
The possibility that the Committee might have
lacked jurisdiction to find as it did was not alluded
to by counsel in their written argument. Both had
taken for granted that the question had been set
tled by recent decisions, a position firmly sustained
by counsel for the respondent but partly aban
doned by counsel for the applicant in the supple
mentary written arguments they later submitted
with leave of the Court. These recent decisions
which were seen by counsel as having disposed of
the difficulty were: a) Law v. Solicitor General of
Canada, [1985] 1 F.C. 62, a decision of this Court
which held that the Immigration Appeal Board
appointed under the Immigration Act, 1976 [S.C.
1976-77, c. 52] is a court of competent jurisdiction
within the contemplation of subsection 24(1) of
the Charter; b) Zwarich v. Canada (Attorney
General), [1987] 3 F.C. 253, another decision of
this Court, in which was made a statement [at
page 255] to the effect that an Umpire and a
Board of Referees under the Unemployment In
surance Act, 1971 [S.C. 1970-71-72, c. 48] were
4 It should be added here that at the outset, the Court had
also been asked to ignore the reference in the decision to the
Canadian Human Rights Act [S.C. 1976-77, c. 33], both
counsel acknowledging that the Canadian Human Rights Com
mission was the proper forum to deal with a possible breach of
the Canadian Human Rights Act which, in fact, it had already
done in another but similar context.
required "not only [to] construe the relevant stat
utes and regulations but also find whether they
have been validly enacted"; and c) Re Nash and
The Queen (1982), 70 C.C.C. (2d) 490, a judg
ment of the Newfoundland Provincial Court
according to which an internal disciplinary panel
acting under the Newfoundland Constabulary Act
[R.S.N. 1970, c. 58] was a court of competent
jurisdiction within the meaning of subsection 24(1)
of the Charter having regard to the fact that the
French version of subsection 24(1) uses the term
" `Un tribunal' [which] has a much broader mean
ing than a court [and] ... is clearly broad enough
to encompass the disciplinary panel or any other
similar body" [at page 494]. I do not accept that
these decisions have had the effect of putting to
rest the jurisdictional issue arising and I will say
why later in the course of the analysis. I suggest
that we try first to define better this issue and get
a more precise idea of what it really involves.
It is clear that the difficulty we are faced with is
directly related to the extremely complex and
much debated problem of identifying the various
judicial and administrative decision-making
authorities properly empowered to deal with con
stitutional matters. But it is also clear that for us
today, in view of the type of tribunal and the
nature of the constitutional matter involved, the
issue is more straightforward and relatively simple.
While the notion of a "court of law" is uncertain
and the reach of its ambit imprecise (as the House
of Lords, in Attorney General y British Broad
casting Corpn, [1980] 3 All ER 161 once again
had occasion to recall), surely no one would ever
think of attributing to an appeal tribunal set up
pursuant to the provisions of the Family Allow
ances Act, 1973 the status of a "court". In the Law
case, supra, relied on by counsel, the Court was
concerned with a permanent tribunal which had
been given by statute the status of a "court of
record". The situation here has nothing of the like.
What we have is a simple ad hoc committee whose
role is to oversee, in a particular case, the adminis
trative process involved in the scheme adopted by
Parliament for the awarding of family allowances.
On the other hand, the question the Review
Committee took upon itself to consider was in no
way related to the administrative process and its
compliance with the requirements of the Charter,
and it had nothing to do with assessing, for possi
ble Charter breaches, the conduct of Department
officials in giving effect to legislative enactments.
The question was directed to the very constitution
ality of the enactments themselves, which enact
ments emanated not only from a delegated author
ity but directly from Parliament and, being
perfectly valid as to their form, were undoubtedly
in force. 5
With those precisions in mind, the issue to be
determined can be formulated, in positive terms, as
follows: is an administrative tribunal, set up as the
ultimate level of an administrative process, en
titled, in considering the claim put before it, to
question the constitutionality of the legislative
enactments it is its mission to apply? I will say
without hesitation that I cannot see how the issue
so formulated could be disposed of in a positive
way.
It is submitted that the Review Committee had
the power to confirm or vary any previous decision
made by Department officials; that no formal re
strictions were imposed upon it as to the matters it
could consider in deciding the appeal placed before
it; that in order to appreciate the legitimacy of the
refusal of the respondent's claim for benefits, it
had to examine whether such refusal had not
5 I matters not of course that what was involved was the
supremacy of the Charter and a possible case of "inoperative-
ness" (having as force and effect) not the separation of powers
and the doctrine of ultra vires: the constitutionality of the
enactments was no less the issue.
created an inequality prohibited by the Charter. It
is submitted also that since the Review Committee
had full power and authority to dispose of the case
in last resort, it was, for the purpose of interpreting
and implementing the rights and freedoms guaran
teed by the Constitution, a "court of competent
jurisdiction" within the meaning of section 24 of
the Charter where the word "court" is not used in
its usual technical sense but rather in a loose sense
as it appears from its translation by the word
"tribunal" in the French version. It is submitted
finally that the Review Committee did not purport
to declare unconstitutional the enactments, some
thing which admittedly is reserved to superior
courts; it simply formed an opinion and took a
view in that regard, as any tribunal must do when
the decision it is called upon to make requires that
this be done, as stated in the Zwarich decision,
supra.
I simply see no merit in any of these
submissions.
First, with respect to the submission that juris
diction could derive directly from section 24 of the
Charter, it seems now firmly established that the
Charter does not by itself confer jurisdiction on
any court or tribunal. (See the comments of the
Supreme Court judges, albeit in a criminal law
context, in Mills v. The Queen, [1986] 1 S.C.R.
863; see also Moore v. B.C. (Govt.) (1986), 4
B.C.L.R. (2d) 247 (S.C.).) As I understand it, the
jurisdiction of a statutory body must be found in
statute and must extend not only to the subject-
matter of an application and to the parties
involved therein but also to the remedy sought, and
I fail to see here where the Committee would find
in the statute the power to order that benefits be
paid as claimed. And since the Nash decision,
supra, has been relied on, I will say in passing that
I respectfully disagree with its reasoning based on
the use of the word "tribunal" in the French
version. Indeed, I would have thought that in
construing bilingual legislation a word should nor
mally not be given in one of the versions a meaning
and scope that the corresponding word in the other
version cannot bear. (See subsection 8(2) of the
Official Languages Act [R.S.C. 1970, c. O-2].)
Besides, enough consideration may not have been
given to the fact that the words "court" and
"tribunal" in the English legal language have
acquired a meaning which does not correspond to
that attributed normally to the French words
"cour" and "tribunal".
Second, in reply to the submission that the
Committee did not make a declaration but only
formed an opinion and took a view, I will only say
that, considering it did not take that view academi
cally but went on to act and decide on the sole
basis of it, I fail to fully appreciate the distinction.
That a tribunal validly constituted to exercise
adjudicatory functions be entitled to consider and
dispose of legal difficulties is easy to understand; it
certainly has to interpret with regard to a particu
lar set of facts the provisions of law it is called
upon to apply. But to assert the unconstitutionality
of one of these provisions and decide accordingly
is, I believe, totally different from making an
incidental or accessory finding on a question of
law. 6 It seems to me that, be it declaratory or not,
a judgment has, outside the ambit of the parties, a
binding effect only to the extent of its authoritative
status and then its ratio decidendi is what is truly
important about it.
And finally, coming to the proposition that the
Committee is not expressly restricted as to the
matters it may consider in deciding cases which
have been brought before it, my comment will be
that there are restrictions inherent in our Constitu
tion which, transcending all statutes, need not be
expressly stated wherever and whenever they
apply. And indeed there lies the basis for my
6 See, on this point, the comments of professor Gilles Pépin in
his recent article entitled "La competence des cours inférieurs
et des tribunaux administratifs de stériliser, pour cause d'invali-
dité ou d'ineffectivité, les textes législatifs et réglementaires
qu'ils ont mission d'appliquer" published in (1987), 47 R. du B.
509, specially at pp. 529 et seq.
unqualified negative response to the issue as I put
it.
Much has been said and written about the
absence, in our constitutional system, of a rigid
principle of separation of powers, but no one has
ever doubted, I think, that each of the three
branches of government, legislative, executive and
judicial, has exclusive functions of its own. It is my
understanding that among these exclusive func
tions is that attributed to the judiciary of control
ling the legal validity of the enactments of Parlia
ment and the Legislatures. It is so, in my view,
because the very institutional foundation of a free
and democratic society like ours, the respect for
the rule of law, is directly involved. I consider it
unacceptable that a provision of law, properly
enacted and having all the appearances of effec
tiveness and validity, could be disregarded by any
decision-making body other than a judicial author
ity constitutionally entitled to question its validity.
To allow members and agents of the executive
branch of government to do so, be they acting in
their capacity as ministers or in the exercise of
their powers as part of the administrative process,
individually or as member of Cabinet or of
administrative tribunals, would be directly against
the very notion of democracy. And surely, as far as
that is concerned, the fact that they would only
"take a view" and "not go as far as making a
declaration" would not change anything, as soon
as they would take upon themselves to act and
exercise their duty in accordance with that view.
My opinion is thus that there is one basic condi
tion for a public decision-making body to be en
titled to challenge the validity of an Act of Parlia
ment: it must be part of the judicial branch of
government. There may be great difficulties at
times in ascertaining whether a particular tribunal
has acquired or been attributed that status, espe
cially since the sole fact that it is called upon to
exercise adjudicatory functions and has been
accorded judicial powers is in that respect in no
way determinative. (See what Fauteux J. (as he
then was) had to say on this point in Théberge
(J.R.) Ltée v. Syndicat National des Employés de
l'Aluminum d'Arvida Inc. et al., [1966] S.C.R.
378, at page 382.) And those difficulties may be
compounded by others arising from the judicature
sections of the Constitution Act, 1867 [30 & 31
Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No.
5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982,
Item 1)] which limit the powers of the legislative
authorities to confer on tribunals or inferior statu
tory courts the jurisdiction of superior courts. But
all this is alien to our difficulty today. As noted at
the outset, the Review Committee here involved is
a part of the administrative process and acts as an
agent of the executive; it has none of the attributes
of a judicial body.
My conclusion is therefore that the tribunal
whose decision is here attacked was not entitled to
challenge the constitutionality of the legislative
enactments it was called upon to interpret and
apply. In fulfilling its mandate, like any public
authority in the land, it is bound by the law as it
exists or appears to exist, as long as there has been
no decision by the judiciary that the law is inoper
ative or invalid. The section 28 application should
then be granted, the impugned decision set aside,
and the matter referred back to the Review Com
mittee for it to be disposed of in accordance with
the law as it is.
* * *
The following are the reasons for judgment
rendered in English by
STONE J.: I have had the advantage of reading
in draft the reasons for judgment prepared by my
colleague Mr. Justice Marceau.
The mandate of the tribunal whose decision is
under review appears in section 15 of the Family
Allowances Act, 1973, S.C. 1973-74, c. 44 as
amended, which reads:
15. Where any person, department, agency or institution is
dissatisfied with a decision made under this Act that no allow
ance is payable to him or it, that person, department, agency or
institution may appeal against the decision to a tribunal to be
established and conducted in accordance with the regulations,
and the tribunal may confirm or vary the decision so made and,
upon application made to it by the person, department, agency
or institution or the Minister based on evidence not previously
considered, it may rescind or amend any decision made by it.
The language thus employed suggests that the
review mechanism is intended to ensure that a
person or agency should not be denied an allow
ance that is otherwise payable under the statute
and, conversely, that he or it should not receive
one that is not so payable. In making its determi
nation the tribunal is directed to conduct itself "in
accordance with the regulations", subsection 23(2)
of which reads:
23... .
(2) The decision of a Review Committee may, in accordance
with the Act, confirm or vary any previous decision made with
respect to the subject-matter of the appeal. [Emphasis added.]
These provisions, it seems, limit the scope of the
tribunal's mandate to that of reviewing on appeal
the "decision ... that no allowance is payable"
under the legislation. In so doing, it may confirm
or vary that decision and, in some circumstances,
even rescind or amend it.
In my opinion, the tribunal is quite without any
power under its mandate to determine whether
rights enshrined in the Charter have been
infringed or denied or whether the legislation is in
conflict with the Canadian Human Rights Act,
S.C. 1976-77, c. 33. In particular, it signally lacks
any power to grant a remedy under subsection
24(1) of the Charter.' On the contrary, the tribu
nal's mandate is limited to determining on the
basis of the statute as framed whether or not an
allowance is properly payable having regard to the
evidence presented and to the submissions made.
' 24. (1) Anyone whose rights or freedoms, as guaranteed
by this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
In my view, it is not authorized to rule on the
validity, constitutional or otherwise, of the statute
and regulations.
Nor do I think that the decision of this Court in
Zwarich v. Canada (Attorney General) [[19871 3
F.C. 253] is determinative of the issue. As I read
it, the Charter issue there involved a "question of
law" 8 which was properly raised for determination
by an umpire who qualified for appointment or
selection as such by virtue of being a sitting or
former judge. 9 That is far from being the situation
in the present case where no such broad power is
conferred and where the members of the tribunal
8 96. An umpire may decide any question of law or fact that
is necessary for the disposition of any appeal taken pursuant to
section 95 and may dismiss the appeal, give the decision that
the board of referees should have given, refer the matter back
to the board of referees for rehearing or re-determination in
accordance with such directions as he considers appropriate or
confirm, rescind or vary the decision of the board of referees in
whole or in part. [Unemployment Insurance Act, 1971, S.C.
1970-71-72, c. 48 (as am. by S.C. 1976-77, c. 54, s. 56).]
9 92. (1) The Governor in Council may, from among the
judges of the Federal Court of Canada, appoint such number of
umpires as he considers necessary for the purposes of this Act
and, subject to this Act, may prescribe their jurisdiction.
[Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48
(as am. by S.C. 1980-81-82-83, c. 158, s. 55).]
(1.1) Subject to subsection (1.3), any judge of a superior,
county or district court in Canada and any person who has held
office as a judge of a superior, county or district court in
Canada may, at the request of the chief umpire made with the
approval of the Governor in Council, act as an umpire, and
while so acting has all the powers of an umpire. [Unemploy-
ment Insurance Act, 1971, S.C. 1970-71-72, c. 48 (as am. by
S.C. 1976-77, c. 54, s. 55).]
(1.2) No request may be made under subsection (1.1) to a
judge of a provincial court without the consent of the chief
justice or chief judge of the court of which he is a member, or
of the attorney general of the province.
(1.3) The Governor in Council may approve the making of
requests pursuant to subsection (1.1) in general terms or for
particular periods or purposes, and may limit the number of
persons who may act under this section.
(1.4) A person who acts as an umpire pursuant to subsection
(1.1) shall be paid a salary for the period he acts at the rate
fixed by the Judges Act, for a judge of the Federal Court of
Canada, other than the Chief Justice or the Associate Chief
Justice of that Court, less any amount otherwise payable to him
under that Act in respect of that period, and shall also be paid
the travelling allowances that a judge is entitled to be paid
under the Judges Act.
hold no special qualifications to deal with a legal
question of such fundamental importance.
I would therefore dispose of this application in
the manner proposed by my colleague Mr. Justice
Marceau. In the circumstances, I prefer to limit
my views to those already expressed and to leave
to a future occasion the meaning to be given the
word "court" in the phrase "court of competent
jurisdiction" in the context of a civil proceeding.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.