Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220

SUPREME COURT OF CANADA

Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220

Date: 1981-10-20

Pierre Crevier Appellant; and

The Attorney General of the Province of Quebec and Harmel Aubry Respondents;

and

Pierre Crevier Appellant; and

The Attorney General of the Province of Quebec and Robert Cofsky Respondents;

and

The Attorney General for the Province of Alberta Intervener.

1981: February 10, 11; 1981: October 20.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law — Professions Tribunal — Writs of evocation — Privative clauses — Express general exclusion of the supervisory authority of the Superior Court in respect of jurisdiction and law — Power to determine limits of jurisdiction without appeal or review — Whether a s. 96 court created — British North America Act, art. 96 — Professional Code, R.S.Q. 1977, c. C-26, arts. 162, 163, 164, 169, 175, 193, 194, 195 — Code of Civil Procedure, arts. 33, 846.

The appellant obtained two writs of evocation from a judge of the Superior Court of Quebec from two decisions of the Professions Tribunal quashing a decision of a Discipline Committee of a professional corporation on the ground that that body had acted beyond its authority. The Superior Court held that the wide powers conferred upon the Professions Tribunal—powers encompassing review of law or fact and jurisdiction—offended s. 96 of the B.N.A. Act because the question whether a body has exceeded its jurisdiction fell within the superintending and reforming power belonging solely to a superior court whose members are appointed by the Governor General in Council. That decision was reversed by a majority of the Quebec Court of Appeal. Hence the appeal to this Court.

[Page 221]

Held: The appeal should be allowed.

The Professions Tribunal is given no function other than that of a general tribunal of appeal in respect of all professions covered by the Professional Code and it was, therefore, impossible to see its final appellate jurisdiction as part of an institutional arrangement by way of a regulatory scheme for governance of the various professions.

Where a provincial legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicative functions, and where that insulation encompassing jurisdiction, the legislation must be struck down as unconstitutional because it constitutes, in effect, a s. 96 court. It is unquestioned that privative clauses, when properly framed, may effectively oust judicial review on questions of law and on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, there is nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. Consequently, a provincially-constituted statutory tribunal could not constitutionally be immunized from review of decisions on questions of jurisdiction.

The present case was no different in principle from the Farrah case, [1978] 2 S.C.R. 638, when regard is had to ss. 175, 194 and 195 of the Professional Code. In both cases there was a purported exclusion of the reviewing authority of any court, whether by appeal or by evocation.

Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638, followed; Tomko v. Labour Relations Board (N.S.), [1977] 1 S.C.R. 112, distinguished; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Farrell v. Workmen's Compensation Board, [1962] S.C.R. 48; Toronto Newspaper Guild, Local 187 v. Globe Printing Company, [1953] 2 S.C.R. 18; L'Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; Executors of the Woodward Estate v. Minister of Finance, [1973] S.C.R. 120, referred to.

APPEAL from a decision of the Court of Appeal of Quebec[^1], reversing a judgment of the

[Page 222]

Superior Court[^2], authorizing writs of evocation to be issued. Appeal allowed.

Robert Lesage, Q.C., and Daniel Lavoie, for the appellant.

Henri Brun, Louis Crête and Jean-François Jobin, for the respondent the Attorney General of the Province of Quebec.

Pierre Saint-Martin, for the respondents Aubry and Cofsky.

B. A. Crane, Q.C., for the intervener.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The issue in this appeal is whether the Professions Tribunal, established under s. 162 of the Professional Code, R.S.Q. 1977, c. C-26, may competently exercise the powers conferred upon it under s. 175 and under ancillary provisions such as s. 169 or whether, by reason of such powers and having regard also to the privative terms of s. 194, there would be a violation of s. 96 of the British North America Act in their exercise. The issue so stated requires a close examination of the recent judgment of this Court in Attorney General of Quebec v. Farrah[^3], to determine whether there is a sufficient distinction between the challenged legislation here and that involved in the Farrah case to warrant a different answer, one of validity rather than invalidity as in Farrah.

I need make but a brief allusion to the facts. The Professional Code governs some 38 professional corporations listed in an annex to the Code. Each of these corporations is required to establish a Discipline Committee in conformity with the Code to deal with allegations of professional misconduct. The Discipline Committees have authority under s. 156 to impose a range of sanctions upon a finding of guilty, such as a reprimand or a temporary or permanent striking off the rolls of the particular corporation or a fine of at least $200 for each offence. The Discipline Committee has no authority to admit members to the particular

[Page 223]

profession and hence is not invested with any power to set standards for membership. This is done by Bureaux constituted under the Code for the respective professions.

In this case two members of a professional corporation were charged with three offences. They were convicted of one and acquitted of the others[^4]. They appealed to the Professions Tribunal under ss. 162 and 164 of the Professional Code and the Tribunal found (I shall delineate its powers shortly) that the Discipline Committee had gone beyond the governing regulations in concluding that an offence had been committed and hence had acted beyond its authority. Accordingly, the two members were found not guilty. The complainant thereupon brought two writs of evocation which were granted by Poitras J.[^5] who held that the wide powers conferred upon the Professions Tribunal, powers to confirm, alter or quash any decision by a Discipline Committee, powers encompassing review of law or fact and jurisdiction, were such as to offend s. 96 of the British North America Act. His judgments were reversed by a majority of the Quebec Court of Appeal[^6] (Paré J. A. and Jacques J., ad hoc), Montgomery J.A. dissenting. Leave to appeal to this Court was subsequently granted to consider the constitutional question posed at the beginning of these reasons.

The relevant provisions of the Professional Code governing the establishment and powers of the Discipline Committees are as follows:

116. A committee on discipline is constituted within each corporation.

The committee shall be seized of every complaint made against a professional for an offence against this Code, the act constituting the corporation of which he is a member or the regulations made under this Code or that act.

117. The Committee shall consist of at least three members, including a chairman who shall be appointed by the Gouvernement, after consultation with the Barreau du Québec, from among the advocates who have at least ten years' practice. At least two other members

[Page 224]

shall be designated by the Bureau of the corporation from among the members of the corporation.

In choosing the chairman, the Gouvernement may consider to be years of practice the years during which a person acquired pertinent legal experience after obtaining a permit to practise the profession of advocate, a diploma of admission to the Barreau du Québec or a certificate of competence to practise the profession of advocate.

120. Whenever possible, the person appointed by the Gouvernement as chairman of the committee on discipline of a corporation shall also be appointed chairman of the committee on discipline of other corporations.

121. There shall be three members, including the chairman, at the sittings of the committee.

If the number of members of the committee so permits, the committee may sit in divisions consisting of three members, one of whom shall be the chairman or a person chosen by him from a list of advocates prepared by the Gouvernement, after consultation with the Barreau du Québec.

142. Every hearing shall be held in camera, unless the committee, at the request of the respondent, considers that it is in the public interest that it not be held in this manner.

143. The committee on discipline may have recourse to all legal means to ascertain the facts alleged in the complaint; with the consent of all the parties, the committee may also, in its discretion, receive evidence taken outside the trial.

144. The committee shall summon such witnesses and require the production of such documents as it or either party considers useful by ordinary summons over the signature of the secretary.

145. The committee shall have all the powers of the Superior Court to compel witnesses to appear and answer, and to punish them in case of refusal; for such purpose the respondent shall be considered as a witness.

146. A witness or professional testifying before the committee shall be bound to answer all questions. His evidence is privileged and cannot be used against him before any court of justice.

Except where the hearing is public under section 142, every person conversant with such evidence shall be

[Page 225]

personally bound to secrecy saving the right of the president of the corporation of which the professional is a member and of the members of the tribunal hearing an appeal under section 162 to be informed thereof in the performance of their duties.

151. The Committee shall have the power to condemn the complainant or the respondent to pay the costs, including the cost of recording, or to apportion the costs between them.

152. The committee shall decide to the exclusion of any court, in first instance, whether the respondent is guilty of an offence against this Code, the act constituting the corporation of which he is a member or the regulations made under this Code or the said act.

153. The decision of the committee on discipline shall be recorded in writing and signed by the members of the committee. It shall contain, in addition to the conclusions, the reasons for the decision.

154. The committee on discipline shall impose on a professional convicted of an offence against this Code, the act constituting the corporation of which he is a member or the regulations made under this Code or the said act, one or more of the following penalties:

(a) reprimand;

(b) temporary or permanent striking off the roll;

(c) a fine of at least two hundred dollars for each offence;

(d) the obligation to remit to any person entitled to it a sum of money the professional is holding for him;

(e) revocation of his permit;

(f) revocation of his specialist's certificate.

For the purposes of subparagraph c of the first paragraph, when an offence is continuous, its continuity shall constitute a separate offence, day by day.

A decision of the committee on discipline condemning the complainant or the respondent to costs or imposing a fine on the respondent may, in default of voluntary payment, be homologated by the Superior Court or the Provincial Court according to their respective jurisdictions, having regard to the amount involved, and such decision shall become executory as a judgment of that Court.

The Professions Tribunal although consisting of six Provincial Court Judges, as prescribed by s. 162, sits with three, pursuant to s. 163 and hence

[Page 226]

may have a varying membership for the hearing of appeals from decisions of a Discipline Committee. Sections 162 and 163 read:

162. A Professions Tribunal is established, composed of six judges of the Provincial Court designated by the chief judge of such Court who shall designate a chairman among them.

An appeal shall lie to such tribunal from any decision of a committee on discipline, by the plaintiff or the respondent.

163. Sittings of the tribunal shall be composed of three judges.

At least two of such judges must form part of the six judges forming the court. The third may be a judge forming part of a list of five judges of the Provincial Court established for such purpose by the chief judge of that Court.

However, motions preliminary or incidental to the hearing of the appeal, except those presented under the first paragraph of section 164 and sections 166 to 169, 171, 172 and 173 and those excepted by the rules of practice, shall be heard and judged by a judge of the tribunal who may, however, refer them to the tribunal.

Other provisions of the Professional Code relevant to the operation of the Professions Tribunal are ss. 164, 165, 167, 169, 173, 174, 175 and 176. They are as follows:

164. Every appeal under section 162 shall be made by a petition served upon the parties and upon the secretary of the committee on discipline. This petition must be filed at the office of the Provincial Court at the chief place of the judicial district where the respondent in first instance principally practises his profession, within twenty days of the service of the decision of the committee on discipline dismissing the complaint or imposing the penalty, as the case may be, or within ten days of the service of the decision of such committee if such decision has to do with a request for provisional striking off the roll.

Within ten days of receipt of the notice of appeal, the secretary of the committee shall send the original and three copies of the record relating to the decision appealed from to the clerk of the Provincial Court.

The record shall comprise the complaint, the subsequent proceedings, the exhibits produced, the transcription of the depositions if they have been recorded, the minutes of the trial, the decision of the committee and the petition.

[Page 227]

A judge of the tribunal may:

(a) upon a motion of the secretary of the committee, extend the delay provided in the second paragraph;

(b) upon a motion of one of the parties, allow that certain contents of the record be not reproduced in the three copies which must be sent in accordance with the second paragraph.

165. The tribunal to which the appeal is referred and each of its members shall have the powers and immunities of commissioners appointed under the Act respecting public inquiry commissions (chapter C-37).

The tribunal or a member thereof may, on the basis, mutatis mutandis, of the Code of Civil Procedure, prescribe such orders of procedure as the exercise of its functions may require.

The clerk and the officers and employees of the Provincial Court of the district in which the tribunal sits must provide it with the services they usually provide to the Provincial Court itself.

167. Within fifteen days of the filing of the petition, the appellant must file at the office of the Provincial Court five copies of a factum setting out his pretensions, and give two copies to each of the other parties. Within the following fifteen days, the other parties must file at the office of the court and give to the appellant the same number of copies of their own factums.

If the appellant does not file his factum within the delay fixed, the appeal may be dismissed; if the other parties are in default, the tribunal may refuse to hear them.

169. The tribunal may also, by reason of exceptional circumstances and where the ends of justice so require, authorize the presentation of additional written or verbal evidence.

The application for authorization shall be made by a written and sworn motion; it shall be presented to the tribunal for adjudication after notice to the opposite party.

lf the motion is heard, each party may examine and cross-examine the witnesses summoned and present his arguments.

173. Every hearing shall be held in camera, unless the tribunal decides, at the request of the respondent in first instance, that it is in the public interest that it not be held in this manner.

174. The rules provided in section 149 shall apply to the hearing before the tribunal.

[Page 228]

175. The tribunal may confirm, alter or quash any decision submitted to it and render the decision which it considers should have been rendered in first instance.

The tribunal has power to order any of the parties to pay the costs or to apportion such costs among them.

The tribunal's decision shall be final.

176. The decision of the tribunal shall be recorded in writing and signed by the judges who rendered it. If [sic] shall contain, in addition to the conclusions, the reasons on which it is based.

Two other sections of the Professional Code are relevant, s. 193 providing for certain immunity for acts done in good faith in the performance by, inter alia, a discipline committee or an appeal tribunal of their duties; and s. 194, a privative provision, excluding recourse to the supervisory authority of the Superior Court under certain articles of the Code of Civil Procedure. These sections read:

193. The syndics, assistant syndics, corresponding syndics, the investigators and experts of a professional inspection committee, the members of the Office, of a Bureau, of a committee on discipline, of a professional inspection committee or of a committee of inquiry established by a Bureau, and the members of a tribunal hearing an appeal from a decision by a committee on discipline, shall not be prosecuted for acts done in good faith in the performance of their duties.

194. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in section 193 acting in their official capacities.

Section 194 is reinforced by s. 196 which is as follows:

196. Two judges of the Court of Appeal may, upon motion, summarily annul any writ, order or injunction issued or granted contrary to sections 193 and 194.

Section 195 should also be mentioned, reading as follows:

195. Article 33 of the Code of Civil Procedure does not apply to the persons mentioned in section 193 acting in their official capacities.

[Page 229]

It is sufficient in the present case, in adverting to the reference in s. 194, supra, to arts. 834 to 850 of the Code of Civil Procedure, to reproduce only art. 846 which is in these terms:

846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases:

847. when there is want or excess of jurisdiction;

848. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect;

849. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done;

850. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice.

However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.

Article 33 of the Code of Civil Procedure, excluded by s. 195, supra, is as follows:

33. Excepting the Court of Appeal, the courts within the jurisdiction of the Legislature of Quebec, and bodies politic and corporate within the Province are subject to the superintending and reforming power of the Superior Court in such manner and form as by law provided, save in matters declared by law to be of the exclusive competency of such courts or of any one of the latter, and save in cases where the jurisdiction resulting from this article is excluded by some provision of a general or special law.

The Court of Appeal majority viewed the preclusive words of s. 194 as not touching the power and right of the Superior Court to issue a writ of evocation where there has been a want or excess of jurisdiction. Section 194 itself, however, does not recognize this supervisory authority of the Superior Court. If it did, it would be arguable that so long as the Professions Tribunal was subject to the superintendence of the Superior Court on questions of jurisdiction, it would not be tainted as exercising a power belonging to a s. 96 court by an initial but reviewable conclusion that a Discipline

[Page 230]

Committee had exceeded its jurisdiction. That is not this case, having regard to the embracive terms of s. 194 of the Professional Code. Even if it were otherwise and the supervisory authority of the Superior Court on questions of jurisdiction was expressly preserved, it would still not be a complete answer to a contention that the Professions Tribunal is exercising powers more conformable to those belonging to a s. 96 court than those properly exercisable by a provincial administrative or quasi-judicial tribunal or even a provincial judicial tribunal.

In the present case, Poitras J. summarized in the following words his view that the Professions Tribunal had been endowed with powers which it could not constitutionally exercise [at p. 334]:

[TRANSLATION] We are of the opinion that the question whether a body has exceeded its jurisdiction, either by refusing to acknowledge the scope of a regulation of the Order, or by deciding in the absence of a regulation, or by following non written rules, or by construing a given regulation in an unreasonable way, falls within the superintending and reforming power which belongs solely to a superior court whose members are appointed by the Governor General in Council.

Therefore, in so far as jurisdiction is vested in the Professions Tribunal by the Professional Code, to the exclusion of any other Court, to dispose of any issue of law with respect to the alleged refusal by the Committee on discipline to acknowledge the scope of a regulation, or to the right of the Committee on discipline to construe it as it sees fit, this jurisdiction rationae materiae is unconstitutional.

The majority of the Court of Appeal viewed the matter differently. Paré J.A. proceeded from an historical view that at Confederation an appeal of a disciplinary decision against a member of a profession was not within the exclusive domain of the Superior Court. Hence, on an historical criterion alone, it could not be said that to invest the Professions Tribunal with the appeal jurisdiction conferred upon it by the Professional Code was to endow it with powers analogous to those of courts within s. 96 of the British North America Act.. Moreover, in the opinion of Paré J.A., the fact that

[Page 231]

the Professions Tribunal was given, by way of appeal to it, authority over the merits of decisions of Discipline Committees did not involve the exercise of jurisdiction previously exercised exclusively by the Superior Court. That authority did not result in transferring to the Professions Tribunal the superintending control vested in the Superior Court.

Paré J.A. purported to distinguish the Farrah case on the ground that the legislation challenged there under s. 96 of the British North America Act, namely, s. 58(a) of the Transport Act, in association with ss. 24 and72 thereof, had the effect of excluding the supervisory jurisdiction of the Superior Court. In his view, the same considerations did not apply to the present case; it was proper to look at ss. 162 and 175 (formerly ss. 158 and 170) of the Professional Code separately from ss. 194 and 195 (formerly ss. 188 and 189); and, hence, the restrictive provisions of ss. 194 and 195 should not be taken to limit the powers of the Superior Court in matters of competence and jurisdiction to control the proceedings of the Professions Tribunal. Again, there was the contrasting fact in the Farrah case that the effect of s. 58(a) of the Transport Act was to displace the appellate authority vested in the Court of Appeal on questions of jurisdiction or law in favour of the Transport Tribunal. There being no invasion of s. 96, in this case, it was not open to the Superior Court to substitute its opinion for that of the Professions Tribunal when the latter was exercising its wide powers under s. 175 of the Professional Code.

Jacques J. (ad hoc) agreed with Paré J.A. but added that although the decisions of the Professions Tribunal were not subject to appeal and were protected by privative provisions, yet notwithstanding such provisions it remained subject to the control and supervision of the Superior Court in respect of any want or excess of jurisdiction. Further, according to Jacques J., the Professional Code established a regime for control of the professions, a matter within provincial competence,

[Page 232]

and the Professions Tribunal was an integral part of the regime. There is an indication here of the "institutional" approach taken in Tomko v. Labour Relations Board (N.S.)[^7], but it was not elaborated.

Montgomery J.A., in dissent, pointed out that the Discipline Committees were, in effect, domestic tribunals with penal jurisdiction (and not administrative bodies) and that, correspondingly, the Professions Tribunal was given no power except to hear appeals from decisions of Discipline Committees. It was, therefore, an appeal court with limited jurisdiction in penal matters and not an administrative tribunal of appeal such as was mentioned in reasons given in the Farrah case, at p. 642. Montgomery J.A. did not regard it as material that there was previously no right of appeal to the Court of Appeal from decisions of domestic tribunals such as Discipline Committees (a feature of the Farrah case) nor did he think it material that the Professions Tribunal was not expressly authorized to decide questions of law. In his view, the terms of ss. 162 and 175 were wide enough to make it clear that it was given that power; and he added that "the nature of the decisions to be rendered by committees on discipline are such that the decisions submitted to the Professions Tribunal would normally be mixed questions of law and fact".

In concluding his reasons, Montgomery J.A. said this [at p. 341]:

lt has been suggested that the Professional Code should be interpreted so as not to deprive the Superior Court of its superintending and reforming power in the event that a committee on discipline should exceed its jurisdiction. This point was considered in great detail in the Farrah case by Mr. Justice Pigeon [at pp. 657-611, who nevertheless agreed with the reasons given by Mr. Justice Pratte for holding section 58(a) unconstitutional.

lt is evident that a material, if not the material difference between the reasons of the majority and

[Page 233]

those of Montgomery J.A. lies in their respective views of the effect of the privative terms of ss. 194 and 195. Notwithstanding the embracive words of s. 194, excluding supervisory control of the Superior Court in respect of jurisdiction and law, the majority would read this down to preserve the Superior Court's authority in respect of want or excess of jurisdiction and, in consequence, save the appellate authority of the Professions Tribunal from the invalidating effect of s. 96. The dissenting Justice obviously felt that the express general exclusion of the supervisory authority of the Superior Court, coupled with the wide power given to the Professions Tribunal to entertain appeals on law and fact from decisions of a Discipline Committee and with finality, stamped the Professions Tribunal as a court with powers conformable to those exercised by a s. 96 court and, indeed, of a superiour court under s. 96.

Three issues arise from the reasons in the Court of Appeal. The first, which I think may be quickly disposed of, concerns the intimation by Jacques J. of a Tomko situation. The Professions Tribunal is given no function other than that of a general tribunal of appeal in respect of all professions covered by the Professional Code and it is, therefore, impossible to see its final appellate jurisdiction as part of an institutional arrangement by way of a regulatory scheme for the governance of the various professions. The Professions Tribunal is not so much integrated into any scheme as it is sitting on top of the various schemes and with an authority detached from them, although, of course, exercising that authority in relation to each scheme as the occasion requires. There is no valid comparison with the cease and desist orders which the Labour Relations Board in the Tomko case was authorized to issue in its administration of a collective bargaining statute.

I draw support for distinguishing Tomko in this assessment of the Professions Tribunal by relying on the recent judgment of this Court in Re Residential Tenancies Act, 1979, delivered on May 28,

[Page 234]

1981 and as yet unreported[^8]. There, Dickson J., speaking for a unanimous Court, said this in considering Tomko in the course of his reasons [at p. 735]:

lt is no longer sufficient simply to examine the particular power or function of a tribunal and ask whether this power or function was once exercised by s. 96 courts. This would be examining the power or function in a 'detached' manner, contrary to the reasoning in Tomko. What must be considered is the 'context' in which this power is exercised. Tomko leads to the following result: it is possible for administrative tribunals to exercise powers and jurisdiction which once were exercised by the s. 96 courts. It will all depend on the context of the exercise of the power. It may be that the impugned 'judicial powers' are merely subsidiary or ancillary to general administrative functions assigned to the tribunal (John East; Tomko) or the powers may be necessarily incidental to the achievement of a broader policy goal of the legislature (Mississauga). In such a situation, the grant of judicial power to provincial appointees is valid. The scheme is only invalid when the adjudicative function is a sole or central function of the tribunal (Farrah) so that the tribunal can be said to be operating 'like a s. 96 court'.

I emphasize the concluding sentence of this passage.

The second issue arising from the reasons of the Quebec Court of Appeal concerns the effect upon s. 96 of a, privative clause of a statute which purports to insulate a provincial adjudicative tribunal from any review of its decisions. Is it enough to deflect s. 96 if the privative clause is construed to preserve superior court supervision over questions of jurisdiction, and if (as in this case) such a construction is not open because of the wording of the privative clause, is the clause constitutionally valid? In my opinion, where a provincial Legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicative functions, the insulation encompassing jurisdiction, such provincial legislation must be struck down as unconstitutional by reason of having the effect of constituting the tribunal a s. 96 court. As Judson J. noted in Farrell v. Workmen's Compensation Board[^9],

[Page 235]

at p. 52, "the restrictions on the legislative power of the province to confer jurisdiction on boards must be derived by implication from the provisions of s. 96 of the British North America Act". In the Farrell case, there was a preclusive provision against judicial review of Board decisions on questions of law but not on questions of jurisdiction, as distinguished from questions of law, and there was no doubt in that case that the Board had jurisdiction. The conclusion in the Farrell case, supported as well in the Farrah case, was that there was no constitutional impediment to such a limitation by a province on judicial review. In an earlier case, Toronto Newspaper Guild, Local 187 v. Globe Printing Company[^10], at p. 40, Fauteux J. (as he then was) remarked that "if the controlling power of superior courts over inferior tribunals or administrative bodies performing judicial functions is to be operative in the cases where, in principle, it is conceded to exist, the superior courts must somehow or other be enabled to see that jurisdiction has not been exceeded or has not been declined".

A stronger statement on this point was made by Rinfret C.J. in L'Alliance des Professeurs Catholiques de Montréal v. Labour Relations Board of Quebec[^11], at p. 155:

[TRANSLATION] We repeat, a court cannot attribute to itself a jurisdiction that it does not have. It seems that this proposition is so evident that it has no need of demonstration. ln addition, any restriction on the powers of control and of surveillance of a superior court is necessarily inoperative when it is a question of its preventing the execution of a decision, of an order or of a sentence rendered in the absence of jurisdiction.

In Executors of the Woodward Estate v. Minister of Finance[^12], this Court was concerned, inter alia,

[Page 236]

with a provincial statutory provision which purported to make certain determinations by the Minister final and conclusive and not open to appeal or review in any court. Martland J., speaking for this Court, dealt with this provision as follows (at p. 127):

The effect which has been given to a provision of this kind is that, while it precludes a superior court from reviewing, by way of certiorari, a decision of an inferior tribunal on the basis of error of law, on the face of the record, if such error occurs in the proper exercise of its jurisdiction, it does not preclude such review if the inferior tribunal has acted outside its defined jurisdiction. The basis of such decisions is that if such a tribunal has acted beyond its jurisdiction in making a decision, it is not a decision at all within the meaning of the statute which defines its powers because Parliament could not have intended to clothe such tribunal with the power to expand its statutory jurisdiction by an erroneous decision as to the scope of its own powers.

Although this was not a direct pronouncement on constitutional power (jurisdiction as such was not expressly involved as it is in the case at bar), it was a clear indication that the constitutional issue was in the background. It is necessary to bring it forward, however, when it is raised as squarely as it has been under the Professional Code.

lt is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching

[Page 237]

jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review.

There has been academic concern with the permitt d scope of privative clauses referable to determinations of provincial adjudicative agencies. Opinion has varied from a position that even errors of law cannot validly be immunized from, review (see J. N. Lyon, "Comment" (1971), 49 Can. Bar Rev. 365), to a position that at least jurisdictional review is constitutionally guaranteed (see W. R. Lederman, "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 1139, at p. 1174) to a position that jurisdictional determinations may, constitutionally, also be denied judicial review (see P. W. Hogg, "Is Judicial Review of Administrative Action Guaranteed by the British North America Act?" (1976), 54 Can. Bar Rev. 716, and see also Dussault, Le contrôle judiciaire de l'administration au Québec (1969), esp. at pp. 110-13).

This Court has hitherto been content to look at privative clauses in terms of proper construction and, no doubt, with a disposition to read them narrowly against the long history of judicial review on questions of law and questions of jurisdiction. Where, however, questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to

[Page 238]

issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review.

The third issue that emerges from the reasons of the Court of Appeal relates to the impact of the Farrah case. There, as here, the provincial Legislature established a statutory tribunal of appeal. The relevant statute, the Quebec Transport Act, confided to the Transport Tribunal, under s. 58(a) of the Transport Act, "jurisdiction, to the exclusion of any other court, to hear and dispose of in appeal, on any question of law, any decision of the [Quebec Transport] Commission which terminates a matter". This authority was reinforced by the privative provisions of ss. 24 and 72 which, respectively, precluded recourse under arts. 834 to 850 of the Code of Civil Procedure as against the Commission and as against the Transport Tribunal. The effect of the foregoing provisions, taken together, was to transfer the supervisory jurisdiction of the Quebec Superior Court, as it existed at Confederation and afterwards, to the Transport Tribunal, and this was beyond provincial competence. It was a supporting consideration that s. 58(a) put the Transport Tribunal in place of the, Quebec Court of Appeal to which there was previously a right of appeal on questions of law and of jurisdiction.

In short, what the Farrah case decided was that to give a provincially-constituted statutory tribunal a jurisdiction in appeal on questions of law without limitation, and to reinforce this appellate authority by excluding any supervisory recourse to the Quebec Superior Court, was to create a s. 96 court. The present case is no different in principle, even though in ss. 162 and 175 of the Professional Code, dealing with the appellate authority of the Professions Tribunal, there is no mention of the word "law" or the word "jurisdiction". When regard is had to the privative terms of ss. 194 and 195, added to the fact that by s. 175 the Professions

[Page 239]

Tribunal's decisions are final, I see no significant distinction between the present case and the Farrah case in the fact that in the latter the authority granted to the appeal tribunal was "to the exclusion of any other court". In both cases there was a purported exclusion of the reviewing authority of any other court, whether by appeal or by evocation.

In the result, I would allow the appeal, set aside the judgments of the Quebec Court of Appeal and restore the judgments of Poitras J. The appellant is entitled to costs throughout.

Appeal allowed.

Solicitors for the appellant: Amyot, Lesage, Bernard, Drolet & Associés, Quebec.

Solicitors for the respondent the Attorney General of the Province of Quebec: Boissonneault, Roy & Poulin, Montreal; Henri Brun, Quebec.

Solicitors for the respondents Aubry & Cofsky: Smith, Léger, Lussier & Saint-Martin, Montreal.

Solicitor for the intervener: The Attorney General for the Province of Alberta, Edmonton.

[^1]: [1979] C.A. 333.

[^2]: [1977] C.S. 324.

[^3]: [1978] 2 S.C.R. 638.

[^4]: [1975] D.D.C.P. 233 and 235.

[^5]: [1977] C.S. 324.

[^6]: [1979] C.A. 333.

[^7]: [1977] 1 S.C.R. 112.

[^8]: Now published at [1981] 1 S.C.R. 714.

[^9]: [1962] S.C.R. 48.

[^10]: [1953] 2 S.C.R. 18.

[^11]: [1953] 2 S.C.R. 140.

[^12]: [1973] S.C.R. 120.