SUPREME COURT OF CANADA
Harelkin v. University of Regina, [1979] 2 S.C.R. 561
Date: 1979-03-30
George S. Harelkin Appellant;
and
The University of Regina Respondent.
1978: June 13, 14; 1979: March 30.
Present: Martland, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Colleges and universities — Student required by university authorities to discontinue studies — Unsatisfactory academic performance — Whether student had right to be heard by committee of university council — Whether Court of Appeal right in refusing certiorari and mandamus because student should have pursued right of appeal to university senate before resorting to prerogative writs — The University of Regina Act, 1974, 1973-74 (Sask.), c. 119, ss. 33(1)(e), 78(1)(c).
The appellant, a student in the School of Social Work, Saskatoon Faculty, University of Regina, was required by university authorities to discontinue his studies. The University Act provided an appeal to a committee of the university council, obligated to "hear and decide". The committee heard one side—the university—and decided adversely to the student, all in the absence of the student. The student did not know what was placed against him in the committee nor was he afforded an opportunity to correct or contradict any statement pre-judicial to his position. Some months later, following an exchange of correspondence between appellant's counsel and the university authorities, in which a rehearing was requested and refused, certiorari and mandamus proceedings were launched. It was contented on the part of the university that the student was not damnified because he had a further appeal to a committee of the senate of the university also charged with the duty, on appeal, to "hear and decide". The trial judge rejected the contentions of the university and granted certiorari quashing the order of the council committee. He directed the university to hold a hearing, pursuant to s. 78(1)(c) of The University of Regina Act, 1974, and to allow the applicant to be present, to be heard, to present evidence and to be represented by counsel, with respect to the refusal of the School of Social Work to allow him to pursue further studies. The Court of Appeal for Saskatchewan reversed, holding that, where there is a right of appeal certiorari should not be granted except under special circumstances and no special circumstances
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were established. From this decision the student appealed to this Court.
Held (Spence, Dickson and Estey B. dissenting): The appeal should be dismissed.
Per Martland, Pigeon, Beetz and Pratte JJ.: The contentions made against the judgment of the Court of Appeal could be summarized in four main propositions: (I) failure by the council committee to respect the principle audi alteram partem was akin to a jurisdictional error and the writs should issue ex debito justitiae; (2) the decision of the council committee was an absolute nullity from which there could be no appeal to the senate committee; (3) even if there could be an appeal to the senate committee, appellant's right of appeal was not an adequate alternative remedy; (4) the principle audi alteram partem had in this case been given statutory force and the Courts should exercise their discretion with a view to enforcing the statute.
1. Failure to respect the principle audi alteram partem and issuance of the writs ex debito justitiae,
The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate. It is based on a contradiction and imports a great deal of confusion into the law. A writ cannot at once be a writ of grace and a writ of right. To say in a case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the discretion even in cases involving lack of jurisdiction. A fortiori does the discretion remain in cases not of lack of jurisdiction, but of excess or abuse of jurisdiction such as those involving a breach of natural justice.
2. Whether the decision of the council committee was a nullity from which there could be no appeal.
There was no want of jurisdiction in the committee of the council to hear and decide upon appellant's application or memorial. In the exercise of this jurisdiction, the committee erred in failing to observe the rules of natural justice. While it could be said in a manner of speaking that such an error was "akin" to a jurisdictional error, it did not entail the same type of nullity as if there had been a lack of jurisdiction in the committee. It simply rendered the decision of the committee voidable at the instance of the aggrieved party and the decision remained appealable until quashed by a superior court or set aside by the senate.
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To hold otherwise would produce undesirable practical effects. For instance, an aggrieved student who had less time than appellant and who cared more about the expenditure could not appeal directly to the senate; he would have to seek relief from the courts, go back before the committee of the council, and from there to the senate, if need be. A purely conceptual view of absolute nullity which would, in this type of case, cause such inconvenient and impractical results could not be theoretically sound.
Alternatively, the motion that was passed by the council committee to review the action taken by the Faculty of Social Work in evaluating appellant's academic performance could be said to be a "decision" within the meaning of s. 33(1)(e) of the Act. It was a motion whereby the council committee "decided upon, subject to an appeal to the senate, an application or memorial by a student in connection with any faculty of the university" within the meaning of s. 78(1)(c) of the Act. The council committee in effect decided that appellant's application or memorial was without merit and implicitly dismissed it. Even though this decision was arrived at in defiance of natural justice, it nonetheless remained a "decision" disposing of appellant's case and was "subject to an appeal to the senate" pursuant to s. 78(1)(c).
Furthermore, and even if it could be said that the decision of the council committee was a nullity, it was still appealable to the senate committee for the simple reason that the senate committee was given by statute the power to hear and decide upon appeals from the decisions of the council, whether or not such decisions were null.
3. Whether appellant's right of appeal to the senate committee was an adequate alternative remedy—The balance of convenience.
The trial judge erred in holding that there was nothing in the appeal procedure whereby the senate was required "to hear" the appellant. First, it was clear that the senate was required to hear appellant, as was council since the same wording "to hear and decide" is found both in s. 33(1)(e) and in s. 78(1)(c); having rightly decided upon the basis of that wording, that the council was required to hear appellant, the trial judge could not, without contradicting and misdirecting himself, hold that there was nothing in the appeal procedure whereby the senate was required to hear appellant. Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the trial judge refused to take into consideration a major element for the determination
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of the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene.
In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors included the burden of a previous finding, expeditiousness and costs. A consideration of all the factors led to the conclusion that appellant's right of appeal to the senate committee did provide him with an adequate alternative remedy. In addition this remedy was a more convenient remedy for appellant as well as for the university in terms of costs and expeditiousness. Also, the council committee's refusal to grant a rehearing to appellant was not a sufficient reason for issuing certiorari and mandamus.
4. Statutory force of the rule audi alteram partem
The submission that in a case such as the present, where the duty of the council committee to hear appellant was imposed by statute, the courts should not decline to enforce the statute but ought to exercise their discretion, if any, so as to uphold it was not accepted. Sections 78(1)(c) and 33(1)(e) are inspired by the general intent of the Legislature that intestine grievances preferably be resolved internally by the means provided in the Act, the university thus being given the chance to correct its own errors, consonantly with the traditional autonomy of universities as well as with expeditiousness and low cost for the public and the members of the university. While of course not amounting to privative clauses, provisions like ss. 55, 66, 33(1)(e) and 78(1)(c) are a clear signal to the courts that they should use restraint and be slow to intervene in university affairs by means of discretionary writs whenever it is still possible for the university to correct its errors with its own institutional means. In using restraint, the courts do not refuse to enforce statutory duties imposed upon the governing bodies of the university. They simply exercise their discretion in such a way as to implement the general intent of the Legislature.
King v. University of Saskatchewan, [1969] S.C.R. 678, approved; Smith v. The Queen, [1959] S.C.R. 638, distinguished.
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Per Spence, Dickson and Estey JJ., dissenting: Three grounds were relied upon by the Court of Appeal in denying the appellant the right, which the statute plainly gave him, namely the right to be heard by the committee of council: (1) the absence of "special circumstances"; (2) the committee acted within its jurisdiction, rightly or wrongly; (3) the appellant had an unexploited right of appeal to the senate of the university. The Court of Appeal was in error in relying on any of these grounds for the following reasons; (1) the principle of exclusion of certiorari in the absence of "special circumstances", where there is a right of appeal, applies only to errors within jurisdiction; (2) a decision made without natural justice is not a decision within jurisdiction; (3) when a tribunal so acts within jurisdiction, certiorari will be granted ex debito justitiae, notwithstanding a right of appeal to another administrative tribunal.
The conclusion to this appeal could be reached by a series of propositions which were fully supported by the authorities, namely:
(1) A statutory duty resting upon a committee "to hear and decide" imports, at the very least, a duty to afford the parties an opportunity to be heard. The appellant was entitled to know why he was being expelled—be it unsatisfactory marks, as stated in a letter to him from the Dean, or a tendency to be neurotic in his ideas, as stated by the chairman of the student progress review committee. And he was entitled to respond to and correct any statements prejudicial to his position. In failing to afford that opportunity, the committee of council breached the audi alteram partem rule and the appellant was denied natural justice.
(2) Procedural error in failing to hold a hearing pursuant to staturory duty is "error going to jurisdiction" and not "error within jurisdiction". The error of the council committee was not a mere error of law within jurisdiction. Failure to hear the appellant went to the "very root of the determination" of the committee and, as such, amounted to jurisdictional error.
(3) Where there has been a denial of natural justice (and hence a lack of jurisdiction) certiorari will issue, notwithstanding a right of appeal to an administrative or domestic body, where that body exercises purely appellate functions. This point raised the general issue of the discretionary nature of certiorari. In this context the authorities draw a distinction between jurisdictional and non-jurisdictional error and between a right of appeal to an administrative or domestic tribunal and a right of appeal to the courts. Generally speaking, the rule is that,
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if the error is jurisdictional, certiorari will issue ex debito justitiae, but if the error is error in law, then in the absence of a privative clause, certiorari may issue. The discretion is broad when the error is non-jurisdictional and there is an appeal to the courts, but virtually disappears when the error is jurisdictional and the right of appeal, if any, is to an administrative or domestic tribunal sitting in a purely appellate role.
In all the circumstances, and on the footing (i) that the council of the university had no jurisdiction to deny the appellant a hearing, and (ii) that the appeal given to the appellant was administrative and not to the courts, there was simply no authority for the decision of the Court below. An appeal was simply not a sufficient remedy for the failure to do justice in the first place. The appellant should be able to look to the courts for relief if he is treated unfairly by the council, regardless of what might have occurred before the senate, had he pursued that route. At the time he was faced with the choice of senate appeal or certiorari he had no assurance that he would be heard by the senate appeals committee. The council committee, whose statutory duty to "hear and decide" was framed in the same terms as senate, had preferred an in camera session from which he was excluded. There was nothing, at the time, to say that senate would not adopt the same attitude.
APPEAL from a judgment of the Court of Appeal for Saskatchewan allowing an appeal from a judgment of Bence C.J.Q.B.[1], wherein writs of certiorari and mandamus were granted against the University of Regina because of its failure to allow the appellant to be heard as to why he felt he had been unjustly refused further opportunity to attend classes at the School of Social Work, University of Regina. Appeal dismissed, Spence, Dickson and Estey JJ, dissenting.
K. E. Norman and W. J. Wardell, for the appellant.
T. C. Wakeling, Q.C., for the respondent.
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The judgment of Martland, Pigeon, Beetz and Pratte JJ. was delivered by
BEETZ J.—This case raises two main issues. The first issue relates to the question whether appellant had the right to be heard by the committee of the university council. The second issue arises from the discretionary nature of certiorari and mandamus; it is whether the Saskatchewan Court of Appeal was right in refusing certiorari and mandamus because appellant should have pursued his right of appeal to the university senate before resorting to prerogative writs.
On the first issue, I agree with my brother Dickson, whose opinion I have had the advantage of reading that, under s. 78(1)(c) of The University of Regina Act, 1974, (the Act), the power exercised by the committee of the university council was quasi-judicial in nature and the committee had a statutory duty to hear appellant, which duty was not complied with. I also agree that all those persons connected with the university who were concerned with appellant's case acted in good faith: the Act was new legislation; by-laws and regulations applying to all the proceedings of the university governing bodies had not yet been enacted and the university council, misapprehending its own statutory position, must have been relying either upon recent and erroneous practice or on practices followed by other universities governed by different statutory provisions.
But I cannot agree that the case is one of elementary justice. Nor do I agree that appellant's application for certiorari and mandamus should have been allowed: appellant had and still has a better alternative remedy in his right of appeal to the senate committee; he ought to have exercised it.
I—The facts
Appellant had enrolled in the Faculty of Social Work, Saskatoon Faculty, for the Fall Semester in 1974 and also in the Winter and Fall Semesters of 1975. He alleges that at the end of the 1975 Fall Semester, he was informed by an instructor that he would no longer be permitted to continue. The Faculty Regulations provided:
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Students who are unable to attain a satisfactory standard in their studies may be required to discontinue or withdraw.
According to the affidavit of Professor Hanowski, chairman of the student progress review committee, appellant had failed to maintain the required 2.5 scholastic grade average for the courses which he had taken during the previous semesters. However no decision had yet been taken with respect to the discontinuation of his studies nor could one be taken unless and until a conference had been held with him to assess his academic situation. Professor Hanowski considered it necessary to hold such a conference, but appellant did what he could to elude it.
There was no oral evidence in the case, but it can be gathered from various letters and notes annexed to Professor Hanowski's affidavit that arrangements had been made. by telephone with someone in appellant's residence for Professor Hanowski and appellant to meet in Saskatoon on January 13, 1976. Before he left for Saskatoon, Professor Hanowski received from appellant on January 12 a letter dated January 19 referring to Professor Hanowski's wish to have an interview with appellant. The letter was to the effect that the matter had been taken to the Provincial Ombudsman whose deputy was to get in touch with Professor Hanowski; in the meanwhile, appellant proposed to attend classes as planned. Nevertheless, Professor Hanowski proceeded to Saskatoon where he did not succeed in meeting appellant in spite of several attempts to contact him by telephone. Professor Hanowski wrote a report dated January 13 where he indicated that the ombudsman's office had confirmed that appellant had registered a complaint against the university; but the ombudsman's office had also advised that they had no jurisdiction in the matter; the professor whose class appellant was to attend was to inform him that he was requested to meet Professor Hanowski before he could proceed with his courses. There followed a letter dated January 19 where Professor Hanowski summarized the preceeding events to appellant and referred to a telephone conversation
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with him on January 15 in which it emerged that appellant was not prepared to indicate when it would be possible for them to meet; Professor Hanowski ended his letter by asking appellant to initiate contact with him. Appellant replied by a letter dated January 21 that there had been a misunderstanding with respect to the appointment of January 13 which had been made for January 8 and that the Ombudsman had come to the realization that an instructor had failed to mark an assignment completely and did not want to mark part of another; appellant suggested that if Professor Hanowski could not come to Saskatoon, another professor could be instrumental in settling the grievance; appellant concluded his reply by saying he was waiting to hear from Professor Hanowski regarding the date of a meeting in Saskatoon. Professor Hanowski heard nothing from appellant but on February 2, he received copy of a letter from Ms. Thérèse E. Lemire to the appellant; Ms. Lemire's status is not clear; she referred to a request made by appellant that she act as his advocate; she advised him to meet Professor Hanowski before going to an appeal board; she encouraged him "to communicate with the school and explore all of the mechanisms that exist within it to settle your difficulties before going to an outside body that doesn't have jurisdiction in these matters in any case"; if after a meeting with Professor Hanowski, appellant still wanted to proceed with a re-evaluation of his work, he could then explore the appeal procedure for a "re-read" within the faculty.
Appellant and Professor Hanowski finally met in Saskatoon on February 2. In his affidavit, Professor Hanowski stated that he advised appellant of his concern as chairman of the student progress review committee and told him that the matter of the appellant's continuance as a student would have to be considered by the Faculty of Social Work Admissions and Studies Committee for final decision.
Professor Hanowski thereafter received from appellant a letter dated February 2 in which appellant wrote: "You told me that the marks were not
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the reason for me being asked to withdraw from the studies completely, but my ideas had a tendency to be neurotic"; appellant also wrote that he had asked for a written reason why he could not continue his studies; this was needed as he intended to seek legal advice regarding his forceful eviction from the university.
The Faculty Committee of Admissions and Studies met on February 23. According to Professor Hanowski's affidavit, he reported to them on appellant's "work, his attitude, his ability and his progress as a student" and, after discussion, a motion was passed to the effect that appellant should receive a letter from the Dean requiring him to discontinue. A registered letter to this effect dated February 27 was accordingly sent to appellant by the Dean; the letter quoted the Faculty Regulations reproduced above relating to a student's cumulative grade point average dropping below 2.5.
Appellant retained counsel at the Saskatoon Legal Assistance Clinic Society. A letter dated March 3 was sent by his counsel to the university president in which one reads:
Attempts to ascertain the reason were unsuccessful. For example, Mr. Harelkin asked Mr. Hanowski for a written statement of explanation, but was refused.
Therefore, Mr. Harelkin wishes to have the provisions of Section 78(1)(c) of The University of Regina Act started or if such a committee has already considered the matter to have an appeal to the Senate under Section 33(1)(f) of the same Act commenced.
I have checked to see if any regulations to the Act have been introduced, but I have not found any in regard to these sections. Therefore, please consider this an application for the appropriate hearing either to the Council or Senate as the case may be.
Section 78(1)(c) of the Act provides that the university council shall:
(c) appoint a committee to hear and decide upon, subject to an appeal to the senate, all applications and memorials by students or others in connection with any faculty of the university;
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Section 33(1)(e) of the Act (to which the lawyer's letter should have referred) provides that the senate shall:
(e) appoint a committee to hear and decide upon appeals by students and others from decisions of the council;
The president replied that the matter was being referred to the university secretary, Mr. Lowery and counsel's request was repeated in a letter addressed to the latter on April 1.
After a further exchange of correspondence between counsel for appellant and the university secretary, the latter wrote on April 29 that he had received a report from the Faculty of Social Work concerning the procedures followed in evaluating appellant's academic performance; in his opinion, the faculty had acted within its jurisdiction in applying its academic performance standards to the appellant who had received due process; the letter continued as follows:
Nonetheless, I am prepared to accept your March 3 and April 1 letters as a formal appeal and will have this matter reviewed by a committee of the University of Regina Council. The Council committee will be asked to review the case in detail to ensure that the Faculty of Social Work approved academic performance standards have been followed and that Mr. Harelkin has received due process.
Following receipt of the report from this Council committee concerning its review of Mr. Harelkin's case, I will forward directly to your attention, a copy of this report. If this report indicates a need for University corrective action in the case of Mr. Harelkin, I will see that this action is undertaken.
Upon the receipt of this letter, appellant's counsel did not inquire as to the date when council committee would meet. Nor did he state that appellant was available or request that appellant be given the right to be present and make representations. I am not intimating that he was legally obliged to do so but his doing so would not have been unusual or extraordinary, given the tenor of the letter's concluding paragraph and the position later taken by appellant.
On October 13, the university secretary wrote to appellant's counsel to advise that the University
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Committee on Admissions and Studies (the committee of the council) had met on September 27 to review the action taken by the Faculty of Social Work in evaluating appellant's academic performance and that on the basis of this review, the following motion had been passed:
"Moved that the University Committee on Admissions and Studies, having reviewed the evidence concerning Mr. George HareIkin, is satisfied that Mr. Harelkin received due process. CARRIED"
On November 29, appellant's counsel replied that they had not been notified of the hearing date as a result of which they had not been allowed to present evidence of appellant; they requested a rehearing of which they should be given notification so that they might be present to give evidence and be heard.
The university secretary responded on December 17 that it had not been the practice to have official representation at such internal hearings and it was not the intention of the university to hold a rehearing of this case.
Appellant's counsel further wrote to the university president on December 22, requesting a rehearing pursuant to s. 78(1)(c) of the Act.
The university secretary replied on January 24, 1977, that there had already been a hearing under s. 78(1)(c) and it was not the university's intention to initiate a rehearing.
In his affidavit, the university secretary stated that he had never received any request from appellant for the implementation of an appeal from the decision of council to the senate.
The certiorari and mandamus proceedings were launched in February 1977. Appellant prayed that the decision taken by the committee of the council on September 27, 1976, be quashed and that a writ of mandamus issue ordering the University to hold a hearing pursuant to s. 78(1)(c) of the Act and to allow applicant to be heard, to present evidence and to be represented by counsel.
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It must be noted that neither in his application for certiorari and mandamus nor in his affidavit did appellant allege or swear that the faculty or the committee of the council were biased, acted in bad faith or were inspired by any improper motive. The sole basis of his application is that he was not heard by the committee of the council. Appellant's letter of February 2, 1976, in which he wrote that he was told that the reason why he was being asked to discontinue was not his marks but his tendency to be neurotic was filed on behalf of the university. It is an unsworn statement upon which appellant did not rely in his pleadings. This unsworn statement, although not specifically contradicted, is not consistent with several paragraphs of Professor Hanowski's affidavit according to which the reason why appellant might be asked to discontinue his studies was his failure to maintain an adequate academic standard. This reason was confirmed by the Dean's letter to appellant dated February 27, 1976. Furthermore, and in reply to questions asked by members of the Court in the course of argument, appellant's counsel answered that what appellant wanted, ultimately and basically, was to have his marks revised after the committee of the council had determined in a properly held hearing, whether the evaluation process was rightly challenged by appellant.
II—Judgments of the Courts below
The learned trial judge, the late Chief Justice Bence, quashed the order of the council committee and directed the university to hold a hearing pursuant to s. 78(1)(c) of the Act, and to allow appellant to be present, to be heard, to present evidence and to be represented by counsel.
His judgment was set aside by the Court of Appeal. Woods J.A., who delivered the unanimous judgment said:
While the general rule is that an application for certiorari will not be entertained where there is a right of appeal, the practice followed in this jurisdiction is set out by Culliton, C.J.S., for this Court in Re Wilfong, (1962), 37 W.W.R. 612 at page 615 as follows:
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"In this province the practice has been that when there is a right of appeal a certiorari should not be granted except under special circumstances".
No special circumstances have been established in this case. The Committee on Admissions decided that the words "to hear and decide upon" did not require it to hear the respondent in person. Whether such an interpretation was right or wrong in law, the Committee acted within its jurisdiction and that same matter will be dealt with on appeal. There is a right of appeal to the Senate and the respondent has not taken advantage of it. In other words, the respondent has not utilized the means of redress provided by the appellant.
I am of the view that the Court of Appeal reached the right conclusion.
The contentions made against the judgment of the Court of Appeal can be summarized in four main propositions: first, failure by the council committee to respect the principle audi alteram partem was akin to a jurisdictional error and the writs should issue ex debito justitiae; second, the decision of the council committee was an absolute nullity from which there could be no appeal to the senate committee; third, even if there could be an appeal to the senate committee, appellant's right of appeal was not an adequate alternative remedy; fourth, the principle audi alteram partem had in this case been given statutory force and the Courts should exercise their discretion with a view to enforcing the statute.
I propose to deal in turn with each of these propositions.
III—Failure to respect the principle audi alteram partem and issuance of the writs ex debito justitiae
The principle that certiorari and mandamus are discretionary remedies by nature cannot be disputed. The principle was recently reaffirmed with respect to certiorari in a unanimous decision of this Court, P.P.G. Industries Canada Ltd. v. The Attorney General of Canada[2], at p. 749. And mandamus is certainly not less discretionary than certiorari:
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The award of the writs usually lies within the discretion of the court. The court is entitled to refuse certiorari and mandamus to applicants if they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty. On applications by subjects for certiorari to remove indictments the courts have always exercised a very wide discretion.
The fact that some of the prerogative writs were discretionary came to be directly linked with their designation as prerogative writs. Thus, in one case, it was said: "An application for mandamus is an application to the discretion of the court; a mandamus is a prerogative writ and is not a writ of right". But although none of the prerogative writs is a writ of course, not all are discretionary. Prohibition, for example, issues as of right in certain cases, and habeas corpus ad subjiciendum, the most famous of them all, is a writ of right which issues ex debito justitiae when the applicant has satisfied the court that his detention was unlawful. These two writs, therefore, are not in the fullest sense writs of grace. (de Smith, Judical Review of Administrative Action, 3rd ed., p. 510).
Over the years, the courts have elaborated various criteria which provide guidance as to how the discretion should be exercised. In the process, the area of discretion has been more or less reduced depending on the circumstances of each case. In some cases, particularly those involving lack of jurisdiction, courts have gone as far as to say that certiorari should issue ex debito justitiae. And, on the more than dubious assumption that cases involving a denial of natural justice, could be equated with those involving a lack of jurisdiction, it has also been said that certiorari should issue ex debito justitiae where there was a denial of natural justice.
The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate. It is based on a contradiction and imports a great deal of confusion into the law.
Ex debito justitiae literally means "as of right", by opposition to "as of grace" (P. G. Osborne, A Concise Law Dictionary, 5th ed.; Black's Law Dictionary, 4th ed.);
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a writ cannot at once be a writ of grace and a writ of right. To say in a case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit Latin, has no magic virtue and cannot change a writ of grace into a writ of right nor destroy the discretion even in cases involving lack of jurisdiction.
A fortiori does the discretion remain in cases not of lack of jurisdiction, but of excess or abuse of jurisdiction such as those involving a breach of natural justice. The following cases are authority to that effect. I refer to them without expressing any view as to whether in each one I would necessarily have exercised the discretion in the same manner.
Regina v. Halifax-Darmouth Real Estate Board[3], was a case of expulsion from a real estate association; the expelled party had apparently not been notified of one of the charges made against him; the order of expulsion was quashed by the trial judge on a certiorari application; his judgment was reversed by the Nova Scotia Court of Appeal on the grounds, inter alfa, that the conclusion that there was a violation of natural justice, if tenable, was very weak and that adequate other remedies were available to the applicant, such as an action for damages for wrongful expulsion.
In Re McGavin Toastmaster Ltd. and Powlowski[4], the Manitoba Human Rights Commission had acted in breach of natural justice: Hall J.A., speaking for the majority of the Manitoba Court of Appeal said at p. 118:
As to the right of appeal by trial de novo, that does not immune that process from judicial review by certiorari proceedings but is a factor to be taken into account in deciding whether the discretion of the Judge on review should be exercised for or against an order of certiorari.
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In that case, the writ was issued but its discretionary nature was recognized.
In Regina v. Aston University Senate[5], students who had failed certain examinations could resit the whole examination or be required to withdraw; certain students who, without being heard, had been required to withdraw applied for certiorari to quash the order asking them to withdraw and for mandamus to compel the university to determine in accordance with law, whether they should be allowed to re-sit examinations or be asked to withdraw. It was held that the university had been in breach of natural justice. But in as much as the prerogative orders were discretionary remedies and should not be made available to those who slept upon their rights, it was held that the applicants by their inaction had forfeited any claim for relief.
Glynn v. Keele University[6] is a case of injunction involving disciplinary action in a university. The applicant had been identified as one of a number of undergraduates who had been seen naked in the precincts of the university. He was punished by the vice-chancellor by a fine of 10 pounds and by exclusion from residence for the ensuing academic year. The vice-chancellor did not give the applicant the opportunity to be heard but wrote to him to inform him of his right to appeal against his decision. The applicant wrote expressing his wish to appeal but he went abroad and, in his absence, the vice-chancellor's decision was upheld by the appeal committee. On his return, the applicant did not ask for a rehearing but sought an injunction restraining the university from excluding him from residence for the remainder of the academic year. Pennycuick V.C. held that the powers conferred on the vice-chancellor of the university to impose the penalties which he did were not merely magisterial powers of a tutor over his pupil and had to be exercised in a quasi-judicial capacity. The vice-chancellor had failed to comply with the requirements of natural justice. Pennycuick V.C. went on at pp. 495, 496 and 497:
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I now have to reach the second decision in this case which I have found of considerable difficulty. It is not I think in doubt that in deciding whether to grant an injunction the court has a judicial discretion and that that judicial discretion is comparable to the judicial discretion exercised in the other division when an application is made to quash a decision of a quasi-judicial body. Upon that matter of discretion I was referred to the judgment of Singleton L.L. Ex parte Fry [1954] 1 W.L.R. 730, 736, and to a very recent decision in the Queen's Bench Divisional Court in Reg. v. Oxford University, Ex parte Bolchover, The Times, October 7, 1970, in which the university had expelled a post-graduate member and he applied for an order of certiorari to quash the decision. In a very short judgment Lord Parker C.J. said:
"The court has carefully considered the papers in this case, and of course, all that you have so ably urged, but at the end of the day we remain unconvinced that the conduct of the hearing before the proctors offended against such rules of natural justice as were applicable in the circumstances. To put it more simply, they are not satisfied that that hearing was unfair".
So far the judgment has no application here, because I have held that there was a failure of natural justice. Then come these most important words:
"But it is only right to add that even if the court felt there might be something to be inquired into, nevertheless as a matter of discretion they would, having regard to the appeal, refuse you leave. In the result leave is refused."
So in that passage Lord Parker C.J. stated plainly that the court has a discretion as to whether to set aside by way of certiorari a decision of a quasi-judicial body even where there has been a failure in natural justice. In another recent case, namely Buckoke v. Greater London Council [1970] 1 W.L.R. 1092, 1097 Plowman J. after quoting Ex parte Fry [1954] 1 W.L.R. 730 said: "In my judgment the ratio decidendi of that case is just as applicable to a claim for an injunction as to a claim for an order of certiorari; both are discretionary remedies."
I have, again after considerable hesitation, reached the conclusion that in this case I ought to exercise my discretion by not granting an injunction. I recognise that this particular discretion should be very sparingly exercised in that sense where there has been some failure in
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natural justice. On the other hand, it certainly should be exercised in that sense in an appropriate case, and I think this is such a case. There is no question of fact involved, as I have already said. I must plainly proceed on the footing that the plaintiff was one of the individuals concerned. There is no doubt that the offence was one of a kind which merited a severe penalty according to any standards current even today. I have no doubt that the sentence of exclusion of residence in the campus was a proper penalty in respect of that offence. Nor has the plaintiff in his evidence put forward any specific justification for what he did. So the position would have been that if the vice-chancellor had accorded him a hearing before making his decision, all that he, or anyone on his behalf, could have done would have been to put forward some plea by way of mitigation. I do not disregard the importance of such a plea in an appropriate case, but I do not think the mere fact he was deprived of throwing himself on the mercy of the vice-chancellor in that way is sufficient to justify setting aside a decision which was intrinsically a perfectly proper one.
In all the circumstances, I have come to the conclusion that the plaintiff has suffered no injustice, and that I ought not to accede to the present action.
Finally, in Regina v. Brighton Justices, Ex p. Robinson[7], a summons against the applicant was heard in her absence. She was ordered to pay a fine which was not paid and she was arrested. Instead of adopting a special statutory remedy available to her and which would have voided the summons and all subsequent proceedings, she applied for an order of certiorari to quash the order against her. Certiorari was granted but Lord Widgery C.J. referred to the special alternative remedy and said at pp. 70 and 71:
The purpose of that section as is well known is that cases of this kind will arise from time to time, and prior to 1967 the only place where relief could be obtained was in this court by means of certiorari, To avoid the necessity for the expense in coming to this court, this simple alternative procedure was put into the Criminal Justice Act 1967. It is vital that those who advise defendants in this position should realise that that power exists, and what it is intended to do, because the remedy of certiorari is discretionary. This court will in future examine applications of this kind with considerable care,
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and will certainly not be minded to grant the discretionary remedy of certiorari to those who have casually failed to take advantage of the new statutory procedure ... we wish to take advantage of this opportunity to make it clear to others hereafter that it is not to be supposed that in these cases an order of certiorari will go as a matter of course. Regard will be had to why the applicant had not used the alternative procedure, and unless a satisfactory explanation is forthcoming the court in future is unlikely to use the discretionary remedy.
This was an obiter, but it carries great weight; it was unanimous and it stated the policy which the Court intended to follow in the future.
IV—Whether the decision of the council committee was a nullity from which there could be no appeal
The proposition that the failure to comply with natural justice renders a decision absolutely null rather than voidable is an old and much mooted one of a somewhat theoretical nature but with far reaching practical consequences. It was raised in Dimes v. Grand Junction Canal[8], where it was held that a decree of Lord Chancellor Cottenham rendered while he was disqualified from sitting as a judge on the ground of interest was merely voidable. But that was a case involving a superior court. The theoretical aspect of the question with respect to an inferior tribunal, was expressed but left unanswered by the Judicial Committee in White v. Kuzych[9], at p. 598:
... is the conclusion of a judicial tribunal acting within its jurisdiction, which is arrived at in a way which amounts to a denial of natural justice, appealable, or, on the contrary, is it simply void and thus not subject to an appeal at all?
If there is nothing to appeal from, certiorari should then issue in all except the rarest of cases for the aggrieved party would have no alternative remedy to cure the injustice. This was the view taken in New Zealand in Denton v. Auckland City[10], and followed in England in Leary v. National Union of Vehicle Builders[11],
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by Megarry J. who criticized the conflicting opinion of this Court in King v. University of Saskatchewan[12], where Spence J., speaking for a unanimous Court, said at p. 689:
Any possible failure of natural justice before the special appeal committee, the executive committee, or the full faculty council, is quite unimportant when the senate, the appeal body under the provisions of The University Act, and also the body in control of the granting of degrees, has exercised its function with no failure to accord natural justice. If there were any absence of natural justice in the inferior tribunals, it was cured by the presence of such natural justice before the senate appeal committee.
A similar matter was considered in Posluns v. Toronto Stock Exchange ([1968] S.C.R. 330), and Ritchie J., giving the reasons for the Court, distinguished the circumstances there present, where the second hearing was one in which the appellant was accorded a full measure of natural justice, from the situation in Ridge v. Baldwin, ([1964] A.C. 40), where, as Lord Reid pointed out at p. 79:
But here the appellant's solicitor was not fully informed of the charges against the appellant and the watch committee did not annul the decision which they had already published and proceed to make a new decision. In my judgment, what was done that day was a very inadequate substitute for a full rehearing.
I am of the opinion that the situation here resembles that in Posluns v. Toronto Stock Exchange, supra, and that the hearing before the senate appeal committee, a small and very able body, was such as accorded the appellant every advantage of natural justice and rendered nugatory any alleged earlier failure to accord him such natural justice in any of the earlier hearings.
In his factum, counsel for appellant invited us either to distinguish this statement on the basis that it applied only to a case such as King, where the appeal had already been taken, or to review King in the light of subsequent decisions such as Leary.
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I fail to see how a distinction based on the fact that the appeal had already been taken could logically meet the theoretical objection; there would still have been no basis for the appeal.
There can be no doubt that the most important feature which distinguishes King from the case at bar is the fact that in King, the appeal had already been taken and the absence of natural justice, if any, had been cured. This was an additional reason for refusing mandamus for, where justice had already been done, there was no point in compelling the university senate to reconsider the matter except inflicting upon the university a symbolic rebuff from the Court. (See, on this and other points, David J. Mullan's comment in (1971) 49 Can. Bar Rev. 624 for which I am much indebted). It is true also that in King what was at stake was the granting of a degree and Spence J. noted that the senate was the ultimate degree granting authority and referred to the resemblance with Posluns a case involving a rehearing rather than an appeal. But the senate committee in King did in practice act in a final appellate capacity and Spence J. expressed a general principle in holding that the denial of natural justice in the earlier proceedings could be cured in appeal, and implicitly but necessarily, that the decision appealed from was not a complete nullity since it could be appealed. (See also Re Clark and Ontario Securities Commission[13], where Wells J.A. of the Ontario Court of Appeal held that the failure to observe the rules of natural justice in initial proceedings could be cured in appeal to an administrative commission; and see Re Polten and Governing Council of the University of Toronto[14], where Weatherston J. in the Ontario Divisional Court said at p. 216, that "if the final appeal is in effect a new trial, and not an appeal in the ordinary sense, I do not see why any want of natural justice in the intermediate appeals is not cured").
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I accordingly find it impossible to distinguish King from Denton and Leary on the question whether the failure to observe natural justice can be cured in appeal, and, also, on the broader and more theoretical question whether such a failure entails the absolute nullity of a first quasi-judicial decision taken against natural justice. King implies that such a decision stands until it is quashed or set aside and it is not therefore, an absolute nullity.
Nor am I inclined to review the King decision.
It is a relatively recent and unanimous judgment of this Court bearing on the same general area of the law. I would be reluctant to change it even if I did not agree with it, which is not the case.
Furthermore, I believe its implicit theoretical foundations to be sound. On the question whether a quasi-judicial decision taken against natural justice is a nullity, I think that the better view was expressed by Lord Devlin in Ridge v. Baldwin, at pp. 138 and 139:
It is argued for the appellant that the effect is to avoid ab initio the decision of the committee. That must mean that the committee had no statutory authority to make any decision at all. If they had, then, although the decision they made might be a bad one and one that could be quashed by the court by virtue of its supervisory jurisdiction over the proceedings of inferior tribunals, it would not be void ab initio but would be good until quashed. To make it void ab initio there must be some condition precedent to the conferment of authority on the committee which has not been fulfilled. It is argued that compliance with the regulations is a condition precedent. It is not expressly made so, and I am not prepared to make the implication. I am very reluctant to imply such a condition where none is expressed, for the utter avoidance of a decision of this sort is a very grave matter. All that has been done on the face of it falls to the ground. Even if the appellant were satisfied with it, it could be impugned by any third party. The court would have no discretion to quash or not to quash. It can only declare to be a nullity that which in law has never been done at all.
at pp. 140 and 141:
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Such tribunals must always be subject to the supervisory jurisdiction of the High Court. But it does not by any means follow that a defect of natural justice sufficiently grave to be a ground for quashing the resulting decision inevitably leads, as in the present case, to a declaration that the decision is void ab initio. It is necessary always to bear in mind the distinction so clearly drawn by Lord Sumner in Rex v. Nat Bell Liquors Ltd. between a wrong exercise of jurisdiction which a judge has and a usurpation of a jurisdiction which he has not. If there is no jurisdiction, the decision is a nullity, whether the court quashes or not. If there is jurisdiction but there has been a miscarriage of natural justice, the decision stands good until quashed. The occurrence of a miscarriage does not require the court to quash if it is satisfied that justice can be done in some other way. (Underlining is mine.)
See also the reasons of the Judicial Committee in Durayappah v. Fernando[15], and see Lord Denning's dictum in Baldwin and Francis v. Patents Tribunal[16], at p. 448:
No tribunal, it is said, has any jurisdiction to be influenced by extraneous considerations or to disregard vital matters. This is good sense and enables the Court of Queen's Bench to receive evidence to prove the error. But an excess of jurisdiction in this sense is very different from want of jurisdiction altogether which is, of course, "determinable on the commencement, not at the conclusion, of the inquiry" (see R. v. Bolton (1841), 1 Q.B. 66 at p. 74). Whereas an excess of jurisdiction is determinable in the course of or at the end of the inquiry. (Underlining is mine.)
(The Baldwin and Francis case was one where certiorari was sought to quash a decision of the Patents Appeal Tribunal on the ground of error on the face of the record. There was no appeal from the tribunal's decision. The majority of the House of Lords held that there was no error on the face of the record. Lord Denning found otherwise in that it appeared that the tribunal had taken into consideration an irrelevant factor and had disregarded a vital one. Such error was traditionally regarded as akin to a jurisdictional error. But Lord Denning took the view that certiorari ought not to issue because applicant had alternative remedies such as the possibility to ask for a rehearing or to sue for infringement.)
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In the case at bar, it cannot be doubted that the committee of the council had jurisdiction to hear and decide upon appellant's application or memorial. There was no want of jurisdiction. In the exercise of this jurisdiction, the committee of the council erred in failing to observe the rules of natural justice. While it can be said in a manner of speaking that such an error is "akin" to a jurisdictional error, it does not in my view entail the same type of nullity as if there had been a lack of jurisdiction in the committee. It simply renders the decision of the committee voidable at the instance of the aggrieved party and the decision remains appealable until quashed by a superior court or set aside by the senate.
To hold otherwise would produce undesirable practical effects. For instance, an aggrieved student who had less time than appellant and who cared more about the expenditure could not appeal directly to the senate; he would have to seek relief from the courts, go back before the committee of the council, and from there to the senate, if need be. A purely conceptual view of absolute nullity which would, in this type of case, cause such inconvenient and impractical results cannot, in my view, be theoretically sound.
Alternatively, I think that the above-quoted motion passed by the council committee on September 27, 1976, to review the action taken by the Faculty of Social Work in evaluating appellant's academic performance can be said to be a "decision" within the meaning of s. 33(1) (e) of the Act. It is a motion whereby the council committee "decided upon, subject to an appeal to the senate, an application or memorial by a student in connection with any faculty of the university" within the meaning of s. 78(1) (c) of the Act. The council committee in effect decided that appellant's application or memorial was without merit and implicitly dismissed it. Even though this decision was arrived at in defiance of natural justice, it nonetheless remained a "decision" disposing of appellant's case and was "subject to an appeal to the senate" pursuant to s. 78(1) (c).
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The Judicial Committee followed the same reasoning in White v. Kuzych, in construing the by-laws of a trade union at p. 600:
The meaning of "decision" in byelaw 26 must be arrived at by examining the byelaws as a whole. The scheme of them manifestly is that members of the union design to settle disputes between a member and the union in the domestic forum to the exclusion of the law courts, at any rate until the remedies provided by the constitution and byelaws, including the opportunity for appeal to the federation, are fully exhausted. If the question has been asked of the respondent, or of any of his fellow-members, "What was the decision of the "general committee?" it cannot be doubted that the answer would have been, not that no decision had been given, but that the decision was to condemn and expel the respondent. And this would be so, not only because it is the natural reply for members of the union to give in the circumstances, but because it would be the right answer. "Decision" in the byelaw means "conclusion". The refinement which lawyers may appreciate between a tribunal's "decision" and a conclusion pronounced by a tribunal which, though within the tribunal's jurisdiction, may be treated, because of the improper way in which it was reached, as no decision at all and therefore incapable of being subject to appeal, cannot be attributed to the draftsman of these byelaws or to the trade-unionists who adopted them as their domestic code.
While in the case at bar we are dealing with a statute and not with the by-laws of a trade union, yet the statute is in a sense the domestic code of the University of Regina and is meant to be applied by laymen rather than by lawyers. It ought not to be construed in any narrow technical way and I am of the view that it bears a construction similar to that of the by-laws in White v. Kuzych.
Furthermore, and even if it can be said that the decision of the council committee was a nullity, I believe it was still appealable to the senate committee for the simple reason that the senate committee was given by statute the power to hear and decide upon appeals from the decisions of the council, whether or not such decisions were null. In Provincial Secretary of Prince Edward Island v. Egan[17], a county court judge had reversed in appeal the decision of the Provincial Secretary to
[Page 587]
refuse a licence to Egan. There was no right of appeal to the county court judge but his decision was appealable to the Supreme Court of Prince Edward Island and it was held that the latter court should have allowed the appeal and set aside the decision of the county court judge. Sir Lyman Duff C.J. wrote at p. 399:
The fact that the Country Judge has acted without jurisdiction does not, in my opinion, affect this right of appeal. Once the conclusion is reached that the section intends to give an appeal to the Supreme Court, even where the County Court Judge is exercising a special jurisdiction and not as the County Court, I can see no reason for limiting the scope of the appeal in such a way as to exclude questions of jurisdiction. As the Attorney-General observed in the course of his argument, lawyers are more familiar with the practice of dealing with questions of jurisdiction raised by proceedings by way of certiorari and prohibition. A tribunal exercising a limited statutory jurisdiction has no authority to give a binding decision upon its own jurisdiction and where it wrongfully assumes jurisdiction it follows, as a general rule, that, since what he has done is null, there is nothing to appeal from. But here we have a statute and this is only pertinent on the point of the meaning and effect of the statute.
It has always seemed to me that the proceeding by way of appeal would be the most convenient way of questioning the judgment of any judicial tribunal whose judgment is alleged to be wrong, whether in point of wrongful assumption of jurisdiction, or otherwise. There is no appeal, of course, except by statute and, I repeat, the question arising upon this point is entirely a question of the scope and effect of this statute.
V—Whether appellant's right of appeal to the senate committee was an adequate alternative remedy—The balance of convenience
On this point, the learned trial judge said:
I have no way of knowing whether or not the failure to render natural justice could be cured on the appeal as indicated by Spence J. in King v. University of Saskatchewan, 68 W.W.R. p. 745. I feel I should not speculate on that possibility. There is nothing in the appeal procedure in the instant matter whereby the Senate is required "to hear".
In my respectful opinion, this statement contains two errors.
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First, it is clear that the senate was required to hear appellant, as was the council, since the same wording, "to hear and decide" is found both in s. 33(1)(e) and in s. 78(1)(c); having rightly decided upon the basis of that wording, that the council was required to hear appellant, the learned trial judge could not, without contradicting and misdirecting himself, hold that there was nothing in the appeal procedure whereby the senate was required to hear appellant. As was indicated by the Court of Appeal:
Counsel for the University points out that the senate committee would, on an appeal in the instant matter, deal with precisely the same problem as that which was before the committee and also raised here in that it would have to interpret the words "to hear and decide upon". (Underlining is mine.)
Second, in declining to evaluate, difficult as it may have been, whether or not the failure to render natural justice could be cured in the appeal, the learned trial judge refused to take into consideration a major element for the determination of the case, thereby failing to exercise his discretion on relevant grounds and giving no choice to the Court of Appeal but to intervene.
In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of a previous finding, expeditiousness and costs.
It does not appear that at the relevant time there was any by-law in force relating to the procedure before the senate appeals committee. Section 95 of the Act provides that the by-laws of the senate as it was constituted pursuant to The University Act, 1968, (relating to the University of Saskatchewan) shall continue to apply to the senate until they are altered by the senate, but we were not referred to any such by-laws and we must
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assume that there were none relating to the appeal procedure.
By-laws relating to this subject were approved by the senate on February 25, 1978, after leave to appeal to this Court was granted. Counsel for the university was permitted to file them by leave of this Court. They provide for a committee membership of seven voting members, the chancellor, the vice-chancellor, three lay members and two student members of the senate. The grievor is to receive notice of the hearing. Subsections 4.2.6 and 4.2.7 read as follows:
6. The grievor and the University may be represented by counsel at these hearings and evidence may be presented by either the grievor or the University through such documents or witnesses as the parties may call for this purpose.
7. The grievor shall have the responsibility of presenting the initial case in support of the grievance set forth in his/her request for the hearing.
In my view, appellant was not entitled to assume that, because of the lack of such by-laws at the relevant time, the senate committee would have denied him a hearing within the meaning of s. 33(1)(e) of the Act. Nor should he have assumed that, since of the governing bodies of the university had erroneously failed to comply with the principles of natural justice, another governing body of superior jurisdiction would do the same. He should on the contrary have assumed that the body of superior jurisdiction would give him justice, as was held by the Judicial Committee in White v. Kuzych at p. 601:
Their Lordships are therefore constrained to hold that the conclusion reached by the general committee was subject to appeal. And they must respectfully repudiate both the correctness and the relevance of the view that it would have been useless for the respondent to appeal because the federation would be sure to decide against him. They see no reason why the federation, if called on to deal with the appeal, should be assumed to be incapable of giving its honest attention to a complaint of unfairness or of undue severity, and of endeavouring to arrive at the right final decision.
Section 33(1)(e) of the Act does not spell out the detailed powers of the senate appeals committee but there is no reason to doubt that such
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powers comprise the ordinary powers of an appellate jurisdiction including, if the appeal be allowed, the power to set aside the decision of the council committee and render on the merits the decision that the council committee should have rendered or send it back before the council committee for a proper hearing. There is thus no jurisdictional lacuna in the senate committee which could have prevented it from giving full justice to appellant.
On the other hand, in the context of a statute providing for the constitution of a body such as a university, there is every reason to construe the word "appeal" in the most flexible manner with respect to the mode of appeal, and as capable of meaning "review", "retrial" or "new trial". One should also expect that, in this context, an appeal is more likely to take a form resembling that of a trial de novo than that of a "pure" appeal. There are three main reasons for this. First, nothing in the Act nor in the new by-laws indicates that the council committee's record shall be transferred to the senate committee on an appeal from a council committee decision. Second, university bodies like the Faculty of Social Studies and the council are not courts of records. Such records as they keep are not kept for the sole purpose of facilitating quasi-judicial proceedings, appeals or review. They ordinarily consist of terse minutes, bare resolutions and concise documents. Given these circumstances, the senate committee should in practice have to try a case anew in a great number of situations. Subsection 4.2.6 of the new senate by-laws, quoted above, illustrates this point: it does not merely empower the senate committee to hear additional or new evidence as pure appellate jurisdictions sometimes do; it is broad enough to enable the senate committee to try the case afresh. The third reason why an "appeal" within a university should not be given a restricted or technical meaning flows from the fact that the members of a university appeal committee are not usually trained in the law. Even in cases where they would not be called upon to hear any evidence, they would . be almost irresistibly inclined to "re-try" the case, apart from any finding in the impeached decision. This inclination is so strong that professional appellate courts sometimes find it difficult
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to resist. It would be more realistic to expect that a body of laymen would abide by technically less strict standards than a professional court of appeal.
In the case at bar, in so far as an appeal to the senate committee would have taken the form of a trial de novo, appellant would not have been confronted with the adverse finding of the council committee. But even if this appeal to the senate committee had not taken the form of a pure trial de novo, appellant would still not have been confronted with such an adverse finding, since the senate committee would have been bound, as a matter of law, to set aside the decision of the council committee which was vitiated by the failure to hear appellant. Again it should not be presumed that the senate committee would have erred in law and decided that appellant was not entitled to be heard by the council committee. It must be assumed that the senate committee would have reached the correct decision and, if it did not, a superior court could quash its decision.
In the result, appellant's position before the senate committee, unencumbered by any valid finding of the council committee, would have been similar to his initial position before the council committee. The only finding against him, if it can be called a finding, would have been that of the Faculty of Social Work. But this finding was already before the council committee. Appellant being the grievor, would have had the burden of establishing that his examination papers had been improperly marked; again this burden would have been upon him before the council committee.
As to the contention that difference in membership between the senate committee and the council committee should result in a difference in approach to the issue, it does not in my view carry great weight. Appellant could not expect the members of either committee themselves to read and re-mark his examination papers. This could not be part of their function and they would be unable to do so, the members of the council committee because they would in the main be academics of different disciplines, and the members of the senate committee, because they would be students and lay members. Assuming also that academic
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expertise was useful or necessary to decide the case, there would have been no lack of such expertise in a university and it would have been equally available to the senate committee and to the council committee, in the form of expert testimony. Furthermore, the legislature in its wisdom has decided that the lay body of the senate committee should occupy a position superior to that of the academic or expert body of the council committee. I fail to see how appellant could complain that his case be decided by the body whom the legislature has placed in the superior position.
For the same reasons, I do not see much substance in the assertion that appellant was in effect deprived of his right of appeal to the council committee. This may be so, but it is of little importance where the superior appellate jurisdiction is equipped with the means to remedy all injustices.
I have reached the conclusion that appellant's right of appeal to the senate committee provided him with an adequate alternative remedy. In addition, this remedy was in my opinion a more convenient remedy for appellant as well as for the university in terms of costs and expeditiousness.
If appellant had followed throughout the wise counsel given to him at the beginning by his advocate Ms. Lemire to settle his difficulties with the mechanisms which existed within before going to an outside body, he would have saved a great deal of time and money. But he has from the start shown a preference for external forums beginning with the Ombudsman and hindering the initial review of his academic situation. He has now gone before three Courts. Three years after the event, the merits of his case remain undetermined from an academic point of view. Furthermore, and as was conceded by his counsel, there remains some uncertainty as to the modalities of a hearing before the council committee, more particularly with respect to his right to counsel. His counsel did not foreclose the right to challenge any decision of the council committee on this point. It is therefore possible that if appellant were successful in this Court and the council committee refused him permission to be represented by counsel, appellant would, instead of going before the senate committee,
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again apply for certiorari and mandamus with consequential appeal and that a few more years and considerably more money would be lost before a final determination of his case could even be considered. If this is the law, then the law has reached a dangerous stage of complication for all of appellant's difficulties could have been resolved fairly, within a reasonable time and at little cost to himself and to the university had he simply wanted to use all the remedies put at his disposal by the Act.
The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right. I believe the correct view was expressed by O'Halloran J. in The King ex rel. Lee v. Workmen's Compensation Board[18], at pp. 677-678 dealing wih mandamus but equally applicable to certiorari:
Once it appears a public body has neglected or refused to perform a statutory duty to a person entitled to call for its exercise, then mandamus issues ex debito justitiae, if there is no other convenient remedy ... If however, there is a convenient alternative remedy, the granting of mandamus is discretionary, but to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice ... (Underlining is mine.)
This passage was quoted with approval by the British Columbia Court of Appeal in Regina v. Spalding[19], at p. 382, in which it was held that the failure to respect the principle of natural justice in first instance could not be cured by the exercise of a right of appeal where the latter, apart from risking of being futile, could not be exercised except at considerable expense and inconvenience. It is not the case here. (O'Halloran J. also said in Lee that mandamus ws not to be regarded as a secondary or unusual remedy but as a speedy, inexpensive and efficacious remedy; times have changed and certainly in this case, an appeal to the senate committee would be speedier than mandamus and certiorari, less expensive and as efficacious.)
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One last point should be mentioned in relation to appellant's right to alternative remedies, namely appellant's right to a rehearing before the council committee. It will be recalled that appellant's counsel had unsuccessfully asked for a rehearing, and this is a factor which must be weighed together with all the others. Thus, in Glynn v. Keele University, Pennycuick V.C. said at p. 495, that the result might have been different had the applicant applied for a fresh hearing to the appeal council. Lord Denning was of the same view in the Baldwin and Francis case. But in both cases, the applicant had already reached the ultimate appellate level and had nowhere else to go, whereas in this case, the senate committee exercised the ultimate appeal jurisdiction and the mode of redress prescribed by the Act is not a rehearing by the council committee but an appeal to the senate committee. It is also arguable that fresh consideration of the issues involved by another body of superior jurisdiction may be preferable to a rehearing by the tribunal which had previously ruled against appellant. Accordingly, the council committee's refusal to grant a rehearing to appellant is not a sufficient reason, in my view, for issuing certiorari and mandamus.
VI—Statutory force of the rule audi alteram partem
Appellant's counsel has laid considerable stress on the fact that the duty of the council committee to hear appellant was imposed by statute; the submission was that in such a case, the courts should not decline to enforce the statute but ought to exercise their discretion, if any, so as to uphold it. Smith v. The Queen[20] was relied upon.
I do not agree with this submission. The statute must be read as a whole and effect must be given to its provisions in accordance with its general scheme.
The Act incorporates a university and does not alter the traditional nature of such an institution as a community of scholars and students enjoying substantial internal autonomy. While a university incorporated by statute and subsidized by public funds may in a sense be regarded as a public
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service entrusted with the responsibility of insuring the higher education of a large number of citizens, as was held in Polten, its immediate and direct responsibility extends primarily to its present members and, in practice, its governing bodies function as domestic tribunals when they act in a quasi-judicial capacity. The Act countenances the domestic autonomy of the university by making provision for the solution of conflicts within the university. Thus, s. 55 provides:
The senate may make provision for the hearing and final determination of all appeals and complaints respecting the election of its members and the election of the chancellor.
Section 66 has a similar purpose:
Where any question arises respecting the powers and duties of convocation, the senate, board, council or any officer or servant of the university, the question shall be settled by a committee composed of the chancellor, the president and the board chairman.
Furthermore, s. 78(1)(c) contains within itself the qualification that the power of the council committee to hear and decide upon all applications and memorials by students, is "subject to an appeal to the senate". These words give weight to the proposition that the legislator attached importance on the student proceeding through the stages established by the Act for the protection of student interests.
Sections 78(1)(c) and 33 (1)(e) are in my view inspired by the general intent of the Legislature that intestine grievances preferably be resolved internally by the means provided in the Act, the university thus being given the chance to correct its own errors, consonantly with the traditional autonomy of universities as well as with expeditiousness and low cost for the public and the members of the university. While of course not amounting to privative clauses, provisions like ss. 55, 66, 33(1)(e) and 78(1)(c) are a clear signal to the courts that they should use restraint and be slow to intervene in university affairs by means of discretionary writs whenever it is still possible for the university to correct its errors with its own institutional means. In using restraint, the courts
[Page 596]
do not refuse to enforce statutory duties imposed upon the governing bodies of the university. They simply exercise their discretion in such a way as to implement the general intent of the Legislature. I believe this intent to be a most important element to take into consideration in resolving the case, and indeed to be a conclusive one, when taken in conjunction with the others.
I do not think that the Smith case precludes me from reaching this conclusion. Smith had been found a delinquent. Although he could appeal by leave of a judge of the Court of Queen's Bench, he applied for certiorari to quash the finding on the ground that his parents had not been properly served with a notice of hearing as was prescribed by a provision of the Juvenile Delinquents Act. The finding of delinquency was quashed by this Court.
It is true that Kerwin C.J., speaking for himself and Judson J., said at p. 644:
Nor is it an answer to say that the granting of a writ of certiorari is a matter of discretion. No such question arises where the terms of a statute have not been complied with.
But the majority adopted a somewhat different approach. Locke J., speaking for himself and Martland J., help at p. 649, that compliance with the relevant provisions of the Juvenile Delinquents Act was a condition precedent to the Juvenile Court judge acquiring jurisdiction. He did not say that there was no discretion. Cartwright J., as he then was, took the view that the failure to give notice to appellant's parents was an essential preliminary, in the absence of which the Juvenile Court judge had acted without jurisdiction. And he concluded at p. 651:
As to the suggestion that the writ of certiorari should be refused in this case as a matter of discretion, in my opinion the rule by which the Court should be guided is
[Page 597]
accurately stated in the following passage in Halsbury's Laws of England, 3rd ed., vol. 11, p. 140:
Although the order is not of course it will though discretionary nevertheless be granted ex debito justitiae, to quash proceedings which the Court has power to quash, where it is shown that the Court below has acted without jurisdiction or in excess of jurisdiction, if the application is made by an aggrieved party and not merely by one of the public and if the conduct of the party applying has not been such as to disentitle him to relief; .. .
In my opinion, this is clearly a case in which the writ should be granted.
I am not prepared to construe s. 78(1)(c) of the Act as making compliance with the council committee's duty to notify and hear appellant a condition precedent to the council committee acquiring jurisdiction. And, given the reasons of the majority in Smith, I do not believe that case to stand as an authority for the proposition that we are deprived of our discretion in this case. The finding of delinquency against Smith was made by a Court and it was equivalent to a criminal conviction (see Morris v. Her Majesty The Queen[21]. Such a finding is quite unlike the conclusion of a university committee that a student has received due process in a university examination. Furthermore, Smith did not have a right of appeal but only the right to apply for leave to appeal to the same Court of Queen's Bench which had jurisdiction in certiorari, so that his choice was between two discretionary remedies which were in effect nothing but two alternative procedures for seeking redress from the same Court. On the contrary, appellant was entitled to appeal to the senate committee as of right and this was an appeal to a domestic tribunal, not to a court, a very different remedy which he had no valid reason not to pursue directly.
VII—Conclusion
I would dismiss the appeal with costs.
[Page 598]
The judgment of Spence, Dickson and Estey JJ. was delivered by
DICKSON J. (dissenting)— The issue in this case is one of elementary justice. The point of it all can be quite shortly stated. A university student was required by university authorities to discontinue his studies. The University Act provided an appeal to a committee of the university council, obligated to "hear and decide". The committee heard one side—the university—and decided adversely to the student, all in the absence of the student. The student did not know what was placed against him in the committee nor was he afforded an opportunity to correct or contradict any statement prejudicial to his position. It is contended on the part of the university that the student was not damnified because he has a further appeal to a committee of the senate of the university also charged with the duty, on appeal, to "hear and decide". The trial judge rejected the contentions of the university. He granted certiorari quashing the order of council. The Court of Appeal for Saskatchewan reversed, holding that, where there is a right of appeal, certiorari should not be granted except under special circumstances and no special circumstances were established.
The facts, in somewhat more detail, are as follows. Mr. Harelkin was enrolled in the School of Social Work, Saskatoon Faculty, University of Regina, in 1974 and 1975. According to the affidavit of Associate Professor Arvey Hanowski, chairman of the student progress review committee of the Faculty of Social Work, Mr. Harelkin failed to maintain the 2.5 scholastic average for the semesters he attended. Professor Hanowski informed Mr. Harelkin that his marks were below accepted standards and that he would not be permitted to continue in the Faculty of Social Work until he had discussed the matter in detail with Professor Hanowski. At a later date, Professor Hanowski and Mr. Harelkin met in Saskatoon. Following the meeting, Mr. Harelkin wrote a letter to Professor Hanowski in which he said: "You told me that the marks were not the reason for me being asked to withdraw from the studies completely,
[Page 599]
but that my ideas had a tendency to be neurotic". This statement by Mr. Harelkin of what had been said at the meeting by Professor Hanowski is uncontradicted.
Professor Hanowski reported to the committee of admissions and studies on Mr. Harelkin's marks and attitude, and upon his ability and progress as a student. After a full discussion, the committee agreed that Mr. Harelkin should receive a letter from the Dean requiring him to discontinue. The admissions committee did not hear from Mr. Harelkin save through Professor Hanowski.
By letter Mr. Harelkin was formally advised that he was "Required to Discontinue" his studies in the Faculty of Social Work as a result of a review of his standing by the faculty committee of admissions and studies, and a regulation reading:
If at any point in the programme a student's Cumulative Grade Point Average drops below 2.5 a conference will be held with him to assess his academic situation.
Students who are unable to attain a satisfactory standard in their studies may be required to discontinue or withdraw.
Correspondence then ensued between the Saskatoon Legal Assistance Clinic Society, acting on behalf of Mr. Harelkin, and university authorities. A letter written by the lawyers to the president of the university contains this paragraph:
Therefore, Mr. Harelkin wishes to have the provisions of Section 78(1) of The University of Regina Act started or if such a committee has already considered the matter to have an appeal to the Senate under Section 33(1)(f) of the same Act commenced.
The request was repeated in a letter to the secretary of the university.
Section 78(1)(c) of The University of Regina Act, 1974, 1973-74 (Sask.), c. 119, provides that the University of Regina Council shall:
(c) appoint a committee to hear and decide upon, subject to an appeal to the senate, all applications and memorials by students or others in connection with any falculty of the university;
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The reference in the lawyer's letter to s. 33(1)(J) should, I believe, read s. 33(1)(e), which provides that the senate of the university shall:
(e) appoint a committee to hear and decide upon appeals by students and others from decisions of the council;
The university secretary replied:
In my opinion, the Faculty of Social Work acted within its jurisdiction in applying its approved academic performance standards to Mr. Harelkin and further, that Mr. Harelkin has received due process.
Nonetheless, I am prepared to accept your March 3 and April 1 letters as a formal appeal and will have this matter reviewed by a committee of the University of Regina Council. The Council committee will be asked to review the case in detail to ensure that the Faculty of Social Work's approved academic performance standards have been followed and that Mr. Harelkin has received due process.
Following receipt of the report from this Council committee concerning its review of Mr. Harelkin's case, I will forward directly to your attention, a copy of this report. If this report indicates a need for University corrective action in the case of Mr. Harelkin, I will see that this action is undertaken.
It was urged in argument that there was an obligation on Mr. Harelkin, upon receiving this letter, to ask for notice of the meeting of the council committee and for the right to be present and make representations. That submission entirely misconceives the procedural burden resting upon any tribunal charged with the responsibility to "hear and decide". Such a tribunal must give notice to all interested parties of, minimally, the date, time and place of the hearing. In the present case no notice, of any description, was given by the tribunal to the person most affected by the outcome of the hearing, the student.
Five and one-half months after the letter from the university secretary was received, the university secretary wrote again:
The University Committee on Admissions and Studies reviewed Mr. Harelkin's case at its meeting, Monday, September 27, 1976. The Committee reviewed the action taken by the Faculty of Social Work in evaluating Mr. George Harelkin's academic performance and compared this action with the Faculty of Social Work's
[Page 601]
approved academic performance standards. On the basis of this review, the following motion was passed:
Moved that the University Committee on Admissions and Studies, having reviewed the evidence concerning Mr. George Harelkin, is satisfied that Mr. Harelkin received due process. CARRIED
Mr. Harelkin's legal advisers wrote in reply:
We were not notified of the hearing date and as a result were not allowed to present evidence on Mr. Harelkin's behalf. We would appreciate your advising as to when this matter might be reheard and we might be given notification so that we might be present to give evidence and be heard with respect to the matter.
The university secretary responded:
It has not been the practice of the University to have official representation at such internal hearings and it is, therefore, not the intention of the University to schedule a re-hearing of this case.
Although, in a very general sense, hearings of the nature of those under consideration are "internal", the powers exercised are quasi-judicial in nature. Where statutory duties are imposed upon university committees and tribunals, those duties are public duties and the ordinary courts will enforce, and control compliance with, the statute. That was decided by this Court in King v. University of Saskatchewan[22], p. 683.
The correspondence concluded with a letter to the president of the university, reading in part:
I am writing to you personally to advise that our office feels that Mr. Harelkin has been refused a fair hearing and that this is contrary to the principles of natural justice. I would ask that you intervene to see that a proper hearing is constituted and that we be given sufficient notification so that we might be present and present evidence. It is my view that a hearing pursuant to Section 78(1)(c) is appropriate in the circumstances and we formally request that you see that such a hearing is constituted.
[Page 602]
To which the university secretary replied:
I have considered your letter of December 22nd, and wish to point out there has already been a hearing under section 78(1)(c) which resulted in the motion you were informed of under date of October 13, 1976. It was the unanimous view of that committee that Mr. Harelkin had received a fair hearing, and it is not the University's intention to initiate a re-hearing before that Committee.
It is apparent that the university recognized a duty to hold a hearing pursuant to s. 78(1)(c) of The University of Regina Act. A hearing was held. Without giving an audience to the student or to anyone on his behalf, the committee, for reasons which, I confess, escape me, reached the conclusion that the student had had a fair hearing.
The Iate Chief Justice Bence, before whom the matter came on a motion for certiorari and mandamus, quashed the order of the council committee. He directed the university to hold a hearing, pursuant to s. 78(1)(c) of The University of Regina Act, 1974, and to allow the applicant to be present, to be heard, to present evidence and to be represented by counsel, with respect to the refusal of the School of Social Work to allow him to pursue further studies.
As to the words "to hear" in s. 78(1)(c), the Chief Justice had this to say:
It is my view that the key to the issue is contained in the words "to hear" in section 78(1)(c) of the Act.
The respondent contends that it is not the practice of the Council "to hear" the applicant.
It may very well be that in the nature of things it is difficult to give a student a personal hearing on every application. It might also be said that "to hear" does not necessarily mean to have the applicant present.
In the first place, if the legislators believe it was not intended "to hear" the applicant, then the words should not have been used. In the meantime, I am required to give effect to the clear meaning of those words.
Secondly, it is my belief that "to hear" must surely mean all relevant testimony and representations both written and oral.
The view of the Chief Justice on this point is reinforced, I should think, by the fact that the
[Page 603]
legislation affecting the University of Saskatchewan was altered in 1968, from the earlier requirement of the council to "deal with and decide" such matters (The University Act, R.S.S. 1965, c. 181, s. 76(c)) to its present form "to hear and decide" (The University Act, 1968, 1968 (Sask.), c. 80, ss. 76(1)(h) and 80 (1)(c), continued in The University of Regina Act, 1974, supra, s. 78(1)(c)).
On the point as to whether the applicant should be forced to pursue his right to appeal to the senate of the university before resorting to a prerogative writ, the Chief Justice said:
I have no way of knowing whether or not the failure to render natural justice could be cured on the appeal as indicated by Spence J. in King v. University of Saskatchewan, 68 W.W.R. p. 745. I feel I should not speculate on that possibility. There is nothing in the appeal procedure in the instant matter whereby the Senate is required "to hear". In addition to that, if it is only right that the applicant should be heard in the first instance, it seems to me only proper that the appeal should be taken in the light of a proper hearing having been held.
In my opinion there was a failure to afford natural justice to the applicant under the provisions of section 78(1)(c).
Parenthetically, it should here be stated that during argument on this appeal and by leave of this Court, counsel for the university was permitted to file by-laws approved by the senate of the University of Regina on February 25, 1978, relating to procedure before the senate appeals committee. The by-laws were passed at a date later than that of the decision of the Saskatchewan Court of Appeal and, indeed, after leave to appeal to this Court was granted. The by-laws provide that the committee is to comprise three lay members and two student members of senate with the chancellor and vice-chancellor as ex officio members. The grievor is to receive notice of hearing and he has the right to be represented by counsel and present evidence through documents or witnesses. The grievor has the responsibility of presenting the initial case in support of the grievance set forth in his request for a hearing.
[Page 604]
The judgment of Chief Justice Bence was appealed and reversed. Mr. Justice Woods, speaking for the Court of Appeal, said:
While the general rule is that an application for certiorari will not be entertained where there is a right of appeal, the practice followed in this jurisdiction is set out by Culliton, C.J.S., for this Court in Re Wilfong (1962), 37 W.W.R. 612 at page 615 as follows:
In this province the practice has been that when there is a right of appeal a certiorari should not be granted except under special circumstances.
No "special circumstances" have been established in this case. The Committee on Admissions [Committee of Council?] decided that the words "to hear and decide upon" did not require it to hear the respondent in person. Whether such an interpretation was right or wrong in law, the Committee acted within its jurisdiction and that same matter will be dealt with on appeal. There is a right of appeal to the Senate and the respondent has not taken advantage of it. In other words, the respondent has not utilized the means of redress provided by the appellant.
As I understand the judgment of the Court of Appeal, three grounds are relied upon by the Appeal Court in denying Mr. Harelkin the right, which the statute plainly gives him, namely the right to be heard by the committee of council:
(1) the absence of "special circumstances";
(2) the committee acted within its jurisdiction, rightly or wrongly;
(3) Mr. Harelkin had an unexploited right of appeal to the senate of the university.
With respect, in my opinion, the Court of Appeal was in error in relying on any of these grounds, for these short reasons:
(1) the principle of exclusion of certiorari in the absence of "special circumstances", where there is a right of appeal, applies only to errors within jurisdiction;
(2) a decision made without natural justice is not a decision within jurisdiction;
(3) when a tribunal so acts without jurisdiction, certiorari will be granted ex debito justitiae, notwithstanding a right of appeal to another administrative tribunal.
[Page 605]
The decision of the Court of Appeal rests on Re Wilfong, supra, to say that certiorari will generally be refused in the absence of special circumstances where there is a further right of appeal. But Re Wilfong itself expressly limited this principle to non-jurisdictional errors. Re Wilfong speaks only to the appropriate posture on judicial review when the error alleged is not jurisdictional and when there is a full appeal to the ordinary courts which has not been taken. In Re Wilfong, the applicant had a full de novo appeal to the Court of Queen's Bench from the decision of the Director of Child Welfare. Culliton J.A., distinguishing the judgment of this Court in Smith v. The Queen[23], said, p. 614:
With all respect, I do not think the principle adopted in Reg. v. Gerald X (or G. S.), supra, is applicable to this case. The Supreme Court held in that case that where the court had acted without jurisdiction, or in excess of jurisdiction, the order, though discretionary, would be granted ex debito justitiae. In my view there is a great difference between the case where the court so acts, and the case where the court, acting within its jurisdiction, makes an order which may be bad in law: Vide Rex v. Stafford JJ., [1940] 2 K. B. 33, 109 LJKB 584; and Reg. v. Campbell, [1956] 1 WLR 622, [1956] 2 All ER 280. In the former case the right to proceed by way of certiorari is granted ex debito justitiae, but in the latter, this is not necessarily so.
The conclusion to this appeal can be reached, I venture to think, by a series of propositions which in my view are fully supported by the authorities, namely:
(1) A statutory duty resting upon a committee "to hear and decide" imports, at the very least, a duty to afford the parties an opportunity to be heard.
As used in The University of Regina Act the word "hear" must mean "to listen judicially to" or "to give audience to". It is an exercise of the auditory faculty. "To hear", in respect of a tribunal charged with the duty of deciding something, means to hear both sides.
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Viscount Haldane L. C. in Local Government Board v. Arlidge[24] had this to say, at p. 132:
My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice.
And in R. v. Architects' Registration Tribunal[25], at p. 138, Lewis J. observes:
The principle is that a person before a tribunal of this character should, to use the words of Lord Greene, M. R. at p. 290, ([1944] 1 All E. R., at p. 181), in R. v. The Archbishop of Canterbury ([1944] 1 K. B. 282; [1944] 1 All E. R. 179; 113 L.J.K.B. 179; 170 L.T. 115), have:
... a real and effective opportunity of meeting any relevant allegations made against him.
If that is not done in a case where the committee or tribunal concerned is a quasi-judicial tribunal, then it is contrary to natural justice and the infringement of the rule that justice must always "be seen to be done".
These passages were cited with approval in Knapman v. Board of Health for Saltfleet Township[26] by Gale J. whose reasoning was adopted on appeal to this Court[27].
Although I have no doubt that all of those persons connected with the university who were concerned in the decision affecting Mr. Harelkin acted in good faith, they would appear to have misapprehended the statutory position of the university and to have paid scant heed to the rights to which the student was entitled by statute and in common fairness.
The university is in the embarassing position in this case of arguing, for the purpose of enhancing the role of the senate committee, that the words "to hear and decide upon", as applied to the senate, import a duty to hold a proper hearing, but, for the purpose of attenuating the role of the
[Page 607]
council committee, that the same words, as applied to the council, import no such duty.
Mr. Harelkin was entitled to know why he was being expelled—be it unsatisfactory marks, as stated in the Dean's letter, or a tendency to be neurotic in his ideas, as stated by Professor Hanowski. And he was entitled to respond to and correct any statements prejudicial to his position. In failing to afford that opportunity, the committee of council breached the audi alteram partem rule and Mr. Harelkin was denied natural justice.
(2) Procedural error in failing to hold a hearing pursuant to statutory duty is "error going to jurisdiction" and not "error within jurisdiction".
Support for the foregoing distinction will be found in the analysis of Diplock L.J. in Anisminic Ltd. v. Foreign Compensation Commission[28]. See also Re Wilby and Minister of Manpower and Immigration[29], at pp. 150-51 (F.C.A.) (appeal dismissed: [1978] 1 S.C.R. 490); (1977), 55 Can. Bar. Rev. 718, at pp. 726-28; Wade, (1967), 83 L.Q.R. 499 and (1968), 84 L.Q.R. 95. In the Knapman case, Gale J. said, p. 774:
... the Board violated the principles of natural justice and thereby disclaimed the jurisdiction to which it would otherwise have been entitled.
In the third edition of Professor de Smith's book on Judicial Review of Administrative Action, the following passage appears at pp. 209-210:
Although breaches of natural justice used to be assignable as "errors in fact," a ground of challenge presupposing that the impugned order was merely voidable, there is a substantial body of recent judicial decisions to the effect that breach of the audi alteram partem rule goes to jurisdiction (or is akin to a jurisdictional defect) and renders an order or determination void. That this is the better opinion is indicated by the following propositions: formulae purporting to exclude judicial review are ineffective to oust review of determinations tainted by breach of the rule; a determination thus tainted can be collaterally impeached by mandamus; recourse to administrative or domestic appellate procedures is not a necessary preliminary to impugning the determination
[Page 608]
in the courts; prior recourse to such procedures is not to be construed as a waiver of the breach, nor can an appeal in the strict sense cure the vice of the original determination for one cannot appeal against a nullity and the appellate proceedings should also be treated as void.
Professor de Smith proceeds on the assumption (p. 131) that breach of natural justice goes to jurisdiction (or is closely akin to jurisdictional error) and makes a decision void.
Other cases which might be mentioned in support of the same proposition are Tippett v. International Typographical Union[30] at p. 543; Lapointe v. L'Association de Bienfaisance et de Retraite de la Police de Montréal[31]. Authorities other than Canadian, which might be cited are Ridge v. Baldwin[32]; Denton v. Auckland City[33]; McCarthy v. Grant[34]; at pp. 1021-22; Hoggard v. Worsborough U.D.C.[35]; Kanda v. Government of Malaya[36].
In my opinion, the error of the council committee was not a mere error of law within jurisdiction. Failure to hear Mr. Harelkin went to the "very root of the determination" of the committee and, as such, amounted to jurisdictional error.
(3) Where there has been a denial of natural justice (and hence a lack of jurisdiction) certiorari will issue, notwithstanding a right of appeal to an administrative or domestic body, where that body exercises purely appellate functions.
This point raises the general issue of the discretionary nature of certiorari. In this context the authorities, as I have earlier indicated, draw a distinction between jurisdictional and non-jurisdictional error and between a right of appeal to an administrative or domestic tribunal and a right of appeal to the courts. Generally speaking, the rule is that, if the error is jurisdictional, certiorari will issue ex debito justitiae, but if the error is error in
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law, then in the absence of a privative clause, certiorari may issue. The discretion is broad when the error is non-jurisdictional and there is an appeal to the courts, but virtually disappears when the error is jurisdictional and the right of appeal, if any, is to an administrative or domestic tribunal sitting in a purely appellate role.
Counsel has not cited a single case, and I know of none, in which certiorari has been denied when the ground of complaint has been failure to accord a statutory right resulting in a denial of natural justice and the appeal is to a domestic tribunal exercising purely appellate functions. Professor de Smith expresses the point admirably at p. 133:
Nor will a person aggrieved by an invalid decision be required first to exhaust administrative or domestic appellate remedies as a condition precedent to impugning that decision in the courts.
At p. 375, Professor de Smith states that an applicant for certiorari is not normally obliged to have exhausted his rights of appeal within the administrative hierarchy. Commencing on the same page, he speaks of the principles that ought to regulate the exercise of judicial discretion when alternative remedies are available. This is one of the principles mentioned:
If an applicant claims to be aggrieved by a decision made without jurisdiction or in breach of the rules of natural justice, the fact that he has not taken advantage of a statutory right of appeal should normally be regarded as irrelevant.
The loosely-formulated American doctrine of exhaustion of remedies has simply had no Canadian or English counterpart. Wade says in his Administrative Law (4th ed., 1977), p. 561-2:
There is no rule requiring what is sometimes called the exhaustion of administrative remedies. One aspect of the rule of law is that illegal administrative action can be challenged in the court as soon as it is taken or threatened. There is therefore no need first to pursue any administrative procedure or appeal in order to see whether the action will in the end be taken or not.
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There are several broad principles operative in this general area of want of jurisdiction, and alternative remedies. Generally speaking, certiorari is a matter of discretion. The discretion must, of course, be exercised judicially and, in the absence of something in the circumstances of the case which makes it proper to refuse the relief, the writ will issue ex debito justitiae in an excess of jurisdiction situation. The phrase ex debito justitiae is merely a shorthand for referring to those cases where "the court, although nominally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way", per Sir Wilfred Greene M.R. in The King v. Stafford Justices[37], at p. 43. This does not rule out inquiry into the conduct of the applicant and the circumstances of the case. Inordinate delay may be ground for refusing relief. Where an alternative remedy exists, in the case of want of jurisdiction, certiorari remains available but, in each case, the court in exercising its discretion must consider the convenience and adequacy of the alternative remedy. An example will be found in Regina v. Brighton Justices ex p. Robinson[38], in which a traffic summons against Mrs. Robinson was heard in her absence. The Criminal Justice Act, 1967 provided a procedure whereby in that situation a statutory declaration could be filed with the clerk to the justices, the result of which was to render the summons and all subsequent proceedings void. An application for an order of certiorari was granted quashing the conviction notwithstanding the alternative remedy. It should be added that the Court made it clear that an order of certiorari would not go as a matter of course and that, in future, regard would be had as to why the applicant had not used the alternative procedure.
The nature of the error will also be a circumstance for consideration. If the loss of jurisdiction derives from a misinterpretation of a statute, a statutory right of appeal may well be adequate. On the other hand, a breach of natural justice in all but the rarest of cases will render inadequate the remedy. A possible exception is the availability of
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a hearing de novo on appeal to a body exercising original jurisdiction.
The nature of the appellate body may also be of concern. Where a statutory right of appeal is provided directly to the courts, the reviewing court is more likely to refuse certiorari, especially on questions of statutory interpretation. See, for example, the decision of the Alberta Supreme Court, Appellate Division, in Re Chad Investments Ltd. and Longson, Tammets & Denton Real Estate Ltd. et al.[39], in particular at p. 632:
This is a case where the right of appeal is to the ordinary Court. It has been decided in a number of cases that where the right of appeal is not to an ordinary Court but to some other authority, then certiorari should be granted notwithstanding the right of appeal.
On the other hand, as one moves away from a right of appeal to the courts to a right of appeal to a statutory tribunal (see Regina v. Paddington Valuation Officer, Ex p. Peachey Property Corporation Ltd.[40], or an appeal to administrative officials, even ministers (see R. v. Spalding[41]) and, ultimately, domestic bodies (see O'Laughlin v. Halifax Longshoremen's Association[42]), the alternative remedies are more frequently found to be inadequate. The following passages from the judgment of O'Halloran J.A. in the Spalding case bear repeating, pp. 376-7:
Respondent's complaint on certiorari in essence was not against a wrong judicial decision as such by the Special Inquiry Officer, but it was a complaint that no proper hearing was held by the officer to justify any decision right or wrong.
Upon this understanding of the situation, the right to certiorari arose ex debito justitiae unhampered by considerations which might otherwise affect the exercise of discretion in a case where there is a pending appeal safeguarded by statute from a constituted Court to a provincial Appellate Court. On these grounds alone with deference the appeal is one that requires dismissal.
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The capacity of the remedial body may be of importance. Where the body which may grant the remedy exercises original jurisdiction (King v. University of Saskatchewan, supra; Re Chromex Nickel Mines Ltd.[43]), perhaps even hearing the matter de novo, the remedy will be more often perceived as adequate, even conceivably in cases of denial of natural justice. On the other hand, the normal sort of purely appellate function will rarely be seen as capable of curing a breach of natural justice. The Peachey and O'Laughlin cases exemplify this point, as does Leary v. National Union of Vehicle Builders[44]. In the extreme can be found the case of Jim Patrick Ltd. v. United Stone & Allied Products Workers[45], at p. 197, where the powers of the Board in the statute were extremely limited.
I wish now to turn briefly to the dictum of Mr. Justice Spence in King v. University of Saskatchewan, supra. As I conceive it, the essential difference between the King case, in the context of which the words of Mr. Justice Spence must be read and understood, and the present case, lies in the fact that in King the senate committee was functioning in a degree-granting capacity, whereas the senate appeal committee would be acting in the case at bar simply in an appellate role. Section 33(2)(b) of The University of Regina Act states that:
The senate may provide for the granting of degrees .. .
Section 79(1)(b) states that:
The council ... conduct the examination of all courses and determine the results of the examinations.
What is at issue here falls entirely within the above statutory mandate of the council. The senate's role is appellate. Two provincial appellate court judgments have analyzed the dictum in King: Re Chromex Nickel Mines Ltd., supra, and O'Laughlin v. Halifax Longshoremen's Association, supra. In Chromex, a decision of the British Columbia Court of Appeal, the Securities Commission was found not to be limited to appellate jurisdiction, Its powers went far beyond appellate
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jurisdiction in the strict sense. Relief was denied. In O'Laughlin, a decision of the Appellate Division of the Nova Scotia Supreme Court, the local union membership, on review of their executive board's decision, were held to be fulfilling an appellate role only and, therefore, were not in a position to cure a defect in natural justice on the part of the executive board. Relief was granted.
In King, the "appeal" really amounted to a rehearing from the beginning by the only body empowered to grant degrees. It had the "sole power to decide the point in issue"—Bull J.A. in the Chromex case at p. 284. The facts were unusual and the case should not, in my opinion, be taken as applicable generally to appeal structures, or as negating the authority of the impressive list of cases, Canadian and Commonwealth, which state that certiorari is available ex debito justitiae for breach of natural justice. A defect in natural justice, on the part of the council, on the question of examinations is not, in my view, capable of being cured by the senate subsequently complying with the principles of natural justice. By statute, the appellant is entitled to fairness in both the scholarly forum of council, and in the lay forum of senate.
We have been referred to the decision of the Ontario Divisional Court in Re Pollen and Governing Council of The University of Toronto et al.[46] That case can be taken to hold that, as the only duty upon the council committee was to "deal with and decide", there was no requirement to give Polten a hearing and, thus, no breach of the rules of natural justice. In the instant case, the statutory language is different, and it therefore follows that the rights of Polten and those of Harelkin stand on a different footing.
It is the convenience and adequacy of the alternative remedy, i.e. an appeal to the senate appeals
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committee, which should be the focus of attention. The case at bar, in my opinion, is a classic example of the situation where the discretion of the reviewing court is "nominal" and, upon the facts, ought to be exercised in favour of Mr. Harelkin. The fundamental reason underlying all of this is that an appeal is simply not a sufficient remedy for the failure to do justice in the first place. Take the present case. Assume an appeal to the senate appeals committee. The ground of appeal would be that the council committee had erred in failing to afford the student an opportunity to be heard. The appeals committee would be placed immediately in the invidious position of having to decide, as a question of law, an issue already decided in favour of the student in the Saskatchewan Courts. What then would be the proper course for the appeals committee-send the matter back to council for rehearing? Hear the case anew despite its appellate role? Does the senate appeals committee have the power to do either?
A person appealing a decision made against him without a hearing is at a grave disadvantage. At the first level, the burden of persuasion lies with the other side to show some reason why a decision adverse to this individual should be made. At the appeal level the burden changes. The present case is a good example. Should Mr. Harelkin be expected to go to the senate not knowing what has been placed against him at council or the real reason for his expulsion—bad marks or neurosis?
There are no minutes of the committee of council available. There is nothing to show whether the real core of Mr. Harelkin's complaint—that he was being rejected because of mental instability rather than low marks—was ever placed before the committee. If the appeal body were specifically charged with determining whether the lower decision was properly made, and if not, that it should remit the matter to the lower level for rehearing, the matter might be different; see (1971), 49 Can. Bar Rev. 624. Appeal might conceivably be equally as effective as review. But that is not this case.
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The dynamic of ascending rigidity is readily apparent in structures such as a university. Who could possibly pretend that a student starts the day with as fair a chance in a hearing before the university senate, or its committee, faced with adverse decisions from the faculty studies committee and a council committee, both made with no hearing, as he would have before the first body to have considered the matter? Furthermore, there is a world of difference between these bodies, as the faculty committee and the council committee are composed of academics, with expertise in judging the quality of a student's work and whether it warrants expulsion, while the senate is composed in the main of administrators, lay people, and students. The key decision is by the academic committee. Thus, it is before this Committee that the person should be heard above all: see Leary v. National Union of Vehicle Builders, supra.
Professor de Smith sums up the position in the following words (pp. 210-11) which I would like to adopt:
... the present weight of authority appears to support the view that a breach of natural justice in the first instance can be rectified only by a full and fair de novo hearing given either (i) by the body perpetrating the original breach, or (if possible) a differently constituted body with the same powers and status, or (ii) (exceptionally) an appellate body, if that body also has original jurisdiction and exercises that jurisdiction in the particular case.
Mr. Harelkin should be able to look to the courts for relief if he is treated unfairly by the council, regardless of what might have occurred before the senate, had he pursued that route. At the time he was faced with the choice of senate appeal or certiorari he had no assurance that he would be heard by the senate appeals committee. The council committee, whose statutory duty to "hear and decide" was framed in the same terms as senate, had preferred an in camera session from which he was excluded. There was nothing, at the time, to say that senate would not adopt the same attitude. The fact that the senate has adopted procedural safeguards since these proceedings were initiated clarifies that issue for the future,
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but it does not, in any way, in my view affect the outcome of this appeal.
The university says that to require the full hearing of the type which the applicant seeks could be interpreted as a requirement to have at least two full-scale confrontations between student and university in the process of having a student discontinue his studies. That may be so. But the fault, if fault it is, lies in the legislation, and not in the expectations of the student. The University of Regina Act, for reasons best known to the legislators, gives a student believing himself aggrieved two hearings, i.e. one original hearing and one on appeal. The student in the case at bar has not waived his right to either hearing, and it would be wrong, in my view, to deny him that which the statute expressly accords him.
On the footing (i) that the council of the University of Regina had no jurisdiction to deny the appellant a hearing, and (ii) that the appeal given the appellant is administrative and not to the courts, there is simply no authority for the decision of the Court below.
Counsel for the university referred the Court to two other sections of The University of Regina Act, ss. 9 and 66, which read:
9. The Lieutenant Governor shall be the visitor of the university with authority to do all those acts that pertain to visitors as to him seem proper.
66. Where any question arises respecting the powers and duties of convocation, the senate, board, council or any officer or servant of the university, the question shall be settled by a committee composed of the chancellor, the president and the board chairman.
Neither of these sections was relied upon as offering an alternative remedy on its own. Both were referred to in support of the broader contention that the Legislature intended that disputes be resolved within the university community. Section 66 clearly has no application in this case, as we are not concerned with uncertainty respecting the powers or duties of either senate or council. As for s. 9, it might be noted that the "visitor" has experienced somewhat of a renaissance of late in
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English university cases, notably in the recent decision in Patel v. University of Bradford Senate[47]. Academic writers have suggested that the rehabilitation of the role of the "visitor" may be the cure to the internal ills of the university: see Bridge, "Keeping Peace in the Universities" (1970), 86 L.Q.R. 531 and Ricquier, "The University Visitor" (1978), 4 Dal. L.J. 647. Be that as it may, the university did not argue that exclusive jurisdiction here lay in the "visitor", and one might well question the practical relevance of this English institution to the modern Canadian university.
I would allow the appeal, set aside the judgment of the Court of Appeal, and restore the judgment at first instance. Chief Justice Bence directed the university to hold a hearing, pursuant to s. 78(1)(c) of The University of Regina Act, at which the applicant inter alia would have the right to be represented by counsel. In argument before this Court, counsel for Mr. Harelkin conceded there might be a question as to Mr. Harelkin's right to counsel before the committee of council. Counsel expressed the hope that the council of the university would pass rules governing the conduct of committee hearings. As I understand his position, he was prepared to leave the matter to the discretion of council, but without foreclosing the right to challenge the exercise of council's discretion on this point. I would, accordingly, restore the judgment of Chief Justice Bence except that portion thereof which directs that the applicant be allowed to be represented by counsel.
The applicant is entitled to his costs in all Courts.
Appeal dismissed with costs, SPENCE, DICKSON and EsTEY JJ. dissenting.
Solicitors for the appellant: Wardell, Munkler, Beckie & Holgate, Saskatoon.
Solicitors for the respondent: McDougall, Ready, Wakeling, Youck, Kuski, Millar & Smith, Regina.
[1] [1977] 3 W.W.R. 754.
[2] [1976] 2 S.C.R. 739.
[3] (1964), 44 D.L.R. (2d) 248.
[4] (1973), 37 D.L.R. (3d) 100.
[5] [1969] 2 Q.B. 538.
[6] [1971] 1 W.L.R. 487.
[7] [1973] 1 W.L.R. 69.
[8] (1852), 3 H.L.C. 759.
[9] [1951] A.C. 585.
[10] [1969] N.Z. L.R. 256.
[11] [1970] 3 W.L.R. 434 (Ch. D).
[12] [1969] S.C.R. 678.
[13] (1966), 56 D.L.R. (2d) 585.
[14] (1975), 59 D.L.R. (3d) 197.
[15] [1967] 2 A.C. 337.
[16] [1959] 2 All E.R. 433.
[17] [1941] S.C.R. 396.
[18] [1942] 2 D.L.R. 665.
[19] [1955] 5 D.L.R. 374.
[20] [1959] S.C.R. 638.
[21] (1978), 43 C.C.C. (2d) 129.
[22] [1969] S.C.R. 678.
[23] [1959] S.C.R. 638.
[24] [1915] A. C. 120.
[25] [1945] 2 All E. R. 131 (K.B.D.).
[26] [1954] 3 D.L.R. 760.
[27] [1956] S.C.R. 877.
[28] [1967] 3 W.L.R. 382 (C.A.).
[29] (1976), 59 D.L.R. (3d) 146.
[30] (1976), 63 D.L.R. (3d) 522 (B.S.S.C.).
[31] [1906] A.C. 535 (J.C.P.C.).
[32] [1964] A.C. 40 (H.L.).
[33] [1969) N.Z.L.R. 256 (N.Z.S.C.).
[34] [1959] N.Z.L.R. 1014 (N.Z.S.C.).
[35] [1962] 2 Q.B. 93 (Q.B.D.).
[36] [1962] A.C. 322 (P.C.).
[37] [1940] 2 K.B. 33.
[38] [1973] 1 W.L.R. 69.
[39] (1971), 20 D.L.R. (3d) 627.
[40] [1966] 1 Q.B. 380.
[41] [1955] 5 D.L.R. 374 (B.C.C.A.).
[42] (1972), 28 D.L.R. (3d) 315.
[43] (1970), 16 D.L.R. (3d) 273.
[44] [1970] 3 W.L.R. 434 (Ch. D.).
[45] (1959), 21 D.L.R. (2d) 189 (Sask. C.A.).
[46] (1975), 59 D.L.R. (3d) 197.
[47] [1978] 3 All E.R. 841 (Ch. D.).