Administrative Law – Judicial Review and
Statutory Appeal – Tort Law – Practice and
Telezone's application for a telecommunications licence was
rejected by Industry Canada. Although Telezone did not seek to
overturn or invalidate this administrative decision, it
subsequently brought a related civil action for damages against the
Federal Crown on a number of grounds. In its defence, the Crown
asserted that an action could only be brought following an
application for judicial review of the subject decision, based on
Canada v. Grenier, 2005 FCA 348. The Supreme Court
ultimately rejected the expansive reading of Grenier put forward by
the Crown and held that an action for damages could be brought
against the Crown in the Ontario Superior Court without an
application for judicial review in the Federal Court.
The court held that for litigants like Telezone who do not seek
to overturn an administrative decision but rather seek compensation
or damages flowing from that decision, requiring an application for
judicial review simply imposes additional cost and delay on
litigants. Imposing judicial review as a preliminary step was
inappropriate. The court emphasized the clear doctrinal distinction
between the Crown's liability in tort or contract as the result
of an administrative decision and the validity of the underlying
The court also noted that any derogation from the jurisdiction
of the Superior Courts requires clear and explicit language. The
court held that the Superior Court's jurisdiction has not been
ousted by statute, and found that the Superior Court's
jurisdiction was in fact affirmed by s. 17 of the Federal Courts
Act, which provides for the concurrent jurisdiction of the Superior
Courts and the Federal Court for claims against the Crown. The
court emphasized that the statutory scheme as a whole, and
particularly the brief 30-day limitation period for seeking
judicial review in the Federal Court, underscored that judicial
review was not meant to be a gate keeping mechanism for civil
claims against the Crown.
The court also noted that if there are genuine concerns
regarding collateral attack, the doctrine can be raised as a
defence (as could the defence of statutory authority), but it held
the existence of such concerns do not deprive the Superior Court of
jurisdiction. The court, furthermore, suggested a claim like that
of Telezone's would be unlikely to be found to be a collateral
attack given the nature of the claim and given the statutory
context. The court also rejected the argument that concerns about
"artful pleading" warranted limiting the jurisdiction of
the Superior Court over such claims.
A number of other cases involving actions brought against the
Crown that were subject to similar jurisdictional objections were
also permitted to proceed without an application for judicial
review being brought to the Federal Court, based on the Telezone
Canada (Attorney General) v. McArthur, 2010 SCC 63;
Canadian Food Inspection Agency v. Professional Institute of
the Public Service of Canada, 2010 SCC 66;
Manuge v. Canada, 2010 SCC 67;
Nu-Pharm Inc. v. Canada (Attorney General), 2010 SCC
Parrish & Heimbecker Ltd. v. Canada (Agriculture and
Agri-Food), 2010 SCC 64.
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