Canada: "I Don't Wanna Hear It!" Supreme Court Affirms Federal Court's Refusal To Exercise Jurisdiction In Strickland v Canada (Attorney General)

Parliament created the Federal Courts system in 1970 to consolidate judicial supervision of federal boards, commissions and tribunals. The goal was to reduce the multiplicity of inconsistent judicial review rulings in provincial superior courts across the country. The Federal Courts Act hence gives the Federal Courts "exclusive original jurisdiction" to grant judicial review remedies against federal boards, commissions and tribunals (e.g., quashing a Minister's decision). But can superior courts grant such remedies too? And if so, how is a litigant to know when to go to the Federal Court, and when to go to a superior court? The Supreme Court of Canada has provided a framework for answering these questions in Strickland v Canada (Attorney General), 2015 SCC 37.

In Strickland (mentioned briefly in this prior blog post), the appellants argued that the Federal Child Support Guidelines (the "Guidelines") were ultra vires the enabling Divorce Act. The Guidelines, argued the appellants, were not based on spouses' financial capacity, contrary to the Divorce Act. The appellants applied to Federal Court for a declaration that the Guidelines were invalid. The Federal Court declined to exercise its jurisdiction, holding that the matter should be brought before a provincial superior court. The Federal Court of Appeal and SCC both upheld the Federal Court's decision.

First, the SCC noted that the provincial superior courts can, in the right circumstances, grant judicial review relief against federal entities. The Federal Courts Act grants concurrent jurisdiction of the Federal Court and superior courts in proceedings where relief is claimed against the federal Crown. Several lines of case law suggest that superior courts can grant judicial review remedies where it is necessary. Justice Cromwell for the seven-member majority wrote:

[33] [T]he provincial superior courts, in the context of proceedings properly before them, can address the legality of the conduct of federal boards, commissions and tribunals, where doing so is a necessary step in resolving the claims asserted in those proceedings. [emphasis added]

In the case at bar, therefore, a superior court could determine the legality of the Guidelines if it was a necessary step in a proceeding properly before it, such as a hearing to determine the amount of child support owed by the appellants.

Second, the SCC discussed the discretionary nature of judicial review and the historical prerogative writs. In particular, pursuant to the SCC's well-known 1979 decision in Harelkin v University of Regina, [1979] 2 SCR 561, a court should decline to hear an application for judicial review if an "adequate alternative remedy" exists elsewhere. In determining whether there is an adequate alternative remedy, the relevant considerations include:

[42] ...the convenience of the alternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relative expertise of the alternative decision-maker; economical use of judicial resources; and cost. ...

The SCC stressed that these factors are not simply a rote checklist, and the categories of relevant factors are not closed. The ultimate question a court should ask when determining the availability of an adequate alternative remedy is:

[44]   ...whether the application for relief is appropriately respectful of the statutory framework within which that application is taken and the normal processes provided by that framework and the common law for challenging administrative action. ...

All levels of court stressed the importance of the facts that (a) Parliament has conferred exclusive jurisdiction on superior courts to determine family law matters; and (b) superior courts have far more expertise in family law matters than the Federal Court. The application to declare the Guidelines ultra vires involved complex questions about the ability of a spouse to contribute to the child's well-being – the type of question that a superior court addresses on a daily basis. These questions should thus be settled by a superior court, not the Federal Court.

A superior court could not give a general, sweeping declaration that the Guidelines are ultra vires. However, a superior court could hold that the Guidelines are ultra vires in a proceeding that directly affects the appellants' rights, such as a hearing to determine the amount of their child support payments. The SCC held that, while not able to offer the exact same remedy, a superior court could offer an adequate alternative remedy.

The SCC dismissed the appeal and affirmed the Federal Court's discretionary decision not to hear the challenge of the Guidelines.

Finally, although the issue was not argued on appeal (and any SCC comments are therefore obiter), the majority and concurring opinions split on whether the Federal Court has exclusive jurisdiction to declare invalid all regulations enacted by the federal Governor in Council. Justices Abella and Wagner, concurring, emphatically stated that the superior courts have concurrent jurisdiction to declare federal regulations invalid. Justice Cromwell for the majority stated that the Federal Courts Act and case law are clear: the Federal Court has exclusive jurisdiction to the exclusion of the superior courts. Justice Cromwell closed on the portentous note that "All of these matters are, of course, for another day" (para 64).

The takeaway point from Strickland is that, before going to Federal Court with a judicial review challenge, the potential applicant should consider whether it is more appropriate to ask a provincial superior court for a similar remedy.

Case Information

Strickland v Canada (Attorney General), 2015 SCC 37

SCC Docket: 35808

Date of Decision: July 9, 2015

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