Robert T. Strickland, George Connon, Roland Auer, Iwona Auer-Grzesiak, Mark Auer v. Vladimir Auer by his Litigation Representative Roland Auer, 2015 SCC 37

SUPREME COURT OF CANADA Citation: Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 Date: 20150709 Docket: 35808 Between: Robert T. Strickland, George Connon, Roland Auer, Iwona Auer-Grzesiak, Mark Auer and Vladimir Auer by his Litigation Representative Roland Auer Appellants and Attorney General of Canada Respondent Coram: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.

Reasons for Judgment: (paras. 1 to 65) Joint Concurring Reasons: (paras. 66 to 85) Cromwell J. (McLachlin C.J. and Rothstein, Moldaver, Karakatsanis, Gascon and Côté JJ. concurring) Abella and Wagner JJ. Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 Robert T. Strickland, George Connon, Roland Auer, Iwona Auer-Grzesiak, Mark Auer and Vladimir Auer by his Litigation Representative Roland Auer Appellants v. Attorney General of Canada Respondent

Indexed as: Strickland v. Canada ( Attorney General) 2015 SCC 37 File No.: 35808. 2015: January 20; 2015: July 9.

Present: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. on appeal from the federal court of appeal Courts — Federal Court — Judicial review — Jurisdiction — Family law — Divorce — Child support — Guidelines — Lawfulness of federal child support guidelines challenged by means of judicial review — Federal Court declined to undertake judicial review — Whether provincial superior courts have jurisdiction to address validity of federal child support guidelines — Even if they do, whether federal courts erred in refusing to hear judicial review application on its merits — Federal Courts Act, R.S.C. 1985, c.

F-7, s. 18 — Divorce Act, R.S.C. 1985, c. 3 (2nd Supp .), s. 26.1(2) — Federal Child Support Guidelines, SOR/97-175 . The appellants brought an application for judicial review in the Federal Court seeking a declaration that the Federal Child Support Guidelines are unlawful as they are not authorized by s. 26.1(2) of the Divorce Act . They claim that the Guidelines are not based on the “relative abilities to contribute” of both spouses and that they do not reasonably calculate the amounts required “to maintain the children”.

The application judge held that the Federal Court is not an appropriate forum in which to address the validity of the Guidelines . Given the minor role the Federal Court plays in issues under the Divorce Act and the breadth of the jurisdiction and expertise of the provincial superior courts in matters related to divorce and child support, it was found that it would be inappropriate for the Federal Court to consider the judicial review application on its merits. The Federal Court of Appeal upheld this conclusion. Held : The appeal should be dismissed.

Per McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatsanis, Gascon and Côté JJ.: The Court’s jurisprudence supports the principle that the 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.

This means that in the context of family law proceedings otherwise properly before them, the provincial superior courts can decide that the Guidelines made by the Governor in Council are ultra vires and decline to apply them if doing so is a necessary step in resolving the matters before them. Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means that even if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief.

Declarations of rights, whether sought in judicial review proceedings or in actions, are similarly a discretionary remedy. The discretionary nature of judicial review and declaratory relief is continued by the judicial review provisions of the Federal Courts Act .

Section 18.1(3) provides that “[o]n an application for judicial review, the Federal Court may ” make certain orders in the nature of those traditional remedies. As a result, judges of the Federal Court have discretion in determining whether judicial review should be undertaken. The fact that undertaking judicial review is discretionary means that the Federal Court judge’s exercise of that discretion is entitled to deference on appeal. One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative.

In order for an alternative forum or remedy to be adequate, neither the process nor the remedy need be identical to those available on judicial review. The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of a particular case. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate.

Ultimately, this calls for a type of balance of convenience analysis which should take account of the purposes and policy considerations underpinning the legislative scheme in issue. In this case, the appellants’ position that they are entitled to a ruling on the legality of the Guidelines through a judicial review is fundamentally at odds with the discretionary nature of judicial review and with the broad grounds on which that discretion may be exercised.

The appellants do not have a right to have the Federal Court rule on the legality of the Guidelines ; the Federal Court has discretion to do so which it has decided not to exercise. Further, the appellants’ position that the alternative is not adequate because it does not provide identical procedures or relief cannot be accepted. The appellants’ arguments focus too narrowly on how challenging the Guidelines in the context of family law litigation in the provincial superior courts will not provide everything that might be available to them on judicial review.

Here, the appellants request a judicial determination of, among other things, whether the Guidelines are based, as they are required to be by s. 26.1(2) of the Divorce Act , on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation. Making that determination will inevitably engage family law expertise in relation to, among other things, the nature and extent of the obligation to maintain children and how the relative abilities of parents to do so should be assessed.

The provincial superior courts deal day in and day out with disputes in the context of marital breakdown concerning the needs of children, as well as what custody and support arrangements are in their best interests. Parliament has entrusted, for practical purposes, this entire area of law to the provincial superior courts. Having done so, it would be curious to say the least, if the legality of a central aspect of that regime were to be finally decided by the federal courts which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters.

It would not be more efficient in this case to obtain a ruling in the Federal Court, as such a ruling would not be binding on any provincial superior court. Regardless of what the Federal Court might decide, before a ruling could have any practical effect, the issue would have to be re-litigated in the superior courts, or, alternatively, litigated up to this Court. It would be for the provincial courts to decide the impact of the illegality of the Guidelines on particular support orders and that could only be done in the context of a multitude of individual cases.

Further, the appellants’ judicial review proceedings exclude direct adversarial participation by other directly affected parties: spouses and former spouses seeking child support orders or variations of them under the Divorce Act . However,

adjudicating the issue in the context of Divorce Act or child support proceedings would ensure full participation of these parties. In

summary, the Federal Court did not make any reviewable error in exercising the discretion not to entertain the judicialreview application for declaratory relief. Provincial superior courts have jurisdiction to address the validity of the Guidelines wheredoing so is a necessary step in resolving a case otherwise properly before them. Judicial review in the Federal Court is manifestlyinappropriate in this case and the Federal Court reasonably exercised its discretion not to engage in it.

The parties assumed that the Federal Court has exclusive original jurisdiction to grant judicial review remedies directedagainst regulations promulgated by the Governor in Council and as a result, that point is not before the Court for decision. But aspresently advised, the concerns expressed in the minority opinion in relation to this issue are not shared. The language of the FederalCourts Act can be taken as a clear and explicit expression of parliamentary intent.

No one questions that s. 18 does not withdraw theauthority of the provincial superior courts to grant the traditional administrative law remedies against federal boards, commissions andtribunals on division of powers grounds, but with respect to judicial review on administrative law grounds, it has been expresslyconfirmed that the Federal Court has exclusive original jurisdiction as described in s. 18 of the Federal Courts Act.

Per Abella and Wagner JJ.: Although there is agreement with the result reached by the majority opinion, there is concernthat the reasons not be seen as representing a definitive view from this Court that the provincial superior courts cannot declare federalregulations invalid on administrative grounds. The parties did not argue the issue of whether s. 18 of the Federal Courts Act grants theFederal Court exclusive original jurisdiction to declare invalid federal regulations promulgated by the Governor in Council.

As a result,this case should not be seen as categorically endorsing the assumption that the Federal Court has exclusive jurisdiction to declare invalidall such regulations. This Court has said that provincial superior courts have jurisdiction to declare invalid the federal laws theyadminister. Any derogation from the jurisdiction of the provincial superior courts requires clear and explicit statutory wording to thiseffect.

Section 18 of the Federal Courts Act does not clearly and unequivocally strip the provincial superior courts of their jurisdiction todeclare federal regulations made by the Governor in Council to be invalid on administrative grounds. The Federal Court was created toremove from the provincial superior courts the jurisdiction to supervise federal administrative tribunals, not to strip them of theirjurisdiction to determine the vires of the federal regulations they apply.

There is no evidence that Parliament intended to limit thesubject-matter jurisdiction of the provincial superior courts by preventing them from determining the vires of the regulations they apply.At the very least, this argues for caution and full argument before this Court declares — or is seen to declare — that s. 18 of the FederalCourts Act means that the Federal Court has exclusive jurisdiction over all federal regulations even if they are not part of legislativeschemes over which the Federal Court has jurisdiction or expertise, such as the Divorce Act. Cases Cited By Cromwell J.

Adopted: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Canada (Attorney General) v.McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626, aff’g 2008 ONCA 892, 94 O.R. (3d) 19; Canadian Food Inspection Agency v.Professional Institute of the Public Service of Canada, 2010 SCC 66, [2010] 3 S.C.R. 657; referred to: Saskatchewan Wheat Pool v.Canada (Attorney General) (1993), (FC), 67 F.T.R. 98; Attorney General of Canada v. Law Society of BritishColumbia, (SCC), [1982] 2 S.C.R. 307; Canada Labour Relations Board v.

Paul L’Anglais Inc., (SCC), [1983] 1 S.C.R. 147; Canada (Human Rights Commission) v. Canadian Liberty Net, (SCC), [1998] 1 S.C.R.626; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Mills v. The Queen, (SCC),[1986] 1 S.C.R. 863; R. v. Morgentaler (1984), (ON CA), 41 C.R. (3d) 262; R. v. Miller, (SCC), [1985]2 S.C.R. 613; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809; Mission Institution v. Khela, 2014 SCC 24, [2014] 1S.C.R. 502; Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561; Canada (Auditor General) v.

Canada(Minister of Energy, Mines and Resources), (SCC), [1989] 2 S.C.R. 49; Canadian Pacific Ltd. v. Matsqui Indian Band, (SCC), [1995] 1 S.C.R. 3; Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042; C.B. Powell Limited v.Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332. By Abella and Wagner JJ. Distinguished: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Canada (AttorneyGeneral) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626; referred to: Ordon Estate v. Grail, (SCC), [1998] 3 S.C.R.437; Sorbara v.

Canada (Attorney General), 2009 ONCA 506, 98 O.R. (3d) 673, leave to appeal refused, [2009] 3 S.C.R. x;Saskatchewan Wheat Pool v. Canada (Attorney-General) (1993), (SK CA), 107 D.L.R. (4th) 63; Messageries publi-maison ltée v. Société canadienne des postes, (QC CA), [1996] R.J.Q. 547; Waddell v. Governor in Council (1981), (BC SC), 30 B.C.L.R. 127, aff’d (1982), (BC CA), 142 D.L.R. (3d) 177; Re Williams and Attorney-General for Canada (1983), (ON SC), 45 O.R. (2d) 291; British Columbia Milk Marketing Board v. Aquilini, [1997]B.C.J.

No. 843 (QL), rev’d in part (1998), (BC CA), 165 D.L.R. (4th) 626, notice of discontinuance filed, [1999] 2S.C.R. v; Attorney General of Canada v. Law Society of British Columbia, (SCC), [1982] 2 S.C.R. 307; Wakeford v.Canada (2002), (ON CA), 58 O.R. (3d) 65, leave to appeal refused, [2002] 4 S.C.R. vii; Lavers v. British Columbia(Minister of Finance) (1989), (BC CA), 64 D.L.R. (4th) 193; International Fund for Animal Welfare, Inc. v. Canada(Attorney General) (1998), (ON SC), 157 D.L.R. (4th) 561; Canada (Attorney General) v. Federation of LawSocieties of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401; Dyck v.

Highton, 2003 SKQB 396, 239 Sask. R. 38; Ward v. Canada (AttorneyGeneral) (1997), (NL SC), 155 Nfld. & P.E.I.R. 313, rev’d (1999), (NL CA), 183 Nfld. &P.E.I.R. 295, rev’d 2002 SCC 17, [2002] 1 S.C.R. 569; Souliere v. Leclair (1998), (ON SC), 52 C.R.R. (2d) 156;Premi v. Khodeir (2009), 198 C.R.R. (2d) 8; Grenon v. Canada (Attorney General), 2007 ABQB 403, 76 Alta. L.R. (4th) 346; CanadaLabour Relations Board v. Paul L’Anglais Inc., (SCC), [1983] 1 S.C.R. 147. Statutes and Regulations Cited Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3.

Canadian Charter of Rights and Freedoms . Combines Investigation Act , R.S.C. 1970, c. C-23. Constitution Act, 1867 , s. 101. Criminal Code , R.S.C. 1985, c. C-46. Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), s. 26.1 . Extradition Act , S.C. 1999, c. 18. Federal Child Support Guidelines , SOR/97-175, ss. 7, 10 . Federal Court Act , S.C. 1970-71-72, c. 1, ss. 17, 18. Federal Courts Act , R.S.C. 1985, c. F-7 [am. 2002, c. 8, s. 14 ], ss. 2 “federal board, commission or other tribunal”, 17 [am. 1990, c. 8, s. 3], 18, 18.1(3). Authors Cited Brown, Donald J. M., and John M. Evans, with the assistance of Christine E.

Deacon. Judicial Review of Administrative Action in Canada . Toronto: Carswell, 2013 (loose-leaf updated December 2014, release 3). Bushnell, Ian. The Federal Court of Canada: A History, 1875-1992 . Toronto: University of Toronto Press, 1997. Canada. House of Commons. House of Commons Debates , vol. IV, 2nd Sess., 34th Parl., November 1, 1989, pp. 5413-14. Canada. House of Commons. House of Commons Debates , vol. V, 2nd Sess., 28th Parl., March 25, 1970, pp. 5469-71. de Smith, S. A. Judicial Review of Administrative Action , 4th ed., by J. M. Evans. London: Stevens & Sons, 1980. Hogg, Peter W.

Constitutional Law of Canada , 5th ed. Supp., vol. 1. Toronto: Carswell, 2007 (loose-leaf updated 2014, release 1). Jones, David Phillip, and Anne S. de Villars. Principles of Administrative Law , 6th ed. Toronto: Carswell, 2014. Mullan, David J. “The Discretionary Nature of Judicial Review”, in Robert J. Sharpe and Kent Roach, eds., Taking Remedies Seriously: 2009 . Montréal: Canadian Institute for the Administration of Justice, 2010, 420. Pound, Richard W. Chief Justice W.R. Jackett: By the Law of the Land . Montréal and Kingston: McGill-Queen’s University Press, 1999.

APPEAL from a judgment of the Federal Court of Appeal (Blais C.J. and Sharlow and Gauthier JJ.A.), 2014 FCA 33 , 460 N.R. 240, [2014] F.C.J. No. 998 (QL), 2014 CarswellNat 3631 (WL Can.), affirming a decision of Gleason J., 2013 FC 475 , 432 F.T.R. 152, [2013] F.C.J. No. 529 (QL), 2013 CarswellNat 1363 (WL Can.). Appeal dismissed. Glenn Solomon , Q.C. , and Laura Warner , for the appellants. Anne M. Turley and Catherine A. Lawrence , for the respondent. The judgment of McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatsanis, Gascon and Côté JJ. was delivered by Cromwell J. — I.

Introduction [ 1 ] The appellants seek to make a point: that the Federal Child Support Guidelines , SOR/97-175, are unlawful. They chose to make it by bringing a judicial review application in the Federal Court. The Federal Court, however, found that this was not an appropriate means by which to raise this issue and dismissed their application. It did so by exercising the well-established discretion to decline to undertake judicial review when some other, more suitable remedy is available. The Federal Court of Appeal upheld that decision.

In my view, it made no mistake in doing so. [ 2 ] The appellants’ challenge to the child support Guidelines raises an issue of fundamental importance to, and with broad ramifications for child support on divorce, an area entrusted by Parliament mainly to the provincial superior courts. Questions about the nature and objectives of child support on divorce, which are squarely within the expertise of those courts, will be central to resolving the appellants’ challenge.

While the appellants point to procedural and efficiency advantages of addressing these questions by means of judicial review in the Federal Court, any advantages are, on closer examination, largely illusory. I would therefore affirm the decision of the Federal Court of Appeal. II. Overview of the Facts, Judicial History and Issues [ 3 ] The Governor in Council has made guidelines, by regulation, respecting child support orders: Guidelines . The power to do so is conferred by s. 26.1 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.).

That provision authorizes the Governor in Council to make such guidelines “based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” ( s. 26.1(2) ).

[4] The six appellants are potentially affected by the Guidelines in different ways. Three of them pay child support.Robert T. Strickland entered into an interim child support agreement through court-mandated mediation during a divorce action. GeorgeConnon, who is separated from his wife, voluntarily pays child support calculated in accordance with the Guidelines. Roland Auer payschild support to his second wife, the amount of which was initially calculated with reference to the Guidelines and has since been variedtwice by the Alberta Court of Queen’s Bench.

The other three appellants are Roland Auer’s first wife, Iwona Auer-Grzesiak, and two ofhis sons. They argue that they are affected by Mr. Auer’s obligation to pay child support to his second wife. [5] The appellants maintain that the Guidelines are not authorized by s. 26.1(2) and are therefore unlawful (or aslawyers say, are ultra vires). They claim that, contrary to what that

section requires, the Guidelines are not based on the “relative abilitiesto contribute” of both spouses and that they do not reasonably calculate the amounts required “to maintain the children”. To advance thisposition, the appellants brought an application for judicial review in the Federal Court seeking a declaration to this effect. [6] The Federal Court has “exclusive original jurisdiction . . . to . . . grant declaratory relief, against any federal board,commission or other tribunal”: Federal Courts Act, R.S.C. 1985, c. F-7, s. 18(1)(a).

The parties argued the appeal on the assumptionthat, under the Federal Courts Act, the application for a declaration that the Guidelines are ultra vires is, by virtue of this provision,within the exclusive jurisdiction of the Federal Court. There was no argument to the contrary and I accept that assumption for thepurposes of my reasons.

However, the Attorney General of Canada brought a motion to dismiss the judicial review application arguing,among other things, that the Federal Court should exercise its discretion to decline to hear the application. [7] The Federal Court agreed and dismissed the appellants’ judicial review application: 2013 FC 475, 432 F.T.R. 152.The application judge, Gleason J., held that the Federal Court is not an appropriate forum in which to address the validity of theGuidelines.

She reasoned that the provincial superior courts have jurisdiction over a claim that the Guidelines are ultra vires if that claimis made in proceedings in which those courts are asked to apply them. Given the minor role the Federal Court plays in issues under theDivorce Act and the breadth of the jurisdiction and expertise of the provincial superior courts in matters related to divorce and childsupport, it would be inappropriate for the Federal Court to consider the judicial review application on its merits.

The Federal Court ofAppeal upheld this conclusion: 2014 FCA 33, 460 N.R. 240. [8] The appellants’ appeal to this Court, as I see it, raises two related questions: 1. Do the provincial superior courts have jurisdiction to address the validity of the Guidelines? 2.

Even if they do, did the federal courts err in refusing to hear the judicial review application on its merits? [9] In my view, the provincial superior courts have jurisdiction to address the validity of the Guidelines where doing sois a necessary step in resolving a case otherwise properly before them and the Federal Court did not err by refusing to hear theappellants’ judicial review application. III. Analysis A. First Issue: Do the Provincial Superior Courts Have Jurisdiction to Address the Validity of the Guidelines?

(1) Position of the Parties [10] The Federal Court’s refusal to undertake judicial review was based on a central premise: the provincial superiorcourts may rule on the legality of the Guidelines when that question arises in a proceeding otherwise properly before them. Theappellants challenge that premise.

Their position is based on two uncontroversial propositions. [11] They say, first, that s. 18 of the Federal Courts Act gives the Federal Court exclusive original jurisdiction to (amongother things) “grant declaratory relief, against any federal board, commission or other tribunal”. (The full text is in the Appendix.) Thisleads to their second point, which is that this exclusive jurisdiction undisputedly includes the jurisdiction to declare regulationspromulgated by the Governor in Council, such as the Guidelines, to be ultra vires: Saskatchewan Wheat Pool v.

Canada (AttorneyGeneral) (1993), (FC), 67 F.T.R. 98, at paras. 8 and 12. The appellants submit that it follows from these two pointsthat litigants like themselves, who are seeking a public law remedy against a federal entity, may proceed only in the federal courts:Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at para. 19. [12] The appellants note that there are only two exceptions to this exclusive jurisdiction of the Federal Court, neither ofwhich applies here.

First, Parliament may create express exceptions, as it has done in the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3, and the Extradition Act, S.C. 1999, c. 18. There is no such express exception for the appellants’ judicial review proceeding. Second,Parliament cannot, through s. 18 of the Federal Courts Act or otherwise, deprive provincial superior courts of the ability to determine theconstitutional validity and applicability of legislation: Attorney General of Canada v. Law Society of British Columbia, (SCC), [1982] 2 S.C.R. 307; Canada Labour Relations Board v.

Paul L’Anglais Inc., (SCC), [1983] 1 S.C.R. 147.

Butthat principle does not apply here because the appellants challenge the Guidelines on administrative law, not on constitutional grounds. [13] Based on these points, the appellants submit that, contrary to the view of the federal courts, “the weight of authority,and strong policy considerations, favour concluding that the provincial superior courts do not require jurisdiction to determineadministrative validity as part of being asked to apply the Guidelines” and that provincial superior courts must presume the Guidelines tobe valid unless found to be invalid by a court of competent jurisdiction: A.F., at para. 83 (emphasis deleted). [14] The respondent Attorney General rejects this contention and supports the conclusion of the federal courts on thispoint. [15] In my respectful view, the Attorney General is correct.

A provincial superior court can hear and determine achallenge to the legality of the Guidelines where that determination is a necessary step in disposing of support proceedings properlybefore it. This, in my view, is clear from a line of very recent authority from this Court. I will turn to review it and explain why it applies

here after a brief account of the purposes of the Federal Court’s exclusive jurisdiction.

(2) Section 18 and the Federal Court’s Exclusive Jurisdiction [16] In 1970, Parliament enacted the Federal Court Act, S.C. 1970-71-72, c. 1. The Act was subsequently renamed theFederal Courts Act, S.C. 2002, c. 8, s. 14, which is the legislation in force today. For clarity, when I refer to the “Act” in these reasons, Irefer to the enactment that was in force at the relevant time. [17] Before the Act, judicial review of federal administrative action was conducted by the provincial superior courts as anaspect of their inherent jurisdiction.

However, with the growth of federal regulatory regimes and administrative tribunals, severaldisadvantages of this arrangement became apparent. These included the possibility of multiple proceedings involving a federal decisionthat could lead to conflicting decisions and “a perceived lack of familiarity with federal legislation by judges who encountered it onlyoccasionally”: D. J. M. Brown and J. M. Evans, with the assistance of C. E.

Deacon, Judicial Review of Administrative Action in Canada(loose-leaf), at topic 2:4100. [18] To respond to these concerns, Parliament consolidated judicial review of federal boards, commissions and tribunalswithin the exclusive jurisdiction of the Federal Court: s. 18 of the Act. This, it was hoped, would ensure uniformity and prevent amultiplicity of proceedings: see, e.g., TeleZone, at paras. 49-50; Canada (Human Rights Commission) v. Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, at para. 35.

The then-Minister of Justice stated that this consolidation was “designed to create asingle and uniform basis of superintending jurisdiction in relation to federal boards and commissions and to place them on the samefooting in this regard as provincial boards and commissions”: TeleZone, at para. 50, citing House of Commons Debates, vol. V, 2ndSess., 28th Parl., March 25, 1970, at p. 5471.

Thus, with the passage of the Act, Parliament “remove[d] from the superior courts of theprovinces the jurisdiction over prerogative writs, declarations, and injunctions against federal boards, commissions and other tribunalsand . . . place[d] that jurisdiction (slightly modified) in a new federal court”: Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC12, [2009] 1 S.C.R. 339, at para. 34; see also Paul L’Anglais Inc., at p. 154. [19] The Act also gave the Federal Court exclusive jurisdiction over proceedings against the federal crown: s. 17.However, this scheme proved unworkable in practice by virtue of the constitutional limits of the court’s jurisdiction under s. 101 of theConstitution Act, 1867.

That meant that the Federal Court generally had no jurisdiction over Crown servants or over other co-defendants,third parties or defendants by counterclaim and that those persons and proceedings had to be addressed in parallel proceedings in theprovincial superior courts. This unsatisfactory state of affairs was resolved by amendments in 1990 making the Federal Court’sjurisdiction over claims against the federal Crown concurrent with that of the provincial superior courts rather than exclusive: S.C. 1990,c. 8, s. 3; and see generally, P. W. Hogg, Constitutional Law of Canada (5th ed.

Supp.), vol. 1, at pp. 7-33 and 7-34. Thus, since 1990,the Federal Court’s exclusive jurisdiction with respect to judicial review is a qualification of the general rule of concurrent jurisdictionbetween it and the provincial superior courts.

(3) The TeleZone Principle [20] I have already referred briefly to the practical problems which arose by virtue of the attempt to confer on the FederalCourt exclusive jurisdiction over claims against the federal Crown. The conferral of exclusive jurisdiction in judicial review of federaltribunals has also given rise to some practical problems.

The main one, which arose in a line of recent cases, is whether this exclusivejudicial review jurisdiction means that a claim for damages based on allegedly unlawful conduct by a federal board, commission ortribunal cannot be brought in the provincial superior courts without the claimant first successfully applying for judicial review of thatconduct in the Federal Court: TeleZone; Canada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626; Canadian FoodInspection Agency v.

Professional Institute of the Public Service of Canada, 2010 SCC 66, [2010] 3 S.C.R. 657. [21] The Attorney General of Canada adopted the position that bringing an action in the provincial superior courtswithout first challenging the legality of the conduct by way of judicial review in the Federal Court was an impermissible evasion of theFederal Court’s exclusive judicial review jurisdiction under s. 18 and therefore constituted an impermissible collateral attack on theactions of the federal tribunal.

This Court, however, unanimously rejected this contention, noting that accepting it would create a“bottleneck” that was “manifestly not the intention of Parliament”: TeleZone, at para. 3. [22] TeleZone and the related cases, although they did not decide the precise point in issue here, support the principle thatthe provincial superior courts have the authority to consider and rule on the legality of the actions of federal tribunals when doing so is anecessary step in adjudicating claims properly before the superior courts.

As in my view this principle is central to this case, a briefreview of the key cases is in order. [23] In TeleZone, the plaintiff company sued the federal government in the Ontario Superior Court of Justice, seekingdamages in tort, contract and equity stemming from a decision not to include TeleZone among the successful bidders for licences toprovide personal communication services — essentially a cell phone network.

It alleged that the Minister of Industry Canada hadbreached a term of the department’s policy statement which had accompanied its call for licence applications and had failed to treatTeleZone fairly as required by the tendering process. TeleZone neither impugned the Minister’s decision to issue the licences nor soughta licence for itself. It simply sought damages for the Minister’s allegedly illegal conduct in denying it a licence and for failing to treat itfairly.

The Crown argued that by virtue of the Federal Court’s exclusive jurisdiction under s. 18 of the Act, TeleZone could not advancethese claims in the Superior Court unless it first obtained from the Federal Court an order quashing the Minister’s decision. [24] The Court rejected the Crown’s position, holding that the Ontario Superior Court of Justice could determine whetherthe Minister’s decision was lawful or not for the purposes of the damages claim. The claim as pleaded was “dominated by private lawconsiderations”: TeleZone, at para. 80.

The Court explained that the grant of exclusive jurisdiction in s. 18 must be understood in thebroader context of the Act.

Section 17 of the Act (as amended in 1990) explicitly confers concurrent jurisdiction on the provincialsuperior courts “in all cases in which relief is claimed against the Crown”. The exclusive jurisdiction provision in s. 18 must beunderstood as “a reservation or subtraction from the more comprehensive grant of concurrent jurisdiction in s. 17”: para. 5. Thus, theprovincial superior courts may exercise their concurrent jurisdiction where the attack on a law or an order is essential to the cause of

action and adjudication of that allegation is a necessary step in disposing of the claim: para. 67. As Binnie J. put it on behalf of the Court,s. 18 of the Act does not “shield the Crown from private law damages involving [federal boards, commissions and tribunals] in respect oflosses caused by unlawful government decision making without first passing through the Federal Court”: para. 3.

The provincial superiorcourts, in the context of matters properly before them, have the authority “to determine every legal and factual element necessary for thegranting or withholding of the remedies sought”, including the potential unlawfulness of government orders: para. 6.

Binnie J. wascareful to point out that this principle will not apply unless the validity of the underlying order is genuinely a necessary step in anotherwise valid proceeding and is not simply made to appear as such as the result of “artful pleading”: para. 75. [25] The companion case of McArthur supports the premise relied on by the Federal Court in this appeal. In McArthur,the plaintiff sued the federal Crown in the Ontario Superior Court of Justice.

He sought damages and constitutional remedies for what healleged was wrongful or false imprisonment and emotional harm stemming from time he spent in solitary confinement, segregation and aspecial handling unit. The Court stated the issue to be whether Mr. McArthur could pursue his damages claim in the Superior Court forarbitrary detention and alleged mistreatment without first seeking judicial review in the Federal Court to quash the segregation ordersthat were the basis of his claim: para. 1. Mr.

McArthur alleged that the segregation orders were made without just cause and lacked thereasonable grounds required under the relevant statute. As Binnie J. noted, Mr. McArthur was “putting in issue the lawfulness or validityof the segregation orders, but he [did] so as an element of a private law cause of action over which the provincial superior court ha[d]jurisdiction”: para. 13. [26] The Court rejected the Crown’s position that Mr. McArthur must first seek judicial review in the Federal Court toquash the segregation orders that founded his claim: paras. 2 and 11.

The Superior Court had jurisdiction to entertain the claim becauseits authority extended to “the person and the subject matter in question and, in addition, [because it] has authority to make the ordersought”: para. 17, citing Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863, at p. 960, quoting Brooke J.A. in R. v.Morgentaler (1984), (ON CA), 41 C.R. (3d) 262 (Ont. C.A.), at p. 271. Thus, in adjudicating the claim, the Court couldconsider “the validity of Mr. McArthur’s detention in the context of a damages claim, as well as the impact, if any, of a valid order onCrown liability”: para. 15 (emphasis in original).

Binnie J. concluded that “[t]here is nothing in the Federal Courts Act to give theFederal Court the exclusive jurisdiction to determine the lawfulness or validity of the order of a ‘federal board, commission or othertribunal’ when Mr. McArthur does not seek any of the remedies listed in s. 18 of the Federal Courts Act”: para. 17. [27] I acknowledge that, unlike in McArthur, the appellants in this case do seek a s. 18 remedy, a declaration of invalidity.However, the question at this point in the analysis focuses on the authority of the superior courts to deal with the Guidelines.

McArthurstrongly supports the premise of the Federal Court’s decision in the present case, that is, that the provincial superior courts have theauthority to determine the “lawfulness or validity” of the Guidelines in the course of proceedings properly before them in which doing sois a necessary step in resolving those proceedings.

As I will discuss below, this was a key consideration for the federal courts inexercising discretion not to undertake judicial review. [28] In the last of the relevant cases in the TeleZone line, Canadian Food Inspection Agency, the Agency contested thejurisdiction of the Quebec Superior Court to entertain recourses in warranty alleging that a direction the Agency had issued was thecause of any damage meat producers had suffered from being unable to market some of their product: para. 9.

The Agency’s positionwas that the claims could not succeed without first attacking the lawfulness or validity of its decision by way of judicial review in theFederal Court: paras. 16 and 20. Once again, this Court affirmed that “[s]uccessfully challenging an administrative decision of a federalboard on judicial review is not a requirement for bringing an action for damages with respect to that decision”: para. 21.

Since theQuebec Superior Court had jurisdiction over the parties and the subject matter of the dispute, the claims were properly before it: para. 29. [29] This decision, too, supports the premise of the Federal Court in the present case: the superior court can rule on thelegality of the federal administrative action in proceedings properly before it in which deciding that issue is an essential step. [30] Another line of cases illustrates and supports this approach.

They affirm the view that a provincial superior courtdealing with an application for habeas corpus with certiorari in aid can assess the legality of detention resulting from the decision of afederal board. These cases rejected the contention that certiorari in aid of habeas corpus was no longer available in the provincialsuperior courts by virtue of the exclusive jurisdiction provision in s. 18 of the Act. [31] In R. v.

Miller, (SCC), [1985] 2 S.C.R. 613, the Court noted that Parliament intended to leave withprovincial superior courts “the jurisdiction by way of habeas corpus to review the validity of a detention imposed by federal authority”:p. 624. This parliamentary intent combined with the importance of certiorari in aid to the effectiveness of habeas corpus led the Court toconclude that a provincial superior court has jurisdiction to issue certiorari in aid of habeas corpus to assess the validity of detention: p.625.

Certiorari in aid was considered to be distinct from the writ of certiorari to quash a decision of a federal authority and was thereforenot within the exclusive jurisdiction of the Federal Court by virtue of s. 18. In May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R.809, the Court reaffirmed this principle as it did once again most recently in Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R.502. The Court held that reasonableness of the decision to detain should be regarded as one element of its lawfulness.

It followed that theprovincial superior court may review for reasonableness in deciding an application for habeas corpus even though the court would, ineffect although not in form, be assessing the legality on administrative law grounds of the federal board’s conduct and orders: para. 65.

(4) Conclusion on the First Issue [32] The Federal Court of Appeal held that the Federal Court judge “did not err in law when she concluded that theprovincial superior courts have jurisdiction to determine the vires of the Guidelines in the context of proceedings for which they havejurisdiction under the Divorce Act and to decline to apply them if found to be ultra-vires”: para. 7.

I agree. [33] The Court’s jurisprudence, which I have just reviewed, supports the principle that the provincial superior courts, inthe 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. This means that in the context of family lawproceedings otherwise properly before them, the provincial superior courts can decide that the Guidelines are ultra vires and decline toapply them if doing so is a necessary step in resolving the matters before them.

It follows that the appellants’ position to the contrary on

this point must be rejected and that the premise underlying the decisions of the Federal Courts to decline jurisdiction was correct. B. Second Issue: Did the Federal Courts Err in Refusing to Hear the Judicial Review Application on Its Merits?

(1) Introduction [34] The appellants submit that the Federal Court erred by refusing to entertain their judicial review application. [35] The Federal Court based its discretionary decision to deny judicial review primarily on the greater expertise ofprovincial superior courts in family law. The Federal Court of Appeal upheld that decision and referred to additional factors supportingit.

Invalidating the Guidelines, the Federal Court of Appeal reasoned, would have uncertain consequences in respect of family lawmatters outside the Divorce Act to which the Guidelines apply by virtue of provincial legislation and practice and adjudicating theseissues in the context of a divorce or corollary relief proceeding in the superior courts would ensure a more complete adversarial debate:paras. 14-16. [36] The appellants submit that the federal courts erred because the possibility of challenging the Guidelines in thecontext of child support proceedings in the provincial superior courts is a remedy that is neither adequate nor truly “alternative” forseveral reasons.

Before turning to those submissions in detail, however, it will be helpful to establish the legal framework within whichthis issue must be decided.

(2) Legal Principles (

a) The Discretionary Nature of Judicial Review and Declaratory Relief [37] Judicial review by way of the old prerogative writs has always been understood to be discretionary. This means thateven if the applicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief: see,e.g., D. J. Mullan, “The Discretionary Nature of Judicial Review”, in R. J. Sharpe and K. Roach, eds., Taking Remedies Seriously: 2009(2010), 420, at p. 421; Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, at p. 575; D. P. Jones and A.

S. deVillars, Principles of Administrative Law (6th ed. 2014), at pp. 686-87; Brown and Evans, at topic 3:1100. Declarations of right, whethersought in judicial review proceedings or in actions, are similarly a discretionary remedy: “. . . the broadest judicial discretion may beexercised in determining whether a case is one in which declaratory relief ought to be awarded” (Dickson C.J. in Canada (AuditorGeneral) v. Canada (Minister of Energy, Mines and Resources), (SCC), [1989] 2 S.C.R. 49, at p. 90, citing S.

A. de Smith, Judicial Review of Administrative Action (4th ed. 1980), at p. 513). [38] The discretionary nature of judicial review and declaratory relief is continued by the judicial review provisions ofthe Act. This is underlined both by the reference in s. 18 to the traditional prerogative writs and other administrative law remedies whichhave always been considered discretionary and by the use of permissive rather than mandatory language in relation to when relief may begranted.

Section 18.1(3) provides that “[o]n an application for judicial review, the Federal Court may” make certain orders in the natureof those traditional remedies. This statutory language “preserves the traditionally discretionary nature of judicial review.

As a result,judges of the Federal Court . . . have discretion in determining whether judicial review should be undertaken”: Canadian Pacific Ltd. v.Matsqui Indian Band, (SCC), [1995] 1 S.C.R. 3, at para. 31; TeleZone, at para. 56. [39] The fact that undertaking judicial review is discretionary means that the Federal Court judge’s exercise of thatdiscretion is entitled to deference on appeal.

As this Court noted in Matsqui, an appellate court “must defer to the judge’s exercise of . . .discretion and must not interfere with it merely on the ground that the members of the appellate court would have exercised thediscretion differently”: para. 39, quoting Lord Diplock in Hadmor Productions Ltd. v. Hamilton, [1982] 1 All E.R. 1042, at p. 1046. (

b) Alternative Relief [40] One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative.The leading case is Harelkin, in which a student alleged that a university committee made a decision that violated his procedural rights.There was a right of appeal to the university’s senate, but instead of pursuing it, the student applied for judicial review.

This Court heldthat the judge at first instance had erred in entertaining the judicial review application because he failed to exercise his discretion onrelevant grounds: he did not consider whether the internal appeal process was an adequate alternative remedy that was capable of curingthe denial of natural justice of which the student complained. [41] The Court has applied similar reasoning in a number of cases to dismiss applications for judicial review.

Forexample, in Matsqui, the Court upheld the decision of the Federal Court to decline to hear Canadian Pacific’s application for judicialreview because it could have pursued an appeal procedure established by the Matsqui Band.

In Canada (Auditor General), the Courtrefused judicial review to the Auditor General to challenge a denial of access to information because a political remedy — reporting tothe House of Commons any refusals to comply with requests for information — was an adequate alternative remedy. [42] The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum isadequate so as to justify a discretionary refusal to hear a judicial review application.

These considerations include the convenience of thealternative remedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedialcapacity; the existence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; therelative expertise of the alternative decision-maker; economical use of judicial resources; and cost: Matsqui, at para. 37; C.B. PowellLimited v.

Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 31; Mullan, at pp. 430-31; Brown and Evans,at topics 3:2110 and 3:2330; Harelkin, at p. 588. In order for an alternative forum or remedy to be adequate, neither the process nor theremedy need be identical to those available on judicial review.

As Brown and Evans put it, “in each context the reviewing court appliesthe same basic test: is the alternative remedy adequate in all the circumstances to address the applicant’s grievance?”: topic 3:2100(emphasis added). [43] The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the

context of a particular case: Matsqui , at paras. 36-37, citing Canada (Auditor General) , at p. 96. Assessing whether there is an adequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, but also whether judicial review is appropriate.

Ultimately, this calls for a type of balance of convenience analysis: Khosa , at para. 36 ; TeleZone , at para. 56. As Dickson C.J. put it on behalf of the Court: “Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedy should be exercised.

It is for the courts to isolate and balance the factors which are relevant . . .” ( Canada (Auditor General) , at p. 96). [ 44 ] This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue: see, e.g., Matsqui , at paras. 41-46; Harelkin , at p. 595. David Mullan captured the breadth of the inquiry well: While discretionary reasons for denial of relief are many, what most have in common is a concern for balancing the rights of affected individuals against the imperatives of the process under review.

In particular, the courts focus on the question of 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 . Where the application is unnecessarily disruptive of normal processes . . . the courts will generally deny relief. [Emphasis added; p. 447.] [ 45 ] The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules.

All relevant factors, considered in the context of the particular case, should be taken into account.

(3) Analysis of the Appellants’ Position [ 46 ] The Federal Court exercised its discretion not to hear the judicial review application because Parliament has granted virtually exclusive jurisdiction over the Divorce Act to the provincial superior courts and, by virtue of their expertise in child support matters, those courts are “better placed” than the Federal Court to deal with the validity of the Guidelines : para. 61.

The Federal Court of Appeal essentially adopted this reasoning and further supported it by noting that appellate courts would “significantly benefit from the practical expertise that provincial superior courts have with such matters and from the additional arguments provided by the spouse seeking support as well as those of the AGC if he chose to intervene”: para. 16. These considerations are appropriately concerned more with the unsuitability of judicial review in the Federal Court in this case than with the narrower question of whether a remedy comparable to that sought by the appellants is available elsewhere.

In my opinion, judicial review in the Federal Court is manifestly inappropriate here and that court reasonably exercised its discretion not to engage in it. [ 47 ] At its core, the appellants’ claim is that they are entitled to a ruling on the legality of the Guidelines . They say that they are seeking a purely public law remedy which they can only obtain in the Federal Court and they do not seek, or want, any other remedy.

This claim is founded on three flawed propositions that also undermine the appellants’ more specific submissions. [ 48 ] First, the appellants’ position that they are entitled to a ruling on the legality of the Guidelines through a judicial review is fundamentally at odds with the discretionary nature of judicial review and with the broad grounds on which that discretion may be exercised.

As Brown and Evans put it, “the discretionary nature of [judicial review] reflects the fact that unlike private law, its orientation is not, and never has been, directed exclusively to vindicating the rights of individuals”: topic 3:1100. The appellants thus do not have a right to have the Federal Court rule on the legality of the Guidelines ; the Federal Court has a discretion to do so, which it has decided not to exercise. [ 49 ] Second, the appellants’ position that the alternative is not adequate because it does not provide identical procedures or relief cannot be accepted.

The appellants’ arguments focus too narrowly on how challenging the Guidelines in the context of family law litigation in the provincial superior courts will not provide everything that might be available to them on judicial review. Exercising the discretion to decline judicial review jurisdiction requires the court to take a broader view.

The court should consider such factors as the appropriateness of judicial review in the particular context and, as Mullan put it, whether judicial review is “appropriately respectful” of the statutory framework and of the “normal processes” for which it provides. [ 50 ] In short, the analysis cannot simply look at the alleged advantages of judicial review from the appellants’ perspective so that they can make their point, but also must engage with the more fundamental question of how judicial review interacts with the operation of the Guidelines in family law litigation in the provincial courts.

When this is done, the conclusion is that the appellants’ position is misconceived. [ 51 ] The Guidelines operate and play a central role within a complex area of law, governed by the Divorce Act . Parliament has entrusted, for practical purposes, this entire area of law to the provincial superior courts. Having done so, it would be curious, to say the least, if the legality of a central aspect of that regime were to be finally decided by the federal courts, which, as a result of federal legislation, have virtually no jurisdiction with respect to family law matters.

The appellants’ judicial review proceedings are thus deeply inconsistent with fundamental parliamentary choices about where important family law issues will be determined. [ 52 ] Third, the appellants’ position that obtaining a ruling in the Federal Court would be more efficient than a proliferation of rulings in the various provincial superior courts in individual family law proceedings cannot be accepted. The appellants submit that the alternative remedy of litigation in the provincial superior courts is inefficient and would give rise to multiple proceedings, undermining judicial economy.

This is simply not the case. [ 53 ] The appellants’ position overlooks the fact that a ruling of the Federal Court on this issue would not be binding on any provincial superior court. Thus, regardless of what the Federal Court might decide, before the ruling could have any practical effect, the issue would have to be re-litigated in the superior courts, or, alternatively, litigated up to this Court. Even if there were a binding ruling that the Guidelines were unlawful, a proliferation of litigation would be inevitable.

It would be for the provincial courts to decide the impact of the illegality of the Guidelines on particular support orders and that could only be done in the context of a multitude of

individual cases. A further complexity arises from the fact that all provinces and territories except Quebec have adopted child support guidelines that are very similar to the Guidelines and use the federal child support tables. Those provincial laws are not subject to the appellants’ challenge and yet might well be affected by it.

These practical considerations significantly undermine the appellants’ position that a single judicial review proceeding would resolve the main issue more efficiently. [ 54 ] In light of these considerations, arguments based on the efficiency of judicial review in the Federal Court do not persuade. They are disconnected from both the practical realities and the potential impact of these proceedings. [ 55 ] I turn to the appellants’ remaining specific submissions. They submit that a child support proceeding is not available for some of the appellants and is not appropriate for others.

Mark Auer, Vladimir Auer and Iwona Auer-Grzesiak have no alternative way of addressing the impact they allege that the Guidelines have on them, in part because children cannot bring a child support application and thus cannot raise the validity of the Guidelines in that context.

George Connon is not a party to proceedings under the Divorce Act and would rather not initiate adversarial proceedings to access the alternative remedy: his complaint is against the Governor General in Council, not his wife. [ 56 ] These submissions refer to factors that, while often strengthening the case for engaging in judicial review, cannot reasonably be thought to be entitled to much weight in the circumstances of this case.

While the appellants say that the impact of the Guidelines on spouses and children from other marriages can only be addressed in judicial review proceedings, this must be considered in light of the fact that the appellants’ judicial review proceedings exclude direct adversarial participation by other directly affected parties: spouses and former spouses seeking child support orders or variations of them under the Divorce Act . As the Federal Court of Appeal pointed out, adjudicating the issue in the context of Divorce Act or child support proceedings would ensure full participation of these parties .

This is at least as important a consideration as giving the appellants an opportunity to try to make their point that the Guidelines are unlawful. I agree with the Federal Court of Appeal that while having the legality of the Guidelines determined in a single proceeding in the Federal Court might weigh in favour of the Federal Court hearing the application, it does not outweigh the factors that favour declining jurisdiction.

Moreover, as I discussed earlier, the touted advantages are largely illusory. [ 57 ] The appellants take exception to the Federal Court and the Federal Court of Appeal concluding that the interest of the payor applicants was to seek a downward variation in the amount of child support that they are paying.

Counsel for the appellants emphasized during oral argument that this is not the relief sought in the judicial review application, that it is not the appellants’ characterization of the case and that even if successful in their judicial review application, there would be no immediate effect on most of the child support arrangements that underlie this case. Taking this submission at face value, the appellants seek to engage the discretionary judicial review jurisdiction of the Federal Court in an area outside its core institutional expertise in order to achieve “no immediate effect” for themselves.

This consideration, in my respectful view, strengthens not weakens the case for declining to engage in judicial review in this case. [ 58 ] The appellants also submit that they seek a declaration of invalidity; the “alternative” would give them something else entirely, which they do not want. Quoting TeleZone , at para. 19, they say that “[a]ccess to justice requires that the claimant be permitted to pursue its chosen remedy directly”: A.F., at para. 145. The provincial superior courts do not, as required by TeleZone , have jurisdiction over the order sought.

The appellants maintain that the alternative remedy in the provincial superior courts does not comply with the principle of rule of law. It would not provide instructions to the Governor in Council or permit the appellants to determine whether the Guidelines are properly enacted. In my respectful view, these submissions do not identify any reviewable error on the part of the Federal Court. [ 59 ] As I discussed earlier, the remedy available in an alternative forum need not be the claimant’s preferred remedy or identical to that which the claimant seeks by way of judicial review.

As the Court affirmed in Matsqui , at para. 37, and Harelkin , at p. 588, the remedial capacity of the alternative decision-maker is only one factor to consider in assessing adequacy. Thus, assuming (as the parties did before us) that the provincial superior courts cannot grant the remedy of a declaration of invalidity, this factor is relevant but not decisive. As for the contention that denying access to judicial review is contrary to the principle of the rule of law, I have already explained that the appellants do not have a right to require the Federal Court to engage in judicial review.

Moreover, there is ample opportunity for the legality of the Guidelines to be challenged in family law litigation to which their operation is directly relevant. [ 60 ] The appellants further submit that the courts below misunderstood the expertise engaged by these proceedings, as they assumed that this was a family law case. According to the appellants, this case requires administrative, not family law, expertise because the question is whether the legislation authorizes the making of these Guidelines .

I respectfully disagree. [ 61 ] The appellants request a judicial determination of, among other things, whether the Guidelines are based, as they are required to be by s. 26.1(2) of the Divorce Act , on the principle “that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation”: see A.F., at paras. 12-13.

Making that determination will inevitably engage family law expertise in relation to, among other things, the nature and extent of the obligation “to maintain” children and how the “relative abilities” of parents to do so should be assessed. The provincial superior courts deal day in and day out with disputes in the context of marital breakdown concerning the needs of children, as well as what custody and support arrangements are in their best interests.

They regularly entertain submissions on the suitability of support orders, including setting support for special or extraordinary expenses (s. 7 of the Guidelines ) and entertaining claims of undue hardship related to payment of support (s. 10 of the Guidelines ). This subject-matter expertise will properly be brought to bear on the appellants’ contentions. I agree with the following observations of the Federal Court of Appeal: . . . the vires of the Guidelines should be determined by a court that has developed the particular expertise to properly assess the arguments in their factual context.

This is particularly important when one considers the nature of the arguments set out in paragraphs 14 and 15 of the application and the general allegation at paragraph 16 that the Guidelines are unreasonable and manifestly unjust, which involves looking at the impact of the Guidelines and the child support calculation formula on spouses and children in practice. Practical experience is relevant also when one considers that the Guidelines provide significant discretion to the provincial superior courts to depart from the statutory formula.

According to the Appellants, such courts in fact rarely exercise that discretion. It would be difficult for the Federal Court to assess the validity of that contention. [para. 13]

(4) Summary [62] I conclude that the Federal Court did not make any reviewable error in exercising the discretion not to entertain thisjudicial review application for declaratory relief. [63] Since writing my reasons, I have had the advantage of reviewing the concurring reasons of my colleagues Abella andWagner JJ. As they point out, this case was argued on the basis that there was no dispute that the Federal Court has exclusive originaljurisdiction to grant judicial review remedies directed against regulations promulgated by the Governor in Council.

This assumption bythe parties is hardly surprising given this Court’s recent decision in McArthur, at paras. 2 and 17, aff’g 2008 ONCA 892, 94 O.R. (3d)19, at para. 94, in which we at least implicitly if not explicitly affirmed that s. 18 of the Act gives the Federal Court exclusive originaljurisdiction to issue a prerogative remedy or grant declaratory relief against any federal board, commission or other tribunal onadministrative law grounds. My colleagues point to a number of “concerns” about this assumption and raise various possible argumentsthat might be made to the contrary.

As none of these points was argued, I of course will keep an open mind about them. But I do not wantmy silence on these issues to be understood as indicating that, at least as presently advised, I share the concerns raised by my colleagues. [64] At this point, it seems to me that the language of the Act conferring “exclusive original jurisdiction” can be taken asa clear and explicit expression of parliamentary intent. Similarly, as presently advised I see no reason to doubt that the Governor inCouncil, when exercising “jurisdiction or powers conferred by or under

an Act of Parliament” is a “federal board, commission or othertribunal” within the meaning of s. 2 the Act. Further, the Court in Paul L’Anglais Inc. distinguished between Federal Court jurisdiction torule on constitutionality and jurisdiction to engage in judicial review on administrative law grounds. No one questions that s. 18 does notwithdraw the authority of the provincial superior courts to grant the traditional administrative law remedies against federal boards,commissions and tribunals on division of powers grounds: see, e.g., Paul L’Anglais Inc. at pp. 152-63.

But with respect to judicial reviewon administrative law grounds, the Court expressly confirmed that the Federal Court has exclusive original jurisdiction as described in s.18 of the Act: In adopting s. 18 of the Federal Court Act, . . . Parliament in effect divested the superior courts of the superintending and reformingpower over federal agencies and conferred it on the Trial Division of the Federal Court . . . .

It is well established that the effect of s. 18 [of the Federal Court Act] was to transfer all superintending and reforming power overfederal agencies from the superior courts to the Federal Court . . . . . . . . . .

Parliament has a perfect right to enact that the superintending and reforming power over federal agencies, acting in the administrationof the laws of Canada . . . will be exercised exclusively by the Federal Court, a court created for the better administration of those laws.However, it cannot confer such an exclusive power on the Federal Court when what is involved is no longer the administration of a lawof Canada, but the

interpretation and application of the Constitution. [pp. 153-54 and 162] All of these matters are, of course, for another day. IV. Disposition [65] I would dismiss the appeal with costs. The following are the reasons delivered by [66] Abella and wagner JJ. — The provincial superior courts administer the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.),and the Federal Child Support Guidelines, SOR/97-175.

As the majority states, Parliament has entrusted this entire area of law to theprovincial superior courts. [67] The parties proceeded before us on the assumption that the Federal Court has exclusive jurisdiction to declare invalidall federal regulations promulgated by the Governor in Council. In view of the fact that this issue was not argued, and given itsimportance, in our respectful view this case should not be seen as categorically endorsing this assumption.

Pending argument in anothercase where the issue is squarely raised, our concerns arise from a number of sources. [68] First, any derogation from the jurisdiction of the provincial superior courts “requires clear and explicit statutorywording to this effect”: Ordon Estate v. Grail, (SCC), [1998] 3 S.C.R. 437, at para. 46; Canada (Attorney General) v.TeleZone Inc., 2010 SCC 62 , [2010] 3 S.C.R. 585, at para. 42. A superior court “has jurisdiction to entertain virtually any claimunless that jurisdiction is specifically, unequivocally and constitutionally removed by Parliament”: Sorbara v.

Canada (AttorneyGeneral) (2009), 2009 ONCA 506 , 98 O.R. (3d) 673 (C.A.), at para. 7, leave to appeal refused, [2009] 3 S.C.R. x. It would bepossible to argue, in our view, that s. 18 of the Federal Courts Act, R.S.C. 1985, c. F-7, does not clearly and unequivocally strip theprovincial superior courts of their jurisdiction to declare federal regulations made by the Governor in Council to be invalid onadministrative grounds. [69] In fact, this Court has never held that the Federal Court enjoys the exclusive authority to declare all regulations madeby the Governor in Council invalid.

Only two appellate courts have endorsed that proposition: Saskatchewan Wheat Pool v. Canada(Attorney-General) (1993), (SK CA), 107 D.L.R. (4th) 63 (Sask. C.A.), at pp. 66-69; Messageries publi-maison ltéev. Société canadienne des postes, (QC CA), [1996] R.J.Q. 547 (C.A.).

[70] A contrary view was expressed by several others: Waddell v. Governor in Council (1981), (BCSC), 30 B.C.L.R. 127 (S.C.), appeal dismissed as academic (1982), (BC CA), 142 D.L.R. (3d) 177 (B.C.C.A.); ReWilliams and Attorney-General for Canada (1983), (ON SC), 45 O.R. (2d) 291 (H.C.J.); and British Columbia MilkMarketing Board v. Aquilini, [1997] B.C.J.

No. 843 (S.C.) (QL), rev’d in part on other grounds (1998), (BC CA), 165D.L.R. (4th) 626 (B.C.C.A.), notice of discontinuance filed, [1999] 2 S.C.R. v. [71] Moreover, over three decades ago, this Court decided that provincial superior courts have jurisdiction to declare thefederal laws they apply ultra vires on division of powers grounds so that they are not left with “the invidious task of execution of federaland provincial laws . . . while being unable to discriminate between valid and invalid federal statutes so as to refuse to ‘execute’ theinvalid statutes”: Attorney General of Canada v.

Law Society of British Columbia, (SCC), [1982] 2 S.C.R. 307, at p.328. [72] Provincial superior courts also have jurisdiction to declare the federal laws they apply to be contrary to the CanadianCharter of Rights and Freedoms: Wakeford v. Canada (2002), (ON CA), 58 O.R. (3d) 65 (C.A.), at para. 40, leaveto appeal refused, [2002] 4 S.C.R. vii; Lavers v. British Columbia (Minister of Finance) (1989), (BC CA), 64 D.L.R.(4th) 193 (B.C.C.A.); International Fund for Animal Welfare, Inc. v. Canada (Attorney General) (1998), (ON SC),157 D.L.R. (4th) 561 (Ont. Ct. (Gen. Div.)). [73] Federal regulations are federal law.

Consequently, an argument can be made that the jurisdiction of the provincialsuperior courts to declare invalid the federal laws they apply necessarily includes the authority to declare invalid the federal regulationsthey apply: see e.g. Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7 , [2015] 1 S.C.R. 401;Dyck v. Highton (2003), 2003 SKQB 396 , 239 Sask. R. 38 (Q.B.); Ward v. Canada (Attorney General) (1997), (NL SC), 155 Nfld. & P.E.I.R. 313 (Nfld. S.C. (T.D.)), rev’d on other grounds (1999), (NL CA), 183 Nfld. &P.E.I.R. 295 (Nfld.

C.A.), rev’d 2002 SCC 17 , [2002] 1 S.C.R. 569; Souliere v. Leclair (1998), (ON SC),52 C.R.R. (2d) 156 (Ont. Ct. (Gen. Div.)); Premi v. Khodeir (2009), 198 C.R.R. (2d) 8 (Ont. S.C.J.); Grenon v. Canada (AttorneyGeneral) (2007), 2007 ABQB 403 , 76 Alta. L.R. (4th) 346 (Q.B.). [74] We are not suggesting that Parliament lacks the authority under s. 101 of the Constitution Act, 1867 to grant theFederal Court jurisdiction to declare federal regulations ultra vires.

Our concern is simply whether the Federal Courts Act has given itthe exclusive jurisdiction to do so. [75] The Federal Court was created to remove from the provincial superior courts the jurisdiction to supervise federaladministrative tribunals, not to strip them of their jurisdiction to determine the vires of the federal regulations they apply: Ian Bushnell,The Federal Court of Canada: A History, 1875-1992 (1997), at pp. 157-58; see also Richard W. Pound, Chief Justice W.R.

Jackett: Bythe Law of the Land (1999), at p. 220; John Turner, Minister of Justice and Attorney General of Canada, House of Commons Debates,vol.

V, 2nd Sess., 28th Parl., March 25, 1970, at pp. 5469-71. [76] The view that s. 18 of the Federal Courts Act was designed to consolidate judicial review jurisdiction of federalboards in a national court — and not to interfere with the subject-matter jurisdiction of the provincial superior courts — was laterconfirmed by Doug Lewis, Minister of Justice and Attorney General of Canada, when introducing certain amendments to the FederalCourt Act in 1989: House of Commons Debates, vol.

IV, 2nd Sess., 34th Parl., November 1, 1989, at pp. 5413-14. [77] There is no evidence that Parliament intended to limit the subject matter jurisdiction of the provincial superior courtsby preventing them from determining the vires of the regulations they apply.

At the very least, this argues for caution and full argumentbefore this Court declares — or is seen to declare — that s. 18 of the Federal Courts Act means that the Federal Court has exclusivejurisdiction over all federal regulations, even if they are not part of legislative schemes over which the Federal Court has jurisdiction orexpertise, such as the Criminal Code, R.S.C. 1985, c. C-46, or, as in this case, the Divorce Act. [78] Nor should the companion decisions in Canada (Attorney General) v. McArthur, 2010 SCC 63 , [2010] 3S.C.R. 626, and TeleZone necessarily contradict this view.

With respect, the question of whether the provincial superior courts havejurisdiction to declare federal regulations invalid was not in issue in either case, and neither judgment purported to decide the question ofwhether the Governor in Council is a “federal board, commission or other tribunal” for the purposes of the Federal Courts Act. In fact,the Governor in Council was not implicated in either case.

As such, we respectfully disagree with the majority’s assertion that McArthur“implicitly if not explicitly affirmed that s. 18 of the Act gives the Federal Court exclusive original jurisdiction to issue a prerogativeremedy or grant declaratory relief” against the Governor in Council: para. 63. [79] In McArthur, a prison inmate sought damages in the Ontario Superior Court of Justice against federal prisonauthorities for “arbitrary detention and alleged mistreatment”: para. 1.

The legal issue was whether the inmate had to “first seek judicialreview in the Federal Court to quash the segregation orders that [were] the basis of his claim” before he could proceed with his monetaryclaims in the superior court: para. 1. In TeleZone, a company sought damages in the Ontario Superior Court of Justice for breach ofcontract, negligence, and unjust enrichment resulting from a decision of the Minister of Industry Canada.

The legal issue in that case waswhether the company had to obtain “an order quashing the Minister’s decision” from the Federal Court before it could proceed with itsdamages claim in the superior court: para. 2. [80] In both cases, this Court concluded that s. 18 of the Federal Courts Act does not require a party to seek judicialreview in the Federal Court before initiating an action for damages against the Crown in a provincial superior court. The Court’sdecisions focused entirely on the jurisdiction of the provincial superior courts to issue monetary relief.

As the majority itselfacknowledges, the question of the provincial superior courts’ jurisdiction to issue declaratory relief in connection with federal regulationswas not in issue.

As a result, it is difficult to see how it can be said that these cases “support the principle” that the provincial superiorcourts have only a limited authority, or that they stand for the proposition that the provincial superior courts can only consider theadministrative validity of federal regulations where it is “genuinely a necessary step in an otherwise valid proceeding and is not simplymade to appear as such as the result of ‘artful pleading’”: para. 24.

[81] The majority also suggests that this Court’s decision in Canada Labour Relations Board v. Paul L’Anglais Inc., (SCC), [1983] 1 S.C.R. 147, “expressly confirmed” that s. 18 grants the Federal Court exclusive original jurisdiction “toengage in judicial review on administrative law grounds”, while the provincial superior courts retain only the “jurisdiction to rule onconstitutionality”: para. 64. In our respectful view, the Paul L’Anglais decision supports a contrary

interpretation. [82] Paul L’Anglais was about a decision by the Canada Labour Relations Board, which had found that two mediacompanies were “federal undertakings and that their employees perform work which falls under the jurisdiction established by theCanada Labour Code”. The companies brought a motion in the Quebec Superior Court arguing that their activities fell within “theexclusive authority of the provincial legislatures”. The issue before the Court was whether s. 18 ousted the jurisdiction of the superiorcourt to “review the decision made in the case at bar by the Board”.

The Court held that s. 18 does not have “the effect of superseding thesuperintending and reforming power of the Superior Court and its jurisdiction in evocation over the decision rendered in the case at barby the Canada Labour Relations Board”: pp. 151-52, 158 and 163. Not only did the Court make no reference to any distinction between“constitutionality” and “administrative law grounds”, it made no reference to administrative law grounds at all.

It is with respectinaccurate to state, as the majority does, that the Court made a distinction between “jurisdiction to rule on constitutionality”, andjurisdiction “to engage in judicial review on administrative law grounds” for the purposes of s. 18. [83] What the Court did say in Paul L’Anglais was that it was expressly endorsing and applying its earlier decision inLaw Society (p. 158). In that case, the Director of Investigation and Research had interpreted the Combines Investigation Act, R.S.C.1970, c.

C-23, as giving him jurisdiction to initiate an investigation into the regulations and policies about advertising by members of theLaw Society of British Columbia. The Law Society responded by initiating an action in the British Columbia Supreme Court seeking adeclaration that the Act did not apply to the Law Society or its members, or, to the extent that it did apply, a declaration that the Act wasultra vires Parliament. The legal issue was whether s. 18 ousted the jurisdiction of the superior court to issue declarations in connectionwith federal laws.

The Court concluded that s. 18 did not have this effect: pp. 320, 322-23 and 329. [84] In reaching this conclusion, the Law Society decision too did not distinguish between “constitutionality” and“administrative law grounds” to determine the effect of s. 18 on the jurisdiction of the provincial superior courts. Rather, the Courtexpressly held that the provincial superior courts cannot be stripped of the jurisdiction to declare invalid the federal laws they apply: It is difficult to see how an argument can be advanced

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