TYSOE, J.:—This is an appeal by the Minister of Finance from a judgment of Munroe, J. made on July 27, 1970 directing that a writ of certiorari issue to remove into the Supreme Court of British Columbia a determination made by the appellant on May 1, 1969 pursuant to Section 5(2) of the Succession Duty Act, RS. B.C. 1960, c. 372 as amended (hereinafter referred to as “the Act”) and directing that the determination be quashed without further order and the matter referred back to the appellant for the exercise of his discretion upon proper legal principles. The determination was as follows :
For the purpose of Section 5(1) of the said Act, Mr. & Mrs. P. A. Woodward’s Foundation, referred to in Clause (e) of Mr. P. A. Woodward’s Will dated the 21st day of August, 1962, is not a religious, charitable, or educational organization and that, also for the purpose of Section 5(1) of the said Act, the purpose of the said Foundation is not a religious, charitable, or educational purpose.
Section 5(1) of the Act is an exemption section and its provisions relevant to this appeal are the following:
5. (1) This Act shall not apply so far as liability to pay succession duty is concerned,
(h) to any property transferred by grant or gift, whether made in contemplation of death or otherwise, or devised or bequeathed by any person for religious, charitable, or educational purposes to be carried out in the Province, or on the amount of any unpaid subscription for any like purpose made by any person so dying for which the estate of the deceased is liable; nor
(i) that portion of any property transferred by grant or gift, whether made in contemplation of death or otherwise, or devised or bequeathed by any person for religious, charitable, or educational organization that carries on its work both in and outside of the Province the value of which bears the same ratio to the net value of all the property passing on the death of the deceased that its expenditures for carrying on the work of the organization in the Province bear to the total expenditures of the organization during such period as the Minister may determine; nor
(j) to property given, devised, or bequeathed for religious, charitable, or educational purposes to be carried out in any Province of Canada other than British Columbia that is shown to the satisfaction of the Minister to allow the same exemption on property given, devised, or bequeathed for religious, charitable, or educational purposes to be carried out in British Columbia; nor
(k) to property given, devised, or bequeathed for religious, charitable, or educational purposes to a religious, charitable, or educational organization approved by regulations made under this Act;
Section 5(2) is as follows:
(2) For the purpose of subsection (1), the Minister, in his absolute discretion, may determine whether any purpose or organization is a religious, charitable, or educational purpose or organization and the determination of the Minister is final, conclusive, and binding on all persons and, notwithstanding section 43 or 44 or any other provision of this Act to the contrary, is not open to appeal, question, or review in any Court, and any determination of the Minister made under this subsection is hereby ratified and confirmed and is binding on all persons.
The words following after the words “or educational purpose or organization’’ were added by an amending Act assented to April 3, 1970, being chapter 45 of Statutes of British Columbia 1970. The amending Act also contains the following provisions :
6. Section 5 of the Act is further amended by inserting, after subsection (2) as amended, the following as subsection (2a) :
(2a) Subsection (2) does not apply in respect of estates in which the death of the deceased occurs on or after the first day of April, 1970.
12. (1) This Act, excepting section 5, comes into force on the first day of April, 1970.
(4) Section 5 shall be deemed to have come into force on the first day of April, 1968, and is retroactive to the extent necessary to give full force and effect to the provisions it amends on or after that date, and applies to property passing on the death of a person dying on, from, and after that date.
Mr, P. A. Woodward died on August 27, 1968, so that the amendments made by chapter 45 of Statutes of British Columbia 1970 apply to property passing on his death and to the determination made by the appellant 011 May 1, 1969.
By way of narrative, in his reasons for judgment Munroe, J. said :
After the executors had filed their Affidavit of Value and Relationship, the Minister of. Finance on May 21, 1969 made a “determination” under section 20 of the Act, assessing succession duties payable under the Act in the amount of $1,730,536.88. He thus assessed the residuary gift to the Foundation as if it were a bequest not to a “charitable organization” but, rather, to a “stranger”. From that assessment the executors appealed to the Minister pursuant to the provisions of section 43. They complained of two things: first, an error in what was included in the widow’s portion, and second, the failure to exempt the gift to the Foundation as being a charitable gift. In response to such notice of appeal, a Revised Assessment was issued on July 21st, 1969. It gave effect to the first ground of complaint but continued taxing the gift to the Foundation as one to a “stranger”. Since there is no such thing as a “Revised Assessment” provided for in the “Succession Duty Act”, the executors were in some doubt as to its legal effect. Accordingly, on August 27, 1969, they issued a further Notice of Appeal to the Minister under section 43 of the Act. That brought no response. After waiting for something further to happen, the executors decided to treat the Revised Assessment as being the decision of the Minister under section 43(3). Accordingly, being dissatisfied with the decision of the Minister, the executors appealed therefrom on September 11, 1969, to a Judge of the Supreme Court of British Columbia under section 44 of the Act. The hearing of that appeal came on before Aikins, J. on December 8, 1969. A preliminary objection was taken by the Crown, of which notice was given on December 3rd, to the effect that- the Court lacked jurisdiction to hear such appeal because no decision had then been made by the Minister under section 43(3), and accordingly there was in effect no decision against which the Foundation could appeal. His Lordship gave effect to that submission and dis missed the appeal. On January 6, 1970, an appeal was launched from that ruling to the Court of Appeal and service of the Notice of Appeal was completed by January 14th, 1970. By February 5th, 1970 the Appeal Book had been filed and the date for the hearing of the appeal confirmed. The Legislative Assembly of the Province of British Columbia met on January 22nd, 1970. On February 6th, 1970, the Minister of Finance introduced Bill 11, “An Act to Amend the Succession Duty Act”. The Bill so introduced was enacted and came into force on April 1st, 1970, and is now Chapter 45 of the Statutes of British Columbia, 1970. By virtue of the combined effect of the amendment to section 5(2) of the Act and section 12(4) of the Amending Act, the right of appeal by the Foundation to the Minister under section 43 and to this Court under section 44, was removed. When the appeal from the Judgment of Aikins, J. came before the Court of Appeal on May 14, 1970, the executors conceded that the substratum of their appeal, which, if successful, would have had the result of returning the proceedings to Mr. Justice Aikins with a direction that he decide upon the merits, was gone. The appeal was, accordingly, dismissed.
To the foregoing I would add that the respondents launched their application for a writ of certiorari on March 18, 1970. I do not find it necessary for the purposes of this judgment to incorporate therein Sections 43 and 44 of the Act. They have reference to an assessment of succession duties by the Minister and the rights of appeal against it.
In the Court below and in this Court the respondents submitted that while Section 5(2) of the Act authorizes the Minister to determine whether any purpose or organization is a religious, charitable, or educational purpose or organization, it does not authorize him to say it is not. Munroe, J. rejected that submission and I am in respectful agreement with that rejection and the learned Judge’s reasons therefor.
The writ of certiorari was granted and the determination of the Minister quashed on the ground that the determination was made without any notice being first given to the respondents and without them being afforded an opportunity to be heard, and so the Minister acted contrary to the principles of natural justice and lost his jurisdiction to act under Section 5(2) of the Act. In his reasons for judgment the learned Judge below said :
Assuming the correctness of such conclusions, there arises next for consideration the allegation of the applicants that the Minister lost the jurisdiction given to him by the Act when he made his determination under Section 5(2) without notice to the executors of the estate, contrary to the principles of natural justice. Counsel for the Minister conceded during the hearing that no such notice was given and conceded also, rightly I think, that when the Minister made such determination he was exercising judicial or quasijudicial duties, particularly in the light of the 1970 amendments: Giese v. Williston (1963), 41 W.W.R. 331. Accordingly, the law is clear that he must act in good faith and give a fair opportunity to the executors and to the Foundation for correcting or contradicting any relevant statement prejudicial to their view: Board of Education v. Rice, [1911] A.C. 179; Western Mines Ltd. v. Greater Campbell River Water District (1967), 58 W.W.R. 705.
and ;
Here, no opportunity to be heard was given and such failure constituted a denial of natural justice, which ousted the jurisdiction of the Minister; and certiorari is available as a remedy unless the amendments have the effect of depriving this Court of any jurisdiction to review the determination made by the Minister.
The learned Judge went on to hold that the determination of the appellant made on May 1, 1969 in breach of the principles of natural justice was void. In this Court counsel for the appellant did not contend there is any error in these findings. He said that, while he would not concede their correctness, he would not argue they are erroneous. For my part, I agree with the findings.
The learned Judge below further held that Section 5(2) of the Act and in particular the last words ‘‘and any determination of the Minister made under this subsection is hereby ratified and confirmed and is binding on all persons’’ do not save the determination. He said :
The Legislature could not ratify or confirm a determination that was not then in existence any more than it could ratify, confirm or make binding a determination which was a nullity at law. A determination made, as this one was, in breach of the principles of natural justice, is void.
The submission of the appellant as set out in his factum is as follows :
“THE LEARNED CHAMBERS JUDGE WAS WRONG IN HOLDING THAT THE LEGISLATURE COULD NOT RATIFY, CONFIRM OR MAKE BINDING ON ALL PERSONS THE SAID DETERMINATION AND SHOULD HAVE HELD THAT THE LEGISLATURE COULD AND DID RATIFY, CONFIRM AND MAKE BINDING ON ALL PERSONS THE SAID DETERMINATION AND THAT BY THAT ACT THE COURT WAS PRECLUDED FROM REVIEWING THE SAID DETERMINATION AS IT WAS THEREBY AN ACT OF THE LEGISLATURE.
The appellant submits that the Legislature had the power to validate a determination of the Minister whether that determination was merely voidable or actually void and further that the 1970 amendments to Section 5(2) effectively achieves this purpose. ’ ’
The contention of the respondents is that, the principles of natural justice having been violated, the impugned determination is a nullity, a thing of naught and a mere nothing, and as such is incapable of being ratified and confirmed. The respondents submit it is idle to speak of ratifying and confirming something which has no existence. Further, the respondents say that, being a nullity, there has been no determination within the meaning of Section 5(2) of the Act.
Counsel referred this Court to a number of cases, chief amongst them being Ridge v. Baldwin, [1964] A.C. 40; [1963] 2 All E.R. 66; Durayappah v. Fernando and Others, [1967] 2 All H.R. 152; Anisminic Ltd. v. The Foreign Compensation Commission, [1969] 2 A.C. 147; [1969] 1 All E.R. 208. These authorities were cited on the subject of whether the determination in question should be considered “voidable” or ‘‘void’’ or ‘‘a nullity’’. I do not propose to discuss them. I respectfully agree with the words of Lord Evershed in Ridge v. Baldwin at the foot of p. 88 in the All E.R. :
In the vast majority of cases it matters not in the result whether the decision is said to be void or voidable but avoided. It is sufficient for the court to say that the decision cannot stand. In truth, as Sir Frederick Pollock pointed out (see Pollock on Contract, 13th ed., p. 48) the words “void” and “voidable” are imprecise and apt to mislead.
I think the same comment might be made about the word “nullity”.
In the Shorter Oxford Dictionary the word ‘‘void’’ is defined as :
‘‘o. b. ineffective, useless, leading to no result
6. having no legal force; legally null, invalid or ineffectual”
The definition of the word ‘‘null’’ in that dictionary is:
“void; of no legal or binding force ; of no efficacy ; invalid.”
In Earl Jowitt’s Dictionary of English Law appears the following under the heading ‘‘void’’, ‘‘an agreement or other act is said to be void when it has no legal effect, or not the legal effect which it was intended to produce.’’ And ‘‘null and void’’ is said to mean ‘‘void’’.
The remedy applied by the courts in certiorari cases is the “quashing” of the impugned decision. In the present case Munroe, J. ‘‘quashed’’ the determination of the appellant made on May 1, 1969. The word ‘‘quash’’ is defined in the Shorter Oxford Dictionary as:
‘ ‘ To annul, to make null or void (a law, decision, election etc.) : to throw out (a writ, etc.) as invalid; to put an end to (legal proceedings) ”’
And in Karl Jowitt’s Dictionary :
“To discharge or set aside an order of an inferior court; to overthrow or annul, as to quash an indictment, or order of justices, or a rate, See CERTIORARI.”
To “quash” would seem to imply the present existence of the thing being quashed.
It is my opinion that the determination made by the appellant on May 1, 1969 was “void” in the sense of lacking validity and so without legal force. With deference to contrary opinion, I am unable to regard it as a thing of naught, a mere nothing and without existence. If it be a ‘‘nullity’’ in legal terms, it nevertheless existed as a determination in fact when the amending Act was passed in April 1970.
This brings me to the proper construction of Section 5(2) of the Act.
There are certain well established principles that must be kept in mind. They are set out in Maxwell on Interpretation of Statutes, 12th Ed. I shall quote at page 1 :
Granted that a document which is presented to it as a statute is an authentic expression of the legislative will, the function of a court is to interpret that document according to the intent of them that made it. From that function the court may not resile: however ambiguous or difficult of application the words of an Act of Parliament may be, the court is bound to endeavour to place some meaning upon them.
and at page 29 :
Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. “The decision in this case,” said Lord Morris of Borth-y-Gest in a revenue case, “calls for a full and fair application of particular statutory language to particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision.” Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient: words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to “leave the remedy (if one be resolved upon) to others’’.
at page 36 :
A construction which would leave without effect any part of the language of a statute will normally be rejected. Thus, where an Act plainly gave an appeal from one quarter sessions to another, it was observed that such a provision, though extraordinary and perhaps an oversight, could not be eliminated.
page 47 :
Statutory language is not read in isolation, but in its context. and :
In the interpretation of statutes, the interpreter may call to his aid all those external or historical facts which are necessary for comprehension of the subject-matter, and may also consider whether a statute was intended to alter the law or to leave it exactly where it stood before. But although “we can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge . . . we can only use these matters as an aid to the construction of the words which Parliament has used . . .”
It appears to me that Section 5(2) is made up of three parts which together comprise the whole. The first part confers upon the Minister full power, in his absolute discretion, to determine whether any purpose or organization is a religious, charitable, or educational purpose or organization. The second part makes the determination of the Minister final, conclusive, and binding on all persons and not open to appeal, question, or review in any Court. The third part ratifies and confirms and makes binding on all persons any determination of the Minister. All for the purpose of subsection (1) of Section 5. It has not been suggested that any part of the section is ultra vires the provincial legislature.
The words of the first two parts of the subsection are so wide and compelling that they prevent any attack being made on the determination of the Minister by legal process, save only in the case where the Minister acted without or in excess of jurisdiction, and I think we must assume the legislature was aware of this. The third part is redundant and adds nothing to the first two parts unless it saves the determination even where there has been lack of jurisdiction to make it. Indeed, unless it is construed as doing that, the words ‘and any determination of the Minister made under this subsection is hereby ratified and confirmed and is binding on all persons’’ are reduced to futility and without effect. In Maxwell on the Interpretation of Statutes at page 45 appears the following :
“Tf the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result?’ (Nokes v. Doncaster Amalgamated Collieries, Ltd., [1940] A.C. 1014, per Viscount Simon L.C. at p. 1022. Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. (Shannon Realties, Ltd. v. Ville de St. Michel, [1924] A.C. 185, per Lord Shaw at pp. 192, 193. And see Engineering Industry Training Board v. Samuel Talbot (Engineers) Ltd., [1969] 2 W.L.R. 464).
In accordance with these principles, the court should avoid interpretations which would leave any part of the provision to be interpreted without effect; . . .
In the Shorter Oxford English Dictionary the following definitions appear :
“Any” ‘‘3. Qualitative: Of any kind or sort whatever.’’
“Ratify” “1. trans. To confirm or make valid (an act, compact,
promise etc.) by giving consent, approval, or formal sanction (esp. to what has been done or arranged for by another ).’’
“Confirm” “1. trans. To make firm or more firm, to add
strength to, establish firmly. 2. To make valid by formal authoritative assent; to ratify, sanction.’’
Applying these definitions and the principles of construction set out supra, I am of the opinion Section 5(2) sanctions and makes valid the determination of the appellant Minister made on May 1, 1969. Though the determination, when made, was an invalid one and without legal force it was, in my view, nevertheless a “determination” within the meaning of Section 5(2) of the Act.
On July 8, 1970, when the respondents’ application for a writ of certiorari came on for hearing, the impugned determination had been validated and made legally effective by the action of the legislature. It seems to me that had the effect of cutting the ground from under the respondents’ feet and made the determination immune from attack by certiorari or other legal. process.
I confess that I have arrived at these conclusions with some reluctance.
Since writing the foregoing I have had the opportunity of reading the reasons for judgment of my brother Bull. I respectfully agree with him and for the reasons he has set out that the respondents had the competence and necessary status to maintain these proceedings. I, too, would allow the amendment to the notice of appeal sought by the appellant.
I would allow the appeal and set aside the order made below. It becomes unnecessary for me to consider the cross-appeal.
BULL, J.:—This is an appeal from the judgment of Munroe, J. ordering (i) the issue of a writ of certiorari with respect to a determination made on May 1, 1969, by the Minister of Finance of the Province pursuant to the provisions of Section 5(2) of the Succession Duty Act, 1960 R.S.B.C., c. 372, as amended, (ii) the quashing of that determination without further order, and
(iii) the reference of the matter back to the Minister for a determination to be made in the exercise of his discretion on proper legal principles. The impugned determination so quashed was that the ‘‘Mr. and Mrs. P. A. Woodward’s Foundation’’, to which the late Percival Archibald Woodward (the ‘‘deceased’’) left the residue of his estate, was not a ‘‘religious, charitable, or educational organization’’ and that its purpose was not a “religious, charitable, or educational purpose’’ under Section 5(1) of the statute. As a result of that determination the residuary bequest was excluded from the exemption from succession duty provided by Section 5(1), and duty was assessed with respect thereto in an amount slightly over $1,600,000.
The deceased died on August 27, 1968 leaving a large estate. After providing for certain legacies and a life trust for his widow, he bequeathed the residue of his estate, valued at slightly over $4,000,000 to his trustees (the respondents) upon trust:
“To grant, transfer, assign, deliver and set over unto Mr. & Mrs. P. A. Woodward’s Foundation for use by it in carrying out its objects all of the residue of my estate.”
That beneficiary (the “Foundation”) was incorporated in 1951 under the Societies Act and its declared objects were to operate in the Province exclusively as a charitable organization and for such purpose to yearly use the whole of its net income for charitable objects in the Province. At all relevant times it was registered as a qualified Canadian Charitable Organization under the Income Tax Act of Canada.
The respondents filed their Affidavit of Value and Relationship with inventories as required by the Succession Duty Act at the time of application for probate of the deceased’s last Will and codicil thereto. Probate was granted on December 16, 1968. On May 21, 1969 an assessment of duties was issued pursuant to Section 20 of the statute wherein duties were assessed on the residuary bequest to the Foundation as to a ‘‘stranger’’ in the amount of just over $1,600,000. In other words, the respondents’ application to have that bequest considered a duty-free one under Section 5(1) was not reflected in the assessment. Later, a revised assessment was received which corrected an error with respect to the widow’s life interest, but maintained the tax earlier assessed against the residuary bequest to the Foundation. The respondents appealed against both the assessment and revised assessment to the Minister of Finance under Section 43 of the Act, and getting no response and assuming that the revised assessment was a determination of the appeals, appealed further under Section 44 to a Judge of the Supreme Court. That appeal was never heard on its merits, as the learned Supreme Court Judge, before whom the appeal came on December 8, 1969, dismissed it upon acceding to a preliminary objection taken by the Department that the appeal was premature. It was only a few days before that hearing that the respondents became aware, through an affidavit of the Assessor of Probate and Succession Duties filed with respect to the appeal, that on May 1, 1969, the Minister of Finance had made a determination under Section 5(2) that no exemption would be given the Foundation as a religious, charitable, or educational organization. A further appeal was taken to this Court from that dismissal, but before it was heard an amendment to the Succession Duty Act was passed by the Legislative Assembly, 1970 8.B.C., c. 45, assented to on April 3, 1970, which {inter alia) had the apparent effect of extinguishing all rights of appeal under Sections 43 and 44. In any event, the appeal was dismissed by this Court, the respondents (the appellants in that appeal) conceding that the amendment had removed the substratum therefrom.
The amending statute was introduced on Februaary 11, 1970 into the Assembly by the Minister of Finance and the respondents, no doubt considering that the amendment would become law in due course and would extinguish any existing or future appeals under Sections 43 and 44, launched these proceedings on March 18, 1970 for a writ of certiorari directed not to the assessments as such of the Minister of Finance under Section 20, which had been subject of the abortive appeals, but to the recently discovered determination by the Minister under Section 9(2). The motion was not only for the issue of a writ of certiorari and the quashing of that determination thereunder, but also for a declaration that the bequest to the Foundation was exempt from succession duties pursuant to the provisions of Section 5(1) (h) of the statute.
The relevant provisions of the Succession Duty Act, as they stood at the date of death and thereafter up to April 3, 1970 were as follows:
5. (1) This Act shall not apply so far as liability to pay succession duty is concerned,
(h) to any property transferred by grant or gift, whether made in contemplation of death or otherwise, or devised or bequeathed by any person for religious, charitable, or educational purposes to be carried out in the Province, or on the amount of any unpaid subscription for any like purpose made by any person so dying for which the estate of the deceased is liable; nor
Although subsections (1), (j) and (k) also deal with gifts, devises, and bequests for religious, charitable, or educational purposes, and to religious, charitable, or educational organizations, it is unnecessary to set them out as both counsel advised us that (h) alone was the relevant exemption clause so far as this estate was concerned. Section 5(2), as at the date of death and prior to amendment in 1970, read as follows:
(2) For the purpose of subsection (1), the Minister, in his absolute discretion, may determine whether any purpose or organization is a religious, charitable, or educational purpose or organization.
Section 4 of the 1970 amending statute, 1970 S.B.C., ce. 40, amended Section 5(2) as above by adding at the end thereof the following :
and the determination of the Minister is final, conclusive, and binding on all persons and, notwithstanding section 43 or 44 or any other provision of this Act to the contrary, is not open to appeal, question, or review in any Court, and any determination of the Minister made under this subsection is hereby ratified and confirmed and is binding on all persons.
I will refer hereafter to this amendment as the “1970 amendment”. Further, Section 12(4) of the 1970 amending statute provided that the above words added to Section 5(2) should be deemed to have come into force on April 1, 1968, and be retroactive to that date to give full force and effect on or after that date and be applicable to property passing on the death of a person dying on, from and after that date.
It should be noted that the 1970 amending statute made other substantial amendments to the Act, including (a) the repeal of subsections. (h), (i), (j) and (k) of Section 5(1) and substituting therefor a completely different form of charitable exemption from duty effective for property passing on the death of a person dying on, from, and after April 1, 1970, and (b) the provision that Section 5(2) should not apply at all with respect of estates in which the death of the deceased oceurs on or after April 1, 1970.
The strange result of these amendments is that for persons dying before April 1, 1968, the old exemptions under Section 5(1) and the old Section 5(2) giving the absolute discretion to the Minister to make a determination (subject to full rights of appeal) applied irrespective of whether such determination be made at any time before or after April 1, 1970. But for persons dying after March 31, 1968 but before April 1, 1970, the old exemptions applied, but any determination, whether made during that period or at any time thereafter, was declared final, conclusive and binding and not open to appeal, question, or review by any Court and any such determination made by the Minister under Section 5(2) is ratified and confirmed. As the deceased died after March 31, 1968, and before April 1, 1970, the second category applied to his estate, and the determination of the Minister made on May 1, 1969, against the charitable status of the residuary bequest to the Foundation purported to become subject to those retroactive privative provisions added to Section 5(2) by the 1970 amendment.
The respondent based their application for certiorari on the grounds that the Minister lacked jurisdiction to make the determination that the bequest to the Foundation was not exempt from duty,
(a) as such determination, being of judicial or quasi-judicial character, was made without notice to the respondents or the Foundation ; and hence contrary to the principles of natural justice,
(b) as he acted without evidence, or alternatively, sufficient evidence in support thereof,
(ec) as such determination was beyond the powers conferred by the statute on him, and
(d) as he was biased by reason of his introduction of the depri- vatory legislation in 1970.
Mr. Justice Munroe did not find it necessary to deal with grounds (b) and (d) above. He rejected the respondents’ submission under (c), which in effect was that the proper construction of Section 5(2) was that the Minister could grant exemptions by conferring a religious, charitable, or educational status to an organization or purpose, but he could not deprive an organization or purpose that was religious, charitable or educational of its charitable nature or purpose. He found, in my respectful opinion quite correctly, that Section 5 of the statute must be interpreted that ‘‘the legislature has granted to the Minister of Finance the sole right and the duty to determine whether or not, for the purpose of determining liability or exemption from succession duty, the Foundation or its purpose is a religious, charitable, or educational purpose or organization”. I mention this conclusion of the learned Judge only because the respondents in this appeal have reasserted their argument and submitted that they can support the Judgment below on that eround as well as upon the one on which they were successful, that is, on ground (a). On that latter ground (a) it was held that the Minister lost or exceeded the jurisdiction given to him under Section 5(2) as when he made his determination thereunder he acted contrary to the principles of natural justice. The Judge pointed out that it was conceded before him that the Minister was exercising judicial or quasi-judicial duties and that he gave no notice and no fair opportunity to the respondents, or to the Foundation, to be heard, or to correct or contradict that which was alleged against the exemption they claimed. Having so found, he then concluded that the respondents were entitled to the issue of certiorari, and the quashing of the determination without further order, unless the 1970 amendment adding the additional words retroactively to Section 5(2) had the effect of depriving the respondents of that remedy or of validating the invalid determination. On this issue, he found the 1970 amendment did not have such effect. In result, the writ of certiorari was ordered issued as the Minister of Finance had exceeded his jurisdiction in making his determination in violation of natural justice and the rule expressed in the maxim audi alteram partem, the determination. was ordered quashed without further order, and the matter was referred back to the Minister for the exercise of his discretion under Section 5(2) on proper legal principles. The additional application for a declaration of exemption from duty of the bequest in question was refused.
The Minister of Finance now appeals that decision and the respondents, by way of cross-appeal, ask for variation of the judgment by the addition of that declaration of exemption which was denied. -‘
Two main grounds of appeal were asserted. both were submitted on the basis that no quarrel was raised with the learned Judge’s finding that the Minister in making the determination in question was exercising judicial or quasi-judicial duties, that he was. bound to act in good faith, and that, unless or to the extent abrogated, varied or modified by statute, the principles set out in the maxim audi alteram partem would have full application and a failure to comply therewith would result in loss or excess of jurisdiction subjecting the determination to being quashed. The first main ground of appeal, concisely put; was that under that basis and those circumstances outlined, the determination was not void ab initio, but only voidable at the instance of the only person affected by the decision, that is, the Foundation and not at the instance of the executors of the estate. It was the executors alone who launched: the motion for certiorari, and the beneficiary (which alone became assessed with the objection- able duty) was not a party to, or represented at, any of the proceedings and had not, as a person aggrieved, challenged the Minister’s determination. Therefore, urged the appellant, the determination could not be successfully attacked except at the instance of the Foundation, and as that has not been done, at the worst all that could be said was that it was voidable, but not void. The appellant relied on the decision of the Judicial Committee in Duray appah v. Fernando and Others, [1967] 2 A.C. 337; [1967] 2 All E.R. 152; [1967] 3 W.L.R. 289. In that case proceedings were taken by way of certiorari to quash an order of the Minister of Local Government dissolving a Town Council in violation of the principles of natural justice as reflected in the maxim audi alteram partem. The proceedings were taken by the Mayor and not by the Town Council. It was held that the order could have been held void ab initio in an action by that Council, yet it was so voidable only at the election of the Council, and it was not a nullity; accordingly the Mayor, who was not representing the Council in the certiorari proceedings, could not complain of the order and could not maintain the proceedings.
During this portion of the appellant’s argument the Court pointed out that, although in one aspect it was directed as a support for the second main ground of appeal, in another it was clearly challenging the competency or status of the respondents to maintain the proceedings, a position which had not been suggested below and had not been included in the Notice of Appeal. The appellant immediately moved to amend his Notice of Appeal to add such a ground of appeal. The application was opposed by the respondents, but as the argument had proceeded so far, the Court reserved judgment on the application and heard both parties in full on the merits. Although it is clear that the new ground of appeal was raised very much as an afterthought, I can see no prejudice to the respondents and I would allow the amendment.
Reverting to the submission, in my view the Durayappah decision is clearly distinguishable from the case at bar. There, the Mayor was acting on his own behalf and not on that of the Town Council, and he was not able to show that he was representing or suing on its behalf or had any other good reason to be acting for it. Here the situation is completely different. In general it is fair to say that, except when a beneficiary of an estate is separately represented, or where there is some other special reason to the contrary, the executors represent the estate as a whole and the interests of all the persons entitled thereto, particularly in such matters as the ascertainment, negotiation and settlement of claims, debts, duties and taxes attracted by, or exigible on, the decease of a testator. In particular, the federal Estate Tax Act and the Succession Duty Act both require the executors to prepare and file all the necessary forms and make all the information disclosures leading up and directed to tax or duty assessments. This, of course, involves the duty of putting before the fiscus claims for exemption or diminution of taxes and duties. This is one of the very important tasks of a personal representative and I cannot think that his active participation in this sphere of administration of estates has been challenged. The executor is personally liable for the payment of federal estate taxes as assessed, although, because of constitutional restrictions, he is not personally liable for payment of succession: duties under the provincial Succession Duty Act. Nonetheless, he is obligated to deduct the duty from the property in respect to which duty is assessed, hold it in trust for, and pay it to, the Crown, and is subject to severe penalties for failure so to do. In this particular estate (where both executors were directors of the Foundation and one was its first Vice-President and the other its Secretary), the executors claimed the charitable exemption for that residuary legatee and pursued that claim through the appeals and proceedings. I cannot accept the submission that the executors had no status to pursue these proceedings or that they were defective because the Foundation for which the litigation has been openly pursued has not been joined as a formal party. It is my view that the executors were properly pursuing the claim of the Foundation — namely, the procuration of a charitable exemption which was an estate matter of vital importance, involving, as it did, succession duty amounting to about thirty-six percent of the total value of the estate.
The second ground of appeal was the principal one upon which the appellant relied. It is that the learned Judge erred in holding that the retroactive 1970 amendment to Section 5(2) purporting to ratify and confirm determinations of the Minister under that section did not have that effect when, as here, a determination was made in breach of the principles of natural justice.
The following extracts from his reasons for judgment show clearly the rationale upon which the learned Judge concluded that the 1970 amendment did not have the effect claimed by the appellant. He said, first, and in my view, quite properly, that:
. . . and certiorari is available as a remedy unless the amendments have effect of depriving this Court of any jurisdiction to review the determination of the Minister. Counsel for the Minister so asserts, relying on the words added to Section 5(2) in 1970.
He then proceeded :
I reject such submission. It has been held repeatedly in Canadian courts that enactments which purport to oust or deprive the court of jurisdiction to review the judicial or quasi-judicial acts of a person or tribunal exercising a discretionary authority under a statute are ineffective for that purpose where a breach of the principles of natural justice has occurred, and that is so even where the enactment has provided that the decision of such person or tribunal is final and that he or it shall not be restrained by certiorari or otherwise by any court: Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18; Saltfleet Board of Health v. Knapman, [1956] S.C.R. 877; Battaglia v. Workmen’s Compensation Board (1960), 32 W.W.R. 1; Judicial Review of Administrative Action (2nd ed.) by S. A. de Smith at pp. 344 et seq.; Ke Rammell (1962), 37 W.W.R. 49. However, counsel for the Minister submits that the words “and any determination of the Minister made under this subsection is hereby ratified and confirmed and binding on all persons” make the principles of law above referred to inapplicable to this case. He says, in effect, that the determination of the Minister is valid and binding and not subject to review in any court, notwithstanding that in arriving at his decision the Minister may have contravened the principles of natural justice. He says that the words “any determination” means just that—a determination, however much it may violate legal principles, must stand because it has been ratified in advance by the Legislature. I reject that submission. The Legislature could not ratify or confirm a determination that was not then in existence any more than it could ratify, confirm or make binding a determination which was a nullity at law. A determination made, as this one was, in breach of the principles of natural justice, is void. Counsel says, and I agree, that the Legislature is supreme when enacting legislation within its constitutional powers. It could have enacted legislation saying that for the purpose of Section 5(1) of the Succession Duty Act, the Foundation is not a charitable organization and does not have a charitable purpose and that would have been the end of the matter; but it did not do that.
The appellant does not question, as he cannot, the law enunciated in the many cases decided by the Supreme Court of Canada, as well as by the House of Lords and the Judicial Committee, in which so-called privative (or ‘‘no-certiorari’’ or “no-appeal” or ‘‘preclusive’’ or “finality” or ‘‘ouster’’, as they are often called) clauses have been held as a matter of construction to be effective only with respect to matters decided within the scope or ambit of the authority given by the Statute (no matter how wrong in law or in fact) and to be ineffective with respect to matters decided outside the tribunal’s statutory jurisdiction or competence. The leading cases were all cited to us, and their ratio was largely relied upon by the respondents. I can see no useful purpose in discussing those cases in detail as the question here (as it was in them) is simply, as stated by the learned Judge, whether the effectiveness of those ratifying and confirming provisions of the 1970 amendment is limited to in- valid determinations of the Minister made within his proper jurisdiction or, as argued by the appellant, the provisions are to be properly construed so as to cover invalid determinations of the Minister made beyond his competence because of failure to abide by the principles of natural justice, although purportedly made within that competence.
There can be no gainsaying but that such a problem is to be determined as a matter of statutory construction, a question involving as to what, or the extent of what, Parliament or a Legis. lature intended or meant to cover by its enactment and whether the language used accomplished that end: See Sanders v. The Queen, [1970] S.C.R. 109. And, in view of the authorities, I am satisfied that in order that such an enactment be given the protective cover claimed here by the appellant that that intention must be clearly apparent from the language of the statute used. A superior court’s jurisdiction to review and remedy improper conduct of an inferior tribunal arising out of excess of authority must remain paramount unless it is clear that it has been removed by the Legislature.
The learned Judge in his reasons, supra, appears to have rejected the interpretation sought by the appellant on the grounds that (i) the Legislature could not ‘‘ratify or confirm a determination which was not then in existence’’ and that (ii) it could not confirm or make binding ‘‘a determination which was a nullity’? — which he found the Minister’s determination in question to be. He does agree to the supremacy of the Legislature, but, apparently, seems to limit it to a situation where it specifically and expressly should enact that the Foundation was not a charitable organization coming within Section 5(1) of the statute. If what he meant by the first statement was that the legislation was ineffective to validate any determination not then made, I respectfully suggest that that has no relevance. The impugned determination of the Minister was made on May 1, 1969, and the clear and expressed effect of the legislation which came into effect on April 3, 1970, was to ratify all determinations made by the Minister under Section 5(2) from April 1, 1968, two years earlier. It is immaterial for this case to consider what, if any, effect the ratification and confirmation provisions would have on a determination made after April 3, 1970. On the other hand, if his reference to a determination ‘‘not then in existence” meant only one which was a ‘‘nullity’’, as expressed in his second statement above, I do not agree that the Legislature cannot validate, make binding, confirm or ratify a de facto determination which is a nullity or void. It can so do, if a statute so enacts. Although I do agree with the learned Judge that the Legislature could, as he indicated, specifically declare the Foundation not to be a charitable organization, I must disagree if he meant to imply that it must go that far in order to prevent interference by the Court. As I have already indicated, if the determination of the Minister actually made under Section 5(2) was in law invalid and hence nothing more than a purported determination, the Legislature with apt language could effectively validate it. Again, it is but a matter of determining what the Legislature in this particular 1970 amendment meant to do as determined by the language it used considered in proper context.
A great deal of argument was heard directed to the question of whether or not the determination of the Minister was void or voidable. That is a question that has certain difficulties which have been much discussed in many leading decisions such as Ridge v. Baldwin and Others, [1964] A.C. 40, [1963] 2 All E.R. 66; Anisminic Ltd. v. The Foreign Compensation Commission, [1969] 2 A.C. 147, [1969] 1 All E.R. 208; and Durayappah v. Fernando and Others, supra. In view of the conclusion to which I have come as to the proper construction of the 1970 amendment, it is unnecessary, for me to reach a decision on the point. 1 approach the problem on the basis that the determination was void, in the sense of being invalid and a nullity, which is the one most favourable to the respondents. In a situation as here, I can see no relevance to subtle distinctions between ‘void”, “invalid” and a ‘‘nullity’’.
Although we are not at liberty to construe an enactment by the motives which influenced the Legislature, I think we can look to some extent at the history thereof in the sense of its timing and retroactive feature to show that there was an intent to remedy a situation or a defect pre-existing. The language used must then be considered to see whether any such object had been fairly and clearly carried out. We are entitled to note that the impugned determination was the subject of appeals and an attack as being invalid at the time the appellant Minister introduced the 1970 amendment in this Legislature.
I will repeat for ease of reference the words added by the 1970 amendment, but setting it out in a form to point out its several “compartments”. But, first, I observe that it has no reference to any general powers of the Minister under the statute, but only to the very limited right under Section 5(2) to make a determination whether or not an organization or a purpose is a religious, charitable, or educational organization or purpose. In effect, it is a “yes or no’? decision. The words of the 1970 amendment (so set out to accent its parts) are:
1. ‘and the determination of the Minister
(a) is final, conclusive, and binding on all persons and,
(b) notwithstanding sections 43 or 44 or any other provision of this Act to the contrary, is not open to appeal, question or review in any Court,
2. and any determination of the Minister made under this subsection is hereby ratified and confirmed and is binding on all persons. ’ ’
And there must be read with the foregoing the words of Section 12(4) of the amending statute which provides that “it is retroactive to the extent necessary to give full force and effect’’ to the amended provisions on and after April 1, 1968 but has application only to property passing 011 deaths 011, from 01 after that date.
I am inclined to the view that had the first parts (viz : what I have itemized as 1(a) and (b)) stood alone, the proper construction would have been that reference was made to a determination, made or to be made, within the Minister’s jurisdiction, and that the language would not extend to cover a situation where the Minister acted beyond his statutory power. But, in my view, the second part (which I have itemized as. 2.) must-be given some meaning of its own and not be treated as mere surplusage.;-1 think the addition of the words “any” and ‘‘made under this subsection’’ and the repetition of the words ‘‘binding on all persons’’ in the context of the first parts which had complete coverage in themselves, patently point up that the Legislature was additionally validating any invalid determination previously made by the Minister which he had purported to make under the section, notwithstanding the reason for the invalidity and whether or not it arose from an excess of ‘‘jurisdiction’’, imputed because of a breach of natural justice in the reaching of such determination, The Shorter Oxford Dictionary shows the primary meaning of ‘‘ratify’’ to be ‘ ‘ or make valid” and one meaning of ‘‘confirm’’ to ‘‘make valid by formal authoritative assent; to ratify, sanction.’’ In my opinion, the last: portion of the passage (i.e. the part I have noted as 2.) would be completely redundant and add nothing to the first part unless it be construed to mean something more, namely, what I think it clearly says that any invalid determination made after April 1, 1968 by the Minister under or purportedly under Section 5(2) as to whether or not an organization or purpose is or is not religious, charitable, or educational is thereby validated and made binding. The intention to validate what was invalid (regardless of the basis of the invalidity) is clear from the language. used. I think the following provisions set out in Section 23(f) of the Interpretation Act, 1960 R.S.B.C. c. 199 have application and give support to that conclusion :
(f) every Act and every provision or enactment thereof shall be deemed remedial, whether its immediate purport be to direct the doing of anything that the Legislature deems to be for the public good, or to prevent or punish the doing of anything that it deems contrary to the public good; and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the
attainment of the object of the Act, and of such provision or enactment, according to their true intent, meaning, and
spirit;
In view of that conclusion (the result of which I admit I find subjectively unpalatable) at which I have so arrived, I am bound to allow the appeal, reverse the decision of the learned Judge below and direct the respondents’ application for a writ of certiorari be dismissed. It follows that the respondents’ application to vary the order below by a declaration of exemption of duty must also be dismissed.
Branca, J.:—One P. A. Woodward died on August 27, 1968 leaving an estate valued for succession duty purposes at about $4,450,000. Four million dollars, consisting of the residue of the estate, he bequeathed to a foundation known as the ‘ Mr. and Mrs. P. A. Woodward Foundation’’ which was incorporated under the Societies Act of this Province on October 29, 1951. The objects of the Foundation were charitable and were to be
carried out in this Province.
The executors of the estate were Bruce Clinton Samis, a stockbroker, and William Swannell. The latter, since 1951, has been the first and only secretary of the Foundation. The executors applied for probate of the last will and testament of the said deceased and executed affidavits of value and relationship and the required inventories X and Y.
In due course the documents came before one J. W. Minty, Director, Probate, Succession Duties, Trust Companies and Income Tax Branch, and a memo went from the said Minty to one Bryson, Deputy Minister of Finance, in reference to the Woodward estate, requesting a decision of the claim of the estate for exemption from succession duties of the bequest. The said memo read as follows :
TO Mr. G. S. Bryson FROM J. W. Minty
Deputy Minister of Finance Assessor and Collector of BUILDINGS Probate & Succession Duties
April 25 1969 OUR FILE 8096/689 SUBJECT WOODWARD, PERCIVAL ARCHIBALD Deceased: August 27, 1968 Would you please indicate your concurrence or otherwise regarding the estate’s claim for exemption under the Succession Duty Act for a $4,000,000 bequest to the Mr. and Mrs. P. A. Woodward Foundation. For your information there was also a capital donation for $1,800,000 in 1965 shown in the following schedule made by P. A. Woodward and his personal corporation beyond three years of the date of death so far as can be ascertained.
The widow received a life interest in a $1,500,000 trust, plus $100,000 in trust for medical expenses, etc. The duties on this, about $124,000, will be the only duties in the estate.
SUMMARY OF MR. & Mrs. P. A. WOODWARD FOUNDATION
1965 -1968 1965 1966 1967 1968 Capital donation $1,800,000 Income from investment 198,000 $ 280,000 $ 272,000 $ 263,000 Donations (Schedule 2 of attached accounts) 122,000 237,000 271,000 212,000 Salaries and Fees 12,000 12,500 12,500 15,000 Surplus, end of year not including $4,000,000 bequest in 1968 $5,375,000 $5,400,000 $5,410,000 $5,445,000 Attached please see:
(1) Auditors accounts 1966, 1967 and 1968
(2) Copies of objects and bylaws of the foundation.
The affidavit material contained in the appeal book included an affidavit from the Honourable the Minister of Finance of this Provinee stating that he was the incumbent Minister at the relevant time and that he did on or about May 1, 1969 make a determination under Section 5(2) of the Succession Duty Act in reference to the bequest left by the deceased to the Foundation. The effect of that determination was that the Foundation was not entitled to an exemption and meant or could only mean that the Foundation was not a religious, charitable or educational organization or, alternatively, that the purpose of the bequest was not religious, charitable or educational.
| 1/5/69 | “J. W. Minty” |
| No exemption for | J. W. Minty |
| bequest to foundation | Director, Probate, Succession Duties, |
| “DRA” | Trust Companies and Income Tax Branch |
Bryson, the Deputy Minister, deponed in his affidavit to the fact that on May 1, 1969 the Minister of Finance, who, in fact, was also the Premier of the Province of British Columbia, verbally informed him of the said determination and that on the same day he, Bryson, informed Alexander, who was the Assistant Deputy Minister of Finance, of the determination. On the same day he caused to be delivered to Alexander the memo, above quoted, which he had received from Minty.
Alexander in his affidavit acknowledged receipt of the said memo and stated that he had pencilled a notation thereon and then returned the memo to Minty. Thus it will be noted that the determination was verbally made and communicated by word of mouth, as aforesaid, and in this way an indebtedness of about $1,600,000 was born.
The memo of Minty and the three affidavits referred to show the complete course of action and the chain of descending authority which was involved in making the written notation, appearing on the memorandum first quoted, made by Alexander.
Under the provisions of the Succession Duty Act (consolidated up to July 1, 1967) the following section was involved and stripping the section of its non-essentials for the purposes of this appeal, the applicable parts of the section are as follows:
5. (1) This Act shall not apply, so far as liability to pay succession duty is concerned,
(h) to any property transferred by grant. or: gift, whether made in contemplation of death or otherwise, or devised or bequeathed by any person for religious, charitable, or educational purposes to be carried out in the Province, or on the amount of any unpaid subscription for any like purpose made by any person so dying’ ‘for which the estate . ::1 of. the deceased is liable; nor
(i) that portion of any property transferred by. grant or gift, whether made in contemplation of death or otherwise, or devised or bequeathed by any person for religious, charitable or educational organization that carries on its work both in and outside of the Province the value of which bears the same ratio to the net value of all the property passing on: the death of the deceased that its expenditures for carrying on the work of the organization in the Province bear to the total expenditures of the organization during such period as the Minister may determine; nor
(j) to property given, devised, or bequeathed for religious, charitable, or educational purposes to be carried out in any Province of Canada other than British Columbia that is shown to the satisfaction of the Minister to allow the same exemption on property given, devised, or bequeathed for religious, charitable, or educational purposes to be carried out in British Columbia; nor
(2) For the purpose of subsection (1), the Minister, in his absolute discretion, may determine whether any purpose or organization is a religious, charitable, or educational purpose or organization.
Thus it will be seen that for the purposes of subsection (1) of Section 5.the Minister was statutorily vested with an absolute discretion to determine whether the purpose of the bequest was religious, charitable or educational or whether the organization came within the classification of a religious, charitable or educational one and, if so, entitled to exemption from the statutory succession duties.
At the relevant time Section 44 of the Act provided that if an applicant was dissatisfied with a decision of the Minister he might appeal therefrom to a Judge of the Supreme Court. The section also designated the formalities and practice to be followed.
The executors appealed to the Supreme Court in accordance with the provisions of that section, on September 11, 1969. That statutory appeal came before the Honourable Mr. Justice Aikins in due course. The said learned judge dismissed the appeal upon a preliminary objection which was to the effect that there was no decision as contemplated by Section 44 against which the executors could appeal.
The executors then appealed that judgment to this honourable court on January 6, 1970. That appeal became futile after the amendments to the Succession Duty Act, hereinafter referred to, and was dismissed.
The material shows that. on or about February 9, 1970 the Minister of Finance introduced in the Legislative Assembly of this Province an Act to amend the Succession Duty Act containing, inter alia, a proposed amendment to subsection (2) of Section 5, by adding to the section as it theretofore stood. The part that was added read as follows:
and the determination of the Minister is final, conclusive, and binding on all persons, and notwithstanding sections 43 and 44 or any other provision of this Act to the contrary, is not open to appeal, question, or review in any Court, and any determination of the Minister made under this subsection is hereby ratified and confirmed and is binding on all persons.
Section 5(2), as amended, read as follows:
(2) For the purpose of subsection (1) the Minister, in his absolute discretion, may determine whether any purpose or organization is a religious, charitable, or educational purpose or organization and the determination of the Minister is final, conclusive, and binding on all persons, and notwithstanding sections 43 and 44 or any other provision of this Act to the contrary, is not open to appeal, question, or review in any Court, and any determination of the Minister made under this subsection is hereby ratified and confirmed and is binding on all persons.
The section, as amended, received assent from the Legislative Assembly on April 3, 1970.
The 1970 amendments added a section numbered 5 (2a) which reads :
(2a) Subsection (2) does not apply in respect of estates in which the death of the deceased occurs on or after the first day of April, 1970.
Section 12(4) of the amendments of 1970 (Chapter 45)° reads as follows :
(4) Section 5 shall be deemed to have come into force on the first day of April, 1968, and is retroactive to the extent necessary to give full force and effect to the provisions it amends on or after that date, and applies to property passing on the death of a person dying on, from, and after that date.
The changes effected by the amendments to the Act, relevant to the Woodward estate, were that Section 5(2), as amended, made
(a) All determinations of the Minister final, conclusive and binding on everybody, notwithstanding any provision in the Act to the contrary ;
(b) Isolated such determinations from any appeal, question or review by any court, and
(c) Gave legislative ratification and confirmation to any determination theretofore made by the Minister under Section 5(2) and made the same binding upon all persons.
It will be noted too that the foregoing changes were deemed to have come into force not on the date the amending Act received assent, that is to say, on April 3, 1970, but on April 1, 1968 so that Section 5(2), as amended, applied as of April 1, 1968 to all property of any persons which passed on the death of one after that date up to only April 1, 1970.
It is obvious that the legislature attempted by this rather extraordinary piece of legislation to bring the Woodward estate within the purview of the amended provisions of the Succession Duty Act. It will be remembered that Woodward died on August 27, 1968, some 473 days before the amendments above discussed were assented to by the legislature, and the determination which the legislature by virtue of the amendments sought to make good was made by the Minister some 303 days before the amendments were assented to in the legislature.
When Woodward died and before the determination was made all parties concerned and the world at large were entitled to expect that whatever rights and liabilities might arise would crystallize in accordance with the legislation that was in force on the date of death. The estate, the beneficiaries and the world at large were entitled to expect that the Minister in his absolute discretion could and would fairly determine whether the Foundation was a religious, charitable or educational organization and/ or whether the bequest was for purposes that were religious, charitable or educational under the law as it then stood.
All parties concerned and the world at large knew, as the law then stood, that in appropriate cases if a determination were made contrary to the rules of natural justice that that determination which the Minister was empowered to make under Section 5(2) was not statutorily protected by a privative clause, and further that the determination made by the Minister was not ratified and confirmed ex post facto so as to give it retroactive legislative benediction and thus make it binding on all persons.
But the amendment, coming as it did, 473 days after the death of Woodward and 303 days after the determination was in fact made, the estate was retroactively made subject to a new set of statutory enactments.
One wonders why the legislature did not enact that the determination made by the Minister on May 1, 1969 in reference to the Woodward estate by the terms of which exemption from succession duties was refused, was ratified and confirmed by the legislature and by legislative decree enact that the Foundation was not a religious, charitable or educational organization and that the purpose of the bequest was not religious, charitable or educational.
On March 18, 1970 the executors of the estate moved the presiding judge of the Supreme Court of British Columbia for a writ of certiorari to remove into court the record of the determination made by the Minister under Section 5(2) before amendment, on the several grounds mentioned in the Notice of Motion, which grounds are as follows :
1. That the Honourable the Minister of Finance lacked jurisdiction to determine that the said gift to the said Founda- tion was not exempt from succession duty in that the said determination, being of a judicial or quasi-judicial character, was made without notice to the Executors of the Estate of Percival Archibald Woodward, deceased, contrary to the principles of natural justice.
2. That the Honourable the Minister of Finance lacked jurisdiction to make the said determination in that he acted without evidence or, alternatively, without sufficient evidence in support thereof.
3. That the Honourable the Minister of Finance lacks jurisdiction to make any determination pursuant to the provisions of subsection (2) of section 5 of the ‘‘Succession Duty Act’? in respect of the said gift to the said Foundation and that such determination is and would be beyond the powers conferred upon him under the provisions of the said ‘‘Succession Duty Act”.
4. That the Honourable the Minister of Finance lacks jurisdiction on the ground that he is biased in respect of the said Estate by reason of introducing legislation having for its purpose depriving the Executors of the said Estate of their right to appeal from the Judgment pronounced in this Honourable Court by the Honourable Mr. Justice Aikins on the 8th day of December, 1969.
The learned trial judge held that the Minister was discharging a judicial or quasi-judicial duty in the course of making his statutory determination and that therefore he was under a legal duty to act in good faith and to give a fair opportunity to the executors and to the Foundation to make representations and to correct or contradict any relevant statement which might have been prejudicial to their view.
The learned trial judge then held that because the executors and/or the Foundation were not heard the determination made by the Minister purporting to have been made pursuant to Section 5(2) was contrary to the rules of natural justice and resulted in an ouster of jurisdiction unless the amendments of 1970 deprived the court of power to review the determination. He held that the words added to Section 5(2) by the 1970 amendments did not oust the jurisdiction of the court to review the determination.
In reference to the last part of the amending section and its effect the learned trial judge held as follows:
However, counsel for the Minister submits that the words “and any determination of the Minister made under this subsection is hereby ratified and confirmed and binding on all persons” make the principles of law above referred to inapplicable to this case. He says, in effect, that the determination of the Minister is valid and binding and not subject to review in any court, notwithstanding that in arriving at his decision the Minister may have contravened the principles of natural justice. He says that the words “any determination” means just that—a determination made lawfully or otherwise, which determination, however much it may violate legal principles, must stand because it has been ratified in advance by the Legislature. I reject that submission. The Legislature could not ratify or confirm a determination that was not then in existence any more than it could ratify, confirm or make binding a determination which was a nullity at law. A determination made, as this one was, in breach of the principles of natural justice, is void. Counsel says, and I agree, that the Legislature is supreme when enacting legislation within its constitutional powers. It could have enacted legislation saying that for the purpose of Section 5(1) of the Succession Duty Act, th: Foundation is not a charitable organization and does not have a charitable purpose and that would have been the end of the matter; but it did not do that. Instead, it authorized and directed the Minister to decide which (if any) organizations claiming to be charitable organizations are such for the purpose of Section 5(1) of the Act. It granted such discretionary power having the constructive knowledge that it is an established principle of law that such discretion must be exercised judicially. As Lord Blackburn said in Young v. Mayor of Leamington (1883), 8 A.C. 517 at 526:
“We ought in general, in construing an Act of Parliament, to assume that the legislature knows the existing state of the law.”
In the result, I hold that the power given by Section 5(2) of the Succession Duty Act to the Minister of Finance is a power to be exercised judicially and is not an arbitrary one to be exercised capriciously according to his fancy: M.N.R. v. Wrights’ Canadian Ropes Ltd., [1947] 1 D.L.R. 721; Ridge v. Baldwin, [1964] A.C. 40.
The learned trial judge in conclusion directed that the writ of certiorari should issue and that the determination complained of, made by the Minister under Section 5(2) on May 1, 1969, be quashed on the return of that writ without further order and that the matter be then referred back to the Minister for the proper exercise of the discretion reserved to him on acceptable legal principles.
The Minister appeals alleging error as follows :
1. That the judgment is against the law.
2. That the Learned Judge erred in law in holding that the Honourable the Minister of Finance (hereinafter called ‘‘the Minister’’) lost the jurisdiction given to him by the Succession Duty Act of the Province of British Columbia, as amended, by making his determination under Section 5(2) of the said Act without giving notice to the Executors of the Estate of P. A. Woodward, Deceased.
3. That the Learned Judge erred in holding that the jurisdiction of the Minister was ousted.
4. That the Learned Judge erred in holding that the determination of the Minister was void.
5. That the Learned Judge should have held that the determination of the Minister was valid, or alternatively voidable, and that it had been ratified, confirmed and made binding on all persons by the 1970 amendments to Section 5(2) of the Succession Duty Act of the Province of British Columbia.
6. That the Learned Judge erred in holding that the Legislature of the Province of British Columbia could not ratify, confirm and make binding on all parties the determination of the Minister made under Section 5(2) of the Succession Duty Act of the Province of British Columbia.
7. That the Learned Judge erred in holding that enactments which purport to oust or deprive the court of jurisdiction to review the judicial or quasi-judicial acts of a person or tribunal exercising a discretionary authority under a statute are ineffective for that purpose where a breach of the principles of natural justice has occurred, and that is so even where the enactment has provided that the decision of such person or tribunal is final and that he or it shall not be restrained by certiorari or otherwise by any court.
The initial submission of counsel for the appellant was that the learned trial judge erred in holding that the determination of the Minister was void, and submitted that the determination was valid or in the alternative voidable.
In support of the submission that the determination was valid, counsel for the Minister urged that no claim had been made by the executors or the Foundation for tax exemption as a qualifying organization or on the basis that the purpose of the bequest was religious, charitable or educational.
It was further urged that by reason of the fact that no claim had been made on behalf of the Foundation by someone it was then unnecessary for the Minister to give notice to anyone.
In my judgment that submission has no merit at all. The memo first quoted in these my reasons shows that Minty was referring to the claim of the estate for exemption under the Act in reference to the four million dollar bequest to the Foundation and it was precisely that claim that was the subject-matter of the determination made by the Minister under Section 5(2).
Before dealing with the submissions made by counsel for the appellant in reference to whether the determination was void, as held by the learned trial judge, or voidable, as he urged it was in law, it is well to clear the decks as follows.
The learned trial judge found that the Minister was discharging a judicial or quasi-judicial duty in making his determination under Section 5(2). In this connection counsel for the appellant stated he did not propose to argue that point and conceded that the duty exercised was not of an administrative character nor ministerial.
What the Minister had to determine was whether or not the bequest made by the deceased to the Foundation was for a purpose that was religious, charitable or educational and/or whether the Foundation was a religious, charitable or educational organization. That would no doubt involve a study of the will and its various dispositions to ascertain, if possible, the purposes of the bequest as an aid to whether or not the bequest was religious, charitable or educational and the constitution of the Foundation to determine the objects for which it was incorporated, and a study of the past performance of the organization to assist in arriving at a just decision. However, in the discharge of that duty it was incumbent upon the Minister to conform with the principles of natural justice. He was bound by the primary duty of advising the executors or the officers of the Foundation, or both, that a hearing would be held for the purpose of making the vital determination referred to in Section 5(2), and that they were free to make such representations as might be reasonably relevant, and that they were entitled to be heard upon any other views which the Minister might have obtained in order to contradict or vary those views if they were prejudicial to the interests of the foundation.
Counsel for the appellant has agreed that the Minister did not at any time give any notice to the executors or to the Foundation as a beneficiary or otherwise apprise them that he was about to make a determination which might cost the estate or more properly the Foundation the sum as aforesaid.
The solicitor for the executors in his affidavit stated that the first intimation of the date that the Minister had made his determination came when he read the affidavit of J. W. Minty, sworn to on December 4, 1969. The Minister, as already mentioned, did not make a written determination. However, the section did not require a written determination. The affidavit of Mr. Collins, solicitor for the estate, further stated that no reason was ever given to the executors or, in so far as he knew, to the Founda tion as to why the gift to the Foundation was refused exemption from taxes or, alternatively, why it was taxed as a gift to a stranger. No reason was assigned verbally or in writing by the Minister as to why he held that the Foundation was not a religious, charitable or educational organization, or why he held that the purpose of the bequest was not one that was religious, charitable or educational.
Surely, in the foregoing circumstances, there could be no doubt but that the Minister was exercising a judicial or quasi-judicial function, which required strict adherence to the principles of natural justice, which appear to have been totally ignored, or oppressively violated in order to arrive at the determination which the Minister in fact made, the effect of which was to cost the foundation the huge sum aforesaid.
The learned trial Judge, in my judgment, did not err in holding that the determination of the Minister was void and therefore invalid.
I now deal with the submission of counsel for the appellant that the trial judge should have held that the determination was voidable, not void. The argument proceeded on the basis that the determination made by the Minister under Section 5(2) was made against and affected only the Foundation; that the executors of the estate were not affected in any way by the determination and that being so; the executors had no status to initiate and/or maintain the proceedings taken and that the determination therefore stood as one that was voidable until the Foundation elected to and did take proceedings in court, in which event it might be declared to be void. For this purpose, counsel relied strongly upon the decision of the Privy Council in Durayappah v. Fernando and Others, [1967] 2 All E.R. 152, and also referred to the minority judgments of Lord Evershed and Lord Devlin in Ridge v. Baldwin (infra).
In the first case a designated Minister was statutorily empowered to dissolve a municipal council upon representations which would make it appear to the Minister that the council was incompetent to perform its duties. The Minister made such an order, no member of the council was notified or heard, nor were representations invited.
The Privy Council held that the Minister was acting judicially and had ignored the principles of natural justice. However, during the course of the hearing, the Privy Council, e proprio motu, questioned the right of the appellant (the mayor) to maintain the action. Lord Upjohn stated at page 158 that the answer depended upon whether the order of the Minister was a complete nullity or whether it was an order voidable only at the instance of council. He reasoned that if it was a complete nullity it followed that anyone having a ‘‘legitimate interest’’ in the conduct of council was entitled to and could ask the courts to declare that the council was still the duly elected council.
Lord Upjohn at pages 158 and 159 stated as follows :
Apart altogether from authority their lordships would be of opinion that this was a case where the Minister’s order was voidable and not a nullity. Though the council should have been given the opportunity of being heard in its defence, if it deliberately chooses not to complain and takes no step to protest against its dissolution, there seems no reason why any other person should have the right to interfere. To take a simple example to which their lordships will have to advert in some detail presently, if in the case of Ridge v. Baldwin, [1963] 2 All E.R. 66; [1964] A.C. 40 the appellant Ridge, who had been wrongly dismissed because he was not given the opportunity of presenting his defence, had preferred to abandon the point and accept the view that he had been properly dismissed, their lordships can see no reason why any other person, such, for example, as a ratepayer of Brighton should have any right to contend that Mr. Ridge was still the chief constable at Brighton. As a matter of ordinary common sense, with all respect to other opinions that have been expressed, if a person in the position of Mr. Ridge had not felt sufficiently aggrieved to take any action by reason of the failure to afford him his strict right to put forward a defence, the order of the watch committee should stand and no one else should have any right to complain. The matter is not free of authority, for it was much discussed in that case. Lord Reid, [1963] 2 All E.R. at p. 81; [1964] A.C. at p. 80 reached the conclusion that the committee’s decision was void and not merely voidable, and he relied on the decision in Wood v. Woad (1874), L.R. 9 Exch. 190. Their lordships deprecate the use of the word void in distinction to the word voidable in the field of law with which their lordships are concerned because, as Lord Evershed pointed out in Ridge v. Baldwin, quoting from Sir Frederick Pollock Pollock on Contract (13th ed.) 48, the words void and voidable are imprecise and apt to mislead. These words have well understood meanings when dealing with questions of proprietary or contractual rights. It is better, in the field where the subject matter of the discussion is whether some order which has been made, or whether some step in some litigation or quasi-litigation, is effective or not, to employ the verbal distinction between whether it is truly a “nullity”, that is to all intents and purposes of which any person having a legitimate interest in the matter can take advantage or whether it is “voidable” only at the instance of the party affected. On the other hand the word “nullity” would be quite inappropriate in questions of proprietary or contractual rights; such transactions may frequently be void, but the result can seldom be described as a nullity.
The opinions of the law lords in Ridge v. Baldwin, [1963] 2 All E.R. 66; [1964] A.C. 40, were examined and after: having considered the speech given by Lord Morris of Borth-y-Gest to the effect that the order of the watch committee in the Ridge case was voidable only and not a nullity, Lord Upjohn continued at pages 160 :
Their lordships entirely agree with that and with the conclusion which he drew from it, namely that if the decision is challenged by the person aggrieved on the grounds that the principle has not been obeyed, he is entitled to claim that as against him it is void ab initio and has never been of any effect. It cannot possibly be right, however, in the type of case which their lordships are considering to suppose that, if challenged successfully by the person entitled to avoid the order, yet nevertheless it has some limited effect even against him until set aside by a court of competent jurisdiction. While in this case their lordships have no doubt that in an action by the council the court should have held that the order was void ab initio and never had any effect, that is quite a different matter from saying that the order was a nullity of which advantage could be taken by any other person having a legitimate interest in the matter.
Counsel then on the basis of the foregoing cases submitted that the executors in the instant case had no ‘‘legitimate interest’’ and therefore had no status to institute and maintain these proceedings. It was submitted that the executors suffered no disadvantage by reason of the fact that the Foundation was denied a religious, charitable or educational status as the succession duties payable by virtue of the statute were levied against the beneficiaries (in this case the Foundation) and not the executors. See Sections 12(2) and 32.
In my judgment the Durayappah case has no application. While it is true that the executors incur no direct statutory liability in reference to the payment of any tax that may be assessed, they are the persons selected by the deceased testator to represent him, to act as trustees of his estate and to see that the directions of his will are carried out. They are the ones who are charged, at law, to apply for letters probate which, when issued, then authorize them to proceed to administer the estate in accordance with the testator’s expressed intentions. No one, other than the beneficiary, in this case the Foundation, could have had a more ‘‘legitimate interest’’. There can be no question but that the executors represented the Foundation while negotiating with the Department of Succession Duties of the Province for tax exemption. I hold that the executors have a “legitimate interest” and therefore a status to institute and maintain the instant proceedings and were fully entitled to attack the determination made by the Minister.
Then did the learned trial judge err in holding that the determination was void by reason of the breach of the principles of natural justice in view of the amendments of 1970?
I look at Section 5(2) as it was at the relevant time. The Minister had an absolute discretion to determine whether the Foundation as an organization, or the purpose of the bequest, was of a religious, charitable or educational nature or not, for the purposes of subsection (1) of Section 5. That determination spelled out whether or not the Foundation was under a duty to pay the succession duties involved or not. There was no privative clause.
That determination involving a discretion, albeit absolute, is one that had to be arrived at according to the rules of reason and justice, not in accordance with the private opinion of the Minister. It could not be arbitrary, vague or fanciful. (Sharp v. Wakefield, [1891] A.C. 173, Lord Halsbury, L.C. at page 179). Thus, it meant that the Minister, if he was exercising his discretion judicially, had to give to the parties in the controversy a fair opportunity of making representations and of correcting or contradicting any statements prejudicial to their view. See Board of Education v. Rice and Others, [1911] A.C. 179, where Lord Loreburn, L.C. at page 182 stated as follows:
Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Provided this is done, there is no appeal from the determination of the Board under section 7, subsection (3), of this Act. The Board have, of course, no jurisdiction to decide abstract questions of law, but only to determine actual concrete differences that may arise, and as they arise, between the managers and the local education authority. The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus or certiorari.
Having failed and neglected to give that fair opportunity the Minister, in my judgment, had no authority or right to embark upon the inquiry and his continuance, unilateral as it was, resulted in a complete failure of a valid determination. It was not arrived at pursuant to the rules of natural justice, nor by the rule of reason, but as the material discloses was arrived at arbitrarily, vaguely and fancifully.
The following authorities, in my judgment, show quite conclusively that the Minister in arriving at the determination referred to in Section 5(2) was discharging a function which I have earlier stated was judicial or quasi-judicial.
Board of Education v. Rice and Others (supra) and Hopkins and Another v. Smethwick Local Board of Health (1890), 24 Q.B. 712, Lord Esher, M.R. with whom Fry and Lopes, L.JJ. agreed at page 716.
In De Verteuil v. Knaggs and Another, [1918] A.C. 557 Lord Parmoor delivering the judgment of the judicial committee of the Privy Council at page 560 stated as follows:
On the other hand, the acting Governor could not properly carry through the duty entrusted to him without making some inquiry whether sufficient grounds had been shown to his satisfaction that immigrants indentured on the La Gloria estate of the appellant should be removed. Their Lordships are of opinion that in making such an inquiry there is, apart from special circumstances, a duty of giving to any person against whom the complaint is made a fair opportunity to make any relevant statement which he may desire to bring forward and a fair opportunity t> correct or controvert any relevant statement brought forward to his prejudice.
In Lapointe v. L’Association de Bienfaisance et de Retraite de la Police de Montreal, [1906] A.C. 535, Lord Macnaghten in delivering the judgment of the judicial committee of the Privy Council said at pages 539 and 540 :
It is hardly necessary to cite any authority on a point so plain. The learned counsel for the appellant referred to two well-known club cases before Sir George Jessel, M.R., Fisher v. Keane, 11 Ch. D. 353 and Labouchere v. Earl of Wharncliffe, 13 Ch. D. 346. It may be worth while to mention a later case before the same learned judge, in which refers to the case of Wood v. Woad (1874), L.R. 9 Ex. 190, in the Exchequer, and expresses regret that he was not acquainted with that case when those club cases were decided: see Russell v. Russell (1880), 14 Ch. D. 471.
“It contains,” he says 14 Ch. D. at p. 478, “a very valuable statement by the Lord Chief Baron as to his view of the mode of administering justice by persons other than judges who have judicial functions to perform which I should have been very glad to have had before me on both those club cases that I recently heard, namely, the case of Fisher v. Keane, 11 Ch. D. 353 and the case of Labouchere v. Earl of Wharncliffe, 13 Ch. D. 346. The passage I mean is this, referring to a committee: ‘They are bound in the exercise of their functions by the rule expressed in the maxim ‘‘Audi alteram partem”, that no man should be condemned to consequences resulting from alleged misconduct unheard, and without having the opportunity of making his defence. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.’
It was no determination at all. It was, in my judgment, a complete and total nullity from the start and was absolutely void from the time it was made. The following authorities which I have considered are relevant.
In Lapointe (supra) Lord Macnaghten deemed the so-called determination of the board ‘‘void and of no effect’’; in In Re The Ontario Labour Relations Board, Toronto Newspaper Guild, Local 87, American Newspaper Guild (C.I.O.) v. Globe Printing Company, [1953] S.C.R. 18, Kellock, J. for himself, Estey and Locke, JJ. at page 35 stated as follows:
It is plain from this recital of facts that there was no “hearing” of the matter before the board for investigation within any reasonable interpretation of the word. There is nothing in either subsection (7) or (8) of Section 3 remotely to suggest that a witness giving evidence before the board at a hearing which may not proceed ex parte, may give evidence without being liable to be examined by a party adverse in interest. The statute, in my opinion, proceeds upon the view that the hearing is to be a real hearing fairly conducted as between the opposing parties whatever may be the issue which the board may be called upon to determine in particular circumstances.
Judson, J. in Jarvis v. Associated Medical Services Incorporated, [1964] S.C.R. 497 at 511, stated in his comments about the Ontario Labour. Relations Board ease that, “It never conducted such a hearing and its decision was a nullity.”
In Ridge v. Baldwin (supra) the question as to whether a decision made by a watch committee without notifying the party in question was void or voidable was thoroughly canvassed. Lord Reid at page 81 stated as follows:
Then there was considerable argument whether in the result the watch committee’s decision is void or merely voidable. Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void and that was expressly decided in Wood v. Woad (1874), L.R. 9 Exch. 190. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.
Lord Morris of Borth-y-Gest at page 104 stated as follows:
My lords, in my judgment, inasmuch as the decision of the watch committee was that the appellant had committed an offence or offences against the discipline code and inasmuch as the decision was arrived at in complete disregard of the regulations it must be regarded as void and of no effect. The power to dismiss for an offence was a power that could only be exercised if the procedure of the regulations was set in motion. A purported dismissal in complete disregard of them cannot be recognized as having any validity.
He then quoted from the judgment of Lord Macnaghten in Lapointe (supra) and at page 106 stated as follows:
Lord Macnaghten said that it was obvious that the so-called determination of the board was void and of no effect, and the order which they humbly advised included a declaration and determination as required by the rules and that the proceedings were. null and void.
Later, on the same page, he stated as follows:
Nor in my view did the action of the appellant in appealing to the Secretary of State have any such effect. If the decision of Mar. 7 was a nullity and void the fact that the appellant appealed made no difference. The decision of Mar. 7 remained a nullity. The appellant made it as plain as possible that he was adhering to and was in no way abandoning his submission that the decision of Mar. 7 had no validity. In these circumstances the provision in section 2(3) of the Police (Appeals) Act, 1927, that the decision of the Secretary of State on an appeal is to be “final and binding upon all parties” cannot produce the result that validity is given to that which is a nullity.
Lord Hodson at page 116 stated as follows :
Once the position is reached that the Police Regulations apply as, In my opinion, they did, it is clear that no attempt was made by the watch committee to follow the regulations. These have been set out in detail by my noble and learned friend Lord Morris of Borth-y-Gest whose judgment I have had the opportunity of reading and with which I respectfully agree. As he says, and the Court of Appeal would have taken the same view if they had regarded the Police Regulations as applicable, the watch committee disregarded the regulations and did not begin to comply with them.
On both grounds therefore, failure to comply with the requirements of natural justice and failure to comply with the Police Regulations, I would hold that the decision of the watch committee to dismiss the appellant taken on Mar. 7, 195 , was invalid.
Later on in his judgment he added as follows:
In all the cases where the courts have held that the principles of natural justice have been flouted I can find none where the language does not indicate the opinion held that the decision impugned was void. It is true that the distinction between void and voidable is not drawn explicitly in the cases, but the language used shows that where there is a want of jurisdiction, as opposed to a failure to follow a procedural requirement, the result is a nullity. This was indeed decided by the Court of Exchequer in Wood v. Woad (1874), L.R. 9, Exch, 190, where as here there was a failure to give a hearing.
The contrary view was expressed by Lord Evershed at page 85 and by Lord Devlin at page 120.
On the question of discretion I have considered the two cases which follow. It is a cardinal principle that where a legal tribunal is given a discretion that it must be exercised on proper legal principles. See Davis, J., with whom the learned Chief Justice agreed, in Pioneer Laundry L' Dry Cleaners Ltd. v. M.N.R.,
[1939] S.C.R. 1 at 5; [1938-39] C.T.C. 401 at 404:
The appellant was entitled to an exemption or deduction in “such reasonable amount as the Minister, in his discretion, may allow for depreciation.” That involved, in my opinion, an administrative duty of a quasi-judicial character — a discretion to be exercised on proper legal principles.
In the Privy Council report of this case, [1939] 4 D.L.R. 481 at 486; [1938-39] C.T.C. 411 at 417, Lord Thankerton, delivering the judgment of the judicial committee, stated that the committee was in agreement with the reasons given by Davis, J.
See also the review of authorities on the use of discretion by Disbery, J. in Leddy v. Saskatchewan Government Insurance Office (1964), 45 D.L.R. (2d) 445 at 455 and on, and the judgment of Hall, J.A. for the Court of Appeal of Saskatchewan at page 467 where he stated as follows:
When giving judgment, the learned trial Judge made an extensive review of the legal principles involved. He adopted the judicial definition of the word “discretion” given by Lord Halsbury in Sharp v. Wakefield (1891), 60 L.J.M.C. 73 at page 76, as follows:
“An extensive power is confided to the Justices in their capacity as Justices to be exercised judicially, and discretion means, when it is said that something is to be done within the discretion of the authorities, that that something is to be done according to the rules of reason and justice, not to private opinion—Rooke’s Case, 5 Rep. 100a; according to law, and not humour. It is to be not arbitrary, vague and fanciful, but legal and regular, and it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself—Wilson v. Rastall, 4 Term Rep. 757.”
After considering Roberts v. Hopwood, [1925] A.C. 578; Ron- carelli v. Duplessis, 16 D.L.R. (2d) 689, [1959] S.C.R. 121; Pure Spring Co. v. Minister of Nat'l Revenue, [1947] 1 D.L.R. 501, [1946] Ex. C.R. 471, [1946] C.T.C. 169, and Labour Relations Bd., Saskatchewan v. The Queen ex rel. F. W. Woolworth Co., [1955] 5 D.L.R. 607, [1956] S.C.R. 82, he summarized the law by saying that the Courts have held that an authority, to whom Parliament or the Legislature entrusts a discretionary power, fails to exercise such discretion if it purports to do so by taking into consideration reasons unrelated to the carrying into effect of the intent and purpose of the Act wherein such discretionary power is found, or by applying improper legal principles, or by refusing to exercise its discretion. He went on to say that an authority, so entrusted with exercising a discretion, fails to exercise that discretion if it acts on the basis of a preconceived policy or resolution when it should have dealt with the particular case before it: Tinkler v. Wandsworth Board of Works (1858), 2 De G. & J. 261, 44 E.R. 989; R. v. Sylvester (1862), 31 L.J.M.C. 93, 2 B. & S. 322, 121 E.R. 1093; Wood v. Widnes Corp., [1898] 1 Q.B. 463, 67 L.J.Q.B. 254; R. v. London County Council, Ex. p. Corrie (1918), 87 L.J.K.B. 303, and R. ex rel. Wilson v. Holmes, [1931] 3 D.L.R. 218, [1931] 2 W.W.R. 41.
And see also Roncarelli v. Duplessis, [1959] S.C.R. 121, and M.N.R. v. Wrights’ Canadian Ropes Ltd., [1947] C.T.C. 1 at 14 and 15 where Lord Greene in giving the judgment of the Privy Council stated as follows:
Moreover, unless it be shown that the Minister has acted in contravention of some principle of law the Court, in their Lordships’ opinion, cannot interfere: the section makes the Minister the sole judge of the fact of reasonableness or normalcy and the Court is not at liberty to substitute its own opinion for his. But the power given to the Minister is not an arbitrary one to be exercised according to his fancy. To quote the language of Lord Halsbury L.C. in Sharp v. Wakefield, [1891] A.C. 173 at p. 179 he must act “according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular”. Again in a case under another provision of this very sec. 6 [sec. 5(1) (a) — Ed.] where a discretion to fix the amount to be allowed for depreciation is given to the Minister, Lord Thankerton in delivering the judgment of the Board said “The Minister has a duty to fix a reasonable amount in respect of that allowance and, so far from the decision of the Minister being purely administrative and final, a right of appeal is conferred on a dissatisfied taxpayer; but it is equally clear that the Court would not interfere with the decision, unless—as Davis J. states—‘it was manifestly against sound and fundamental principles’ ”. (Pioneer Laundry and Dry Cleaners Ltd. v. Minister of National Revenue, [1938-39] C.T.C. 411 at n. 416-417.)
In the present case the Minister’s decision is attacked on the ground that there was before him no material upon which he, as a reasonable man, could determine that any part of the commissions in question was in excess of what was reasonable for the business carried on by the respondents. The ground of attack is different from that which was successful in the Pioneer Laundry case. There the Minister had given a reason for his decision which was in law incapable of supporting it, whereas in the present case no reason was given by the Minister although certain suggestions were made in the hearing before their Lordships by counsel as will presently appear. Their Lordships find nothing in the language of the Act or in the general law which would compel the Minister to state his reasons for taking action under section 6(2). But this does not necessarily mean that the Minister by keeping silence can defeat the taxpayer’s appeal. To hold otherwise would mean that the Minister could in every case or at least the great majority of cases render the right of appeal given by the statute completely nugatory. The Court is, in their Lordships’ opinion, always entitled to examine the facts which are shown by evidence to have been before the Minister w hen he made his determination. If those facts are in the opinion of the Court insufficient in law to support it the determination cannot stand. In such a case the determination can only have been an arbitrary one. If, on the other hand, there is in the facts shown to have been before the Minister sufficient material to support his determination the Court is not at liberty to overrule it merely because it would itself on those facts have come to a different conclusion. As has already been said, the Minister is by the subsection made the sole judge of the fact of reasonableness and normalcy but as in the case of any other judge of fact there must be material sufficient in law to support his decision.
Lord Greene then continued as follows at page 16:
The appellant has not chosen to produce any evidence as to these alleged matters and their Lordships are quite unable to assume in the appellant’s favour that he had before him sufficient facts to support his determination when he neither condescends to state what those facts were nor attempts to prove that any such facts were in truth before him. The only inference which in their Lordships’ opinion can legitimately be drawn from the available evidence is that, apart from the documents which were before the Court the Minister had no material before him which influenced his mind in making the determination that he did. If he had in fact had such material it w ould in their Lordships’ opinion have been impossible to suppose that he would not have informed the respondents of at least the substance of it when the matter was originally brought before him so as to give the appellants a fair opportunity of meeting the case against them. The contrary supposition would involve that the appellant had come to a decision adverse to the respondents upon material of which, so far as he knew, the respondents were completely ignorant and knowledge of which he deliberately withheld from them.
In 1970, as discussed, the legislature by the amendment attempted to breathe life into the purported determination made by the Minister and to otherwise fortify that determination. The amendment stated in part:
(a) That a determination made by the Minister was final, conclusive and binding upon everybody notwithstanding any provision contrary in the Act, and
(b) that the determination was not open to appeal, question or review in any court.
The appellant submits that this so-called privative ouster or preclusive clause prevents the Supreme Court of this Province, in the exercise of its supervisory jurisdiction in certiorari proceedings, from reviewing the matter to ascertain whether there was an excess or lack of Jurisdiction or if the jurisdiction was otherwise ousted.
The law books are replete with decisions from the highest courts that despite the presence of the so-called privative clause in a statute the Supreme Court has always guarded and affirmed its common law right to vigilate the exercise of jurisdiction by an inferior court or by statutory bodies exercising a judicial or quasi-judicial function and to whom a statutory jurisdiction is given to decide or determine some matter or thing, unless the words depriving it of that jurisdiction are clear and imperative. If the privative clause has that effect then protection is afforded to the decision because the statute prohibits interference by a court.
In my judgment, the privative clause passed by the 1970 amendments after the determination was made could not and did not protect the invalid determination made by the Minister, notwithstanding the fact that it was enacted at a later date and made retroactive to April 1, 1968.
The determination made by the Minister was, in my judgment, by reason of the errors discussed a complete nullity from the start. There was as I have stated no determination made in accordance with the provisions of the section as it then stood and that being so, the legislature could not make final, conclusive and binding a determination which, in law, never took place.
I find it difficult to accept the fact that the legislature confided a statutory authority to the Minister subject to the use of his discretion which could only be exercised judicially and which had to conform with the tenets of natural justice and then by another clause give retroactive validity to a purported determination made in disregard of or in violation of the principles of natural justice and arbitrarily, and otherwise protect that illegal decision from the supervisory area of a superior court by making it final, binding and conclusive on everybody and through the medium of a privative clause.
The privative clause, if effective in this case, would prohibit the Supreme Court from reviewing a purported determination made by the Minister which, without question, was arbitrary and arrived at by ignoring the rules of natural justice and was totally void and illegal, and which tended to seriously prejudice a bequest made to a foundation by a testator who made it under the law as it was at a designated time. It may be that had the determination been made judicially and in accordance with the dictates of natural justice that the four million dollar bequest to the Foundation would have been tax free, in which event the liability aforesaid would have been avoided. Just what the result of a proper determination made in accordance with the law might have been and whether it would have resulted to the advantage or disadvantage of the Foundation was and is really immaterial; what is material is that the Foundation by virtue of an invalid determination must under that purported determination pay the sum, aforesaid, not knowing why the Minister unilaterally determined as he did.
One can readily understand that where there is good faith and no fraud or bias and the tribunal charged to act judicially or quasi-judicially follows the essentials of natural justice and has jurisdiction at the start and thereafter does not lose it or acts in excess of its statutory jurisdiction that legislation might well protect the decision given by that tribunal by ousting the jurisdiction of a superior court by a privative clause, and in such cases the authorities are fairly uniform in holding that a privative clause will oust the jurisdiction of a superior court.
However, where there is a want or an excess of jurisdiction when the inquiry starts or where there has been an abuse of jurisdiction by ignoring the essentials of natural justice or where there is fraud or bias or lack of good faith the situation is different, and the courts have exercised a supervisory jurisdiction despite the existence of a privative clause. In such cases the privative clause does not operate to oust the jurisdiction of the superior court to review the proceedings being questioned.
In Jarvis v. Associated Medical Services Incorporated (supra) Judson, J. dissenting put the basis of his dissent squarely upon the effeet of the privative clause and at page 509 stated as follows:
So far I have dealt with the matter as one of construction. Now that it appears that this order of the Board is going to be quashed on the ground of excess of jurisdiction, I wish to say something about the privative clause in the Act. The Board was authorized to embark upon an inquiry whether this person was discharged contrary to the provisions of the Act. This was the issue to be decided and the Board's decision, to the extent that it is based on evidence, cannot be questioned on certiorari. It is now said that this decision cannot apply to Mrs. Jarvis because of the question of interpretation which I have discussed above. The Board put one interpretation on the word “person” to include Mrs. Jarvis and the Court of Appeal another. Which one is right does not matter. If the Board made a mistake, it is not deprived of jurisdiction. It makes a mistake, as many tribunals do, in the course of doing what it is told to do. This kind of mistake is not reviewable on certiorari.
In enacting section 80 of The Labour Relations Act the Legislature has recognized that decisions made by the Board may involve what are looked upon by a Court as jurisdictional errors. The Legislature has said that it prefers to have these errors stand rather than have the decisions quashed on certiorari.
The quashing of this decision amounts to a disregard of the provisions of section 80 of the Act, which reads :
“80. No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered or proceedings taken in any court, whether by way of injunction, declaratory judgments, certiorari, mandamus, prohibition quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.
Cartwright, J. (as he then was) in giving the majority judgment referred to the foregoing opinion of Judson, J., and at page 902 stated as follows:
However, in view of what is said by my brother Judson as to section 80 of the Act, I wish to add a few words as to why, in my opinion, that section does not prevent the quashing of the decision of the Board in this case.
The effect of this section, if it receives the construction most favourable to the appellant, is to oust the jurisdiction of the superior Courts to interfere with any decision of the Board which is made in exercise of the powers conferred upon it by the Legislature; within the ambit of those powers it may err in fact or in law; but I cannot take the section to mean that if the Board purports to make an order which on the true construction of the Act, it has no jurisdiction to make the person affected thereby is left without a remedy; indeed, in L’Alliance des Professeurs Catholiques de Montreal v. Labour Relations Board [1953] 2 S.C.R. 140 at 155, Rinfret, C.J. explicitly rejected such a suggestion. The extent of the Board’s jurisdiction is fixed by the statute which creates it and cannot be enlarged by a mistaken view entertained by the Board as to the meaning of that statute. The governing principle was succinctly stated by my brother Fauteux in In re Ontario Labour Relations Board, Toronto Newspaper Guild, Local 87 v. Globe Printing Co. [1953] 2 S.C.R. 18 at p. 41:
“The authorities are clear that jurisdiction cannot be obtained nor can it be declined as a result of a misinterpretation of the law, and that in both cases the controlling power of superior Courts obtains, notwithstanding the existence in the Act of a no certiorari clause.”
This was the rule applied by the Court of Appeal in the case at bar. What is complained of by the respondent is not that the Board has been induced by errors of fact or law, or by both, to make an order in the exercise of its statutory jurisdiction, but rather that it has purported to make an order which the Act has not empowered it to make at all.
In Battaglia v. Workmen’s Compensation Board (1960), 32 W.W.R. 1, this court passed upon the privative clause contained in Section 76(1) of the Workmen’s Compensation Act which provided as follows :
The Board shall have exclusive jurisdiction to inquire into, hear, and determine all matters and questions of fact and law arising under this Part, and the action or decision of the Board thereon shall be final and conclusive and shall not be open to question or review in any Court, and no proceedings by or before the Board shall be restrained by injunction, prohibition, or other process or proceeding in any Court or be removable by certiorari or otherwise into any Court; and without restricting the generality of the foregoing the Board shall have exclusive jurisdiction to inquire, hear and determine: . ..
Davey, J.A. (as he then was) at page 5 put the submission of the board as follows :
The Board submits that under this section it has exclusive jurisdiction to decide all questions of fact, as well as of law, including medical questions upon which a claim rests, and that it exercises such authority in reviewing a claim under subsection (9) of section 54A; that it was never intended on a review under section 54A to take away from the board that exclusive jurisdiction to adjudicate upon the medical aspects of a claim and vest it in a specialist to be chosen by the claimant.
At pages 6 and 7, he answered that submission as follows:
It it clearly established by judicial decision of the highest authority and accepted by parliament that it is for the superior courts to determine and declare public law and in the course thereof to define the statutory jurisdiction and authority of inferior tribunals and boards; that it requires the clearest language to transfer that jurisdiction from the superior courts to the bodies concerned; under the B.N.A. Act, 1867, perhaps not even then. Certainly such language is wanting here: See Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18, 106 C.C.C. 225, per Kerwin, J. at p. 28; Rand, J. at p. 28; Kellock, J. at p. 36; and Fauteux, J. at p. 41. In my opinion the exclusive authority conferred upon the board by section 76(1) to decide questions of law does not extend to the interpretation of those sections of the Act defining the board’s jurisdiction and authority or deprive the Supreme Court of British Columbia of its power to scrutinize the proceedings of the board to see if it has kept within the jurisdiction and authority conferred upon it by the Act.
Sheppard, J.A. gave his own reasons and dealt with this point at pages 14 and 15 :
That contention does not give due weight to the qualifying words in section 76(1) “arising under this Part.” That “exclusive jurisdiction” is confined to questions of law and fact “arising under this Part,” and would not apply when the board is not dealing with questions of fact and law arising under part I or when the board is acting beyond its jurisdiction. Hence, in determining the effect of section 76, the questions arise: (1) Whether the board has jurisdiction under this part, which is part I; and
(2) Whether the decision deals with questions of fact and law arising from its jurisdiction within part I? It follows that the section does not exclude certiorari where the board is acting outside its jurisdiction; that has been determined by the court in Acme Home Improvement Ltd, v. Workmen’s Compensation Board (1957) 28 W.W.R. 545, wherein Davey, J.A. in delivering the judgment of the court, said at p. 546:
“The privative provisions of this section, as the learned judge correctly held, will not oust the jurisdiction of the court to quash the assessment on certiorari, if the board has assumed a jurisdiction not vested in it by a wrong decision on a collateral question of law or fact upon which that jurisdiction depends.”
In the Toronto Newspaper Guild (supra) case the privative clause involved was as follows:
5. Subject to such right of appeal as may be provided by the regulations, the orders, decisions and rulings of the Board shall be final and shall not be questioned or reviewed nor shall any proceeding before the Board be removed, nor shall the Board be restrained, by injunction, prohibition, mandamus, quo warranto, certiorari or otherwise by any court, but the Board may, if it considers it advisable to do so, reconsider any decision or order made by it and may vary or revoke any such decision or order.
Kerwin, J. (as he then was) at page 26 stated as follows:
Sections similar to section 5 of the Act, although differing in form, have been enacted by legislative bodies from time to time but it is unnecessary to set forth the decisions in which they have been considered because, if jurisdiction has been exceeded, such a section cannot avail to protect an order of the Board; and I understood that to be conceded by counsel for the appellant. Since in my view the Board exceeded its jurisdiction, section 4 of the Act, also relied upon by counsel for the appellant, does not assist him. Finally, it is stated in the Board’s reasons, which I hold to be a part of the return, that the Board “further finds on the basis of the documentary evidence submitted by the parties.” There is nothing to justify the suggestion that the Board, or any member thereof, was even purporting to act under the provisions of subsections 7 or 8 of section 3, or that they had any evidence other than the Union records placed before it by the appellant.
Kellock, J., whose judgment was also that of Estey and Locke, JJ., dealt with the effect of the privative clause at page 38 as follows :
A provision such as section 5 of the statute prohibits the court from questioning any decision which has been come to within the structure of the statute itself, but the statute does not endow the board with power to make arbitrary decisions. The legislature must be taken to have been quite familiar with the principles applicable to decisions of inferior tribunals when questioned in the courts. It has not used apt language if it intended, as it cannot be presumed to have intended, to place either of the parties to such a proceeding as that here in question in a position permitting of no relief no matter how arbitrary any particular decision of its creature, the board, may be.
In The Queen v. Wood (1885) 5 E. & B. 49 a case of a conviction under a statute which provided that no “‘proceeding to be had touching the conviction of any offender against this Act, . . . shall be vacated, quashed, or set aside for want of form, or be removed or removable. by certiorari or other writ or process whatsoever in any of the superior courts”, Lord Campbell, C.J., at page 59 said :
“As to the clause taking away the certiorari, we came to the conclusion that the justice had declined jurisdiction and therefore had not properly exercised it.”
Fauteux, J. (now C.J.C.) at pages 40 to 41 stated as follows:
The right of the parties to submit to the Board any such questions is implied and the obligation for the Board to determine them and, consequently, to deal with them judicially before reaching its conclusion on the ultimate point to which they are related, is expressed. On a consideration of the material admittedly showing what took place before the Board, I cannot convince myself. that the latter did not decline jurisdiction as a result of its rulings on the various requests made at hearing by the respondent, all of them being directed to the contestation of the right of the appellant trade union to be certified as bargaining agent. In the perspective of all that took place, the ruling as to the evidence is, I think, as much, if not more, consistent with a declining of juristion than with a wrongful refusal to receive evidence. Bad faith of the Board has not been suggested and only a misinterpretation of the law as to what its duty was may explain this substantive failure to adequately exercise its jurisdiction.
See also The Board of Health for the Township of Saltfleet v. Knapman, [1956] 8.C.R. 877, Cartwright, J. (as he then was) at 879 and 880; and see Anisminic, Ltd. v. The Foreign Compensation Commission and Another, [1969] 1 All E.R. 208, Lord Reid at 213 and 214 :
It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word “jurisdiction” has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the enquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the enquiry, it has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the enquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I under- stand that some confusion has been caused by my having said in Armah v. Government of Ghana [1968] 3 All E.R. 177 at p. 187; [1968] A.C. 192 at p. 234 that, if a tribunal has jurisdiction to go right, it has jurisdiction to go wrong. So it has if one uses “jurisdiction” in the narrow original sense. If it is entitled to enter on the enquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law.
See also his conclusion at page 217:
It follows that the commission rejected the appellants’ claim on a ground which they had no right to take into account and that their decision was a nullity. I would allow this appeal.
Lord Morris of Borth-y-Gest at pages 221 and 222 :
That was the decision of the commission whose determination of any application made to them “shall not be called in question in any court of law”.
This is not a case in which there has been any sort of suggestion of irregularity either of conduct or procedure on the part of the commission. It has not been said that anything took. place which disqualified the commission from making a determination. No occasion arises, therefore, to refer to decisions which have pointed to the consequences of failing to obey or of defying the rules of natural justice, nor to decisions relating to bias in a tribunal, nor to decisions in cases where bad faith has been alleged, nor to decisions in cases where a tribunal has not been properly constituted. If a case arose where bad faith was alleged, the difficult case of Smith v. East Elloe Rural District Council, [1956] 1 All E.R. 855; [1956] A.C. 736 would need consideration, but the present case can, in my view, be approached without any examination of or reliance on that case.
The provisions of section 4(4) of the Act of 1950 do not, in my view, operate to debar any enquiry that may be necessary to decide whether the commission have acted within their authority or jurisdiction. The provisions do operate to debar contentions that the commission while acting within their jurisdiction have come to wrong or erroneous conclusions. There would be no difficulty in pursuing, and in adducing evidence in sur port of, an allegation such as an allegation that those who heard a claim had never been appointed, or that those who had been appointed had by some irregular conduct disqualified themselves from adjudicating or continuing to adjudicate. There would be no difficulty in raising any matter that goes to the right or power of the commission to adjudicate (see R. v. Bolton (1841), 1 Q.B. 66; [1935-43] All E.R. 71). What is forbidden is to question the correctness of a decision or determination which it was within the area of their jurisdiction to make. It is, of course, clear that no appeal is given from a determination of the commission.
Lord Pearce at page 237:
The above principles may, however, be affected by the existence (as here) of an ouster or no certiorari clause. The words of section 4(4) of the Foreign Compensation Act 1950, are:
“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”
It has been argued that your Lordships should construe “determination” as meaning anything which is on its face a determination of the commission including even a purported determination which has no jurisdiction. It would seem that, on such an argument, the court must accept and could not even enquire whether a purported determination was a forged or inaccurate order which did not represent that which the commission had really decided. Moreover, it would mean that, however far the commission ranged outside their jurisdiction or that which they were required to do or however far they departed from natural justice, their determination could not be questioned. A more reasonable and logical construction is that by “determination” Parliament meant a real determination, not a purported determination. On the assumption, however, that either meaning is a possible construction and that, therefore, the word “determination” is ambiguous, the latter meaning would accord with a long established line of cases which adopted that construction. One must assume that Parliament in 1950 had cognisance of these in adopting the words used in section 4(4).
Lord Wilberforce at page 247:
This shows very clearly that, as and when machinery should be set up enabling the commission to deal with compensation under future agreements, this should be within fixed and determined limits which the legislature itself would lay down; thus Parliament might (under section 2(2) (a)) define qualified persons and impose conditions, and (under section 2(2) (b) ) prescribe matters to be established to the commission’s satisfaction. There could be no doubt that if, so far as such power was exercised, and such definitions, conditions and prescribed matters were laid down, these would be architectural directions binding the commission, so that if they departed from them, they would be acting beyond their powers. Moreover, when one compares the terminology of section 4(4)—“The determination by the Commission of any application made to them under this Act. . .”—with that of section 3(b)—“the determination of . . . claims . . .”—and appreciates that the power to determine claims is to be subject to such limits (as to definitions, conditions or prescribed matters) as might be approved by Parliament, the conclusion must follow that the preclusive clause can have no application except to a determination made within the limits, whatever they turn out to be, fixed by Parliament. The respondents’ argument that they have only to make a self-styled “determination” in order to enjoy automatic protection is thus at once seen to be unsustainable.
Lord Pearson at page 250 :
My Lords, I have had the advantage of reading in advance the opinions of my noble and learned friends, LORD REID, LORD PEARCE and LORD WILBERFORCE. As to the general nature of the court’s supervisory function (as distinct from any appellate function) in relation to decisions of tribunals, I agree with what they have said and have nothing to add. I agree with them also that what has been called the “ouster provision” in section 4(4) of the Foreign Compensation Act 1950, does not exclude the court’s intervention in a case where there is a merely purported determination given in excess of jurisdiction.
and his conclusion at page 256:
I would say, therefore, that the commission construed ‘the article correctly and did not ask themselves any wrong question or exceed their jurisdiction in any way. Having so construed the article, the commission had to make a decision as to the effect of the November agreement. They decided that, by that agreement, the claim passed to T.E.D.O., and so was at the date of the treaty foreign held and, therefore, it was excluded by the provisions of article 4(1) (b) (ii) from participation in the fund. The decision as to the effect of the November agreement, whether right or wrong, was plainly within their jurisdiction, and therefore by virtue of section 4(4) of the Foreign Compensation Act 1950, it cannot be called in question in any court. I would dismiss the appeal.
In the foregoing cases as in practically all reported cases the privative clause was in the statute at the time the impugned decision was given. In the instant case, as counsel for the appellant points out, that clause was put into the Act by the 1970 amendment long after the Minister had made his purported determination on May 1, 1968. It was made retroactive to April 1, 1968.
Counsel for the appellant urges for that reason, that the determination in the Woodward case was one of those which the legislature intended to isolate from the vigilance of the law courts. He submitted that no matter how much of a nullity or how void the determination might be it was in fact made and the legislature intended to remove it from any possible review by the courts.
I do not interpret or view the section in that perspective. I would strongly suspect that the 1970 amendment was passed couched in its language to rescue the determination of the Minister made on May 1, 1968, which as I have already stated was, in my judgment, no determination at all.
The amendment was not intended to and did not reach a determination which was not made within the enabling provisions of the Act. The discretion was not exercised judicially. The rules of natural justice were ignored. I am of the opinion that the learned trial judge was correct in concluding that the privative clause legislated in and by the 1970 amendment did not oust the jurisdiction of the court below.
It is for the same reasons that I am of the opinion that. the ratification and confirmation referred to in the last part of the amended Section 5(2) fails to protect the purported determination made by the Minister on May 1, 1968.
Then in addition to those reasons I now make the following additional observations in reference to the submission made by counsel for the appellant that the latter part of Section 5(2), as amended, statutorily ratified and confirmed the determination made in the Woodward case and made it binding upon all persons no matter how illegal, and that this phrase lent to the determination whether null, void, or voidable a validity that cured it of all its inherent and other defects of whatever character, whether jurisdictional or otherwise.
The determination made on May 1, 1968 was, at that time, not protected by a privative clause. Not long after the determination was made it was attacked in court and before the court proceedings were finally determined, as I have already outlined, the legislature by the retroactive amendment of 1970 made this determination, amongst others made by the Minister, final, conclusive and binding on all persons’’ and not open to appeal, question or review in any court. Thus by that amendment the legislature endeavoured to give to this determination of the Minister, which was a complete nullity, a final and conclusive character by law and having attached these qualities to it then stated that it was binding upon all persons and then declared it to be an area forbidden for the law courts.
In my judgment, had the amendment thus far discussed been in the Act originally when the determination was made it could not give finality or conclusiveness to that determination because the determination was not made in accordance with the provisions in the Act. The privative clause could not protect it for reasons already discussed. The section, as amended, could not, in my judgment, go any further despite the fact that it was passed after the determination in the Woodward case was made and when passed was made retroactive.
However, the amended section made the determination final which meant that uncertainty was put an end to or that the determination was not to be undone or altered or revoked. The same amendment also made the determination conclusive which in relation to a statement meant that it decided the question and/or closed the transaction. The first part of the amended section also made the determination binding on all persons. What was there left to ratify or confirm and to further make binding on all persons?
The Minister at all times material was the sole and only functionary statutorily empowered in his absolute discretion to make the determination in its totality. That being so, his determination by the terms of the amendment being made final and conclusive and binding on all persons needed no ratification or confirmation. Ratification and confirmation could give to the determination already declared by statute to be final, conclusive and binding on all persons no greater or further finality nor any added conclusiveness nor could it make the determination more binding on all persons.
Normally, a certain and specific act is the subject-matter of a ratification or a confirmation. There was no ratification or confirmation of the determination made by the Minister in the Woodward estate as such.
The amended Section 5(2) was deemed to come into effect on April 1, 1968 and was operative on and after that date. Its effect therefore, as the statute speaks in the present, was that at the moment the Minister made his decision on May 1, 1968 the legislative ratification and confirmation attached itself to the decision so made, notwithstanding the fact that the legislature at that time was ignorant of what the determination was. It was, as it were, an advance ratification and confirmation in vacuo given to any determination made by the Minister after April 1, 1968 by reason of an act of the legislature assented to on April 8, 1970.
In my view, Section 5(2), as amended in 1970, did not and could not have had any reference to a determination made by the Minister, which was made without notice to the parties whose rights were to be affected and without hearing any representations from such parties and upon facts and considerations undisclosed to such parties and not made apparent to the court. I am unable to imagine a more perfect nullity. No one can make something out of nothing. “ex nihilo nihil fit’’.
Thus, in my judgment, whatever determination the legislature may have intended to reach in and by the peculiar sections above discussed it did not and could not reach the purported determination made by the Minister in reference to the Woodward estate, which was a shocking decision made contrary to all precepts of natural and rational justice and one which was a complete nullity in fact and in law, as the judicial process by which that determination was to be made at law was never at any time entered into by the Minister whose statutory duty it was to set that judicial process in motion in order to arrive at a just and fair determination according to the precept of law.
I add a word in reference to the use of the words ‘‘final’’ or “final and conclusive” in statutes and whether or not the use of such words ousts the supervisory jurisdiction of the Supreme Court.
In Taylor v. National Assistance Board, [1957] P. 101 at 111, Denning, L.J. in his judgment confirmed the availability of a declaratory action as a remedy to ensure that authorities set up by Parliament to make determinations must act in accordance with the law whether the determination to be made was of a judicial, disciplinary or administrative character despite the fact that by statute the determination was declared to be final. He stated, and I agree, that “Parliament only gives the impress of finality to the decisions of the board on the condition that they are reached in accordance with the law, and the Queen’s courts can issue a declaration to*see that this condition is fulfilled.’’ In Regina v. Medical Appeal Tribunal, [1957] 1 Q.B. 574, Denning, L.J. repeated the foregoing quotation and declared it applicable to certiorari proceedings where error in law was apparent on the face of the record and stated that the words “final” or ‘‘final and conclusive” do not debar the supervisory jurisdiction of the Supreme Court, but leave that control intact. Romer, L.J. also deals with the problem and comes to the same conclusion as did Parker, L.J. In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, [1960] A.C. 260, the House of Lords considered whether or not an Act to establish declaratory rights was available in the circumstances or whether it was ousted by use of the words ‘‘shall be final’’ in reference to a decision of the Minister. Viscount Simonds stated that where the administrative or quasi-judicial powers of the Minister were concerned declaratory judgments should not be readily given but that that type of action was appropriate in that case. He said, “It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded. except by clear words.’’ Lord Goddard came to the same conclusions and added that the remedy by way of a declaratory judgment and certiorari are not mutually exclusive and each may be granted in appropriate cases. See Lord Jenkins at page 304: See also the judgment of Lord Morris of Borth-y- test in Ridge v. Baldwin at page 106 (supra) on the words “final and binding upon all parties’’.
Counsel for the appellant did not in the court below argue the question of the status of the executors to bring and maintain the present proceedings nor the submission that the determination was voidable only at the instance of the foundation. Neither point was raised in the Notice of Appeal. Counsel for the appellant requested amendments to the Notice of Appeal by adding two grounds:
8. That the Learned Chambers Judge should have held that the Executor of the Estate of P. A. Woodward, Deceased had no status to bring the application for certiorari because they were not a person aggrieved and that the status to bring the application was vested only in the Mr. & Mrs. P. A. Woodward’s Foundation.
9. That the determination was voidable only at the instance of the Mr. & Mrs. P. A. Woodward’s Foundation.
Counsel for the respondents objected to the amendments stating that had the application been made in the court below the respondents then would have applied formally to add the Foundation as a party litigant. There is merit to the objection. However, I do not think that adding the Foundation as a party litigant would solve the problem. The actual complaint is that the Foundation was the proper entity to have applied initially to the Minister for exemption under the terms of the Act. I do not see where the Foundation can be prejudiced by allowing the amendments. I would therefore allow the amendments requested. I have already dealt with the points raised by the amendments.
Lastly, the respondents asked this court, in view of what has happened, to make the determination which the Minister should have made, exempting the Foundation upon the materials before this court. I do not think that that order should be made. The respondents have maintained successfully that the determination made by the Minister was invalid because it was made arbitrarily and violated the rules of natural justice in that the representations of those whose rights might be affected were not asked for nor heard. The whole picture was not before the Minister when he made his determination on May 1, 1968. That whole picture is not before this court at this time. The statute directs that the determination shall be made by the Minister. I think, therefore, that the order made by the learned trial judge that the whole matter be referred back to the Minister for a proper determination is the course that should be pursued. The remarks of Lord Greene in M.N.R. v. Wrights Canadian Ropes Ltd., [1947] C.T.C. 1 at 15 and 16 are material. He there said:
So far therefore as these documents are concerned their Lordships cannot find any material which could have justified any disallowance. But it was suggested that there may have been other facts before the Minister which justified him in taking the course that he did and in particular it is said that the report of the Inspector may have contained the requisite material. Their Lordships cannot accept this argument. The appellant has not chosen to produce any evidence as to these alleged matters and their Lordships are quite unable to assume in the appellant’s favour that he had before him sufficient facts to support his determination when he neither condescends to state what those facts were nor attempts to prove that any such facts were in truth before him. The only inference which in their Lordships’ opinion can legitimately be drawn from the available evidence is that, apart from the documents which were before the Court the Minister had no material before him which influenced his mind in making the determination that he did. If he had in fact had such material it would in their Lordships’ opinion have been impossible to suppose that he would not have informed the respondents of at least the substance of it when the matter was originally brought before him so as to give the appellants a fair opportunity of meeting the case against them. The contrary supposition would involve that the appellant had come to a decision adverse to the respondents upon material of which, so far as he knew, the respondents were completely ignorant and knowledge of which he deliberately withheld from them.
He later added (p. 17) :
That, in the opinion of their Lordships, was the correct order to make, but the reference back to the Minister for this purpose could and should have been made under the inherent jurisdiction of the Court and not under section 65(2). It cannot be doubted that when the Court has answered a question submitted to it in such a way as to necessitate a revision of the assessment it has inherent jurisdiction to send the assessment back for that purpose instead of being bound itself to make the consequential alterations.
The appeal is dismissed, the quashing of the determination is confirmed and the matter is remitted back to the Minister as directed by the learned trial Judge. Costs to the respondents.