The Telezone Litigation: Artful Pleading and the Dismemberment of Federal Administrative Law or Access to Meaningful Relief

Does the Federal Courts Act require parties seeking to commence civil actions against the Federal Crown that impugn the “lawfulness” of an administrative decision to first seek judicial review of the decision in the Federal Court? The answer to this question, raised in six cases heard together in January 2010 by the Supreme Court of Canada, will significantly impact the ability of plaintiffs to secure an effective remedy to alleged wrongful conduct by the Crown and the Crown’s ability to defend itself against such claims. The author concludes that the Federal Court of Appeal’s view that section 18 of the Federal Courts Act requires parties who seek to commence civil actions against the Crown that impugn the “lawfulness” of an administrative decision to first seek judicial review of that decision in the Federal Court is insupportable for several reasons. First, it would make civil litigation against the Crown more complex, time-consuming and expensive and would reduce plaintiffs’ access to effective remedies for civil wrongs by the Crown – a result that is inconsistent with 1992 amendments to the Federal Court Act and Crown Liability and Proceedings Act designed to enhance such access. Second, an interpretation of the Federal Courts Act that would have Parliament expressly conferring on superior courts the jurisdiction to hear actions in damages against the Crown while in the next section impliedly removing their authority to consider the legality of the decision where illegality is a pre-requisite to a remedy in damages is contradictory and unsustainable. In contrast, an interpretation of section 18 that reserves to the Federal Court the exclusive authority to issue, in the context of a judicial review application, remedies that directly impact the validity of federal decisions and orders while allowing the Federal and superior courts to pronounce themselves on the lawfulness of such orders in issuing remedies that address the consequences – not the validity – of government acts is consonant with the fundamentally different roles of public and private law. Third, in many, if not most cases, the public law validity of governmental acts will not be co-extensive with a finding of civil liability; anxiety over the fact that courts may consider the lawfulness of such acts as part of their adjudication of civil claims for damages is thus unwarranted. Fourth, if determinations of civil liability do not require courts to revisit the public law validity of a decision, then civil proceedings do not constitute collateral attacks on that decision. In any event, whether a collateral attack on an administrative decision is impermissible depends on Parliament’s intention as to the appropriate forum for challenging the decision’s validity. This intention can only be gleaned from the proper interpretation of the Federal Courts Act. Accordingly, the rule against collateral attack is of no assistance in determining the meaning of section 18. Finally, there is no basis for affirming that courts that hear civil actions for damages that depend on the validity of administrative decisions cannot adopt, where appropriate, a deferential approach to the review of such decisions. The baseless fear of more intrusive review should not drive a broad interpretation of section 18.

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