Harelkin v. Regina Univ. (1979), 26 N.R. 364 (SCC)
MLB headnote and full text
Harelkin v. The University of Regina
Indexed As: Harelkin v. University of Regina
Supreme Court of Canada
Martland, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
March 30, 1979.
Summary:
This case arose out of a university student’s application for an order of certiorari and mandamus to a committee of the University of Regina. The University requested that the student withdraw from the University because of his inadequate academic performance. On the student’s appeal to a committee of the University under s. 78(1)(c) of the University of Regina Act, S.S. 1973-74, c. 119, the committee dismissed the appeal without giving the student a hearing as required. Instead of pursuing an appeal to a committee of the senate of the University under s. 33(1)(e) of the Act the student applied for an order of certiorari and mandamus to quash the University committee’s decision. Bence, C.J., of the Saskatchewan Supreme Court, Queen’s Bench Division, allowed the application. The Saskatchewan Court of Appeal allowed the University’s appeal and held that an order of certiorari and mandamus should not issue where the student failed to pursue his statutory appeal to the senate committee. The student appealed.
The Supreme Court of Canada dismissed the appeal and held that the student should have pursued his appeal to the senate committee before resorting to the courts. See paragraphs 1 to 83.
Dickson, J., dissenting, in the Supreme Court of Canada, would have allowed the appeal. Dickson, J., was of the opinion that the failure to give a student a hearing before the university committee was an error which went to jurisdiction and that certiorari and mandamus should issue to correct the error and give the student a hearing to which he was entitled. See paragraphs 84 to 128.
Administrative Law – Topic 261
Hearing – Right to a hearing – General – Section 78(1)(c) of the University of Regina Act, S.S. 1973-74, c. 119, provided for an appeal to a committee of the university from a decision of the university to request that a student withdraw because of poor marks – The Supreme Court of Canada held that the committee’s function was quasi-judicial in nature and the committee had a duty to hear a student upon an appeal – See paragraphs 1 to 2, 91, 98 to 104.
Administrative Law – Topic 212
Natural justice – Effect of failure to observe rules of natural justice – A committee of a university failed to observe the rules of natural justice by failing to give a student an opportunity to be heard on an academic appeal under s. 78(1)(c) of the University of Regina Act, S.S. 1973-74, c. 119 – The Supreme Court of Canada held that the failure of the committee to observe the rules of natural justice was not an error of jurisdiction and did not result in its decision being a nullity, but was merely voidable – See paragraphs 40 to 55 and 82.
Administrative Law – Topic 3502
Judicial review – Mandamus – Discretionary nature of – The Supreme Court of Canada discussed and stressed the discretionary nature of mandamus – See paragraphs 29 to 39 – The Supreme Court of Canada held that mandamus was discretionary even where the administrative tribunal had failed to observe a statutory requirement to grant a hearing – See paragraphs 74 to 82.
Administrative Law – Topic 3584
Judicial review – Mandamus – Bars – Delay, inconvenience or expense – The Supreme Court of Canada held that the courts should not issue an order of mandamus to promote delay and expenditure unless there is no other way to protect a right – See paragraph 72.
Administrative Law – Topic 3586
Judicial review – Mandamus – Bars – Existence of another remedy – A student was requested by a university to withdraw because of poor marks – A committee of the university dismissed the student’s appeal under s. 78(1)(c) of the University of Regina Act, S.S. 1973-74, c. 119, without giving the student a hearing as required – Instead of pursuing an appeal under s. 33(1)(e) of the Act to the university senate the student applied for an order of certiorari and mandamus – The Supreme Court of Canada dismissed the application on the ground that the student should have pursued his statutory appeal to the senate before resorting to the courts – See paragraphs 1 to 83.
Administrative Law – Topic 3587
Judicial review – Mandamus – Bars – Existence of another remedy – What constitutes – A student’s appeal to a university committee from a decision of the university to request him to leave because of poor marks was dismissed – Instead of pursuing a statutory appeal to a committee of the university senate, which gave the committee the power to “hear and decide” upon the matter, the student applied for an order of certiorari and mandamus – The student submitted that the appeal to the senate committee was not an adequate remedy – The Supreme Court of Canada held that the appeal to the senate committee was an adequate remedy and should have been pursued by the student before resorting to the courts – See paragraphs 56 to 73.
Administrative Law – Topic 5002
Judicial review – Certiorari – Discretionary nature of – The Supreme Court of Canada discussed and stressed the discretionary nature of certiorari – See paragraphs 29 to 39 – The Supreme Court of Canada held that certiorari was discretionary even where the administrative tribunal had failed to observe a statutory requirement to grant a hearing – See paragraphs 74 to 82.
Administrative Law – Topic 5186
Judicial review – Certiorari – Discretionary bars to issue of certiorari – Delay, inconvenience or expense – The Supreme Court of Canada held that the courts should not issue an order of certiorari to promote delay and expenditure unless there is no other way to protect a right – See paragraph 72.
Administrative Law – Topic 5189
Judicial review – Certiorari – Discretionary bars to issue certiorari – Existence of another remedy – A student was requested by a university to withdraw because of poor marks – A committee of the university dismissed the student’s appeal under s. 78(1)(c) of the University of Regina Act, S.S. 1973-74, c. 119, without giving the student a hearing as required – Instead of pursuing the appeal under s. 33(1)(e) of the Act to the university senate the student applied for an order of certiorari and mandamus – The Supreme Court of Canada dismissed the application on the ground that the student should have pursued his statutory appeal to the senate before resorting to the courts – See paragraphs 1 to 82.
Administrative Law – Topic 5190
Judicial review – Certiorari – Discretionary bars to issue certiorari – Existence of another remedy – What constitutes – A student’s appeal to a university committee from a decision of the university to request him to leave because of poor marks was dismissed – Instead of pursuing a statutory appeal to a committee of the university senate, which gave the committee the power to “hear and decide” upon the matter, the student applied for an order of certiorari and mandamus – The student submitted that the appeal to the senate committee was not an adequate remedy – The Supreme Court of Canada held that the appeal to the senate committee was an adequate remedy and should have been pursued by the student before resorting to the courts – See paragraphs 56 to 73.
Words and Phrases
Ex debito justitiae
– The Supreme Court of Canada held that ex debito justitiae literally means “as of right” – See paragraphs 29 to 32.
Cases Noticed:
A.G. of Canada v. P.P.G. Industries Canada Ltd. (1975), 7 N.R. 209; [1976] 2 S.C.R. 739, appld. [para. 29].
R. v. Halifax-Dartmouth Real Estate Board (1964), 44 D.L.R.(2d) 248, consd. [para. 34].
McGavin Toastmaster Ltd. and Powlowski (1973), 37 D.L.R.(3d) 100, consd. [para. 35].
R. v. Aston University Senate, [1969] 2 Q.B. 538, consd. [para. 36].
Glynn v. Keele University, [1971] 1 W.L.R. 487, consd. [para. 37].
R. v. Brighton Justices, Ex parte Robinson, [1973] 1 W.L.R. 69, consd. [para. 38].
Dimes v. Grand Junction Canal (1852), 3 H.L.C. 759, refd to. [para. 40].
White v. Kuzych, [1951] A.C. 585, consd. [paras. 40, 53, 63].
Denton v. Auckland City, [1969] N.Z.L.R. 256, consd. [paras. 41, 107].
Leary v. National Union of Vehicle Builders, [1970] 3 W.L.R. 434, consd. [para. 41].
King v. University of Saskatchewan, [1969] S.C.R. 678, appld. [para. 41].
Re Clark and Ontario Securities Commission (1966), 56 D.L.R.(2d) 585, folld. [para. 44].
Re Polten and Governing Council of the University of Toronto (1975), 59 D.L.R.(3d) 197, folld. [paras. 44, 117].
Ridge v. Baldwin, [1964] A.C. 40, appld. [paras. 48, 107].
Durayappah v. Fernando, [1967] 2 A.C. 337, refd to. [para. 49].
Baldwin and Francis v. Patents Tribunal, [1959] 2 All E.R. 433, appld. [para. 49].
Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396, appld. [para. 55].
Lee v. Workmen’s Compensation Board, [1942] 2 D.L.R. 665, appld. [para. 72].
R. v. Spalding, [1955] 5 D.L.R. 374 (B.C.C.A.), consd. [paras. 72, 113].
Smith v. R., [1959] S.C.R. 638, dist. [paras. 74, 97].
Morris v. Her Majesty the Queen (1978), 43 C.C.C.(2d) 129, [para. 82].
King v. University of Saskatchewan, [1969] S.C.R. 678, appld. [para. 91].
Re Wilfong (1952), 37 W.W.R. (N.S.) 612, consd. [para. 96].
Local Government Board v. Arlidge, [1915] A.C. 120, appld. [para. 100].
R. v. Architects’ Registration Tribunal, [1945] 2 All E.R. 131, appld. [para. 100].
Knapman v. Board of Health for Saltfleet Township, [1954] 3 D.L.R. 760, affd. [1956] S.C.R. 877, appld. [para. 101].
Anisminic Ltd. v. Foreign Compensation Commission, [1967] 3 W.L.R. 382, consd. [para. 105].
Re Wilby and Minister of Manpower and Immigration (1975), 11 N.R. 366; 59 D.L.R.(3d) 146 (F.C.A.), affd. (1977), 17 N.R. 541; [1978] 1 S.C.R. 490, consd. [para. 105].
Tippett v. International Typographical Union (1976), 63 D.L.R.(3d) 522, refd to. [para. 107].
Lapointe v. L’Association de Bienfaisance et de Retraite de la Police de Montreal, [1906] A.C. 535, refd to. [para. 107].
McCarthy v. Grant, [1959] N.Z.L.R. 1014, (N.Z.S.C.), refd to. [para. 107].
Kanda v. Government of Malaya, [1962] A.C. 322, refd to. [para. 107].
R. v. Stafford Justices, [1940] 2 K.B. 33, consd. [para. 111].
R. v. Brighton Justices ex p. Robinson, [1973] 1 W.L.R. 69, consd. [para. 111].
Re Chad Investments Ltd. and Longson, Tammets & Denton Real Estate Ltd. et al. (1971), 20 D.L.R.(3d) 627, consd. [para. 113].
R. v. Paddington Valuation Officer, Ex. p. Peachey Property Corporation Ltd., [1966] 1 Q.B. 380, consd. [para. 113].
O’Laughlin v. Halifax Longshoremen’s Association (1972), 28 D.L.R.(3d) 315, consd. [para. 113].
Re Chromex Nickel Mines Ltd. (1970), 16 D.L.R.(3d) 273, consd. [para. 114].
Leary v. National Union of Vehicle Builders, [1970] 3 W.L.R. 434, consd. [para. 114].
Patel v. University of Bradford Senate, [1978] 3 All E.R. 841, refd to. [para. 126].
Statutes Noticed:
University of Regina Act, S.S. 1973-74, c. 119, sect. 9 [para. 126]; sect. 33(1)(e) [paras. 12, 89]; sect. 33(2)(b) [para. 115]; sect. 55 [para. 76]; sect. 66 [paras. 76, 126]; sect. 78(1)(c) [paras. 11, 89]; sect. 79(1)(b) [para. 115].
Authors and Works Noticed:
Black’s Law Dictionary (4th Ed.) [para. 32].
Bridge, Keeping Peace in the Universities (1970), 86 L.Q.R. 531 [para. 126].
de Smith, Judicial Review of Administrative Action (3rd Ed.) pp. 131 [para. 106]; 113 [para. 110]; 209 [para. 106]; 210 [para. 106, 122]; 211 [para. 122]; 375 [para. 110]; 510 [para. 29].
Mullan, David J., Comment (1971), 49 C.P.R. 624 [para. 44].
Osborne, P.G., The Precise Law Dictionary (5th Ed.), [para. 32].
Ricquier, The University Visitor (1978), 4 Dal. L.J. 647 [para. 126].
Counsel:
K.E. Norman and W.J. Wardell, for the appellant;
T. Wakeling, Q.C., for the respondent.
This case was heard on June 13 and 14, 1978, at Ottawa, Ontario, before MARTLAND, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ., of the Supreme Court of Canada.
On March 30, 1979, the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:
BEETZ, J. – see paragraphs 1 to 83;
DICKSON, J., dissenting – see paragraphs 84 to 128.
MARTLAND, PIGEON and PRATTE, JJ.,concurred with BEETZ, J.
SPENCE and ESTEY, JJ., concurred with DICKSON, J.
