Strickland v Canada: Refining the Exclusive Jurisdiction of the Court

In Strickland v Canada (Attorney General) 2015 SCC 37 [Strickland], the Supreme Court of Canada (“SCC”) considered whether the provincial superior courts could review the validity of a federal administrative action. Both the majority opinion, written by Justice Cromwell, and the concurring opinion held that provincial superior courts are able to consider the validity of regulations in administrative law if the determination of validity is necessary for determining a case that is properly before them. 

The Facts

In 2013 Robert Strickland, George Connon, Iwona Auer-Grzesiak, Mark Auer, and Vladamir Auer brought an application for judicial review of the Federal Child Support Guidelines, SOR/97-175 [Guidelines] before the Federal Court (“FC”). The applicants sought a declaration that the Guidelines are ultra vires section 26(2) of the Divorce Act,  RSC 1985, c 3 (2nd Supp) [Divorce Act]. Section 26(2) of the Divorce Act states, “the guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” [Emphasis added]. The applicants claimed that the Guidelines calculations are not based on the relative abilities of a parent to contribute to maintaining the children, making the Guidelines inconsistent with the statutory provisions under which they were enacted.

Judicial History

Justice Gleason, the application judge, granted the Attorney General’s motion to dismiss the application for judicial review in Strickland v Canada (Attorney General), 2013 FC 475 [Strickland FC]. Among the reasons Justice Gleason declined judicial review was her finding that the Alberta Court of Queen’s Bench was a more appropriate forum. Provincial superior courts were a more appropriate forum given “the breadth of the jurisdiction and expertise of the provincial superior courts in matters related to divorce and child support” (Strickland FC, para 7). Parliament, through section 3 of the Divorce Act, entrusted child support to the provincial courts; the FC lacks the institutional expertise in these matters.

Justice Gauthier, writing for a unanimous Federal Court of Appeal, dismissed the appeal. Justice Gauthier agreed with Justice Gleason’s finding that the provincial superior courts had concurrent jurisdictions and were a more suitable forum to determine the legality of the Guidelines.

Do the provincial superior courts have jurisdiction to address the validity of the Guidelines?

The position of the appellants was that the Federal Courts Act, RSC 1985 c F-7 [FCA] gave the FC exclusive jurisdiction to “grant declaratory relief, against any federal board, commission or other tribunal” [FCA, s 18(1)(a)]. The appellants argued that the FC’s exclusive jurisdiction precluded other forums from considering the validity – excluding constitutional validity – of the federal administrative actions.

Justice Cromwell, while accepting the premises of the appellants, rejected their conclusion that “provincial superior courts must presume the Guidelines to be valid unless found to be invalid by a court of competent jurisdiction” (Strickland, para 13) Justice Cromwell relied on the companion cases Canada (Attorney General) v McArthur, [2010] 3 SCR 626 [McArthur] and Canada (Attorney General) v TeleZone Inc, [2010] 3 SCR 585 [TeleZone]. In McArthur the Court held that Mr. McArthur was not required to seek judicial review at the FC prior to bringing an action against the federal Crown in the provincial superior court.

In TeleZone, Justice Binnie, writing for an unanimous Court, held that s. 18 does not preclude provincial superior courts from considering the legality of federal tribunals when “adjudication of that allegation… is a necessary step in disposing of the claim” (TeleZone, para 67). TeleZone stands for the principle that provincial superior courts can “determine every legal and factual element necessary for the granting or withholding of remedies sought…” (TeleZone, para 6). Relying on the TeleZone principle, the SCC held that provincial superior courts have jurisdiction to address the validity of the Guidelines if a determination on the validity of the Guidelines is necessary to adjudicating a case that was properly before that court.

Declining Judicial Review

Both the majority and concurring opinion held that the FC did not err in refusing to hear the judicial review.

While it was acknowledged that the remedy sought by the applicants was only available under s. 18 of the FCA, the Court held that it would be “manifestly inappropriate” to proceed on the validity of the Guidelines in FC by judicial review (Strickland, para 46). First, the FC lacked practical expertise in applying the Guidelines in child support matters. The provincial superior courts make determinations about the relative abilities of parents to contribute to maintain children and have family-matter expertise (Strickland, para 61).

Second, a provincial superior court would decide the validity of the Guidelines in an adversarial context and would benefit from the arguments of the spouse seeking support (Strickland, para 46). Additionally, the SCC correctly rejected the applicants’ claim that they were entitled to a judicial review at the FC (Strickland, para 48).

The Concurring Opinion

Justices Abella and Wagner, in their joint concurring opinion, rejected the position of all parties that the FCA gave exclusive jurisdiction “to declare federal regulations ultra vires” (Strickland, para 74). Among the reasons Justices Abella and Wagner did not wish to endorse the parties’ assumption that any limitation on the superior court’s inherent jurisdiction required Parliament to “use express statutory language where it intends to assign jurisdiction to the Federal Court” (see Ordon Estate v Grail, [1998] 3 SCR 437, para 46).

The majority proceeded on the parties’ assumption that the FC has exclusive original jurisdiction to grant judicial review remedies directed against regulations promulgated by the Governor in Council. The majority held that the language “exclusive original jurisdiction” is “a clear and explicit expression of parliamentary intent” (Strickland, para 64). However, it is possible that the Court will reverse their position as Justice Cromwell offered to “to keep an open mind” (Strickland, para 63).

Conclusion

The FCA does not preclude a provincial superior court from invalidating regulations promulgated by the Governor in Council. Whether the Guidelines are ultra vires remains to be determined.