Nova Scotia (Embalmers and Funeral Directors) v. Walker

Nova Scotia (Embalmers and Funeral Directors) v. Walker Court Court of Appeal Date 1995-06-28 Citation 1995 NSCA 111 Docket CA 113149 Judge/Registrar/Adjudicator Chipman, David (Honourable Justice); Flinn, Edward J. (Honourable Justice); Freeman, Gerald B. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 113149 NOVA SCOTIA COURT OF APPEAL Cite as: Nova Scotia (Embalmers and Funeral Directors) v. Walker, 1995 NSCA 111 Chipman, Freeman and Flinn, JJ.A. BETWEEN: THE BOARD OF REGISTRATION OF ) Peter McLellan, Q.C. EMBALMERS AND FUNERAL DIRECTORS ) for the Appellant FOR THE PROVINCE OF NOVA SCOTIA ) BASIL MacGILLIVRAY, HAROLD ) MATTATALL, PETER CHANDLER, DENNIS ) HAVERSTOCK AND R.P. MARTIN, ) CHAIRMAN AND MEMBERS ) RESPECTIVELY OF THE BOARD OF ) REGISTRATION OF EMBALMERS AND ) FUNERAL DIRECTORS FOR THE ) PROVINCE OF NOVA SCOTIA ) ) Appellants ) ) - and - ) ) Daniel L. Weir ) for the Respondent DONALD WALKER ) ) Respondent ) Appeal Heard: ) June 8th, 1995 ) ) ) Judgment Delivered: ) June 28th, 1995 ) ) ) ) ) ) ) ) THE COURT: Appeal allowed per reasons for judgment of Flinn, J.A.; Chipman and Freeman, JJ.A. concurring. FLINN, J.A.: This is an appeal from the decision of a Supreme Court judge in chambers granting relief by way of certiorari and prohibition in favour of the respondent Donald Walker (Mr. Walker). The Chambers judge quashed a decision of the appellants, the Board of Registration of Embalmers and Funeral Directors for the Province of Nova Scotia (the Board), dated December 20, 1993, by which the license of Mr. Walker to practice as a funeral director was suspended for 30 days commencing January 1, 1994. In addition, the Chambers judge prohibited the Board from commencing or continuing any further proceedings against Mr. Walker arising from a complaint that Mr. Walker continued to carry on the duties of a funeral director while suspended. In May, 1993, following receipt and investigation of a complaint from the family of the late Norma E. Hare against Mr. Walker, the Board initiated an inquiry pursuant to the provisions of s. 23(1) of the Embalmers and Funeral Directors Act, R.S.N.S. 1989, c. 144 (the Act). Section 23(1) of the Act provides as follows: "23 (1) Subject to the regulations, the Board may, after due inquiry, suspend or revoke the licence of an embalmer, an apprentice embalmer or funeral director where at least four members of the Board find that the embalmer, apprentice embalmer or funeral director has been guilty of non-compliance with this Act, the regulations or the by-laws of any misrepresentation, negligence, professional misconduct or fraud. The inquiry was held on December 7th, 1993. Mr. Walker was in attendance and represented by counsel. Witnesses were called and submissions made. The Board filed a written decision on December 20th, 1993. In its decision the Board found Mr. Walker to be guilty of professional misconduct for the improper manner in which the late Norma E. Hare was prepared for public visitation, and for his failure to take appropriate measures to rectify the situation. With respect to penalty, the Board said in its written decision: "This Board of Inquiry considers it appropriate that the licence of Mr. Walker as a Funeral Director be suspended for a period of thirty days effective January 1, 1994. This disposition should demonstrate to Mr. Walker and to the public that licensed Funeral Directors must at all times follow the high standards of conduct expressed in the Regulations made pursuant to the Act." On December 23, 1993, the Board's decision was sent by fax to Mr. Walker's counsel who, in turn, advised Mr. Walker of the decision prior to January 1, 1994. Until the events which unfolded, and which are hereinafter referred to, Mr. Walker did not complain about this decision, nor did he take any steps to appeal the decision pursuant to the appeal provisions of the Act. In late January, 1994, the Board received a further complaint alleging that Mr. Walker was continuing to practice as a funeral director while suspended. Following an investigation the Board decided to hold a further inquiry with respect to Mr. Walker's conduct pursuant to s. 23(1) of the Act (the second inquiry). The second inquiry began May 18th, 1994. Counsel for Mr. Walker raised certain objections with respect to the process by which Mr. Walker was initially suspended. The Board rejected those objections by written decision on May 30th, 1994. On June 30th, 1994, prior to the continuation of the second inquiry, counsel for Mr. Walker commenced a proceeding in the Supreme Court by way of Originating Notice (Application inter parties) claiming: 1. a declaration that Mr. Walker's suspension for 30 days effective January 1, 1994, represented by the decision of the Board dated December 20, 1993, was a nullity; 2. an order in the nature of certiorari quashing the Board's decision of May 30th, 1994, being the Board's decision to reject the objections of Mr. Walker's counsel to the suspension; and 3. an order in the nature of prohibition prohibiting the Board from commencing or continuing the second inquiry. Mr. Walker sought declaratory relief, instead of relief by way of certiorari, with respect to the decision to suspend him, because the time limit for certiorari had expired. An originating notice for an order in the nature of certiorari must be filed and served: "...within six months after the judgment, order, warrant or inquiry to which it relates ....." (Civil Procedure Rule 56.06) The Board's decision with respect to Mr. Walker's suspension was dated December 20th, 1993, and delivered to Mr. Walker's counsel on December 23rd, 1993. Six months had passed by the time the Originating Notice was filed on June 30th, 1994. The Chambers judge agreed with counsel for Mr. Walker that the Board's decision to suspend Mr. Walker from practice was a nullity. He then granted relief, by way of certiorari, and quashed the decision of the Board, dated December 20th, 1993, which imposed the suspension. The fact that the time period, for bringing an application for an order in the nature of certiorari, had passed, was not argued by counsel, nor dealt with in the decision of the Chambers judge. Indeed, certiorari, with respect to the Board's decision of December 20th, 1993, was not even claimed in the originating notice. In granting certiorari the Chambers judge said that Mr. Walker had been denied natural justice in two respects. Firstly, he said that the Board failed to strictly follow its Act and Regulations with respect to notice to board members. Secondly, he said that the Board failed to give Mr. Walker an opportunity to be heard on the question of penalty before it was imposed. Further, in granting the remedy of certiorari instead of the declaratory relief which was claimed by Mr. Walker, the Chambers judge must have recognized that certiorari, and not declaratory relief, is the appropriate remedy in Nova Scotia for denial of natural justice by a statutory tribunal. This is subject, of course, to whatever effect a statutory right of appeal may have on the use of that remedy, and more will be said about that later in this opinion. In the case of Harbourview Acres et al v. Rent Review Commission, et al (1983), 57 N.S.R. (2d) 347, MacKeigan, C.J.N.S. said at p. 351: "Clearly, if no statutory appeal were provided, the appropriate remedy in Nova Scotia for a denial of natural justice by a statutory judicial tribunal would be an application under Civil Procedure Rule 56 for an order in the nature of certiorari to quash and of mandamus to direct a re-hearing coupled, if needed, with an application for a declaration." The Chambers judge also granted an order in the nature of prohibition prohibiting the Board from commencing or continuing the second inquiry. Counsel for the Board has raised four grounds of appeal: 1. That the Chambers judge erred in law in finding that the Board is required by the Act to constitute a separate board of inquiry to hear and determine a complaint under the Act. 2. That the Chambers judge erred in law and in fact in finding that Mr. Walker had not been heard on the issue of punishment by the Board. 3. That the Chambers judge erred in law in finding that the Board had acted contrary to Section 9(3) of the Act, in any event, by holding a meeting of the Board immediately following the inquiry into the complaint against Mr. Walker. 4. That the Chambers judge erred in law in finding that Mr. Walker was not required to follow the appeal provisions contained in the Act and was entitled to apply to the Supreme Court for orders in the nature of certiorari and prohibition. I will deal with the fourth ground of appeal first. Section 23(2) of the Act makes provision for appeal of a decision of the Board. "23 (2) Any person whose licence is suspended or revoked may appeal to a judge of the Supreme Court within three months from the date of the suspension or revocation, or such extended time as a judge of the Supreme Court thinks reasonable and the judge, upon hearing the appeal, may make such order either confirming, amending or setting aside the suspension or revocation or for further inquiries by the Board into the facts of the case and as to costs, as to the judge seems right." Counsel for the Board argues that where, as here, there are broad powers of review by way of statutory appeal, Mr. Walker is required to follow that route of appeal if he wishes to challenge the Board's decision. Further, that if Mr. Walker allows the time period for that appeal to expire, it is appropriate for the court to decline to intervene through the discretionary remedies of certiorari, prohibition or declaration. Counsel for Mr. Walker argues that the decision of the Board to suspend Mr. Walker was a nullity, and that there can be no appeal, as such, from a decision which is, in itself, a nullity. That being the case Mr. Walker was not required to pursue his remedies by way of statutory appeal. It is apparent that the Chambers judge accepted that argument. In the case of Harelkin v. University of Regina, [1979] 2 S.C.R. 561 the Supreme Court of Canada dealt with the issue of whether it was appropriate to grant relief in the nature of certiorari where a statutory right of appeal existed in the subject legislation. A student who was required to discontinue classes at the University of Regina appealed, pursuant to the provisions of the University Act, to the University council. The University Act provided that the University council appoint a committee to hear and decide all such applications. The University council heard the University's side of the matter and decided against the student without having heard from the student. The University Act provided a further right of appeal to a committee of the senate of the University, which committee was obliged to hear and decide all such appeals. This further appeal was ignored and the student commenced proceedings in the nature of certiorari and mandamus to quash the decision of the University council and order a rehearing. Beetz, J. writing for the majority agreed with the conclusion of the Saskatchewan Court of Appeal at p. 573: "...Woods J.A., who delivered the unanimous judgment said: While the general rule is that an application for certiorari will not be entertained where there is a right of appeal, the practice followed in this jurisdiction is set out by Culliton, C.J.S., for this Court in Re Wilfong, (1962), 37 W.W.R. 612 at page 615 as follows: In this province the practice has been that when there is a right of appeal a certiorari should not be granted except under special circumstances'. No special circumstances have been established in this case. The Committee on Admissions decided that the words "to hear and decide upon" did not require it to hear the respondent in person. Whether such an interpretation was right or wrong in law, the Committee acted within its jurisdiction and that same matter will be dealt with on appeal. There is a right of appeal to the Senate and the respondent has not taken advantage of it. In other words, the respondent has not utilized the means of redress provided by the appellant. I am of the view that the Court of Appeal reached the right conclusion." Among the issues which were raised on behalf of the student, and which were dealt with by Beetz, J. were (1) that the decision of the Council committee was an absolute nullity from which there could be no appeal to the Senate committee; and (2) that even if there could be an appeal to the Senate committee, the student's right of appeal was not an adequate alternative remedy. As to the first issue Beetz, J. said at p. 585: "In the case at bar, it cannot be doubted that the committee of the council had jurisdiction to hear and decide upon appellant's application or memorial. There was no want of jurisdiction. In the exercise of this jurisdiction, the committee of the council erred in failing to observe the rules of natural justice. While it can be said in a manner of speaking that such an error is "akin" to a jurisdictional error, it does not in my view entail the same type of nullity as if there had been a lack of jurisdiction in the committee. It simply renders the decision of the committee voidable at the instance of the aggrieved party and the decision remains appealable until quashed by a superior court or set aside by the senate." And further at p. 586: "Furthermore, and even if it can be said that the decision of the council committee was a nullity, I believe it was still appealable to the senate committee for the simple reason that the senate committee was given by statute the power to hear and decide upon appeals from the decisions of the council, whether or not such decisions were null." As to the second issue Beetz, J. concluded that the student's right of appeal to the Senate Committee provided him with an adequate alternative remedy which was a more convenient remedy for the student as well as for the University in terms of costs and expeditiousness. In coming to that conclusion Beetz, J. considered the following at p. 588: "In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the senate committee, its power and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of a previous finding expeditiousness and costs." The Harelkin case was considered by this Court in the Harbourview Acres case (supra). In Harbourview Acres the Court dealt with the appropriateness of an application for judicial review of a decision of the Rent Review Commission, alleged to be void on the grounds of denial of natural justice, where there existed a statutory right of appeal under the provisions of the Rent Review Act. MacKeigan, C.J.N.S., writing for the Court, distinguished Harelkin on the basis that in Harelkin the statutory right of appeal was internal (within the University) as opposed to being an appeal to a court of law as was the case before him. He said at p. 353: "Where, however, the person aggrieved can by statute appeal directly to a court of law which can give speedy and adequate remedial relief a much stronger rule that Harelkin applies and dictates that the appeal route should then be followed. ... judicial review by certiorari or by declaration should not then replace appeal to a court of law except in very special circumstances. These are left undefined, but might, I suggest, include where flagrant injustice arises from bona fide ignorance of appeal rights." A similar result was reached in the Alberta Court of Appeal in the case of Re Chad Investments Ltd. et al (1971), 20 D.L.R. (3d) 627. Here, the Court considered the appropriateness of seeking certiorari with respect to an order of the Development Appeal Board. There was a right of appeal under the statute to the appellate division of the Supreme Court of Alberta, the time limit for which had expired before the application for certiorari was made. McDermid, J.A. writing for the court said at p. 631-632: "It is a wrongful exercise of judicial discretion, unless there are special circumstances, to grant an order of certiorari where the party aggrieved has been given an effective right of appeal which the party has not taken advantage of and which has expired." Considering the principles set out in these authorities, three questions must be answered with respect to the matter under appeal: 1. Is the decision of the Board, dated December 20th, 1993 a nullity from which it can be said that there is nothing to appeal? 2. Does the statutory appeal, provided for in the Act, provide Mr. Walker with an adequate alternative remedy? 3. If the answer to the second question is "yes", are there any special circumstances in this case which might provide an exception to the general rule that certiorari is not available to an aggrieved party where he has an adequate alternative remedy by way of statutory appeal? Firstly, in my opinion, the decision of the Board dated December 20th, 1993, was not a nullity in the legal sense. The decision was made by a body (the Board) with the statutory authority to make such decisions. If in the course of making such a decision the Board erred in failing to observe the rules of natural justice (as the Chambers judge determined) those errors would make the decision of the Board voidable at the instance of Mr. Walker. The Board's decision is not a nullity and "remains appealable" (see Harelkin) pursuant to the provisions of s. 23(2) of the Act. Secondly, the Board's decision, to suspend Mr. Walker's licence to practice for 30 days, is subject to broad powers of review by the Supreme Court. Section 23(2) of the Act gives the aggrieved party three months (or such extended time as the judge thinks reasonable) from the date of suspension to appeal the decision. There is no privative clause in the Act. The appeal is not limited to questions of law and jurisdiction. The judge who hears the appeal may make such order either "confirming, amending or setting aside" the suspension. The judge may also make an order "for further inquiries by the Board into the facts of the case". In my opinion the right of appeal in s. 23(2) of the Act provides Mr. Walker with the "adequate alternative remedy" referred to by Beetz J. in Harelkin, or the "speedy and adequate remedial relief" referred to by MacKeigan C.J.N.S. in Harbourview. That being the case, and since Mr. Walker has chosen not to take advantage of his statutory right of appeal, he cannot expect the courts to now intervene with the discretionary remedy of certiorari, quite apart from the fact that he is out of time in any event. Thirdly, there is no suggestion by counsel that there are any special circumstances here which might provide an exception for Mr. Walker. There is no suggestion, for example, of bias on the part of the Board which might militate against the matter being referred back to the Board following appellate review. There is no suggestion of any flagrant injustice arising from ignorance of appeal rights. In fact, there was not even a suggestion that the Board's decision of December 20th, 1993 would be challenged until such time as the second inquiry was initiated. It is therefore my respectful opinion that the Chambers judge erred in granting relief by way of certiorari and quashing the decision of the Board dated December 20th, 1993. Mr. Walker had available an adequate alternative remedy by way of statutory appeal, albeit he did not take advantage of it, which provided an efficient and effective means of dealing with the particular concerns he has advanced with respect to the Board's decision to suspend him. The authorities are clear that in such cases the courts will decline to intervene through the discretionary remedy of certiorari. Since I have come to this conclusion it is not necessary for me to deal with the first three grounds of appeal. In the result then the appeal should be allowed. The decision of the Chambers judge, quashing the decision of the Board dated December 20th, 1993, should be set aside. The result of this conclusion is that the decision of the Board, dated December 20th, 1993, would stand. Therefore, the decision of the Chambers judge, that the Board is prohibited from commencing or continuing any proceedings with respect to the second inquiry, should also be set aside. The Board should have its costs both in this Court and in the court below which I would fix at $3,500 plus disbursements. Flinn J.A. Concurred in: Chipman, J.A. Freeman, J.A. C.A. No. 113149 NOVA SCOTIA COURT OF APPEAL BETWEEN: THE BOARD OF REGISTRATION ) OF EMBALMERS AND FUNERAL ) DIRECTORS FOR THE PROVINCE OF ) NOVA SCOTIA BASIL MacGILLIVRAY ) HAROLD MATTATALL, PETER ) CHANDLER, DENNIS HAVERSTOCK ) AND R.P. MARTIN, CHAIRMAN AND ) MEMBERS RESPECTIVELY OF THE ) BOARD OF REGISTRATION OF ) EMBALMERS AND FUNERAL ) DIRECTORS FOR THE PROVINCE ) OF NOVA SCOTIA ) ) ) Appellants ) - and - ) REASONS FOR ) JUDGMENT BY: DONALD WALKER ) ) FLINN, J.A. ) Respondent ) ) ) ) ) ) )