Air Canada v. British Columbia (Attorney General), (1986) 72 N.R. 135 (SCC)

• Judge: Dickson, C.J.C., Beetz, McIntyre, Chouinard, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 27, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 72 N.R. 135 (SCC);[1986] 2 SCR 539;1986 CanLII 2 (SCC);32 DLR (4th) 1;72 NR 135;[1987] 1 WWR 304;22 Admin LR 153;[1986] SCJ No 68 (QL);8 BCLR (2d) 273

Air Can. v. B.C. (A.G.) (1986), 72 N.R. 135 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Air Canada v. Attorney General of British Columbia

(18089)

Indexed As: Air Canada v. British Columbia (Attorney General)

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Chouinard, Wilson, Le Dain and La Forest, JJ.

November 27, 1986.

Summary:

Air Canada brought an action for a declaration that the Gasoline Tax Act, R.S.B.C. 1979, c. 152, did not apply to Air Canada and was ultra vires the British Columbia legislature. Air Canada also sought an accounting for all monies paid under the Act by Air Canada and a declaration that Air Canada be repaid all monies paid since August 1, 1974. For recovery of monies paid under the Act between 1937 and 1974, the Crown Proceedings Act, R.S.B.C. 1979, c. 86, required that any action against the Crown be by way of petition of right, which required the obtaining of a fiat from the Lieutenant-Governor. Air Canada also issued a petition of right to recover monies paid between 1937-74. The Attorney General recommended to the Executive Council that the fiat be denied. The Executive Council then advised the Lieutenant-Governor to deny the fiat. The fiat was refused. Air Canada applied under the Judicial Review Procedure Act, R.S.B.C. 1979, c. 209, for (1) mandamus to compel the Attorney General to consider the petition of right and advise the Lieutenant-Governor to issue the fiat, (2) a declaration that the Attorney General failed to exercise his statutory power of decision to advise the Lieutenant-Governor that he had a duty to do so and (3) a direction to the Attorney General to reconsider and determine whether the Lieutenant-Governor should be advised to grant his fiat together with reasons.

The British Columbia Supreme Court, in a judgment reported [1982] 6 W.W.R.415; 41 B.C.L.R. 41; 141 D.L.R.(3d) 530, dismissed the application. Air Canada appealed.

The British Columbia Court of Appeal, Anderson, J.A., dissenting, in a judgment reported [1983] 6 W.W.R. 689; 47 B.C.L.R. 341; 150 D.L.R.(3d) 653, dismissed the appeal. Air Canada appealed to the Supreme Court of Canada.

The Supreme Court of Canada allowed the appeal and directed that mandamus issue to compel the Attorney General to advise the Lieutenant-Governor to grant the fiat.

Crown - Topic 4465

Actions by and against provincial Crown - Petition of right - Fiat - Granting of - Air Canada claimed that the Gasoline Tax Act, R.S.B.C. 1979, c. 152, was ultra vires the British Columbia legislature and sought repayment of all monies paid under the Act since 1937 - For the recovery of monies paid before August 1, 1974, the Crown Proceedings Act, R.S.B.C. 1979, c. 86, preserved actions against the Crown by way of petition, which required that Air Canada obtain a fiat from the Lieutenant-Governor - The fiat was refused - Air Canada sought mandamus to compel the Attorney General to advise the Lieutenant-Governor to grant the fiat - The Supreme Court of Canada reversed the British Columbia Court of Appeal's refusal to order mandamus - The Supreme Court of Canada held that the provincial or federal Crown could not preclude recourse to the courts to challenge the constitutionality of legislation - The court stated that the refusal to grant the fiat, for whatever reason, constituted an indirect way of doing what the Crown could not do directly - The court stated that for actions raising constitutional issues the fiat must be granted.

Cases Noticed:

Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 7].

British Columbia Power Corporation v. British Columbia Electric Co., [1962] S.C.R. 642, refd to. [para. 9].

Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, refd to. [para. 10].

Ryves v. The Duke of Wellington (1846), 9 Beav. 579; 50 E.R. 467, refd to. [para. 13].

R. v. Commissioners of Inland Revenue, In re Nathan (1884), 12 Q.B.D. 461, refd to. [para. 13].

Inuit Tapirisat v. Attorney General of Canada, [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 21].

Teh Cheng Poh v. Public Prosecutor, [1980] A.C. 458 (P.C.), refd to. [para. 22].

Padfield v. Minister of Agriculture, Fisheries & Food, [1968] A.C. 997 (H.L.), refd to. [para. 22].

Statutes Noticed:

Gasoline Tax Act, R.S.B.C. 1979, c. 152.

Crown Proceeding Act, R.S.B.C. 1979, c. 86.

Judicial Review Procedure Act, R.S.B.C. 1979, c. 209.

Attorney General Act, R.S.B.C. 1979, c. 23, sect. 2(a), sect. 2(c) [para. 16].

Crown Procedure Act, R.S.B.C. 1960, c. 89, sect. 4 [para. 17].

Interpretation Act, R.S.B.C. 1979, c. 206, sect. 29 [para. 19].

Authors and Works Noticed:

Edwards, J. Ll. J., The Law Officers of the Crown, p. 154 [para. 16].

Halsbury's Laws of England (2nd Ed.), vol. 9, para. 1180 [para. 16].

Counsel:

D.M.M. Goldie, Q.C., and W.S. Martin, for the appellant;

E.R.A. Edwards, Q.C., and Robert Vick Farley, for the respondent.

Solicitors of Record:

Russell & DuMoulin, Vancouver, B.C., for the appellant;

Ministry of the Attorney General, Vancouver, B.C., for the respondent.

This appeal was heard on November 4, 1985, before Dickson, C.J.C., Beetz, McIntyre, Chouinard, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

On November 27, 1986, La Forest, J., delivered the following judgment for the Supreme Court of Canada.