Indexed as:
Lindsay v. Nova Scotia (Department of Consumer Affairs)


Between
Gertrude M.
Lindsay, Applicant
and
R. Laird
Stirling, Minister, Department of
Consumer Affairs for the Province of
Nova Scotia, Respondent


Nova Scotia Judgments: [1986] N.S.J. No. 388

Action S.H. No. 57980

76 N.S.R. (2d) 208

 

 Nova Scotia Supreme Court - Trial Division
Halifax, Nova Scotia - In Chambers

MacIntosh J.

Judgment: November 18, 1986

Licences -- Natural justice -- Duty of fairness -- Minister of Consumer Affairs suspecting applicant for license to operate funeral home acting as cover for husband whose licence revoked following conviction for fraud in operating home -- Minister refusing to issue licence -- Minister having discretion to refuse to issue licence for any reasonable cause -- Minister having duty to act fairly -- Minister failing to act fairly by considering extraneous matters -- Decision of Minister quashed -- Judicial review -- Mandamus -- Bars -- Court refusing to grant mandamus so as to compel Minister to reach any particular decision -- Mandamus granted compelling Minister to reconsider decision properly -- Embalmers and Funeral Directors Act, R.S.N.S. 1967, c. 86, ss. 12, 16(1), 19, 19A, B, C, D, E, 20A.

This was an application for certiorari to quash the decision of the Minister of Consumer Affairs refusing a licence to operate a funeral home and for mandamus to compel the issuing of the licence. The applicant applied for a licence under the Embalmers and Funeral Directors Act for a licence to operate a funeral home. The Minister denied the application even thought the applicant met the requirements of the Act and Regulations on the ground that the applicant was acting as a front for her husband who lost his own licence following convictions for fraud relating to the conduct of a funeral home.

HELD: The application was allowed in part. Although the Minister was given the discretion to refuse to issue a licence for any reasonable cause under s. 19A(2) of the Act he was under a duty of fairness, the exercise of which was reviewable by way of certiorari. The applicant was entitled to have her application dealt with on its own merits and to have excluded from consideration matters irrelevant to the application. By considering extraneous matters the Minister did not meet the duty to act fairly. The decision was therefore to be quashed. As to the granting of mandamus, in discretionary situations the court would not direct how the discretion was to be exercised provided it was exercised on proper legal principles. The court would intervene when the principles were not followed but would not order mandamus directing any particular decision. The most the court would do would be to insist that the Minister consider the application properly.

Mark H. Arnold, for the applicant.

Alison Scott, for the respondent.





MacINTOSH J: -- The Applicant seeks an order in the nature of certiorari quashing the decision of the Minister of the Department of Consumer Affairs, for the Province of Nova Scotia, denying the Applicant a license to operate a funeral home pursuant to the Embalmers and Funeral Directors Act, R.S.N.S. 1967, c. 86 s. 19A. The Applicant also seeks an order in the nature of mandamus compelling the said Minister to issue to her a license to operate a funeral home.

Counsel for the Applicant sets forth the facts in his brief as follows:











Counsel for the Respondent agrees with the facts as outlined for the Applicant but adds the following:


The issues are whether the decision of the Minister is -




Relevant sections of the Act applicable to the licensing of funeral homes include the following:

FUNERAL DIRECTOR'S LICENSE
























Pursuant to s. 20A of the Act, the Governor in Council issued regulations relating to the licensing of funeral homes. The court was given to understand by counsel that there was full compliance with these regulations by the Applicant, as well as her having been issued a Funeral Director's License under the Act. In other words, there has been compliance with all requirements of this particular statute by the Applicant.

Counsel for the Respondent argues that the function of the Minister of Consumer Affairs is ministerial and therefore not reviewable by certiorari which is generally considered available only where decisions are judicial or quasi-judicial. Whether a particular decision is to be termed judicial, quasi-judicial, or administrative (or ministerial) is at times difficult to determine, as one term seems to overlap into the other. The importance of a distinction between these terms would seem to be lessening.


The extent of this "duty to be fair" principle is discussed in Principles of Administrative Law, Jones & deVillars at p. 174-76:













As this case concerns the actions of a Minister of the Crown, i.e. a member of the Provincial Cabinet, the court must examine quite closely its right to interfere by way of certiorari or otherwise. The position of this court can be found in the following comments of MacKeigan, C.J.N.S. (as he then was) in Bedford Service Commission et al v. Attorney General of Nova Scotia (1977), 18 N.S.R. (2d) at 147:


Further in the Irving Oil v. Attorney General of Nova Scotia (1979), 35 N.S.R. (2d) at 269, the erstwhile Chief Justice has cited with approval Lord MacMillan in D.R. Fraser & Co. v. Minister of National Revenue [1949] A.C. (P.C.) at 36:


The scope of judicial review of decisions made pursuant to statutory authority was reviewed by the Supreme Court of Canada in Thorne's Hardware Ltd. et al v. The Queen, [1983] 1 S.C.R. at 106. In the Thorne's case, it was argued that an Order in Council extending the boundaries of St. John Harbour was ultra vires because it was not in conformity with the objects of s. 7(2) of the National Harbours Board Act.

The Act in question provided in s. 7(1) that the National Harbours Board had jurisdiction over certain harbours "for the purpose of and as provided in the Act" and "likewise has administration management and control of" certain works and property. The appellants had argued that the power of Governor in Council to extend harbour boundaries must be motivated "with an eye to administration management and control of the harbour". They also argued that monetary motivation, i.e. increased revenue for the Harbours Board as a result of increased boundaries, was irrelevant to the exercise of Governor in Council's jurisdiction.

Mr. Justice Dickson, (as he then was) held that:


However, the Thorne's case involved an Order in Council as opposed to the exercise of discretion by a designated member of the Provincial Cabinet under this particular statute. Generally speaking, in the former situation, the court will not interfere while in the latter, the decision may be subject to review.


As s. 19A(2) states, "The Minister may for any reasonable cause refuse to issue ... a license ..."; the Minister is the one designated by the Act to make the decision. It is a personal decision of the Minister, not of the Legislature. However, he must not exercise that discretion based on irrelevant or extraneous evidence.

The words "for any reasonable cause" in s. 19A indicates that it was not the intention of the Legislature to give the Minister an unfettered discretion - he must act reasonably in the refusal of a license to operate a funeral home.

The following is the complete text of the letter written by the Minsiter to the Applicant setting forth the reasons for his refusal:





The Respondent submits that there is a business relationsip because of the Applicant's admission that the funeral home leases all equipment, utensils, vehicles and even the premises from R. D. Lindsay, the Applicant's husband. These rentals, of themselves, do not establish a business relationship relative to the operation, direction and/or management of the funeral home. What the Minister seems to be saying is that the Applicant is merely a front for her husband - that he will be the actual operator of the funeral home and not the Applicant. The Minister's words - "lead me to the belief that Mr. Lindsay would have an integral role in the operation of this business", would bear out this trend of thought. The Minister has based his refusal of a license on what he presumes will happen rather than the present actuality. At present the Applicant has applied for and received from this department a Funeral Director's License, i.e. she is deemed a proper person for such responsibilities, and she has fulfilled all rules and regulations statutorily required for the operation of a funeral home. Because of a presumption on the part of the Minister based on what might happen, he has seen fit to refuse the license.

While future events may well prove the Minister's presumption to have become a reality - until such time, the Applicant is entitled to have her application dealt with on its own merits.

The Minister must exclude from his consideration matters which are irrelevant to the issue he must consider.

Should the Applicant be granted a license and should she allow the presumptions of the Minister with regard to her husband become a reality, then the Minister might well have good cause to cancel that license.

Can it be said that the Minister has used reasonable cause in the exercise of his discretion - has he fulfilled his "duty to be fair"?

In my view, he has not. He has used irrelevant and extraneous evidence to reach his decision. It follows that the decision must be quashed.

Having found that certiorari is available to quash the decision of the Minister of Consumer Affairs, it now falls to be determined whether or not an order in the nature of mandamus is available to compel the Minister of Consumer Affairs to issue a license to the Applicant under s. 19A of the Act.

The prerequisites to be met before the court will issue an order in the nature of a mandamus are set forth in Jones & deVillars, supra, as follows at p. 367:


S. 19A designates the Minister of Consumer Affairs as the person upon whom rests the statutory power to issue licenses for the operation of funeral home, that is, he is a persona designata under this statute. As such, his actions can be subject to mandamus if the other prerequisites are met.

Whether mandamus issues or not also depends upon whether, under the particular statute, a Minister is under a peremptory duty to act or has a discretionary power. In the former case, mandamus will lie.


As to the discretionary situation, the court will not direct how the discretion is to be exercised provided the decision is based on proper legal principles. Failure to observe these principles calls for court intervention but still not for an order of mandamus directing any particular decision.




In Padfield v. The Minister of Agriculture, Fisheries and Food, [1968] A.C. at 1007, Lord Denning, M.R. observed:


The court in this instance refuses the application for an order in the nature of mandamus to compel the Minister to issue a license to the Applicant to operate a funeral home. The most this court will do is to insist the Minister consider the application properly in keeping with principles outlined in this decision. The application of these principles in the exercise of the Minister's discretionary power should make his final decision unassailable.

In the result, mandamus is granted directing the Minister to reconsider this application as above noted.

MacINTOSH J.