The Court dismissed an appeal and petition filed in the Court in response to administrative action taken by the Respondent Commission on the basis that the appeal and petition were both premature. The Petitioner had failed to bring the proper administrative appeal as required by the legislation.

26. February 2008 0

Administrative law – Decisions of administrative tribunals – Financial Services Commission – Judicial review – Discretion of delegated authority – Statutory powers – Compliance with legislation – Procedural requirements and fairness

North York Community Credit Union v. British Columbia (Financial Institutions Commission), [2007] B.C.J. No. 2715, British Columbia Supreme Court, December 20, 2007, I.H. Pitfield J.

The Superintendent of Financial Institutions, following a hearing, had made a finding that the Petitioner had contravened an order of the Superintendent to cease conducting unauthorized deposit business in British Columbia. It ordered that the Petitioner pay an administrative penalty in the amount of $50,000, as well as the costs of the investigation and hearing. The Superintendent’s order also invited the Petitioner to appeal to the Financial Services Tribunal under s. 242(1)(a) of the Financial Institutions Act, R.S.B.C. 1996, c. 141.

Notwithstanding that invitation, the Petitioner appealed the order to the Court and, concurrently, filed a petition for judicial review. The Petitioner sought redress on the basis that the Superintendent did not afford the Petitioner procedural fairness in the administrative law context. The Court reviewed the legislative scheme, which created three administrative authorities: the Financial Institutions Commission, the Superintendent, and the Financial Services Tribunal. The Commission may do certain things under the Act and its decisions may be appealed to the Court. Alternatively, the Commission may delegate some of its duties or powers to the Superintendent, whose decisions in respect of those matters may be appealed to the Tribunal. Relief from decisions of the Tribunal may be obtained by way of judicial review.

The Petitioner argued that a decision made by the Superintendent pursuant to a delegated power is nonetheless a decision of the delegating body, namely the Commission. As a result, the Petitioner argued that it was entitled to appeal the decision of the Superintendent directly to the Court.

The Court held that it has long been settled that the legislature may delegate responsibilities of varying kinds to subordinates. In some cases the delegation amounts to no more than assigning responsibility for the administration of specific legislation to a particular minister of the Crown. In other cases, the legislation for which a minister is assigned responsibility authorizes the minister to delegate one or more ministerial duties or powers to subordinates. That same legislation may contemplate and permit further sub-delegation. In such cases the prohibition against subdelegation embodied in the phrase delegata potestas non potest delegari is over-ridden and has no application.

In the case of the Act with which these proceedings were commenced, the legislature has delegated the exercise of various powers and duties to the Commission. It has specifically authorized the Commission to further delegate some, but not all, of its powers and duties to the Superintendent. The Commission lawfully delegated to the Superintendent the power to make an order under s. 244(2) and the power to levy an administrative penalty under s. 253.1 of the Act. The Superintendent made an order in this case and levied a penalty. The question of substance is whether an order made within the purview of delegated authority is an order of the subdelegate, in this case the Superintendent, or a decision of the delegate, in this case the Commission.

It is settled law that the decision of a duly authorized subdelegate is the decision of the subdelegate. It is not a decision made as agent for the delegate or any other person. In this case, the legislative intent was unequivocal. Decisions of the Superintendent made in accordance with the authority that had been properly delegated to him must be appealed to the Tribunal. The legislative intent must be respected. Judicial review was premature because the Petitioner had not exhausted the appeal remedy that was available to it. The Court should not exercise its discretion to quash a decision when an alternative source of redress is available.

In the result, the Petitioner’s appeal and petition were dismissed.

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