Byer v. Canada (Treasury Board), 2006 FC 1330

 

 

 

 

Date: 20061103

Docket: T-1221-02

Citation: 2006 FC 1330

Ottawa, Ontario, November 3, 2006

PRESENT:     The Honourable Mr. Justice Simon Noël

 

BETWEEN:

STEPHEN M. BYER

Applicant

and

 

THE PRESIDENT of the TREASURY BOARD

Respondent

 

and

 

ROBERT L. BYER

 

Respondent

 

 

REASONS FOR ORDER AND ORDER

 

 

[1]               This is a motion by Stephen M. Byer (Applicant) for the “immediate release” and “production” of various Treasury Board minutes. 

 

 

 

 

I.  Facts

 

[2]               The Applicant has requested access to certain Treasury Board minutes which relate to the Treasury Board’s policy on ex gratia payments.  The minutes sought were refused under subsection 69(1) of the Access to Information Act, R.S.C. 1985, c. A-1 because they were certified as “Cabinet confidence” by the Clerk of the Privy Council.  Following this access refusal, the matter was investigated by the Information Commissioner who determined that the Applicant was provided with all the records to which he was entitled.

 

[3]               Subsequent to the release of the Information Commissioner’s findings, the Applicant brought a Notice of Application to the Federal Court so that it could be determined whether the Treasury Board minutes for which he sought access were properly exempted pursuant to section 69 of the Access to Information Act. 

 

[4]               The Applicant, subsequently, brought a motion to amend his Notice of Application.  On January 26, 2004, Prothonotary Tabib issued an order permitting the Applicant to amend his Notice of Application in a very precise and limited manner.  The Applicant appealed this order; his appeal was dismissed by Justice Kelen on June 24, 2004. 

 

 

 

 

[5]               The Applicant failed to amend his Notice of Application so that it conformed to Prothonotary Tabib’s January 26, 2004 order, until a status review of the Applicant’s application was ordered by this Court.  At that status review, I gave the Applicant 30 days to comply with Prothonotary Tabib’s order so that he could amend his Notice of Application accordingly.  Furthermore, on June 22, 2006, I granted the Applicant another extension of 15 days to comply with Prothonotary Tabib’s order.

 

[6]               The Applicant did not provide a Notice of Application which complied with Prothonotary Tabib’s January 26, 2004 order within the time frame I set out for him.

 

[7]               The motion that has now been brought by the Applicant states that he seeks the “immediate release” and “production” of various Treasury Board minutes.  However, in reality the Applicant’s motion seeks to allow him to amend his Notice of Application, as is obvious by his description of the order sought at page 6 of his Notice of Motion.

 

II.  Issue

 

(1)   Can the Applicant amend his Notice of Application in the manner he seeks to do so, based on the “Amended Notice of Application” contained at “Exhibit C” of the Applicant’s motion materials?

(2)   Should the Applicant’s application for judicial review be dismissed?

 

III.  Analysis

 

(1)   Can the Applicant amend his Notice of Application in the manner he seeks to do so, based on the “Amended Notice of Application” contained at “Exhibit C” of the Applicant’s motion materials?

 

[8]               The amendments that the Applicant seeks to make to his Notice of Application are different from the ones that were deemed permissible by Prothonotary Tabib in her January 26, 2004 order, which was subsequently approved by Justice Kelen on June 24, 2004.  The Amended Notice of Application, contained at “Exhibit C” of the Applicant’s Notice of Motion, introduces amendments to the Notice of Application which are not permitted under Prothonotary Tabib’s order, and, in addition, contains new arguments that supplement the Applicant’s original Notice of Application. 

 

[9]               The Applicant has failed to abide by the original order of Prothonotary Tabib, as well as the additional orders issued by Justice Kelen and myself, which provided the Applicant with additional time to amend his Notice of Application so that it complies with Prothonotary Tabib’s order.  Thus, this motion by the Applicant, which is nothing more than an attempt to disguise amendments to his original Notice of Application that explicitly violate four orders issued by this Court, is dismissed. 

 

(2)   Should the Applicant’s application for judicial review be dismissed?

 

 

 

 

[10]           The Respondent has in his written representations asked for the Applicant’s application for judicial review to be dismissed for failure to comply with the orders of this Court in regard to how his Notice of Application should be amended.  The legal test for striking out a judicial review application is a stringent one and has been set out by the Federal Court of Appeal in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48 at pages 53-55:

… the focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case.

…

This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.

 

 

[11]            In the case at hand there have been four orders by this Court stating that the Applicant, if he chooses to amend his Notice of Application, may only do so in the very precise and limited manner set out by Prothonotary Tabib in her January 26, 2004 order.  The Applicant has chosen to disregard the Court’s orders on the exact issue as to how he should amend his Notice of Application, and has now brought a motion that attempts to disguise amendments to his Notice of Application that are impermissible as a motion for the “immediate release” and “production” of various Treasury Board minutes.  The Applicant’s actions in this application speak for themselves and are clearly demonstrative of an abuse of the process of the Court. 

 

[12]           Consequently, I grant the Respondent’s motion to dismiss the Applicant’s application.

 

 

 

 

 

ORDER

 

 

THIS COURT ORDERS THAT:

-     The motion is dismissed and the application for judicial review is struck. 

 

 

“Simon Noël”

                                                       FEDERAL COURT

 

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

 

DOCKET:                                   T-1221-02

 

STYLE OF CAUSE:                   Stephen M. Byer and The President of the Treasury                                                               Board and Robert L. Byer

 

 

PLACE OF HEARING:             Written Motion without appearance

 

 

REASONS FOR ORDER

AND ORDER                            The Honourable Mr. Justice Simon Noël

 

DATED:                                      November 3, 2006

 

APPEARANCES:

 

Mr. Stephen M. Byer                                             for Applicant       

 

Mr. Christopher Rupar                                           for Respondent

(The President of the Treasury Board)

Mr. Robert L. Byer                                                for Respondent

 

 

SOLICITORS OF RECORD:

 

Mr. Stephen M. Byer                                             for the Applicant

 

Department of Justice                                             for Respondent

Deputy Attorney General of Canada                       (The President of the Treasury Board)

 

Mr. Robert L. Byer                                                for the Respondent