Schwarz Hospitality Group Ltd. v. Canada (Minister of Canadian Heritage), docket T-1552-98

Date: 19990419

Docket: T-1552-98

BETWEEN:

     THE SCHWARZ HOSPITALITY GROUP LIMITED,

     Applicant,

     - and -

     THE MINISTER OF CANADIAN HERITAGE AND

     SUPERINTENDENT BANFF NATIONAL PARK,

     Respondents.

     REASONS FOR ORDER

MR. JOHN A. HARGRAVE,

PROTHONOTARY

[1]      The Respondents seek to strike out this judicial review proceeding on a number of grounds including late filing, a failure to identify when the decision or perhaps decisions were first communicated to the Plaintiff, that the application is not limited to a single order as provided for in Rule 302 and that the style of cause names as Respondent the tribunal making the decision, presumably the Minister of Canadian Heritage, contrary to Rule 303(1)(a).

STRIKING OUT AN APPLICATION

[2]      Generally, it is not proper to attack an application by means of a motion. At first blush one might consider using Rule 221 to strike out what at one time was an originating notice of motion and which is now a notice of application. Rule 221(1) allows a pleading to be struck out. A "pleading" is broadly defined in section 2 of the Rules as "... a document in a proceeding in which a claim was initiated...", a proceeding also being broadly defined. The factor which prevents Rule 221 from being used in this manner is that Rule 221 is contained within part 4 of the Federal Court Rules, a part of the Rules which applies only to actions.

[3]      As I say, notices of application ought not to be attacked and struck out on a motion. Rather they ought to be contested at their hearing. This is a point made quite forcefully by Mr. Justice Muldoon in Khalil Hasan v. Canada (Attorney General), an unreported 11 May 1998 decision in actions T-316-98 and T-379-98, the respondent being directed to focus on the hearing itself, not on any summary procedure to strike out: Mr. Justice Muldoon referred to various jurisprudence, including David Bull Laboratories (Canada) v. Pharmacia Inc. (1994), 176 N.R. 48 (F.C.A.). In the David Bull case the Federal Court of Appeal noted that "...the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself." (page 52). However the Federal Court has, on occasion, in exceptional circumstances, struck out an application for judicial review which could not possibly proceed. This approach, in limited instances, is left open by Mr. Justice Strayer's comment that, in a clearly exceptional instance, where an application is so clearly improper as to be without any possibility of success it might be struck out:

[4]      In David Bull Mr. Justice Strayer was giving an opinion, not making a determination. But indeed, the Court has, from time to time, struck out applications: see for example Canadian Pasta Manufacturers Association v. Aurora Importing & Distributing Ltd., an unreported 23 April 1997 decision in appeal A-252-97. In Aurora Importing the Federal Court of Appeal struck out a judicial review application where, in the opinion of the Court, it could not possibly succeed. Notwithstanding that applications are struck out from time to time, it ought not to become a usual practice and here I will refer to a decision of my own, Laura-Lee Brown v. Attorney General of Canada (1998), 148 F.T.R. 50 at 56:

In summary, in order to succeed on a motion to strike out an application, the respondent must show both an exceptional circumstance and that the application is "...so clearly improper as to be bereft of any possibility of success".

CONSIDERATION

Alleged Late Filing for Judicial Review and Communication of Decision

[5]      The first ground on which the Respondents suggest that the application ought to be struck out is that it was filed more than thirty days after the Applicant was notified of the decision sought to be challenged. This, if so, is contrary to section 18.1(2) of the Federal Court Act. In the present instance there are two reasons why the application ought not to be struck out.

[6]      First, a plea of limitation is not sufficient ground to strike out a statement of claim. Rather, in the case of an action, the correct procedure is to plead the limitation and then set the matter down for summary determination: see a discussion of this point in B.M.G. Music Canada Inc. v. Vogiatzakis (1996), 67 C.P.R. (3d) 27 at 33-34. This same principle ought to apply to striking out a notice of application. To move to strike out such a judicial review proceeding, a procedure designed to be summary in nature, in effect a motion upon a motion, is a waste of time and resources for all concerned.

[7]      The time bar, which may or may not be real in this instance, is a point which the parties ought to argue in full before the judge at the hearing of this application.

[8]      This leads to the second point. Section 18.1(2) of the Federal Court Act, the section of the Act which places a thirty day time limit within which to commence judicial review proceedings, is phrased in terms of thirty days "after the time the decision or order was first communicated by the federal board, commission or other tribunal to ... the party directly affected thereby, ..." and then goes on to give a judge of the trial division discretion to extend time. In the present instance there seem to be arguable issues as to when, if at all, the decision was communicated to the Applicant.

[9]      The Applicant refers to Atlantic Coast Scallop Fishermen's Association et al. v. Canada (Minister of Fisheries and Oceans) (1995), 189 N.R. 220, a decision of the Federal Court of Appeal in which, at page 222, the Court pointed to the requirement that the tribunal itself communicate its decision to parties directly affected. The Atlantic Coast Scallop Fishermen's case was recently referred to by the Court of Appeal in Independent Contractors and Business Association v. The Minister of Labour, an unreported 12 March 1998 decision in Appeal A-288-97:

[10]      It is the Applicant's view, in the present instance, that the Minister's decision was never communicated. Moreover, the Applicant also submits that this decision was in the nature of a continuing process.

[11]      The idea of a decision that is not a static written decision, but rather a decision made over time, a fluid decision, in the nature of a continuing process, has been touched upon in two recent decisions. First, in Puccini v. Director General, Corporate Administrative Services, Agriculture Canada (1994), 65 F.T.R. 127, Mr. Justice Gibson looked upon the decision in that case as "... more in the nature of a continuing process than in nature of specific decision or order and thus it is difficult to pin point specific dates..." (page 133). Similarly in Hunter et al. v. Commissioner of Corrections (Can.) et al. (1998), 134 F.T.R. 81 at 85, Mr. Justice Lutfy looked at a decision to install a telephone system in federal correctional institutions as one taking place over time, perhaps between November of 1995 and April of 1996.

[12]      Given the dispute as to when the decision was, by some positive action, communicated, if at all, and perhaps when the decision was made, this is not an instance in which the application is "so clearly improper as to be bereft of any possibility of success" so for as the submissions of time bar are concerned.

Review of a Single Order

[13]      The Respondents submit that the notice of application is not limited to a single order, that being a requirement of Rule 302. Now to begin, Rule 302 is discretionary:

The first thing that comes to mind is that the corollary rule, under the old rules, rule 1602(4), did not give a judge discretion to waive the prohibition against review of more than a single decision. However, and here I refer back to Puccini (supra), there is also the concept that this sort of a rule may be construed broadly where a number of decisions or orders have already been made: Puccini at page 133. The Applicant, in the present instance, submits that there is an intertwining of decisions of the superintendent, an ongoing review of various steps which the Applicant had successfully taken in order to get its project on stream and a decision of the Minister of Canadian Heritage to impose a moratorium. The submission goes on that the superintendent of Banff National Park might well have granted final approval, the one step remaining, but for the moratorium and thus the decisions are in the nature of a continuing process, rather than a specific decision. This may be a difficult point to make, but I cannot say that the Applicant's position is so forlorn as to be so clearly improper as to be bereft of any possibility of success.

A Proper Respondent

[14]      The Respondents' final point, that the notice of application ought not to name, as Respondent, the Tribunal, presumably the Minister of Canadian Heritage, is somewhat more difficult to resolve. The issue of the proper respondent has on occasion been a problem since the decision in Canadian Human Rights Commission v. Attorney General of Canada and Frank Bernard, [1994] 2 F.C. 447, in which the Federal Court of Appeal held that the board under review, pursuant to section 18.1 of the Federal Court Act, might not be a respondent. Rule 303, which governs respondents in judicial review matters, is a codification of the post Bernard law:

Rule 303 makes is clear that anyone directly affected by the Order shall be named as a respondent, "other than a tribunal in respect of which the application is brought.". The Court of Appeal in Bernard clearly sets out that a tribunal is not a party and cannot therefore be made a respondent. In Bernard, the federal board, erroneously named as a respondent, had no status as such and would not be allowed to participate, unless it obtained leave, under what was then Rule 1611, to participate as an intervenor. This was a problem which Mr. Justice Heald faced in Zündel v. Canada (Minister of Citizenship and Immigration) et al. (1997), 117 F.T.R. 129 and which he solved, at the hearing, by striking out the respondent board, but adding it as an intervenor. In Zündel there was still a respondent left, the Minister of Citizenship and Immigration.

[15]      In the present instance, assuming that the Minister of Canadian Heritage made the decision, clearly the Minister may not be a party. The Superintendent of Banff National Park is likely a superfluous respondent. Yet judges of this Court have been creative as to respondents when the circumstances require. In Vancouver Island Peace Society v. Canada (1993), 64 F.T.R. 127, Mr. Justice MacKay was not prepared to dismiss and application for certiorari merely on the ground that the Attorney General had not been joined as the legal representative of the Governor General in Council. Mr. Justice MacKay, in reaching this conclusion, pointed out that, in any event, the Attorney General had already been served under Rule 1604, now Rule 304(1)(b)(iii). Mr. Justice Heald was similarly creative in Zündel (supra) in allowing amendment at trial so as to designate the tribunal, improperly named as respondent, an intervenor.

[16]      This sort of creativity, in the face of a tribunal improperly named a respondent, may not be the salvation of the Applicant and furthermore it is possible that a judge could deny an appropriate amendment. Yet the naming of a tribunal as a respondent, since the Bernard case, has not always been fatal. In the result, it is not, on a motion to strike out a judicial review by reason of a tribunal being named as a respondent, a situation so clearly improper as to be bereft of any possibility of success.

CONCLUSION

[17]      The outcome of the Respondent's motion is not to say that the Applicant will likely succeed or even possibly succeed, but rather that this is not the exceptional case referred to by Mr. Justice Strayer in David Bull (supra). The motion is dismissed. Costs shall be in the cause.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

Vancouver, British Columbia

April 19, 1999