Mackie v. Canada (Attorney General), docket T-985-97

     T-985-97

Between:

     TERRANCE ANDREW MACKIE,

     Applicant,

     - and -

     ATTORNEY GENERAL OF CANADA and

     WARDEN OF DRUMHELLER INSTITUTION,

     Respondents.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     The Respondents' motion is to strike out the Originating Notice of Motion on the grounds that the Applicant, a prison inmate with a statutory release date of 18 July 1997, but ordered detained by the National Parole Board (the "Board") pursuant to section 130 of the Corrections and Conditional Release Act, S.C. 1992 c. 20, has an adequate alternative remedy and thus cannot succeed on his judicial review application in this Court. Indeed, the Applicant has availed himself of the alternate remedy by filing an appeal of the Board's decision with the Appeal Division of the Board under section 147(1) of the Act, but believes he can obtain a quicker remedy from this Court. It is interesting that the Applicant began his appeal to the Appeal Division of the Board on 30 May 1997, two weeks after beginning this judicial review application.

     Delay is, according to the Applicant, a main reason for proceeding in the Federal Court: had the Board not detained the Applicant, he would be on parole as of 18 July 1997. However, the Applicant's material indicates that the Appeal Division of the Board will not take up his case until perhaps October 1997, or a little later. I would point out, assuming the application were to proceed in this Court with a fairly minimal extension within which the Respondents might file their affidavits and with the Applicant filing his material without any waiting time, the Applicant might be in a position to apply for a hearing date in the latter half of August. In the normal course of events the Applicant would have to wait between one and three months for a one day hearing date and from two to four months for a date for a two day judicial review hearing. At best the Applicant might obtain a short judicial review hearing by the end of September, as opposed to perhaps sometime in October before the Appeal Division of the Board.

     The time difference in which the remedies might be obtained is only one factor in determining whether this proceeding ought to be allowed to go forward. However, to begin, there is the issue of whether the Respondent can strike out the Originating Notice of Motion.

     In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (1995) 176 N.R. 48 the Federal Court of Appeal considered, without deciding the point, whether an originating notice of motion might be struck out under Rule 419. Rule 419 is limited to actions. The Court of Appeal touched on Rule 5, the gap rule, but pointed out that there was not necessarily a gap in the Federal Court Rules for "... 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). While the Court of Appeal did not have to decide whether an originating notice of motion could be struck out, Mr. Justice Strayer commented:

"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. (See e.g. Cynamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R.(2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). 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." (pages 54 and 55)

     In Canadian Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd., an unreported 23 April 1997 decision in proceeding A-252-97, the Federal Court of Appeal struck out a judicial review proceeding with the words "we are all of opinion that this application for judicial review could not possibly succeed.".

     The test for striking out, from David Bull Laboratories, that an originating notice of motion must be "... so clearly improper as to be bereft of any possibility of success." is, if possible, an even more stringent test than is to be applied in striking out an action under Rule 419. To make a regular thing of interlocutory motions to strike out judicial review proceedings would be a waste of time and resources. But alternately, it would be an equally irresponsible waste of time and resources, paid for in a large part by the taxpayer, to allow a futile judicial review proceeding, which will not lead to any practical result, to proceed beyond a motion to strike out.

     Here the Applicant submits he ought to be allowed to have parallel proceedings, an appeal under the Corrections and Conditional Release Act and this judicial review, primarily because the latter may be more convenient and expedient. But convenience and expedience are not the test. Nor is the test whether one forum is better than the other. I must ask myself whether a forum consisting of the Appeal Division of the Board, constituted under Corrections and Conditional Release Act, is an adequate forum: see Canadian Pacific Ltd. v. Matsqui Indian Band, (1995) 26 Admin.L.R (2d) 1 at 29 (S.C.C.).

     There is a recent case very much on point, a decision of Mr. Justice McKeown, in Fehr v. The National Parole Board, (1995) 93 F.T.R. 161 and specifically his consideration of proceeding T-769-94, beginning at page 171 of the Fehr decision. In that instance Ms. Fehr, a penitentiary inmate whose day parole had been revoked on the ground that while free on parole she was an undue risk to society, had not exhausted all appeal procedures under the Corrections and Conditional Release Act, namely by first appealing to the Appeal Division of the Board.

     Mr. Justice McKeown recognizes that the existence of an alternate statutory appeal remedy does not automatically preclude an application to the Court for certiorari, for it is at the discretion of the Court whether to hear such a case and here he refers to [1979] 2 S.C.R. 561">Harelkin v. University of Regina, [1979] 2 S.C.R. 561. He concludes that the Applicant ought to have pursued an appeal to the Appeal Division of the Board before coming to the Court as the legislation setting up that appeal provided an adequate alternate remedy to certiorari.¹ In the Fehr case the Applicant sought a review of the Parole Board's decision, together with certiorari, the same remedy sought in the present instance by Mr. Mackie.

     Mr. Justice McKeown did qualify his reasoning to some degree by pointing out that, while the appeal route is to avoid a multiplicity of proceedings, an applicant still might have judicial review when the statutory remedy is not broad enough to cover all of the issues which are properly for appeal:

"The purpose of having an appeal route is to avoid a multiplicity of proceedings before the court. As such, where an appeal route exists, it should, in general, be pursued to the extent that it may be, before seeking judicial review. I wish to make clear, however, that a decision may only be appealed to the extent provided for in the legislation. Judicial review may still be available for issues which may not be properly appealed." (page 171)

     In the present instance the jurisdiction of the Appeal Board is broad. It is set out clearly in section 147(1) of the Act:

"(1) An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in making its decision,

(a) failed to observe a principle of fundamental justice;

(b) made an error of law;

(c) breached or failed to apply a policy adopted pursuant to subsection 151(2);

(d) based its decision on erroneous or incomplete information; or

(e) acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction."

Mr. Mackie's grounds for appeal, set out in the motion for judicial review, may be summarized as an error on the part of the Board in law and in jurisdiction by applying legislation retrospectively and failing to observe the principles of natural justice and procedural fairness, all clearly within the Appeal Board's mandate.

     The merits of the Applicant's case, which may well be substantial, are not at issue. Rather it is the adequacy of the Applicant's alternate remedy. Assessment of this alternate remedy is not a matter of working in a factual vacuum, which is sometimes the case in an interlocutory proceeding, for the issues and facts are clear. Mr. Mackie has a remedy by way of an appeal to the Appeal Division of the National Parole Board. The grounds of the appeal are clearly set out in his Originating Notice of Motion. The faults alleged on the part of the Board which initially heard his case are clearly within the statutory scope of the Appeal Board.

     There is no prejudice to require the Applicant to complete the appeal, which he has begun, before the Appeal Board under the Corrections and Conditional Release Act, as a precondition to coming to this Court. He presently has a completely adequate remedy before the Appeal Board. It is an appeal to a specialized and expert Board. If that remedy is not as quick as might be the situation in the Federal Court, the likely difference in time to a hearing is marginal. I am reinforced in this view by the fact that not only has the Applicant this alternate remedy, but also he has in fact commenced that parallel remedial process. Mr. Mackie's situation is similar to that of the applicant in the Fehr decision, an application for certiorari and review in which there was an adequate alternative remedy of appeal to the same Appeal Board. This being the situation the present judicial review proceeding is futile. It is plain and obvious that it could not possible succeed: it is so clearly improper to have and indeed to have subsequently commenced a parallel alternative remedy that this judicial review application is bereft of any chance of success. It is therefore struck out.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

Vancouver, British Columbia

July 16, 1997

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

STYLE OF CAUSE:          TERRANCE ANDREW MACKIE

                     - and -

ATTORNEY GENERAL OF CANADA and WARDEN OF DRUMHELLER INSTITUTION

COURT NO.:              T-985-97

MOTION DEALT WITH IN WRITING

WITHOUT APPEARANCE OF COUNSEL

REASONS FOR ORDER OF

MR. JOHN A. HARGRAVE, PROTHONOTARY.

dated JULY 16, 1997

WRITTEN SUBMISSIONS BY:

     Mr. Simon Renouf                      for Applicant

     Mr. Brad Hardstaff                  for Respondents

SOLICITORS OF RECORD:

     Pringle, Renouf, MacDonald & Associates      for Applicant

     Edmonton, AB

     George Thomson                      for Respondents

     Deputy Attorney General

     of Canada

__________________

¹      see also Diamond v. The National Parole Board (20 March 1995) 95-T-12 (F.C.T.D.): "In view of the statutory scheme of appeal in the Act, I have concluded that the applicant is entitled to seek judicial review only with respect ot the decision of the Appeal Division of the Board. To hold otherwise would result in the emasculation of the legislative appellate mechanism created by Parliament in the Act." (page 6) and Fragoso v. The National Parole Board (21 Sept. 1995) T-364-95 at pages 9 and 10.