Date:
20070214
Docket: T-14-06
T-66-05
Citation:
2007 FC 163
[ENGLISH
TRANSLATION]
BETWEEN:
FESTIVAL
CANADIEN DES FILMS DU MONDE
Applicant
and
ATTORNEY GENERAL OF CANADA
and
L’ÉQUIPE SPECTRA INC.
and
LE REGROUPEMENT POUR LE
FESTIVAL
DE CINÉMA DE MONTRÉAL
Respondents
REASONS FOR ORDER
[1]
This
is another motion to strike in this case initiated by the Attorney General of
Canada on the basis that both applications for judicial review subject to the
motion would have essentially become moot and would not disclose a reasonable
cause of action.
Background
[2]
The
applicant filed two applications against two decisions made by Telefilm Canada (hereinafter
Telefilm), one involving a request for proposals on September 7, 2004, and the
other regarding Telefilm’s decision on December 17, 2004, to accept a proposal
submitted by Regroupement pour le festival de cinéma de Montréal (hereinafter
the Regroupement) (docket T‑66‑05).
[3]
In
docket T‑14‑06, the applicant asked the Court to declare the
decision to issue the call for proposals on September 7, 2004, invalid and
unlawful, while in docket T‑66‑05, it applied for an order
declaring the decision from December 17, 2004, invalid and unlawful
(hereinafter the two applications for judicial review).
[4]
In
both dockets, the applicant also asked this Court to issue an order prohibiting
Telefilm [translation] “from
making any attempt or taking any action that would have the effect of creating
a new film festival in Montréal or helping an existing festival create such a
festival in order to supplant the Montréal World Film Festival” (hereinafter
the injunction).
[5]
It
should also be noted that the applicant brought actions for damages against Telefilm
before the Superior Court, seeking $2,500,000 from Telefilm for non-pecuniary and
exemplary damages.
[6]
The
Attorney General of Canada essentially argues in this motion that the Regroupement
fully spent the subsidy that it received from Telefilm in 2005 for its festival
held in October 2005 and that the Regroupement reportedly ceased operating permanently
in July 2006. Furthermore, since 2004, Telefilm has allegedly not issued
another call for proposals for a film festival grant nor taken any action that
could give rise to an injunctive finding such as that sought by the applicant.
Analysis
[7]
Although,
surprisingly, the motion under review has not been submitted on this point, it
appears to me that it is under the inherent jurisdiction of this Court, as
applied by Strayer J. in Bull (David) Laboratories (Canada) Inc. v.
Pharmacia Inc. et al. (1994), 176 N.R. 48, at pages 54–55 (Pharmacia)
that it should be addressed.
[8]
In
Pharmacia, Strayer J. allowed that striking a judicial review be sought
only in exceptional cases. On this point, the Court stated the at page 54–5:
This is not to say that there is no jurisdiction in
this court 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. Cyanamid 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 allegation in the notice of motion.
(Emphasis
added)
[9]
This
is the same reasoning that Nadon J. of this Court adopted in a decision on
August 13, 1996 (Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc.,
docket T-1238-96, at page 5).
[10]
As
stated by Strayer J. in Pharmacia:
[…]
[T]he 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.
[11]
(See
also Merck Frosst Canada Inc. et al. v. Minister of National Health and
Welfare et al. (1994), 58 C.P.R. (3d) 245, at page 248, and Glaxo
Wellcome Inc. et al. v. Minister of National Health and Welfare et al., unreported
judgment of this Court, September 6, 1996, docket T-793-96.)
[12]
In
this case, I consider that this motion by the Attorney General of Canada should
be dismissed for the following reasons:
[13]
Although
it is possible to acknowledge the Attorney General of Canada’s opinion with
respect to the disappearance of the factual background summarized above at
paragraph [6], the fact remains that the applicant still has a claim for
damages in the Superior Court that ultimately is likely linked to the acknowledgment,
at the outset, of the invalidity or unlawfulness of the call for proposals from
September 7, 2004.
[14]
Here
is how the Federal Court of Appeal, in a past appeal in this case, summarized
at paragraphs 2, 3, 4 and 23 of its decision from September 21, 2006, (docket A‑646‑05,
neutral citation 2006 FCA 305) the relationship in this case between obtaining
damages and the illegality of the call for proposals from September 7, 2004:
[2] On December 10, 2004, FFM [the applicant]
filed in the Superior Court of Quebec a motion to institute proceedings for
declaratory judgment and permanent injunction, in which FFM asked the Superior
Court to declare unlawful the call for proposals of September 7, 2004, and
sought exemplary and moral damages in the amount of $2,500,000.
[3] On January 6, 2005, Telefilm Canada served in
Superior Court a motion for declinatory exception on the grounds that that
Court did not have jurisdiction to rule on the lawfulness of the call for
proposals.
[4] On January 14, 2005, FFM filed in Federal
Court a notice of application for judicial review against the decisions of
Telefilm Canada dated September 7, 2004, and December 17, 2004.
[23] […] This Court cannot at this stage, absent
evidence of the relevant facts, cut short the proceedings brought by FFM, even
more so because the debate initiated by FFM regarding Telefilm Canada's civil
liability is pending before the Superior Court of Montréal.
(Emphasis
added)
[15]
It
should be quickly noted in passing here that although in the Superior Court the
applicant appears to only challenge the decision from September 7, 2004, the
Federal Court of Appeal, in the same decision cited above, clearly sees a connection
between this decision from September 7, 2004, and the decision from December
17, 2004. At paragraph [15], the Court states in part:
[15]
[…] The lack of interest is certainly not clear with regard to the decision of
September 7, 2004. The existence of an interest with regard to the decision
dated December 17, 2004, is more problematic, given that FFM did not see fit to
file a proposal. As it is possible that the outcome of the first decision could
influence the outcome of the second, it would be best to let the entire debate
follow its course.
[16]
Thus,
in accordance with the final approach adopted by the Federal Court of Appeal on
October 27, 2005, in The Queen v. Grenier, (2005) FCA 348 (Grenier),
the applicant, on January 14, 2005, appealed to the Federal Court to have the
decisions from September 7 and December 17, 2004, recognized as
invalid or unlawful.
[17]
As
it may be seen—at least the dynamics to the contrary have not been clearly
established by the Attorney General of Canada—that this unlawfulness is the
starting point or the cornerstone of any claim for damages, it follows from the
teachings of Grenier that the two applications for judicial review have
not become moot because there cannot be any award of damages in favour of the
applicant in the Superior Court as long as, at the very least, the unlawful
character of the decisions from September and December 2004 has not been
recognized by this Court through the two applications for judicial review that
are now consolidated. Therefore, the existence of the two applications for
judicial review still have an aspect or practical element for the rights of the
applicant.
[18]
Furthermore,
with respect to the application for an injunction, this aspect was settled by de Montigny
J. in his decision from December 21, 2005. On this point, de Montigny J. noted
the following at paragraph [30] of his decision:
[30] With
respect to the respondent's arguments that the wording of the application for
an injunction is too vague and uncertain for the purposes of enforcement, I do
not think that at this stage they warrant the dismissal of the application for
judicial review or even the striking out of this pleading. Once again, we
should never lose sight of the fact that dismissing an application is a radical
measure which the courts should only use with extreme caution and which should
only be allowed in exceptional circumstances. Therefore, I am of the view that
it will be better to leave for the judge who must rule on the application for
judicial review the task of deciding whether to grant the relief sought by the
applicant, subject to possible limitation of its scope if the applicant
considers that appropriate.
[19]
It
must therefore be considered that now, at least at the interlocutory stage, there
is res judicata with respect to the non-striking of this application for
an injunction. Furthermore, and by any chance, this finding is viewed by the
Attorney General of Canada as incidental to the request for nullity and
unlawfulness. Therefore, since these applications remain, these is no real harm
in maintaining the motion for an injunction on this finding. It is on the
merits of the respondent’s file that the Attorney General of Canada should
raise his arguments again in this regard.
[20]
For
the foregoing reasons, the Attorney General of Canada’s motion to strike is
dismissed.
[21]
As
for the costs to be awarded on this motion, I essentially share that
applicant’s position, mainly that the Attorney General of Canada’s filing of
the motion under review triggers here the application of rules 400(3)(i), (k) and
401(2) of the Federal Courts Rules (the Rules). Exercising my discretion
in this respect, the Attorney General of Canada shall be ordered to pay the
applicant, immediately following assessment, costs under the maximum of Column
4 under Tariff B.
[22]
With
respect to the future timelines for the readying of the two applications for
judicial review, I consider that these files are at the stage of Rule 307, i.e.
service of the respondent’s affidavits.
[23]
Accordingly,
on or before March 7, 2007, the applicants shall serve and file their
Rule 307 affidavits. Thereafter, the other timelines under the rules will
apply.
“Richard Morneau”
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