Date: 20130809
Docket: T-2010-11
Citation: 2013 FC 855
Toronto, Ontario, August
9, 2013
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
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COMMITTEE FOR MONETARY AND
ECONOMIC REFORM ("COMER"), WILLIAM KREHM, AND ANN EMMETT
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Plaintiffs
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and
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HER MAJESTY THE QUEEN,
THE MINISTER OF FINANCE,
THE MINISTER OF NATIONAL
REVENUE,
THE BANK OF CANADA,
THE ATTORNEY GENERAL OF CANADA
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Defendants
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REASONS FOR ORDER AND
ORDER
Introduction
[1]
This
is a novel proposed class action proceeding. It seeks, in essence, to compel
the Defendants (Crown) to comply with the Bank of Canada
Act,(Bank Act)
and to take certain steps pertaining to monetary policy in Canada. This proceeding alleges wrongs of statutory and constitutional abdication of action and
infringement of all Canadian citizens’ rights under various statutes and the Charter
of Rights and Freedoms (the Charter).
[2]
The
Plaintiff, Committee for Monetary and Economic Reform (COMER), is described in
the Amended Statement of Claim (Claim) as an economic “think-tank” based in Toronto, founded in 1970, and dedicated to researching monetary and economic reform
policies in Canada. The individual Plaintiffs are members of COMER who have an
interest in economic policy (collectively the Plaintiffs are referred to as
COMER).
[3]
The
Claim seeks many declarations relating to actions to be taken by the Bank of
Canada and the Minister of Finance. The Claim also alleges a conspiracy and tortious
conduct of the Crown to harm Canadians generally for which damages of $10,000.00
per Plaintiff and $1.00 for every Canadian citizen is claimed.
[4]
The
Crown has brought this motion to strike the Claim. The grounds alleged include
the following:
i) the
Claim fails to disclose a reasonable cause of action against the
Defendants, or any one of them;
ii) the
Claim is scandalous, frivolous or vexatious;
iii) the
Claim is an abuse of process of the Court;
iv) the Claim fails to
disclose facts which would show that the action or inaction of the Defendants,
or any one of them, could cause an infringement of the Plaintiffs’ rights under
the Charter of Rights and Freedoms or the Constitution of Canada;
v) the causal link
between the alleged action or inaction of the Defendants or any one of them,
and the alleged infringement of the Plaintiffs’ rights is too uncertain,
speculative and hypothetical to sustain a cause of action;
vi) the
Claim seeks to adjudicate matters that are not justiciable;
vii) the Claim concerns
matters outside the jurisdiction of the Federal Court;
viii) the Plaintiffs, or any
one of them, do not have standing to bring the Claim as of right and,
furthermore, the Plaintiffs, or any one of them, do not satisfy the necessary
requirements for the grant of public interest standing;
. . .
The Claim
[5]
The
core elements of COMER’s Claim can be reduced to three parts:
1.
The
Bank of Canada (Bank) and Crown refuse to provide interest-free loans for
capital expenditures.
2.
The
Crown uses flawed accounting methods in describing public finances, which
provides the rationale for refusing to grant such loans.
3.
These
and other harms are caused by the Bank being controlled by private foreign
interests.
[6]
Each
of the legal claims below relates to at least one of these pleaded allegations.
[7]
On
a motion to strike, the allegations in a statement of claim are accepted to be
true.
[8]
The
issue for determination is whether the Claim is so fatally flawed such as to be
bereft of any chance of success and therefore should be struck.
Statutory claims
Bank Act Claims
[9]
The
causes of action claimed are chiefly concerned with three subsections of the Bank
Act:
18. The
Bank may
…
(i) make loans or
advances for periods not exceeding six months to the Government of Canada or
the government of a province on taking security in readily marketable
securities issued or guaranteed by Canada or any province;
(j) make loans to the
Government of Canada or the government of any province, but such loans
outstanding at any one time shall not, in the case of the Government of Canada,
exceed one-third of the estimated revenue of the Government of Canada for its
fiscal year, and shall not, in the case of a provincial government, exceed
one-fourth of that government’s estimated revenue for its fiscal year, and such
loans shall be repaid before the end of the first quarter after the end of the
fiscal year of the government that has contracted the loan;
.
. .
(m) open accounts in a
central bank in any other country or in the Bank for International Settlements,
accept deposits from central banks in other countries, the Bank for
International Settlements, the International Monetary Fund, the International
Bank for Reconstruction and Development and any other official international
financial organization, act as agent or mandatory, or depository or correspondent
for any of those banks or organizations, and pay interest on any of those
deposits;
[10]
COMER
claims that the Bank and other Crown actors have failed to comply with the
requirements of subsections 18(i) and (j), which they interpret
as requiring the Bank and the Minister of Finance to make interest-free loans
for the purpose of municipal, provincial and federal “human capital
expenditures”. The only individual case of a rejected
loan appears to be the
August 18, 2004, decision of the Minister of Finance to refuse a loan to the
Town of Lakeshore, Ontario.
[11]
COMER
also claims that the Crown’s failure to make public the minutes of meetings
between the Governor of the Bank and other central bank governors violates
section 24 of the
Bank Act (Bank as fiscal agent for Government of Canada), and is
unconstitutional for unspecified reasons. Further, the Minister of Finance’s
failure to exercise proper control over the Bank is a violation of section 14
(public consultations).
[12]
They
further plead that the fact that the Bank’s monetary policy is dictated by
private foreign banks and financial interests it is therefore contrary to
unspecified parts of the Bank Act.
Constitution Act, 1867 Claims
[13]
The
Plaintiffs allege that allowing the secret meetings described above, by
enacting subsection 18(m) of the Bank Act, violates subsections
91(1a) (public debt), 91(3) (taxation), 91(14) (currency), 91(15) (banking),
91(16) (savings banks), 91(18) (bills of exchange) and 91(20) (legal tender) of
the Constitution Act, 1867 Act.
[14]
COMER
alleges that the impugned accounting methods (of not listing revenues collected
prior to the return of tax credits) violate subsection 91(5).
[15]
COMER
further claims that subsection 18(m) of the Bank Act, which
allows the Bank to open accounts in other countries’ central banks and
international financial organizations, is unconstitutional.
Charter Claims
[16]
COMER
alleges that the harms described in the Claim constitute violations of sections
7 (life, liberty and security of the person), 15 (equality) and 36
(equalization) of the 1982 Act. They also argue the failure to provide
interest-free loans to the provinces violates the constitutional guarantee of
equalization under section 36.
Claims Arising from Unwritten Constitutional
Principles
[17]
COMER
alleges that the harms flowing from the lack of interest-free loans are
violations of the underlying right of equality, the underlying constitutional
principle of federalism, and the constitutional right that statutes are not to
be rendered impotent.
[18]
The
impugned accounting methods are said to violate the constitutionally mandated
principle that the Crown can only impose taxes for expenditures as set out in
the Throne Speech and with the consent of the House of Commons.
[19]
It
is also alleged that section 30.1 of the Bank Act is unconstitutional,
if it is interpreted to preclude judicial review, based on the constitutional
right to judicial review.
[20]
COMER
alleges that the Minister of Finance’s refusal of the loan to the Town of Lakeshore violated an unspecified constitutional duty.
Tort Claims
[21]
The
Crown and certain inter-governmental organizations, as alleged in the Claim are
engaged in the tortious conduct of conspiracy by engaging in an agreement for
the use of unlawful means to cause injury to COMER and all other Canadians.
Positions of the Parties
[22]
The
parties filed extensive written representations and case law in support of
their respective positions. Those submissions focused on the overriding issue
on this motion as to whether the various alleged causes of action are bereft of
any chance of success and therefore should be struck.
Crown’s Position
[23]
In
essence, the Crown argues there is no reasonable cause of action made out
because the requisite elements of the causes of action have not been pleaded. This
is not an attack on the possibility of any of the causes of action being
justiciable, but simply that they lack the precision or particularization
necessary to support such allegations.
[24]
With
respect to the tort of misfeasance in public office, the Crown argues that the
elements of the tort have not been pled. It is a necessary component of the
tort that the public officers’ misconduct was deliberate and unlawful. They
must have been aware of that illegality and they must be identified.
[25]
The
Claim only refers to the state of mind of the impugned officials as “wittingly
and/or unwittingly in varying degrees of knowledge and intent”. The identity
of the individuals alleged to have committed this tort is not pleaded. Therefore,
the Crown argues that COMER has not met this required element.
[26]
With
respect to the allegation of statutory breach, the Crown argues there is no
tort of statutory breach and the remedy for statutory breach is
judicial review. In any event, the legislation allegedly breached is
permissive and obligates no official to take any action.
[27]
Material
facts have, similarly, the Crown argues, not been pleaded with respect to the
tort of conspiracy. An agreement between two or more persons, as well as
intent, is required to make out this tort. The Claim does not disclose the
identity of officials alleged to have engaged in such conduct, the type of
agreement entered into, and other necessary details.
[28]
COMER’s
claim that the federal budgetary process violates either subsection 91(5) or
(6) of the Constitution Act, 1867 discloses no reasonable cause of
action because those subsections are simply classes of subjects within federal
legislative authority and impose no duties. The Bank Act provides that
no action lies against public officials for anything done in good faith under
the Bank Act.
[29]
The
Crown contends that the Charter is not engaged. The Claim fails to
disclose material facts showing a causal relationship between any of the Crown’s
actions and the alleged Charter breaches, as state action is a necessary
element of a breach of section 7 of the Charter. For example, there is
no freestanding constitutional right to health care. COMER alleges no
differential treatment on the basis of an enumerated or analogous ground under
section 15 of the Charter.
[30]
The
Crown further contends that COMER’s claim is outside this Court’s jurisdiction
as it fails to meet the three-part test set out in ITO-International
Terminal Operators Ltd v. Miida Electronics Inc. In ITO, the Supreme
Court considered the jurisdiction of the Federal Court in the context of an
admiralty action. The Supreme Court determined that jurisdiction in the
Federal Court depends on three factors:
1. There
must be a statutory grant of jurisdiction by the Federal Parliament.
2. There
must be an existing of body of federal law which is essential to the
disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law
on which the case is based must be a “law of Canada” as the phrase is used in
s. 101 of the Constitution Act, 1867 [page 766].
[31]
The
Crown argues that the claims against the Bank fails the first step since the Federal
Courts Act does not grant jurisdiction over
statutory corporations acting in the name of the Crown. Ministers of the Crown
may not be personally sued for acting in their representative capacity,
although the Crown concedes that it would be vicariously liable for their
official actions under the Crown Liability and Proceedings Act.
[32]
At
the second and third stages of the ITO test, the Crown argues the tort
elements of the Claim lack an existing body of federal law which nourishes the
statutory grant of jurisdiction. The existing body of law must be a detailed
statutory framework, while the torts of conspiracy and misfeasance in public office
remain emanations of provincial law. The alleged Charter infringements
are not sufficient to ground the claim in a law of Canada as required at the
third stage of the ITO test.
[33]
The
Crown also maintains that COMER lacks standing. They lack private interest
standing because there has been
neither an interference with a private right nor damages peculiar to them
resulting from an interference with a public right. In turn, COMER lacks
public interest standing because the alternative procedure of a judicial review
brought by parties directly affected is available.
[34]
Finally, the Crown
argues that the claim is not justiciable. The subject matter of monetary,
currency and financial policies is not suitable for determination by a court. There
are no objective legal criteria by which to evaluate the Claim of COMER. Judicial
adjudication is not appropriate given that economic policy-making is the
province of government.
COMER’s Position
[35]
COMER
submits that the high threshold for striking out the Claim has not been met.
[36]
The
claim for misfeasance in public office as alleged in the Claim has been
properly pleaded so it is argued by COMER. That is, the Crown actors are
knowingly or in a willfully blind fashion refusing to give effect to the Bank
Act. COMER pleads that neither Parliament nor the executive can abdicate
its duty to govern. With respect to the conspiracy claim, COMER argues that
each and every individual need not be named, as there are often unknown
co-conspirators.
[37]
COMER,
for these various reasons maintain that it is not plain and obvious that subsection
91(6) of the Constitution Act, 1867 does not impose a duty, and that
regardless there is an independent constitutional duty to outline all revenues
and expenditures. COMER alleges that sections 53, 54 and 90 of the Constitution
Act, 1867, require that all taxing provisions must emanate from Parliament.
[38]
On the Charter
claims, COMER argues that the availability of health care was determined to
constitute a section 7 interest in Chaoulli v. Quebec (Attorney General), and the reduction
in other government services endangers life. No comparator group is needed for
a section 15 claim and the Plaintiffs’ claim engages the notion of substantive
equality.
[39]
With
respect to jurisdiction of the Federal Court to entertain the Claim, COMER argues
this Court has jurisdiction to issue declarations concerning statutes such as
the Bank Act, as well as having jurisdiction over federal public
actors, tribunals and Ministers of the Crown. COMER maintains they have
private interest standing in asserting the rights breached with respect to such
federal actors, and, in the alternative, have public interest standing. COMER
argues that simply because a subject deals with socio-economic matters does not
mean it is non-justiciable, as evidenced by the extensive federalism
jurisprudence concerning banking and trade and commerce.
[40]
The
political questions doctrine cannot be used to prevent adjudication of
constitutional and statutory rights. Justiciability should not be confused with
enforceability; a matter may be justiciable even if only declaratory relief is
available as a remedy.
Discussion
[41]
Against
these competing positions, it must be remembered that the test for striking an
action is a high one. The action must be bereft of any chance of success and
as noted above just because it is a novel cause of action it does not
automatically fail.
[42]
The
Supreme Court of Canada has recently summarized the principles to be applied on
a motion to strike. In R. v. Imperial Tobacco Canada Ltd.,
the Chief Justice, writing for the Court made the following observations
regarding a motion to strike:
17. The parties agree on the test applicable
on a motion to strike for not disclosing a reasonable cause of action under r.
19(24)(a) of the B.C. Supreme Court Rules. This Court has reiterated the test
on many occasions. A claim will only be struck if it is plain and obvious,
assuming the facts pleaded to be true, that the pleading discloses no reasonable
cause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263,
at para. 15; Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at p. 980. Another
way of putting the test is that the claim has no reasonable prospect of [page 67]
success. Where a reasonable prospect of success exists, the matter should be
allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre
v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83; Odhavji Estate; Hunt; Attorney
General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.
. . .
21. Valuable as it is, the motion to strike is
a tool that must be used with care. The law is not static and unchanging.
Actions that yesterday were deemed hopeless may tomorrow succeed. Before
Donoghue v. Stevenson, [1932] A.C. 562 (H.L.) introduced a general duty of care
to one's neighbour premised [page68] on foreseeability, few would have
predicted that, absent a contractual relationship, a bottling company could be
held liable for physical injury and emotional trauma resulting from a snail in
a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller &
Partners, Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent
misstatement would have been regarded as incapable of success. The history of
our law reveals that often new developments in the law first surface on motions
to strike or similar preliminary motions, like the one at issue in Donoghue v.
Stevenson. Therefore, on a motion to strike, it is not determinative that the
law has not yet recognized the particular claim. The court must rather ask
whether, assuming the facts pleaded are true, there is a reasonable prospect
that the claim will succeed. The approach must be generous and err on the side
of permitting a novel but arguable claim to proceed to trial.
. . .
25. Related to the issue of whether the motion
should be refused because of the possibility of unknown evidence appearing at a
future date is the issue of speculation. The judge on a motion to strike asks
if the claim has any reasonable prospect of success. In the world of abstract
speculation, there is a mathematical chance that any number of things might
happen. That is not what the test on a motion to strike seeks to determine.
Rather, it operates on the assumption that the claim will proceed through the
court system in the usual way - in an adversarial system where judges are under
a duty to apply the law as set out in (and as it may develop from) statutes and
precedent. The question is whether, considered in the context of the [page 70]
law and the litigation process, the claim has no reasonable chance of
succeeding.
[43]
These
are the principles to be applied on this motion. Do the various claims have
any chance of succeeding?
No Reasonable Cause of Action
[44]
Has
the tort of misfeasance in public office been made out in the Claim? The
misfeasance alleged is that the Defendants have abdicated their responsibility
to enforce legislation. Here COMER seeks through the auspices of this
proceeding to force the Crown to enforce laws of Canada which it alleges are
not being followed.
[45]
As
the Federal Court of Appeal noted in St. John’s Port Authority each essential
element of the tort must be clearly pleaded. Vague generalizations are
insufficient. The Claim must be particularized.
[46]
In
this case, the Claim at times reads like an economics text postulating
arguments as to why Canadian monetary and financial policy are dictated by
private foreign bank and financial interests such as the International Monetary
Fund, the Bank of International Settlements and the Financial Stability Board.
All of these institutions are based outside Canada.
[47]
It
is argued that the Claim sufficiently pleads this cause of action. As examples
of this cause of action the Claim states, inter alia:
▪
The
Plaintiffs state, and the fact is, that Policies such as interest rates,
and other policies set by the Bank of Canada are set in consultation, and
at times, but mostly at the direction of the “Financial Stability Board”
(“FSB”), established after the 2009 “G-20” London Summit in April
2009 . . . [para. 7]
▪
.
. . The Plaintiffs further state, and fact is [sic] that since 1974,
there has been a gradual, but sure, slide into reality that the Bank of Canada
and Canada’s monetary policy are in fact, by and large, dictated by private foreign
bank and financial interests [para. 11]
▪
The
Plaintiffs state, and the fact is, that no sovereign government such as Canada,
under any circumstances, should borrow money from commercial banks, at
interest, when it can instead borrow from its own central bank, interest free .
. .[para. 18]
▪
The
Plaintiffs state, and the fact is, that the Minister’s reasons for refusing
what was requested from the Town of Lakeshore’s Council, is both financially
and economically fallacious and not in accordance with his statutory duties . .
.[para. 21]
▪
The
Plaintiffs state, and the fact is, that the defendant’ (officials) are
wittingly and/or unwittingly, in varying degrees, knowledge, and intent,
engaged in a conspiracy, along with the BIS, FSB, an [sic] IMF, to
render impotent the Bank of Canada Act, as well as Canadian sovereignty over
financial, monetary, and socio-economic policy, and in fact, by-pass the
sovereign rule of Canada . . . [para. 41]
[48]
These
excerpts together with other similar allegations in the Claim are said to make
out the tort of misfeasance by public officers. These types of allegations do
not meet the stringent standard set out in St. John’s Port Authority. They are general statements of
economic policy and argument. They do not support a cause of action and are
therefore struck.
[49]
The
failure of the government to take certain actions regarding human capital or
other monetary steps may be the subject of judicial review in the right
decision-making environment but the Claim as currently drafted regarding
misfeasance in public office is bereft of any chance of success.
[50]
The
claim for conspiracy is also bereft of any chance of success. As currently
drafted there is no particularization of the parties alleged to be involved in
the conspiracy. There are general statements about alleged conspiracies by
finance ministers and unnamed others along with international monetary agencies
to undermine the provisions of the Bank Act. Such allegations do not
meet the test for proper pleading.
[51]
The
tort of conspiracy requires an agreement between two or more persons who intend
to injure by unlawful means. The only pleading in the Claim is that
the “defendants’ (officials) are wittingly and/or unwittingly, in varying
degrees, knowledge, and intent, engaged in a conspiracy . . .”. There are no names
of those involved in the alleged conspiracy. Further, what does in “varying
degrees” mean? There are no material facts which support a claim for
conspiracy.
[52]
This
part of the claim must also be struck.
Is the Charter Engaged?
[53]
The claim under
section 15 of the Charter is the right to equality and equal protection
under the law. A claim under section 15 requires that there be differential
treatment between the claimants and others. There is no distinction pleaded in
the Claim based on an analogous or enumerated ground. The Supreme Court was
clear in Withler v. Canada (Attorney General), that the notion of
substantive equality is a requirement for a successful section 15 claim. The
Court stated at paras. 41 and 63 as follows:
[41] As
McIntyre J. explained in Andrews, equality is a comparative concept, the
condition of which may “only be attained or discerned by comparison with the
condition of others in the social and political setting in which the question
arises” (p. 164). However, McIntyre J. went on to state that formal comparison
based on the logic of treating likes alike is not the goal of s. 15. What s.
15(1) requires is substantive not formal equality.
.
. .
[63] It
is unnecessary to pinpoint a particular group that precisely corresponds to the
claimant group except for the personal characteristic or characteristics
alleged to ground discrimination. Provided that the claimant establishes a
distinction based on one or more enumerated or analogous grounds, the claim
should proceed to the second step in the analysis. This provides the
flexibility required to accommodate claims based on intersecting grounds of
discrimination. It also avoids the problem of eliminating claims at the outset
because no precisely corresponding group can be posited.
[54]
Applying
this to the current case, the claim is asserted on behalf of all Canadians.
There is no distinction pleaded based on an enumerated or analogous ground.
The Bank Act policies and economic policies apply to all Canadians and
no relevant comparator of discrimination is identified. The Supreme Court
confirmed this approach in Canadian Egg Marketing Agency v. Richardson, wherein it is
stated “[p]rovided the federal government treats all people within the
country equally, it does not discriminate”. Therefore, this part of the
Claim must also be struck.
[55]
Section
7 of the Charter deals with life, liberty and security of the person.
As pleaded this section of the Charter is not engaged. The Claim is
generalized with respect to the section 7 claim only alleging that “by a
reduction, elimination and or fatal delay of health care services, education
and other human capital expenditures and services”. There is no causal
connection pleaded in the Claim connecting the government economic policies and
actions to a breach of section 7. I am in agreement with the argument of the
Crown as set out in paragraphs 18 through 22 of their written submissions
particularly the analysis of the application of Blencoe v. British Columbia (Human
Rights Commission). In Blencoe, the Supreme
Court stated:
59 Stress,
anxiety or stigma may arise from any criminal trial, human rights allegation,
or even a civil action, regardless of whether the trial or process occurs
within a reasonable time. We are therefore not concerned in this case with all
such prejudice but only that impairment which can be said to flow from the
delay in the human rights process. It would be inappropriate to hold
government for harms that are brought about by third parties who are not in any
sense acting as agents of the state. [emphasis in original]
[56]
The
Supreme Court has also clearly held that section 7 rights do not encompass
positive rights. In Gosselin v. Quebec (Attorney General), the Supreme Court
noted that a section 7 claim must arise “as a direct result of a determinative
state action that in and of itself deprives the claimant of the right to life,
liberty or security of the person”. No negative infringement or state
prohibition of a section 7 interest has been pleaded. This Claim must be
struck.
Jurisdiction of the Court
[57]
The
jurisdictional issue raised by the Crown engages the three part test set out in
ITO as discussed above. The Crown argues that this Court has no
jurisdiction to entertain tort claims against Federal authorities.
[58]
However,
pursuant to sections 2, 17 and 18 of the Federal Courts Act, the wording
is sufficiently wide to capture these types of claims against federal actors and
Crown servants. It is therefore not plain and obvious that this Court is
without jurisdiction to entertain claims seeking declaratory relief as here.
Plaintiff’s Standing
[59]
With
respect to the issue of standing, there is now a plethora of cases setting the
parameters of both private and public interest standing. In a recent decision
Hughes, J. in United Steel Workers v. MCI, reviewed the case law relating to
public interest standing and summarized the current approach of courts as
follows:
[13] To
summarize these decisions, I view the current jurisprudence with respect to
public interest standing to be:
•
The Court is
to take a flexible, discretionary approach.
•
Three factors
are to guide the Court in its considerations:
•
Does the case
raise a serious justiciable issue?
Does
the party bringing the proceeding have a real stake or genuine interest in the
outcome?
Is
the proposed proceeding a reasonable and effective means for bringing the
matter to Court?
•
The Court
should take a liberal and generous approach in its consideration of the matter.
[60]
In
this case the individual Plaintiffs have standing to assert rights but only if there
is interference with a private right and they have suffered damages as a
result. Although the written representations and argument set out greater
detail of the premise upon which rights relating to expectations and
declarations that the budgetary process and constitutional requirements
impinged their rights, it is not clear from the pleading that these are
sufficient to give private interest standing.
[61]
However,
with respect to public interest standing, in taking a flexible, liberal and
generous approach to the issues raised in the Claim, it cannot be said at this
juncture that COMER does not meet the test for public interest standing. If
the claims are sufficiently amended to satisfy the requirements of pleading,
the claims would meet the first part of the test by raising serious issues to
be tried. COMER has a genuine interest in economic policy. There appears not to
be an alternative reasonable and effective means to bring the matter to Court.
However, this is not the end of the matter.
Is the Claim Justiciable?
[62]
As
noted by the Crown in its submissions, the justiciability of a matter refers to
its suitability for determination by a Court. It involves the subject matter
for determination by the Court, its presentation and the appropriateness of
judicial determination.
[63]
This
Claim has as its subject matter economic policy and socio-economic matters. In
and of itself that does not make it non-justiciable. It depends upon a reading
of the legislation and what obligations are imposed by that legislation. As
noted by Barnes, J. in Friends of the Earth:
Justiciability
[24] The parties do not disagree about the
principles of justiciability but only in their application in these
proceedings. They agree, for instance, that even a largely political
question can be judicially reviewed if it “possesses a sufficient legal
component to warrant a decision by a court”: see Reference Re Canada
Assistance Plan (B.C.), [1991] 2 S.C.R. 525 at para. 27, 83 D.L.R. (4th)
297. The disagreement here is whether the questions raised by these
applications contain a sufficient legal component to permit judicial
review. The problem, of course, is that “few share any precise sense of
where the boundary between political and legal questions should be drawn”: see
Lorne M. Sossin, Boundaries of Judicial Review: The Law of Justiciability in
Canada (Scarborough: Carswell, 1999) at p. 133.
[25] One of the guiding principles of
justiciability is that all of the branches of government must be sensitive to
the separation of function within Canada’s constitutional matrix so as not to
inappropriately intrude into the spheres reserved to the other branches: see Doucett-Boudreau
v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 at
paras. 33 to 36 and C.U.P.E. v. Canada (Minister of Health), 2004 FC
1334 at para. 39, 244 D.L.R. (4th) 175. Generally a court will not
involve itself in the review of the actions or decisions of the executive or legislative
branches where the subject matter of the dispute is either inappropriate for
judicial involvement or where the court lacks the capacity to properly resolved
it. These concerns are well expressed in Boundaries of Judicial
Review: The Law of Justiciability in Canada, above, at pp. 4 and 5:
Appropriateness
not only includes both normative and positive elements, but also reflects an
appreciation for both the capacities and legitimacy of judicial
decision-making. Tom Cromwell (now Mr. Justice Cromwell of the Nova
Scotia of Appeal) summarized this approach to justiciability in the following
terms:
The justiciability of a matter refers to its
being suitable for determination by a court. Justiciability involves the
subject matter of the question, the manner of its presentation and the
appropriateness of judicial adjudication in light of these factors. This
appropriateness may be determined according to both institutional and
constitutional standards. It includes both the question of the adequacy
of judicial machinery for the task as well as the legitimacy of using it.
While it is helpful to develop the criteria for
a determination of justiciability, including factors such as institutional
capacity and institutional legitimacy, it is necessary to leave the content of
justiciability open-ended. We cannot state all the reasons why a matter
may be non-justiciable. While justiciability will contain a diverse and
shifting set of issues, in the final analysis, all one can assert with confidence
is that there will always be, and always should be, a boundary between what
courts should and should not decide, and further, that this boundary should
correspond to predictable and coherent principles. As Galligan concludes,
“Non-justiciability means no more and no less than that a matter is unsuitable
for adjudication.”
[Footnotes omitted.] [Emphasis in original.]
[26] While the courts fulfill an obvious
role in the interpretation and enforcement of statutory obligations, Parliament
can, within the limits of the constitution, reserve to itself the sole
enforcement role: see Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, [1989] S.C.J. No. 80 at
paras. 68 to 70. Such a Parliamentary intent must be derived from an
interpretation of the statutory provisions in issue – a task which may be
informed, in part, by considering the appropriateness of judicial
decision-making in the context of policy choices or conflicting scientific
predictions.
.
. .
[31] The justiciability of all of these
issues is a matter of statutory interpretation directed at identifying
Parliamentary intent: in particular, whether Parliament intended that the
statutory duties imposed upon the Minister and upon the GIC by the KPIA be
subjected to judicial scrutiny and remediation
.
. .
[33] If the intent of s. 5 of the Act was
to ensure that the Government of Canada strictly complied with Canada’s Kyoto obligations, the approach taken was unduly cumbersome. Indeed, a simple and
unequivocal statement of such an intent would not have been difficult to
draft. Instead s. 5 couples the responsibility of ensuring Kyoto compliance with a series of stated measures some of which are well outside of the
proper realm of judicial review. For instance, s. 5(1)(a)(iii.1) requires
that a Climate Change Plan provide for a just transition for workers
affected by greenhouse gas emission reductions and s. 5(1)(d) requires an
equitable distribution of reduction levels among the sectors of the
economy that contribute to greenhouse gas emissions. These are
policy-laden considerations which are not the proper subject matter for
judicial review. That is so because there are no objective legal criteria
which can be applied and no facts to be determined which would allow a Court to
decide whether compliance had been achieved: see Chiasson v.
Canada, 2003 FCA 155, 226 D.L.R. (4th) 351 at para. 8.
[34] It is not appropriate for the Court
to parse the language of s. 5 into justiciable and non-justiciable components,
at least, insofar as that language deals with the content of a Climate Change
Plan. This provision must be read as a whole and it cannot be judicially
enforced on a piecemeal basis. While the failure of the Minister to
prepare a Climate Change Plan may well be justiciable, an evaluation of its
content is not. Indeed the various obligations under the Act for the
Minister and others to prepare, publish and table the required reports,
regulations and statements are all coupled with the mandatory term “shall”.
That word is construed as imperative in a statutory context, and when used it
almost always creates a mandatory obligation: see the Interpretation Act,
R.S.C., 1985, c. I-21, s. 11. So far as I can determine, the word
“ensure” found in s. 5 and elsewhere in the KPIA is not commonly used in the
context of statutory interpretation to indicate an imperative.
. . .
[38] . . . I note, as well, that s. 6 of
Act says only that the GIC “may” make regulations. That language is
clearly not mandatory. This, I think, was the basis for the admonition by
Lord Browne-Wilkinson in R. v. Secretary of State for the Home Department,
[1995] 2 ALL E.R. 244 (H.L.), to the effect that without clear statutory
language the courts have no role to play to in requiring legislation to be
implemented. This, he said, would tread dangerously close to the area
over which Parliament enjoys exclusive jurisdiction. The language of ss.
7(1) and ss. 7(2) is sufficiently unclear that I do not think that it was
intended to override the clearly permissive meaning of the words “may make
regulations” in ss. 6(1) of the Act.
[64]
The
issues in dispute in this Claim are “policy-laden” as they require a
consideration of economic policy and the relief sought requires the Government
of Canada to take certain steps regarding “interest-free loans” for “human
capital” expenditures. What objective legal criteria can be applied to
interpret these provisions when economic issues such as those raised are
matters of government policy? COMER may not agree with the policy but the
Court is not the vehicle for declaring that the Government change that policy
if no legislative imperative exists. The Bank Act in section 18 is a
permissive section in that the powers to be exercised “may” be exercised. This
allows for discretion and considerations of policy in the implementation of
those powers under the Bank Act. There is no requirement that
“interest-free loans for human capital” be made.
[65]
In
my view, this Claim is similar in circumstance to that in Friends of the
Earth. It is a policy-laden matter that is within the purview of
Parliament and is not therefore justiciable. The Claim founders on the shoals
of justiciability. As noted by
Dean Lorne Sossin:
Whether
in the normative or positive sense, “appropriateness” has emerged as the most
common proxy for justiciability… Appropriateness not only includes both
normative and positive elements, but also reflects an appreciation for both the
capacities and legitimacy of judicial decision-making…While justiciability will
contain a diverse and shifting set of issues, in the final analysis, all one
can assert with confidence is that there will always be, and always should be,
a boundary between what courts should and should not decide, and further, that
this boundary should correspond to predictable and coherent principles.
[66]
The
Written Representations of the Crown set out succinctly the issue and the problems
with the Claim:
53. This
lack of a statutory or constitutional requirement recurs with respect to the
allegation of a negative impact on the Canadian economy of Canada’s relationships with different states and international organizations. The Claim
asserts that government officials are “in varying degrees, knowledge, and
intent, engaged in a conspiracy” with groups like the BIS, FIS and the IMF to
“render impotent the Bank of Canada Act.” Such inter-government
activity, it is claimed, is a direct and palpable breach of the Act
since federal “monetary and financial policy are in fact, by and large,
dictated by private foreign bank and financial interests.” Among other things,
this alleged violation is said to result in the “loss of sovereignty over
decision[s] related to banking, monetary policy, economic policy [and] social
policy” and the “spiralling schism between the rich and the poor in Canada.”
54. The
lack of objective legal criteria to adjudicate the allegations brought forward
is throughout the Claim, in respect of multiple issues: accounting activities,
minute-keeping at the BIS and FSB, tax credits, corporate good will and the
renting of federal government buildings. Further, the Claim is unworkable.
The generality and broadness of the Claim is such that its parameters cannot be
ascertained in a meaningful way and it therefore defies judicial manageability.
.
. .
56. The
Plaintiffs are concerned with the way in which Canada develops and implements
fiscal policy and monetary policy and Canada’s participation in international
economic organizations. As indicated, the Claim deals not with specific aspects
of legislation, but rather with abstract issues relating to Bank of Canada
governance and the role of global markets.
.
. .
62. The
Plaintiffs seek to litigate precisely the types of issues which have been
deemed beyond the appropriate scope for adjudication by Canadian courts.
Rather than pointing to specific actions or policies governed by the Act,
the Claim asks this Court to re-write the processes governing the Bank of
Canada and Canada’s involvement with groups like the BIS, FIS and the IMF. The
Claim seeks to have the Court mandate to government and to the Bank of Canada
the economic positions advocated by the Plaintiffs.
63. The
Plaintiffs admit they are interested chiefly in targeting policy: “policies
such as interest rates, and other policies set by the Bank of Canada”, alleging
these are being developed “in consultation” with or “at the direction of” the
FSB and related organizations. More generally, there is a focus on “monetary
and financial policy” (and related “economic and social policies”) which
Plaintiffs view as deficient insofar as they are “dictated by private foreign
bank and financial interests.” This request runs contrary to the proper scope
of judicial involvement. Whether or not a policy is “financially or economically
fallacious” is not a matter for the judiciary to decide, but for the government
as mandated by the electorate.
[67]
The
citations have been omitted from these paragraphs but a review of those cases
supports these submissions.
[68]
The
position of COMER that the issues are justiciable relies upon such cases as Chaoulli
v. Quebec (Attorney General); Reference Re Canada Assistance Plan (B.C.); Reference Re: Anti-Inflation Act
(Canada); and, Manitoba
(Attorney General) v. Canada (Attorney General) [Patriation Reference]. These are all
cited for the proposition that Courts have not shied away from issues that engage
interpretation of statutes or constitutional duties or rights. All that is
required for the Court to entertain the Claim is a subject matter that has “a
sufficient legal component to warrant the intervention of the judicial branch”. Further, Chaouilli
is cited for the proposition that “There is nothing in our constitutional
arrangement to exclude ‘political questions’ from judicial review where the Constitution
itself is alleged to be violated”.
[69]
COMER
argues that the issue in dispute is not about socio-economic policy and whether
it is correct but rather whether or not the implementation of the Bank Act
provisions violate the rights of COMER.
[70]
In
the end result, I am not persuaded that the Claim is justiciable. The Claim
focuses on matters such as the Minister’s decision being “financially and
economically fallacious” (para. 21); that Provinces are getting more
interest-free loans than others (para. 21 (d); decisions are based on “the
reasoning that such loans would increase annual deficits” (para. 24); “it is
long recognized that investment and expenditure in human capital is the most
productive investment and expenditure a government can make etc. These few
examples from the Claim, of which there are many more, resonate with policy
making implications not legal considerations.
Leave to Amend
[71]
There
is ample authority in this Court and in the jurisprudence generally that where
a claim has some kernel of a legitimate claim it should not be tossed aside but
permitted to be amended to determine if the clam in law can be cured.
[72]
Given
that the Claim, in my view, is not justiciable, leave to amend will not cure
the defects. Leave to amend is therefore not granted.
Conclusion
[73]
Thus,
for the reasons given, the motion is granted and the Claim is struck without
leave to amend. As noted at the outset, this was a novel Claim. In the
circumstances, there should be no costs.
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