Docket: T-1557-14
Citation: 2014 FC 1176
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, December 5, 2014
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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THE HONOURABLE MICHEL GIROUARD
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Applicant
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and
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THE CANADIAN JUDICIAL COUNCIL AND
THE ATTORNEY GENERAL OF CANADA
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Respondents
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ORDER AND REASONS
[1]
As a respondent, the Attorney General of Canada
is seeking to strike the notice of application for judicial review filed on July
9, 2014, by the applicant, Justice Michel Girouard, of a so-called “decision” made
public on June 18, 2014, in the form of a press release issued by the Canadian
Judicial Council [CJC], which is also a respondent.
[2]
The CJC has not taken any position with regard
to this motion to strike that is being challenged by the applicant.
[3]
The CJC’s press release reads as follows:
The Canadian Judicial Council announced
today the members of the Inquiry Committee established to review the conduct of
Justice Michel Girouard.
The Inquiry Committee is comprised of three
members: two Chief Justices appointed by the Canadian Judicial Council and one
senior lawyer appointed by the Minister of Justice. The members are: the
Honourable Richard Chartier, Chief Justice of Manitoba (Chairperson); the Honourable
Paul Crampton, Chief Justice of the Federal Court; and Ronald LeBlanc, Q.C. of
the law firm LeBlanc Maillet of New Brunswick.
The Council is also announcing that Marie
Cossette of the law firm Lavery in Québec City has been appointed Independent
Counsel in accordance with the Council's Bylaws and has the mandate of
presenting the case to the Inquiry Committee in the public interest.
Under the Judges Act, the Inquiry Committee
is deemed to be a Superior Court. The Committee will decide, in the coming
weeks, when it will convene to hear this matter. Inquiry Committee hearings are
normally held in public, although private hearings are possible if required in
the public interest and the due administration of justice. The Committee will
also decide on the full scope of its inquiry.
The judge in this matter has filed a
judicial review application in the Federal Court. That application is being
defended by the Attorney General of Canada. In respect to those proceedings,
Chief Justice Crampton has taken steps to ensure that he has no involvement
with the case being heard by the Federal Court.
The mandate of the Inquiry Committee is to
review all the issues and submit a report to the Canadian Judicial Council,
presenting its findings and conclusions on whether or not a recommendation
should be made for the removal of the judge from office. The Council will then
make a recommendation to the Minister of Justice regarding the judge's ability
to remain in office. Information about the Council, including the process for
public inquiries, can be found on the Council's website at www.cjc-ccm.gc.ca.
[4]
The present motion was heard by this Court concurrently
with the motion to strike filed by the Attorney General in the judicial review
application (T-646-14) that was referred to in the fifth paragraph of the CJC’s
press release (see decision: 2014 FC 1175). The Attorney General claims that
the present application for judicial review is doomed to failure. For the
purposes of adjudicating the two motions to strike, the facts alleged by the
applicant in the impugned proceedings must be held to be true.
[5]
For the purposes of this proceeding, it should
simply be noted that following receipt of confidential documents and unverified
allegations, the exact nature of which was not publicly disclosed, on November 30,
2012, Superior Court Chief Justice, the Honourable François Rolland, wrote to
the CJC asking that it proceed with a [translation]
“review of [the applicant’s] conduct while he
was an attorney” [the complaint].
[6]
In January 2013, “investigation proceedings” were
launched pursuant to the Judges Act, RSC 1985, c J-1 [Act], the Canadian
Judicial Council Inquiries and Investigations By-laws, SOR/2002-371
[Regulations] and the Procedures for Dealing with Complaints made to the Canadian
Judicial Council about Federally Appointed Judges, in force since October
14, 2010 [Complaints Procedures].
[7]
In fact, the Vice-Chairperson of the Judicial
Conduct Committee of the CJC, the late Honourable Edmond Blanchard, reviewed
the allegations and decided to set up a Review Committee to look into the
matter. On February 11, 2014, the Review Committee pursuant to subsection 63(3)
of the Act, decided to constitute an Inquiry Committee, “on the ground that the matter in issue may prove
sufficiently serious as to warrant [the applicant’s] removal from office”.
[8]
By means of his application for judicial review
dated March 13, 2014 (file T-646-14), the applicant seeks to have the interlocutory
decision dated February 11, 2014, set aside. He is also asking the Court to
declare the Regulations and the Procedures for dealing with complaints invalid
and inapplicable to the extent that these instruments authorize the CJC or one
of its committees to review or investigate the complaint against the applicant.
[9]
With this latest application for judicial review,
the applicant now seeks to strike the so-called “decision” of June 18, 2014. In
large part, the applicant is basing this new application on the same arguments of
constitutional and administrative law he put forth in file T-646-14 against the
[translation] “investigation
procedures” and the February 11, 2014, decision of the Review Committee.
[10]
For his part, the Attorney General is now asking
the Court to summarily strike the application for judicial review because the
June 18, 2014, press release is simply not a reviewable decision. Indeed, its
sole purpose is to inform the public of the composition of the Inquiry
Committee and the name of the CJC’s independent counsel. It is not to set out
the parameters of the investigation of the Inquiry Committee. Moreover, the
committee has not determined the scope of its investigation, and consequently
this application for judicial review is in any event premature.
[11]
In this particular case I am satisfied that this
is one of those exceptional cases in which, in exercising its judicial
discretion, the Court must intervene.
[12]
First, it should be noted that under sections 18
and 18.1 of the Federal Courts Act, RSC 1985, c F-7 [FCA], anyone
“directly affected by the matter in respect of which relief is sought” may file
an application for judicial review of an order, act
or proceeding of a federal board, commission or other tribunal, while
the Court has the authority to set aside any decision thus taken, to nullify
any law or regulation that is unconstitutional, ultra vires or otherwise
invalid, and to prohibit the continuation of any proceeding unlawfully
conducted by the board, commission or other tribunal in question.
[13]
In addition, subsection 18.4(1) of the FCA
states that applications for judicial review ‘shall be
heard and determined without delay and in a summary way” by the Court. As
a general rule, motions to strike need not be heard in such matters. Nevertheless,
as the Federal Court of Appeal decided in David Bull Laboratories (Canada)
Inc c Pharmacia Inc, [1995] 1 RCF 588, 1994 CanLII 3529 (CAF), the striking
of an application for judicial review cannot be granted where the pleading is “so clearly improper as to be bereft of any possibility of
success”.
[14]
It is clear that the application for judicial
review discloses no reasonable cause of action, as it concerns a press release,
which is not a decision and has no legal effect. Moreover, a careful reading of
the proceedings reveals that the applicant does not contest the current makeup of
the Inquiry Committee per se. Rather, he objects to the fact that the committee
has the authority to determine “the scope” of its inquiry and to “review all
the issues”. I will return to this question a little later after having said a
few words about the purpose of the impugned press release.
[15]
When the Inquiry Committee is comprised of three
members, it may include a member of the legal profession appointed by the
Minister of Justice. The other two members are members of the CJC appointed by
the Chairperson (or the Vice-Chairperson) of the Judicial Conduct Committee. On
June 18, 2014, the CJC published a press release revealing the names of the
three members of the Inquiry Committee and that of the CJC’s independent
counsel. Whatever the author of the press release may have written in regard to
any legal aspect of the matter is clearly not binding on the Inquiry Committee.
In fact, we now know that no decision has been made by the Inquiry Committee.
[16]
Before me at the hearing, one of the applicant’s
learned counsel, Bâtonnier Louis Masson, indicated that it was ex abundanti
cautela – that is to say, out of an abundance of caution – that the
applicant filed this application for judicial review. In this case, the Court
has decided today that the arguments raised by the applicant in file T-646-14 against
the legality or merits of the decision of the Review Committee to set up an
Inquiry Committee are premature and the Inquiry Committee should be permitted
to dispose of the matter, preferably in a preliminary manner: 2014 CF 1175. The
present application for judicial review is therefore unnecessary and premature.
[17]
In closing, I reject any assertion by the
applicant to the effect that the Attorney General cannot address the Court
today in order to seek the striking out of the notice of application for
judicial review. The applicant is of the view that the Attorney General does
not have standing in this matter, other than to argue for the validity of the
Regulations, while it would be for the CJC to defend the legality or the merits
of the disputed decision, hence the reason for which the CJC is a respondent.
And therein lies the problem, because if we accept the applicant’s theory that
the impugned decision was made under the supposed authority of the Act and
Regulations, then the CJC should not have been designated from the start as a
respondent in the notice of application for judicial review.
[18]
Because, we should recall that, under subsections
303(1) and (2) of the Federal Courts Rules, SOR/98-106 [Rules], the
federal board or tribunal whose decision is under review cannot be designated
as a respondent; where there are no persons that can be named as a respondent under
the Rules or law, the Attorney General shall be named as a respondent. To date,
the Attorney General has not filed a motion pursuant to subsection 303(3) of
the Rules to be replaced by the CJC and it is unclear whether such a motion
would be granted by this Court (see Douglas v Canada (Attorney General), 2013
FC 451).
[19]
The motion to strike is therefore granted.
Without costs.
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