Docket: T-569-15
Citation:
2016 FC 418
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, April 15, 2016
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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DAVID LESSARD‑GAUVIN
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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ORDER AND REASONS
Introduction
[1]
This is a multi‑part motion filed by the
applicant regarding an application for judicial review challenging the Canadian
Human Rights Commission’s (the Commission) dismissal of a total of six similar
complaints involving prohibited grounds of discrimination not covered by the Canadian
Human Rights Act, R.S.C. 1985, c. H‑6 (CHRA) (the Act).
[2]
The applicant instituted his case in April 2015.
However, at the respondent’s request, the Court struck the applicant’s Notice
of Application on June 30, 2015, on the ground that it was premature
because the Commission had not yet rendered a final decision regarding the
various complaints filed by the applicant. However, the Court allowed the
applicant to serve and file a re-amended Notice of Application in the event
that the Commission should dismiss said complaints. In the interim, it
suspended proceedings.
[3]
In three of the six cases submitted to the
Commission, the applicant alleges that he was discriminated against because of
his language. In each case, the complaint arose from the applicant’s
participation in a Federal Public Service screening process in which an
essential qualification of the position to be filled was command of the English
language. The three processes in question were designed to fill positions in
Western Canada and the Prairies. In two of the three other cases, the
applicant complained that he was discriminated against because of his social
condition, i.e. his status as a student, which in one case would have deprived
him of certain rights stipulated in the collective bargaining agreement, and in
the other, the right to participate in internal screening processes. Finally,
in the last case, which also involved the Federal Public Service screening
process, the applicant argued that he had been discriminated against because of
his political convictions on the ground that, in the context of his security
interview, there was an attempt to gather information on complaints and court
remedies initiated with—and against—various government agencies.
[4]
The Commission rendered its final decisions
regarding said complaints between September 24 and December 30,
2015. On January 19, 2016, the applicant filed a re‑amended Notice
of Application with the Court stating that he sought no fewer than 44 declaratory
and other types of conclusions. This is ultimately the core of his recourse.
He is seeking to have “any existing or future Canadian
legislative instrument” that includes a closed, restrictive or
exhaustive list of prohibited grounds of discrimination declared incompatible
with Section 15 of the Canadian Charter of Rights and Freedoms (the
Charter). In particular, he is seeking a finding that, in order for any such
instrument to comply with Section 15 of the Charter and the standards of
international law, it must be interpreted as comprising an open list of
prohibited grounds of discrimination, which must include language, opinion,
political conviction and social condition, in this case the status of student.
[5]
His avowed objective is to “reposition Canada as a leader in matters of fundamental
rights” and to align the right to equality in Canada with his idea of
international rights, in particular the International Covenant on Civil and
Political Rights (Motion record, page 31). He is also asking the Court to
recognize that this action is the “work” that he
has to complete for a course on equality and discrimination offered at the
Laval University Faculty of Law during the 2016 winter session. He says
this work will be evaluated and graded (Notice of Motion, at paragraph 9).
Motion under study
[6]
This motion was filed on January 27, 2016.
As I have already mentioned, it contains several parts. In particular, the
applicant is seeking:
- To receive authorization to file any new affidavits in support
of the re-amended Notice of Application within 20 days of the date of
this order;
- To be granted both private and public interest standing, the
current case being in the public interest, according to him;
- To have counsel remunerated by government assigned to him and
that a sum of money be granted to him by the government to enable him to
retain the services of expert witnesses;
- That an amicus curiae be appointed by the Court;
- That it be declared that the re-amended Notice of Application
raises questions of general importance within the meaning of Rule 110
of the Federal Courts Rules SOR/98‑106 (the Rules) or
constitutional questions within the meaning of Section 57 of the Federal
Courts Act R.S.C., 1985, c. F‑7 and that, if applicable, the notices
required under these provisions be served by the Administrator on the
attorneys general of each province and territory and every provincial and
territorial human rights commission or, subsidiarily, by the applicant at
an affordable cost;
- That the Attorney General of Canada be ordered not to adopt an “aggressive,”
“energetic” or “very defensive” attitude of opposition.
- That the 20‑day time limit specified in Rule 309 for
serving and filing the Applicant’s record be extended to 40 days;
- That the Court make the necessary arrangements to have the
hearing of the applicant’s recourse held at Université Laval in Québec to
allow the maximum number of students to attend; and
- To specify Rule 174’s impact on this case to which the
order issued on June 30, 2015, refers.
[7]
The applicant also asks the Court to rule on the
Commission’s objection to his request to have material transmitted in
accordance with Rule 317. The substantial list of material that the
applicant is requesting be transmitted is presented in the appendix to this
order.
[8]
One part of the motion is not challenged,
another is out of order, and some parts of the motion are premature. Thus, the
respondent does not oppose the application to file any new affidavits in
support of the re-amended Notice of Application within 20 days of the date
of this order. Given the order issued on June 30, 2015, this application
is justified and, consequently, allowed.
[9]
Moreover, the applications regarding the time
limit for filing the Applicant’s record and setting the location of the hearing
are premature. At this stage, there is no basis for overriding the procedure
and time limits set out in Part 5 of the Rules. In particular, I find it
hazardous to make changes to the time limit for filing the Applicant’s record
when the parameters of his recourse have not been finalized, and the rationale
for doing it is strictly hypothetical. The issue of the place at which the
hearing should be held must be resolved in accordance with the requisition for
hearing stipulated in Rule 314.
[10]
Finally, the application regarding the scope of
Rule 174 on how the applicant should conduct and word his pleading and
understand, in doing so, the order issued on June 30, 2015, is out of
order, because the applicant is ultimately seeking the Court’s advice on this
matter, a role that it must refrain from playing (Thom v. Canada, 2007 FCA 249,
at paragraph 14; Bernard v. Canada (Revenue Agency), 2015 FCA 263,
at paragraphs 39‑43).
[11]
That said, all other aspects of the motion are
challenged by the respondent.
[12]
In the days following the hearing of this motion
(the main motion), the applicant filed a motion under Rule 369 (the motion
in writing) requesting an order to (i) transform this proceeding into a
specially managed proceeding; (ii) authorize the filing of a document
identifying, for the benefit of the Court, the relevant passages of the
authorities that he submitted in support of this motion (the reference
document); and, (iii) draw his attention to any evidentiary and procedural
issues in the Motion record that he filed along with the main motion and allow
him to remedy them. The respondent opposed the motion, except the part
regarding the filing of the reference document.
[13]
Because it is closely related to the main
motion, the motion in writing will be addressed in these reasons.
Public interest standing
[14]
In exercising the discretion to grant public
interest standing, the Court must consider three factors: (i) whether the
case before the Court raises a serious justiciable issue; (ii) whether the
party seeking this standing has a real stake or a genuine interest in the case;
and, (iii) whether the proposed case is a reasonable and effective way to
bring the issue before the courts Canada (Attorney General) v. Downtown
Eastside Sex Workers United Against Violence Society, 2012 SCC 45,
at paragraph 20, [2012] 2 S.C.R. 524 [Downtown Eastside Sex
Workers]).
[15]
Even if a purposive approach is appropriate in
assessing these factors, the Supreme Court of Canada, in Downtown Eastside
Sex Workers, above, noted that the courts have long recognized that
limitations on standing are necessary, and consequently, “not everyone who may want to litigate an issue, regardless
of whether it affects them or not, should be entitled to do so” (Downtown
Eastside Sex Workers, at paragraph 22). The considerations that
favour such an approach are related to (i) properly allocating scarce
judicial resources and screening out the mere busybody; (ii) ensuring that
courts have the benefit of contending points of view of those most directly affected
by the determination of the issues; and, (iii) preserving the proper role
of courts and their constitutional relationship to the other branches of
government (Downtown Eastside Sex Workers, at paragraph 25).
Ultimately, the Court must seek to strike a balance between ensuring access to
the courts and preserving judicial resources (Downtown Eastside Sex Workers,
at paragraph 23).
[16]
In this case, as the respondent noted, the
applicant already has sufficient personal interest in light of the part of his
recourse relating to the decisions rendered by the Commission regarding his six
complaints and the scope of the Act. Consequently, it is neither useful nor
necessary to determine whether, in addition, he should be granted public
interest standing in this regard (Finlay v. Canada (Minister of Finance),
[1986] 2 S.C.R. 607, at paragraph 22). The applicant’s real
motive for seeking this dual standing appears to be to facilitate funding for
his recourse. We will return to this.
[17]
This issue becomes relevant with respect to the “non-federal” part of his recourse, as it were,
because the applicant does not have a direct interest in having provincial and
territorial human rights legislation declared unconstitutional. Evidently, the
applicant has an academic interest in being granted public interest standing,
but that is not a valid justification.
[18]
With respect to the existence of a serious
justiciable issue, notwithstanding serious reservations raised by the
respondent regarding the merit of the case instituted by the applicant, a
preliminary question of paramount importance arises here, that of the Court’s
jurisdiction to declare provincial laws unconstitutional, particularly when, as
in this case, nothing directly or indirectly ties the constitutional argument to
the implementation of a federal act or regulation or to federal government
action. Keep in mind that the Court was created pursuant to Section 101
of the Constitution Act, 1867 30 & 31 Victoria, c. 3 (U.K.) “for the better Administration of the Laws of Canada,”
an expression that must be interpreted not in its broader meaning of all
provincial and federal laws in force in Canada, but in its narrower meaning of
existing federal regulations and federal common law (Northern Telecom v.
Communication Workers, [1983] 1 S.C.R. 733, on p. 745,
147 DLR (3d) 1; Halsbury’s Laws of Canada (online), Administrative
Law, “Federal Courts: Test for Establishing
Jurisdiction” in HAD‑24 “Existing Body of
Federal Law” (2013 Re‑edition).
[19]
In this sense, the Court does not occupy the
same position as provincial superior courts in the Canadian judicial system.
They are courts of general jurisdiction. They cross the dividing line in the
federal‑provincial scheme of division of jurisdiction and are entitled to
rule on all matters of provincial or federal law, including constitutional
adjudication (Canada (Attorney General) v. Law Society of British
Columbia, [1982] 2 S.C.R. 307, 137 DLR (3d) 1).
[20]
Pursuant to these principles, the Court, in Hughes
v. Canada (1994), 80 F.T.R. 300, 49 A.C.W.S. (3d) 21 [Hughes],
found that it did not have jurisdiction to declare a provincial law
incompatible with the Charter and that such recourse should in fact be filed
with the Superior Court of the province concerned and directed against the
government of this province (Hughes, at paragraph 15).
[21]
Thus, virtually all of the non‑federal
portion of the applicant’s recourse appears to be jurisdictionally defective,
and consequently, fatally flawed.
[22]
Be that as it may, the applicant has not
convinced me that he has a real or genuine interest in the outcome of the case,
insofar as it concerns the constitutional validity of provincial and
territorial human rights legislation, or that his recourse constitutes, in this
regard, a reasonable and effective way to bring the issue before the Court.
[23]
Moreover, his interest in this part of his
recourse is strictly theoretical and seems first and foremost to be the focus
of an academic project. Furthermore, this part of the recourse is devoid of
any basis in fact, since the legislation at issue has never been tested by the
applicant. Now, Charter issues must not be decided in the absence of factual
basis (Mackay v. Manitoba, [1989] 2 S.C.R. 357,
p. 362, 17 A.C.W.S. (3d) 169). The applicant’s interest in
the compatibility of these laws with Section 15 of the Charter seems to be
that of a busybody within the meaning of Supreme Court of Canada case law on
standing. As the Court mentioned in a decision rendered in one of several
recourses—18 in all—filed by the applicant since 2013 before this Court
and the Federal Court of Appeal, he “takes a shotgun
approach” (Lessard‑Gauvin v. Canada (Attorney General),
2014 FC 739, at paragraph 1 [Lessard‑Gauvin 2014]).
[24]
This case is another example in terms of its
scope and lack of proportion (to have “any existing or
future Canadian legislative instrument” declared incompatible with
Section 15 of the Charter), as well as its origin (a series of fabricated
complaints to the Commission, in all likelihood to support a recourse to align
the right to equality in Canada with the applicant’s idea of international
rights). I note, in this regard, that despite the applicant’s best efforts to
get human rights defence organizations interested in his case (45 in all), he
was not offered any concrete support.
[25]
Once again, not everyone who may want to
litigate an issue, regardless of whether it affects them or not, should be
entitled to do so (Downtown Eastside Sex Workers, above, at
paragraph 22). In my view, the applicant does not have a genuine interest
in having provincial and territorial human rights legislation declared
unconstitutional and therefore should not be authorized to debate this issue.
The Supreme Court stated that “it would be intolerable
if everyone had standing to sue for everything, no matter how limited a
personal stake they had in the matter” (Downtown Eastside Sex Workers,
at paragraph 1).
[26]
Nor am I convinced that the case instituted by
the applicant is a reasonable and effective way to bring the issue before the
Court, assuming of course that the Court has jurisdiction to rule on it.
Several matters related to the assessment of this third test (Downtown
Eastside Sex Workers, at paragraph 51) run counter to granting public
interest standing in this case.
[27]
On the one hand, the applicant, by his own
admission, does not have the financial and technical resources to litigate this
case, and I am not satisfied, as I have just mentioned, that this case will be
pleaded, at least in terms of its non-federal component, in a sufficiently
concrete and well-developed context. Nor does he seem to have the capacity to
plead the case based on the comments of the Court stating that the applicant
institutes multiple proceedings, has difficulty maintaining them and stubbornly
refuses to comply with the Rules of the Court (Lessard‑Gauvin 2014,
above, at paragraph 15). On the other hand, there are other realistic
ways to debate whether provincial and territorial human rights legislation
complies with the Charter, in particular through remedies instituted by parties
who, unlike the applicant, may have legal standing, in order to increase, in a
more favourable context, the likelihood of a more effective and efficient use
of judicial resources.
[28]
Finally, I feel bound to consider the potential
impact of the applicant’s case on the rights of parties whose interests are
also, if not more, affected by the implementation of provincial and territorial
human rights legislation. In particular, I fear that the failure of the remedy
instituted by the applicant, in the diffuse and disembodied context in which he
presents himself, might impede future challenges by persons who have specific
complaints based on facts. In other words, in a case like this one, our
limited judicial resources should be allocated to support these persons.
[29]
Vriend v. Alberta,
[1998] 1 S.C.R. 493 (Vriend) is of little assistance in this
context. On the one hand, the question of standing involved extending a
recourse instituted by the applicants in this matter to other provisions of the
same act at issue (the Alberta Human Rights Act), and did not involve
the recourse itself, as initially worded. On the other hand, the fact that
homosexuals have been victims of discrimination in every aspect of their lives
had already been recognized by the courts, meaning that the constitutionality
of the provisions at issue did not depend on a particular factual context.
Finally, Mr. Vriend had a direct and genuine interest in the issue, having
challenged the Alberta Human Rights Commission regarding his termination after
he had revealed his sexual orientation to his employer. This was a nexus that
is missing in this case where provincial and territorial human rights
legislation is at issue.
[30]
In light of his entire recourse, I find that the
applicant does not satisfy the case law criteria to be granted public interest
standing.
Application for financial
assistance and corollary relief
[31]
This is not the applicant’s first such
application. Until now, they have all been dismissed, which has not stopped
him from pursuing numerous other proceedings instituted before this Court, the
Federal Court of Appeal and various administrative organizations and
tribunals. It must be borne in mind that although now permissible, public
interest advance costs orders “are to remain special
and, as a result, exceptional” (Little Sisters Book and Art Emporium
v. Canada (Commissioner of Customs and Revenue), [2007] 1 S.C.R. 38,
at paragraph 36 [Little Sisters]). The party seeking such an
order must therefore simultaneously demonstrate that:
- It is impecunious to the extent that, without such an order,
that party would be deprived of the opportunity to proceed with the case;
- It has established a prima facie case of sufficient
merit to warrant pursuit; and
- There must be special circumstances sufficient to satisfy the
court that the case is within the narrow class of cases where this
extraordinary exercise of its powers is appropriate (British Columbia
(Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71,
at paragraph 36, [2003] 3 S.C.R. 371 [Okanagan]).
[32]
However, it should be pointed out that the fact
that these conditions all exist in a given case does not necessarily mean that
such an order is required. All the foregoing is at the discretion of the Court
(Little Sisters, at paragraph 72). In particular, these orders
must be granted with caution, as a last resort, in circumstances where the need
for them is clearly established (Little Sisters, at paragraph 36).
In other words they apply “only to those few situations
where a court would be participating in an injustice—against the litigant
personally and against the public generally—if it did not order advance costs
to allow the litigant to proceed” (Little Sisters, at
para 5).
[33]
This is a stringent test. In particular, basing
his recourse on the Charter is not, in itself, sufficient to meet this test.
In fact, the courts must see to it that the justice system does not become a
proxy “for the public inquiry process, swamped with
actions launched by test plaintiffs and public interest groups” (Little
Sisters, at paragraph 39).
[34]
In this case, I see nothing before me that would
induce me to set aside previous decisions of the Court rejecting the applicant’s
application for financial assistance in cases T‑1076 (order of
Justice Yves De Montigny, now Federal Court of Appeal justice,
August 2, 2013, Ottawa (FC), at pp. 8‑9) and 13‑T‑64,
T‑1899‑13 and T‑309‑14 (Lessard‑Gauvin 2014,
above, at paragraph 8). Once again, one cannot expect to obtain this type
of assistance simply by raising the Charter and wanting to establish a
precedent. Here, the applicant has failed to convinced me, as he failed to
convince my two colleagues in prior cases, that he cannot pay for the costs of
this case and that he has no other viable options to allow this litigation to
proceed, a case which at first glance does not have the scope, for the
jurisdictional reasons cited above, that the applicant wishes to give it.
[35]
In my opinion, the applicant has failed to
establish his alleged impecuniosity as thoroughly as required: (i) the
evidence regarding his attempts to obtain a loan from a financial institution
is, as the respondent points out, insufficient; (ii) there is no reason to
believe that he cannot find a job; (iii) despite his claim that he is
impecunious, he is leading several cases before the Court, the Federal Court of
Appeal and other bodies; (iv) he indicated to de Montigny J., in case
T‑1076, that he had funds available to purchase a building (also see Lessard‑Gauvin 2014,
above, at paragraph 8); and, (v) the Court does not have a complete
financial statement, including alternative sources of funds as required by
Federal Court of Appeal case law (Al Telbani v. Canada (Attorney
General), 2012 FCA 188). The applicant may well be offended by
this requirement, but this is of little assistance to him since I am bound by
it.
[36]
As the respondent points out in his response to
the motion in writing, there is also the fact that the applicant, by his own
admission, (Motion Record, motion in writing, at paragraph 4 of his
written arguments) intends to pursue the case even in the absence of an order
for interim costs. That runs directly counter to the requirement that the
party seeking interim costs must be impecunious to the extent that, without
such an order, that party would be deprived of the opportunity to proceed with
the case (Okanagan, at paragraph 36). Furthermore, if I am not
mistaken, I do not believe that this type of order was designed for busybodies,
which distinguishes, inter alia, this case from Schmidt v. Canada
(Attorney General), 2016 FC 269, upon which the applicant relies
heavily.
[37]
The applicant’s application for financial
assistance is therefore denied.
[38]
For the same reasons, I am of the opinion that
it is not necessary to override the usual rules for service applicable to the
Notice of Constitutional Question, which, at any rate, does not appear to me to
be an initiating document. Moreover, under Section 57 of the Federal
Courts Act, only the Attorney General of Canada and the attorney general of
each province must be served a Notice of Constitutional Question. There is no
basis for requiring or even allowing this list to be extended to other
entities, by order. In this regard, since the applicant is seeking findings of
constitutional invalidity, I see no point in relying on Section 110 of the
Federal Courts Rules dealing with Questions of General Importance. Although
these two provisions are complementary, they do not apply concomitantly (Brian J. Saunders,
Donald J. Rennie and Graham Garton, Federal Courts Practice
2016, Toronto, Thomson Reuters, p. 473). Neither do I see any
point or need, at least at this stage, to appoint an amicus curie to the
case (an exceptional measure if ever there was one).
Role of the Attorney
General of Canada.
[39]
The applicant asks the Court to declare that it
would be unseemly and inappropriate for the Attorney General to adopt an “aggressive,”
“energetic” or “very defensive” attitude of opposition. According to him, his
role should be limited to helping the Court shed light on the points of law
raised by this case rather than defending tooth and nail the interests of the
departments and agencies targeted by his complaints to the Commission.
[40]
Here again, this is not the first time that the
applicant has submitted such a request to the Court. In every case until now,
he has been told that by representing the interests of the departments targeted
by his complaints and proceedings, the Attorney General was simply doing what
the Department of Justice Act, R.S.C., 1985, c. J‑2, and in
particular paragraph 5(d) of the Act, orders him to do (order of
Yves de Montigny J., case T‑1076, above, on pp. 7-8;
Lessard‑Gauvin 2014, above, at paragraph 11). It must
be remembered that this provision orders the Attorney General to regulate and
conduct “all litigation for or against the Crown or any
department, in respect of any subject within the authority or jurisdiction of
Canada.”
[41]
In each case, the Court noted that the applicant’s
argument was based on an erroneous understanding of the Attorney General’s
role. It is no different in this case.
[42]
At any rate, at this stage there is no basis in
this case for the reprimand sought by the applicant.
Application under Rule 317
[43]
The applicant’s application to have documents
transmitted under Rule 317 is very wide-ranging (see the Appendix to this
order) and goes well beyond the normal scope of such an application. The
applicant readily acknowledges this, but maintains that Rule 317 must be
applied differently depending on the nature of the judicial review. He argues
that in this case his recourse consists of several parts, which would expand
the scope of the material to be transmitted.
[44]
The Commission was represented at the hearing of
the main motion. On February 6, 2016, the Commission, in compliance with
Rule 318, sent the applicant the documents in its possession when it
rendered its decision regarding each of the six complaints filed by the
applicant. However, it opposed the transmission of any other documents on the
basis that, notwithstanding two exceptional cases that do not apply here, a
document that has not been considered by the organization whose decision is
impugned is not relevant within the meaning of Rule 317.
[45]
A document is relevant within the meaning of
Rule 317 if it can influence the manner in which the Court will rule on
the case (Canada (Human Rights Commission) v. Pathak, [1995] 2 FC
455, at paragraphs 9‑10, 94 F.T.R. 80 (Pathak)).
The requirement was interpreted as restricting the material that could be
requested under Rule 317 to those in the tribunal’s docket related to the
decision under appeal (Pathak, at paragraph 23). In this sense,
Rule 317 is not a substitute for mechanisms for transmitting material that
applies to cases or mechanisms for disclosing information set forth in the Access
to Information Act, R.S.C., 1985, c. A‑1. It does not have the
same theoretical basis and therefore does not aim to achieve the same
objectives (Atlantic Prudence Fund Corp v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No. 1156, 98 A.C.W.S. (3d) 960;
Pauktuutit, Inuit Women’s Assn v. Canada, 2003 FCT 165, 229 F.T.R. 25).
[46]
The Court will depart from this approach when
the basis for the challenge to the tribunal’s decision is connected to an
allegation of bias or a breach of procedural fairness, and the documents
required are relevant to the issue (Gagliano v. Canada (Commission of
Inquiry into the Sponsorship Program and Advertising Activities), 2006 FC 720,
293 F.T.R. 108).
[47]
What is the situation in this case? The
applicant argues that his recourse consists of four parts:
- The “classic” part, through
which he seeks to have the Court invalidate the Commission’s decisions not
to investigate his complaints;
- The “jurisdiction” part, where
he seeks to obtain the delegation documents of the person who signed the
Commission’s last decision;
- The “constitutional” part, where
he seeks to obtain the Commission’s documents pertaining to Vriend,
above, and the La Forest Report, believing that “[t]he
more material the Commission will be able to provide pertaining to the
constitutionality of Sections 2 and 3 of the CHRA, the better”;
and
- The “procedural” part, through
which he seeks to understand the pre-decision process, in particular,
regarding the period where the Commission considered the applicant’s complaint
forms to be “banal information requests,”
believing that it was an “intriguing period”
upon which he “wishes to shed light.”
[48]
With respect to the first part of the applicant’s
case, the “classic” part, I have no indication
that the Commission did not transmit all the relevant documents on February 6,
2016, i.e. all the documents before the Commission when it made the decisions
under appeal.
[49]
With regard to the three other parts, in
addition to the fact that the documents concerned were not before the
Commission when it made said decisions, I have serious doubts as to their
relevance. The Commission decided not to investigate the complaints filed by
the applicant because the grounds of discrimination raised are not stipulated
in the Act. The applicant was fully aware of this, his avowed ultimate goal
being to challenge the constitutional validity of the Act on this basis. Thus,
the complaints filed before the Commission were, as it were, a mandatory step.
In this context, I do not see the relevance of the delegation of authority
documents of the person who signed the last decision. At best, these documents
are strictly accessory or peripheral to the true issue in dispute. The same is
true of the documents sought for the “procedural”
part of the case. Understanding the so-called pre-decision process is not
helpful to the debate. In each case, the documents sought will not affect the
manner in which the Court will rule on the matter (Pathak, above, at
paragraph 10).
[50]
Finally, the documents created for the
Commission in the aftermath of Vriend and the Court of Appeal for
Ontario’s ruling in Haig v. Canada (1992), 9 O.R. (3d) 495,
regarding their possible impact on the Act are not relevant. It will be up to
the Court, in due course, to measure this impact using the judicial tools at
its disposal. Moreover, I note that the La Forest Report is
available online, and therefore easily accessible to the public.
[51]
I also note that among the documents whose
transmittal is sought, the applicant is requesting a history, from April 1998
to date, of all complaints declared admissible by the Commission not involving
the prohibited grounds of discrimination set forth in Section 3 of the
Act, as well as a history of all actions taken on a number of complaints,
including the creation date, closing date and reopening date of the complaint
case. This amounts to asking the Commission to create documents, which
Rule 317 does not require it to do (Terminaux Portuaires du Québec Inc.
v. Canada (Conseil canadien des relations du travail), (1993) 164 N.R. 60,
41 A.C.W.S. (3d) 669).
[52]
Finally, insofar as the applicant challenges the
validity of the Act itself, he moves beyond the scope of the Commission’s
administrative action. It is Parliament’s action—or inaction—that he is challenging.
It is up to him to discharge his burden of proof at this level of government.
In this regard, Rule 317, which I reiterate has a very specific and
defined purpose, is not in my view of any assistance to the applicant, insofar
as it applies only to the tribunal whose administrative action is challenged.
[53]
Even based on a liberal interpretation of
Rule 317, the applicant did not convince me that the Commission erred in only
sending him the documents it had in its possession when it decided not to investigate
his complaints.
Motion in writing
[54]
A specially managed proceeding is generally
granted based only on more serious grounds because it exempts the parties
concerned from the application of time limits and deadlines with which all
litigants must normally comply.
[55]
In this case, I am not convinced that it is
necessary to order this case to be conducted as a specially managed
proceeding. The applicant tells us that the procedural schedule could be
disrupted by numerous interveners, including the attorneys general of the
provinces. As I have already said, the non‑federal part of the applicant’s
case does not seem to me to be within the Court’s jurisdiction. The provincial
attorneys general’s potential interest in this matter appears to me rather
tenuous, if not non-existent, in this context. With respect to potential
interveners, in light of the interest shown by all of those contacted by the
applicant to date, their presence appears to me to be just as unlikely as it is
strictly speculative. In this regard, there is no basis for a specially
managed proceeding.
[56]
This application for a specially managed
proceeding was also based on the premise that an order for interim costs would
be issued. It will not be granted. Moreover, the fact that the applicant raises
a constitutional question is not in itself sufficient to exempt him from the
application of time limits and deadlines stipulated by the Rules. After all,
the applicant was the one who chose to proceed summarily. Moreover, the
applicant appeared confident that he could conduct his case within the time
limits stipulated in Part 5 of the Act since the main motion, an omnibus
motion if ever there was one, does not contain an application for conducting
the case as a specially managed proceeding, and the request to have the time
limit extended for filing the Applicant’s record seemed primarily related to
academic requirements.
[57]
At this point in the case and in the absence of
a more compelling argument, I see no need to order it to be conducted as a specially
managed proceeding.
[58]
With respect to the applicant’s request to have
any evidentiary and procedural issues relating to this motion drawn to his
attention, and allow him to remedy them, I agree with Roy J. in Lessard‑Gauvin 2014,
above:
[9] The technical assistance, which the
applicant demands, seems to be that the Court office prepare the cases, that
the tribunals whose decision is challenged produce the documentation required
under Rule 317 without the applicant’s having to comply with this Rule, in
particular by serving a motion that would identify the materials requested, and
that the applicant be advised of the evidentiary and procedural issues.
[10] However, the applicant should be aware
that similar motions have been dismissed in the cases where he himself was the
applicant (A‑210‑13, Nadon J.A., August 9, 2013;
Pelletier J.A., January 7, 2014) and he wanted the Court office to
prepare the appeal case. With respect to a request to be made under
Rule 317 and to warn him about evidentiary issues, the Court and its staff
do not and cannot become involved in the choices made by the parties to state
their case. The Court is and must be perceived as the impartial arbiter between
the parties. It cannot favour either party. The applicant is responsible for conducting
his cases before this Court, and what he is requesting here largely exceeds
advice on a technical point of procedure. Although Rule 60 may be used in
some circumstances, these circumstances would still have to be established in
this case. What the applicant seems to be seeking is ex ante protection against
future gaps [in the evidence]. I would decline to provide such an assurance. It
is one thing to permit affidavits of service to be filed (Mayflower Transit
Inc. v. Bedwell Management Systems Inc., 2003 FC 943, (2003) CRP (4th) 429),
another to grant the request for ex ante protection.
[59]
This request will therefore be denied.
[60]
Another comment is necessary. The applicant
argues that his two motions in this case must be examined through the prism of Hryniak
v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, which
he characterizes as an “authority.” He argues
that this decision calls for a “cultural shift”
from the legal profession and the judiciary in terms of the way civil
proceedings are viewed from the standpoint of access to justice. Albeit
important, I recognize this ruling for what it is: an invitation to make this
shift to simplify pre‑trial procedures and emphasize proportional
procedures tailored to the needs of the particular case, in this instance the
summary judgment motion, rather than holding a conventional trial.
[61]
I do not interpret this decision as a
repudiation of case law on public interest standing or of tests for granting
interim costs. Nor do I view it as making formal trial procedures obsolete, as
the Rules already recommend, through their guiding principle enshrined in
Rule 3, stating that Court proceedings should be conducted in the most
expeditious and least expensive manner. I most certainly do not interpret it
as creating a duty to grant the first person who comes along all the formal and
substantive procedural advantages he requests.
Costs
[62]
Given the conclusions to which I arrived
regarding the two motions filed by the applicant in this case, the respondent
will be entitled to costs. I set costs at $500, including disbursements,
and I order that they be paid without delay.
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