Date: 20130605
Docket: A-139-13
Citation: 2013 FCA 147
CORAM: PELLETIER
J.A.
TRUDEL
J.A.
MAINVILLE
J.A.
BETWEEN:
DAVID LESSARD-GAUVIN
Appellant
and
ATTORNEY GENERAL OF
CANADA
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
The
respondent is seeking the preliminary dismissal of the appeal. The appeal
concerns an order dated April 12, 2013, in Federal Court file No. T-142-13,
whereby Justice Boivin dismissed the appellant’s motion for a show cause
order for contempt of court and various incidental orders, including an
injunction, in the context of an application for judicial review.
[2]
The
application for judicial review at issue concerns a decision by the Public
Sector Integrity Commissioner dated December 27, 2012. The Commissioner
refused to investigate alleged wrongdoing disclosed by the appellant on
October 26, 2012, under the Public Servants Disclosure Protection Act,
S.C. 2005, c. 46. In the context of the application for judicial review,
and in response to a verbal request by the appellant, Prothonotary Morneau
issued the following direction on January 18, 2013:
[translation]
The applicant’s notice of application may be filed
in confidence and served on the Attorney General of Canada with this reservation
regarding confidentiality and a copy of this direction. Within thirty (30) days
of such service, the parties shall agree on appropriate long-term
confidentiality measures for this file based on the applicable law.
[3]
As
the parties were unable to agree on confidentiality measures, the appellant
filed a motion for a confidentiality order with the Federal Court on
February 19, 2013. This motion was dismissed by Justice Boivin on
April 11, 2013, and that decision is the subject of a separate appeal in
this Court’s file No. A-135-13.
[4]
In
the context of this motion for a confidentiality order, counsel for the
respondent served her reply record on the appellant with copies to her
assistant, her articling student, counsel for the client department and the
client department representative. The appellant saw this as a violation of
Prothonotary Morneau’s direction and asked that contempt of court proceedings
be initiated against counsel for the respondent. The appellant also sought various
remedial orders, including an injunction. Justice Boivin ruled against contempt
proceedings as well as the other remedial orders.
[5]
The
respondent submits that the appeal has no reasonable chance of success. The
principal grounds put forward by the respondent are the following: (a) on its
very face, the Prothonotary’s direction applied to the notice of application
for judicial review, not subsequent proceedings; (b) the direction at issue is
neither an order nor a judgment and cannot therefore give rise to a contempt of
court charge; and (c) the communications at issue by counsel to her assistants
and clients cannot constitute contempt of court, but are in fact perfectly
normal, indeed commonplace, acts of litigation file management. As for the
various remedial orders and the injunction, they would serve no purpose, in the
respondent’s view, as the communications at issue did not violate the
Prothonotary’s direction.
[6]
The
appellant submits that counsel for the respondent was in contempt of court in
acting as she did; that she should not have communicated with anybody outside
the confines of the Department of the Attorney General of Canada; and that, by
so doing, she not only placed herself in contempt, but also violated the Privacy
Act, R.S.C. 1985, c. P-21. The appellant also maintains that the
remedial orders sought, including the injunction, are essential to ensure compliance
with the Prothonotary’s direction. The appellant submits that the respondent
has failed to establish that his appeal has no chance of success.
[7]
The
appellant asks that the respondent’s motion for dismissal of the appeal be
heard orally by this Court. The respondent is vigorously opposed to this,
citing in that regard the provisions of Rule 369 of the Federal Courts
Rules, SOR/98-106. When the moving party (the respondent in this case)
invokes Rule 369, the Court may render a final judgment without an oral
hearing: Olson v. Canada, [1993] 1 F.C. 32. The party targeted by a
motion filed pursuant to Rule 369 (the appellant in this case) may request
an oral hearing on the motion, but this request will only be granted if serious
grounds justifying such a hearing are established. In this case, apart from his
desire to be heard for several hours by this Court in a hearing that would be
held in Québec or by teleconference, the appellant has not submitted any
serious grounds justifying such a hearing. I note that the appellant has filed
a very comprehensive written record of more than 100 pages to contest the
motion. A hearing would add nothing to the debate.
[8]
The
standard for a preliminary dismissal of an appeal is high. This Court will only
summarily dismiss an appeal if it is obvious that the basis of the appeal is
such that the appeal has no reasonable chance of success and is clearly bound
to fail: Sellathurai v. Canada (Public Safety and Emergency Preparedness),
2011 FCA 1, 414 N.R. 278, 98 Imm. L. R. (3d) 165 at paras. 7-8; Yukon
Conservation Society v. National Energy Board, [1979] 2 F.C. 14 (F.C.A.) at
p. 18; Arif v. Canada (Minister of Citizenship and Immigration), 2010 FCA
157, 405 N.R. 381, 321 D.L.R. (4th) 760 at para. 9.
[9]
In
this case, after reviewing the whole of the parties’ motion records, it is
obvious that the basis of the appeal is such that the appeal has no reasonable
chance of success and is bound to fail.
[10]
It
is indeed plain and obvious on the very face of the prothonotary’s direction
that it applied only to the appellant’s notice of application. The
communications at issue by counsel for the respondent therefore clearly do not
give rise to contempt of court proceedings on the basis that they violated that
direction. Accordingly, the other remedial orders sought by the appellant,
including the injunction, have no basis either.
[11]
I
would therefore allow the respondent’s motion and dismiss the appeal, with
costs.
“Robert M.
Mainville”
“I agree.
J.D. Denis Pelletier J.A.”
“I agree.
Johanne Trudel J.A.”
Certified true translation
Erich Klein
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