Date: 20091006
Docket: A-209-08
Citation: 2009 FCA 286
CORAM: SEXTON J.A.
SHARLOW J.A.
RYER J.A.
BETWEEN:
JOHN FREDERICK CARTEN and
KAREN AUDREY GIBBS
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA,
JEAN CHRÉTIEN, EDDIE GOLDENBERG, SERGIO
MARCHI,
LLOYD AXWORTHY, PIERRE PETTIGREW, JOHN
MANLEY,
BILL GRAHAM, JIM PETERSON, PAUL MARTIN,
DAVID EMERSON,
TIM MURPHY, HER MAJESTY THE QUEEN IN
RIGHT OF BRITISH
COLUMBIA,
MICHAEL HARCOURT, GLEN CLARK, UJJAL
DOSANJH,
GORDON CAMPBELL, ATTORNEY GENERAL FOR CANADA,
ALLAN ROCK, ANNE McLELLAN, MARTIN
CAUCHON, IRWIN COTLER,
ATTORNEY GENERAL FOR BRITISH COLUMBIA,
COLIN GABLEMAN, GEOFF PLANT, WALLY OPPAL,
CANADIAN JUDICIAL COUNCIL, JEANNIE
THOMAS, NORMAN SABOURIN, ANTONIO LAMER, DECEASED, BEVERLEY McLACHLIN,
ALLAN McEACHERN, DECEASED, PATRICK DOHM,
DONALD BRENNER,
BRYAN WILLIAMS, JEFFERY OLIPHANT, JOHN
MORDEN, JOSEPH DAIGLE,
THEMIS PROGRAM MANAGEMENT AND CONSULTING
LTD.,
THE LAW SOCIETY OF BRITISH COLUMBIA, THE
LAW SOCIETY OF ALBERTA,
DAVID VICKERS, ROBERT EDWARDS, DECEASED,
JOHN BOUCK,
JAMES SHABBITS, HOWARD SKIPP, CRYIL ROSS
LANDER, RALPH HUTCHINSON, MICHAEL HALFYARD, HARRY BOYLE, SID CLARK, ALLAN
GOULD,
ROBERT METZGER, BRIAN KLAVER, JOHN MAJOR,
JOHN HORN,
BARBARA ROMAINE, ADELE KENT, SAL
LOVECCHIO, DONALD WILKINS,
ROY VICTOR DEYELL, TIMOTHY LEADEM,
WILLIAM PEARCE,
LISA SHENDROFF, ANN WILSON, RICHARD
MEYERS, GILLIAN WALLACE, MAUREEN MALONEY, BRENDA EDWARDS, STEPHEN OWEN,
DON CHIASSON, CRAIG JONES, JAMES
MATTISON,
McCARTHY TETRAULT LLP, HERMAN VAN OMMEN,
STEVE KLINE, LANG MICHENER LLP,
THE CORPORATION OF THE CITY OF VICTORIA,
JOHN DOE and JANE DOE
Respondents
Heard at Vancouver, British Columbia, on September 28, 2009.
Judgment delivered at Ottawa, Ontario,
on October 6, 2009.
REASONS FOR JUDGMENT BY: THE
COURT
Date: 20091006
Docket: A-209-08
Citation: 2009 FCA 286
CORAM: SEXTON
J.A.
SHARLOW
J.A.
RYER
J.A.
BETWEEN:
JOHN FREDERICK CARTEN and
KAREN AUDREY GIBBS
Appellants
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
JEAN CHRÉTIEN, EDDIE GOLDENBERG, SERGIO
MARCHI,
LLOYD AXWORTHY, PIERRE PETTIGREW, JOHN
MANLEY,
BILL GRAHAM, JIM PETERSON, PAUL MARTIN,
DAVID EMERSON,
TIM MURPHY, HER MAJESTY THE QUEEN IN
RIGHT OF BRITISH
COLUMBIA,
MICHAEL HARCOURT, GLEN CLARK, UJJAL
DOSANJH,
GORDON CAMPBELL, ATTORNEY GENERAL FOR
CANADA,
ALLAN ROCK, ANNE McLELLAN, MARTIN
CAUCHON, IRWIN COTLER,
ATTORNEY GENERAL FOR BRITISH COLUMBIA,
COLIN GABLEMAN, GEOFF PLANT, WALLY OPPAL,
CANADIAN JUDICIAL COUNCIL, JEANNIE
THOMAS, NORMAN SABOURIN, ANTONIO LAMER, DECEASED, BEVERLEY McLACHLIN,
ALLAN McEACHERN, DECEASED, PATRICK DOHM,
DONALD BRENNER,
BRYAN WILLIAMS, JEFFERY OLIPHANT, JOHN
MORDEN, JOSEPH DAIGLE,
THEMIS PROGRAM MANAGEMENT AND CONSULTING
LTD.,
THE LAW SOCIETY OF BRITISH COLUMBIA, THE LAW SOCIETY OF ALBERTA,
DAVID VICKERS, ROBERT EDWARDS, DECEASED,
JOHN BOUCK,
JAMES SHABBITS, HOWARD SKIPP, CRYIL ROSS
LANDER, RALPH HUTCHINSON, MICHAEL HALFYARD, HARRY BOYLE, SID CLARK, ALLAN
GOULD,
ROBERT METZGER, BRIAN KLAVER, JOHN MAJOR,
JOHN HORN,
BARBARA ROMAINE, ADELE KENT, SAL
LOVECCHIO, DONALD WILKINS,
ROY VICTOR DEYELL, TIMOTHY LEADEM,
WILLIAM PEARCE,
LISA SHENDROFF, ANN WILSON, RICHARD
MEYERS, GILLIAN WALLACE, MAUREEN MALONEY, BRENDA EDWARDS, STEPHEN OWEN,
DON CHIASSON, CRAIG JONES, JAMES MATTISON,
McCARTHY TETRAULT LLP, HERMAN VAN OMMEN,
STEVE KLINE, LANG MICHENER LLP,
THE CORPORATION OF THE CITY OF VICTORIA,
JOHN DOE and JANE DOE
Respondents
REASONS FOR JUDGMENT BY THE
COURT
[1]
The
appellants have commenced an action in the Federal Court (T-95-08) seeking
damages and other relief on the basis of their allegations of government and
judicial corruption. In this interlocutory appeal, they challenge an order by
Chief Justice Lutfy dated April 28, 2008 designating a prothonotary as case
management judge rather than a Federal Court judge.
[2]
The
designation of a case management judge is a discretionary decision which
normally is entitled to deference on appeal. The appellants argue that the
order of Chief Justice Lutfy should be set aside because he failed to give
reasons, and because the appointment of a prothonotary as case management judge
in this case is unreasonable.
[3]
The
absence of written reasons for a discretionary order is not, by itself, a basis
for setting the order aside on appeal. A discretionary order made without
written reasons will stand if the record provides a basis for the exercise of
discretion consistently with the applicable legal principles and the
requirements of justice: Abbott Laboratories v. Canada (Minister of Health), 2007 FCA 140, at paragraphs
55-56).
[4]
It is
undisputed that a prothonotary has the statutory authority to act as a case
management judge in any case in the Federal Court. However, the appellants argue
that a prothonotary should not have been designated case management judge in
this case because the allegations underlying the applicants’ action are so serious
and politically sensitive that the government will be motivated to act
improperly in ensuring that the allegations are not fairly tried. The
appellants argue that a prothonotary will be more vulnerable than a judge to
governmental pressure to decide critical issues against the appellants because
prothonotaries do not have the same security of tenure as Federal Court judges.
[5]
Having
carefully reviewed the record and the submission of the appellants, we do not
accept that only a judge has sufficient security of tenure to deal impartially
with the case management of the appellants’ action. We conclude that Chief
Justice Lutfy made no error in designating a prothonotary as case management
judge in this case.
[6]
The appellants
have also argued that the unreasonableness of the decision of Chief Justice
Lutfy has been demonstrated by subsequent events, in that the prothonotary has
delayed dealing with a number of important motions, including a motion by the
appellants for summary judgment against the respondent Themis Program
Management and Consulting Ltd. In our view, it was reasonable for the prothonotary
to defer dealing with these motions until after the disposition of this appeal.
[7]
We
conclude that Chief Justice Lutfy made no error warranting the intervention of
this Court when he designated a prothonotary as case management judge. For that
reason, this appeal will be dismissed.
[8]
The
respondents who appeared in this appeal are Her Majesty the Queen in Right of
Canada, Her Majesty the Queen in Right of British Columbia (on behalf of all
provincial Crown respondents), and Themis Program Management and Consulting
Ltd. All three respondents who appeared have asked for costs. In this Court,
costs are normally awarded to the successful party or parties. In this case,
however, the only substantive submissions were made by Her Majesty the Queen in
Right of Canada. The other respondents simply adopted those submissions. In
these circumstances an award of only one set of costs is justified, to be
allocated among the respondents as they may agree. Failing agreement, the
respondents may apply to this Court for an allocation.
“J.
Edgar Sexton”
“K.
Sharlow”
“C. Michael
Ryer”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-209-08
(APPEAL FROM
THE ORDER OF THE CHIEF JUSTICE OF FEDERAL COURT DATED APRIL 28, 2008, IN COURT
FILE NO. T-95-08)
STYLE OF CAUSE: John
Frederick Carten and Karen Audrey Gibbs v. Her Majesty the Queen in Right of
Canada et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: September 28, 2009
REASONS FOR JUDGMENT BY THE COURT SEXTON, SHARLOW, RYER JJ.A.
DATED: October 6, 2009
APPEARANCES:
|
John Frederick
Carten, B.A., L.L.B.
Karen Audrey Gibbs
|
THE APPELLANTS on their own behalf
|
|
Mélanie
Chartier
|
FOR THE RESPONDENTS, Her Majesty the
Queen in Right of Canada and
the Attorney General of Canada
|
|
Rolf Warburton
|
FOR THE RESPONDENTS, Her Majesty the
Queen in Right of the Province of British Columbia
|
|
Laura M Cundari
|
FOR THE RESPONDENT, Themis Program
Management and Consulting Ltd.
|
SOLICITORS
OF RECORD:
|
John H Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENTS, Her Majesty the Queen
in Right of Canada and the
Attorney General of Canada
|
|
Ministry of Attorney General, British Columbia
Victoria, British Columbia
|
FOR THE RESPONDENTS, Her Majesty the
Queen in Right of the Province of British Columbia and Attorney General for British Columbia
|
|
Blake, Cassels & Graydon LLP
Vancouver, British Columbia
|
FOR THE RESPONDENT, Themis Program
Management and Consulting Ltd.
|
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