Date: 20100519
Docket: A-90-10
Citation: 2010 FCA 128
Present: SHARLOW
J.A.
BETWEEN:
R. MAXINE COLLINS
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
The
appellant R. Maxine Collins is appealing a judgment of the Federal Court
granting the Crown’s motion to dismiss her action for damages on the basis that
her pleadings do not disclose a reasonable cause of action (2010 FC 254). The preparation
of the appeal for hearing has progressed to the point where the appeal book has
been filed. However, Ms. Collins wishes to supplement the appeal book by filing
a transcript of the proceedings in the Federal Court. She ordered and received a
copy of a transcript but she has concluded that in certain respects the copy
sent to her did not conform to the proceedings as she recalled them. She has
moved for an order extending the time for filing the transcripts, requiring the
court reporter to deliver to this Court a copy of the original recording of the
hearing “for safekeeping”, and for ancillary relief. She originally sought
“listening access” to the recording but has withdrawn that request for reasons
stated in her letter to the Court dated May 18, 2010. For the reasons that
follow, I have concluded that the motion must be dismissed except in relation
to the extension of time.
[2]
A motion
to dismiss an action for failure to disclose a reasonable cause of action is
based only on the pleadings. The Federal Court convened a hearing to consider
the arguments for and against the motion, but the hearing was not a trial and
no oral evidence was presented at the hearing. Although the hearing was
recorded, a transcript of that recording would disclose only the legal
submissions made by the parties and any discussion that might have occurred in
the course of the hearing. Generally, information about the parties’ oral
submissions or discussions between counsel and the judge at a hearing on a
motion is irrelevant on appeal because it cannot assist this Court in
determining whether the grounds of appeal are well founded.
[3]
However, there
is an exception to that general rule. If it is alleged on appeal that there was
a breach of procedural fairness in a hearing and that the transcript of the
legal submissions or discussions at the hearing provides evidence of that
breach, the transcript may be relevant on appeal. In such a case, if there is also
a credible allegation that the transcript is incorrect in the sense that it
does not correctly represent what was said at the hearing, there may be a basis
for requiring the original recording to be produced. The purpose of such an
order would be to determine what was said at the hearing in relation to the
issues that must be decided on appeal.
[4]
Thus, the
motion of Ms. Collins for production of the recording may be granted if two
conditions are met. First, I must be satisfied that a correct representation of
what was said at the hearing is necessary to support the validity of a ground
of appeal. Second, I must be satisfied that the transcript provided to Ms.
Collins does not correctly represent what was said at the hearing in relation
to that ground of appeal.
[5]
The notice
of appeal states the following grounds of appeal:
a. Failing to
comply with the common law rules of procedural fairness in accepting the
Defendant’s Amended Amended Motion to Strike with content which was in direct
violation of a court order restricting the amendments.
b.
Failing
to comply with the principle of public accessibility as reaffirmed in Rule
29(1)(2) of the Federal Courts Rules in prohibiting the Plaintiff from
making oral arguments on procedural fairness with respect to the Defendant’s
Amended Amended Motion to Strike.
c.
Issuing
a decision in which the omissions and misstatements are of sufficient
significance to constitute censorship in the public reporting of the hearing.
d.
Issuing
a decision including a statement of fact that was not part of the Plaintiff’s
submissions which, given the stage of the proceedings, constituted further
unauthorized disclosure by federal institutions of the Plaintiff’s personal
information.
e.
Failing
to comply with the common law rules of procedural fairness by advising counsel
for the Defendant of an argument with respect to jurisdiction and the
Plaintiff’s former status as an employee which argument was not included in the
Defendant’s motion to strike.
f.
Exhibiting
a reasonable apprehension of bias against the Plaintiff.
g.
Wrongly
construing the Plaintiff’s action as grounded upon breach of a statute rather
than the tort of negligence.
h.
Wrongly
construing the arguments of the Plaintiff requesting consideration of the
action as a novel negligence claim based solely on statute and being a
progression of: [1] unauthorized access as a criminal offence under subsection
239(2.2) of the Income Tax Act [ITA], [2] a general and planned policy of
failing to enforce a criminal offence provision enacted for the purpose of
deterrence of the criminal offences referenced in [1], and [3] the lack of
authority to create and implement the policy referenced in [2] such a policy
being a violation of the rule of law under the Charter.
i.
Finding
that there is no reasonable cause of action in the Plaintiff’s claim for a
Charter breach as the Plaintiff did not claim a breach of her Charter rights
instead claimed the undisputed existence of a federal government policy which
allegedly violates the Charter.
j.
Failing
to properly construe the decisions in R. v. Beaudry [2007] 1 S.C.R. 190
and Krieger v. Law Society of Alberta [2002] 3 S.C.R. 372 as dealing
with individual police officers exercising discretion in laying charges and the
exercise of prosecutorial discretion on a case by case basis rather than a
general and planned policy never to enforce a criminal offence provision
against a selected group of individuals.
k.
Finding
the decision in Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205
as establishing discretion regarding enforcement proceedings is entirely
unfettered and failing to give weight and significance to the Plaintiff’s
submissions regarding a breach of the rule of law in relation to the
applicability of the second part of the Ann’s test.
l.
Wrongly
construing the Plaintiff’s claim of misfeasance in public office as related to
a failure to lay charges and prosecute offences as the Plaintiff could not and
did not name the individuals responsible for the policy not to enforce
subsection 239(2.2) of the ITA.
m.
In
light of the above grounds for appeal, the Plaintiff seeks leave to include the
identify [sic] additional CRA employees which names are included in the
documents referenced in paragraphs 50 and 74 of the Amended Statement of Claim.
These documents had been filed with the Federal Court at the time of the
hearing pending the commencement of current judicial review proceedings against
the CRA and the Royal Canadian Mounted Police.
n.
Failing
to give consideration to the Plaintiff’s claim of misfeasance in public office
with respect to the unauthorized access to the Plaintiff’s personal income tax
information by employees of the CRA.
o.
Finding
that the Plaintiff did not plead any material facts with respect to the
misfeasance in public office by employees of the CRA.
p.
Failing
to give weight and consideration to the submissions of the Plaintiff with
respect to the private law duty of care established under the provisions of
both the Privacy Act and the ITA.
q.
Failing
to give weight and consideration to the fact that the Defendant does not
dispute a private law duty of care with respect to the statutory duty to protect
the personal information of the Plaintiff and Canadian taxpayers in general.
r.
Finding
as grounds to strike, without leave to amend, the Plaintiff’s statement of claim
due to the Plaintiff’s failure to seek judicial review in respect of certain federal
entities particularly in light of the challenge to the validity of the decision
in Grenier v. Canada, [2006] 2 F.C.R. 287 (C.A.). The Supreme Court has
reserved decision on this challenge as contained in Attorney General of
Canada v. Telezone Inc.
[6]
Ms.
Collins specifies only one error in the transcript she received. She says that
the transcript does not record a comment by the judge to the effect that she
had read the transcript of Justice Campbell’s decision. That is apparently a
reference to the transcript of an earlier Federal Court hearing in which
Justice Campbell had granted the appellant leave to amend her statement of
claim so that it would reflect a claim made on her own behalf only, rather than
a class action. I am unable to see how that error could possibly be relevant to
any of the grounds of appeal listed above. Indeed, Ms. Collins has not
suggested otherwise.
[7]
I
appreciate that Ms. Collins became concerned about the integrity of the
transcript because it apparently was not sent to her by the company that was
responsible for recording the proceedings or preparing the transcript, but from
another company. I appreciate also that Ms. Collins has expressed her unwillingness
to provide further details of noted discrepancies because she has been advised
that the tape is digital and easily altered. However, those concerns cannot establish
that the transcript has any errors. More importantly, they cannot establish
that the transcript is or may be relevant to any of the issues on appeal.
[8]
Ms.
Collins has not explained why she considers the transcript to be necessary to
her appeal. In the absence of any explanation from her, I have attempted to
discern from the grounds of appeal, as quoted above, whether or not the
transcript may be helpful to this Court in determining the issues she has
raised in her notice of appeal.
[9]
It appears
to me that the grounds of appeal set out in items 7 to 18 disclose a number of disputes
on points of law. Those issues, if pursued at the hearing of this appeal, are
capable of being resolved without reference to anything that may have been said
at the hearing in the Federal Court. Therefore, there is no basis for
concluding that the transcript is required to deal with those grounds of
appeal.
[10]
The third
and fourth grounds of appeal appear to allege factual and other errors in the
judge’s reasons for judgment. In the context of a motion to dismiss an action
for failure to state a reasonable cause of action, such allegations normally
are resolved by reference to the reasons, considered against the documentary
record. Again, I have no basis for concluding that anything said at the hearing
in the Federal Court would have any bearing on those two grounds of appeal.
[11]
The first,
second, fifth and sixth grounds of appeal purport to raise issues of procedural
fairness. I will deal with each of those grounds in turn.
[12]
Ms.
Collins’ first ground of appeal is that the judge failed “to comply with the
common law rules of procedural fairness in accepting the Defendant’s Amended
Amended Motion to Strike with content which was in direct violation of a court
order restricting the amendments.” This ground of appeal normally would be
addressed by referring to the order that is alleged to restrict the Crown’s
right to amend its motion to strike, and the documents establishing what
amendments were actually made. I see no basis for concluding that the
transcript would be relevant to this ground of appeal.
[13]
Ms.
Collins’ second ground of appeal is that the judge failed “to comply with the
principle of public accessibility as reaffirmed in Rule 29(1)(2) of the Federal
Courts Rules in prohibiting the Plaintiff from making oral arguments on
procedural fairness with respect to the Defendant’s Amended Amended Motion to
Strike.” Even if the judge said something that might have prevented Ms. Collins
from making a legal argument on a particular point, it is not clear to me how
anything that might have been said in the course of the Federal Court
proceedings would preclude Ms. Collins from making that same legal argument in
this appeal, if the point was fairly raised by the Crown’s motion or Ms.
Collins’ response to it. I cannot see how the transcript would be of assistance
to the Court in dealing with this ground of appeal.
[14]
Ms.
Collins’ fifth ground of appeal is that the judge failed to “comply with the
common law rules of procedural fairness by advising counsel for the Defendant
of an argument with respect to jurisdiction and the Plaintiff’s former status
as an employee which argument was not included in the Defendant’s motion to
strike.” If Ms. Collins wishes to submit on appeal that the judge considered a
legal argument of which she was not given fair notice or a fair opportunity to
respond, she is free to do so and to support her submission by referring to the
portion of the judge’s reasons in which that issue was considered, and then
referring to the Amended Amended Notice of Motion and the written
representations of the Crown to establish that the argument does not appear. I
cannot see how the transcript of the proceedings would be helpful on this point.
[15]
Ms.
Collins’ sixth ground of appeal is that the judge exhibited “a reasonable
apprehension of bias” against her. The notice of appeal does not state any
particulars or explain the basis upon which Ms. Collins formed the view that this
was a valid ground of appeal, and so there is no basis upon which I can
conclude that the transcript would provide evidence that might be relevant to
this issue.
[16]
I am not
satisfied that the transcript of the hearing in the Federal Court would be of
assistance to the Court in resolving any of the grounds of appeal. It follows
that there is no justification for an order compelling production of the
original recording.
[17]
This
motion will be granted insofar as it will give Ms. Collins additional time to
take the next steps required to have this appeal made ready for a hearing, but
it will otherwise be dismissed. As the Crown has made no submissions, no costs
will be awarded on this motion.
“K.
Sharlow”
Email this Content