Date: 20060921
Docket: A-646-05
Citation: 2006 FCA 305
CORAM: DÉCARY
J.A.
LÉTOURNEAU
J.A.
NADON
J.A.
BETWEEN:
TELEFILM CANADA
(ATTORNEY
GENERAL OF CANADA)
Appellant
and
FESTIVAL CANADIEN DES FILMS DU MONDE
and
ÉQUIPE SPECTRA INC.
and
REGROUPEMENT POUR LE FESTIVAL
DE CINÉMA DE
MONTRÉAL
Respondents
REASONS FOR JUDGMENT OF THE
COURT
[1]
This appeal raises
procedural issues which were first addressed by Prothonotary Morneau on
April 5 and 19, 2005, then by Mr. Justice de Montigny, of the
Federal Court, on December 21, 2005 (2005 FC 1730). The backdrop of this
litigation is Telefilm Canada’s decision, announced on September 7,
2004, to end the grant that the agency had for several years given to the
Festival des Films du Monde (FFM) and to proceed with a call for proposals with
a view to funding a broadly inclusive film event in Montréal in 2005. On
December 17, 2004, Telefilm Canada accepted the proposal of the
Regroupement pour le Festival de Cinéma à Montréal, the implementation of which
would be assured by Équipe Spectra Inc. (hereinafter Regroupement and Spectra).
FFM did not submit a proposal, convinced that the dice had been loaded against
it beforehand.
[2]
On December 10, 2004,
FFM filed in the Superior Court of Quebec a motion to institute proceedings for
declaratory judgment and permanent injunction, in which FFM asked the Superior
Court to declare unlawful the call for proposals of September 7, 2004, and
sought exemplary and moral damages in the amount of $2,500,000.
[3]
On January 6, 2005,
Telefilm Canada served in Superior Court a motion for
declinatory exception on the grounds that that Court did not have jurisdiction
to rule on the lawfulness of the call for proposals.
[4]
On January 14, 2005,
FFM filed in Federal Court a notice of application for judicial review against
the decisions of Telefilm Canada dated September 7, 2004, and December
17, 2004.
[5]
Two months later, on
March 10, 2005, Telefilm Canada filed a motion to strike the application for
judicial review on the grounds that it disclosed no reasonable cause of action
(section 221 of the Federal Courts Rules), that it was challenging
not one but two decisions, contrary to section 302, and that the Attorney
General of Canada, rather than Telefilm Canada, should be named as respondent
based on section 303 of the Rules. There was no allegation in Telefilm Canada’s motion regarding FFM’s delay in challenging the decision
dated September 7, 2004.
[6]
On March 23, 2005,
FFM filed a motion to amend the designation of the parties in the notice of
application, to replace Telefilm Canada by the Attorney General of Canada and to
add Regroupement and Spectra as respondents.
[7]
On April 5, 2005,
Prothonotary Morneau dismissed the motion to strike filed by Telefilm Canada insofar as it contemplated the decision of December 17, 2004.
With regard to the decision of September 7, it appears that he took the
initiative to suspend the proceeding so that FFM could apply to a Federal Court
judge for an extension of the 30-day time limit for challenging the decision.
[8]
On April 19, 2005,
Prothonotary Morneau granted in part the motion to amend the notice of
application, striking Telefilm Canada from the style of cause and keeping
Regroupement and Spectra as the sole respondents.
[9]
On July
12, 2005, FFM filed a motion for extension of time to challenge the decision
dated September 7, 2004, and to join in one proceeding the challenges against
both of Telefilm Canada’s decisions.
[10]
Faced with
this procedural imbroglio, the details of which I thought unnecessary to
restate in their entirety, Mr. Justice de Montigny, on December 21, 2005,
granted FFM’s motion for extension of time, dismissed Telefilm Canada’s motion
to strike, gave leave to include both challenged decisions in a single
application for judicial review and reinstated the Attorney General of Canada
as a respondent, with Regroupement and Spectra. He awarded costs to FFM.
[11]
This appeal bears on
all of the judge’s determinations, with the exception of those allowing the
joinder of the proceedings.
The extension of time
[12]
Here there is interlocutory
procedure and considerable judicial discretion exercised by the judge.
[13]
FFM’s motion for
extension of time was indeed filed several months after the time limit and
worse still, several months after Prothonotary Morneau gave FFM leave to file
one. However, even in March 2005, in the multi-faceted motion that it
submitted to the Court, Telefilm Canada did not make any allegation about the
delay. The situation is certainly distinctive. Many events occurred, a
considerable number of proceedings – not all of them very useful – were filed
in a relatively short period of time. I do not know whether I would have made
the same determination as the Federal Court judge, but I cannot substitute my
opinion for his, unless,
in the words of Chief Justice Isaac in VISX, Inc. v. Nidek Co., (1996),
209 N.R. 342 (F.C.A.) at paragraph 10, “it is demonstrated to the satisfaction
of the Court that the Motions Judge either erred in his or her appreciation of
the pleadings or if he or she erred in law in making the order, either by
misapplying a principle of law or by applying an erroneous principle.” Telefilm Canada
did not persuade me that this was the case.
The motion to strike
[14]
Mr.
Justice de Montigny, pointing out from the outset how the Court was reticent to
strike an application for judicial review before a hearing on the merits,
stated that in his opinion the application was so clearly unfounded that it had
no chance of success. Presuming the allegations in the notice of application to
be true, the judge could easily have made this finding.
[15]
The same
can be said regarding Telefilm Canada’s argument to the effect that
FFM did not have sufficient interest to challenge the decisions of September 7,
2004 and December 17, 2004. At the stage of the motion to strike, and particularly
when an application for judicial review is involved, the lack of interest must
be clear. The lack of interest is certainly not clear with regard to the
decision of September 7, 2004. The
existence of an interest with regard to the decision dated December 17, 2004,
is more problematic, given that FFM did not see fit to file a proposal. As it
is possible that the outcome of the first decision could influence the outcome
of the second, it would be best to let the entire debate follow its course.
[16]
It goes without
saying that the judge hearing the matter on the merits may reassess, if need
be, the existence of a cause of action and an interest.
The status of the Attorney
General of Canada
[17]
With
regard to the decision of September 7, 2004, the decision to proceed with a
call for proposals, it appears obvious to me that the Attorney General of
Canada is an appropriate respondent. Who
better than the Attorney General to defend the correctness of Telefilm Canada’s decision, not knowing that proposals would be made?
[18]
With regard to the
decision dated December 17, 2004, it is possible that Regroupement and Spectra,
whose proposals were accepted, are the most appropriate parties to defend the
correctness of Telefilm Canada’s decision. Given the limited interest they
have demonstrated at this stage, the decision to make the Attorney General of Canada a
respondent appears to me to serve the interests of justice.
[19]
In any
event, even if it is possible that Regroupement and Spectra are not the
appropriate respondents with regard to the first decision and that Attorney
General of Canada is not an appropriate one with regard to the second, the two
challenges were joined in a single proceeding and to accept Telefilm Canada’s proposal would only lead to
pointless arguments.
The costs in Federal Court
[20]
Telefilm Canada alleges that Mr. Justice Montigny should not have awarded
costs to FFM, on the grounds that, if I understand correctly, several issues
arose because of FFM’s procedural blunders.
[21]
It is true
that, procedurally, FFM was the author of part of its own misfortunes. However,
the fact is that substantively – on the striking out and the extension of time
– FFM was successful.
Has this appeal become moot?
[22]
A few days
before the hearing on the appeal, the representative of the Attorney General of
Canada invited the Court to dismiss the appeal on the grounds that [translation] “this appeal
. . . has now become moot”
since the organization (the Festival International du Film de Montréal) that in
2005 received the grant that had until then been awarded to FFM had already
spent the grant and had ceased its activities in 2006, and since Telefilm
Canada had not launched other calls for proposals.
[23]
At the
hearing, counsel pointed out that she was not pleading the mootness of the
appeal as much as the mootness of the actual application for judicial review.
She is in effect asking the Court to decide, at the appeal stage of an
interlocutory order made in the context of an application for judicial review
which is still in its infancy because of the filing of a motion to strike (that
I found to be premature), that the application for judicial review must be
dismissed for being moot. This Court cannot at this stage, absent evidence of
the relevant facts, cut short the proceedings brought by FFM, even more so
because the debate initiated by FFM regarding Telefilm Canada’s civil liability is pending before the
Superior Court of Montréal.
The costs on appeal
[24]
FFM’s
counsel are seeking, in the event that this appeal is dismissed, exceptional
fees on the basis that, in their opinion, the appellant abused proceedings.
[25]
The respondent FFM,
as I pointed out earlier, is responsible for a good number of the procedural
problems raised by this dispute. The proceedings initiated by the appellant at least had the
effect of clarifying the situation. Counsel
are apparently at odds with one another; that is unfortunate and does not in
any way help in the management of this matter. But this does not justify
awarding costs on a basis other than the one recognized by the Federal
Courts Rules, namely that of the center column of Tariff B.
Conclusions
[26]
I would dismiss the
appeal, with costs established
in accordance with column III of Tariff B of the Rules.
“Robert
Décary”
“I
concur.
Gilles Létourneau J.A.”
“I
concur.
M. Nadon J.A.”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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