Gagliano v. Canada (Attorney General), 2006 FCA 86

Docket: A-233-05

Citation: 2006 FCA 86

CORAM:        DÉCARY J.A.

                        NOËL J.A.

                        PELLETIER J.A.

BETWEEN:

THE HONOURABLE ALFONSO GAGLIANO

Appellant

and

THE ATTORNEY GENERAL OF CANADA,

THE HOUSE OF COMMONS,

CHARLES GUITÉ,

and

THE COMMISSION OF INQUIRY INTO THE

SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES

Respondents

Hearing held at Montréal, Quebec, on February 27, 2006.

Judgment delivered at Montréal, Quebec, on February 27, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                             DÉCARY J.A.

Date: 20060227

Docket: A-233-05

Citation: 2006 FCA 86

CORAM:        DÉCARY J.A.

                        NOËL J.A.

                        PELLETIER J.A.

BETWEEN:

THE HONOURABLE ALFONSO GAGLIANO

Appellant

and

THE ATTORNEY GENERAL OF CANADA,

THE HOUSE OF COMMONS,

CHARLES GUITÉ,

and

THE COMMISSION OF INQUIRY INTO THE

SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the bench at Montréal, Quebec, on February 27, 2006)

DÉCARY J.A.:

[1]                This is an appeal of an interlocutory decision of Madam Justice Tremblay-Lamer ([2005] 3 F.C.R. 555) rendered during the Commission of Inquiry into the Sponsorship Program and Advertising Activities (the Commission).

[2]                The application for judicial review that gave rise to this appeal concerns allowing counsel for the appellant to cross-examine Mr. Guité on the basis of testimony before the Public Accounts Committee of the House of Commons. This application has been rendered moot since the publication of the Commission's report.

[3]                Nevertheless, the appellant invites the Court to hear the matter and transform what gave rise to the application for review into an application for declaratory relief. The appellant requests that the Court make a determination on the following question: does the use of transcripts of the testimony of Mr. Guité before the Public Accounts Committee during his cross-examination before the Commission of Inquiry infringe Parliamentary privilege?

[4]                The Attorney General of Canada adopts the view of the appellant. In his opinion, the issue is important because two applications for judicial review that raise the same issue are currently pending before the Federal Court. Moreover, since the decision of this Court will be binding on the Judge hearing the aforementioned applications, time and judicial resources would be saved if the Court granted declatory relief. Counsel for the House of Commons and for Mr. Guité defer to the discretion of the Court.

[5]                Generally, a court of appeal will agree to hear an appeal of an issue that has become moot if there is little to no possiblity that the question of law at issue will reach the appeal level in a similar case in due course. Here, two cases are pending before the Federal Court, and it is open to the parties to make their argument again, with new light shed on the issue by the recent judgment of the Supreme Court of Canada in 2005 SCC 30">Canada (House of Commons) v. Vaid, 2005 SCC 30. A wiser course of action would be to allow the debate on this issue to continue in a concrete setting.

[6]                In addition, the possibility that this decision may be appealed to the Supreme Court of Canada favours a dismissal of the appellant's invitation. Such an appeal would, in fact, result in lengthy delays in the hearings of the pending applications for judicial review, and these delays would be inimical to the administration of justice.

[7]                Finally, the appellant did not exercise due diligence. Had he done so, this Court could have easily heard this appeal in due course.

[8]                The appeal will be dismissed without costs as it has become moot.

"Robert Décary"

Certified true translation

Gwen May     

                                                            
FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                                                               A-233-05

APPEAL OF AN ORDER OF THE FEDERAL COURT DATED APRIL 27, 2005, DOCKET T-2250-04.

STYLE OF CAUSE:

THE HONOURABLE ALFONSO GAGLIANO

Appellant

and

THE ATTORNEY GENERAL OF CANADA,

THE HOUSE OF COMMONS,

CHARLES GUITÉ,

and

THE COMMISSION OF INQUIRY INTO THE

SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES

PLACE OF HEARING:                                                         Montréal, Quebec

DATE OF HEARING:                                                           February 27, 2006

REASONS FOR JUDGMENT OF THE COURT BY:        DÉCARY J.A.

CONCURRED IN BY:                                                          NOËL J.A.

                                                                                                PELLETIER J.A.

APPEARENCES:

SOLICITORS OF RECORD: