Docket: A-498-15
Citation:
2016 FCA 226
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CORAM:
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STRATAS J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
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BETWEEN:
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SAHAR JAFFAL
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Appellant
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and
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PAUL DAVIDSON
and UNIVERSITIES CANADA
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Respondents
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REASONS
FOR JUDGMENT
STRATAS J.A.
[1]
In this appeal, the appellant asks this Court to
set aside the Federal Court’s order dated October 19, 2015 (per Roussel
J.).
[2]
The Federal Court ordered that the appellant’s application
for judicial review be struck out. It made its order in response to an
interlocutory motion brought by the respondents. Its jurisdiction to strike out
an application for judicial review on an interlocutory basis is founded upon its
plenary powers to regulate fundamental aspects of its practices and procedures:
see David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995]
1 F.C. 588, 58 C.P.R. (3d) 209, as later explained and expounded upon in Canada
(National Revenue) v. J.P. Morgan Asset Management (Canada) Inc., 2013 FCA
250, [2014] 2 F.C.R. 557.
[3]
In striking out the application for judicial
review, the Federal Court found, among other things, that there was no
reviewable “decision” within the meaning of the Federal
Courts Act, R.S.C. 1985, c. F-7 affecting the appellant’s legal or
practical interests (see, e.g., Air Canada v. Toronto Port Authority,
2011 FCA 347, [2013] 3 F.C.R. 605), the remedies sought in this particular
application were not within the power of the Court to grant, and it was plain
and obvious that the application could not succeed.
[4]
I substantially agree with the analysis of the
Federal Court on these points. Accordingly, I conclude that there is no ground
to interfere with the order of the Federal Court.
[5]
For completeness, I note that the Federal Court
also found that the respondent Universities Canada was not a “federal board, commission or other tribunal” within
the meaning of section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7.
I agree with this insofar as the acts of Universities Canada impugned by the
appellant in this particular case were not performed by or under an Act of
Parliament or under an order of the prerogative. The Federal Court’s holding
should not be taken as a blanket statement that Universities Canada can never
be a “federal board, commission or other tribunal.”
[6]
The appellant alleges bias on the part of the
Federal Court. There is nothing in the record capable of supporting this
allegation.
[7]
The respondents seek enhanced costs calculated
in accordance with column V of Tariff B of the Federal Courts Rules,
SOR/98-106, as amended. Enhanced costs are sometimes awarded when a party alleges
judicial bias with no evidence in support. Indeed,
alleging bias is “a serious step that should not be undertaken lightly”: R. v. S. (R.D.), [1997] 3 S.C.R.
484, 151 D.L.R. (4th) 193 at para. 113. But in these particular circumstances, I
am not persuaded that the appellant’s conduct warrants the sanction of enhanced
costs. Therefore, I would award the respondents costs on the usual scale
(column III).
[8]
Before concluding, I wish to address one
irregularity. An order of the Chief Justice dated June 30, 2016 set the time,
location and duration of the appeal hearing and this was sent to the appellant.
But the appellant did not attend the hearing. The Court waited for one-half
hour after the scheduled start of the hearing in case the appellant was late.
The Court then opened the hearing and asked the usher to verify that the
appellant was not waiting outside the courtroom. The usher reported that the
appellant was indeed nowhere to be found. The Court then informed the
respondents that it was inclined to decide the appeal solely on the basis of
the written materials filed by the parties, with one small exception. The
exception is that the Court invited the respondents to make submissions concerning
the request in their memorandum of fact and law for enhanced costs. Following
very brief submissions by the respondents on that one issue, the Court
announced it would be reserving its judgment.
[9]
The Court wishes to inform the parties that in
deciding this appeal, the Court considered most carefully the submissions made
in their memoranda of fact and law, the evidence in the appeal book, and the authorities
they submitted to the Court.
[10]
For the foregoing reasons, I would dismiss the
appeal with costs.
“David Stratas”
“I agree
Richard Boivin J.A.”
“I agree
Yves de Montigny J.A.”
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