Docket:
A-481-15
Citation: 2016 FCA 79
Present: STRATAS J.A.
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BETWEEN:
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NADER PHILIPOS
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Appellant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER
STRATAS J.A.
[1]
The appellant moves for an
order allowing him to resurrect and continue an appeal that he had
discontinued. For the reasons that follow, I dismiss the motion.
A.
Background
[2]
The appellant was a ramp
agent at the Calgary International Airport. He held a transportation security clearance
that allowed him to enter restricted areas at the airport.
[3]
Upon learning of certain
facts, the Minister of Transport cancelled the appellant’s security clearance. The
appellant challenged the cancellation by way of judicial review in the Federal Court.
By judgment dated November 6, 2015, the Federal Court (per Fothergill
J.) dismissed the judicial review.
[4]
The appellant appealed the
Federal Court’s judgment to this Court by filing a notice of appeal. But soon
afterward he discontinued his appeal.
[5]
The appellant now wants to
resurrect his appeal and continue it in this Court. So he moves for leave to do
so.
[6]
The parties have cited to
the Court only one decision in the Federal Courts system setting out the
criteria governing this motion: Marleau v. Canada (Attorney General),
2001 FCT 1208. Marleau suggests (at para. 5) that a proceeding can be
resurrected if a “valid reason” is stated. It
says nothing more. Marleau is not binding upon this Court.
[7]
I have discovered two
decisions of this Court, cited below, that dismissed motions to resurrect
proceedings. In each, the motion was dismissed because the moving party’s proceeding
was destined to fail. Neither decision sets out the general principles governing
this sort of motion. In these reasons, I will develop some of the general
principles.
B.
Opening considerations
[8]
A party may discontinue all
or part of a proceeding in the Federal Courts, including an appeal to this
Court, by filing a notice of discontinuance: Federal Courts Rules,
SOR/98-106, Rule 165. This is a unilateral act. One does not need the consent
of opposing parties or leave from the Court to discontinue a proceeding, nor
does one have to explain it: Mayne Pharma (Canada) Inc. v. Pfizer Canada
Inc., 2007 FCA 1, 54 C.P.R. (4th) 353. Upon discontinuance, the court file
is closed.
[9]
The Rules do not expressly
provide for the resurrection and continuance of a proceeding after discontinuance
under Rule 165. However, discontinuance is different from dismissal in that
theoretically a party can resurrect and continue a discontinued proceeding or
start a new proceeding. By providing for discontinuance under Rule 165,
impliedly the Rules permit a party to pursue those options.
[10]
Here, the appellant has
brought a motion seeking to resurrect and continue his appeal. He was correct
to do so. When the appellant discontinued his appeal, the Court file was
closed. Leave must be sought from the Court to reopen its file. The Federal
Courts are armed with plenary powers that allow them to regulate the integrity of their own processes, including regulating
the opening and closing of their own files: Canada (Human Rights Commission)
v. Canadian Liberty Net, [1998] 1 S.C.R. 626, 157 D.L.R. (4th) 385 at paras. 35-38; Canada (National
Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014]
2 F.C.R. 557 at para. 92; Canada (National Revenue) v. RBC Life Insurance
Company, 2013 FCA 50, 443 N.R. 378 at paras. 35-36; Canada (National
Revenue) v. McNally, 2015 FCA 195 at paras. 8-9.
[11]
Given that the Federal
Courts Rules do not explicitly speak to the issue of granting leave to
resurrect and continue a discontinued proceeding, where can we find the governing
principles?
[12]
Rule 4—frequently called the
“gap rule”—provides that where the Federal Courts Rules
do not speak to a procedure, we can look by analogy to other
Rules. Here this is a fruitful avenue of inquiry.
Discontinuance of a proceeding is just one of five things that can happen to
proceedings under the Federal Courts Rules. By analogizing or comparing
discontinuance with these things, a spectrum emerges. This spectrum sheds light
on the principles that ought to govern the granting of leave to resurrect and
continue a discontinued proceeding.
C. Discontinuance and other things that can happen
to proceedings
[13]
Five things can happen to proceedings
once they are started:
•
Self-regulation. Parties can pursue the steps open to them within
the time permitted by the Federal Courts Rules to get their cases ready
for hearing. The parties have every expectation that their cases will proceed
through to determination.
•
Court regulation. At the behest of a party, the Court can schedule
steps within the proceedings or the proceedings themselves, expediting or slowing
them down: Rule 8. Proceedings can also be managed by the Court: Rules 383-384.
Despite the involvement of the Court through scheduling or management, the
parties still have every expectation that their cases will proceed through to
determination.
•
Suspension. Proceedings can be suspended through the
issuance of a stay under s. 50 of the Federal Courts Act, R.S.C. 1985,
c. F-7; Mylan Pharmaceuticals ULC v. AstraZeneca Canada, Inc., 2011 FCA
312, 426 N.R. 167. A stay expires according to the terms set by the Court. Unless
the stay is renewed or the proceeding is dismissed, the proceeding resumes after
the expiration of a stay. While a stay is in place, the proceeding still subsists
and so the parties must have every expectation that their cases will proceed
through to determination.
•
Discontinuance. This is more than suspension. Discontinuance
terminates the proceeding and closes the court file. After the unilateral filing
of a notice of discontinuance under Rule 165, parties need not take any further
steps. Discontinuance is not a determination on the merits, so it does not trigger
the bar against relitigation expressed by the doctrine of res judicata.
Theoretically, a party may start a new proceeding concerning the same subject
matter: Audet v. Canada, 2002 FCA 130, 289 N.R. 382; The “Kronprinz”
(1887), 12 A.C. 256, 56 L.T. 345 (H.L.). And theoretically a party can
resurrect and continue a discontinued proceeding, as the appellant seeks to do
here. But unlike a stay, the unilateral filing of a notice of discontinuance
tells everyone they can regard the proceeding as over.
•
Determination. The Court may determine proceedings in certain
interlocutory motions or upon hearing the merits of the application, action or
appeal, as the case may be. The matter is then final, subject to an appeal to a
higher court and subject to a brief, limited jurisdiction of the Court to fix
slips or errors (Rule 397) or set aside or vary the order or judgment where
there are markedly changed circumstances (Rule 398 and see, e.g., Del
Zotto v. Canada (M.N.R.), [1996] 2 C.T.C 22, 195 N.R. 74 at paragraph 12
(F.C.A.)). A determination may also be set aside where there is a
fundamental failure of natural justice or fraud (Rule 399). Following
determination, the proceeding is over and the court file is closed. After the
time for bringing any appeals has expired, later proceedings concerning the
same subject matter will be struck according to the doctrine of res judicata.
[14]
This spectrum shows that
there is very little difference between discontinuance and determination. Both
discontinuance and determination are terminations meant to be final. Both close
the court file. Both engender expectations of finality.
[15]
One difference, mentioned
above, is the theoretical possibility that after discontinuance a new proceeding
can be brought concerning the subject-matter of the discontinued proceeding.
But that is not so realistic a possibility. An attempt to start a new
proceeding may be met with, for example, a motion to strike based on the
expiration of a statutory limitation period or an abuse of process (see, e.g.,
Lifeview Emergency Services Ltd. v. Alberta Ambulance Operators’ Association
(1995), 101 F.T.R. 43 at para. 13), or the unavailability of an order granting
an extension of time when an extension is needed, as in the case of
applications for judicial review.
[16]
These considerations
underscore the point that discontinuances are not suspensions but rather
terminations with consequences. This tells us much about the criteria that must
be applied when a party seeks to resurrect and continue a discontinued
proceeding.
D. The
criteria for allowing a discontinued proceeding to be resurrected and continued
[17]
Finality matters. Discontinuance
is an economical procedure for terminating proceedings that are no longer in
dispute or worthy of prosecution. If expectations of finality engendered by discontinuance
are not enforced strictly and discontinuances can be easily reversed, there will
be no economy. Opposing parties will have no choice but to continue to incur
expenses, collect evidence and prepare arguments for hearing in case the
proceeding resumes one day. Discontinuance would become nothing more than a
form of suspending proceedings much akin to a stay.
[18]
Determinations are not
lightly reversed; the same should be so for discontinuances. Those who decide
to unilaterally discontinue decide not to suspend their proceeding but to terminate
it. They should be held to their decision. Only circumstances that strike at
the root of the decision to discontinue can allow a discontinued proceeding to
be resurrected and continued.
[19]
The case law of other
jurisdictions supports these observations and allows for the resurrection and
continuation of discontinued proceedings only in exceptional circumstances: see,
e.g., Daniele v. Johnson (1999), 45 O.R. (3d) 498, 123 O.A.C. 186
at para. 21 (Div. Ct.); Singh v. Street (1990), 84 Sask. R. 161, [1990]
5 W.W.R. 518 at para. 14 (C.A.); Yancey v. Neis, 1999 ABCA 272, 73 Alta.
L.R. (3d) 239 at para. 23. The British Columbia Court of Appeal, typical of
courts across Canada, has suggested that a discontinued proceeding can almost
never be resurrected:
Because
there should be an expectation of finality flowing from the filing of a notice
of discontinuance or abandonment, such a step is a serious matter from which,
in the absence of exceptional circumstances of a compelling nature, the court
will not relieve the appellant.
(Warford v. Zyweck,
2002 BCCA 221, 1 B.C.L.R. (4th) 41 at para. 3; see also Pacific Centre Ltd.
v. Micro Base Development Corp. (1990), 49 B.C.L.R. (2d) 218, 43 C.P.C.
(2d) 302 at para. 19 (C.A.).)
[20]
Only some fundamental event that
strikes at the root of the decision to discontinue can warrant the resurrection
and continuation of a discontinued proceeding. Examples include the procurement
of discontinuance by fraud, mental incapacity of the party at the time of
discontinuance, or repudiation of a settlement agreement that required a
proceeding to be discontinued.
[21]
Even where a fundamental
event of that sort has happened, we must be satisfied that the discontinued proceedings
sought to be resurrected have some reasonable prospect of success. There is
neither sense nor judicial economy in resurrecting a discontinued proceeding
destined to fail. Twice we have refused to allow a discontinued proceeding to
be resurrected because it did not have a reasonable prospect of success:
Teodorescu v. Canada, [1993] F.C.J. No. 1124, 47 A.C.W.S. (3d) 389 at para. 14 (C.A.); Ahmed v.
Canada (Minister of Employment & Immigration), 1990 CarswellNat 1242,
19 A.C.W.S. (3d) 910 at para. 2 (F.C.A.). This requirement is akin to our
insistence that a party seeking an extension of time to bring an appeal demonstrate
that it has some reasonable prospect of success: Canada (A.G.) v. Hennelly (1999),
244 N.R. 399, 167 F.T.R. 158 (C.A.).
[22]
Further, we must also
consider the prejudice that may result if a discontinued proceeding is
resurrected. For example, someone might have taken significant steps relying on
a discontinuance, such as carrying out obligations under a trial judgment after
the appeal from that judgment has been discontinued: Warford v. Zyweck,
2002 BCCA 221, 1 B.C.L.R. (4th) 41 at para. 7. Prejudice can also result from the
destruction of files, the cessation of evidence collection or the disappearance
of witnesses: Williams v. Personal Insurance Co. of Canada, 2004 NSSC
73, 222 N.S.R. (2d) 270 at paras. 15-20. In the case of applications for
judicial reviews and appeals therefrom, the public interest requires prompt
prosecution and determination: Canada (Attorney
General) v. Larkman, 2012 FCA 204, 433 N.R. 184 at
paras. 86-89; Federal Courts Act, above, s. 18.4.
The categories of prejudice are not closed: other types of prejudice may cause the
Court to exercise its discretion against allowing a party to resurrect a discontinued
proceeding.
[23]
I do not foreclose the possibility
that other considerations might foreclose resurrection of a discontinued
proceeding. The Federal Courts have a plenary power to manage their practices
and procedures, police the conduct of proceedings, and prevent abuses of their processes.
That power stands ready to be exercised judicially whenever called for.
E. Applying the criteria to this case
[24]
The appellant’s motion must
be dismissed. He discontinued his appeal of his own volition. Thus, he must
point to something that strikes at the root of his earlier decision to
discontinue. He has not done so. Instead, he seems to have had merely a change
of heart.
[25]
The appellant submits that
he discontinued his appeal without legal advice. The fact that he may have
acted by mistake without appreciating the consequences of discontinuance is insufficient
cause: Adam v. Insurance Corp. of British Columbia (1985), 66 B.C.L.R.
164, 2 C.P.C. (2d) 285 at paras. 24-26 (C.A.). The respondent was entitled to
rely upon the discontinuance and the expectations of finality it engendered.
[26]
The appellant has also
failed to show that his appeal has a reasonable prospect of success. In his
notice of appeal, the appellant advances two grounds of appeal:
(1)
The Federal Court erred in refusing to admit
evidence into the judicial review that was not before the Minister when he made
his decision. This is destined to fail based on the well-settled law of this Court:
Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171 at
paras. 41-46; Bernard v. Canada (Revenue Agency), 2015 FCA 263; Association
of Universities & Colleges of Canada v. Canadian Copyright Licensing Agency,
2012 FCA 22, 428 N.R. 297 at paras. 18-26.
(2)
The Federal Court had no jurisdiction to order
the matter “back to Transport Canada for review.”
This is destined to fail because the Federal Court ordered no such thing. The
Federal Court simply dismissed the appellant’s application for judicial review.
[27]
Although the notice of
appeal does not raise any other grounds, even if this Court were to admit the
new evidence and conduct reasonableness review of the decision of the Minister
of Transport, this appeal would still be destined to fail.
[28]
The Minister of Transport
cancelled the appellant’s security clearance upon learning that he had
attempted to export two long guns on a trip to Sudan. The appellant says that he
intended to hunt wildlife while on vacation in Sudan and was assured by
Canadian authorities that he would be given an export permit for the guns. But
the documentary evidence shows that he applied for an export permit only after
he had exported the guns. As well, his application had no chance of succeeding because
of the prohibition against exporting guns to Sudan: United Nations Sudan
Regulations, SOR/2004-197.
[29]
The Minister of Transport began
proceedings for cancellation of the appellant’s security clearance on these
facts—well-established and uncontested in the evidence—based on his loss of
trust in the appellant’s judgment, trustworthiness and reliability. In
response, the appellant offered items that the Minister found were insufficient
to regain his trust: the appellant’s Sudanese passport, the appellant’s Sudanese
firearms license, a letter from U.S. Customs (which intercepted the guns)
confirming that a sizable amount of cash and a pistol grip had been returned to
him, and a release agreement between the appellant and U.S. authorities regarding
the return of seized items.
[30]
The Federal Court, noting
the highly discretionary nature of security clearance cancellations, found the
Minister’s decision to be reasonable. The standard of review is the deferential
standard of reasonableness and this Court has found that the Minister’s margin
of appreciation when granting and cancelling security clearances is high: Canada
(Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014
FCA 56, [2015] 2 F.C.R. 1006. In his motion, the appellant offers nothing
whatsoever to suggest that this Court will disagree with the Federal Court’s conclusion
that the Minister’s decision was reasonable.
[31]
The new evidence that the
Federal Court properly refused to admit consists of a copy of the appellant’s
Canadian firearms licence, an incomplete application for an export permit, and
an affidavit disclosing the origin of the cash seized by the U.S.
authorities—matters that would not affect the outcome of reasonableness review.
[32]
Therefore, the motion will
be dismissed. Given the appellant’s circumstances and the novelty of the issues
in this motion, quite fairly the respondent has not asked for costs. So none
will be awarded.
“David Stratas”
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