Docket: A-151-14
Citation: 2014 FCA 178
Present: SHARLOW
J.A.
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BETWEEN:
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RACHEL
EXETER
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA (DEPUTY HEAD, STATISTICS CANADA)
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Respondent
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REASONS FOR ORDER
SHARLOW J.A.
[1]
The respondent (the Crown) seeks summary
dismissal of this appeal on the basis that it cannot possibly succeed, it has
no factual foundation and it is an abuse of process, vexatious and frivolous. The
appellant Rachel Exeter opposes the motion. For the following reasons, the
Crown’s motion will be dismissed.
[2]
The proceeding below is an application for
judicial review. Ms. Exeter filed an interlocutory motion in that proceeding for
an order granting a further opportunity to cross-examine a certain Crown
affiant, and for other relief. The motion was heard by a prothonotary on May
15, 2013. The prothonotary dismissed the motion except that Ms. Exeter was permitted
a further opportunity to cross-examine the affiant. Ms. Exeter has appealed
that order to a judge of the Federal Court pursuant to Rule 51. That appeal has
not yet been heard.
[3]
It appears that in support of her Rule 51 appeal,
Ms. Exeter intends to adduce a copy of the audio recording of the May 15, 2013
hearing. The purpose of adducing the recording is not entirely clear from the
material before me, but I am prepared to assume for present purposes that Ms.
Exeter intends to allege a breach of procedural fairness.
[4]
Shortly after the May 15, 2013 hearing, Ms.
Exeter requested a copy of the audio recording. Upon the direction of the
prothonotary, the Registry provided the recording to Ms. Exeter in the
form of a memory stick. Ms. Exeter claims that the audio recording is
incomplete in that negative comments made by the prothonotary at the hearing were
not recorded. She alleges that the recording was altered by someone in the
Registry.
[5]
Ms. Exeter brought another interlocutory motion for
an order “requesting the services of a forensic
audio expert”, apparently in an effort to obtain
proof that the recording had been altered. Ms. Exeter supported her motion by
her own affidavit sworn January 27, 2014, to which is appended the affidavit of
Claudette Williams sworn June 20, 2013. Ms. Williams claims to have attended
the May 15, 2013 hearing and to have heard the negative remarks that Ms. Exeter
alleges were made by the prothonotary. Ms. Exeter’s motion was dismissed by an
order of a judge of the Federal Court, and Ms. Exeter appealed that order. Now
before me is an interlocutory motion in Ms. Exeter’s appeal.
[6]
The judge did not issue separate reasons for his
order, but it appears from the order itself that he reached the following
conclusions: (1) Ms. Exeter is challenging the authenticity of the audio
recording provided to her; (2) there is no convincing evidence in support of
her allegation that it was altered by Registry staff; (3) even if that
allegation were proved, Ms. Exeter is not prejudiced by the alteration; and (4)
in light of those conclusions, there is no need to address Ms. Exeter’s
constitutional arguments.
[7]
Ms. Exeter has a statutory right to appeal a
judgment or order of the Federal Court. She is not required to obtain leave to
appeal. There is no provision in any statute or in the Federal Courts Rules,
SOR/98-106, that expressly permits this Court to dismiss an appeal without a
hearing on any of the grounds stated by the Crown. There is no reported case in
which this Court has dismissed an appeal without an oral hearing on any of the
grounds asserted by the Crown in this motion, meaning necessarily that the only
guiding jurisprudence must be applied by analogy.
[8]
I accept that this Court has the inherent
jurisdiction to control abuses of its process, and may exercise that
jurisdiction by dismissing a proceeding without an oral hearing. That
jurisdiction is occasionally exercised in this Court when an appellant has
delayed unreasonably in taking the steps required to have an appeal made ready
for hearing, or has repeatedly failed to abide by the Rules or orders of the
Court. Also, an appeal may be dismissed summarily where it is clear on the face
of the notice of appeal that this Court has no jurisdiction to hear the appeal
(see, for example, Rock-St. Laurent v. Canada (Citizenship and Immigration),
2012 FCA 192). I accept that in theory, summary dismissal of an appeal may be
warranted by analogy to cases in which pleadings are struck. However, the power
to dismiss an appeal summarily on that basis must be exercised sparingly, and
only where it is clear that the appeal cannot succeed.
[9]
The power to summarily dismiss any proceeding is
given to the Court to control its own process and to avoid the waste of scarce
judicial resources. An oral hearing consumes substantial resources but it
serves the critical purpose of enabling the parties to provide clarity and
focus to the legal and factual issues raised in the notice of appeal and the
memoranda of fact and law. The Court attempts to aid that purpose at an oral
hearing by listening to the parties and by engaging the parties in a
conversation in which their arguments are discussed and challenged. An oral
hearing also serves the important function of permitting the appellant, who
invariably believes that an injustice has occurred, to be heard by an impartial
court.
[10]
In this case, the Crown is seeking to have an
appeal dismissed summarily for want of merit, adding allegations of improper
conduct on the part of Ms. Exeter in order to add weight to its argument. I express
no opinion on the validity of those allegations but even if they are well
founded, they do not demonstrate the kind of ungovernability described in
paragraph 8 above.
[11]
The question, then, is whether it is clear that
the appeal cannot succeed. Ms. Exeter has stated a number of grounds of appeal.
For example, she says that the judge misconstrued her motion, decided a
question that was not put to him, failed to give adequate reasons, and failed
to understand that her objective was directly related to her Rule 51 appeal (see
paragraph 3 above). I express no opinion on the merits of any of these grounds
of appeal. They may or may not succeed, but they are typical of those
determined by this Court after an oral hearing. Implicit in many of these
grounds is a challenge to the judge’s finding that there is no evidence to
support her main factual allegations. I am unable to conclude that the appeal
is so unworthy of the attention of this Court that Ms. Exeter should be denied
an oral hearing.
[12]
For these reasons, the Crown’s motion will be
dismissed with costs to Ms. Exeter in any event of the cause.
“K. Sharlow”
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