Docket: A-231-17
Citation:
2017 FCA 246
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CORAM:
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DAWSON J.A.
STRATAS J.A.
RENNIE J.A.
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BETWEEN:
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TIMOTHY E.
LEAHY
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Appellant
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and
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THE MINISTER OF
JUSTICE
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
The appellant filed a notice of application in
the Federal Court which sought:
1. an order in the nature of a writ
of prohibition against the Department of Justice, barring its agents from
seeking the interference of the Law Society of Upper Canada in pending
litigation;
2. an order requiring the
respondent’s agents, who seek to prevent Mr. Leahy from appearing in the
Federal Courts, to comply with the Federal Courts Rules and file a
motion, not fax a directive to complicit jurists, who dutifully do their
bidding;
3. an order in the nature of a
declaration, declaring that Timothy E. Leahy, by virtue s-s. 11(2) of the Federal
Courts Act and the authorization the Ontario Court of Appeal issued him on
22 March 1991 to appear in counsel in Ontario courts, may appear as counsel in
the Federal Court and the Federal Court of Appeal;
4. an order of costs to the
applicant in an amount of no less than $25,000 and
5. any additional relief this
Honourable Court should consider appropriate and just.
[2]
The respondent then moved for an order striking
the notice of application and dismissing the application on the grounds that
the Federal Court lacked jurisdiction to grant the requested relief and that
the application was an abuse of process.
[3]
By order dated July 31, 2017, the Federal Court
struck the application without leave to amend (Court File T-720-17). The
appellant now appeals from the order of the Federal Court.
[4]
I agree with the appellant that the Federal
Court’s order cannot be upheld on the basis of the reasons articulated by the
Federal Court. For example, the relief sought was forward-looking and so was
not a collateral attack on directions previously issued in other Court files.
Nor am I able to discern how Rule 302 of the Federal Courts Rules
precluded “the request for a plurality of orders in
respect of the relief sought.” Further, the Federal Court failed to
expressly consider the request for declaratory relief.
[5]
Rule 119 of the Federal Courts Rules
permits an individual to represent himself or herself in the Federal Courts or
to be represented by a solicitor. Rules 120 and 121 generally require entities
such as corporations or parties under legal disability to be represented by a
solicitor. “Solicitor” is defined in Rule 2 to
be a person referred to in subsection 11(3) of the Federal Courts Act,
namely a person who may practice as a barrister, advocate, attorney or
solicitor in the Federal Court or the Federal Court of Appeal. The appellant
asserts that he is authorized to appear on behalf of others in the Federal
Court and the Federal Court of Appeal. The respondent has not shown how the
Federal Court lacked jurisdiction to determine whether the appellant is a
person referred to in subsection 11(3) of the Federal Courts Act or how
it is an abuse of process for the appellant to assert this right.
[6]
Declaratory relief is available where a party
establishes that:
•
The Court has jurisdiction over the issue.
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The question before the Court is real and not
theoretical.
•
The party has a genuine interest in raising the
question.
(Canada (Prime Minister) v. Khadr,
2010 SCC 3, [2010] 1 S.C.R. 44, at paragraph 46, Canada (Indian Affairs) v.
Daniels, 2014 FCA 101, [2014] 4 F.C.R. 97, at paragraphs 62-79).
[7]
The Federal Court has previously directed that
proceedings be held in abeyance until the applicants advised that either they
intended to act in person or that they were represented by a solicitor and not
the appellant. Given this factual background I am satisfied that the
appellant’s right to appear in the Federal Court is a real, not theoretical
question and that the appellant has a real interest in raising it. In so
finding, I express no opinion on the merits of the appellant’s argument. The
only issue before this Court is whether the appellant’s application should have
been struck out.
[8]
This said, I agree with the result reached by
the Federal Court with respect to the claim for prohibition and what amounts to
a claim for mandatory injunction.
[9]
With respect to the writ of prohibition sought
barring members of the Department of Justice “from
seeking the interference of the Law Society of Upper Canada in pending
litigation”, Rules 119 to 121 reflect the undoubted right of the Federal
Court to control who may appear before it as counsel. No litigant can lawfully
be deprived of the right to ascertain facts from a governing body of lawyers so
as to be able to formulate a submission to the Court on the potential
applicability of Rules 119 to 121.
[10]
Similarly, this Court cannot prohibit litigants,
or a class of litigants, from seeking directions as permitted by the Rules in
lieu of filing a motion record. It is in every case for the judicial officer
who receives such a request for directions to consider the propriety of the
request.
[11]
Finally, while the appellant has asserted bias
on the part of the Federal Court, this assertion was wholly unsubstantiated.
The Supreme Court has cautioned that 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 paragraph 113). Unsubstantiated
allegations of bias cause harm to the administration of justice and carry the
risk of overshadowing meritorious arguments. Hopefully, the appellant will
refrain from making such allegations in the future.
[12]
It follows that I would allow the appeal in part
and set aside the order of the Federal Court, substituting in its stead an
order striking only the first and second heads of relief sought, and allowing
the request for declaratory relief to proceed. For the purpose of Rule 306 time
should run from the date of this Court’s judgment. As the appellant was successful
in setting aside the order striking his application in its entirety I would
award the appellant costs here and below fixed in the amount of $500, inclusive
of all disbursements and taxes.
[13]
As the Privacy Commissioner has advised that
there are no new records of communications between the Department of Justice
and the Law Society of Upper Canada, there is no need to deal with the
appellant’s request for additional disclosure of documents.
“Eleanor R. Dawson”
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“I agree.
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David Stratas
J.A.”
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“I agree.
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Donald J. Rennie
J.A.”
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