Docket: T-2349-23
Citation: 2024 FC 1201
Ottawa, Ontario, July 29, 2024
PRESENT: The Honourable Mr. Justice Pamel
BETWEEN: |
DR STEPHEN FOX |
Applicant |
and |
CANADA (FEDERAL MINISTER OF PUBLIC SAFETY & THE ATTORNEY GENERAL OF CANADA) |
Respondent |
ORDER AND REASONS
I. Overview
[1] In the underlying application, Dr. Stephen Fox, a self-represented litigant, seeks judicial review of the decision taken by the Minister of Public Safety and Emergency Preparedness [the Minister] to list Dr. Fox as an individual pursuant to section 8 of the Secure Air Travel Act, SC 2015, c 20, s 11 [SATA] – colloquially referred to as a “no-fly list” [the List] – between October 2 and 20, 2023 inclusive. According to Dr. Fox, this had the effect of prohibiting him from travelling from the United Kingdom to Canada to testify in his own defence at the continuation of his criminal trial, which had begun on April 11, 2023, was adjourned, and set to resume on October 16, 2023, thereby leading to him subsequently being found guilty on a lesser offence; it would seem Dr. Fox was thereafter conditionally discharged with forfeiture of seized items.
[2] Dr. Fox claims that he became “aware of his inclusion as a “listed person” on [October 8, 2023] during a phone call to the Canadian Government Emergency Watch Centre for Canadian Citizens Abroad [the Watch Centre]”
, and alleges that he was placed on the List specifically so that he would be prevented from so testifying; he asserts that “[t]he only way the Crown could ensure a guilty verdict was to find [Dr. Fox], in absentia, had absconded and subsequently declare him guilty in his absence”
and that the “notional finding of guilt at the provincial level was contrived purely to limit the liability of the Crown in any future civil litigation that [Dr. Fox] might bring against the Crown.”
According to Dr. Fox:
This criminal matter is intrinsically linked to a matter known as the [Vancouver Island Health Authority]-COVID hospital sex scandal which occurred in British Columbia in the second and third quarters of 2020 during the COVID-19 pandemic. This scandal implicated senior medical staff, rehabilitation staff and RCMP officers. Supposedly on duty, these individuals, using their employment rosters as alibis, met for extramarital sex away from their places off [sic] work, breaking all lockdown and public health mandates.
Fearful that this scandal would undermine confidence in the federal and provincial governments during the COVID-19 public health emergency, the Crown embarked on a cover-up targeting [Dr. Fox] over the past 3 years which resulted in the financial and professional ruin of the applicant. More importantly this has resulted in the applicant being kept away from his two daughters over the past 3 years and in the animal murder of one of his dogs and the surrender of the other to the SPCA.
[3] In his underlying application, Dr. Fox seeks the following relief, which I summarize:
i. A written confirmation of his inclusion on the List between October 2 and 20, 2023 and disclosure of the Minister’s detailed reasoning for his inclusion as a “listed person” between those dates.
ii. An Order that Dr. Fox not be relisted pursuant to section 8 of SATA without the Minister first seeking the approval of the Court and providing sufficient evidence to warrant such an action.
iii. A declaration that the inclusion of Dr. Fox on the List between October 2 and 20, 2023 was unlawful.
[4] Why Dr. Fox requires confirmation of his inclusion on the List is unclear. However, he states that his underlying application will be supported by his affidavit with multiple exhibits including audio recordings of telephone calls between Dr. Fox and the Watch Centre on October 8, 2023, as well as between Dr. Fox and WestJet Airlines on October 12, 2023. In addition, as part of his underlying application for judicial review, Dr. Fox requests that the Minister and the AGC:
send a certified copy of the following material that is not in the possession of the applicant but is in the possession of said Ministers to the applicant and to the Registry. Specifically all communications/telephone notes/information that the responsible ministers received or sent to the sources listed below – before, during and after making this decision:
i. the Minister of Transport;
ii. the Minister of Citizenship and Immigration;
iii. a member of the Royal Canadian Mounted Police or a civilian employee of that police force;
iv. the Director or an employee of the Canadian Security Intelligence Service;
v. an officer or employee of the Canada Border Services Agency; and
vi. any other person or entity prescribed by regulation;
vii. any other person or entity not prescribed by regulation.
[5] I should mention that other than Dr. Fox’s bald assertions, nothing in the record suggests any conspiracy or the existence of any sex scandal involving the Vancouver Island Health Authority, which the Crown seemingly wanted covered up. In addition, and although Dr. Fox identifies his criminal case docket number in the Provincial Court of British Columbia, there is no evidence as to whether Dr. Fox sought to appear at his criminal trial to give testimony by alternate means, say by video or telephone conference. Nor does the record contain a copy of the decision or decisions of the trial judge in the criminal case which may answer many of the remaining unanswered questions in this case, such as the nature of the charges, the reason for and who requested the postponement, any evidence given to the trial judge as to whether Dr. Fox was even included on the List, what efforts were made by Dr. Fox to actually attend the continuation of his trial after he had travelled to the United Kingdom, or why the trial judge found Dr. Fox to have absconded from his trial in the first place.
[6] That aside, the Attorney General of Canada [the AGC] now brings a motion to strike the underlying application in its entirety, without leave to amend. The AGC argues, firstly, that the underlying application is premature as Dr. Fox has not exhausted the administrative recourse available to him under the SATA. In addition, the AGC claims that this Court has no jurisdiction to consider the matter by way of an application for judicial review as the SATA expressly provides for an appeal of the decision of the Minister under section 15 thereof to this Court pursuant to section 16 of the SATA. Consequently, the underlying proceeding, being in the form of application for judicial review, should be struck on procedural grounds in accordance with section 18.5 of the Federal Courts Act, RSC 1985, c F-7.
[7] In his response, Dr. Fox asserts, for the first time, that he did in fact avail himself of the administrative recourse of section 15 of the SATA when his solicitors sent a letter to the Minister to have his name removed from the List; Dr. Fox includes in his response a copy of the letter from his solicitors to the Minister dated October 9, 2023, requesting that he, Dr. Fox, be removed from the List on account of having to travel to testify at the resumption of his criminal trial. It would seem as though the Minister obliged, as Dr. Fox’s name was supposedly removed from the List on October 20, 2023; however, according to Dr. Fox, the Minister failed to notify him of the decision. As to the procedural argument set out by the AGC, Dr. Fox argues that Rule 57 of the Federal Courts Rules, SOR/98-106, provides that an originating document shall not be set aside simply because a different originating document should have been used.
[8] In his reply submissions, and in addition to the AGC’s initial arguments, the AGC argues that given the late disclosure by Dr. Fox of his having availed himself of section 15 of the SATA and that, as a result, his name was in fact removed from the List on October 20, 2023, the fact remains that Dr. Fox’s claim is now moot as the granting of his administrative application leaves no room for an appeal under section 16 of the SATA.
[9] For the reasons that follow, I agree with the AGC’s submissions. The present motion to strike will be granted without leave to amend.
II. Relevant Legislation
[10] I set out the relevant provisions of the SATA in the annex to my decision.
[
11
]
In Brar v Canada (Public Safety and Emergency Preparedness), 2022 FC 1168 [Brar FC], aff’d 2024 FCA 114 [Brar FCA], this Court provided a comprehensive review and analysis of the SATA; in short, section 8 of the SATA provides for the establishment of a list by the Minister (or their delegate) of persons whom they have “reasonable grounds to suspect” will engage in an act that would threaten transportation security or travel by air for the purpose of committing a specified Criminal Code offence. As the Federal Court of Appeal explains, being placed on this list does not trigger any immediate consequences, however “[e]ach time a person on the list tries to fly, the Minister decides whether a direction to an air carrier should be made concerning the listed person”
(Brar FCA at para 2; subsection 9(1) of the SATA). Such directions may include directing an air carrier to deny transportation to a person on the no-fly list. When a denial of transportation is directed, the listed person is provided with a written notice to this effect. Prior to this step, the listed person would only know they were on the no-fly list if they had to apply for specific permission to travel into Canada via programs operated through the Canada Border Services Agency and/or Immigration, Refugees and Citizenship Canada. A listed person who has been denied transportation pursuant to section 9 of the SATA can apply to the Minister in writing to have their name removed from the list pursuant to subsection 15(1).
[12] Section 16 of the SATA provides for an appeal to the Federal Court of decisions made pursuant to the administrative recourse provisions in section 15 of the SATA. A judge hearing an appeal pursuant to section 16 of the SATA may order that the appellant’s name be removed from the list if it is found that the section 15 decision was unreasonable (subsection 16(5) of the SATA).
III. Analysis
[13] It is clear that Dr. Fox utilized an improper originating document; he should have filed a Notice of Appeal rather than proceed by way of an application for judicial review. However, I agree with him that this is not fatal, and it is within the power of this Court to allow him to rectify the situation.
[14] I also note Dr. Fox’s assertion, although somewhat late in the day, that he did avail himself of the administrative remedies of section 15 of the SATA. Although the AGC is correct in saying that Dr. Fox cannot introduce evidence on a motion to strike, and that his recourse under section 15 of the SATA should have been alleged in his underlying proceeding, the fact remains that this glitch can be overcome by way of an amendment.
[15] The reason I am granting the present motion, however, is because, taking Dr. Fox’s assertions as being true, availing himself of his administrative recourse was successful, and his name was removed from the List on October 20, 2023. I agree with the AGC that even if I were to allow Dr. Fox to amend his pleadings, any appeal is limited to a decision referred to in section 15 (subsection 16(2) of the SATA), that a judge hearing an appeal may only determine the reasonableness of the Minister’s decision taken under section 15, and where such a decision is unreasonable, may order that the appellant’s name be removed from the List (subsection 16(5) of the SATA). Given that Dr. Fox’s administrative application was seemingly successful and that his name was removed from the List, there is no basis for any appeal. Even in the case of a non-response by the Minister, as alleged by Dr. Fox, the Minister is deemed to have decided to remove Dr. Fox’s name from the List (subsection 15(6) of the SATA); either way, any appeal would therefore be moot.
[16] Nevertheless, the issue of mootness does not necessarily end there. Generally, courts will not decide an issue that has become moot; however, where the matter is moot, it is necessary to determine whether the court should nonetheless exercise its discretion to hear the case, guided by three policy imperatives: first, whether an adversarial context continues to exist between the parties; second, concern for judicial economy; and third, whether in rendering its decision, the court would be encroaching upon the legislative sphere rather than fulfilling its role as the adjudicative branch of government (Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 at pp 353 to 363; Canada (Public Safety and Emergency Preparedness) v Kaygisiz, 2024 FC 693 at para 9); Canada (Public Safety and Emergency Preparedness) v Boampong, 2021 FC 1187 at para 40). In this case, nothing suggests that there remains a live controversy between the parties; Dr. Fox’s inclusion on the List is no longer, and no argument is made that there continues to be a live issue to nourish any further appeal. As such, no amendment to the underlying proceeding, whether in form or substance, will change that.
[17] In reviewing the relief sought in his underlying application, what Dr. Fox seems to seek is the reason why his name was included on the List in the first place. It appears to me that there are other avenues available to obtain this information such as a request under the Access to Information Act, RSC 1985, c A-1. An appeal under section 16 of the SATA of a positive decision which effectively removed one’s name from the List is not such an avenue.
[18] As regards costs, and having regard to the factors set forth in Rule 400(3), I fix costs payable by Dr. Fox at a lump sum amount of $500.
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