Schemmann v. Gluppe, docket T-1676-98

Date: 19981118

Docket: T-1676-98

BETWEEN:

     MICHAEL SCHEMMANN,

     Plaintiff,

     - and -

     MILTON R. GLUPPE, DAVE OWEN, GREG LEE,

     SHARON HICKEY, MARIE RESANOVIC,

     FRASER SIMMONS, JACK STEWART,

     SANDRA THIESSEN, TERRY ELLIOTT,

     CHERYL MACDONALD, and HER MAJESTY THE QUEEN,

     Defendants.

     REASONS FOR ORDER

MR. JOHN A. HARGRAVE,

PROTHONOTARY

[1]      These reasons deal with the Plaintiff's motion of 13 October 1998, the effect of which, if granted, would be to turn an action into an application for judicial review. I have dismissed the motion in that neither the Federal Court Act nor the Rules gives the Court the discretion to treat an action as an application for judicial review. I will consider this in a little more detail.

BACKGROUND

[2]      The Plaintiff filed a Statement of Claim 21 August 1998. The 62 paragraphs in the Statement of Claim are not easy reading. However, it would seem that the claim relates to the Plaintiff being required to take a mandatory sex offender treatment program, to findings of parole violation, to complaints as to travel restrictions and to revocation of the Plaintiff's statutory release. The Plaintiff claims damages of $690,000, damages which are said to be continuing at $3,000 for each working day and $1,500 for each weekend and statutory holiday day. The Defendants filed their defence 21 September 1998, not only denying the claim, but also pleading estoppel by reason of previous proceedings, submitting that the matter ought to be dealt with by way of judicial review and terming the entire action redundant, frivolous, vexatious and abusive.

[3]      The Plaintiff then filed three motions, which underlie the present motion. The three motions, which I will refer to by the date of the motion, rather than the filing date, are as follows:

[4]      It is these three motions which the Plaintiff wishes the Court to deem to stand as a notice of application for judicial review under Rule 301.

CONSIDERATION

[5]      Section 18(3) of the Federal Court Act makes it clear that extraordinary remedies, against federal boards, commissions or other tribunals, remedies which include injunctions, may only be obtained on an application for judicial review under section 18.1 of the Act: see for example, Mobarakizadeh v. Canada (1994), 72 F.T.R. 30 at 33 and Machado v. The Queen, an unreported 20 December 1996 decision of Mr. Justice Muldoon. Leaving aside that the injunctive relief sought by the Plaintiff is quite different than the relief sought in his Statement of Claim, it is clear that the injunctions sought in this instance cannot be by way of a Statement of Claim. Thus the present application to deem the motions for injunctive relief in this action to be a judicial review application. However, the effect of this present motion is to seek a transmutation of the present action into a judicial review proceeding.

[6]      In Lameman v. Gladue (1995), 95 F.T.R. 220, I considered an application to change an action into a judicial review proceeding. There the plaintiffs encountered a similar problem to that of Mr. Schemmann in his proceeding. In Lameman the plaintiffs had commenced an action. They then found a need for injunctive and declaratory relief against the Beaver Lake First Nation, which might only be obtained on an application for judicial review. I pointed out, among other things, that the requirement that injunctive relief, against an Indian Band, which is a federal board, might only be had on judicial review. I went on to note that the Federal Court Act requirement, that judicial review applications be made by what was then an originating notice of motion and is now an application, was not merely a procedural and technical requirement, but important to the nature of the proceeding itself. I observed that while the Federal Court Act did grant the Court discretion to treat a judicial review application as an action, in an appropriate circumstance, the Court did not have the converse discretion by which to treat an action as a judicial review proceeding. In Lameman I dismissed the application to deem the statement of claim to be an application for judicial review. See also the subsequent comment of Mr. Justice of Appeal Robertson, in Williams v. Thomas, an unreported 5 February 1996 decision in action A-649-95 at page 4:

[7]      The motion of Mr. Schemmann, to treat his three earlier motions as a judicial review application is clearly caught by the facts in and the conclusions reached in Lameman, a conclusion bolstered by the Court of Appeal in Williams. The motion is therefore denied.

[8]      Where this outcome leaves the three motions, which seek injunctive relief which cannot be granted in an action, is not an issue before me, but will have to be dealt with at a later date.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

Vancouver, British Columbia

November 18, 1998

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-1676-98

STYLE OF CAUSE:          MICHAEL SCHEMMANN

                     v.

MOTION DEALT WITH IN WRITING WITHOUT

APPEARANCE OF COUNSEL.

REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY

dated November 18, 1998

WRITTEN SUBMISSIONS BY:

     Michael Schemman          on his own behalf

     Ms. Donnaree Nygard      for Defendants

SOLICITORS OF RECORD:

     Morris Rosenberg          for Defendants

     Deputy Attorney General

     of Canada