Date: 19980528
Docket: T-538-98
BETWEEN:
EMILE MARGUERITA MARCUS MENNES
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
representing the Honourable Chief Justice
and President of the Federal Court of Canada
Respondent
REASONS FOR ORDER
RICHARD J.:
NATURE OF THE PROCEEDING
[1] This is a motion brought by the respondent, pursuant to Rule 369 of the Federal Court Rules, 1998, for an Order striking out the applicant"s originating notice of motion on the grounds that:
| (a) a direction of the Chief Justice of the Federal Court is not subject to judicial review by this Honourable Court as the Chief Justice is not a "federal board, commission or other tribunal" within the meaning of s. 2 of the Federal Court Act ; |
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| (b) the Attorney General of Canada is not a proper party in this matter; and |
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| (c) the placing of the Applicant"s Concise Memorandum of the Points to be Argued ("Applicant"s Memorandum") on the Court file is in contravention of the Chief Justice"s direction of May 7, 1992. |
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BACKGROUND
[2] The applicant is an inmate of the Warkworth Institution in Campbellford, Ontario.
[3] On May 7, 1992, in relation to Federal Court File Nos. T-289-91 and A-566-92, the Chief Justice of the Federal Court issued a direction (the "Direction") that the applicant would not be permitted to place on file any remarks that are insulting to the Court or its Judges, or that are abusive or slanderous of other parties to the proceedings. Further, the Chief Justice directed that any document submitted by the applicant for filing "should not be filed without first submitting it to a prothonotary for examination as to whether it contains scandalous, insulting or abusive matter that should not be permitted to be placed on a Court file".
[4] On February 16, 1998, the applicant was advised by the Executive Officer to the Chief Justice, that the prohibition against the applicant placing scandalous, insulting, or abusive remarks on the Court file remains in force and applies to any material the applicant attempts to file, not only material related to Court File Nos. T-289-91 and A-566-92.
[5] On February 18, 1998, the Executive Officer to the Chief Justice confirmed in writing that the Chief Justice did not intend to withdraw the Direction.
[6] An application record containing an originating notice of motion seeking judicial review of the Direction of the Chief Justice of May 7, 1992, supporting affidavit and a concise memorandum of points to be argued was sent to the Registry by registered mail by the applicant and was filed in the Registry on March 16, 1998.
[7] The respondent, the Attorney General of Canada, received the applicant"s application record on April 7, 1998.
[8] By motion dated May 4, 1998, and filed on May 7, 1998, the respondent moved to strike the originating notice of motion and dismiss the application for judicial review.
[9] The applicant was personally served with the respondent"s motion and motion record on May 5, 1998, but has not responded as provided in Rule 369(2).
[10] The originating notice of motion and supporting material were filed in the Registry notwithstanding the Direction of the Chief Justice. It became a proceeding in this Court subject to the rules applicable to proceedings in this Court.
GOVERNING PRINCIPLES
[11] The principles governing a motion to strike out an originating notice of motion are set out in a decision of the Federal Court of Appeal indexed as David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., reported in [1995] 1 F.C. 588, where Strayer J.A. stated at pages 596-597 that:
| ... the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. |
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[12] In that case, he held that the ultimate adequacy of the allegations and evidence must be addressed by the judge hearing the application for prohibition on its merits. However, he added at page 600:
| ... This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. |
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ANALYSIS
[13] Pursuant to section 18.1 of the Federal Court Act, an application for judicial review may be brought in respect of a decision of a "federal board, commission or other tribunal".
[14] Section 2 of the Federal Court Act defines a "federal board, commission or other tribunal" to mean:
| ... any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867; |
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[15] It is only if a judge is not acting as a judge that his or her decision is subject to judicial review by this Court.
[16] The test formulated in Herman v. Canada (Deputy Attorney General)1, is as follows:
| Prima facie, Parliament should be taken to intend a judge to act qua judge whenever by statute it grants powers to a judge. He who alleges that a judge is acting in the special capacity of persona designata must find in the specific legislation provisions which clearly evidence a contrary intention on the part of Parliament. The test to be applied in considering whether such a contrary intention appears in the relevant statute can be cast in the form of a question: is the judge exercising a peculiar, and distinct, and exceptional jurisdiction, separate from and unrelated to the tasks which he performs from day-to-day as a judge, and having nothing in common with the court of which he is a member? |
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[17] In this case, in issuing the Direction, the Chief Justice was not "... exercising a peculiar, and distinct, and exceptional jurisdiction, separate from and unrelated to the tasks which he performs from day-to-day as a Judge...". Rather, the Chief Justice was purporting to act within the Court"s inherent power to control its own process.
[18] The Direction is not a decision of a "federal board, commission or other tribunal" within the meaning of section 2 of the Federal Court Act .
[19] I am not called in this case to consider whether and in what circumstances mandamus will issue against an officer of the Registry.
CONCLUSION
[20] I therefore conclude that this Court lacks the jurisdiction under section 18.1 of the Federal Court Act to judicially review the Direction of the Chief Justice dated May 7, 1992.
[21] In view of this conclusion, it is not necessary to deal with the alternative relief sought by the Attorney General of Canada.
[22] Accordingly, in these circumstances, the applicant"s originating notice of motion is struck out and the within proceeding is dismissed without costs.
__________________________
Judge
Ottawa, Ontario
May 28, 1998
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1 [1979] 1 S.C.R. 729">[1979] 1 S.C.R. 729 at 749, applied in [1982] 2 S.C.R. 518">Minister of Indian Affairs v. Ranville et al. , [1982] 2 S.C.R. 518.
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