Date: 20041129
Docket: T-1302-04
Citation: 2004 FC 1671
Ottawa, Ontario, this 29th day of November 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ALAN GARDINER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Alan Gardiner claims that the Attorney General of Canada is responsible for a litany of errors and omissions over many years that have caused him psychological stress, put him and his spouse at risk of physical harm, and interfered with his constitutional rights. He has brought an application for an order requiring the respondent to treat him in a manner he believes he requires and deserves, and recognizing his Charter rights to equality, security of the person, and freedom from cruel and unusual treatment. By necessity, these reasons have been drafted without reference to the factual matters that underlie Mr. Gardiner's claims or the precise nature of the order he seeks.
[2] The respondent argues that Mr. Gardiner's application is ill-framed and has presented this motion to strike it. It contends that this Court does not have jurisdiction to entertain Mr. Gardiner's application. Further, it argues that Mr. Gardiner is looking for a remedy that only be obtained against the Crown in narrow circumstances that do not exist here.
[3] This Court will only strike an application for judicial review where it is clear that the applicant cannot succeed. Without expressing any views on the merits of Mr. Gardiner's claims, I find I must agree with the respondent's position. This Court cannot grant the relief Mr. Gardiner seeks by way of his application and I must, therefore, grant the respondent's motion.
I. Issue
Is there a legal basis for Mr. Gardiner's application for judicial review?
II. Analysis
[4] The order Mr. Gardiner seeks is often called mandamus. It is a special kind of order, granted in very limited circumstances. This Court has set a number of conditions that must be met before it will issue this kind of order: Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.), aff'd [1994] 3 S.C.R. 1100. In particular, the applicant for the order must show that the respondent has a public legal duty to act and that the duty is owed to the applicant to do so. The applicant must have asked the respondent to take action and must show that the respondent refused. In situations where the respondent has a discretion whether to act, the applicant must show that the respondent exercised its discretion unfairly, in bad faith, or on the basis of irrelevant factors. The applicant must also show that there is no other adequate remedy and that the balance of convenience favours the granting of the order.
[5] Mr. Gardiner explained to me why, in his view, the respondent owes him a duty and how the respondent has failed to discharge it. I accept, for present purposes, that the respondent owes a general duty of the kind Mr. Gardiner describes. However, Mr. Gardiner has not shown me that he can meet the other elements of the test. The actions he wants the respondent to take have either not been refused or have been refused in the exercise of discretion. I do not see evidence of unfairness, bad faith or irrelevant considerations on the part of the respondent.
[6] Mr. Gardiner amplifies the grounds of his application by referring to alleged breaches of his rights under the Canadian Charter of Rights and Freedoms. But these supplementary arguments cannot invest the Court with jurisdiction it does not otherwise have. In an application for judicial review, an applicant must point to a decision of a "federal board, commission or other tribunal." Otherwise, this Court simply has no jurisdiction (s. 18.1, Federal Courts Act, R.S.C. 1985, c. F-7; Mundle v. Canada, [1994] F.C.J. No. 1327 (T.D.) (QL)). Mr. Gardiner's allegations are against unidentified persons and the Crown generally. This is inadequate for purposes of an application for judicial review, particularly when seeking an order compelling a person to take action.
[7] In addition, Mr. Gardiner has an alternative remedy. He appears to want to sue the Crown and receive damages for its alleged misconduct. He has tried to sculpt his desired remedy in the shape of a judicial review, but it still resembles a civil action. He says that he has tried to start an action against the respondent, but can find no lawyer willing to take on the case. That may be so, but it does not alter the legal realities of his application. The Court has the power to convert an application for judicial review into an action (s. 18.4(2)of the Federal Courts Act), but Mr. Gardiner did not ask me to do so.
[8] Accordingly, I must grant the respondent's motion to strike this application. I make no order as to costs.
ORDER
THIS COURT ORDERS that :
1. The motion to strike this application is granted;
2. No order as to costs.
"James W. O'Reilly"
J.F.C.
Annex
| Federal Courts Act, R.S.C. 1985, c. F-7
Extraordinary remedies, federal tribunals
18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
Hearings in summary way
18.4 (1) Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
Exception
(2) The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
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Loi sur les cours fédérales, L.C.R. 1985, ch. F-7
Recours extraordinaires_: offices fédéraux
18. (1) Sous réserve de l'article 28, la Cour fédérale a compétence exclusive, en première instance, pour_:
a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral;
b) connaître de toute demande de réparation de la nature visée par l'alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d'obtenir réparation de la part d'un office fédéral.
Procédure sommaire d'audition
18.4 (1) Sous réserve du paragraphe (2), la Cour fédérale statue à bref délai et selon une procédure sommaire sur les demandes et les renvois qui lui sont présentés dans le cadre des articles 18.1 à 18.3.
Exception
(2) Elle peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1302-04
STYLE OF CAUSE: ALAN GARDINER v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: TORONTO
DATE OF HEARING: November 22, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: November 29, 2004
APPEARANCES BY:
Mr. Alan Gardiner FOR THE APPLICANT / ON HIS OWN BEHALF
Mr. Christopher Leafloor FOR THE RESPONDENT
SOLICITORS OF RECORD:
DIDIER TSHIBANGU FOR THE APPLICANT / ON HIS OWN BEHALF
Toronto, ON
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT
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