Date: 20000406
Docket: T-35-00
BETWEEN:
NICHOLAS BONAMY,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Plaintiff, in this action, seeks a declaration that the Defendant failed to deal, in a proper way, with his request for review of his conviction, pursuant to section 690 of the Criminal Code, which section is an extension of the royal prerogative of mercy.
[2] By the present motion in writing, the Defendant seeks to strike out the Statement of Claim on the basis that the Minister, in dealing with the request for mercy, acted as a federal board or tribunal, referring to Thatcher v. Canada [1997] 1 F.C. 289 in which the decision of the Minister of Justice, coming out of a review under section 690 of the Criminal Code, was said to be unfair. This became the subject matter of a judicial review proceeding. In Thatcher Mr. Justice Rothstein, as he then was, noted that decisions made pursuant to royal prerogative are subject to judicial review. He referred to Operation Dismantle Inc. v. The Queen [1985] 1 S.C.R. 441 and more specifically to Henry v. Canada (Minister of Justice) (1992), 54 F.T.R. 153, an on point decision in which Madame Justice Reed found decisions made by the Minister of Justice, under what is now section 690 of the Criminal Code, are subject to judicial review.
[3] Such judicial review is proper because a Minister can be, and here the Crown submits is, acting as a federal board or tribunal. I accept that as a correct analysis.
[4] The next step is that a declaration against a federal board or tribunal may only be obtained on an application for judicial review, and not by an action: sections 18(1)(a) and 18(3) of the Federal Court Act.
[5] The Plaintiff"s position on this point is that judicial review is not applicable because the Minister has made no decision. Clearly a decision is required as a foundation for judicial review. Yet there has been a decision by the Crown and specifically by the Department of the Minister of Justice, not to review the Plaintiff"s case. Were the matter to end here the Defendant might well have demonstrated it to be plain and obvious that the claim for a declaration could not succeed as an action. However, there is a further aspect.
[6] The Crown, pursuing the fact that this matter should have been begun by way of judicial review, refers to Lameman v. Gladue (1996) 95 F.T.R. 220 for the proposition that injunctive or declaratory relief against a federal board or tribunal may only be obtained pursuant to section 18(3) of the Federal Court Act. That case was also authority for the proposition that an action may not be converted into a judicial review proceeding. That was a truism at the time Lameman was decided, for then it was only possible to convert a judicial review application into an action by way of section 18.4(2) of the Federal Court Act.
[7] Since Lameman, the Federal Court Rules have been revised. The Plaintiff refers to Rule 57 of the 1998 Federal Court Rules which provides:
| 57. Wrong Originating Document - an originating document shall not be set aside only on the ground that a different originating document should have been used. |
In McLean v. The Queen, an unreported 26 March 1999 decision of Mr. Justice Lutfy, as he then was, in action T-509-90, the Court gave effect to Rule 57 and notwithstanding that the action had been commenced many years previously, gave the Plaintiff leave to convert the action into a judicial review application through the process of filing a new originating notice of motion. Following this precedent in Khaper v. Canada, an unreported 29 October 1999 decision in action T-2763-92, I refused to strike out a matter begun as an action, but which ought to have been a judicial review proceeding. Instead, I allowed a grace period within which the Plaintiff might apply both to convert the action to an application and for any necessary time extension.
[8] When Khaper v. Canada came to trial Mr. Justice Blais agreed that Rule 57 might be used to allow the Court to convert an action into an application for judicial review:
| In my view, Rule 57 can be applied to convert an action to a judicial review application. Moving parties should have filed an application for judicial review instead of an action. This irregularity can be remedied. [unreported reasons of 30 Dec 1999] |
That being said Mr. Justice Blais noted that an extension of time for commencing judicial review proceedings was required, an extension which was not forthcoming.
[9] In the present instance, the Plaintiff is clearly out of time for a judicial review application, the decision not to review his plea for mercy apparently having been made 3 December 1999 and communicated to the Plaintiff on 17 December 1999. The Plaintiff would thus have to couple any Rule 57 motion, to convert this action to a judicial review application, with an application for an extension of time as is provided for in section 18.1(2) of the Federal Court Act. This is neither an automatic nor an easy remedy, but it is a possible remedy. Thus I am not prepared to hold that this action is plainly and obviously futile.
ORDER:
| The Plaintiff may have 45 days within which to seek a time extension to commence judicial review proceedings and a conversion of this action into an application for judicial review pursuant to Rule 57. If the application has not been served and filed within that time, the action shall be deemed struck out, without leave to amend. |
(Sgd.) "John A. Hargrave"
Prothonotary
April 6, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| STYLE OF CAUSE: Nicholas Bonamy |
v.
Her Majesty the Queen
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: April 6, 2000
WRITTEN SUBMISSIONS BY:
| Nicholas Bonamy on his own behalf |
| Keitha Richardson for the Defendant |
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General
| of Canada for the Defendant |
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