Date: 19990706
Docket: T-224-97
T-1221-98
OTTAWA, Ontario, this 6th day of July, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
KARLHEINZ SCHREIBER
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
UPON motion by the applicant, made on an urgent basis, with respect to both Court files T-244-97 and T-1221-98, for an interlocutory order requiring the respondent to forthwith communicate with the appropriate Swiss authorities to request those authorities take no further action on the Letter of Request sent to them by the respondent on September 29, 1995, pending final determination of the applications in two Court files concerned, which applications were heard together in Vancouver on April 7, 8 and 9, 1999, whereupon decision was reserved;
UPON hearing counsel for both parties by telephone conference on July 5 when the hearing was adjourned to July 6, 1999, when counsel were heard further, and in particular with reference to an affidavit filed by counsel for the respondent on July 5, 1999 with leave of the Court; and
UPON the Court, noting that the applicant and the respondent consider the relief here claimed to be in the nature of an interlocutory injunction, upon considering the submissions made in writing and orally, concluding that it is not satisfied that the applicant will suffer irreparable harm if the motion herein is denied and the applicant is later successful in award by this Court of relief requested in Court files T-244-97 and T-1221-98, now under reserve for consideration by the Court;
O R D E R
IT IS ORDERED THAT:
| 1. The application is dismissed. |
| 2. Costs, requested by the respondent, are directed to be determined in the cause. |
| 3. A copy of this Order is to be filed upon each of the Court's files, T-244-97 and T-1221-98. |
JUDGE
Date: 19990709
Docket: T-224-97
T-1221-98
BETWEEN:
KARLHEINZ SCHREIBER
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
MacKAY J.
[1] These are written reasons confirming those rendered orally at the conclusion of a telephone conference when I dismissed the applicant's motion for interlocutory relief. That motion, filed and considered, on an urgent basis, by telephone with counsel for the applicant in Edmonton, and counsel for the respondent in Vancouver, and the Court presiding in Ottawa, was heard on July 5, 1999 and adjourned to the following day. Then on July 6, 1999, having dismissed the motion orally, an Order issued confirming that disposition, and I undertook to provide brief written reasons.
[2] The applicant's motion seeks an order in the nature of an interlocutory injunction "requiring the Respondent to forthwith communicate with the appropriate Swiss Authorities to request those authorities to take no further action on the Letter of Request sent to them by the Respondent on September 29, 1995, pending the final determination of the within application". That determination awaits my disposition of the applications in Court files T-224-97 and T-1221-98, which were both heard together in April, 1999 in Vancouver.
The background
[3] The first of the applications under reserve seeks an order directing the respondent to withdraw or rescind a letter of request for legal assistance sent to Swiss authorities in connection with an R.C.M.P. investigation concerning the applicant and others, following admissions of the respondent in settlement of an action commenced by one of the other persons concerned, the former Prime Minister of Canada, the Right Honourable Brian Mulroney. Those admissions were that certain conclusions expressed in the letter of request were without foundation. Despite that, the letter of request was not withdrawn or rescinded, and relief was sought to direct that this be done.
[4] The second of the applications under reserve seeks declaratory relief essentially concerning the authority of the respondent to pursue the request as set out in the letter of September 29, 1995 to Swiss authorities, following the decision of the Supreme Court of Canada in Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841. That decision, rendered May 28, 1998, allowed an appeal from an Order of Wetston J. of this Court which had been upheld by the Court of Appeal. The Supreme Court of Canada determined that the respondent, in seeking information from abroad under a letter of request without having first sought judicial authorization, was not acting in violation of the Charter rights of the applicant herein, Mr. Schreiber.
[5] Following the decision of Wetston J. in the Trial Division, Mr. Justice Gibson of this Court by Order dated July 9, 1996 (see Schreiber v. Canada (Attorney General), [1996] 3 F.C. 947 (T.D.)) ordered that the Judgment of Wetston J. be suspended pending disposition of an appeal. That Order was made on terms that the respondent request that no action be taken at that time in relation to the letter of request that was of concern to Mr. Schreiber. The Order of Gibson J. continued pending disposition of the constitutional issue by the Supreme Court of Canada, in May of 1998.
[6] Following the Supreme Court of Canada decision the applicant applied for an injunction in June, 1998 but that application was adjourned sine die.
[7] Thereafter, the respondent reiterated to Swiss authorities its request for information that had originally been set out in the letter of request of September 29, 1995. While there was some uncertainty about the extent to which this was clearly understood by counsel for the parties in June and July of 1998, the fact that Swiss authorities had again been asked to assist was clearly known. An affidavit filed by counsel for the respondent, with leave of the Court, on July 5, 1999, makes clear, in my opinion, that counsel for the applicant was fully aware of the reiterated request as of June or July of 1998. That is not a matter of great significance in my disposition of the application now before me though there was argument in the course of the telephone conference about the applicant's delay in seeking relief.
Disposition
[8] While on its wording the notice of motion might be seen as requesting relief in the nature of mandamus, that was not argued by counsel. It is relief in the nature of mandamus that is sought in Court file T-224-97 and no ruling has yet been made on the existence or nature of any public duty which such an Order might enforce.
[9] The applicant, by this motion seeks an interlocutory order in the nature of an injunction pending disposition of the applications now under reserve by this Court. It is agreed by counsel for both parties that the appropriate test is that set out by the Supreme Court of Canada in R.J.R. Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385.
[10] In applying that test there is no dispute between the parties that there are serious issues before the Court raised by the applications now under reserve.
[11] On behalf of the applicant it is claimed that irreparable harm will result if private documents and information is forwarded from Switzerland to Canada for perusal by Canadian authorities in response to the letter of request before the applicant's request for an order to stop that process, now before the Court in the applications under review, is resolved. Further, it is urged that the application before the Court, now under reserve, seeking to hold the respondent to performance of her public duties in the administration of justice is sufficient in itself to indicate irreparable harm will occur if the respondent does not await judicial determination of her responsibilities.
[12] Those claims to harm are general. They are based upon correspondence received by the applicant's Swiss counsel from the Federal Prosecutor in Switzerland responsible for dealing with the letter of request. That correspondence indicates that the Prosecutor's Office in Switzerland has accepted the renewed request by Canadian authorities and intends "to issue shortly a final order regarding the production" of certain banking documents and that letter gives the applicant the opportunity to raise potential objections to the planned legal assistance by Swiss authorities.
[13] That opportunity was said originally to exist until June 23, 1999, but, as subsequently advised by counsel for the applicant during the course of the telephone conference, the period for raising potential objections had been extended by the Swiss Prosecutor until July 2, 1999. It is not known whether representations were made on behalf of the applicant in response to that invitation but it was assumed by both of counsel that this would have been done. Whether or not it was done both counsel did agree that the Swiss process provides an opportunity for an appeal within 30 days following a decision of the Prosecutor when that is made, and that an appeal automatically suspends action under the Prosecutor's decision until the appeal is disposed of by the Swiss Federal Court.
[14] In these circumstances, I am not persuaded that the evidence before me does demonstrate irreparable harm will occur if the relief now sought is not granted and subsequently the applicant is successful in the applications now under reserve. At this stage it is speculation only that, following any appeal of the Prosecutor's decision, Swiss authorities will respond to the letter of request before disposition of the applications now under reserve by this Court.
[15] The test for an interlocutory injunction, as set out in R.J.R. Macdonald, supra, requires all three elements to be met, that is, that there be a serious issue before the Court, that irreparable harm will occur before that issue is determined unless the Court grants an injunction pending that outcome, and that the balance of convenience also favours the applicant. There is no need for me to assess the balance of convenience, though the matter was argued, particularly with reference to the public interest in the process initiated by the letter of request that is questioned, and in the discharge of her duties by the Attorney General.
Conclusion
[16] Since I find there is no evidence before me that irreparable harm will occur between the date of the hearing and the time when the applications now under reserve will be disposed of, the motion of the applicant for an interlocutory injunction at this stage is dismissed.
[17] After my indication of the disposition of this motion at the conclusion of the telephone conference, counsel for the applicant asked whether this disposition was without prejudice to a possible further application by the applicant if at a future date, as the Swiss process may move forward, the circumstances have changed. I confirm that the Court would hear a further application if circumstances do change and an application then appears warranted to the applicant.
W. Andrew MacKay
JUDGE
OTTAWA, Ontario
July 9, 1999.
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