Tucker v. Harris, docket T-893-99

Date: 19990721

Docket: T-893-99

Ottawa, Ontario, this 21^st day of July, 1999

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

     REVEREND BROTHER WALTER A. TUCKER and

     REVEREND BROTHER MICHAEL J. BALDASARO

     Applicants

     - and -

     THE HONOURABLE MR. MICHAEL D. HARRIS,

     HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO,

     HAMILTON REGION CONVERSATION AUTHORITY and

     MR. BEN VANDERBRUG

     Respondents

     REASONS FOR ORDER and ORDER

[1]      Brothers Tucker and Baldasaro of the Phoenix Mission of God, The Assembly of the Church of the Universe, come to Court seeking to enforce certain claims against Mr. Michael Harris, the Premier of Ontario, Her Majesty the Queen in right of Ontario, The Hamilton Regional Conservation Authority and Mr. Ben Vanderbrug, who appears to be an official of the Conservation Authority. The core of the Brothers" claim is their assertion of a right to the use of Fletcher Creek Conservation Area. However, the motions made on behalf of the Brothers are replete with claims for ancillary and declaratory relief including, most recently a claim for a declaration that the Federal Court Act is "unconstitutionally void for vagueness because of its failure to provide for the Appellants a fair and impartial forum within a Federal Court of Canada pursuant to the provisions of Section 24 (1) of the Canadian Charter of Rights and Freedoms".

[2]      The motion before the Court is an appeal of the decision of Prothonotary R. Lafrenière who struck out the Brother"s claim on the basis that it was "bereft of any possibility of success because this Court has no jurisdiction over the parties or subject matter of the proceeding". This motion seeks to set aside the order of Prothonotary Lafrenière and adds to the mix two constitutional questions.

[3]      The short answer to the constitutional questions is that since no notice has been given to the Attorney General of Canada as required by s. 57(1) of the Federal Court Act, R.S.C. 1985 c. F-7, the Court cannot hear the application. To the extent that it is sought to set aside Prothonotary Lafreniere"s decision on constitutional grounds, the attack is ill founded. The remedy is appeal, not constitutional challenge.

[4]      As for the substance of the motion, the decision of Prothonotary Lafreniere is correct and should not be disturbed.

[5]      The motion is dismissed with costs to the respondents, fixed at $500 each. There shall only be one set of costs for the respondents who are represented by the same counsel.

     Judge