Akinbobala v. Canada (Attorney General), docket T-646-97

Date: 19971212

Docket: T-646-97

BETWEEN:

     EDWARD AKINBOBALA,

     Applicant

     (Appellant),

     - and -

     THE ATTORNEY GENERAL OF CANADA

     and THE MINISTER OF CANADIAN HERITAGE,

     Respondents

     (Respondents).

     REASONS FOR ORDER

MULDOON, J.

[1]      The parties, others and the Court have all not been so punctilious as they ought to have been, in the circumstances of this case.

[2]      In the beginning, in April, 1997, the applicant lodged an originating notice of motion for "a writ of mandamus, directing the Respondent [sic, which?] to accept the Applicant's proposal for certain amendments to the Broadcasting Act and to tender the proposal before the Federal Cabinet and for the Cabinet to consider".

[3]      In order to savour the applicant's and his counsel's view and understanding of the matter in which relief is sought it will be advisable, though inconvenient, to recite in full the applicant's stated grounds for relief, thus:

i.      Under the Department of Canadian Heritage Act, the Respondent, the Minister of Canadian Heritage ["the Minister"], is in law responsible for the administration of the Department of Canadian Heritage, has jurisdiction over broadcasting in Canada and is responsible for coordinating national policies relating to communication services for Canada. The Minister is responsible in law and in fact for tendering proposal relating to communication services in Canada before the Federal Cabinet.

ii.      The Minister's jurisdiction encompasses the promotion of fundamental freedoms and related values. Furthermore, the Respondent is responsible to coordinate, implement and promote national policies in any area of historical significance to Canada.

iii.      The Minister is bound by the policies in the Canadian Multiculturalism Act and is bound to recognize the equality of every Canadian citizen under the law and the right of every Canadian to equal protection and benefit of the law without discrimination. The Minister is also bound to recognize the equal status of every Canadian and the entitlement of every Canadian to equal rights, powers and privileges. In addition, the Minister is bound by the policy in the Canadian Multicultural Act to promote the full and equitable participation of individuals of all origins in the shaping of all aspects of Canadian society.

iv.      The Minister is bound by the provisions of the Canadian Charter of Rights and Freedoms.

v.      The Applicant tendered a proposal to the office of the Prime Minister for consideration by the Federal Cabinet, which proposal is for certain amendments to the Broadcasting Act. Stating that the Minister is responsible for bringing the proposal to the Cabinet, the proposal was redirected by the office of the Prime Minister to the Respondent [Minister of Canadian Heritage].

vi.      The Minister refused and continues to refuse to tender the Applicant's proposal before the Federal Cabinet, alleging, inter alia, that the Applicant is not a Canadian elite and may not have his proposal tendered before the Federal Cabinet.

v.[sic]      The decision whether or not to receive and to tender a proposal, such as the Applicant's proposal, before the Federal Cabinet is made pursuant to a statutory power of coordinating communication services for Canada. Such a decision may not be based on or fettered by illegal or irrelevant considerations.

vi.[sic]      The Minister has or has caused to be erected unreasonable and discriminatory barriers which prevent ordinary Canadian citizens from having access to or tendering proposal before the Federal Cabinet on matters of national importance.

vii.[sic]      The restrictions placed by the Minister on the access to the Federal Cabinet by ordinary Canadian citizens, such as the Applicant, is unconstitutional and infringes upon the Applicant's right to freedom of expression and the right to equality under the law, which right is guaranteed under the Canadian Charter of Rights and Freedoms. The restrictions are also contrary to the policies and the protection in the Canadian Multiculturalism Act.

viii.[sic]      The Minister alleged also, inter alia, that the Applicant's proposal contradicted some fundamental objectives of the Broadcasting Act. Allegedly, for that reason, the Minister was not in support of the proposal and thereafter failed to tender the proposal before the Cabinet.

ix.[sic]      The Minister was or ought to have been aware of the concerns of a growing number of Canadians, including another Member of Parliament, on the issue which is the subject of the proposal. In failing to tender the proposal to the Federal Cabinet, on such an issue of national importance, only by reason of her personal disposition, the Minister acted without jurisdiction.

x.[sic]      The Minister's jurisdiction is to initiate, recommend, coordinate and promote national policies. That jurisdiction does not include hindering national policies. A unilateral decision of what is national policy is a flagrant disregard to the rights of Canadians and an unreasonable hindrance to the process of tendering proposal before the Federal Cabinet.

xi.[sic]      The Minister's jurisdiction encompasses broadcasting and mandatorily includes promoting national policies and programs. That jurisdiction may not be fettered by an individual's perception of national interests. By acting on her individual or personal perception of national interest, and refusing to tender a proposal of national importance to the Federal Cabinet, the Minister exceeded her jurisdiction under the Department of Canadian Heritage Act.

xii.[sic]      Assuming the Minister failed to tender the proposal to the Cabinet only by reason of an alleged contradiction between the proposal and some fundamental objectives of the Broadcasting Act, the Minister also unreasonably fettered any existing discretion. The alleged fundamental objectives are part of the Broadcasting Act which may also be amended in the process of implementing the changes proposed by the Applicant.

xiii.[sic]      The Minister failed or refused to tender the Applicant's proposal to the Federal Cabinet, alleging also, inter alia, that the Applicant's proposal was redirected to the Minister only for the Minister to be aware of the Applicant's "remarks".

xiv.[sic]      The responsibility for broadcasting and to tender proposal relating to communication services in Canada before the Federal Cabinet may not be avoided by alleging that a proposal was merely forwarded to the Minister in order to make the Minister aware of the remarks therein.

xv.[sic]      The Minister has refused and continues to refuse to exercise her jurisdiction in matters of the Broadcasting Act and is thereby preventing ordinary Canadian citizens from having legitimate national broadcasting concerns brought before the Federal Cabinet.

[4]      The applicant's subject of representations to the CRTC and the several Ministers seems to be serious enough in that he proposes the licensing of his enterprise Telephone Plus as the agent of U.S. broadcaster, the "footprint" of whose signal falls within Canada, the imposition of a receiving fee, and the suppression in whole or in part of the "grey market". However, it is not the content of the applicant's proposal and his complaint to the CRTC with which this Court is concerned.

[5]      The applicant's complaint takes focus in a reply which he received by a letter from the senior legal counsel to the Canadian Radio-television and Tele-communications Commission (CRTC) dated June 6, 1996, in which are the following selected passages:

*** *** ***

From our conversation I understand that you wish to market the services of the United States Satellite Broadcast Company (USSB) and DirecTV in Canada. You propose to do this by entering into agreements with those two companies. The use of the satellites and the signals to be distributed would be under the control of USSB and DirecTV.

Under those circumstances, you will effectively be a marketing agent for USSB and DirecTV. As such you would not be carrying on a broadcasting undertaking and therefore would not need a licence from this Commission. It would be USSB and DirecTV that would need to obtain a licence were they to decide to allow you to market their signals in Canada.

*** *** ***

Parliament normally speaks through legislation and, in this case, it has passed the Broadcasting Act. That act requires that the Canadian broadcasting system be owned and operated by Canadians. The government has furnished a direction to the Commission clarifying who is and who is not eligible to hold a licence. It is quite clear from that direction that neither DirecTV nor USSB would be eligible for a licence from this Commission. If USSB or DirecTV did enter in an agreement with you such that they would allow you to market their services in Canada, it could be argued that they were carrying on undertakings in Canada without licences. If this were so, they would be subject to the sanctions found in the Broadcasting Act which make it an offense to carry on a undertaking without a licence from the CRTC. You have explained that you believe that because you have evidence that there are operators in Canada that are assisting Canadians in obtaining the USSB and DirecTV services in Canada, you believe that there should be some solution allowing you to market those signals in a legal manner. Because of the situation that I have outlined above, I do not see how this is possible at this time. It would take an amendment to the Broadcasting Act to achieve this. I should point out, however, that the government will probably be reluctant to make such a change because one of the cornerstones of the broadcasting policy as set out in the Broadcasting Act is that the Canadian broadcasting system be owned, operated and controlled by Canadians.

(Exhibit L to applicant's affidavit sworn April 6, 1997.)

So, the CRTC's senior counsel told the applicant that what his quest to be licensed required, was an unlikely amendment to the Broadcasting Act.

[6]      Following this - on this much herein abridged critical path to this litigation - the applicant called the Prime Minister's office (PMO) and asked how he could have the matter of his quest for an amendment to the Broadcasting Act placed before the Cabinet. He deposed (para. 26 of his affidavit) that he was advised to put his proposal in writing and send it to the PMO. The applicant then prepared his proposal, "Appeal to the Federal Cabinet - CRTC Ruling - Re: DTH Satellite Distribution Undertaking", (the proposal), a copy of which is exhibit M to his affidavit.

[7]      There were problems with transmission of the proposal by Canada Post, but they were ultimately resolved.

[8]      Ultimately the applicant was informed by the PMO that his proposal had been forwarded to the Deputy Prime Minister and the Minister of Canadian Heritage. He was dissatisfied with this turn of events because of previous experience but was informed by the PMO "that the Deputy Prime Minister was responsible for bringing the proposal before the Cabinet", (applicant's para. 30).

[9]      One can see the applicant's false understanding of his rights in this matter being formed in paragraph 35 of his affidavit, thus:

35.      Upset with the continuing refusal to have my proposal brought before the Cabinet, I met with my Member of Parliament ["MP"]. My MP is the International Trade Minister. After reviewing the proposal that I wanted to have brought before the Cabinet, my MP informed me and I verily believe that the Deputy Prime Minister is responsible for bringing such proposals before the Cabinet. I was also informed that since the Office of the Prime Minister forwarded my proposal to the Deputy Prime Minister, it is the responsibility of the Deputy Prime Minister to bring the proposal before the Cabinet.

The applicant also engaged in correspondence with the manager of the Underground Economy & Compliance Initiatives Section, Audit Directorate, of Revenue Canada (exhibit O-1). That was somewhat off this abridged critical path.

[10]      A policy adviser to the Deputy P.M. & Minister of Canadian Heritage wrote to the applicant on November 14, 1996, conveying these positions:

*** *** ***

The proposal that you have put forward would contravene existing policy by enabling broadcasting distribution undertakings, such as DirecTV and USSB, which are neither Canadian-owned and -controlled nor authorized for distribution in Canada, to serve the Canadian market. Furthermore, because these foreign broadcasting distribution undertakings are not subject to Canadian broadcasting regulations, they would not be required to offer Canadian programming services and therefore, the revenues from these programming services would not accrue to the Canadian broadcasting system.

*** *** ***

It is appreciated that the intent behind your proposal is to harness the grey market for the purpose of supporting the Canadian broadcasting system. Unfortunately, your proposal contradicts fundamental objectives of the Broadcasting Act and the Radiocommunications Act. Because the Canadian Government stands firmly behind both Acts, Ms. Copps is not in a position to support your proposal.

(Exhibit P to the applicant's affidavit sworn April 6, 1997)

This rather definite indication that the Minister would not support his proposal did not stop the applicant.

[11]      In order to obtain a writ of mandamus an applicant must demonstrate a legal or equitable right to it. and must demonstrate that the respondent is obliged by law to perform the act which the applicant seeks to compel and must not evince bad faith. These propositions are two sides of the same coin, illustrated by much authoritative jurisprudence, of which one needs only to mention: O'Grady v. White, [1983] 1 F.C. 719, ('82) 42 N.R. 608 at p. 611, (1982) 138 D.L.R. (3d) 167, and Hartel Holdings v. Calgary, [1984] 1 S.C.R. 337">[1984] 1 S.C.R. 337, both unanimous appellate decisions.

[12]      In invoking the Canadian Multiculturalism Act the applicant seems to be accusing the respondents of the bad faith of discrimination against him and/or his associates, but he adduces no proof of such and falls far short of making out that accusation. The applicant invokes the Department of Canadian Heritage Act, and the Canadian Charter of Rights and Freedoms (the Charter), too. No case is made out to fix the appropriate Minister with a duty to do the applicant's, or anyone else's, bidding under the heritage legislation. It is unfortunate, if true, that some insensitive minion in a Minister's outer office told the applicant that Ministers bend in this regard only to the importunities of "Canadian elites". That kind of remark, if ever uttered, would be not only ignorant, but mischievous. Even so, such abysmal public relations even if true, would not make the applicant's case on the basis of the two above recited propositions.

[13]      This Court holds that the applicant's allegations, and such evidence as he presents, do not engage the Charter, in these circumstances.

[14]      Indeed, the cabinet as such is not even mentioned in the Constitution, although it is real enough for all that. The Constitution Act, 1867 provides in section 11:

11.      There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen's Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General.

Those Ministers and Secretaries of State whom the Prime Minister regards as his (or her) cabinet, constitute from time to time as required by law the active part of the Privy Council.

[15]      There seems to be a dearth of jurisprudence on the very point raised by the applicant, but many authoritative writers have produced doctrine on the machinery of government. An example, well known to lawyers and judges is Peter W. Hogg, in whose opus Constitutional Law of Canada, 1992, 3rd ed. (loose-leaf) he reveals at pp. 9-8 to 9-10:

The whole Privy Council would be a body of some one hundred members of widely differing political persuasions. Such a body could not, and does not, conduct the business of government. The whole Privy Council meets very rarely, and then only for ceremonial occasions.

The cabinet, which does meet regularly and frequently, is in most matters the supreme executive authority. (The "reserve powers" remain in the Governor General, and some powers are vested in the Prime Minister; these powers are discussed later.) The cabinet formulates and carries out all executive policies, and it is responsible for the administration of all the departments of government. It constitutes the only active part of the Privy Council, and it exercises the powers of that body. The Governor General does not preside over, or even attend, the meetings of the cabinet. The Prime Minister presides. Where the Constitution or a statute requires that a decision be made by the "Governor General in Council" (and this requirement is very common indeed), there is still no meeting with the Governor General. The cabinet (or a cabinet committee to which routine Privy Council business has been delegated) will make the decision, and send an "order" or "minute" of the decision to the Governor General for signature (which by convention is automatically given). Where a statute requires that a decision be made by a particular minister, then the cabinet will make the decision, and the relevant minister will formally authenticate the decision. Of course a cabinet will be content to delegate many matters to individual ministers, but each minister recognizes the supreme authority of the cabinet should the cabinet seek to exercise it.

(c) The Prime Minister

While in most matters the cabinet is the supreme executive authority, the Prime Minister (or provincial Premier) has certain powers which he or she does not need to share with his or her colleagues. Two of these are of great importance. First, there is the power to select the other ministers, and the power to promote, demote or dismiss them at pleasure. (Technically, of course, the Prime Minister only has power to recommend such measures to the Governor General, but the recommendations will invariably be acted upon.) Secondly, the Prime Minister is personally responsible for tendering advice to the Governor General as to when Parliament should be dissolved for an election, and when an elected Parliament should be summoned into session.

Not only are these powers important in their own right, but the Prime Minister's possession of them also ensures that the Prime Minister's voice will be the most influential one within the cabinet.

(pp. 9-9 to 9-10)

* * * and the extent to which the full cabinet plays a role in important decision-making may depend in large measure upon the discretion of the Prime Minister. In this connection it is important to notice that the Prime Minister calls the meetings of cabinet, settles the agenda, and presides over the meetings.

(d) Ministerial responsibility

There is a minister at the head of each of the departments of government. Most of the cabinet ministers have charge of at least one department. (There are usually one or more ministers without portfolio who are members of the cabinet, but who do not have charge of a department.) Each minister who does have charge of a department has the administrative duties that go with such an office. In addition, the minister "represents" his or her department in Parliament: the minister pilots the departmental estimates of proposed expenditures through the House, explains and defends the policies and practices of the department, and introduces into Parliament any bills that relate to the work of the department.

A government department is, of course, administered by civil servants, who, in contrast to the minister, are supposed to be politically neutral. The senior civil servant in each department, who in Canada is usually called a "deputy minister", is the link between the minister and the civil servants. The deputy minister acts both as an adviser to the minister and as the senior manager of the department. Of course, the minister is under no obligation to follow the advice of the deputy minister.

(p. 9-10)

A further valuable description of the cabinet's working and functions may be found in Con Mills, CCH Canadian Ltd. 1992.

[16]      Outside of the applicant's allegations there is surely no mention of any right of a citizen to compel a federal or provincial cabinet Minister to place the citizen's project for consideration before the cabinet, or in any way to intrude upon its agenda. As seen, it is the right of the Prime Minister exclusively to establish the cabinet's agenda. Moreover a Minister who is not obliged to heed his or her own Deputy Minister, is not obliged (at whatever political risk, if any) to heed the advice and promotions of a private citizens. All or most representative democracies must operate in the same manner.

[17]      The applicant complains that this ignoring of his urging is undemocratic. One might examine that allegation since the Constitution Act, 1982 describes Canada as "a free and democratic society". First and most basic is the applicant's right to promote his project to the Prime Minister's Office and to all Ministers, as well as to speak out and to write about it, and to criticize the government for its policies, all without incurring any risk whatever of arrest and detention. Furthermore he may, equally with impunity, approach Senators and Members of Parliament (M.P.s), both of the government and of the opposition in order to promote his project. Indeed he may yet obtain an official cabinet response by having an M.P. place his petition before the House of Commons. The applicant's counsel can advise him about petitions.

[18]      All of the foregoing is open to the applicant, but compelling a cabinet Minister to put his project on the cabinet's agenda is not open to him. He has not shown his, or anyone's, right to do it. By convention, custom and practice the cabinet is the master of its own business and there is no basis in law for an alleged right on the part of citizens to require that a matter be included on the cabinet's agenda, or that the cabinet consider, or discuss, that matter.

[19]      The foregoing is true in law, but is it surely also intuitive.

[20]      In 1948, Robert MacGregor Dawson, in his great work, The Government of Canada, University of Toronto Press, reprinted 1948, made this observation:

Another common difficulty which is closely related to the size of the Cabinet has been the congestion of Cabinet business. While this is not in one way as serious a problem in Canada as in some other countries because the provinces assume a substantial portion of the work of government, the volume tends nevertheless to be unduly large because of the amount of detail which the Cabinet has attempted to handle directly. This has sprung partly from a political and administrative immaturity and a consequent reluctance to delegate power and responsibility to others, and partly from the representative nature of the Cabinet and the expectation that each section or interest will have an opportunity to participate in every decision which will be likely to affect it.

This same passage appears in the fifth edition of 1970, at p. 226.

[21]      The same problems of cabinet size and pressure of business mentioned by R.M. Dawson in the passages cited above, are confirmed by J.A. Corry in the reprinted, 1954, second edition of his well known tome, Democratic Government and Politics in the notable Canadian Government series of works authored by Corry, Dawson, Paul Gérin-Lajoie, Norman Ward and Frank MacKinnon.

[22]      There is a dearth but not an utter void of jurisprudence. The respondents' counsel seems to say that Ministers of the Crown are quite immune from judicial review. Such is just not so. Of interest here is Madam Justice Reed's reasoning in Inuvialuit Regional Corp'n. v. The Queen & al., (1992) 53 F.T.R. 1 at pp. 4 to 6, paras. [16] to [22] and [24]:

[16] A more substantial argument is that a writ in the nature of prohibition cannot be granted because the nature of the activity being undertaken by the Minister of Indian Affairs and Northern Development, in submitting the agreement to cabinet, and presumably later to Parliament, and the action of signing the agreement by whoever might be designated as a representative are not the kind of activities which fall within s.18 of the Federal Court Act, R.S.C. 1985, c.F-7. It is argued by counsel for the respondents that these actions are political or ministerial and not subject to restraint by the courts. Section 18(1) provides that the trial division has exclusive jurisdiction:

(a)      * * *

[recited in full]

(b)      * * *

[17] Section 2 of the Federal Court Act provides that:

[recited in full] * * *

[18] The text by Sgayias, Kinnear, Rennie and Saunders entitled Federal Court Practice 1991-92 at p. 41, refers to the recent amendment to subs. 2 in the following terms:

"The definition 'federal board, commission or other tribunal' is revised to include within its scope bodies or persons exercising power by or under the Crown prerogative and to make it clear that the Senate and House of Commons fall outside the expression's scope. The former addition ensures that the Federal Court, and not the provincial superior courts, has the power to review administrative actions based on the exercise of the federal Royal prerogative. The latter clarification, which is found in new s. 2(2), is Parliament's response to the decision at first instance in Southam Inc. v. Canada (A.G.), [1989] 3 F.C. 147; 27 F.T.R. 139; 43 C.R.R. 87 (T.D.), which decision was subsequently overturned on appeal; [1990] 3 F.C. 465; 73 D.L.R. (4th) 289; 114 N.R. 255 (C.A.)."

[19] Counsel for the applicants referred to both M.N.R. v. Kruger Inc., [1984] 2 F.C., 535 (C.A.) and to Operation Dismantle v. Canada et al., [1985] 1 S.C.R. 441, 59 N.R. 1; 18 D.L.R. (4th) 481; 13 C.P.R. 287. In the first at 543-544, the Minister of Finance was held to be subject to certiorari when exercising a purely discretionary administrative authority, pursuant to a statute, in authorizing a search of a taxpayer's premises. It was held that compliance with the constitutional guarantees set out in the Canadian Charter of Rights and Freedoms was required. In the Operation Dismantle case at p. 455, of course,it was held that cabinet decisions made in exercise of the royal prerogative could be subject to judicial scrutiny for compatibility with the Charter.

[20] I have trouble classifying the action of a minister in submitting a proposal to cabinet as an exercise of the royal prerogative although the signing of the agreement, be it a treaty or mere contract, by representatives of the Crown would be an exercise of such authority. I was referred to no statutory authority as the source of the actions in question. The Minister of Indian Affairs and Northern Development is given by s. 6 of the Department of Indian Affairs and Northern Development Act, R.S.C. 1985, c.I-6, authority over the lands in question:

6. * * * [recited in full] * * *

[21] If I understand counsel for the respondent's argument correctly, it is that the Minister when acting pursuant to the terms of the Gwich'in agreement, in presenting the proposal to cabinet and thereby triggering the possible signing and ultimate embodiment of the agreement in legislation, is acting pursuant to a private contractual agreement. He argues that prohibition does not lie to prevent breach of a private agreement (paragraph 43 of the respondents' Memorandum of Fact and Law).

[22] In any event, I do not propose to canvas these arguments any further because I do not find it necessary to do so. I accept counsel for the intervenor's argument that an order should not be given now because it is premature. He argues that the Minister should not be restrained placing the agreement before cabinet for discussion; that it is not known whether cabinet will in fact approve the agreement or whether it will approve it subject to conditions. He argues that it is not known who will sign the agreement on behalf of the government, if it is to be signed, and he notes that even if it is signed there is no obligation to submit the agreement to Parliament before the dispute concerning the Aklavik lands is settled by the Gwich'in and the Inuvialuit, or by this court if necessary.

*** *** ***

[24] That the court has ancillary authority to stay a minister acting to carry out a statutory obligation in order to ensure that proceedings before the Court are not rendered nugatory was decided in Toth v. M.E.I., [1989] 1 F.C. 535; 86 N.R. 302; 6 Imm.L.R. (2d) 123 (F.C.A.). While that case dealt with the ancillary jurisdiction of the Federal Court of Appeal, there is no reason the principle is not equally applicable to proceedings before the Trial Division and it has been so applied. Also while that decision was given in the context of an application for judicial review, there is no reason why it does not also apply in the context of an action for declaratory relief. Lastly, while the Toth decision dealt with the granting of an injunction to prevent a minister carrying out his statutory duties, it seems even more available when that duty arises from what appears to be a contractual obligation.

Reed, J. then dismissed the application for prohibition. According to her text (above), however, she declined to adjudicate the virtually-the-same issue which arises in this case at bar. Her observations nevertheless are insightful and useful.

[23]      Reed, J. in the above cited case did not mention the Supreme Court's judgment in Auditor General of Canada v. Minister of Energy Mines & Resources & al., [1989] 2 S.C.R. 49, (1989) 61 D.L.R. (4th) 604, wherein then Chief Justice Dickson wrote for the unanimous Court. That was a case of the Auditor General's application for mandamus, in effect, to exercise an alleged judicially-enforceable right of access to information including records of Petro-Canada and cabinet documents concerning Petro-Canada's acquisition of Petrofina. No Charter issue arose in that case.

[24]      The Auditor General case is worth reading in full, but the reasons are far too long to recite here. Certain passages stand out for present purposes:

The most basic notion of justiciability in the Canadian legal process is that referred to in Pickin, supra, and inherited from the English Westminster and unitary form of government, namely, that it is not the place of the courts to pass judgment on the validity of statutes. Of course, in the Canadian context, the constitutional role of the judiciary with regard to the validity of laws has been much modified by the federal division of powers as well as the entrenchment of substantive protection of certain constitutional values in the various Constitution Acts, most notably that of 1982. There is an array of issues which calls for the exercise of judicial judgment on whether the questions are properly cognizable by the courts. Ultimately, such judgment depends on the appreciation by the judiciary of its own position in the constitutional scheme.

(p. 91)

*** *** ***

Acceptance of the Auditor General's interpretation of his s.7(2)(d) duty and s.13(1) right would result in a de facto shift in the constitutional balance of powers of the expenditure auditing process. Clearly, such a shift is statutorily contingent, but in the absence of a clearer expression of Parliamentary intention that the courts should decide the merits of the Auditor General's claims for an enhanced role and bolstered powers. I do not think it appropriate for the courts to assume that responsibility. The appropriateness of an enlarged mandate for the Auditor General is for Parliament, not the courts, to decide.

*** *** ***

One may ask, what then is the applicant's or anyone else's mandate to compel a Minister to place before the cabinet something to consider?

*** *** ***

I am not unaware of the "fairly emphatic" statement made by me in Operation Dismantle, supra, in the context of Charter review, in which four other members of the Court joined. "I have no doubt that disputes of a political or foreign policy nature may be properly cognizable by the courts" (p. 459), but for the above reasons and in the circumstances, I am of the opinion that s.7(1)(b) of the Auditor General Act is the only remedy the Auditor General has with regard to the claimed denial of his s.13(1) rights of access to information. I cannot over-emphasize that this is not a Charter case.

It is not, therefore, necessary for me to deal with the substance of the contending interpretations of the Auditor General's rights and duties as they relate to s.13(1) access to information. Nothing in the foregoing should be taken as prejudicing the right of the House of Commons to deal with a s.7(1)(b) report as it sees fit. Further, the holdings in this case should be viewed as limited to the interpretation of a unique statute as informed by the particular role played by the Auditor General. The above analysis shall not be taken to detract from the fundamental principle that the courts should not readily decline to grant remedies for rights recognized by the laws of Canada.

(pp. 109-110)

[25]      Certainly, the law recognizes no immunity to cabinet Ministers from judicial review in regard to their lawful duties pursuant to common law and statute. Here however there is no lawful duty of the respondents to obey the applicant's requirement to have his project placed before the cabinet. This matter is simply not justiciable. Although the result seems to be intuitively clear, yet this may be a case of first impression.

[26]      All of this argument and adjudication arise on an appeal from the prothonotary, wherein he allowed the respondents' motion to strike out the application pursuant to rule 419. That rule applies literally to an action's pleadings, not to an originating notice of motion, as here. It was pointed out by the Court of Appeal in Bull Laboratories Inc. v. Pharmacia Inc., (1994) 176 N.R. 48, that there is not necessarily a gap in the rules which invites the stretching of rule 419 to cover it. Indeed the Court there noted (p. 52) 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". Amen.

[27]      In this case it would have been quicker and less expensive simply to dispose of this summary proceeding summarily, because that is what was ultimately required in any event. Nothing was gained by moving to strike the application under rule 419, despite the feeling that the outcome would be intuitively obvious. There was a further complication in that the respondent provided a draft model order, which contained an alternative provision lest the prothonotary not strike the originating notice. The learned prothonotary inadvertently signed an order form in conformity with the draft, giving the applicant to think that his motion somehow was not struck, after all. It is now clear that the order as drafted was signed inadvertently, that the prothonotary truly purported to strike the originating motion, and that in substance, if not form, such a fate was deserved in terms of dismissing it.

[28]      It takes millions of citizens to elect a majority of M.P.s in the Commons in order to support a government. If individuals could dictate what matters and projects have to be discussed by the cabinet, a couple of thousand opponents of the government, or even fewer, could easily tie up the cabinet's agenda, to the extreme detriment of its proceeding with the government's legitimate business.

[29]      The application on appeal is dismissed. Pursuant to rule 1618 no costs are awarded in these peculiar circumstances.

    

Judge

Ottawa, Ontario

December 12, 1997