Docket: T-569-15
Citation:
2015 FC 807
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 30, 2015
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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DAVID
LESSARD-GAUVIN
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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ORDER AND REASONS
[1]
This is a motion by the respondent asking the
Court to strike out, without leave to amend, the amended notice of application
filed by the applicant, on the ground that a final decision has yet to be
issued by the federal board, commission or tribunal at issue, in this case the
Canadian Human Rights Commission [Commission], with regard to various complaints
of discrimination filed by the applicant.
[2]
Paragraph 221(1)(a) of the Federal
Courts Rules, SOR/98-106 [Rules] provides that the Court may, upon motion,
order that a pleading, or anything contained therein, be struck out, with or
without leave to amend, if it discloses no cause of action or defence, as the
case may be. The Court shall allow a motion to strike under paragraph 221(1)(a)
only Rules only where, assuming the facts alleged in the notice of application
are true, the Court concludes that the application is so clearly improper as
to be bereft of any possibility of success (David Bull Laboratories (Canada)
Inc v Pharmacia Inc, [1995] 1 FCR 588, 1994 CanLII 3529 (FCA); see also Hunt
v Carey Canada Inc, [1990] 2 S.C.R. 959, 1990 CanLII 90 (SCC) at p. 980). The
Court must exercise its power to strike out pleadings with considerable
prudence and reluctance (Canada v Prentice, 2005 FCA 395 at para 23). I
have determined that the amended notice of application should be struck in its
entirety, but that the applicant should be allowed to serve and file a
re-amended notice of application.
[3]
In his amended notice of application, the
applicant is currently challenging a so-called “decision” dated March 12, 2015,
by which a Commission officer indicated that the Commission accepted complaints
where there was a direct link between the discriminatory act and at least one
of the prohibited grounds of discrimination set out in the Canadian Human
Rights Act, RSC 1985, c H-6 [Act]. However, the issues raised by the
applicant are language-related and do not constitute a prohibited ground of
discrimination. This letter states that the Commission is unable to help the
applicant and refers him to the Office of the Commissioner of Official Languages.
In his amended notice of application, the applicant also asks the Court to make
a number of declarations of unconstitutionality, in particular a declaration
that any Canadian statutory instrument that includes a closed, restricted or
exhaustive list of prohibited grounds of discrimination is incompatible with
section 15 of the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982,
c 11 [Charter] and must therefore be interpreted as comprising an open list
that would implicitly include any ground explicit or analogous to section 15 of
the Charter, in addition to declaring the omission of language, political opinion
or conviction, and social condition, as prohibited grounds of discrimination
under the Act, as a breach of section 15 of the Charter.
[4]
The respondent argues that the amended notice of
application discloses no cause of action and is doomed to fail. First, the
letter dated March 12, 2015, is not a decision, order, act or proceeding of a federal
board, commission or other tribunal within the meaning of paragraph 18.1(3)(b)
of the Federal Courts Act, RSC 1985, c F-7. In fact, the letter dated March
12, 2015, was written by an employee who has no decision-making authority and
was therefore merely a courtesy letter for information purposes only (see Kourtchenko
v Canada (Minister of Citizenship and Immigration), 1998 CanLII 7213 (FC); Chiu
v Canada (National Parole Board), 2005 FC 1516). Second, the application
for review has become moot, given that, following the filing of the judicial
review application, the Commission notified the applicant that it would hear
his discrimination complaint. Third, the application for review is premature because
there has been no final decision on the admissibility or merits of the
applicant’s discrimination complaint (as well as on five other complaint files
involving the current applicant) (Canada (Border Services Agency) v CB
Powell Limited, 2010 FCA 61 at paras 30-33 [CB Powell]) and,
consequently, the applicant has no current interest in obtaining a declaration
of unconstitutionality. The applicant must therefore file a new application for
judicial review, if necessary, when a final decision is rendered by the
Commission. And there is nothing keeping him from asking the Court to
consolidate the judicial review applications once the Commission has issued its
final decision in the six complaint files the applicant refers to in his
pleadings or written representations.
[5]
For his part, the applicant counters that the
letter dated March 12, 2015, constitutes a decision, as demonstrated by the
Commission’s Section 40/41 Reports, which indicate that his file was closed following
the letter dated March 12, 2015, then reopened after the applicant filed his
application for judicial review. Moreover, it is important that the Court be
able to examine the lawfulness of the process followed by the Commission, given
that in this case the applicant’s complaint document was discredited and taken
to be merely a request for information. Furthermore, in the event that the
Commission did not dismiss the applicant’s complaints, there would be no debate
as to the constitutionality of the provisions in issue and the Commission could
continue to dismiss complaints filed on these grounds by others. In addition, the
applicant notes that certain aspects of the amended notice of application do
not depend on the impugned decision. The applicant is seeking to have upcoming decisions
to be made by the Commission regarding the six complaints raising prohibited
grounds of discrimination not set out in section 3 of the Act (language, social
condition and political convictions) consolidated in a single application for
judicial review, where appropriate. Subsidiarily, the Court should only strike out
those paragraphs in the amended notice of application that refer to the
“decision” of March 12, 2015, to close his file. Moreover, while
awaiting a final decision by the Commission, the Court should stay the
proceedings – the applicant claiming that this way of proceeding is more
economical and that the respondent would suffer no prejudice.
[6]
The Court was informed at the hearing that the
Commission is likely to issue a decision shortly on the admissibility of the complaint
at issue in this application for judicial review once the applicant has
submitted his comments regarding the recommendation to dismiss his complaint,
on the grounds that it is frivolous. During oral submissions by the Commission’s
counsel, who asked to intervene only on certain aspects of the file, he
indicated to the Court that the Commission has no jurisdiction to examine
constitutional issues or to declare a provision of its enabling statute inoperative.
However, given that there is no final decision on the matter from the
Commission as of yet, it would be an ungainly solution to separate the requests
for a declaration of unconstitutionality from the rest of the application for
judicial review, without converting it into an action.
[7]
All things considered, I agree with the
respondent’s argument that the application for judicial review is premature and
that there is no decision to review at this time. As the evidence in the record
shows, the letter dated March 12, 2015, is not a decision or act of a federal
board, commission or other tribunal and in the absence of a final decision, the
Court must refuse to hear the application because it is premature (CB Powell,
above). On the other hand, it is clear that the requests for a declaration of
unconstitutionality are intrinsically linked to the application for judicial
review as it is currently worded and, from a pragmatic view, the Court cannot
separate the part of the application regarding alleged unconstitutionality from
the part of the application that concerns the letter dated March 12, 2015,
without creating a notice of judicial review that would contain no decision to
review. In this case, the applicant has given no indication that he wishes to
convert his judicial review application into a declaratory action, because he
feels that the Court must have a complete factual portrait of the proceedings
before the Commission before making determinations on the constitutional issues
he intends to raise in the matter. In view of the submissions made by both
parties at the hearing before the Court, it is highly likely that the Commission
will dismiss the applicant’s complaints due to the fact that they are not based
on one of the prohibited grounds of discrimination set out in section 3 of the
Act.
[8]
In this case, no suggestion has been made by the
respondent that the declarations of unconstitutionality potentially sought by the
applicant– in the event his complaints are dismissed for not involving one of
the prohibited grounds of discrimination set out in section 3 of the Act – are frivolous
or vexatious. Considering that the complaints review process is already well
underway, and that there is every reason to believe that final decisions on the
admissibility of the complaints will be issued shortly, it is in the interests
of justice to allow the applicant to serve and file a re-amended notice of
application once a final decision has been made, rather than force him to
commence a new proceeding (Simon v Canada, 2011 FCA 6 at paras 8 et
seq. [Simon]; Hryniak v Mauldin, [2014] 1 S.C.R. 87, 2014 SCC 7
at paras 27-29).
[9]
However, the same cautions set out by Justice
Dawson in Simon at paras 17-18 apply here: the applicant must ensure
that any further pleading comply with the Rules of the Federal Court governing
pleadings, such as Rule 174, as a failure to comply with these Rules could lead
to the new pleading being struck out (see for example Simon v Canada,
2011 FC 582). I would hasten to add, though, that the striking out of the
amended notice of application, as it is currently worded, is solely due to its
prematurity and the absence of a final decision; however, this does not mean
that the applicant cannot submit a request for a declaration of
unconstitutionality or that he cannot challenge the process followed by the
Commission once it has made its final decision(s).
[10]
For these reasons, the Court will order the
striking out of the amended notice of application and a stay of proceedings
until the Commission has rendered a final decision in the applicant’s file.
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