Docket: T-876-16
Citation:
2016 FC 877
Vancouver, British Columbia, July 26, 2016
PRESENT: Prothonotary Roger R. Lafrenière
|
BETWEEN:
|
|
CORY PENNEY
|
|
Applicant
|
|
and
|
|
THE MINISTER OF PUBLIC SAFETY CANADA
AND ATTORNEY GENERAL OF CANADA
|
|
Respondents
|
ORDER AND REASONS
[1]
The Respondents seek an order pursuant to Rule
383 of the Federal Courts Rules
(the Rules) that the application be specially managed and that
all timelines fixed in Part 5 of the Rules be suspended pending the
appointment of a case management judge. The motion is opposed by the Applicant
on the grounds that the proceeding is not complicated and the appointment of
case management judge is therefore unnecessary. According to the Applicant, the
request for case management is “clearly
a delay tactic” on the part of the Respondents.
[2]
By way of background, the Applicant filed a
Notice of Application on June 2, 2016 seeking to challenge the denial of the
Applicant’s passport renewal application. The refusal letter dated May 6, 2016
states that a delegated official of the Minister of Public Safety decided pursuant
to section 10.1 of the Canadian Passport Order, SI/81-86 that a passport
would not be issued in the Applicant’s name as there were reasonable grounds to
believe that the decision was necessary to prevent the commission of a
terrorism offence as defined in section 2 of the Criminal Code or for the
national security of Canada or a foreign state. The Applicant seeks
relief in the nature of quo warranto to require the Minister to show
under what authority he had to deal with the Applicant’s renewal application
and certiorari to quash all decisions made against the Applicant under the Canadian
Passport Order.
[3]
Rule 383 empowers the Chief Justice of the
Federal Court to assign one or more judges to act as a case management judge in
a proceeding. However, the Rules do not prescribe any criteria to assist
in determining when an order under Rule 383 will be appropriate.
[4]
The Applicant relies on the decision of Madam
Justice Heneghan in Canada (Attorney General) and Janice Cochrane v Canada
(Information Commissioner), 2001 CanLII 22120 (FC) (“Cochrane”) for the
proposition that there must be a substantial reason for special management and
to justify departure from the timetables set out in the Rules. In Cochrane,
the Respondent had moved for an order appointing a case management judge to
specially manage two proceedings and to hold a dispute resolution conference in
accordance with Rules 387 to 389 for the purpose of narrowing the issues in the
proceedings. The motion was opposed by both Applicants. Justice Heneghan held
that the appointment of a case management judge was not subject to hard and
fast rules. She concluded that the allocation of judicial resources for case
management was not warranted as the proceedings were at an early stage and
there was “neither confusion nor a need to narrow the
issues”.
[5]
The Cochrane decision was rendered at the advent
of case management in the Federal Court. Although special
management is neither routine nor automatically granted on request, this Court is
now taking a much more flexible approach in assessing whether case management
should be granted. Case management orders will automatically be issued when it
appears necessary from the nature of the proceedings, such as class actions,
proceedings brought pursuant to the Patented Medicines (Notice of
Compliance) Regulations and cases involving First Nations band governance).
Special management can also be requested informally by letter when it is
anticipated that the timelines set out in the Rules cannot reasonably be
met by the parties, or when the Court’s intervention will be required to issue
directions, resolve procedural issues or deal with interlocutory motions. The
goal is to ensure that the proceeding is determined in the most just,
expeditious and least expensive manner, as set out in Rule 3.
[6]
There are ample reasons for appointing a case
management judge in the present case. In reaching that conclusion, I have
considered the arguments the Applicant has advanced to the contrary.
[7]
This application concerns the refusal to issue a
passport in the name of the Applicant. The refusal to issue the passport was
based on the grounds that it was necessary to prevent the commission of a
terrorist offence or for the national security of Canada or a foreign state. Section 6(2)
of the Prevention of Terrorist Travel Act, SC 2015, c
36, [PTTA] sets out special rules that apply to proceedings relating to
refusals or revocations under Canadian Passport Order.
[8]
Subsection 6(2)(a) of the PTTA provides
that the judge hearing the matter (the “designated judge”) must, on request of the Minister of Public Safety, hear submissions on
evidence of which the disclosure may be harmful to national security or
endanger the safety of an individual. The specific processes by which such
submissions are to be made have not yet been established. Subsections
6(2)(b)(c) and (d) also provide that the designated judge must ensure
the confidentiality of the evidence and other information provided by the Minister,
ensure that the Applicant is provided with a summary of the evidence and other
information available to the judge, and provide the Applicant and the Minister
with an opportunity to be heard.
[9]
The Respondents have stated that they intend to
make submissions to the Court pursuant to section 6(2)(a) and will be
requesting directions to that effect. Due to the exigencies of the business of
the Court, it will take some time before this process can be completed. It
follows that information which might be used by the Respondents to justify or
explain the decision under review will not be available for inclusion in the
certified tribunal record as the deadline for transmittal of the tribunal
record in accordance with Rule 318 has expired, and may not be available for
inclusion in the Respondents’ supporting affidavit within the timeframe
prescribed by Rule 307.
[10]
Given that the PTTA was recently adopted and
that there has been no judicial consideration of the legislation, and in light
of the Respondents’ stated intention to seek directions from a designated judge
and the almost certain need for Court’s directions on how this matter should
proceed, I conclude that the appointment of a case management judge is both
just and necessary to ensure that the matter proceeds in an orderly and
expeditious manner.
Email this Content