A-566-92
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
EMILE MARGUERITA MARCUS
MENNES
Appellant
AND:
HER
MAJESTY THE QUEEN
Respondent
Heard at Ottawa (Ontario) on
Tuesday, September 9, 1997.
Judgment rendered from the
Bench on September 9, 1997.
REASONS FOR JUDGMENT
OF THE COURT DELIVERED BY: DÉCARY
J.A.
A-566-92
CORAM: STONE J.A.
STRAYER J.A.
DÉCARY J.A.
BETWEEN:
EMILE MARGUERITA MARCUS
MENNES
Appellant
AND:
HER
MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
OF THE COURT
(Delivered from the
Bench at Ottawa (Ontario)
on
Tuesday, September 9, 1997.)
DÉCARY J.A.
This
appeal is against two Orders made by the Motions Judge on April 29, 1992 in
Court File No. T-289-91. In the first Order, the Motions Judge struck out the
statement of claim and he also dismissed an application brought against the
Deputy Minister of Justice for contempt of court. In the second Order, he prohibited
the appellant from instituting any further proceedings in this Court without
first obtaining the express consent of a judge.
The
respondent readily concedes that the two Orders are susceptible to attack. The
problem with the first Order is that there was no application before the
Motions Judge to strike out the pleadings and that the application for contempt
of court was not before him. The problem with the second Order is that it
could presumably only be justified under section 40 of the Federal Court Act but there was no
application pursuant to that section and the consent of the Attorney General of
Canada had not been provided.
We
have therefore no other choice but to allow the appeal and quash the two Orders
for having been made improperly.
What
was before the Motions Judge was a motion under Rule 1733 by the appellant
seeking to impeach a decision of the Associate Chief Justice made on July 24,
1991. The Motions Judge did not deal with that motion. He could not in any
event have dealt with it since there was simply no decision, the Associate
Chief Justice having never signed a formal Order in Court File No. T-289-91,
the action in question here. What the Motions Judge ought to have done is to
have directed that the matter be returned to the Associate Chief Justice so
that a formal Order might be taken out before the application under Rule 1733
proceeded. This is precisely the direction which we have chosen to give.
Counsel
for the respondent has invited the Court in his Memorandum of Fact and Law to
impose a stay pursuant to paragraph 50(1)(b) of the Federal Court Act.
Counsel argues that the appellant at the end of the day does not have a viable
cause of action and that a stay of proceedings would best serve the interests
of justice. Assuming, for the sake of discussion, that a stay such as the one
requested by the respondent can be ordered under paragraph 50(1)(b) of
the Federal Court Act without a formal application, we would decline to
order one, if only for the reasons that the very appeal before us concerns
orders which the Motions Judge was not in a position to issue and that the very
application which was before the Motions Judge was never dealt with. The
appellant, at this stage, can hardly be blamed for what has happened. It seems
to us that if a stay order is warranted under paragraph 50(1)(b) of the Federal
Court Act, or if a vexatious proceedings order is warranted under section
40, such order should be applied for in the Trial Division once a formal Order
is signed by the Associate Chief Justice.
The
appeal will therefore be allowed with costs fixed at $100.00 payable forthwith,
the Orders of the Motions Judge dated April 29, 1992 will be set aside and the
matter will be referred back to the Associate Chief Justice for signature of an
Order nunc pro tunc in Court File No. T-289-91 implementing his reasons
dated July 24, 1991, and to the Trial Division for disposition of the
appellant's motion under Rule 1733.
"Robert Décary"
J.A.
FEDERAL
COURT OF APPEAL
A-566-92
BETWEEN:
EMILE MARGUERITA MARCUS
MENNES
Appellant
AND:
HER
MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF
THE COURT
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