Docket:
A-435-12
Citation:
2013 FCA 258
CORAM:
BLAIS
C.J.
SHARLOW
J.A.
STRATAS
J.A.
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BETWEEN:
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MATTHEW G. YEAGER
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Appellant
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and
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STOCKWELL DAY, MINISTER
(AS HE THEN WAS)
OF DEPARTMENT OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS, MINISTER
OF DEPARTMENT OF PUBLIC SAFETY,
AND ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the
Bench at Toronto, Ontario, on November 5, 2013).
STRATAS J.A.
[1]
Mr. Yeager appeals from the judgment dated
October 1, 2012 of the Federal Court (per Justice Near): 2012 FC 1157. The
Federal Court dismissed Mr. Yeager’s motion for reconsideration of an order
made by Deputy Judge Tannenbaum.
[2]
The events giving rise to the motion for
reconsideration can be briefly summarized. Mr. Yeager brought a motion under
Rule 317 for an order requiring the respondents to produce certain documents
and to cross-examine certain of the respondents’ officials for the purposes of
a pending judicial review. The Deputy Judge dismissed the motion, finding that
the documents sought did not exist and cross-examination was not available
because the officials had not filed affidavits.
[3]
The Deputy Judge made his order dismissing the
motion on August 11, 2009. He was over 75 years of age at the time he made his
order.
[4]
Mr. Yeager did not appeal the Deputy Judge’s
order. Instead, on August 21, 2009, he brought a motion for reconsideration of
the order under Rule 397.
[5]
During these events, a challenge to the ability
of Deputy Judges over 75 years of age to hear matters was pending in the
Federal Court. Mr. Yeager’s motion for reconsideration was held in abeyance
until the challenge was finally determined. The Federal Court dismissed the
challenge. But, on October 3, 2011, this Court allowed it: Felipa v. Canada (Citizenship and Immigration), 2011 FCA 272. As a result of this Court’s
decision in Felipa, Deputy Judges over 75 years of age no longer could determine
matters.
[6]
After Felipa, Mr. Yeager resumed his
motion for reconsideration of the Deputy Judge’s order. He submitted the Deputy
Judge’s order should be set aside because, being over 75 years of age, he had
no power to make it.
[7]
On the motion for reconsideration, the Federal
Court held that it did not have the legal authority to grant the relief sought
under Rule 397. It added that the order, having not been appealed, must be
taken to be valid under the de facto doctrine, relying upon Reference
re Manitoba Language Rights, [1985] 1 S.C.R. 721, and other authorities.
[8]
In this Court, Mr. Yeager challenges the bases
for the Federal Court’s decision. He also adds that the application of the de
facto doctrine offends the constitutional guarantee of the rule of law
found in the preamble to the Constitution Act, 1982.
[9]
We agree with the Federal Court that it had no
ability to set aside the order using the reconsideration power under Rule 397. The
reconsideration power under Rule 397 is not the same as this Court’s powers on
appeal under section 52 of the Federal Courts Act, R.S.C. 1985, c. F-7.
Instead, the reconsideration power is more limited – to correct small
oversights, such as an inconsistency between the order and the reasons (Rule
397(1)(a)), the failure of the Court to deal with something that was put
to it (Rule 397(1)(b)), and clerical mistakes, errors or omissions in
the order (Rule 397(2)).
[10]
In this case, Mr. Yeager did not appeal the
Deputy Judge’s order. Upon expiry of the deadline for filing a notice of
appeal, and in the absence of a motion to extend the time to appeal, the matter
became res judicata. Upon becoming res judicata, the order is
presumed to be valid, absent proof of fraud in its making, even if there is a
later change in the law: see, e.g., Régie des rentes du Québec v.
Canada Bread Company Ltd., 2013 SCC 46 at paragraph 55, citing Roberge
v. Bolduc, [1991] 1 S.C.R. 374 at page 403. For example, where a person is
convicted of a criminal offence, is sitting in jail, and has not appealed his conviction,
he cannot take advantage of a later, favourable court decision: R. v. Wigman,
[1987] 1 S.C.R. 246 at paragraph 21. Accordingly, having not appealed the
Deputy Judge’s order, Mr. Yeager could not benefit from any subsequent changes
in the law, such as the change wrought by Felipa, supra.
[11]
In oral argument, in response to Wigman, supra,
counsel for Mr. Yeager raised R. v. Gamble, [1988] 2 S.C.R. 595 as an
example where relief was granted despite the absence of an appeal. But Gamble
concerned an ongoing, and thus, present denial of parole eligibility, not an
attempt to challenge the validity of an earlier judgment that had not been
appealed.
[12]
Also in oral argument, counsel for Mr. Yeager
argued that interlocutory orders can be appealed after the main proceeding is
determined. However, that rule is restricted to proceedings under the Criminal
Code, R.S.C. 1985, c. C-46, which does not provide for interlocutory
appeals: R. v. Meltzer, [1989] 1 S.C.R. 1764 and R. v. Ouellette,
[1989] 1 S.C.R. 1781. One may appeal interlocutory orders from the Federal
Court to this Court: Federal Courts Act, supra, paragraph 27(1)(c).
[13]
In his memorandum, Mr. Yeager also invoked the constitutional
guarantee of the rule of law. It does not support him. The Supreme Court has
described this guarantee as:
…embracing
three principles. The first recognizes that “the law is supreme over officials
of the government as well as private individuals, and thereby preclusive of the
influence of arbitrary power”: Reference re Manitoba Language Rights, [supra]
at p. 748. The second “requires the creation and maintenance of an actual order
of positive laws which preserves and embodies the more general principle of
normative order”: Reference re Manitoba Language Rights, [supra] at
p. 749. The third requires that “the relationship between the state and the
individual…be regulated by law”: Reference re Secession of Quebec, at
para. 71.
(British
Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473
at paragraph 58.)
[14]
Mr. Yeager’s claim does not fit within these
three principles. Indeed, the principle of finality of judgments and orders
embraced by the concept of res judicata is an integral part of the
second principle, the preservation of order. We also do not see any merit in
Mr. Yeager’s section 7 Charter submissions or his submissions based on
independence of the judiciary. In any event, we would add that constitutional
arguments must be asserted within the framework of the practices and procedures
of the Court, as embodied in the Federal Courts Rules: see, e.g.,
Mills v. The Queen, [1986] 1 S.C.R. 863. As mentioned above, the
constitutional argument asserted by Mr. Yeager here – an argument that goes to
the substantive validity of the order rather than correcting a slip or oversight
by the Court – cannot be asserted in a motion for reconsideration under Rule
397.
[15]
Finally, in his notice of appeal, Mr. Yeager
seeks an extension of time to appeal. However, the failure to appeal as opposed
to bringing a motion for reconsideration has not been satisfactorily explained
and so, on the authorities, an extension of time cannot be granted: Grewal
v. Canada, [1985] 2 F.C. 263.
[16]
For the foregoing reasons, we shall dismiss the
appeal with costs.
"David Stratas"
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