Docket: A-76-16
Citation:
2016 FCA 312
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CORAM:
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NOËL C.J.
NEAR J.A.
RENNIE J.A.
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COMMITTEE FOR MONETARY AND ECONOMIC REFORM ("COMER"),
WILLIAM KREHM, AND ANN EMMETT
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Appellants
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and
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HER MAJESTY THE QUEEN, THE MINISTER OF FINANCE, THE MINISTER OF
NATIONAL REVENUE, THE BANK OF CANADA, THE 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 December 7, 2016)
RENNIE J.A.
[1]
This is an appeal brought by the Committee for
Monetary and Economic Reform, William Krehm, and Ann Emmet (the appellants)
from an order issued pursuant to Rule 221 of the Federal Court Rules (SOR/98-106)
by Russell J. (the Federal Court judge) striking out the appellants’ amended statement
of claim without leave to amend (2016 FC 147).
[2]
The appellants commenced an action challenging
the way Parliament handles economic and monetary issues in Canada and initially
sought declarations of violations of the Bank of Canada Act, R.C.S.
1985, c. B-2 [Bank of Canada Act]; the Constitution Act, 1867,
(U.K), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5;
sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B of the Canada
Act 1982 (U.K.), 1982, c. 11 [Charter]; and of tortious conduct of
conspiracy and misfeasance in public office.
[3]
The respondents brought a motion to strike, and
on August 9, 2013, Prothonotary Aalto struck out the appellants’ original
statement of claim in its entirety without leave to amend on the basis that it
did not disclose a reasonable cause of action (2013 FC 855).
[4]
By decision rendered on April 24, 2014, the
Federal Court judge sitting in appeal from the Prothonotary’s decision,
reconsidered the matter de novo. Applying the test for striking out set
out by the Supreme Court in R v. Imperial Tobacco Canada Ltd., 2011 SCC
42, he too held that the statement of claim did not reveal a cause of action,
but was of the view that the possibility that the appellants could come up with
a proper pleading with respect to specified issues could not be excluded. He
therefore granted the appellants leave to amend (2014 FC 380). On the appeal
and cross-appeal which followed, this Court disposed of the matter from the bench,
dismissing both (2015 FCA 20).
[5]
On March 26, 2015, the appellants filed an
amended statement of claim wherein they abandoned prior claims made pursuant to
sections 7 and 15 of the Charter and substituted therefor claims
pursuant to section 3 of the Charter, asserting a right to “no taxation without representation”.
[6]
The respondents again moved to have the
statement of claim struck on the basis that the appellants’ amended statement
of claim failed to rectify any of the previous deficiencies and therefore
disclosed no reasonable cause of action.
[7]
By decision rendered on February 8, 2016, the
Federal Court judge again struck the amended statement of claim in its
entirety, this time however without leave to further amend.
[8]
This is the decision now under appeal.
[9]
The essence of the Federal Court judge’s
reasoning for striking the amended statement of claim is summed up at paragraph
144 of his reasons:
It seems to me, then, that the latest
Amended Claim discloses no reasonable cause of action and has no prospect of
success at trial. It also seems to me that the Plaintiffs are still asking the
Court for an advisory opinion in the form of declarations that their view of
the way the Bank Act and the Constitution should be read is correct. It
also seems to me that they have failed to show a statutory grant of
jurisdiction by Parliament that this Court can entertain and rule on their
claim as presently constituted, or that they have any specific rights under the
legislation which they invoke, or a legal framework for any such rights. As the
Supreme Court of Canada pointed out in Operation Dismantle, above, the
preventive function of a declaratory judgment must be more than hypothetical
and requires “a cognizable threat to a legal interest before the Court will
entertain the use of its process as a preventative measure” (para 33). The
Court is not here to declare the law generally or to give an advisory opinion.
The Court is here to decide and declare contested legal rights.
[10]
The appellants assert that the opinion so expressed
is wrong in law. In support of this proposition, they essentially reiterate the
arguments which they urged upon the Federal Court judge and ask that we come to
a different conclusion. Counsel for the appellants focused his argument during
the hearing on the issue of standing and the right to seek declarations of
constitutionality. It remains however that, as the Federal Court judge found,
the right to a remedy is conditional on the existence of a justiciable issue.
[11]
Reviewing the matter on the least deferential
and most favourable standard from the appellant’s perspective (i.e.:
correctness), we are unable to detect any error which would warrant our
intervention.
[12]
The arguments raised by the appellants have been
given full consideration and there is nothing that we could usefully add to the
judgment below to explain why the Federal Court judge correctly held that the
appellants’ claims, as set out in their amended statement of claim, are bound
to fail.
[13]
As to the denial of leave to amend, after having
granted leave once, the Federal Court judge held that leave ought not to be
granted a second time. Keeping in mind that this aspect of the decision
embodies a discretionary element, we can detect no error in the conclusion reached
by the Federal Court judge as expressed at paragraph 147 of his reasons.
[14]
The appeal will be dismissed with costs.
“Donald J. Rennie”
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