Docket: T-2149-16
Citation:
2017 FC 298
[ENGLISH
TRANSLATION]
Ottawa, Ontario, March 22, 2017
PRESENT: The Honourable Mr. Justice Roy
|
BETWEEN:
|
|
MARTINE
MCKENZIE
|
|
Applicant
|
|
and
|
|
CONSEIL DE LA
NATION INNU MATIMEKUSH LAC-JOHN
|
|
Respondent
|
ORDER AND REASONS
[1]
The Conseil de la nation Innu Matimekush
Lac-John [the Conseil] would like to strike the application for judicial review
presented by Ms. Martine McKenzie in accordance with the Federal Courts
Act, RSC, 1985, c. F-7 [the Act]. It attacked the appointment of a
person to the position of policy secretary within the Conseil’s governance.
According to it, this appointment is supposedly marred by substantive defects
that merit this Court’s intervention.
[2]
According to the Conseil, the motion to strike
should be allowed because the application for judicial review is moot, the
applicant supposedly does not have the required interest, because this is an
application that is a mandamus by nature, for which the conditions
cannot be met, and because the application was supposedly made out of time.
I.
Preliminary issue
[3]
Right from the beginning, counsel for Ms. McKenzie
was opposed to filing an affidavit in support of the motion to strike. This is
an affidavit from the person holding the position of policy secretary who
declared that he or she had met Ms. McKenzie on October 27, 2016. Ms. McKenzie
allegedly knew at the time that said position was occupied. The circumstances
surrounding the appointment remain unclear. However, the application for
judicial review was only filed on December 10, 2006, which was apparently
out of time (section 18.1 of the Act). The argument made by Ms. McKenzie’s
counsel is that the facts must be shown, even though the affidavit was
reportedly not admissible at this stage. In support of his claim, he submitted
this Court’s decision in Amnesty International Canada v Canada (Pro) 2007
FC 1147 and Addison & Leyen Ltd. v Canada, 2006 FCA 107, from the
Federal Court of Appeal.
[4]
Neither of these decisions are of any assistance
to the applicant. In fact, in both cases, these are motions to strike for which
it is claimed that, in one case, an application for judicial review had no
chance of success and that, in the other case, the action taken was also headed
for failure. In both cases, what was at issue was the value of the merits of
the remedies taken. It is very normal that, in those cases, the alleged facts
in the remedies be proven, since everything that is to be determined is
whether, with the facts being proven, the application or action itself has any
chance of success. This is not so in this case. The motion to strike regarding
the time limit for undertaking a judicial review has nothing to do with a
strike because the cause of action itself has no chance of succeeding. Here,
the respondent is seeking to establish that the remedy is out of time, which
has nothing to do with the merits of the application that has been presented.
However, the moving party should again be allowed to present evidence according
to which the remedy would be out of time and, in return, the same allowed to
the applicant to claim the contrary. The procedural issue is not the case on
its merits.
[5]
I would make an analogy to the legal situation
regarding applications for judicial review. In those matters, a judge of the Federal
Court must determine the legality of the decision for which a review is being
sought. Therefore, the case should be considered to be “frozen”
at the time that the decision is rendered (Delios v Canada, 2015 FCA
117). However, as it is well known, if the allegations are related to
violations of procedural fairness, that is, issues that are on the periphery of
the case’s merits, additional evidence will then be allowed to be submitted. In
our case, the issue of the time limit is irrelevant to the merits of the
application for judicial review. Supposing that a notice of application for
judicial review is stricken, I have therefore concluded that the affidavit
should be not be withdrawn from the record.
II.
The standard
[6]
The striking out of a pleading in an action is
governed by rule 221 of the Federal Court Rules, SOR/98-106. The
parties did not hold any discussions according to which the striking of a
notice of motion was sought or what standard would be applied. Therefore, the
most basic caution is appropriate.
[7]
In David Bull Laboratories (Canada) Inc. v
Pharmacia Inc., [1995] 1 FCR 588 [David Bull Laboratories], the
Federal Court of Appeal was confronted with the issue of striking out of a
motion like the one in this case. It concluded that the rules did not provide
for a motion to strike. If the Court can have the authority to determine such a
preliminary motion, possibly based on its jurisdiction for determining the
applicable procedure (rule 4), it should only still do so in very
exceptional cases after concluding that “a notice
of motion ... is so clearly improper as to be bereft of any possibility of
success.” (David Bull Laboratories, p. 600)
[8]
Over the years, there have been motions to
strike applications for judicial review, but their success seems to be rather
mixed.
[9]
Since the applicant did not dispute the
possibility that the Court would hear the motion to strike a notice of motion,
this Court will hear the motion to strike and apply the standard of “so clearly improper as to be bereft of any possibility of
success”. This is a very strict standard that only can only allow a
successful remedy in very exceptional cases.
III.
The motion to strike
[10]
The respondent claims that the applicant does
not have the required interest to attack the decision. As I indicated in the
hearing, everything depends on the definition of “interest”
in order to act in this case. The respondent claims that the absence of
interest is based on the fact that Ms. McKenzie had a job at the time that
the position was granted to another person, nor is she applying for damages to
be granted due to a loss suffered.
[11]
As for myself, I would have defined “interest” in a very different manner. Ms. McKenzie
may have an interest in that the position to be filled received some publicity
in order for her to find out about it. It is not because someone has a job
elsewhere that this interest loses its value. Even if the position was granted
for a short period, a person may want to occupy it so that, for example, he or
she may have some advantage once the position is filled on a permanent basis.
In addition, it is not relevant to suggest that she did not ask for the job for
herself. That is not the question. In this case, we understand that Ms. McKenzie
is a member of the community and that she may gain an advantage from the
publicity done for the granting of a position, which would be open to the
members of the community. The respondent pleaded that the applicant had to show
a particular interest and that she would suffer personal prejudice, citing Thorson
v Canada (Attorney General), 1975 1 SCR 138. In my view, that is exactly
what the applicant did in this case.
[12]
The respondent is attacking the application for
judicial review, arguing that it is by nature, at least in part, a mandamus
and that the conditions for obtaining a mandamus have not been
fulfilled. That is an issue that will be subject to a discussion and a decision
on the merits. In fact, everything at issue here is knowing whether the
requested remedy can be granted on the basis of facts that have been proven. In
essence, it is even a decision on the merits. Not only must the issue of
setting the conditions for obtaining a mandamus be subject to a decision
of the merits, it in no way showed that the judicial review has no chance of
being allowed or that it was plain and obvious that no cause of action has been
presented or that everything is frivolous or vexatious. If the applicant has
any chance of success, she must not be deprived of a judgment (Hunt v Carey
Canada Inc., [1990] 2 S.C.R. 959).
[13]
I do not uphold the argument according to which
the application for judicial review was out of time. In my view, not only is it
possible to move for a time extension (section 18.1 of the Act), but
again, it was not convincingly established, at this stage, that the conversation
that was alleged in the position holder’s affidavit could be conclusive. We do
not know either the context or the words that would have been said. Ms. McKenzie’s
affidavit indicated that the hiring supposedly took place between October and
November 2016. Moreover, I admit that the mention made by the applicant,
according to which she learned on or around November 10, 2016 that the
position had been granted may leave room for uncertainty, which is not
necessary. Such an uncertainty may suggest, even if it is only out of caution,
a motion for a time extension. Whatever the case may be, the factual framework
is not clear enough to conclude that the motion was made out of time. It may
have been, despite Ms. McKenzie’s assertions, but the laconic affidavit
from the position holder leaves room for great uncertainty that does not favour
the respondent and is insufficient, thus not constituting clear and convincing
evidence that would allow for a conclusion in favour of the respondent.
[14]
Lastly, the Conseil insisted that the
application for judicial review is moot. What makes things more complex is the
fact that the position holder, whom we were told had been hired on a temporary
basis for 3 months, as of September 26, 2016, we were told, is still on
the job. Counsel for the applicant notified the Court that a competition to
fill the position was started on the weekend of March 6, 2017. It does not
appear clear to me that the application for judicial review regarding the
granting of said post to that person was moot at that stage. It may be that the
remedy became moot at the time when the application for judicial review was
heard. Even if that could be the case, the Court may hear the case, even under
those circumstances, as was recognized in the decision by the Supreme Court of
Canada in Borowski v Canada, [1989] 1 S.C.R. 342 [Borowski]. In
fact, Borowski established the framework for applying the doctrine
regarding mootness. Eleven (11) years earlier, Mr. Borowski had commenced an
action before the courts of Saskatchewan claiming that the provisions of the Criminal
Code (section 251) regarding abortion infringed upon the rights of the
fetus. Meanwhile, the Supreme Court had judged that section 251 of the Criminal
Code violated section 7 of the Charter. The result was the all disputes
regarding section 251 of the Criminal Code were no longer
applicable. This situation gave an opportunity to the Supreme Court to
elaborate on the issue of mootness and, despite everything, the possibility of
hearing the remedy.
[15]
While the case only raises one hypothetical or
abstract issue, the courts may decide not to address it “when the decision of the court will not have the effect of
resolving some controversy which affects or may affect the rights of the
parties” (page 353). The court continued by declaring that “…if, subsequent to the initiation of the action or
proceeding, events occur which affect the relationship of the parties so that
no present live controversy exists which affects the rights of the parties, the
case is said to be moot.” (page 353)
[16]
As of March 16, 2017, the dispute between
Ms. McKenzie and the Conseil is in no way moot. The person holding the disputed
position, who had to be there for a period of 3 months, is still at the
position, nearly 6 months since she was reportedly hired. Depending on what
happened following the public announcement that the position needed to be
filled, it may be that at the time when the judicial review was heard by the Court,
the issue became moot, but indeed, that is not certain.
[17]
What is more, in Borowski, the Court
declared that even if the case became moot, it may nevertheless be subject to a
decision due to the exercise of a restricted discretion. However, the courts
insist that the dispute is still part of an adversarial system. In fact, “[t]he requirement of an adversarial context is a fundamental
tenet of our legal system and helps guarantee that issues are well and fully
argued by parties who have a stake in the outcome.” (pages 358–359) The Court
recognized that ancillary consequences from the solution of the original
dispute, which is no longer, may provide the necessary adversarial context.
There may be ancillary considerations that justify the hearing of a case, even
though the “live controversy” has disappeared.
Thus, it can be judged that it would be useful to determine the rules of
governance for the hiring of temporary staff or even that the hiring of the
position holder was irredeemably flawed.
[18]
In our case, it is not possible to predict what
will happen next, but it will be up to the parties to debate before the judge
hearing the judicial review what the reason is for pursuing the dispute based
on the developments that will have taken place between now and the day of the
hearing. Even if the issue becomes moot, discretion may nevertheless be
exercised to hear the remedy in that a genuine adversarial debate may take
place and that the resolution of the issue is useful. What we know is that to
date, the issue is not moot because the person who was hired for a 3-month
period is still at the position 6 months later. We do not know whether he or
she was a candidate for a permanent position. Therefore, we should see what the
result would be of a search for the right candidate after publishing an
application competition for filling the position on a more permanent basis.
[19]
Therefore, I have reached the conclusion that
the application for judicial review must not dismissed at this preliminary
stage.
[20]
It is the Conseil that filed the motion and the
Conseil sought costs. Since the motion has been dismissed, the Conseil is
clearly not entitled to costs. Moreover, Ms. McKenzie did not apply for
costs in the event that she would be the successful party before the Court.
Under these circumstances, no costs will be issued.
IV.
Time extension regarding motion to strike
[21]
Another motion in this same case was heard. This
time, it was a [translation] “motion for a time extension” filed by the respondent.
[22]
It appears that the respondent tried to serve
two affidavits in support of its motion to strike Ms. McKenzie’s
application for judicial review. One of the affidavits was that of the position
holder. The other comes from a resident of Matimekush Lac-John to try to
establish the facts surrounding the retention of the position holder’s
services. However, the two affidavits could not be filed before the court
office in Québec City closed on February 8, 2017, the end date for doing
so. Thus, the motion could not be filed before February 9. The respondent
sought an extension to this time limit that expired on February 9.
[23]
Instead of being subjected to consent, as rule 7
expressly allows, counsel for the applicant chose not to oppose it, forcing the
respondent to make a proper motion. Why consent was not granted has not been
revealed.
[24]
The Court ordered a time extension from the
bench, without costs, which allowed for the motion to strike to be heard.
V.
Closing remarks
[25]
I must remind the parties that in matters of
judicial review, expeditiousness is the rule: cases must be promptly prosecuted
(Philipos v Canada (Attorney General), 2016 FCA 79). I am not convinced
that it would not have been preferable to make the arguments that were made in this
case during the judicial review hearing. The issues of required interest,
mootness, and conditions to be met to obtain a mandamus are all issues
that can be raised at a judicial review hearing. The issues of time limits, if
they are raised, deserve better than the evidence submitted by affidavit in our
case, which does not allow for the case to be disposed of on the basis of the “bereft of any chance of success” standard. The
parties would have an interest in getting this case back on track to settle it
as soon as possible, rather than seek to be litigious.
[26]
I must cite the following passage from David
Bull Laboratories, which clearly illustrates the principle that objections
to an originating notice should be decided at the hearing on the merits:
… In fact, the disposition of an originating
notice proceeds in much the same way that an application to strike the notice
of motion would proceed: on the basis of affidavit evidence and argument before
a single judge of the Court. Thus, the direct and proper way to contest an
originating notice of motion which the respondent thinks to be without merit is
to appear and argue at the hearing of the motion itself. This case well
illustrates the waste of resources and time in adding on to what is supposed to
be a summary judicial review proceeding the process of an interlocutory motion
to strike. This motion to strike has involved a hearing before a trial
judge and over one half day before the Court of Appeal, the latter involving
the filing of several hundred pages of material, all to no avail. The
originating notice of motion itself can and will be dealt with definitively on
its merits at a hearing before a judge of the Trial Division now fixed for
January 17, 1995
(p.
597)
[Emphasis
added]
Email this Content