Date: 20250325

Docket: T-352-25

Citation: 2025 FC 551

Ottawa, Ontario, March 25, 2025

PRESENT: The Honourable Mr. Justice Duchesne

ORDER AND REASONS

[1] The Applicant filed a Notice of Application on January 31, 2025 (the NOA). In the NOA, he alleges to seek judicial review of a decision by the Supreme Court of Canada’s Registrar (the Registrar), dated January 14, 2025 (the Decision), denying the Applicant’s motion for reconsideration of the Supreme Court’s October 10, 2024, dismissal of the Applicant’s application for leave to appeal from a judgment of the Federal Court of Appeal

[2] The allegations and relief sought as set out in his NOA reveal that the Applicant actually seeks judicial review of the Registrar’s refusal to accept to file his motion for reconsideration as well as an order from this Court directing the Supreme Court of Canada to reconsider his motion for reconsideration.

[3] On February 6, 2024, Madam Associate Judge Steele issued a direction pursuant to Rule 74 of the Federal Courts Rules, SOR/98-106 (the “Rules”) directing the parties to serve and file submissions not exceeding five (5) pages addressing why the NOA should not be removed from the file pursuant to Rule 74 of the Rules. Associate Judge Steele set out her preliminary view that the NOA had been improperly filed and should be removed from the Court file because the Federal Court has no jurisdiction to entertain it, given that the Decision is governed by the Rules of the Supreme Court of Canada, SOR/2002-156 (the SCC Rules), which are a complete code for matters relating to leaves to appeal, reconsideration and orders and judgments.

[4] The Applicant served and filed his written submissions on February 7, 2025, while the Respondent served and filed his written submissions on February 26, 2025. The Applicant served and filed written reply submissions on March 3, 2025.

[5] For the reasons that follow, the Applicant’s NOA shall be removed from the Court file pursuant to Rule 74(1)(b) of the Rules because it is clearly unfounded.

I. Background

[6] The Applicant was the Plaintiff in an intellectual property proceeding against the Royal Canadian Legion. Mr. Justice Manson dismissed the Applicant’s claim by way of judgment dated May 29, 2023 (French v Royal Canadian Legion, 2023 FC 749).

[7] The Applicant appealed from Justice Manson’s judgment to the Federal Court of Appeal. His appeal was dismissed by the Federal Court of Appeal by way of Reasons for Judgment dated March 27, 2024 (French v Royal Canadian Legion (Dominion Command), 2024 FCA 63).

[8] On June 10, 2024, the Applicant filed an application for leave to appeal from the Federal Court of Appeal’s judgment to the Supreme Court of Canada. The Supreme Court of Canada issued its judgment dismissing the Applicant’s application for leave to appeal on October 10, 2024 (Leonard B. French v Royal Canadian Legion (Dominion Command), 2024 CanLII 96598 (SCC)).

[9] On October 21, 2024, the Applicant sought to file a motion at the Supreme Court of Canada for the reconsideration of the judgment that dismissed his application for leave to appeal.

[10] The Registrar refused to file the Applicant’s motion for reconsideration on January 14, 2025. That same day, the Registrar wrote to the Applicant and informed him that,

"I regret to inform you that, in my opinion, your motion does not reveal the exceedingly rare circumstances which would warrant reconsideration by this Court."

[11] The Registrar subsequently closed the Supreme Court of Canada’s file regarding the Applicant’s application for leave to appeal.

[12] The Applicant’s NOA was presented to the registry of this Court for issue and filing on January 31, 2025. It was accepted for filing on February 5, 2025.

A. The Notice of Application and the Written Submissions

[13] The Applicant’s NOA sets out a request for the “judicial review of the decision of the Registrar of the Supreme Court of Canada, dated January 14, 2025, denying the Applicant’s motion for reconsideration of the Supreme Court’s dismissal (dated October 10, 2024) of the Applicant’s leave to appeal application”.

[14] He alleges four main grounds in support of his NOA, each supported by subsidiary grounds and allegations that reinforce the main grounds alleged. The substance of the grounds alleged are not material for the purposes of this order other than as explained hereinafter.

[15] The conclusions the Applicant has pleaded in his NOA are telling in that they articulate the relief he ultimately seeks regardless of how he has framed his allegations elsewhere in his NOA. Those conclusions are:

B. The Applicants’ Written Submissions

[16] The Applicant’s written submissions are framed in connection with relief that the Applicant does not seek in in his NOA. The Applicant argues that he is asking that this Court to judicially review the Registrar’s refusal, on January 14, 2025, to file his motion asking the Supreme Court Canada to reconsider its dismissal of his Application for Leave to Appeal, and not any decision purportedly made by the Registrar to deny his motion for reconsideration. This submission is at odds with the allegations and relief sought as pleaded in his NOA.

[17] The Applicant submits that the Registrar is an administrative decision-maker who does not hold judicial powers but exercises administrative discretion when processing documents presented for filing in the Supreme Court of Canada’s registry. He submits that the Registrar’s refusal to accept to file his motion for reconsideration is an administrative action that improperly denies him an opportunity for judicial oversight.

[18] He also submits that the Registrar’s decision to refuse to accept his motion for filing is not an “order” pursuant to Rules 8(2), 73(4) and 78(3) of the SCC Rules. He argues that the Registrar’s refusal to file his motion violates the Registrar’s duty to act and procedural fairness. He argues that the doctrine of the duty to act applies to administrative decision-makers, requiring them to exercise their discretion fairly and in good faith and that the Registrar has effectively blocked the Applicant’s access to judicial review. This creates a procedural loophole, he submits, where an administrative officer can evade oversight simply by refusing to act, which is contrary to well-established principles of administrative law.

[19] He submits further that procedural fairness requires the Registrar to follow a transparent process, particularly when an individual’s legal rights are at issue. The Registrar’s refusal, he says, was not accompanied by any opportunity for meaningful review.

C. The Respondent’s Written Representations

[20] The Respondent submits that the NOA is contrary to settled and binding jurisprudence and that it should properly be removed from the Court record pursuant to Rule 74 of the Rules. He argues that the Supreme Court of Canada’s decisions in Stubicar v Canada (Attorney General), 2014 SCC 38 (Stubicar), and the Federal Court of Appeal decisions in Leahy v Canada, 2023 FCA 64 at paras 7-8 (Leahy), and Scheuneman v Canada, 2003 FCA 194 at paras 7, 10-12, (Scheuneman) as well as this Court’s decision in Sydel v Canada, 2013 FC 1116 at paras 46-48 and 53-58, stand for the proposition that the Supreme Court of Canda cannot be compelled to consider a motion for reconsideration because:

1. The Supreme Court of Canada is not a federal board, commission or tribunal within the of s. 18.1 of the Federal Courts Act;

2. Were the Federal Court to be able to compel the Supreme Court to hear a motion reconsideration, this would be contrary to:

a) The principle that courts exert control over their own processes, which is an element of the unwritten constitutional principle of judicial independence, and;

b) The principles of judicial hierarchy and finality in litigation.

[21] He also submits that the Federal Court of Appeal’s decisions in Leahy and in Virgo v Canada (Attorney General), 2019 FCA 167 at paras 16-17, govern and confirm that Rule 74 of the Rules may be used to deal directly and expeditiously with documents such as the Applicant’s NOA and its fatal and substantive defect, being that the relief sought is beyond this Court’s jurisdiction.

D. The Applicant’s Reply Submissions

[22] The Applicant replies that the Respondent has mischaracterized his NOA and maintains that the Registrar was an administrative decision-maker when they refused to file the Applicant’s motion for reconsideration.

[23] Relying on Yatar v TD Insurance Meloche Monnex, 2024 SCC 8, the Applicant submits that judicial review remains available even when a limited right of appeal exists and that that principle applies equally to administrative decisions by court officials, particularly where procedural fairness is at issue. He argues that the existence of the power of reconsideration does not automatically bar judicial review.

[24] More pointedly, however, he submits that he does not seek to compel the Supreme Court of Canada to reconsider his application for leave to appeal from the Federal Court of Appeal’s dismissal of his appeal. He submits that he is challenging the Registrar’s procedural handling of his reconsideration motion.

II. Analysis

[25] Two separate issues are before the Court on this motion. The first is whether a decision made by the Registrar pursuant to SCC Rule 73(4) is subject to judicial review by the Federal Court. The second is whether Rule 74 may apply and lead to the effective dismissal of the Applicant’s proceeding by removing a Notice of Application from the Court file.

A. Issue 1: Judicial Review of a decision by the Registrar made pursuant to SCC Rule 73(4)

[26] A decision or matter may be reviewed by the Federal Court in accordance with its statutory jurisdiction to hear judicial review applications as set out in section 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act). The more general jurisdiction set out in section 18 of the Federal Courts Act is narrowed and particularized by section 18.1(1) and (2) and by the statutory definitions set out in the Act at its section 2. These provisions read as follow:

[27] The Supreme Court Act, RSC 1985, c S-26, provides at section 18 that:

[28] The key SCC Rules that apply here are Rules 8, 12, 73 and 78. These SCC Rules provide in their salient parts as follows:

[29] The Supreme Court of Canada considered these provisions in their pre-2016 form and their effect in Stubicar as follows:

[7] The Registrar has the important function of assisting the Court in managing its docket and it is in that role that the Registrar is acting when making decisions under Rule 73(4). The decision of the Registrar to not accept a motion for reconsideration for filing is a function of the Registrar’s authority pursuant to Rule 8(2), which allows the Registrar to refuse a document that does not comply with the Rules.

[8] A decision of the Registrar under Rule 73(4) is not an order of the Registrar subject to review by a judge under Rule 78. Reconsideration of an application for leave to appeal will, as Rule 73(1) states, occur in “exceedingly rare circumstances”. Rule 73(3)(b) sets forth the stringent requirement that such an application be accompanied by an affidavit setting out the exceedingly rare circumstances and the reason why the issue was not previously raised. In the absence of such an affidavit — i.e. if the circumstances set out in the affidavit are not “exceedingly rare” —, the Registrar shall not submit the application to the Court and it will be refused.

[9] If a decision of the Registrar under Rule 73(4) constituted an order, it would be subject to review by a judge of the Court under Rule 78. While the judge would not be conducting a reconsideration of the application for leave, he or she would nonetheless be occupied with reviewing the Registrar’s decision, including whether the motion contains an affidavit setting out exceedingly rare circumstances and an explanation of why the issue was not previously raised. As Rule 73(4) is intended to limit access to the Court where minimum standards are not met, allowing for review of Rule 73(4) decisions of the Registrar would be contrary to the intent of the scheme. Accordingly, a decision of the Registrar under Rule 73(4) to not submit an application to the Court is not reviewable by a judge under Rule 78.

[10] The motion for an order directing the Registrar to accept for filing the Rule 78 motion is dismissed.

[30] Rule 78 of the SCC Rules was amended through section 38 of the Rules Amending the Rules of Supreme Court of Canada, SOR/2016-271 on October 19, 2016, following Stubicar, to add Rule 78(3). Rule 78(3) now prescribes that “The Registrar’s decision to refuse to accept a document under subrule 8(2) or 73(4) is not an order”. Rule 78(3) was added to the SCC Rules to reflect the content of Stubicar that the Registrar’s refusal to file a motion for reconsideration is not intended to be an order that is reviewable by a judge pursuant to Rule 78 of the SCC Rules.

[31] Likewise, Rule 73(4) of the SCC Rules was amended on October 19, 2016, following Stubicar, through section 37 of the Rules Amending the Rules of Supreme Court of Canada, SOR/2016-271. Prior to the amendment, Rule 73(4) provided that, “A motion for reconsideration that includes an affidavit that does not set out exceedingly rare circumstances as required in paragraph 3(b), shall not be submitted to the Court”. The amended version of Rule 73(4) provided that “The Registrar shall refuse to accept a motion for reconsideration that includes an affidavit that does not set out exceedingly rare circumstances as required by paragraph (3)(b)”. The salient effect of the amendment is that the amended, post-Stubicar SCC Rule 73(4) directs the Registrar through imperative language to refuse to accept a motion for reconsideration for filing if the affidavit submitted does not set out the exceedingly rare circumstances that warrant consideration by the Court. In contrast, the former pre-Stubicar version of the SCC Rule allowed for the motion for reconsideration to be filed, but directed the Registrar though imperative language to not submit the motion to the Court.

[32] The amendments to the SCC Rules reflect and should be interpreted in light of Stubicar. As set out in Stubicar, the Registrar’s decision to not accept a motion for reconsideration for filing is a function of the Registrar’s authority pursuant to SCC Rules Rule 8(2) to refuse a document that does not comply with the SCC Rules in his role in assisting the Supreme Court in the management of its docket. The refuse to file is meant to be final and binding and is not subject to review by a judge of the Supreme Court. If the Registrar’s refusal to file a deficient motion as is required by Rule 73(4) of the SCC Rules is not reviewable by a judge of the Supreme Court, it is perforce not reviewable by a judge of any other Court that is lower in the judicial hierarchy in Canada (Scheuneman at para 10). It would be absurd for the Federal Court, a court that is bound by Supreme Court of Canada decisions as a matter of stare decisis and whose decisions may be appealed to the Federal Court of Appeal and from there ultimately to the Supreme Court, to have any, much less greater, review powers than a Supreme Court judge with respect to matters provided for in the SCC Rules. This is nevertheless what the Applicant suggests should occur.

[33] In Leahy, the Federal Court of Appeal determined that the Federal Court was correct in striking an applicant’s application for the judicial review of a Registrar’s decision to dismiss the applicant’s motion for the reconsideration of the dismissal of an application for leave to appeal pursuant to Rule 73 of the SCC Rules. The Federal Court of Appeal wrote as follows:

[7] Settled jurisprudence—specifically, the Supreme Court’s decision in Stubicar v. Canada, 2014 SCC 38, [2014] 2 S.C.R. 104, the Federal Court of Appeal’s decision in Scheuneman v. Canada (Attorney General), 2003 FCA 194, 303 N.R. 359 [Scheuneman] and the Federal Court’s decision in Sydel v. Canada (Attorney General), 2013 FC 1116, 441 F.T.R. 310 [Sydel]—confirm that the Supreme Court cannot be compelled to consider a motion for reconsideration.

[8] The Supreme Court is not a federal board, commission or tribunal within the meaning of section 18.1 of the Federal Courts Act. To hold that the Federal Court could compel the Supreme Court to hear a motion for reconsideration would offend the principle that courts control their own processes, which is in turn an element of the unwritten constitutional principle of judicial independence. Further, if the Federal Court could judicially review a decision or order of the Supreme Court, that decision itself would be subject to appeal to the Supreme Court (Scheuneman at para. 11; Sydel at paras. 56-58). The absurdity of the proposition is self-evident.

[9] The appellant argues that the Registrar is not a judge, and cannot therefore decide matters that bear on appeals to the Supreme Court. He further argues that, as applications for leave to appeal are considered by a panel of three judges of the Supreme Court, the same procedure must apply to his motion for reconsideration. I disagree with both of these arguments.

[10] Section 18 of the Supreme Court Act, R.S.C. 1985, c. S-26 authorizes the Registrar to exercise any jurisdiction of a judge sitting in chambers as may be conferred by general rules or orders made under that Act, and subsection 73(4) of the Rules specifically allows the Registrar to refuse to accept a motion for reconsideration. Lest there be any doubt on the point, section 12 of the Rules provides that every order of the Registrar shall be binding on the parties “as if the order had been made by a judge.”

[34] The decisions in Stubicar and in Leahy are binding upon the Federal Court, and I adopt their reasoning wholeheartedly. I also add that the Registrar is not acting as “federal board, commission or tribunal” within the meaning of section 18.1 of the Act when he follows Rule 74(3) of the SCC Rules because he is assisting the Court in the management of its docket in the manner provided for and imposed upon him by the SCC Rules when a document is not filed in accordance with the SCC Rules. The Registrar’s refusal to file a motion for reconsideration presented for filing pursuant to Rule 73 of the SCC Rules is not subject to judicial review by the Federal Court.

[35] The Applicant’s NOA clearly sets out that the Applicant asks this Court to direct the Supreme Court of Canada to reconsider its judgment in dismissing his application for leave to appeal. The relief sought through the NOA is relief that this Court is clearly without jurisdiction to grant for the reasons set out in Leahy.

[36] Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 (Yatar), is of no assistance to the Applicant. Yatar arose in connection with the Ontario Divisional Court and Court of Appeal’s decision to decline to undertake judicial review on the merits of a decision by a Licence Appeal Tribunal adjudicator’s decision with respect to income replacement benefits, housekeeping benefits and home maintenance benefits pursuant to the Ontario Insurance Act, the Statutory Accident Benefits Schedule — Accidents on or After November 1, 1996, O. Reg. 403/96, and the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G, in light of a limited statutory right of appeal.

[37] The facts and the applicable law in Yatar are entirely different and distinguishable from the facts of this case in that there is here no limited right of appeal on a question of law as was at issue in Yatar. Yatar does not apply here.

B. Issue 2: Rule 74 and its potential application

[38] Rule 74 of the Rules reads as follows:

[39] As was recently explained by Justice Lafrenière in Gaskin v Canada, 2023 FC 1542 at paras 16 to 20, Rule 74 permits the Court to order that a document including a Notice of Application or Statement of Claim be removed from the judicial record on the grounds that it is scandalous, frivolous, vexatious and/or clearly unfounded, or constitutes an abuse of the Court’s process. The Rule provides the Court with the necessary tools to deal directly and expeditiously with clearly inappropriate and/or abusive conduct in the litigation process.

[40] The filing of proceedings that clearly have no chance of success falls within the scope of Rule 74. The Rule may be applied to terminate a proceeding in a manner similar to a motion to strike pursuant to Rule 221 of the Rules or pursuant to the oft-cited jurisprudence relied upon to strike Notices of Application that are so clearly improper as to be bereft of any possibility of success (David Bull Laboratories (Canada) Inc. v Pharmacia Inc. (C.A.), 1994 CanLII 3529 (FCA); JP Morgan Asset Management (Canada) Inc. v Canada (National Revenue), 2013 FCA 250 at paras 47-48, and the jurisprudence cited therein).

[41] As the Applicant has filed an NOA, Rule 74 may be engaged and relied upon if I find that the conditions for its application are satisfied, that is, that I find that the Applicant’s NOA was not filed in accordance with the Rules or an Act of Parliament, is scandalous, frivolous, vexatious and/or clearly unfounded, or constitutes an abuse of the Court’s process.

III. Conclusion

[42] An NOA that is clearly unfounded may be removed from the Court record pursuant to Rule 74 if the subject matter of the proceeding is outside of its jurisdiction (Raji v Schwartz, 2024 FC 1779, at paras 29-37; Windsor (City) v Canadian Transit Co., 2016 SCC 54 at para 24).

[43] The Applicant’s NOA falls within the scope of Rule 74(1)(b) of the Rules in that it is clearly unfounded in law and the relief sought is not within this Court’s jurisdiction to grant. It shall be removed from the Court file.

ORDER in T-352-25

THIS COURT ORDERS that:

1. The Applicant’s Notice of Application shall be removed from the Court file pursuant to Rule 74(1)(b) of the Rules.

2. As no costs have been sought by the Respondent, no costs shall be awarded.

“Benoit M. Duchesne”

FEDERAL COURT

SOLICITORS OF RECORD

SUBMISSIONS CONSIDERED IN WRITING PURSUANT TO RULE 74 OF THE FEDERAL COURTS RULES

APPEARANCES:

SOLICITORS OF RECORD: