Date: 20001128
Docket: T-1804-98
Ottawa, Ontario, this 28th day of November 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
MÉTIS NATIONAL COUNCIL OF WOMEN and
SHEILA D. GENAILLE
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] In their Statement of Claim, the Métis National Council of Women, Sheila Genaille, Joyce Gus and Doreen Fleury, assert a claim that the Crown has discriminated against them on the basis of their gender contrary to sections 15 and 28 of the Canadian Charter of Rights and Freedoms (the "Charter"). The discrimination consists of the refusal of the defendant, Her Majesty the Queen, to negotiate with the corporate plaintiff with respect to employment training for the benefit of Métis women. This refusal is contrasted with the agreements which the defendant has signed with a number of other aboriginal organizations, including one claiming to represent all Métis. The plaintiffs seek declaratory relief to the effect that the defendant's conduct constitutes discrimination based on sex contrary to section 15 of the Charter, as well as orders that the agreements signed by the defendant with other organizations be read so as to provide training equally to men and women in Métis communities, an order that the corporate plaintiff be treated as a signatory to certain other agreements between the defendant and others, an order that Métis women be appointed to certain boards created as a result of the agreements and an injunction preventing the defendant from signing other agreements until the constitutional validity of the existing agreements is decided.
[2] The defendant took the position that since the remedies sought included declaration, injunction and arguably mandamus (in substance if not in form), and since the action was in essence a challenge to the validity of a federally administered program, section 18 of the Federal Court Act (the "Act") applied. In particular, subsection 18(3) of the Act which provides that declaratory and injunctive relief against federal boards or tribunals can only be obtained in an application for judicial review, required that the action be struck as the Act did not permit it to be maintained as an action.
[3] The application was heard by the Associate Senior Prothonotary who, after carefully reviewing the facts, concluded that the plaintiffs were seeking declaratory relief "not against the Crown in Parliament for passing the legislation but ... against a federal board for not including them in the board's schemes...". This, he concluded, was within the scope of subsection 18(3) of the Act and, as a result, the action was struck. Having reviewed the pleadings, I am satisfied that the Associate Senior Prothonotary's characterization of the nature of the action is correct.
[4] The defendant noted at the hearing of this motion that the sole ground of the application to strike was the Federal Court's lack of jurisdiction to adjudicate the claim as an action since the remedy sought must be obtained by way of an application for judicial review. The application to strike was not brought on the basis that the claim disclosed no cause of action.
[5] It seems that the Associate Senior Prothonotary did not have present to mind the cases which have applied the provisions of Rule 57 of the Federal Court Rules, 1998 to this problem:
| An originating document shall not be set aside only on the ground that a different originating document should have been used. |
La Cour n'annule pas un acte introductif d'instance au seul motif que l'instance aurait dû être introduite par un autre acte introductif d'instance. |
[6] An originating document includes a Statement of Claim as well as a Notice of Application. As a result, the motion to strike should not have succeeded and must therefore be set aside. Once it is determined that a proceeding is not in the proper form, it can be converted into the appropriate form. The right to convert applications to actions is found at subsection 18.4(2) of the Act. The right to convert an action to an application has been implied from the terms of Rule 57 in MacLean v. Canada, [1999] F.C.J. No. 400, (1999) 164 F.T.R. 208, Niederauer v. Canada, [2000] F.C.J. No. 928 and Khaper v. Canada, [1999] F.C.J. No. 2014.
[7] In two of these cases, the action for declaration was found to have been wrongly commenced and the plaintiff was required to put his/her cause of action in the proper form.
In MacLean, supra, ostensibly an action for wrongful dismissal, Lutfy J. granted the applicant a 30-day period in which to commence the proper proceeding. In Niederauer, supra, a tax dispute, the claimant was given an interval in which to commence his proceeding in the proper form. In the third case, the claim was struck because the claimant was not able to satisfy the judge that an extension of time should be granted to commence an application. The clear implication is that while the action will be struck, the claimant will be allowed to continue the proceeding in the proper form.
[8] Accordingly, the decision of the Associate Senior Prothonotary will be varied to add a provision allowing the applicants to file a Notice of Application and a request for an extension of time in which the issues raised in the action are recast as an application for judicial review. In order to avoid having the issue of the extension of time prejudiced by the delay in raising the issue or in rendering these reasons, the Notice of Application and Motion for Extension of Time should be treated, for purposes of the Motion for Extension of Time, as having been filed on the date the Statement of Claim was issued.
ORDER
The appeal from the order of the Associate Senior Prothonotary dated January 7, 2000 dismissing the plaintiffs' action is allowed in part and the order is varied by adding the following paragraph:
Notwithstanding the dismissal of the action, the plaintiffs therein shall have until January 3, 2001 to file a Notice of Application and Notice of Motion seeking an extension of time for the bringing of an application for judicial review, in which the relief sought in the present action may be sought by Notice of Application, subject always to the Federal Court Act and the Federal Court Rules, 1998. It is further ordered that for purposes of the Notice of Motion seeking an extension of time, the Notice of Application and the Notice of Motion shall be treated as having been filed on September 2, 1998. Success being divided, each party shall bear their own costs of the motion before the Associate Senior Prothonotary and of this Motion.
"J.D. Denis Pelletier"
Judge