Date: 20040310
Docket: T-275-04
Citation: 2004 FC 364
OTTAWA, ONTARIO, THIS 10th DAY OF MARCH 2004
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
RICHARD CONDO
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This motion was brought by the respondent on February 25, 2004 to strike out:
a) the application for the issuance of a writ of mandamus made by the applicant pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the Act);
b) the directions to attend served by the applicant on Mr. Alain Pelchat, Ms. Maryse Rioux and Ms. Cindy Cyr.
[2] The herein application was commenced on February 6, 2004 and is in respect of the refusal and/or delay of the Institutional Head of the Drummond Institution to exercise its competence and render its decision with respect to the request made by the applicant on December 3, 2003 to participate in the private family visiting program (the PFV program). In effect, a negative decision has now been rendered on February 19, 2004 by Ms. France Poisson, Director of the Drummond Institution.
[3] Applying the two-step analysis described in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, I first conclude that the requisite tangible and concrete dispute which led to the commencement of the herein application has disappeared, rendering the issues raised by the applicant academic and moot. Secondly, there is no reason that would justify this Court exercising its discretion to permit the continuance of these proceedings and hearing the case. In coming to this conclusion, I have considered the factors mentioned in Borowski and the principle established at Rule 3 of the Federal Court Rules, 1998, S.O.R./98-106 (the Rules) which provides that:
| 3. These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits. |
|
3. Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible. |
[4] The applicant alleges that both the decision to delay the making of the decision and the decision to deny him the access to the PFV program where founded on malice and bad faith. He strongly believes that the cross-examination of Mr. Marc Lanoie and the re-examination of Mr. Patrice Laplante, which were scheduled for February 23, 2004, as well as the examination of Mr. Alain Pelchat, Ms. Maryse Rioux and Ms. Cindy Cyr (the three other persons to be examined), will demonstrate this. However, the applicant will now contest the decision rendered on February 19, 2004, through the grievance procedure. Further to the exhaustion of the internal remedies, this Court may eventually be seized of another application for judicial review. This factor does not favour the continuance of the herein application. As for the issue of costs, I find that there is no rationale for exercising my discretion to let the matter continue on that basis alone. In this case, the costs incurred before the decision made on February 19, 2004 are minimal. In fact, added costs will be incurred if this Court permits the continuance of the proceedings and the cross-examination or re-examination of affiants and the examination of the three other persons to be examined. Finally, this is not a case in which it is in the public interest to address the merits of the application for the issuance of the writ of mandamus in order to settle the state of the law; neither is it necessary to keep the application alive because of some possible adverse collateral consequences (Borowski, supra, at paras. 31-33).
[5] Accordingly, the herein application should be struck out. In view of the above conclusion, the directions to attend should also be quashed. That being said, I note that the directions to attend do not comply with the Rules. Neither of the three persons to be examined is a party to the present proceeding nor has signed an affidavit in relation to the herein application made by the applicant pursuant to sections 18 and 18.1 of the Act. On an application, cross-examinations are governed by Rule 308 of the Rules, and are only permitted on affidavits. The Court has not directed pursuant to paragraph 18.4(2) of the Act that the herein application be treated and proceeded with as an action and the applicant has not in any event made a motion before this Court seeking leave to examine the above persons.
[6] Despite the fact that I will grant the present motion made by the respondent, considering all relevant factors, including the fact that the respondent received advanced notice of the herein application, the fact that a decision was rendered on February 19, 2004, and the fact that the directions to attend did not complied with the Rules and were served on February 23, 2004, I find it reasonable not to award any costs to either party.
ORDER
THIS COURT ORDERS THAT:
1. The motion made on February 25, 2004 by the respondent is allowed;
2. The application for the issuance of a writ of mandamus made by the applicant is struck out;
3. The directions to attend served on February 23, 2004 by the applicant on Mr. Alain Pelchat, Ms. Maryse Rioux and Ms. Cindy Cyr are struck out;
4. No costs are allowed to either party.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-275-04
STYLE OF CAUSE: RICHARD CONDO v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: MONTREAL (QUEBEC)
DATE OF HEARING: MARCH 1, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: MARCH 10, 2004
APPEARANCES:
MS. DIANE MAGAS FOR THE APPLICANT
MR. ERIC LAFRENIERE FOR THE RESPONDENT
SOLICITORS OF RECORD:
MS. DIANE MAGAS FOR THE APPLICANT
MAGAS LAW OFFICE
OTTAWA, ONTARIO
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA