Date: 19980812
Docket: T-1260-98
BETWEEN:
NEALE BURTON,
Plaintiff,
- and -
HER MAJESTY THE QUEEN,
Defendant.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] While the proper approach by which to challenge an originating notice of motion (now referred to as the Notice of Application under the new Rules) is not by a motion to strike out, but rather to argue the merits at a hearing of the application itself, there may be, from time to time, an exceptional case in which the Court ought to summarily dismiss a notice of application that is "... so clearly improper as to be bereft of any possibility of success." (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (1995) 176 N.R. 48 at 54.) Such is the case in this instance.
[2] The Plaintiff's material filed as a "Notice of Motion" is disjointed and difficult to read, however, Mr. Burton would seem to seek a writ of habeas corpus on the grounds that he has been wrongfully imprisoned.
[3] The jurisdiction of the Federal Court is set by statute, the Federal Court Act. The Supreme Court of Canada pointed out, in The Queen v. Miller (1986), 63 N.R. 321, at page 322, that the habeas corpus jurisdiction may only be affected by express words. Further, the Supreme Court observed that while the Federal Court does have jurisdiction to deal with an application for habeas corpus, as to a member of the Canadian Armed Forces serving outside of Canada, given by express wording in what is now section 18(2) of the Federal Court Act, it is through no oversight that the Federal Court's jurisdiction as set out in section 18(1) of the Federal Court Act, omits reference to habeas corpus. At page 333 Mr. Justice Le Dain remarks on the "... clear intention to leave the habeas corpus jurisdiction over Federal authorities with the provincial superior courts....".
[4] The Plaintiff refers to Latham v. The Queen (1990), 39 Admin L.R. 197, a decision of the Saskatchewan Court of Appeal. That case stands for the proposition that provincial courts have no jurisdiction to review decisions of the National Parole Board. However the case does not go on to say that the Federal Court in fact has a jurisdiction to grant habeas corpus outside of that specifically set out in the Federal Court Act. Rather it touches upon the jurisdiction to issue a writ of certiorari or a writ of mandamus, which does come within the Federal Court jurisdiction.
[5] Mr. Burton also refers to Noor v. Canada (1990). 8 Imm L.R. 134, a decision of the Quebec Superior Court. There the court refers to the exclusive jurisdiction of the Trial Division of the Federal Court in respect of certiorari, but certainly does not suggest that the Federal Court has some form of implied jurisdiction to issue a writ of habeas corpus.
[6] The body of Mr. Burton's Notice of Motion is struck out in that the Court does not have jurisdiction to grant the remedy which he seeks.
[7] The Crown asks that the striking out be without leave to amend. To strike out, without leave to amend, I must be convinced that there is not a scintilla of a legitimate cause of action. Mr Burton's document seems to refer to a decision or decisions of the National Parole Board, but he neither clearly identifies that decision in the motion itself, nor clearly identifies the relief sought: both the decision and the relief sought, habeas corpus, must be gleaned from the material under the heading of "Grounds", which contains seventeen paragraphs of somewhat involved and at least partially irrelevant argument. Moreover, it is difficult to identify the timing of the decision or decisions of which Mr. Burton complains: this may well present a further difficult in seeking review, for time may already have run against Mr. Burton when he commenced this proceeding. It may be that Mr. Burton's Notice of Motion could be re-worked as a Notice of Application, in a more conventional form, in a simplified style, to seek relief that the Federal Court could grant. Thus, while all of Mr. Burton's Notice of Motion, following the style of cause, is struck out, Mr. Burton shall have 30 days within which to file an Amended Notice of Application. That document shall style the parties as Applicant and Respondent.
ORDER
All of the application of Neale Burton, styled as a Notice of Motion, except for the style of cause, is struck out. Mr. Burton shall have 30 days within which to file an Amended Notice of Application in which the parties shall be styled as Applicant and Respondent.
(Sgd.) "John A. Hargrave"
Prothonotary
August 12, 1998
Vancouver, British Columbia
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DATED: August 12, 1998
COURT NO.: T-1260-98
STYLE OF CAUSE: Neale Burton
v.
Her Majesty the Queen
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated August 12, 1998
WRITTEN SUBMISSIONS BY:
Mr. Neale Burton for himself as Plaintiff
Ms. Donnaree Nygard for Defendant
SOLICITORS OF RECORD:
Morris Rosenberg for Defendant
Deputy Attorney General
of Canada