Date: 20041203
Docket: T-1875-04
Citation: 2004 FC 1694
BETWEEN:
DAVID B. COFFEY
Applicant
and
MINISTER OF JUSTICE
Respondent
[1] There is a growing trend to bring motion in order to try to strike out judicial review proceedings, with each respondent's counsel convinced that his or her motion ought to succeed as an attack upon an application "... which is so clearly improper as to be bereft of any possibility of success. ": David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at 600, a Court of Appeal decision by Mr Justice Strayer, agreed to by Justices of Appeal Stone and Robertson. This is a narrow exceptional remedy. It is perhaps too easy for counsel, generally, to ignore the caution which immediately follows, that such exceptional cases do not include those cases where there is simply a debatable issue. To so lower the threshold for striking out a judicial review matter would not only make the overall strong general rule in David Bull meaningless, but also hamper and delay the judicial review process with motions which ought not to be brought.
[2] The Respondent wishes the application, which gives rise to this judicial review matter, either removed from the Court file or struck out. No authority is provided for removing a notice of application from a file: I will treat the motion as any other seeking to strike out an application for judicial review, relying upon the inherent jurisdiction referred to in David Bull (supra) and on the test set out in David Bull, in which the Court of Appeal upheld the decision of the trial judge to decline to strike out the application:
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For these reasons we are satisfied that the Trial Judge properly declined to make an order striking out, under Rule 419 or by means of the "gap" rule, as if this were an action. This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.
(Page 600) |
I will also rely, by way of analogy, upon the grounds set out in Rule 221, which are applicable in striking out an action.
[3] As to grounds for striking out, the Respondent takes a shotgun approach, perhaps on the basis that when in doubt, throw in everything and hope that one of the grounds finds favour. Yet counsel work requires, assuming there is a choice, that counsel carefully select an issue or issues upon which a motion or a case is to be fought. This selection of a central approach, or of a very limited number of approaches, where such a selection is at all possible, is of the highest importance. It is for counsel, as such, to ignore points which will in all likelihood not succeed, selecting and focusing on one or two strong points and in so doing not only avoid confusion, but also create a favourable atmosphere.
[4] Returning to the present instance, in taking the broad approach to the motion, the result is that the Respondent put in much evidence, forcing the Applicant to respond in kind: it is thus a motion which ought not to have been brought, but rather the judicial review should have been pressed on to a hearing so that the Applicant's case could be addressed in full by the judge hearing the application. Here the judicial review application is for certiorari, quashing an authority to proceed in the Manitoba Court of Queen's Bench for an order for committal and for an order of prohibition, prohibiting the Minister of Justice from surrendering the Applicant to the United States of America.
ANALYSIS
Request for an Oral Hearing
[5] As a preliminary matter, counsel for the Applicant requests that I exercise my discretion and order an oral hearing of the motion, so that the Applicant may make full presentation and address all of the issues, referring to a passage from Vancouver Island Peace Society v. Canada (Minister of National Defence) (1993), 64 F.T.R. 127 (F.C.T.D.) at 139:
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Often the considerations affecting the exercise of discretion will require an appreciation of the circumstances in which the motion arises and of the relief sought. Frequently that appreciation is only fully provided by presentation of the applicant's case based on the originating motion and supporting affidavits. |
Here the argument for oral hearing is that the Minister's motion to strike, by reason of its broad content, has prematurely forced the Applicant to address issues which should otherwise await the hearing of the application and thus the Applicant should be given a present opportunity to present his case more fully through the oral representations of counsel.
[6] Leaving aside that oral hearings of relatively straightforward motions are often a luxury, rather than a necessity, I do not see this motion as one which cannot be adequately dealt with in writing. Here I am also guided by Karlsson v. Canada (Minister of National Revenue) (1995), 97 F.T.R. 75 (F.C.T.D.) at 77:
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[10] There are a number of instances in which, pursuant to Rule 324(3), the Court will agree to a request by a respondent for an oral hearing including that the matter is complex (Enviro-Clear Co. v. Baker International (Canada) Ltd., [1987] 3 F.C. 268; 13 F.T.R. 244 (T.D.)); where the issues raise questions of public interest that are novel so that oral argument would be a great assistance to the court (Molson Cos. v. Registrar of Trademarks (1985), 7 C.P.R. (3d) 421 (F.C.T.D.)); where an assessment of the credibility of witnesses and full legal argument is required (Viking Corp. v. Aquatic Fire Protection Ltd. (1985), 5 C.P.R. (3d) 51 (F.C.T.D.)); where there is a substantial reason for concluding that the applicant cannot adequately present his application in writing (Gordon v. Institution, [supra]); and, as set out by the Court of Appeal in Kurniewicz v. Minister of Manpower and Immigration (1975), 6 N.R. 225 (F.C.A.), at 230, an oral hearing will be granted if the matter is urgent and can be disposed of more expeditiously if an oral hearing is directed, or if so many people are interested in the matter that to present it as contemplated by Rule 324 would prove cumbersome, or if the motion raises a question on which the court desires to hear oral submissions from counsel. |
I have also been referred to and considered Sterritt v. Canada (1995), 98 F.T.R. 68 (F.C.T.D.). Taking all of the reasons why a court might order an oral hearing of a written motion into consideration, including those set out in Karlsson and in Sterritt, this is not an instance in which there needs to be an oral hearing.
Substance of This Motion
[7] I now turn to a consideration of the various reasons why the Respondent believes that this judicial review application ought to be struck out at this early stage, the Notice of Application having been filed 19 October 2004 with the Respondent filing their present motion 1 November 2004.
Time Bar
[8] The Respondent submits that the present Notice of Application was not filed within the 30-day time limit provided by section 18.1(2) of the Federal Courts Act. Here the Respondent runs into several problems.
[9] The Respondent relies upon affidavit evidence in order to establish a time bar. However a motion to strike out, on the basis of prescription, must be brought pursuant to what was Rule 419(1)(a) and which is now Rule 21(1)(a). This is taught by the Court of Appeal in Sembawang Reefer Lines (Bahamas) Ltd. v. Lina Erre (The) (1990), 114 N.R. 270 at 271 and 272:
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[4] A plea of prescription will normally form part of the defence on the merits (Rule 409). It is also possible that it might, in appropriate circumstances, be the subject of a preliminary determination (Rule 474) or a stated case (Rule 475) or even of an application for summary judgment (Rule 341). However, where, as here, the prescription of the action is raised as a preliminary question by a simple application to strike, this must be done pursuant to Rule 419(1)(a):
"Rule 419. (1) The Court may at any stage of an action order any pleading or anything in any pleading to be struck out, with or without leave to amend, on the ground that
(a) it discloses no reasonable cause of action or defence, as the case may be.
[5] Such an application is subject to the restriction imposed by Rule 419(2):
"(2) No evidence shall be admissible on an application under paragraph (1)(a).
[6] In the present case, for the Motions Judge to determine what foreign law should be applicable and to find that its effect was to extinguish the maritime lien, he was obliged to weigh, evaluate and choose from a substantial body of evidence as to the content of such foreign law. That evidence only found its way into the record through affidavits filed specifically in support of or in opposition to the Notice of Motion. It was not admissible and should not have been considered by the Motions Judge. In its absence, the application could not succeed and should have been dismissed. |
The thrust of this passage in the context of the 1998 Federal Court Rules, is that a motion to strike out for a time bar falls within Rule 221(1)(a), want of a reasonable cause of action and that by Rule 221(2) I may not look at the affidavit evidence in support filed by the Respondent. This is fatal in that counsel relies upon a portion of the affidavit of Robert Maertens, counsel with the Department of Justice, and specifically paragraphs 5 and 6 of that affidavit.
[10] Equally fatal to the time bar argument, for striking out and this is trite law is that a time bar is not a basis for striking out. Certainly, there are limited exceptions to that rule, however none are applicable here. Indeed, as Justice of Appeal Marceau pointed out in Watt v. Canada (Transport), an unreported 21 January 1998 decision in file A-448-97, [1998] F.C.J. No. 49 (QL):
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4. The motions judge was also right in refusing to consider certain statute of limitation prescriptions as a basis for striking the action under the present motion brought pursuant to Rule 419(1)(a). It is now well established that the effect of a statute of limitation can be determined only after the filing of the defence either at trial or on a Rule 474 motion. |
Watt involves an action, as opposed to judicial review, however the same principles apply to an originating notice of motion. On this basis a limitation plea or argument ought to be determined either on a Rule 220 motion in the case of an action, or in the case of a judicial review proceeding at the ultimate full hearing.
[11] There is yet a third reason why this matter ought not to be disposed of on the basis of a time bar at this point. There is apparently a difference of opinion between counsel as to whether in fact there is a time bar. Counsel for the Applicant submits that the application is not subject to the 30-day deadline provided for in section 18.1(2) of the Federal Courts Act and was thus not filed out of time. This is based on the premise that judicial review, under section 18.1 of the Federal Courts Act, is not limited to a decision or an order and thus the 30-day deadline is inapplicable. Here counsel refers to three cases.
[12] In Morneault v. Canada (Attorney General) (2000), 256 N.R. 85 the Federal Court of Appeal pointed out that judicial review under section 18.1 extended beyond a decision or order, to other matters:
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Judicial review under section 18.1 is not limited to a "decision or order". This is clear from subsection 18.1(1) which enables the Attorney General of Canada and "anyone directly affected by the matter" to seek judicial review. It is plain from the section as a whole that, while a decision or order is a "matter" that may be reviewed, a "matter" other than a decision or order may also be reviewed. This Court's decision in Krause et al. v. Canada et al., [1999] 2 F.C. 476; 236 N.R. 317 (F.C.A.) illustrates the point. It was there held that an application for judicial review pursuant to section 18.1 for a remedy by way of mandamus, prohibition and declaration provided for in section 18 of the Act, were "matters" over which the Court had jurisdiction and that the Court could grant appropriate relief pursuant to paragraphs 18.1(3)(a) and 18.1(3)(b). See also Sweet et al. v. Canada [1999] F.C.J. No. 1539; [1999] 249 N.R. 17 ), (F.C.A.); Devinat v. Commission de l'immigration et du statut de réfugiédu Canada, [2000] 2 F.C. 212; 250 N.R. 326 (F.C.A.).
(Pages 104 - 105)
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At issue in the present instance is a difference in view points between counsel as to whether the issuance of an authority to proceed is or is not a decision or an order.
[13] It is useful also to refer to Friedman & Friedman Inc. v. Canada (Superintendent of Bankruptcy) (2001), 211 F.T.R. 161 (F.C.T.D.) involving judicial review of a disciplinary investigation. In that case the defendants argued that the application was premature, since no decision or order had been rendered. Mr Justice Dubé pointed out that the 30-day deadline for filing, provided for in section 18.1(2), was only applicable in the case of review of a decision or order and that all recourse against an administrative act was not ruled out, for in that instance the 30-day deadline did not apply:
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Section 18.1(2) only provides a formal deadline for filing an application for judicial review in cases in which the application is based on a decision or order. The provision does not rule out all recourse against an administrative proceeding or an administrative act. In the latter cases, the thirty-day deadline does not apply.
(Page 164) |
Here is a clear statement that where an administrative proceeding or an administrative act is at issue in a judicial review matter, as counsel for the Applicant contends is the situation, the 30-day deadline set out in section 18.1(2) does not apply.
[14] Finally, of interest is Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage), an unreported 23 April 2004 decision of Mr Justice Gibson, 2004 FC 597. There at issue was judicial review of a so-called decision of the Minister of Canadian Heritage. Mr Justice Gibson was concerned as to whether the determination, which for ease of reference he decided to call it decision, was reviewable under section 18.1 of the Federal Courts Act, for rather than being a true decision, it was a policy guideline for the planning and management of national parks ski areas. Mr Justice Gibson followed the Morneault decision (supra) and a decision of Justice Nadon, in Larny Holdings Ltd. v. Canada (Minister of Health), [2003] 1 F.C. 541 (F.C.T.D.) for the proposition that matters, for example policy guidelines, might fall within judicial review even though not, in a restricted sense, being decision for orders.
[15] This submission, that at issue is a debatable matter, the existence or non-existence of a time bar, does not give rise to situation in which an application should be struck out on a motion. Only where it is blatant and obvious, with no redeeming arguable issues, that a judicial review matter ought to be struck out on a time bar, should that occur: see for example Jawanda v. Canada (Minister of Citizenship and Immigration) (2001), 14 Imm. L.R. (3d) 151 (F.C.T.D.) at 152 - 153.
[16] This matter will not be struck out on the basis of a time bar, for there is a real difference of opinion and it is clearly arguable that this matter does not fall within the exception to the general rules set out in the David Bull case (supra); because there may be no applicable 30-day deadline; and because such a serious and substantial issue ought not to be determined on a motion to strike out.
Jurisdiction
[17] The Respondent submits that the Federal Court has no jurisdiction to make an order of prohibition preventing the Minister from surrendering the Applicant, Mr Coffey, to the United States government. This is put forward on the basis that the Court has no jurisdiction to deal with an authority to proceed, being that issued to a Manitoba court, by the Minister of Justice, here referring to Froom v. Minister of Justice, an unreported 21 October 2004 decision, 2004 FCA 352. Froom does not go that far. Froom, does not as suggested by the Respondent, conclusively demonstrate that the Federal Court should decline to give this remedy or that the Court has no such jurisdiction. Certainly the applicable jurisdiction as to prohibition may be limited, but so long as any such jurisdiction may exist, I am not prepared to strike out for want of jurisdiction. Indeed, the Court of Appeal in Froom neither explicitly nor implicitly suggest that the Federal Court should always decline jurisdiction to deal with an application for judicial review of an authority to proceed, for this proposition is qualified:
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17 I agree with the Judge that, in principle, the Federal Court should always decline jurisdiction to deal with an application for judicial review of an authority to proceed if the grounds for the application disclose arguments that are squarely within the jurisdiction of the extradition judge, because in such cases an adequate alternative remedy would be available from the extradition judge. The same is true of any matter that is within the jurisdiction of the Minister at the surrender stage, or the provincial appellate court on judicial review of the surrender decision, or any matter that, under the applicable extradition treaty or the Extradition Act, must be deferred to the foreign court if the person sought for extradition is surrendered. (Emphasis added) |
Here there is a qualification: the issue is whether or not the extradition judge has the jurisdiction to review an authority to proceed. Then comes a conclusive statement from the Court of Appeal:
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18 I also agree that an extradition judge does not have the jurisdiction to conduct a judicial review of the authority to proceed, or to decide anew whether the Minister was correct to conclude that the statutory conditions for the issuance of an authority to proceed are met. (Emphasis added) |
In the view of the Court of Appeal an extradition judge, such as the judge dealing with this present matter in Manitoba, does not have the authority to conduct a judicial review of the authority to proceed. The Court of Appeal in Froom then goes on to discuss other possible remedies. However that introduces so many uncertainties that I am not prepared to strike out the application on this jurisdictional argument, and all the more so when the test goes beyond that usually involved in striking out an action and requires that the application be "... so clearly improper as to be bereft of any possibility of success." (David Bull at 600). The Applicant submits and this is a substantial argument, that because an extradition judge does not have the authority to conduct a judicial review of an authority to proceed, the present judicial review will not fall within the jurisdiction of the extradition judge.
[18] Counsel for the Respondent, in her written material, submits that the Federal Court has discretion to decline judicial review if there is an adequate alternate remedy. But here counsel for the Applicant refers to the brief filed by the Attorney General of Canada in the Queen's Bench proceedings, which describes the role of the extradition judge as limited and modest: see, for example, United States of America v. McVey, [1992] 3 S.C.R. 475 at 489 and following, 498 and following and 514 and following. More specifically, the Supreme Court of Canada has, in three cases, commented quite explicitly on the role filled by the extradition judge. In Argentina v. Mellino, [1987] 1 S.C.R. 536 Mr Justice La Forest rejected the broad jurisdiction claimed by the extradition judge, observing that the extradition judge has a modest function, that of determining whether or not a relevant crime fell within an appropriate treaty and whether the evidence presented was sufficient to justify surrender of an individual for trial in another country, the role being similar to that fulfil by a magistrate presiding at a preliminary hearing: see Mellino at pages 553 through 555. This does not suggest any alternate remedy in substitution for the present Federal Court judicial review application.
[19] In United States of America v. Lépine, [1994] 1 S.C.R. 286, at 296 and 297, Mr Justice La Forest again considered the position of the extradition judge limiting it to a consideration of the evidence produced and whether committal for trial would be justified if the crime had been committed in Canada. The jurisdiction did not extent to questions of jurisdiction.
[20] In United States of America v. Dynar, [1997] 2 S.C.R. 462 at 512 Justices Cory and Iacobucci delivered the judgment for the majority, reviewing the nature of an extradition hearing at pages 512 through 514. They pointed out that the jurisdiction of an extraction judge was entirely statutory and thus the role of the extradition judge was a modest one, limited to examining the elements and determining whether it justify committing the fugitive for surrender to the state requesting extradition. They pointed out that the procedure was: "... intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada's international obligations." (page 514).
[21] In the light of these cases counsel for the Applicant has a very arguable position that, given the restrictive role of extradition judges, a realistic alternate remedy does not necessarily exist and thus the Federal Court is an appropriate venue. While this argument may be a difficult one, counsel for the Applicant has certainly raised arguable issues concerning jurisdiction. The motion to strike out the application is not an appropriate vehicle by which to bring a closure to very real issues as to jurisdiction. Rather, this jurisdiction aspect should be addressed by the judge hearing the application, in due course, on its merits.
Jurisdiction to Prohibit Surrender
[22] As to the second remedy sought, the jurisdiction to prohibit surrender, the Respondent further submits that the Federal Court's jurisdiction has been legislatively ousted by section 17(6) of the Federal Courts Act, in conjunction with subsection 57(1) of the Extradition Act. The former provides that if jurisdiction has been conferred on a provincial court, the Federal Court has no jurisdiction. The latter provides that, notwithstanding the Federal Courts Act, the court of appeal of a province, in which the committal of a person has been ordered, has exclusive jurisdiction to hear and determine applications for judicial review.
[23] The position of the Applicant is fairly straightforward. The Applicant characterizes the question as not entirely one of surrender of the Applicant, but rather of the issuance of the authority to proceed. This is not review of or prohibition of a surrender of a fugitive, but rather is the prohibition or restraint, as provided for in section 18.1(3)(b) of Federal Courts Act, relating to the authority to proceed. Again, these are differences of opinion, on which there is no clear-cut law. As Mr Justice of Appeal Strayer wrote in David Bull (supra) at 601, these are matters which ought to be addressed by the judge hearing the application on its merits. Such a jurisdictional matter ought not to be dealt with on an interlocutory motion and all the more so when it is a motion to strike out an application for judicial review.
The Application as an Abuse of Process
[24] The Respondent submits that the application is an abuse of process because the Applicant is attempting to obtain documents to which he is not entitled in the extradition process. The further point of the Respondent is that the Applicant has already sought by a motion, in the Manitoba Court of Queen's Bench, in the extradition hearing, among other things, various notes and documents. These may be the same documents, or they may be overlapping documents, which are requested in the judicial review proceeding in the Federal Court.
[25] Counsel for the Respondent makes the point that extradition proceedings operate under a different regime of disclosure rules and those, for example, as mandated by the Supreme Court in R. v. Stinchcombe, [1991] 3 S.C.R. 326: in Stinchcombe the Supreme Court was concerned with the duty on the Crown to disclose all relevant information to an accused so as not to impede the ability of the accused to make a full answer. The Respondent further submits that the jurisdiction of the extradition judge, as to disclosure, is limited, referring to Dynar (supra) at 515 - 523 and to United States of America v. Kwok, [2001] 1 S.C.R. 532 at 559 - 560 and 581 - 582. In Dynar the Supreme Court noted that, in contrast to Stinchcombe there was "no entitlement to the most favourable procedures imaginable" (page 516), but rather that "the context and purpose of the extradition hearing will shape the level of procedural protection that is available to a fugitive." (loc. cit.). In the Kwok case Madam Justice Arbour referred to Dynar (supra) and noted that the committal hearing was neither intended nor designed to provide a discovery function. She went to observe, at page 581, that extradition proceedings, not giving rise to the issue of guilt or innocence, but being akin to preliminary enquires, enable an extradition judge to only order production of material relevant to the issues raised at the committal stage. In essence disclosure is limited to the evidence relied upon by the state requesting the extradition.
[26] From the Applicant's point of view, what is occurring is not an abuse of process, for he does not seek disclosure of documents in an underhanded manner, nor has he delayed in bringing the present application. However the thrust of the Applicant's argument is that at issue is a review of the issuing of the authority to proceed, not the extradition itself. This challenge must, arguably, take place in the Federal Court. Here the arguments of both sides are somewhat limited. However, while accepting that extradition proceedings do not concern themselves with issue of guilt or innocence and thus there is a limited right of disclosure, I also accept the argument, as tenable, on the part of the Applicant, that the Minister's actions are reviewable: by way of example if the Minister did not have before him evidence that the Applicant was in fact charged with an offence in the United States then were that to prove to be the case, on the production of the requested documents, the authority to proceed might be quashed. There is affidavit evidence on this motion that perhaps the Applicant does not have an American charge against him, the last charge against him being dismissed on 5 March 1999.
CONCLUSION
[27] The issues raised by the Respondent, as grounds for striking out, are neither clear-cut nor is the law cited conclusive. The issues are debatable and indeed do not support the position that the present application is so clearly improper as to be bereft of any possibility of success. This is not one of the rarest circumstances in which a judicial review application ought to be struck out on a summary basis.
[28] In written argument filed on half of the Respondent, Minister of Justice, counsel seeks costs. However it is the Applicant, David Coffey, who has succeeded except as to an oral hearing of this motion: he should therefore have his costs. As I suggested at the outset of these reasons, motions to strike out judicial review applications are often brought as a result of an abundance of optimism, without considering either the difficulty of meeting the test for striking out set out in the David Bull case (supra), or taking heed of the caution that, "Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion." (page 600). In this instance all the points made by the Respondent are debatable and certainly do not support the stringent exception set out in the David Bull case. I would not go so far as does counsel for the Applicant, characterizing the raising of debatable issues, in the context of striking out, to be an abuse of process. However, the mass of material with which the Applicant was forced to contend, does give rise to enhanced costs. Relying upon Item 5, Column IV of Tariff B, as a guideline, lump sum costs, including an allowance for disbursements, will be in the amount of $1,000.00 payable forthwith.
[29] The Respondent will have appropriate extension of time, as set out in an Order of even date.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
3 December 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-1875-04
STYLE OF CAUSE: David B. Coffey v. The Minister of Justice
REASONS FOR ORDER BY: Hargrave P.
DATED: 3 December 2004
WRITTEN REPRESENTATIONS BY:
David H. Davis FOR APPLICANT
Sharlene Telles-Langdon FOR RESPONDENT
SOLICITORS ON THE RECORD:
Davis & Associates Law Office FOR APPLICANT
Barristers & Solicitors
Winnipeg, Manitoba
Morris A. Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Winnipeg, Manitoba