Federal Court Decisions

     T-1439-96

Between:

     DAVID SAWATZKY,

     Applicant,

     - and -

     FEDERAL MINISTER OF AGRICULTURE

     (THE ATTORNEY GENERAL OF CANADA),

     Respondent.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     These reasons arise out of the Respondent's motion to strike out an originating notice of motion for judicial review, which is said to disclose no reasonable cause of action.

     The Originating Notice of Motion, filed June 17, 1996, is brief. The Plaintiff, Mr. Sawatzky, wishes to overturn what he refers to as a decision by the Federal Minister of Agriculture to recommend an amendment to the Canadian Wheat Board Act (the "Act"). He asks for:

1.      An order overturning the decision of the Federal Minister of Agriculture to recommend that the CANADIAN WHEAT BOARD ACT be amended on May 17/96, transmitted to the Applicant by Fax on May 21/96.

2.      A Declaration stating that "the decision of the Federal Minister of Agriculture to amend the Canadian Wheat Board Act on May 17/96 is an attempt to discriminate against the Applicant".

3.      A Declaration stating that "The Federal Minister of Agriculture acted beyond his jurisdiction when recommending that the Canadian Wheat Board Act be amended on May 17/96 in that Parliment [sic], in the Canadian Wheat Board Act and the Customs Act".

Mr. Sawatzky says the amendment was made within a very short time of his acquittal on charges under the Act.

     The May 17, 1996, amendment, referred to by Mr. Sawatzky, is in fact a amendment by the Governor General in Council, on the advice of the Minister of Agriculture, of section 14 of the Canadian Wheat Board Regulations C.R.C., c.397, by adding a new section, 14.2:

1.      The Canadian Wheat Board Regulations are amended by adding the following after section 14.1:

14.2      Any person who experts wheat, wheat products, barley or barley products from Canada shall, at the time of exportation, give to a customs officer at the customs office at the point of exit specified on the export licence

(a)      the original export licence for that grain or grain product, and a copy of it; or

(b)      in the case of an export licence for multiple shipments of that grain product

(i)      at the time of every shipment except for the final shipment, two copies of the export licence, and

(ii)      at the time of the final shipment, the original export licence as [sic] a copy of it.

However, before turning to the merits of the motion, there are two preliminary issues: the jurisdiction of the Prothonotary and the jurisdiction of the Court to strike out a motion.

JURISDICTION OF THE PROTHONOTARY

     Mr. Sawatzky submits that prothonotaries have no jurisdiction to strike out a proceeding for, if I follow his argument, it would be a final disposition.

     This issue of jurisdiction was dealt with by Associate Senior Prothonotary Giles in Iscar Limited v. Karl Hertl GMBH, [1989] 3 F.C. 468, whose affirmative decision was upheld on appeal by Associate Chief Justice Jerome, reported [1989] 3 F.C. 479.

     The gist of Mr. Giles' decision is that Prothonotaries are empowered to dispose of interlocutory applications, that is applications arising in the course of a proceeding, except those specifically reserved to a Judge. He pointed out that an interlocutory application can give rise to a final order in the sense of finally determining the issues between the parties.

     On the appeal of Mr. Giles' decision in the Iscar case, which was combined with a second case in which the same issue had arisen, the Associate Chief Justice, in upholding the Prothonotary's jurisdiction to perform judicial functions traditionally performed by judges, based his decision on section 46(1) of the Federal Court Act which allows the judges of the Federal Court to make rules and orders -

(h)      empowering a prothonotary to exercise any authority or jurisdiction, subject to supervision by the Court, even though such authority may be of a judicial nature; . . .

In concluding that the Prothonotary had jurisdiction to deal with applications under Rule 419(1), the Associate Chief Justice said:

. . . It is clear from paragraph 46(1)(h) of the Act that Parliament did not intend prothonotaries to act simply as procedural officers of the Court. On the contrary, it is clear from that section that Parliament intended prothonotaries to have jurisdiction of a judicial nature. In order to exercise that jurisdiction, however, there must be a Federal Court Rule empowering the prothonotary to do so, hence Rule 336. The jurisdiction of the prothonotary to hear interlocutory applications springs from subsection 46(1). The power to exercise that jurisdiction is found in Rule 336(1)(g). The exercise of that jurisdiction is limited to "any interlocutory application assigned to him specially or to any prothonotary, by special or general direction of the Chief Justice or of the Associate Chief Justice." Applications to strike a pleading under Rule 419(1) are clearly interlocutory applications despite the fact that the decisions may finally determine the matters.

STRIKING OUT A MOTION

     Mr. Sawatzky, who acts for himself, took the position that the Court did not have the jurisdiction to strike out an originating notice of motion. In argument, he referred to Pharmacia Inc. v. David Bull Laboritories (Canada) Inc. (1994) 176 N.R. 48 in which the Court of Appeal pointed out that:

. . . the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself." (p. 52)

However, Mr. Justice Strayer, who wrote the David Bull decision, went on to leave open the possibility of striking out a motion in some circumstances:

. . . 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. (See e.g. Cynamid Agriculture de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 (F.C. (T.D.)). 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.

     The test for striking out a pleading, under Rule 419(1)(a), on the grounds that it discloses no reasonable cause of action, is not an easy on to meet. A court will only strike pleadings in plain and obvious cases where the matter is beyond doubt: see for example Canada v. Inuit Tapirisat of Canada, [1980] 2 C.R. 735, Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 and Hunt v. Carey Canada Inc., [1992] S.C.R. 959. Where it is not a pleading in an action that is to be struck out, but rather an originating notice of motion, a court must be particularly scrupulous and the situation must be very exceptional. In the words of Mr. Justice Strayer, the motion must be "bereft of any possibility of success".

ANALYSIS

The Motion to Strike Out

     In the present instance the judicial review requested is of a recommendation of the Minister of Agriculture as to how the Canadian Wheat Board Act ought to be amended.

     The Respondent submits that the Minister of Agriculture has not made a decision, but only a recommendation. Rather, the decision is that of the Governor in Council who may, by section 46 of the Canadian Wheat Board Act, make regulations:

(c)      to provide for the granting of licences fro the export from Canada, or for the sale or purchase for delivery outside Canada, of wheat or wheat products, which export, sale or purchase is otherwise prohibited under this Part;

(d)      to prescribe the terms and conditions on which licences described in paragraph (c) may be granted, including a requirement for the recovery from the applicant by the Board or any other person specified by the regulation, of a sum that, in the opinion of the Board, represents the pecuniary benefit enuring to the applicant pursuant to the granting of a licence, arising solely by reason of the prohibition of exports of wheat and wheat products without a licence and then existing differences between prices of wheat and wheat products inside and outside Canada;. . .

(g)      to provide for any other matter necessary to give effect to this Part.

and similarly by section 61 of the Act:

The Governor in Council may make regulations for any purpose for which regulations may be made under this Act.

The Respondent submits only decisions, not recommendations, may be reviewed: the only decision made in the present instance was by the Governor in Council who, upon the Minister of Agriculture's recommendation, amended the Canadian Wheat Board Regulation.

     It is perfectly proper for the Governor in Council, as the executive branch of government, to look to its staff and to the comments and advice of its ministers in making a decision:

. . . The executive branch cannot be deprived of the right to resort to its staff, to departmental personnel concerned with the subject matter, and above all to the comments and advice of ministerial members of the Council who are by virtue of their office concerned with the policy issues arising by reason of the petition whether those policies be economic, political, commercial or of some other nature. (Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at 753.)

     As the Court of Appeal pointed out in Ex Parte County Council of Kent and Council of Dover, [1891] 1 Q.B. 725, the word "decision" is a popular and not a technical or legal word (p. 728). However, a decision must be in the nature of the action of coming to a determination or resolution. Decisions cover a broad range. A decision is very different from a mere recommendation to the decision-maker.

     That it is decisions, not recommendations, which are to be reviewed by the Court, is inherent in the very nature of judicial review and the duty of the Court. This may be defined, in the Canadian legislative context, as the right and duty of the courts to investigate, question and determine the validity of the enactments of a legislative body, most notably as to whether they contravene a constitutional prohibition: see for example Hogg on Constitutional Law of Canada, Third Edition, Toronto, Carswell, 1992, and also Amex Potash Limited v. The Government of Saskatchewan, [1977] 2 S.C.R. 576, in which Mr. Justice Dickson, delivering the judgment of the Court, said:

The Courts will not question the wisdom of enactments which, by the terms of the Canadian Constitution are within the competence of the Legislatures, but it is the high duty of this Court to ensure that the Legislatures do not transgress the limits of their constitutional mandate and engage in the illegal exercise of power. (p. 590).

     To summarize, it is not for the courts to review a ministerial recommendation. That is what Mr. Sawatzky seeks. It is plain and obvious the motion will not succeed. To adopt Mr. Justice Strayer's terminology, from David Bull, [supra], it falls within the category of a ". . . motion which is so clearly improper as to be bereft of any possible success.".

Possible Amendment

     The Respondent submits the Originating Notice of Motion is so inadequate that it cannot be cured by any amendment, except, possibly, by calling into question the ability of the Governor in Council to amend the Canadian Wheat Board Regulations. Again, the Respondent submits such an amendment to the Originating Notice of Motion would remain so clearly improper as to be bereft of any possibility of success. The onus is on the Crown to show the Governor in Council's enactment of the new regulations is clearly within his powers under the enabling provision in the Act.

     Associate Chief Justice Jerome dealt with the striking out of a pleading, without leave to amend, in McMillan v. Canada (1996), 108 F.T.R. 32 at 39, where he said ". . . there must not be a scintilla of a legitimate cause of action for a claim to be struck out without leave to amend.", approving a test applied by Associate Senior Prothonotary Giles in Kiely v. Canada (1987), 10 F.T.R. 10 at 11.

     The Governor in Council is given the power to make specific regulations, including as to the granting of licences for the export of wheat and the determination of the terms and conditions and any other matters by section 46(c), (d) and (g) of the Act, which are set out above. Section 47 of the Act extends this power to make regulations to barley. As I have also earlier pointed out, section 61 gives a general power to make regulations for any purpose for which regulations may be made under the Act.

     I have also set out the impugned amendment which requires a person exporting wheat, barley, or their products from Canada, a licence for the exportation. I do not see how new section 14.2 of the Canadian Wheat Board Regulations can be said to in any way fall outside of the power of the Governor in Council. As Mr. Justice Dickson pointed out in Amex Potash [supra], "The Courts will not question the wisdom of enactments which, by the terms of the Canadian Constitution, are within the competence of the Legislatures, . . . "

(p. 590). In effect the Governor in Council can do what the Court cannot and that is to use his best judgment in matters of general policy in the public interest, so long as he does not step outside the bounds of statutory power.

     It is a serious matter not only to strike out a pleading or a motion, but also to deny a litigant amendment, thus driving him from the judgment-seat. However, judicial review does not lie where the decision is legislative in nature, as opposed to an administrative decision: see for example Alcan Aluminum Limited v. Carrier-Sekani Tribal Council (1992), 141 N.R. 125 at 139, a decision of the Federal Court of Appeal and Vancouver Island Peace Society v. Canada (1993), 64 F.T.R. 127 at 143.

     The fact that a statutory power is vested in the Governor in Council does not automatically mean that enactment is beyond review (Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 at 748. Indeed:

. . . in the exercise of a statutory power the Governor in Council, like any other person or persons, must keep within the law as laid down by Parliament or the Legislature. Failure to do so will call into action the supervising function of the Superior Court whose responsibility is to enforce the law, that is to ensure that such actions as may be authorized by statute will be carried out in accordance with its terms, or that a public authority shall not fail to respond to a duty assigned to it by statute. (ibid, p. 752).

I have already pointed out that the Governor in Council may properly resort to obtaining advice from staff and government ministers.

     There is every indication the Governor in Council has properly enacted the amendment to the Canadian Wheat Board Regulations. There is no indication the Governor in Council has stepped outside the bounds of the enabling legislation, the Canadian Wheat Board Act. Thus there is not a scintilla of a legitimate cause of action. Leave to amend is denied.

CONCLUSION

     Both counsel for the Respondent and Mr. Sawatzky argued well. Mr. Sawatzky did a good job of presenting his views at the hearing of this motion. However, he had little with which to work in a legal sense, for it is not for the Court to question the wisdom of a proper legislative enactment. Thus, the Originating Notice of Motion is dismissed, without leave to amend.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

September 13, 1996

Vancouver, British Columbia