Date : 20000310
Docket : T-133-99
BETWEEN:
WILLIAM THOMAS VAUGHAN
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
McGILLIS J.
[1] This motion raises a question concerning the proper avenue of appeal from a prothonotary"s order.
[2] On January 31, 2000, Aronovitch P. struck the statement of claim in this proceeding on the basis that it disclosed no reasonable cause of action. Counsel for the plaintiff attempted to appeal that decision by filing a notice of appeal in the Court of Appeal. However, the Registry refused to accept the notice of appeal for filing in the Court of Appeal on the basis that Rule 51 of the Federal Court Rules, 1998 permits a prothonotary"s order to be appealed only to a judge of the Trial Division. Given the position taken by the Registry, counsel for the plaintiff brought a motion under Rule 51 to appeal the decision of Aronovitch P. to a judge of the Trial Division. However, he also brought a motion to transfer the appeal of the order of Aronovitch P. to the Court of Appeal on the basis that an order of a prothonotary striking out a statement of claim is a "final judgment", within the meaning of paragraph 27(1)(a) of the Federal Court Act , R.S.C. 1985, c. F-7 as amended, from which an appeal lies directly to the Court of Appeal.1 The motion to transfer the appeal of the order of Aronovitch P. to the Court of Appeal is the subject of these Reasons for Order.
[3] During the hearing of the motion, counsel for the plaintiff submitted that a prothonotary"s order striking out an action is a "final judgment", as that phrase is defined in subsections 2(1) and 27(4) of the Federal Court Act . As a result, a party appealing a prothonotary"s final order has the option under paragraph 27(1)(a) of the Federal Court Act and Rule 51(1) of the Federal Court Rules, 1998 of bringing a motion to a judge of the Trial Division or appealing directly to the Court of Appeal. Furthermore, any interlocutory order of a prothonotary falls within the meaning of the term "interlocutory judgment" in paragraph 27(1)(c) of the Federal Court Act , thereby conferring jurisdiction on the Court of Appeal to hear appeals of those orders as well. In short, counsel for the plaintiff submitted that any order of a prothonotary is appealable to either the Court of Appeal, under subsection 27(1) of the Federal Court Act, or to the Trial Division, under Rule 51(1) of the Federal Court Rules, 1998.
[4] In order to determine the proper route of appeal from an order of a prothonotary, the legislative scheme in the Federal Court Act and the Federal Court Rules, 1998 governing appeals and the supervision of prothonotaries must be examined. In interpreting that legislative scheme, it is also useful to place it in its proper context by reviewing the historical development of the office of the prothonotary.
i) office of the Registrar or Master in the Exchequer Court
[5] The Exchequer Court of Canada was the predecessor to the Federal Court of Canada. By virtue of subsection 4(1) of the Exchequer Court Act, R.S.C. 1952, c. 98 as amended, the Exchequer Court consisted of the president and six puisne judges. From the inception of the Exchequer Court until its dissolution and replacement by the Federal Court, its governing statute provided for the office of a Registrar or Master to assist in its work. The history of the office of Registrar or Master of the Exchequer Court was reviewed by Isaac C.J. (as he then was) in his dissenting opinion in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), at pages 438 to 439 in footnote 5, as follows:
| The office of Registrar has existed since the founding of the Court. Initially, the position of Registrar of both the Supreme Court of Canada and the Exchequer Court was occupied by the same individual (The Supreme and Exchequer Courts Act, S.C. 1875, c. 11, s. 70), but in 1887, the position of Registrar of the Exchequer Court was constituted as a separate office (An Act to amend "The Supreme and Exchequer Courts Act", and to make better provision for the Trial of Claims against the Crown, S.C. 1887, c. 16, s. 9). Like the prothonotaries in this Court, the Registrar of the Exchequer Court was required to be a barrister. |
| The constituent authority for the office of Registrar had to be amended periodically to provide for an increase in salary until, by [An Act to amend the Exchequer Court Act] S.C. 1957, c. 24, s. 1, his salary was thereafter to be determined by the Governor in Council, but the express authorization for the exercise of judicial authority by him was enacted by [An Act to amend the Exchequer Court Act] S.C. 1920, c. 26, s. 3. It added a new subs. 13(2) to the Act, which provided: |
| 13. ... |
| (2) In addition to any powers, jurisdiction and authority conferred upon the Registrar by this or any other statute of Canada, the Judges of the Exchequer Court of Canada may, by any general rule or order made under the provisions of section eighty-seven of this Act [i.e. the provision which authorized the judges of the Court to make rules], empower the Registrar to do any such thing and transact any such business as is specified in such rules or orders, and to exercise any authority and jurisdiction in respect of the same as is now or may be hereafter done, transacted or exercised by a Judge of the Court sitting in Chambers in virtue of any statute or custom or by the practice of the Court. |
| In the 1927 revision of the public general statutes [Exchequer Court Act, R.S.C. 1927, c. 34] this provision was incorporated (with slight grammatical modifications of no consequence to this case) as ss. 87(2), where it remained throughout the remainder of the life of the Exchequer Court (see Exchequer Court Act, R.S.C. 1952, c. 98). In their last form prior to the creation of this Court, the "semi-judicial powers", as they were entitled, were embodied in Exchequer Court General Rules and Orders , Rule 1A. By virtue of Rule 1A(4), the Registrar could be referred to as the Master of the Court. |
[6] By virtue of subsection 87(2) of the Exchequer Court Act, the judges were permitted to make rules empowering the Registrar or Master to exercise any authority or jurisdiction of a judge. The General Rules and Orders of the Exchequer Court outlined the jurisdiction to be exercised by the Registrar or Master and provided for an appeal to the Court, which was defined as meaning a judge of the Exchequer Court.
ii) Federal Court Act and former Federal Court Rules
[7] The Federal Court Act, R.S.C. 1970, c. 10 (2nd Supp.) ("Federal Court Act, 1970") came into force on June 1, 1971. It continued and expanded the jurisdiction of the Exchequer Court in the newly created Federal Court, a court composed of two divisions, namely the Court of Appeal and the Trial Division. By virtue of subsection 5(1) of the Federal Court Act , 1970, the Court consisted of the judges specified in that provision. The Federal Court Act, 1970 did not continue the office of Registrar or Master in the manner in which that office had existed in the Exchequer Court; rather, it provided for the appointment by the Governor in Council of prothonotaries in circumstances where their assistance was "necessary for the efficient performance of the work of the Court". The powers, duties and functions of the prothonotaries were to be determined by the Rules. Section 12 provided as follows in relation to prothonotaries:
| 12. (1) The Governor in Council may appoint as prothonotaries of the Court such fit and proper persons who are barristers or advocatesin any of the provinces as are, in his opinion, necessary for the efficient performance of the work of the Court that, under the Rules, is to be performed by them. (2) The Governor in Council shall designate one of the prothonotaries to be Senior Prothonotary and one of the prothonotaries to be Associate Senior Prothonotary. (3) The powers, duties and functions of the prothonotaries shall be determined by the Rules. (4) Each prothonotary shall be paid a salary to be fixed by the Governor in Council. (5) For the purposes of the Public Service Superannuation Act, a prothonotary shall be deemed to be employed in the Public Service. |
12. (1) Le gouverneur en conseil peut nommer à titre de protonotaires de la Cour les personnes qualifiées et compétentes, choisies parmi les avocats de l"une ou l"autre des provinces, dont les services sont, à son avis, nécessaires pour l"expédition efficace des travaux de la Cour assignés aux protonotaires en vertu des Règles. (2) Le gouverneur en conseil désigne deux des protonotaires pour assumer respectivement les fonctions de protonotaire-chef et de protonotaire-chef adjoint. (3) Les pouvoirs et fonctions des protonotaires sont déterminés par les Règles. (4) Chaque protonotaire perçoit un traitement fixé par le gouverneur en conseil. (5) Aux fins de la Loi sur la pension de la Fonction publique, un protonotaire est censé être à l"emploi de la Fonction publique. |
[8] The power of the Court to make rules was embodied in section 46 of the Federal Court Act, 1970. In particular, paragraphs 46(1)(a) and (b) respectively permitted judges to make rules to regulate the practice and procedure in the two divisions of the Court and "for the effectual execution and working of [the Federal Court Act, 1970] and the attainment of its intention and objects". Paragraph 46(1)(h) of the Federal Court Act, 1970 permitted judges to make rules concerning the jurisdiction to be exercised by prothonotaries under the supervision of the Court. Paragraph 46(1)(h) provided as follows:
| 46. (1) Subject to the approval of the Governor in Council and subject also to subsection (4), the judges of the Court may, from time to time, make general rules and orders not inconsistent with this or any other Act of the Parliament of Canada, ...
|
46. (1) Sous réserve de l"approbation du gouverneur en conseil, et, en outre, du paragraphe (4), les juges de la Cour peuvent, quand il y a lieu, établir des règles et ordonnances générales qui ne sont incompatibles ni avec la présente loi ni avec aucune autre loi du Parlement du Canada, ...
|
[9] Under the authority of paragraph 46(1)(h) of the Federal Court Act, 1970, the judges of the Court made the former Federal Court Rules, SOR/71-68 as amended, including Rule 336 dealing with prothonotaries. Former Rules 336(1), (2) and (5) dealt with, respectively, the specific jurisdiction to be exercised by prothonotaries, the referral of matters back to the Court for disposition or directions and the avenue of appeal. For the purposes of the present motion, it is unnecessary to describe in any detail the jurisdiction exercised by prothonotaries under the regime in the former Federal Court Rules. However, it is important to note that former Rule 336 did not restrict the jurisdiction of prothonotaries to matters in the Trial Division, but was broadly worded to permit the exercise of jurisdiction in matters arising in either the Trial Division or the Court of Appeal. In practice, prothonotaries only exercised their jurisdiction in matters in the Trial Division. However, the fact that their jurisdiction was not restricted solely to matters in the Trial Division was made clear by the appeal provision in former Rule 336(5) which provided as
follows:
| 336. (5) Any person affected by an order or decision of a prothonotary, other than a judgment under Rules 432 to 437, may appeal therefrom to the Court and such appeal shall be made by an application of which a notice shall be given to all interested parties setting forth the grounds of objection and served within 14 days after the order or decision complained of, and 4 clear days before the day fixed for hearing the same, or served within such other time as may be allowed by the Court or a prothonotary on ex parte application. The appeal shall be filed not later than 2 days before the date named for hearing (In this paragraph, "Court" means "Trial Division", if the matter is in the Trial Division, and "Court of Appeal", if the matter is in the Court of Appeal). |
336. (5) Toute personne concernée par une ordonnance ou décision d"un protonotaire, autre qu"un jugement en vertu des Règles 432 à 437, peut en appeler à la Cour et cet appel doit être interjeté au moyen d"une demande dont avis doit être donné à toutes la parties intéressées, ledit avis devra indiquer les raisons de l"opposition et être signifié dans les 14 jours de l"ordonnance ou de la décision dont il est fait appel, et 4 jours francs avant le jour fixé pour l"audition de l"appel, ou devra être signifié dans tel autre délai que pourra accorder la Cour ou un protonotaire sur demande ex parte. L"appel doit être déposé 2 jours au moins avant la date fixée pour l"audition. (Au présent alinéa, "Cour" désigne la "Division de première instance", si la question est devant la Division de première instance, et la "Cour d"appel" , si la question est de la Cour d"appel). |
[10] A review of Rule 336(5) indicates that a person could appeal a prothonotary"s order to the Trial Division "...if the matter [was] in the Trial Division..."and to the Court of Appeal "...if the matter [was] in the Court of Appeal".
[11] The jurisdiction of the Court of Appeal to hear appeals was outlined in section 27 of the Federal Court Act, 1970. Subsections 27(1) and (4) provided as follows:
| 27. (1) An appeal lies to the Federal Court of Appeal from any
of the Trial Division. ... (4) For the purposes of this section a final judgment includes a judgment that determines a substantive right except as to some question to be determined by a referee pursuant to the judgment. |
27. (1) Il peut être interjeté appel, devant la Cour d"appel fédérale,
de la Division de première instance. ... (4) Aux fins du présent article, un jugement final comprend notamment un jugement qui statue sur le fond au sujet d"un droit, à l"exception d"un point litigieux laissé à la décision ultérieure d"un arbitre qui doit statuer en conformité du jugement. |
[12] The Federal Court Act, 1970 was revised and consolidated in the Federal Court Act, R.S.C. 1985, c. F-7, and has been subsequently amended on many occasions. None of the amendments are relevant to the issues raised in the present motion, save and except amendments to subsection 46(1) empowering the rules committee, and not the judges of the Court, to make general rules and orders. Subsection 46(1) presently reads as follows:
| 46. (1) Subject to the approval of the Governor in Council and subject also to subsection (4), the rules committee may make general rules and orders ... |
46. (1) Sous réserve de l"approbation du gouverneur en conseil et, en outre, du paragraphe (4), le comité peut, par règles ou ordonnances générales ... |
Subsection 27(1) was also amended by S.C. 1990, c. 8, s. 7, which added paragraph (d) pertaining to the "determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada". However, that amendment has no relevance to the present motion. Furthermore, the numbering of the legislative provisions reproduced above has not changed.
iii) Federal Court Rules, 1998
[13] The Federal Court Rules, 1998are subordinate legislation and cannot prevail over any provision in an Act of Parliament or a regulation. In that regard, Rule 1(2) provides as follows:
| 1. (2) In the event of any inconsistency between these Rules and an Act of Parliament or a regulation made thereunder, that Act or regulation prevails to the extent of the inconsistency. |
1. (2) Les dispositions de toute loi fédérale ou de ses textes d'application l'emportent sur les dispositions incompatibles des présentes règles. |
[14] Given the express legislative requirements in subsection 12(3) and paragraph 46(1)(h) of the Federal Court Act, the Federal Court Rules, 1998 created the framework governingthe jurisdiction to be exercised by prothonotaries under the supervision of the Court. In particular, Rule 50 expanded the jurisdiction of prothonotaries to permit them to hear and make orders relating to any motion, except those specifically exempted by the Rule, and to hear certain actions. However, by virtue of Rule 50(1)(b), prothonotaries are expressly prohibited from hearing motions in the Court of Appeal. Rule 50 provides, in part, as follows:
| 50. (1) A prothonotary may hear, and make any necessary orders relating to, any motion under these Rules other than a motion
... |
50. (1) Le protonotaire peut entendre toute requête présentée en vertu des présentes règles -- à l'exception des requêtes suivantes -- et rendre les ordonnances nécessaires s'y rapportant :
... |
[15] The manner in which the Court supervises prothonotaries, as contemplated by paragraph 46(1)(h) of the Federal Court Act, is found in Rule 51 which permits a party to appeal an order of a prothonotary to a judge of the Trial Division. Rule 51 provides as follows in relation to appeals of prothonotaries orders:
| 51. (1) An order of a prothonotary may be appealed by a motion to a judge of the Trial Division.
(2) Notice of motion under subsection (1) shall be
|
51. (1) L"ordonnance du protonotaire peut être portée en appel par voie de requête présentée à un juge de la Section de première instance. (2) L"avis de la requête visée au paragraphe (1) est:
|
iv) principles of statutory interpretation
[16] In order to determine the proper construction of subsection 27(1) of the Federal Court Act, the principles of statutory interpretation enunciated by the Supreme Court of Canada must be applied. In Merck & Co. v. Canada (Attorney General), [1999] F.C.J. No. 1825, T-398-99 (November 23, 1999) (T.D.), I summarized those principles of statutory interpretation as follows, at paragraphs 47 to 50:2
| In order to determine the proper construction of subsection 5(1) of the Patented Medicines (Notice of Compliance) Regulations, the principles of statutory interpretation outlined in the leading case Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 must be applied. In that decision, Iacobucci J., writing for the Court, outlined the following framework for statutory interpretation, at pages 40-41: |
| At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete. |
| Although much has been written about the interpretation of legislation (see, e.g. Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: |
| Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. |
| Recent cases which have cited the above passage with approval include: R. v. Hydro-Québec, [1997] 1 S.C.R. 213; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; Friesen v. Canada, [1995] 3 S.C.R. 103. |
| I also rely upon s. 10 of the Interpretation Act, R.S.O. 1980, c. 219, which provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit". |
| Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues. |
| The purposive approach to statutory interpretation adopted in Rizzo & Rizzo Shoes Ltd. (Re), supra has been applied by the Supreme Court of Canada in many cases. [See, for example, Chartier v. Chartier, [1999] 1 S.C.R. 242 at 252; R. v. Gladue, [1999] 1 S.C.R. 688 at 704; Novak v. Bond, [1999] 1 S.C.R. 808 at 839; M & D Farm Ltd. v. Manitoba Agricultural Credit Corp. (1999), 176 D.L.R. (4th) 585 at 597-598 (S.C.C.); Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 at 230 (S.C.C.); Best v. Best (1999), 174 D.L.R. (4th) 235 at 291 (S.C.C.); Winters v. Legal Services Society (1999), 177 D.L.R. (4th) 94 at 112-113 (S.C.C.); and, Francis v. Baker (1999), 177 D.L.R. (4th) 1 at 14 (S.C.C.).] |
| In applying the principles enunciated in Rizzo & Rizzo Shoes Ltd. (Re), supra in several of its recent cases, the Supreme Court of Canada has provided further guidance concerning the proper approach to statutory interpretation. With respect to the evidence to be considered in determining the purpose of an enactment, Cory and Iacobucci JJ., writing for the Court in R. v. Gladue, supra, a case concerning the interpretation of the sentencing provision in paragraph 718.2(e) of the Criminal Code, noted, at page 704, that "[t]he purpose of the statute and the intention of Parliament, in particular, are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Act's legislative history and the context of its enactment...". In Francis v. Baker, supra, a case concerning the interpretation of the Federal Child Support Guidelines, Bastarache J., writing for the Court, noted, at page 14, that "[p]roper statutory interpretation principles...require that all evidence of legislative intent must be considered, provided that it is relevant and reliable". Finally, in relation to the overall approach to be taken, Cory and Iacobucci JJ. emphasized in R. v. Gladue, supra, at page 704, the importance of section 12 of the Interpretation Act, R.S.C. 1985, c. I-21, in interpreting federal legislation. Section 12 of the Interpretation Act provides as follows: |
|
12. Tout texte est censé apporter une solution de droit et s'interprète de la manière la plus équitable et la plus large qui soit compatible avec la réalisation de son objet. |
| In determining the proper construction of subsection 5(1), I must therefore apply the interpretative principles in the case Rizzo & Rizzo Shoes Ltd. (Re), supra and identify the interpretation of subsection 5(1) that best furthers the goals of the Patented Medicines (Notice of Compliance) Regulations. [See the approach taken in Novak v. Bond, supra, at page 839]. |
[17] To paraphrase my last sentence in Merck & Co. v. Canada (Attorney General), in construing subsection 27(1) of the Federal Court Act, I must apply the principles in Rizzo & Rizzo Shoes Ltd. (Re) and identify the interpretation that best furthers the goals of the Federal Court Act.
v) statutory interpretation
[18] In advancing his submission that an appeal lies directly to the Court of Appeal from a final or interlocutory order of a prothonotary, counsel for the plaintiff relied on the plain meaning of subsection 27(1) of the Federal Court Act. He further submitted, among other things, that the avenue of appeal provided in Rule 51 was inconsistent with the express jurisdiction conferred on the Court of Appeal by subsection 27(1) to hear an appeal from any final or interlocutory order of the Trial Division. Therefore, by virtue of Rule 1(2), subsection 27(1) must prevail over Rule 51(1) to the extent of any inconsistency. In my opinion, the submissions advanced by counsel for the plaintiff are not based on a complete analysis.
[19] A review of the existing legislative scheme in the context of its historical development confirms that prothonotaries are judicial officers whose assistance is necessary for the efficient performance of the work of the Court and whose powers, duties and functions are determined by the Rules. In other words, by virtue of subsection 12(3) and paragraph 46(1)(h) of the Federal Court Act, the jurisdiction of the prothonotaries is defined and circumscribed by the Rules. Paragraph 46(1)(h) also clearly requires that the exercise of authority or jurisdiction by a prothonotary must be "subject to the supervision of the Court". In conformity with the legislative mandate to prescribe not only the jurisdiction but also the method of supervision of prothonotaries by the Court, Rules 50 and 51 of the Federal Court Rules, 1998 were enacted.
[20] In providing that a party may appeal a prothonotary"s order to a judge of the Trial Division, Rule 51(1) constitutes the "supervision of the Court"required by paragraph 46(1)(h) of the Federal Court Act. Counsel for the plaintiff submitted that the requirement for the supervision of the prothonotaries by the Court in paragraph 46(1)(h) is satisfied by the general appeal provisions in subsection 27(1). I do not agree. In making Rule 51(1), the rules committee determined, in conformity with paragraphs 46(1)(b) and (h), that it was desirable "for the effectual execution and working of [the Federal Court Act] and the attainment of its intention and objects"to require prothonotaries to be supervised initially on appeal by judges of the Trial Division. That first level of appeal or supervision does not in any manner derogate from the right of a party to appeal further to the Court of Appeal under subsection 27(1). In the circumstances, a final or interlocutory order of a prothonotary does not become a final or interlocutory order of the Trial Division, for the purposes of an appeal to the Court of Appeal under subsection 27(1), until such time as a judge of the Trial Division renders an order on an appeal of a prothonotary"s order under Rule 51(1). In applying all of the principles enunciated in Rizzo & Rizzo Shoes Ltd. (Re), I have determined that this interpretation of subsection 27(1) best furthers the goals of the Federal Court Act and the Federal Court Rules, 1998. Furthermore, this interpretation does not lead to any inconsistency between subsection 27(1) and Rule 51(1).
[21] Alternatively, even if I am wrong in interpreting subsection 27(1) of the Federal Court Act in that fashion, I have concluded that a final or interlocutory order of a prothonotary is not appealable directly to the Court of Appeal under subsection 27(1) of the Federal Court Act on the basis that it is not a final or interlocutory order of the Trial Division. As indicated previously, prothonotaries are judicial officers who assist the Court in performing certain aspects of its work. In exercising their prescribed jurisdiction, prothonotaries play an integral and important role and contribute significantly to the efficient functioning of the Court. However, prothonotaries are not judges, and by virtue of sections 4 and 5 of the Federal Court Act, they are not members of either the Trial Division or the Court of Appeal. As a result, a prothonotary"s order is not a final order or an interlocutory order of the Trial Division, within the meaning of subsection 27(1), for the purposes of an appeal to the Court of Appeal. In other words, a prothonotary"s order does not itself trigger the application of subsection 27(1); rather, it is only the order of the Trial Division, rendered by a judge on the first level of appeal under Rule 51(1), that is appealable to the Court of Appeal under subsection 27(1). In the circumstances, an appeal does not lie directly to the Court of Appeal from a prothonotary"s order.
vi) request to transfer the appeal to the Court of Appeal
[22] In his motion, the plaintiff has relied on Rule 49 in seeking to transfer the appeal of the order of Aronovitch P. to the Court of Appeal. Rule 49 provides as follows:
| 49. A judge may order that a proceeding that has been commenced in one division be transferred to the other division. |
49. Un juge peut ordonner qu'une instance introduite dans une section soit transférée à l'autre section. |
[23] Rule 49 permits only a proceeding that has been commenced in one division of the Court to be transferred to the other division. The term "proceeding"is not defined in the Federal Court Rules, 1998. However, a review of the Federal Court Rules, 1998 indicates that the term "proceeding"is used in the context of actions, appeals and applications, all of which are commenced by the issuance of an originating document, within the meaning of Rule 62. The term "motion"is defined in Rule 2 of the Federal Court Rules, 1998 as meaning "...a request to the Court under, or to enforce, these Rules". The distinction between a proceeding and a motion is highlighted throughout the Federal Court Rules, 1998. To mention only a few examples, Rule 372(1) provides that a motion for the preservation of rights may not be brought before the commencement of a proceeding except in a case of urgency, and Rule 375(1) provides that, on motion, a judge may appoint a receiver in any proceeding. In short, under the scheme enacted in the Federal Court Rules, 1998, a proceeding and a motion are fundamentally different in nature. A motion is therefore not a proceeding, but rather a request made to the Court within the context of a proceeding. By virtue of Rule 51(1), a prothonotary"s order may only be appealed by way of a motion to a judge of the Trial Division. Since such a motion is not a proceeding, there is no jurisdiction to transfer it to the Court of Appeal. On that basis alone, the motion must fail.
[24] Counsel for the plaintiff requested, as alternative relief, that the hearing of the appeal of the order of Aronovich P. be expedited in the Trial Division. I am not satisfied, on the basis of the evidence adduced, that the hearing should be expedited.
DECISION
[25] The motion is dismissed with costs.
| D. McGillis |
| Judge |
OTTAWA
March 10, 2000
__________________1The terms "judgment"and "order"are not defined in the Federal Court Act. However, "order"is defined in Rule 2 of the Federal Court Rules, 1998as including, among other things, a judgment. In order to ensure consistency, I have used only the term "order"to describe a judgment or order, except when using the expression "final judgment"from subsection 27(1) of the Federal Court Act.
2 Since the decision was rendered in Merck & Co. v. Canada (Attorney General), the Supreme Court of Canada has followed these principles in two other cases. [See 65302 British Columbia Ltd. v. Canada (1999), 179 D.L.R. (4th) 577 at 599-600 (S.C.C.) and Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13 at para. 20.]