Date: 19990428
Docket: T-790-98
BETWEEN:
CONSTANCE CLARA FOGAL and
THE DEFENCE OF CANADIAN LIBERTY COMMITTEE/
LE COMITE DE LA LIBERTE CANADIENNE,
Applicants,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
SECRETARY OF STATE, THE MINISTER OF EXTERNAL AFFAIRS,
THE DEPARTMENT OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE,
THE RIGHT HONOURABLE SERGIO MARCHI,
THE RIGHT HONOURABLE JEAN CHRETIEN and
OTHER MEMBERS OF CABINET,
Respondents.
REASONS FOR ORDER
MCKEOWN J.
[1] The respondents move for an order dismissing the application for judicial review on the ground that it has become moot. The applicants sought declaratory relief, prerogative and injunctive relief from the execution, ratification and/or implementation of the Multilateral Agreement on Investment (hereinafter referred to as "MAI"). Since the filing of the application, negotiations toward an MAI have ended at the Organization for Economic Co-Operation and Development (hereinafter referred to as "OECD") without an agreement having been reached. The applicants submit that negotiations continue at the World Trade Organization (hereinafter referred to as "WTO") and elsewhere and the definition of negotiations used by the respondents is too limited.
[2] There are three issues in this motion: (1) should the Court entertain an interlocutory motion to dismiss the application for judicial review; (2) is the application for judicial review moot or is there a live controversy within the judicial review application; (3) if the application is moot, should the Court exercise its discretion to hear the application for judicial review in any event?
FACTS
[3] The originating notice of application brought April 23, 1998 stated it was
| an application ..., for the purpose of obtaining, pursuant to ss. 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F.-7 as amended, declaratory relief and ancillary, prerogative and injunctive relief, therefrom, from the signature, ratification and/or implementation of the Multilateral Agreement on Investment which treaty has or is to receive purported execution by the Respondents under purported crown prerogative on purported behalf of Canada through the OECD, and the applicants will be making application ... |
for certain enumerated relief. However the important point to note is that the subject matter is a treaty called MAI being negotiated through the OECD.
[4] Negotiations toward reaching an MAI were launched at the May 1995 meeting of the OECD Council of Ministerial Level. Those negotiations continued in September of that year with the aim of reaching an agreement by the time of the annual ministerial meeting in 1997. However negotiations were not completed by the time of the 1997 meeting of the OECD Council of Ministerial Level. The ministers agreed to continue negotiations until the 1998 meeting of ministers. In February 1997, a draft text of the MAI was posted on the internet. Negotiations towards an MAI had still not been completed by the time of the 1998 meeting of the OECD Council of Ministerial Level. At that meeting the ministers decided on a period of assessment and that further consultation among negotiating parties and with interested parts of their societies was required. The next meeting of the negotiating group was scheduled for October 1998. France withdrew from the negotiations at the OECD and the meeting of the negotiating group scheduled for October 1998 did not take place except as an informal meeting. No negotiations on the MAI were conducted at that meeting and no further negotiations are scheduled.
[5] Negotiations toward an MAI at the OECD ended without an agreement being concluded. By letter dated October 23, 1998, the Minister for Internal and International Trade advised members of Parliament and the Senate that
[a]s you are aware, the negotiations toward a potential Multilateral Agreement on Investment (MAI) being held under the auspices of the Organization for Economic Co-operation and Development (OECD) have now ended without any agreement being concluded. The latest meeting of our negotiators, held in Paris on October 20th, confirms this outcome. This brings clarity and closure to the issue.
[6] An informal consultation among senior officials responsible for investment policy was held at the OECD on December 3, 1998. Following that meeting the OECD issued a news release stating negotiations of the MAI are no longer taking place. As a result negotiations are over and Canada's negotiating team has been disbanded.
[7] Canada's position is that the WTO should be the home for any eventual international rules on investment. There are no current negotiations of an MAI at or under the auspices of the WTO. At the 1996 meeting of the WTO in Singapore, there was an unsuccessful effort to encourage commencement of negotiations. All that was achieved was the establishment of a working group to examine the relationship between trade and investment, but on the express understanding that the work undertaken would not prejudge whether negotiations would be initiated in the future. For the purposes of this application, I accept that Canada's position is that it would like to enter some form of MAI treaty within the WTO, but the timing, form and feasibility of such a new MAI treaty is not known.
[8] The applicants dispute that negotiations at the OECD have ceased. In light of the firm statement by the Minister and the OECD press release, I cannot agree that there are further negotiations, as the term is normally understood, being held. The Government of Canada has made it clear that it seeks to have negotiations on a new MAI treaty launched at the WTO, but that is not the subject matter of this application.
[9] The applicants submit several points dealt with in their request for relief are not moot and nor is the application to declare ss. 37, 38 and 39 of the Canada Evidence Act unconstitutional. I agree that there are some legal issues in the case before me which are not moot, such as the present scope of crown prerogative and whether the executive can use the crown prerogative without parliamentary sanction as a basis to enter treaties under the Constitution, 1981. The issue of whether the respondents have or had the jurisdiction to negotiate a treaty similar to MAI under a constitutional framework is not moot. However the subject matter of the originating notice of application is moot. The motion to compel answers to questions which Ms. Mackenzie had refused to answer on the basis of ss. 37, 38 and 39 of the Canada Evidence Act would not produce any answers to show that the MAI treaty at the OECD was not terminated. These questions were asked prior to the termination of the negotiations and thus could not go the question of termination of any negotiations to finalize the MAI at the OECD.
ANALYSIS
| Issue 1: Should the Court entertain an interlocutory motion to dismiss the application for judicial review? |
[10] The Court of Appeal ruled in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at 600 (C.A.), that this Court has jurisdiction to dismiss an interlocutory stay for an application for judicial review which has no possibility of success. The Court of Appeal also pointed out that it would only be in very exceptional cases that this jurisdiction would be exercised. The Federal Court has exercised this jurisdiction in cases where the application for judicial review has become moot. In Labbé v. Létourneau (1997), 128 F.T.R. 291, MacKay J. stated at p. 300,
| [a]n application for judicial review ordinarily is considered on its merits in an expeditious process and it is unusual to strike out an originating motion for such review without hearing the merits. Nevertheless, it is clear that the court will dismiss an originating motion in a summary manner where the motion is without any possibility of success. |
MacKay J. went on to state,
| In my opinion, the originating motion of Colonel Labbé in this case has no possibility of success. Its purpose and the relief sought had become moot before the hearing of this application by the appearance of Colonel Labbé before the Commission and his acceptance of arrangements made to testify, commencing the day this matter was heard. |
[11] There are other cases where the Court has refused to exercise jurisdiction but mootness was not the issue. I have the jurisdiction to dismiss the application for judicial review, at this interlocutory stage, where there is no possibility of success.
| Issue 2: Is the application for judicial review moot or is there a live controversy within the judicial review application? |
[12] The leading case on the doctrine of mootness is Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. Sopinka J. for the Court explained the doctrine as follows at p. 353:
| The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. |
| Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. |
| The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. |
| [emphasis added] |
Sopinka J. then went on to discuss, at p. 354, the first stage in the analysis that
| requires a consideration of whether there remains a live controversy. The controversy may disappear rendering an issue moot due to a variety of reasons, some of which are discussed below. |
Sopinka J. went on to find "there is no longer a live controversy or concrete dispute as the substratum of Mr. Borowski's appeal has disappeared". In that case Mr. Borowski's action was a constitutional challenge to certain subsections of s. 251 of the Criminal Code. In the meantime s. 251 of the Criminal Code was struck down by the Supreme Court in R. v. Morgentaler (No. 2), [1988] 1 S.C.R. 30.
[13] In the case before me, while there may have been a live controversy at the time this application for judicial review was commenced, it is clear from the words of the Minister for International Trade and OECD that any possibility of an agreement has ceased. The MAI which was under negotiation never did come into existence and negotiations have terminated at the OECD. I must now move on to the second stage of the analysis by examining the basis upon which this Court should exercise its discretion either to hear or to decline to hear this application.
| Issue 3: If the application is moot, should the Court exercise its discretion to hear the application for judicial review in any event? |
[14] Sopinka J. in Borowski, supra, went on to discuss three rationales underlying the guidelines to determine whether the Court should exercise its discretion to hear the application.
[15] Before reviewing the criteria, he stated at p. 358,
| [i]n formulating guidelines for the exercise of discretion in departing from a usual practice, it is instructive to examine its underlying rationalia. To the extent that a particular foundation for the practice is either absent or its presence tenuous, the reason for its enforcement disappears or diminishes. |
| The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. |
In the case before me, both parties accept that there is a vigorous adversarial relationship and that the first criteria is satisfied.
[16] Sopinka J. then went on to discuss the concern for judicial economy at p. 360:
| The second broad rationale on which the mootness doctrine is based is the concern for judicial economy. (See: Sharpe, "Mootness, Abstract Questions and Alternative Grounds: Deciding Whether to Decide", Charter Litigation.) It is an unfortunate reality that there is a need to ration scarce judicial resources among competing claimants. ... The concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. |
| The concern for conserving judicial resources is partially answered in cases that have become moot if the court's decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action. The influence of this factor along with that of the first factor referred to above is evident in Vic Restaurant Inc. v. City of Montreal, supra. |
[17] The applicants urge me to follow Vic Restaurant Inc. v. City of Montreal, [1959] S.C.R. 58, on the grounds that the facts before me are similar. However in that case the restaurant that sought renewal of permits to sell liquor and operate a restaurant had been sold and therefore no mandamus for licence could be given. There were outstanding prosecutions against the applicants for violations of the municipal by-law which was the subject of legal challenge. The difference in the case before me is that no one can foresee the nature of a new MAI. Some of the same legal issues might arise in any future MAI but there also may be new legal issues.
[18] Sopinka J. went on to say at p. 360,
| [s]imilarly an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly. |
He continued at p. 361,
| [t]he mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved. |
There will be future cases raising the same points, but the dispute will not have disappeared before it is ultimately resolved. The negotiations with respect to the MAI treaty continued for three years before coming to an unsuccessful conclusion. There is no reason to believe that a treaty will be negotiated, concluded and signed before the applicants have an opportunity to bring the matter before the Court.
[19] Sopinka J. continued to discuss the economy of judicial resources at p. 361:
| There also exists a rather ill-defined basis for justifying the deployment of judicial resources for cases which raise an issue of public importance of which a resolution is in the public interest. The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law. |
With regard to the Borowski case, he stated, at p. 364,
| [n]one of the other factors that I have canvassed which justify the application of judicial resources is applicable. This is not a case where a decision will have practical side effects on the rights of the parties. Nor is it a case that is capable of repetition, yet evasive of review. It will almost certainly be possible to bring the case before the Court within a specific legislative context or possibly in review of specific governmental action. In addition, an abstract pronouncement on foetal rights in this case would not necessarily promote judicial economy as it is very conceivable that the courts will be asked to examine specific legislation or governmental action in any event. |
In my view, the foregoing is very applicable to the case before me in that, as I have stated earlier, the parties agree that some of these issues will come before the Court again should the government commence negotiations for and achieve a new draft or final MAI, but it is also clear that any future case would not be evasive of judicial review.
[20] Sopinka J. discussed the third rationale at p. 362:
| The third underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its proper law-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. |
He then went on to discuss how in Borowski, supra, the third criteria would be conclusive with respect to exercising judicial discretion. He stated at p. 365,
| [e]ven if I were disposed in favour of the appellant in respect to the first two factors which I have canvassed, I would decline to exercise a discretion in favour of deciding this appeal on the basis of the third. One element of this third factor is the need to demonstrate some sensitivity to the effectiveness or efficacy of judicial intervention. The need for courts to exercise some flexibility in the application of the mootness doctrine requires more than a consideration of the importance of the subject matter. The appellant is requesting a legal opinion on the interpretation of the Canadian Charter of Rights and Freedoms in the absence of legislation or other governmental action which would otherwise bring the Charter into play. This is something only the government may do. What the appellant seeks is to turn this appeal into a private reference. Indeed, he is not seeking to have decided the same question that was the subject of his action. That question related to the validity of s. 251 of the Criminal Code. He now wishes to ask a question that relates to the Canadian Charter of Rights and Freedoms alone. This is not a request to decide a moot question but to decide a different, abstract question. To accede to this request would intrude on the right of the executive in order to reference and pre-empt a possible decision of Parliament by dictating the form of legislation it should enact. To do so would be a marked departure from the traditional role of the Court. |
In the case before me I am concerned with an allegation of proposed government action. However, what the applicants are really seeking at the end of the day is a legal opinion on some agreement which may occur after negotiations take place somewhere. As in Borowski, the applicants are seeking to turn this application into a private reference.
[21] Sopinka J. reviewed the issue of mootness and the closely related issue of the necessity of a factual foundation for Charter challenges in Phillips v. Nova Scotia, [1995] 2 S.C.R. 97, stating at p. 111, that
| this Court has said on numerous occasions that it should not decide issues of law that are not necessary to a resolution of an appeal. This is particularly true with respect to constitutional issues and the principle applies with even greater emphasis in circumstances in which the foundation upon which the proceedings were launched has ceased to exist. |
[22] I have stated earlier that there is a possibility that the WTO may sometime start negotiations toward an international agreement for rules on investment. However one can only speculate as to the form and content of any agreement that might be achieved if any negotiations were ever to proceed to fruition. In my view this situation is very similar to the one before the Federal Court of Appeal in Native Women's Association of Canada v. Canada (1992), 145 N.R. 253 at 254-255, in which Isaac C.J. stated,
| We are satisfied that at least two of these criteria namely judicial economy and appropriateness of judicial intervention have not been met. There is no way of knowing when, how or if there will be any future constitutional review process. If history is to be our guide, such process will likely be different from the process which led to the Meech Lake and Charlottetown Accords which differ from each other. |
| One cannot say with confidence that the problems faced by the appellants in the Charlottetown process will recur or where a court may draw the line for intervention in a future constitutional process in a different factual context. |
[23] Having decided that the application is moot, I decline to exercise the Court's discretion to decide it on the merits for the reasons above.
[24] The applicants submit that rule 64 of the Federal Court Rules precludes this Court from refusing to hear an application for judicial review on the basis that declaratory relief is sought. Rule 64 reads as follows:
| 64. Declaratory relief available " No proceeding is subject to challenge on the ground that only a declaratory order is sought, and the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed . |
The applicants further submit that the review of the crown prerogative in the application with respect to declaratory relief with respect to the constitutionality and parameters of that prerogative, vis-à-vis the treaty-making power, cannot be rendered moot by the simple, possible and purporting falling-through of particular negotiations in a particular forum.
[25] Mootness cannot be avoided by using rule 64. The point was addressed directly by Wilson J. in Operation Dismantle Inc. et al. v. Her Majesty the Queen et al., [1985] 1 S.C.R. 441, at pp. 479-482. In particular at pp. 481 and 482 she stated,
| [t]he appellants acknowledge that a declaration of unconstitutionality is a discretionary remedy (Solosky v. The Queen, [1980] 1 S.C.R. 821) but say that the discretion lies with the trial court and is exercisable only after a trial on the merits. Accordingly, their claim for this relief should not have been struck out at the preliminary stage regardless of the fate of their other claims. However, as the respondents point out, declaratory relief is only discretionary in the sense that a court may refuse it even if the case for it has been made out: see Zamir, The Declaratory Judgment (1962), at p. 193. The Court, therefore, on a motion to strike on the basis that no reasonable cause of action has been disclosed in the statement of claim is not in any sense usurping the discretionary power of the trial court. |
I also note that in Borowski, the appellant was seeking declaratory relief inter alia and the court decided the appeal was moot and declined to exercise its discretion.
[26] In light of my decision with respect to mootness and my refusal to exercise my discretion, I need not review the subject of the applicant's standing.
[27] The motion to dismiss for mootness is granted and the application for judicial review is dismissed.
(Sgd.) "William P. McKeown"
J.F.C.C.
Vancouver, British Columbia
28 April 1999