Date: 20011219
Docket: T-1326-00
Neutral citation: 2001 FCT 1409
Ottawa, Ontario, this 19th day of December, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
RICHARD GEORGE CHIASSON
Plaintiff
(Respondent)
and
HER MAJESTY THE QUEEN
Defendant
(Appellant)
REASONS FOR ORDER AND ORDER
1. This motion is brought pursuant to Rule 51 of the Federal Court Rules, 1998 (the "Rules"), appealing the Order of Prothonotary Aronovitch dated May 22, 2001 and for an order pursuant to Rule 221, striking out the plaintiff's statement of claim filed July 20, 2000.
2. The Rules do not prescribe a standard of review on appeals of discretionary decisions of prothonotaries. The applicable standard of review is established in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.). In that case, Mr. Justice MacGuigan, speaking for the majority of the Court held at page 463 of his reasons that:
... discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
3. The pertinent facts in this case can be summarized as follows. The respondent's father along with three fellow Merchant Marines in January 1943, rescued eight American sailors from a stricken U.S. vessel off Nova Scotia in severe weather conditions. On March 31, 2000 the respondent nominated his father for a Canadian Bravery Decoration pursuant to the Canadian Bravery Decorations Regulations (the "Regulations") 1996. The Canadian Bravery Decorations Regulations were established in 1972 by Letters Patent from Her Majesty the Queen Elizabeth II. The 1972 Regulations were repealed and replaced with the 1996 Regulations, which remain in effect today (P.C. 1997-123, Canada Gazette, Part I, Vol. 131, p. 2019).
4. The nomination form submitted by the respondent contained the following notice: "Consideration is only given to incidents less than two years prior to the date of submissions." The respondent protested the two-year limitation by letter to the Director of the Honours and Awards Directorate (the "Directorate") at Rideau Hall and later, by letter to the Governor General. On April 12, 2000, Lieutenant General James Gervais, Deputy Secretary to the Chancery informed the respondent, that because of a policy of the Directorate limiting the nominations of acts of bravery for decoration to the two-year period following the occurrence of the event, his nomination would not be presented to the Canadian Bravery Decorations Advisory Committee (the "Committee").
3. Further correspondence was exchanged, and on May 2, 2000, the respondent was informed by letter from Lieutenant General Gervais that his comments on the two-year limitation issue would be brought to the attention of the Committee for discussion at its meeting in June of that year. The minutes of the June 14th meeting reflect that a discussion of the respondent's challenge to the two-year rule was held and that the Committee concluded that the two-year rule would be maintained and that the rule should not be included in the Regulations. The Committee favoured a "common sense" approach in applying the rule when dealing with worthy cases very close to the borderline.
4. The respondent was only advised of the Committee's decision on September 7, 2000, and in the interim, on July 21, 2000, commenced the within action to challenge the two-year rule. In his claim the respondent pleads that the Directorate "fettered" its decision by adhering to the two-year policy and further acted arbitrarily by failing to consider the merits of the respondent's nomination as required by Regulations. The sole relief claimed is for a writ of mandamus to compel the submission of his application to the Committee for a determination on its merits.
5. On September 8, 2000, the Applicant (Defendant) filed a motion for an order to have the Statement of Claim dismissed in accordance with Rules 18, 221(a), 221(c) and 221(f) of the Rules. The primary ground argued in support of the motion was that the respondent's (plaintiff's) claim is not justiciable since he seeks to review an exercise of the Crown prerogative in relation to the granting of honours. Prothonotary Aronovitch dismissed the defendant's motion on May 22, 2001, ruling that the subject matter of the respondent's claim was not the bestowal of honours by the Crown but rather the legality of imposing a "time bar" on the bestowal of honours. The Prothonotary also concluded "...that questions relating to the exercise of prerogative powers ought not to be dealt with summarily."
6. The appellant advances the following grounds of appeal:
(a) That the Prothonotary erred in law in misapplying the principles applicable to the issue of mootness;
(b) That the Prothonotary erred in law by failing to properly exercise her discretion with respect to the issue of prospectivity;
(c) That the Prothonotary erred in law in failing to dismiss the claim on the grounds that the issue of royal prerogative is non-justiciable;
(d) That the Prothonotary erred in law in determining that the imposition of a two-year limitation is not an exercise of prerogative with respect to the granting of an honour;
(e) That the Prothonotary erred in law in granting the Plaintiff leave to bring a motion to convert the action to an application for judicial review and an extension of time.
7. The applicant takes the position that the subject matter of the claim is indeed a challenge to the exercise of the Crown's prerogative power to bestow honours and that such claims are not justiciable and should be struck at the earliest possible opportunity. The applicant contends that the Prothonotary erred when she refused to characterize the respondent's claim as non-justiciable. The applicant relies on Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 (C.A.). In that case Mr. Justice Laskin stated at paragraph 64 of the Court's reasons that, "...Prime Minister Chrétien's exercise of the honours prerogative by giving advice to the Queen about granting Mr. Black's peerage is not justiciable and therefore not judicially reviewable."
8. The respondent argues that the facts in the case at bar are different than those found in the Black case. The Black case deals with the appointment of a Peer, purely a question of Crown prerogative. The respondent contends that the Sovereign appoints Peers on the advice and consent of the Prime Minister and Privy Council, there are no Regulations involved. Additionally, in support of his contention, the respondent points to the Letters Patent making the 1996 Regulations which states that the award of Canadian Bravery Decorations shall be governed by, "the annexed Canadian Bravery Decorations Regulations, 1996 ... ". The respondent claims that he is not challenging the Crown's prerogative power to bestow honours but is challenging a two-year time bar instituted by the Committee. It is noted that the respondent's nomination was never considered by the Committee on its merits. The respondent argues that the two-year rule is not provided for in the Regulations and indeed violates paragraph 10 of the Regulations, which provides that any person may submit a nomination for the consideration of the Committee. Essentially, the respondent is arguing that the "two-year rule" is beyond the authority of the Committee and should have been introduced as a regulation to be effective.
9. A court will only strike pleadings in plain and obvious cases where it is beyond doubt that the claim discloses no reasonable cause of action. (Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 (S.C.C.); Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441(S.C.C.).) Further, the Federal Court of Appeal in Vulcan Equipment Co. v. Coats Co., [1982] 2 F.C. 77 (Fed.C.A.), held that serious issues of law should not be determined on a summary motion to strike pleadings unless they are so futile as to warrant striking. I also note in the present case Prothonotary Aronovitch issued an Order granting leave to the respondent to bring a motion to convert the action to an application for judicial review. Such a motion by the respondent is also before the Court today and will be dealt with later in these reasons. The jurisprudence of this Court has established that only in exceptional cases is there jurisdiction to dismiss a notice of application in a summary manner if it 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 (Fed.C.A.).)
10. Without commenting on the strength of the respondent's case, or indeed that of the appellant, having heard the parties and upon review of the materials, I am not convinced that it is plain and obvious that the respondent's claim will fail. In my view the claim is not so futile or bereft of any possibility of success as to warrant striking. I am in agreement with the conclusion reached by Prothonotary Aronovitch. The principle issue raised in this claim calls for a determination of the scope of the Committee's power by reference to the Letters Patent and the Regulations. The respondent argues that this issue is justiciable. It is not plain and obvious to me that it is not. The matter should be disposed of by a judge who has the benefit of a full and complete hearing on the merits.
11. The first argument raised by the appellant, that the Prothonotary erred in misapplying the principles applicable to mootness, must fail. On this issue, I am in agreement with Prothonotary Aronovitch. It is indeed arguable that the respondent has achieved the remedy he is seeking. The application was not considered on its merits, whether it is within the Committee's powers to decline further consideration of the application based on the "two-year rule" goes to the heart of claim.
12. The appellant further argues that the Prothonotary erred in law by failing to properly exercise her discretion with respect to the issue of prospectivity. The appellant argues that in the present case the brave act contemplated, took place in 1943, nearly 30 years before the creation of the Bravery Award and therefore the appellant's father could not be eligible since the award did not exist at the time of the brave event, for which his nomination was submitted, occurred. Counsel for the appellant, being unable to explain why it was that awards had been bestowed to other nominees for brave acts that had occurred, in some cases many years before the creation of the Bravery Award in 1972, had to concede that the issue of prospectivity was not his strongest argument. For reasons that require no further elaboration, the applicant's second ground of appeal will also fail.
13. The final ground of appeal is that the Prothonotary erred in law in granting the respondent leave to bring a motion to convert the action to an application for judicial review and an extension of time. This ground of appeal must also fail. The Prothonotary did not err in granting leave to the respondent. This Court has interpreted and applied Rule 57 of the Rules to permit the conversion of a proceeding improperly commenced as an action to an application for judicial review. (Khaper v. Canada (1999), 178 F.T.R. 68 (Fed.T.D.), [1999] F.C.J. No.1735; Khaper v. Canada (1999), 182 F.T.R. 78 (Fed.T.D.), [1999] F.C.J. No. 2014).
14. The action for mandamus is improper and without foundation and I accept that this defect as to form is likely due to the plaintiff being a self-represented litigant. The proper originating document in this case should have been a notice of application for judicial review of the decision of the Committee. I am satisfied that this is an appropriate case for conversion of an action to a judicial review and will so order.
15. The final issue for determination is whether the plaintiff should be granted an extension of time to file the application for judicial review. I am satisfied that from the outset, the plaintiff had a firm intention to have this case dealt with by the Court. The plaintiff filed a statement of claim on July 20, 2000, weeks before he received a letter from the Chairman of the Committee informing him of the decision that the Committee would maintain the "two-year rule". I am also satisfied that the plaintiff has maintained this intention to proceed throughout this proceeding. I have considered the explanation for the delay and the merits of the case and conclude that in the circumstances presented, to do justice between the parties calls for the grant of the extension. (Grewel v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (Fed.C.A.).)
16. For the above reasons, I conclude that, in applying the standard of review set out in Aqua-Gem, supra, for discretionary orders of prothonotaries, the decision of Prothonotary Aronovitch dated May 2, 2001 should not be disturbed.
ORDER
THIS COURT ORDERS THAT:
1. The appellant's motion, appealing the decision of Prothonotary Aronovitch dated May 22, 2001, pursuant to Rule 51 of the Federal Court Rules, 1998, is dismissed;
2. The appellant's motion, striking out or summarily dismissing the plaintiff's statement of claim filed July 20, 2000 pursuant to Rule 221 of the Federal Court Rules, 1998, and Section 18 of the Federal Court Act, R.S., 1985, c. F-7 is dismissed;
3. The plaintiff's motion for an order to convert the present action to an application for judicial review of the decision of the Canadian Bravery Decorations Advisory Committee concerning the plaintiff's nomination dated March 31, 2000, pursuant to Rule 57 of the Federal Court Rules, 1998 and Section 18.1 of the Federal Court Act,R.S., 1985, c. F-7, is granted;
4. The plaintiff's motion for an extension of time to commence the above application for judicial review is granted;
5. The plaintiff shall have 15 days from the date of this order to commence the above application for judicial review;
6. There will be no order as to costs on either of these motions.
"Edmond P. Blanchard"
Judge