Date: 19980203
Docket: T-2586-97
Between:
CONFÉDÉRATION DES SYNDICATS NATIONAUX,
Applicant,
AND
CANADA EMPLOYMENT INSURANCE COMMISSION
and
DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT CANADA
and
THE HONOURABLE PIERRE PETTIGREW
and
DEPARTMENT OF REVENUE CANADA
and
THE HONOURABLE HERB DHALIWAL
and
FINANCE CANADA
and
THE HONOURABLE PAUL MARTIN
and
ATTORNEY GENERAL OF CANADA
and
HER MAJESTY THE QUEEN,
Respondents.
ORDER
The respondents' motion to dismiss the application for judicial review filed by the applicant is allowed, and accordingly the applicant's application for judicial review is dismissed, without costs since none were claimed by the respondents.
Richard Morneau
Prothonotary
Certified true translation
C. Delon, LL.L.
Date: 19980203
Docket: T-2586-97
Between:
CONFÉDÉRATION DES SYNDICATS NATIONAUX,
Applicant,
AND
CANADA EMPLOYMENT INSURANCE COMMISSION
and
DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT CANADA
and
THE HONOURABLE PIERRE PETTIGREW
and
DEPARTMENT OF REVENUE CANADA
and
THE HONOURABLE HERB DHALIWAL
and
FINANCE CANADA
and
THE HONOURABLE PAUL MARTIN
and
ATTORNEY GENERAL OF CANADA
and
HER MAJESTY THE QUEEN,
Respondents.
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
Introduction
[1] On November 27, 1997, the applicant filed an application for judicial review against the employment insurance scheme as it is established by the Employment Insurance Act, S.C. 1996, c. 23, and against the administration of that scheme as it is conducted by the various respondents (the "application").
[2] There are now two motions before the Court in relation to that application.
[3] The first was filed by the applicant to have its application treated and proceeded with as an action, under subsection 18.4(2) of the Federal Court Act (the Act).
[4] The second motion was made by the respondents and seeks to have the applicant's application dismissed on the ground that the application does not relate to a particular decision, order or matter and accordingly is contrary to various provisions of the Act and of the Federal Court Rules (the Rules).
[5] If we examine this challenge to the application we will be able to ascertain the parameters of judicial review proceedings as they are defined by the Act and the Rules. Because the respondents' motion has the potential to put an end to the matter, we shall begin our analysis with that motion, after summarizing the applicant's application.
The applicant's application
[6] If we read the text of the notice of motion (which precedes the applicant's actual application) together with the application, we see that what the applicant is seeking in this Court is a declaratory judgment against a number of general actions of the respondents. Those actions, which are allegedly both illegal and unconstitutional (paragraphs 78 and 83 of the application), consist of the fact that the respondents have allegedly approved, used and allocated surpluses in the Employment Insurance Account for purposes other than paying benefits.
[7] One of these purposes is allegedly that the respondents have used this surplus to reduce the federal government's operating deficit.
[8] This practice has allegedly been in effect since 1990 (paragraph 50 of the application).
[9] No further details are given concerning these actions by the executive, and accordingly we do not know the number of actions in question, and more specifically the date on which each action occurred.
[10] The surplus was allegedly generated by successive cuts to the employment insurance scheme and by raising premium rates. These measures were allegedly essentially - but not solely, according to what I have been able to determine from the argument filed by counsel for the applicant - the result of legislative amendments passed over the years and not, as I understand it, of orders or decisions of the executive.
[11] The size of the surplus thus accumulated is the subject of the applicant's attack, and on this point it is now seeking - in an amendment that it wishes to make to its application, that the application be heard as such or as an action - a declaration of unconstitutionality stating [translation] "that the legislation contravenes the provisions of section 15 of the Canadian Charter of Rights and Freedoms" (text of the amendment appended to the applicant's motion).
Analysis
[12] In order for judicial review proceedings to be undertaken in the Federal Court, certain basic requirements must be met which underlie the jurisdiction rationae materiae of the Court in respect of this type of proceeding.
[13] These requirements are more than mere questions of procedure, and if they are not met, a party may rely on the inherent jurisdiction of the Court to seek the dismissal of an application for judicial review which is defective in that respect (see Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, at pages 54-55).
[14] An application for judicial review must first relate to a decision or order of a federal board, commission or other tribunal. Subsections 18(1) and 18.1(2) of the Act clearly so provide. Those provisions read as follows:
| 18.(1) Subject to section 28, the Trial Division has exclusive original jurisdiction |
| ( a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and |
| ( b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. |
...
| 18.1(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. |
[15] The expression "federal board, commission or other tribunal" is defined as follows in section 2 of the Act:
| 2.(1) In this Act, |
...
| "federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867; |
| (2) For greater certainty, the expression "federal board, commission or other tribunal", as defined in subsection (1), does not include the Senate, the House of Commons or any committee or member of either House. |
[16] As noted supra, the application is seeking to have certain provisions of the Unemployment Insurance Act declared to be unconstitutional. Apart from the crucial fact that the application does not identify the specific provisions of that Act to which it relates, it appears to identify the primary and sole source of its attack as lying directly in those legislative provisions and not in terms of or on the basis of an action or decision of a federal board, commission or other tribunal.
[17] Accordingly, this part of the application cannot be seen as relating to a decision of a federal board, commission or other tribunal. Rather, it is a direct attack against the legislation, and this being the case, in my view, the federal Crown cannot be brought before the Court by means of an application for judicial review.
[18] It is extremely difficult to identify precisely which part or parts of the application relate in this way to the legislation. Accordingly, it would be virtually impossible to try to save part of the application, and because of this confusion the entire application should be dismissed, for that reason alone.
[19] However, that is not all.
[20] As noted earlier, the application relates to a number of acts by the executive without ever really identifying one in particular by its date and details.
[21] However, apart from subsections 18(1) and 18.1(2) of the Act, which were referred to earlier, rules 1602(2)(f) and 1602(4) clearly establish that any application for judicial review must relate to a single decision, order or matter. These rules read as follows:
| 1602.(2) The applicant's notice of motion shall be dated and signed by the applicant, or the applicant's solicitor, and shall |
| ... |
| ( f) set out the date and details of the decision, order or other matter in respect of which judicial review is sought; ... |
...
| (4) The notice of motion shall be in respect of a single decision, order or other matter only, except in respect of a decision under the Immigration Act that a person has no credible basis for a claim as a Convention refugee and a subsequent removal order issued against the person. |
[22] In this case, it must be concluded from reading the application that it is in respect of a number of actions or decisions. On this basis as well the application fails to comply with the requirements for a judicial review application and should be dismissed (see Delisle et al. v. Inkster et al. (1993), 67 F.T.R. 213, pages 216-217).
[23] Lastly, even if it were attempted in this case to limit it to a single action that occurred, we are not provided with any specific date or details. Accordingly, it is difficult, as argued by counsel for the respondents, to determine whether the statutory requirements for filing an application under subsection 18.1(2) of the Act have been met.
[24] Is it nonetheless possible to talk about a continuing process in this case in order to avoid these legislative requirements?
[25] On this point, counsel for the applicant referred to only one decision, Puccini v. Canada (Director General, Corporate Services, Agriculture Canada, [1993] 3 F.C. 557 (T.D.), in which, in order to dispose of an application for interim relief under section 18.2 of the Act, the Court agreed, at page 568, to consider an investigation process initiated in response to a complaint of harassment against the applicant to be a continuing process. The Court adopted this approach because of the fact that it was "... difficult to pinpoint specific dates, other than the date when the harassment complaint was filed and various milestone dates since that time".
[26] It will be noted that the Court's interlocutory approach - in the context of a section 18.2 application and not with respect to a main application under subsections 18(1) and (3) - enabled it to examine the application for interim relief on the merits and to dismiss it.
[27] It seems that the Court has been very reluctant to recognize a situation as a continuing process for the purposes of avoiding subsection 18.1(2) of the Act. On this point, reference may be made to Drolet v. Superintendent of Bankruptcy et al. (1996), 118 F.T.R. 147, in which the Court refused to consider a decision to refuse to issue certificates to a trustee appointing him to bankruptcy cases when those cases were filed with the Superintendent of Bankruptcy to be a continuing process. The Court held that there had in fact been a single decision in that case and that the applicant's application for judicial review of that decision had been made late.
[28] In the case before us, unlike the situation in the Puccini decision, the applicant is not here on an application for interim relief. Nor is it suggesting, in respect of any action or decision, that there is a situation that comes down to an individual equation. Thus, even if the application were limited to a single action that occurred, we could not rely on that decision in the circumstances.
[29] For these reasons, the respondent's motion to dismiss will be allowed. Accordingly, there is no need for formal consideration of the applicant's motion under subsection 18.4(2) of the Act.
[30] Nonetheless, I would like to mention that if I did have to dispose of that motion, I would have dismissed it since the applicant has not satisfied me that its application should have been heard as an action, having regard to the lessons in the decision of the Federal Court of Appeal in Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (C.A.).
[31] The fact that the Court might possibly have some questions to put to witnesses, whether expert witnesses or otherwise, is much too hypothetical a consideration to bring subsection 18.4(2) of the Act into play.
[32] An order will issue accordingly.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
February 3, 1998
Certified true translation
C. Delon, LL.L.
Federal Court of Canada
court file N0: T-2586-97
between
| CONFÉDÉRATION DES SYNDICATS NATIONAUX, |
Applicant,
" and "
| CANADA EMPLOYMENT INSURANCE COMMISSION and DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT CANADA and THE HONOURABLE PIERRE PETTIGREW and DEPARTMENT OF REVENUE CANADA and THE HONOURABLE HERB DHALIWAL and FINANCE CANADA and THE HONOURABLE PAUL MARTIN and ATTORNEY GENERAL OF CANADA and HER MAJESTY THE QUEEN, |
Respondents.
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: T-2586-97
STYLE OF CAUSE: CONFÉDÉRATION DES SYNDICATS NATIONAUX,
Applicant,
AND
| CANADA EMPLOYMENT INSURANCE COMMISSION and DEPARTMENT OF HUMAN RESOURCES DEVELOPMENT CANADA and |
| THE HONOURABLE PIERRE PETTIGREW and |
| DEPARTMENT OF REVENUE CANADA and |
| THE HONOURABLE HERB DHALIWAL and |
| FINANCE CANADA and |
| THE HONOURABLE PAUL MARTIN and |
| ATTORNEY GENERAL OF CANADA and |
| HER MAJESTY THE QUEEN, |
Respondents.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 26, 1998
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS FOR ORDER: February 3, 1998
APPEARANCES:
Guy Martin and Claudine Barabé for the applicant
Carole Bureau and Claude Joyal for the respondents
SOLICITORS OF RECORD:
Guy Martin for the applicant
Sauvé et Roy
Montréal, Quebec
George Thomson for the respondents
Deputy Attorney General of Canada
Montréal, Quebec