Federal Court Decisions

[9]    The relevant provisions of the Extradition Act, supra, state:

Analysis and Decision

[10]                        Issue 1

What is the appropriate standard of review to be applied to the decision of the Prothonotary?

In the appellant's motion before the Prothonotary, if the appellant was to be successful the appellant's application would be at an end. The motion therefore raised a question vital to the final issue of the case (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)), so I must exercise my discretion de novo.

[11]                        Issue 2

Did the Prothonotary make a reviewable error?

The motion before the Prothonotary requested the following:

1.       An order removing from the Court file or striking the notice of application in file T-1875-04.

2.    In the alternative:

(a)         an order extending the time prescribed by Rule 318 of the Federal Court Rules, 1998, for the transmission of a certified copy of the material requested by the applicant, if any, to 20 days from the date of the decision on this motion; and

(b)         an order extending the time prescribed in Rule 306 of the Federal Court Rules, 1998, for serving and filing of the applicant's affidavit to 30 days from the date of the decision on this motion.

[12]                        The grounds for the motion were:

1.       An order to remove the notice of application is available under Rule 74(1) of the Federal Court Rules, 1998, where a document has not been filed in accordance with an Act of Parliament. The notice of application was not filed in accordance with the Federal Courts Act, supra, because it was filed outside the 30 day period fixed by subsection 18.1(2) of the Federal Courts Act, supra.

2.       The Court has inherent jurisdiction to strike a notice of application.

3.       The notice of application is bereft of any possibility of success as it has been filed outside the 30-day period fixed by section 18.1(2) of the Federal Courts Act, supra, and there are no arguable issues concerning the timing of the decision or its communication to the applicant.

4.       The application for an order of certiorari, quashing the authority to proceed, is bereft of any possibility of success as this Court should always decline jurisdiction to judicially review an authority to proceed because the Extradition Act, supra, provides an adequate alternative remedy.

5.       The application for an order of prohibition, to prevent the Minister of Justice from surrendering Mr. Coffey to the United Sates of America, is bereft of any possibility of success because this Court has no jurisdiction to review a surrender decision made under sections 40 and 57 of the Extradition Act, supra, and the Federal Courts Act, supra.

6.       The notice of application is an abuse of the process of the Court as Mr. Coffey is attempting to obtain the disclosure of documents to which he is not entitled in the extradition process.

7.    In the alternative:

(a)     an order extending the time limits prescribed in the Federal Court Rules, 1998, is available under Rule 8 of the Federal Court Rules, 1998, and in the circumstances of this case, it is just and reasonable for the Court to grant an extension of the time sought in this motion

[13]                        In addition, the respondent requested both before the Prothonotary, and on this appeal, that the matter proceed by way of oral hearing. After canvassing the relevant authorities, the Prothonotary determined that this was not an instance in which there needed to be an oral hearing. I agree with the Prothonotary's determination and similarly find that that this is not a matter requiring an oral hearing.

[14]                        The standard that must be met for the striking of an originating notice of motion as set out by the Federal Court of Appeal in David Bull Laboratories (Can.) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, is that it must be "so clearly improper as to be bereft of any possibility of success".

Time Bar

[15]                        In response to the appellant's submission that the notice of application was not filed within the 30-day time limit provided by subsection 18.1(2) of the Federal Courts Act, supra, the Prothonotary stated at paragraph 9:

The Respondent relies upon affidavit evidence in order to establish a time bar. However a motion to strike out, on the basis of prescription, must be brought pursuant to what was Rule 419(1)(a) and which is now Rule 21(1)(a). This is taught by the Court of Appeal in Sembawang Reefer Lines (Bahamas) Ltd. v. Lina Erre (The) (1990), 114 N.R. 270 at 271 and 272:

The thrust of this passage in the context of the 1998 Federal Court Rules, is that a motion to strike out for a time bar falls within Rule 221(1)(a), want of a reasonable cause of action and that by Rule 221(2), I may not look at the affidavit evidence in support filed by the respondent. This is fatal in that counsel relies upon a portion of the affidavit of Robert Maertens, counsel with the Department of Justice, and specifically paragraphs 5 and 6 of that affidavit.

[1]    The Prothonotary noted the difference of opinion between counsel as to whether the ATP is a decision subject to the 30-day deadline under subsection 18.1(2) of the Federal Courts Act, supra. The cases referred to by the respondent (Friedman & Friedman Inc. v. Canada (Surintendant des facilities) 211 F.T.R. 161, and Peter G. White Management Ltd. v. Canada (Minister of Canadian Heritage) 251 F.T.R. 235, 2004 FC 597) clearly indicate that not all matters properly the subject of judicial review in the Federal Court are necessarily decisions or orders also subject to the 30-day time limit, and the appellant does not dispute that.

[2]    On this appeal, the appellant submitted that Layden-Stevenson J. in Froom v. Canada (Minister of Justice) 2003 FC 1299 held that an ATP is a decision subject to the provisions of section 18.1. The Court stated at paragraph 14: ". . .The issue is delineated in this manner because the respondent at the hearing, conceded that "Section 18.1 of the Federal Court Act makes it impossible to argue that the decision of the Minister is not a decision within the meaning of the section" or that the Court lacks jurisdiction to review it." The respondent submits that a definitive determination on whether in fact an ATP is a decision subject to subsection 18.1(2) has not been made. I would note that Layden-Stevenson J. in Froom, supra, did not state that an ATP was a decision that was subject to the 30-day time limit rather than a matter under section 18.1(1) of which the Court also had jurisdiction to review.

[3]    Accordingly, I would agree with the Prothonotary's determination that "it is clearly arguable that this matter does not fall within the exception to the general rules set out in the David Bull, supra, case because there may be no applicable 30-day deadline, and because such a serious and substantial issue ought not to be determined on a motion to strike out".

[4]    In response to the appellant's submission that Rule 74 of the Federal Courts Rules, supra, permits the Court to remove the notice of application from the file (and permits the Court to look at affidavit evidence in support of a motion thereto), the Prothonotary stated that no authority had been provided for that proposition.

[5]    In support of its contention, the appellant relies on the decision of Associate Senior Prothonotary Giles in Dutt v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1518 (T.D.) in which he stated:

The originating notice of application herein was therefore submitted late and should be removed from the court file as provided by Rule 74; however no motion was brought under that rule but rather a motion to strike. When considering whether the circumstances are such that the rare remedy of striking an application should be granted I consider the fact that a motion under Rule 74, if brought, would probably have been granted, is sufficient to require that the motion to strike be granted.

[6]    I do not agree that Rule 74 was intended to be utilized for the purpose of removal of an originating document from the file. However, even if that proposition is accepted, as I have upheld the Prothonotary's determination that the issue of whether an ATP is in fact a decision subject to the 30-day time limit is debatable, any information contained in the affidavit of Robert Maertens as to dates of events, does not assist the appellant on this appeal.

The Application as an Abuse of Process

[7]    The appellant submitted before the Prothonotary that the application is an abuse of process and an attempt by the applicant to obtain documents to which he is not entitled in the extradition proceeding. On this appeal, the appellant simply noted that with respect to the disclosure of documents, the extradition process has a complete disclosure regime, which has been developed through decisions made in the course of extradition proceedings under the Act.

[8]    To the extent that the issue of disclosure is before me on this appeal, I would agree with the Prothonotary's determination not to dismiss the application as an abuse of process. The Supreme Court of Canada held in United States of America v. Kwok [2001] 1 S.C.R., 2001 SCC 18 that disclosure under the Act is limited to the evidence relied upon by the state. The applicant's argument, however, is that what is at issue is a review of the issuance of the ATP, not the extradition itself.

Jurisdiction

[9]    The appellant, relying on the Federal Court of Appeal decision in Froom v. Canada (Minister of Justice) 2004 FCA 352 submitted that the Court should decline jurisdiction to deal with the applicant's application for judicial review of the ATP as an adequate alternative remedy is available under the Extradition Act, supra. The applicant submitted that firstly the Federal Court of Appeal did not state in unequivocal terms that the Federal Court must always decline jurisdiction. Further, as held by Gibson J. in Froom v. Canada (Minister of Justice) 2002 FCT 1278, an appeal of the decision of the Prothonotary on a motion to strike the notice of application, if Parliament had intended to oust the Federal Court's jurisdiction to review an ATP, it could have vested that jurisdiction solely in the extradition judge or the Court of Appeal of the appropriate province. That is the case on a review of the Minister's decision to surrender a person pursuant to subsection 57(1) of the Act.

[10]                        The Prothonotary stated at paragraph 17 when discussing the Court of Appeal decision in Froom, supra, that while:

. . . the applicable jurisdiction as to prohibition may be limited, but so long as any jurisdiction may exist, I am not prepared to strike out for want of jurisdiction. Indeed, the Court of Appeal in Froom neither explicitly nor implicitly suggest that the Federal Court should always decline jurisdiction to deal with an application for judicial review of an authority to proceed, for this proposition is qualified¼ the issue is whether or not the extradition judge has the jurisdiction to review an authority to proceed. ¼ In the view of the Court of Appeal an extradition judge, such as the judge dealing with the present matter in Manitoba, does not have the authority to conduct a judicial review of the authority to proceed. The Court of Appeal in Froom, supra, then goes on to discuss other possible remedies. However that introduces so many uncertainties that I am not prepared to strike out the application on this jurisdictional argument . . .

[11]                        I must respectfully disagree with the Prothonotary's interpretation of the Court of Appeal's ruling in Froom, supra. The Court of Appeal agreed that "the Federal Court should always decline jurisdiction to deal with an application for judicial review of an authority to proceed if the grounds for the application disclose arguments that are squarely within the jurisdiction of the extradition judge. The Court further accepted that "an extradition judge does not have the jurisdiction to conduct a judicial review of the authority to proceed.". However, the Court of Appeal then went on to state:

However, I am unable to agree with the Judge that it necessarily follows that an extradition judge lacks the jurisdiction to provide an adequate remedy if the issuance of the authority to proceed is tainted by a significant impropriety on the part of the Minister in the issuance of the authority to proceed. On the contrary, it is my view that an extradition judge who is presented with evidence that the decision of the Minister to issue an authority to proceed was made arbitrarily or in bad faith, or was motivated by improper motives or irrelevant considerations, has the requisite jurisdiction to grant an appropriate remedy under the Canadian Charter of Rights and Freedoms or under the inherent jurisdiction of the superior courts to control their own process and prevent its abuse: U.S.A. v. Cobb, [2001] S.C.R. 587,United States of America v. Gillingham, (2004) 239 D.L.R. (4th) 320 (B.C.C.A.).

In fact, a review of the record of this case, the dozens of cases cited by both counsel, and the written and oral submissions of counsel, discloses not a single example of a potential challenge to the validity of an authority to proceed that could not be adequately remedied by an extradition judge or by a provincial appellate court, given the jurisprudence that has developed since the order under appeal was issued. The scope of remedies available to extradition judges, and provincial appellate courts sitting on appeal from extradition warrants or on judicial review from the Minister's surrender decisions, is not as narrow as it appeared to be when the Judge was dealing with Mr. Froom's application for judicial review."

[12]                        The grounds cited in the notice of application do not disclose arguments that are outside of the jurisdiction of the extradition judge. It is clear from the Court of Appeal's decision in Froom, supra, that the extradition process includes adequate alternative remedies to the Federal Court's exercise of its jurisdiction to judicially review an ATP. In addition to any inherent jurisdiction in the Court of Queen's Bench, the Act provides for the respondent to appeal an order of committal to the Manitoba Court of Appeal (section 49), permits the respondent the option to present submissions to the Minister before the Minister makes a determination of whether or not to surrender the applicant (section 43), and to apply for judicial review to the Manitoba Court of Appeal if the Minister makes a surrender order (section 57). There is the possibility of a review of the underlying basis for the Minster's decision in each of those instances. Accordingly, as the Federal Court of Appeal found in Froom, supra, there is an adequate alternative remedy to this Court exercising its judicial review jurisdiction in this case.

[13]                        I note the letter dated January 19, 2005 from counsel for the respondent, to this Court asserting that the appellant's reply is improper, as it is an attempt to reargue its case, and present new argument and case law. As one of the appellant's main arguments in the memorandum was that an alternative remedy existed under Act, there was no new argument being made in respect of that aspect. Identifying for the Court on reply the sections of the Act that specify the options the respondent would have access to, could not reasonably be interpreted as prejudicial to the respondent.

[14]                        The date of decision of the case referred to by the respondent in his letter predated the filing of the motion appealing the order of the Prothonotary. While the respondent has provided no jurisprudence which would indicate that providing the Court with existing case law at the reply stage is prejudicial to the other party, as is evident from the reasons herein, the case in question was not utilized or relied upon in making my decision on this appeal.

[15]                        I therefore find that the Prothonotary erred in law and grant the appeal. The notice of application will be struck as being " . . . bereft of any possibility of success" in light of the Court of Appeal's decision in Froom, supra.

[16]                        Each party has requested costs on this appeal. The Prothonotary granted the respondent herein costs in the amount of $1,000.00 payable forthwith. As success on the appeal is divided, no costs are awarded. The Prothonotary's order as it relates to costs remains in effect.

ORDER

[17]                        IT IS ORDERED that the appeal of the Prothonotary's order is granted. The notice of application is struck as being bereft of any possibility of success in light of the decision of the Federal Court of Appeal in Froom, supra. As success on the appeal is divided no costs will be awarded. The Prothonotary's order as it relates to costs remains in effect.

                "John A. O'Keefe"

J.F.C.

Ottawa, Ontario

April 22, 2005

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1875-04

STYLE OF CAUSE:                         DAVID B. COFFEY

-      and

THE MINISTER OF JUSTICE

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF THE

PARTIES

REASONS FOR ORDER AND ORDER:             O'KEEFE J.

DATED:                                              April 22, 2005

WRITTEN REPRESENTATIONS BY:

                                                            David H. Davis

FOR APPLICANT

                                                            Sharlene Telles-Langdon

FOR RESPONDENT

SOLICITORS OF RECORD:

                                                             Davis & Associates Law Office

                                                             Winnipeg, Manitoba

FOR APPLICANT

                                                               John H. Sims, Q.C.

                                                              Deputy Attorney General

FOR RESPONDENT