Date: 20010731
Docket: T-925-01
Neutral Citation: 2001 FCT 848
BETWEEN:
AMRAM ELKAYAM
Applicant
AND
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion for the striking out of the application for judicial review filed in this proceeding against an interlocutory decision rendered on April 27, 2001 by Mr. Denis Garceau, a recourse officer for the Public Service Commission of Canada refusing leave to the applicant Amram Elkayam to record the respondent's reply to his allegations in the context of an investigation meeting held by Mr. Garceau.
[2] I also have before me a motion for special management of the case, which seeks a stay of the notice of application for judicial review filed in opposition to the same interlocutory decision rendered by Mr. Garceau on April 27, 2001.
[3] In view of the fact that both motions filed by the two parties in this matter are addressed either to the stay of the application for judicial review or its outright striking out, I have decided to deal with both motions simultaneously.
[4] The two parties are agreed that, faced with a dispute between the parties at an investigation meeting held on April 27, 2001 over whether the applicant's representative could record the respondent's reply to his allegations, Mr. Denis Garceau rendered a decision refusing the request to record the respondent's reply to the applicant's allegations.
[5] Following this decision, the matter was adjourned to May 28, 2001 for continuation of the hearing into the matter.
[6] On May 28, 2001, the applicant filed an application for judicial review of the interlocutory decision rendered on April 27, 2001.
[7] On July 4, 2001, Mr. Denis Garceau rendered a final decision in the matter.
[8] It seems clear from the facts on the record that the decision rendered on July 4, 2001 makes the application for judicial review of the interlocutory decision of April 27, 2001 completely academic and moot.
[9] The applicant suggests that the stay of this application, in anticipation of the filing of an application for judicial review of the final decision rendered on July 4, 2001 is legitimate and would allow the applicant's rights to be safeguarded.
[10] Counsel for the applicant also suggests that a motion to strike out is not the proper proceeding and that such a motion can be allowed only in exceptional circumstances.
[11] In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, the Federal Court of Appeal set the parameters concerning the exceptional circumstances in which a motion to strike out could be allowed in a judicial review proceeding. Strayer J.A. states, at page 600:
For these reasons we are satisfied that the Trial Judge properly declined to make an order striking out, under Rule 419 or by means of the "gap" rule, as if this were an action. This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success.10 Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion.
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See e.g. Cyanamid Agricultural de Puerto Rico, Inc. v. Commissioner of Patents et al. (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102 (T.D.), at pp. 120-121.
[12] Likewise, Noël J., in Canada (Attorney General) et al. v. Information Commissioner (Can.) (2000), 264 N.R. 361, stated at page 363:
[10] I need only say in this respect that the rule established in David Bull Laboratories is not absolute. A party may seek to quash a judicial review application by a motion to strike where he or she can show that the application is so clearly improper as to be bereft of any possibility of success ...
[13] It is important to note as well that an application for judicial review of an interlocutory judgment is not admissible in the Federal Court failing special circumstances. To this effect, Létourneau J.A. writes, in Szczecka v. Canada (Minister of Employment and Immigration), [1993] F.C.J. no. 934 (A-1270-92) (Q.L.):
4. This is why unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgement. Similarly, there will not be any basis for judicial review, specially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several Court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses, which interfere with the sound administration of justice and ultimately bring it into disrepute. [See Note 1 below] In the case of judicial review under s. 28 of the Federal Court Act, which is the case now before the Court, the interpretation of that section by the Court is even more strict.
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Note 1: Harelkin v. University of Regina, [1979] 2 S.C.R. 561; Bayne (Rural Municipality No. 371) v. Saskatchewan Water Corp. (1991), 46 Admin. L.R. 23 (Sask. C.A.); British Columbia Government Employees' Union v. Labour Relations Board of British Columbia et al. (1986), 2 B.C.L.R. (2d) 66 (B.C. C.A.); R. v. Anson, [1983] 3 W.W.R. 336 (B.C. C.A.); Att. Gen. (Que.) v. Cohen et al., [1979] 2 S.C.R. 305; Ontario Federation of Labour et al. v. Workers' Compensation Board (Ont.) (1988), 29 O.A.C. 215 (Ont. Div. Ct.).
Note 2: See e.g. Mahabir v. Canada, [1992] 1 F.C. 133 (F.C.A.).
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5. In view of the rules stated above and the interpretation of s. 28, we feel that the application for judicial review should be dismissed on this first ground.
[14] In view of the evidence presented at the hearing, I have no hesitation in allowing this motion to strike out filed by the respondent and in dismissing the motion to obtain a stay of the application for judicial review filed by the applicant, the whole with costs against the applicant.
Pierre Blais
J.
Montréal, Quebec
July 31, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010731
Docket: T-925-01
BETWEEN:
AMRAM ELKAYAM
Applicant
AND
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-925-01
STYLE:
AMRAM ELKAYAM
Applicant
AND
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 30, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: July 31, 2001
APPEARANCES:
Simon Dubois and Cédric Sabbah For the applicant
Louis-Alexandre Guay and Guy Blouin For the respondent
SOLICITORS OF RECORD:
Simon Dubois and Cédric Sabbah For the applicant
Montréal, Quebec
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Ottawa, Ontario