Federal Court Decisions

Date: 20050630

Docket: T-404-05

Citation: 2005FC925

Ottawa, Ontario, this 30^th day of June, 2005

PRESENT:    MADAM PROTHONOTARY ARONOVITCH

BETWEEN:

THE RIGHT HONOURABLE JEAN CHRÉTIEN

Applicant

- and -

ATTORNEY GENERAL OF CANADA

Respondent

- and -

THE HONOURABLE JUSTICE JOHN GOMERY,COMMISSIONER FOR THE COMMISSION OF INQUIRY INTOTHE SPONSORSHIP PROGRAM AND ADVERTISING ACTIVITIES

Intervener

REASONS FOR ORDER

ARONOVITCH P.

INTRODUCTION

[1]    On May 30, 2005, roughly a week before the within application was to be heard on an expedited basis, the Applicant, the Right Honourable Jean Chrétien discontinued the application by which he had sought to remove Justice Gomery as Commissioner of the Commission of Inquiry into the Sponsorship Program on the grounds of apprehended bias and the lack of procedural fairness.

[2]    Justice Gomery, an intervener with limited standing in this proceeding, is concerned that the Applicant may yet renew his challenge. He has brought this motion in order to continue his work without that prospect, not wishing to be under the "cloud" of the Applicant's allegations while he prepares his report. The Commissioner asks that the terms of his intervention be broadened and that he be granted standing to argue that the events surrounding the filing of the discontinuance essentially amount to an abuse of process sufficient to set aside the Applicant's notice of discontinuance. If the Court so finds, he asks the Court to order that the notice of discontinuance be set aside, and that the Applicant's allegations be heard and determined expeditiously.

[3]    In sum, the Commissioner wishes to compel the Applicant to proceed with an application that the Applicant has discontinued. Having considered the arguments of the parties, I conclude that the allegations of abuse of process are without foundation. I find no basis in fact, or at law, to enlarge the scope of the intervener's status, to disturb the notice of discontinuance, or to order the expeditious hearing of the allegations.

BACKGROUND

[4]    Some explanation of the factual background for the motion is useful at this juncture.

[5]    The Attorney General, with the consent of the Applicant, moved to expedite the hearing of this application. That motion was granted by me by order dated April 5, 2005, wherein I directed that the allegations raised by the Applicant be heard on an expedited basis on June 7 and 8, 2005, and found that a case had been made out for urgency as well as a public interest in expediting the hearing of the application.

[6]    The Commissioner then moved to intervene in this proceeding, and on April 29, 2005, was granted intervener status on a limited basis. (The Right Honourable Jean Chrétien v. Attorney General of Canada, 2005 FC 591) The Commissioner was to have the opportunity to make written and oral submissions as to the scope of his mandate, jurisdiction and procedural discretion. He was also granted the right to appeal the outcome of the judicial review in the event that the Attorney General did not.

[7]    On May 25, 2005, counsel for the Attorney General filed his factum for the judicial review. His submissions included the argument that the application was premature and should not be heard until after the issuance of the Commissioner's report. The following is from the Attorney General's submissions:

61. The Applicant's application is premature and should be dismissed on that account. Absent exceptional circumstances, this Court does not entertain judicial review applications from administrative tribunals where the proceedings before the tribunal are not complete.

62. Here, the Commissioner has not issued his report or, for that matter, completed his inquiry. There are no exceptional circumstances justifying immediate judicial review.

[8]    On May 30, 2005, a number of events occurred. First, having learned that the Applicant was prepared to discontinue his application, counsel for the Attorney General wrote to the Applicant's counsel stating his understanding as follows:

We understand that your client has reconsidered his position and is now prepared to discontinue his judicial review application. We acknowledge that, if he does so, he would have the same right as all other parties before the Commission, to commence a judicial review application against the Commission once it issues its report. We also acknowledge that, in the event that your client were to seek judicial review of the Commission report, he would be entitled to raise all the arguments that he has raised in the present application, on the basis of the same facts he has alleged. In particular, he would not be estopped from raising the bias argument at that time if he so wished. As you know, one of the arguments that we proposed to make in response to your client's present judicial review application was that it was premature and could only be brought after the Commissioner has issued his report. The Federal Court does not normally intervene by way of judicial review in administrative proceedings before they are completed.

[9]    The same day, the Applicant filed a notice of discontinuance in accordance with the Federal Courts Rules, (the "Rules") stating: "The Right Honourable Jean Chrétien wholly discontinues this application".

[10]                        Also on that day, the Applicant issued a media release stating the following:

The formal position adopted by the Government of Canada in response to the Right Honourable Jean Chrétien's Application for Judicial Review of the Gomery Inquiry is that the Application is premature. Further, it is too late to replace the Commissioner. In view of the current stage of the proceedings and the completion of the evidence, Mr. Chrétien's lawyers have agreed to this contention. Arrangements have been made with the Government by which Mr. Chrétien will suspend the proceeding which he has launched with the agreement of the Government that he will be free to reapply for judicial review on the same grounds, as well as any additional grounds, at a future date.

[11]                        On June 6, 2005, counsel to the Commissioner sent a letter to the Attorney General advising of the Commissioner's concern about this chain of events. The Commissioner requested that the Attorney General take steps to either have the discontinuance set aside or to ask the Applicant to declare his allegations permanently withdrawn, failing which the Commissioner would bring the within motions before the Court. The letter read in part as follows:

The recent position taken by the Attorney General places Justice Gomery and the Commission in an extremely difficult position. To have the allegations of bias not determined and the outstanding possibility that Mr. Chrétien may renew his application on the same or similar grounds is, simply put, unacceptable.

Justice Gomery has not and will not take any position before the Federal Court on the merits of the allegation of bias. He does, however, have a justifiable right to be seriously concerned and troubled that the allegations made by Mr. Chrétien will not be determined as scheduled on June 7 and 8, 2005 with the possibility that they may be renewed following the issuance of the report.

In these circumstances, it is the view of Justice Gomery that the Attorney General should take such steps as are necessary to either have the Notice of Discontinuance set aside and have Mr. Chrétien's allegations determined as soon as possible or to have Mr. Chrétien declare that by filing the Notice of Discontinuance, he is withdrawing his allegations and that they will not be renewed.

[12]                        The Attorney General responded by letter that he declined to take the suggested course of action, citing the Rules on discontinuance.

ISSUES

[13]                        There are essentially two issues to consider. The first is whether the scope of the Commissioner's intervention ought to be enlarged, giving him standing to argue that the discontinuance should be set aside. The second matter is whether the Court as a matter of law may set aside this notice of discontinuance, and ought to do so as constituting an abuse of the process of the Court.

FUNCTUS OFFICIO

[14]                        I note here that the parties did not address submissions to the question of whether the Court has jurisdiction to entertain a motion in a proceeding that has been discontinued. Given my findings and the views taken as to the merits of this case, it is not necessary to decide this question.

THE GROUNDS FOR THE COMMISSIONER'S MOTION

[15]                        The Commissioner argues that the submissions made by the Attorney General in his factum, to the effect that the application is premature and should be heard at the conclusion of the proceedings, are inconsistent with, and made with complete disregard for the order to expedite which the Attorney General himself had sought, and to which he had agreed.

[16]                        The notice of discontinuance is said to have equally been filed without heed to or regard for the Court's finding in that order that there was a public interest in the prompt determination of the Applicant's allegations. According to the Commissioner, the effect of the notice of discontinuance is that, without seeking leave of the Court, the order that the application be heard on June 7 and 8, 2005 has been ignored and effectively circumvented.

[17]                        The Commissioner also takes issue with the wording of the Applicant's media release of May 30, 2005 stating that the application would be suspended. The Commissioner takes the view that to merely "suspend" is not to genuinely discontinue, but is rather to place the allegations against the Commissioner in some form of abeyance, in total disregard of the Court's Order that the allegations be heard on an expedited basis.

[18]                        According to the Commissioner, these occurrences make a mockery of case management, constitute an attempt to circumvent the order of the Court, and as such, are an abuse of the process of the Court.

[19]                        The Commissioner's related argument is that the May 30, 2005 events ignored the principle of law that allegations of bias go to the heart of the jurisdiction of the Commissioner and his ability to continue in his work, and must therefore be raised promptly.

THE POSITIONS OF THE APPLICANT AND THE RESPONDENT

[20]                        The Applicant opposes the motion in its entirety.

[21]                        The Attorney General observes that the Commissioner has publicly expressed his concerns over the discontinuance of the application and the uncertainty it creates for him in his work and on that basis supports the Commissioner in his application to be given the standing to raise these concerns before this Court.

[22]                        On the second issue of whether the discontinuance should be set aside, the Attorney General states that, in the event that the Court finds that the Applicant's discontinuance is an abuse of process and sets it aside, the Attorney General is prepared to agree to an expedited hearing date.

ANALYSIS

Is the variance of the terms of the Commissioner's intervention warranted?

[23]                        The first matter for consideration is the jurisdiction of the Court to vary the terms of the order granting the Commissioner leave to intervene.

[24]                        The Commissioner was granted this leave on a restricted basis, in order to assist the Court by explaining his process, mandate, and procedural discretion.

[25]                        The order granting status of intervener to the Commissioner was not appealed. It is a final order of the Court and as such the issues determined therein are res judicata.^[1]

[26]                        As with any final order of the Court, the order granting leave to the Commissioner to intervene may be varied only if it falls within the ambit of Rule 399, which provides for a variance where an order is obtained by fraud or, as it is suggested here, where a new matter arose or was discovered subsequent to the making of the order. In other words, the order may only be varied if there are new circumstances to justify it.

[27]                        As noted in Zeneca Pharma Inc. v. Canada (Minister of National Health and Welfare) (2000), 10 C.P.R. (4^th) 146 (F.C.A.) at para. 6: a 'new matter' is one that would have brought about a different result at the time the judgment was issued. The Court makes clear in that case that Rule 399 cannot be used as a vehicle for revisiting judgments "every time a change occurs in the facts".

[28]                        I will now consider whether there are new circumstances that would warrant an amendment or variance of the terms of the order granting leave to the Commissioner to intervene.

[29]                        As noted earlier, the Attorney General had filed submissions on the judicial review application before it was discontinued. The Commissioner takes issue with these submissions as being inconsistent with the order to expedite. The submissions were to the effect that the application to remove the Commissioner, in midstream, was premature and should be dismissed, because absent exceptional circumstances, this Court does not entertain judicial review applications from administrative tribunals before their proceedings are complete.

[30]                        The prematurity argument is a statement of the law as the Attorney General saw it. Based on his review of relevant jurisprudence, he concluded that there was a legitimate possibility that the Court might dismiss the judicial review application as premature. As discussed below, there is ample jurisprudence to this effect.

[31]                        To the extent that the Attorney General's view accords with the jurisprudence, it was foreseeable that he would raise the argument. He has a duty to raise all of the relevant issues before the Court, and to make all tenable arguments in support of his case, the object of which was to have the application alleging apprehended bias and breaches of procedural fairness dismissed.

[32]                        Therefore, I find that this legal argument is not a new matter and does not constitute a new circumstance that would have affected my order to expedite. There are accordingly no grounds to warrant variation of the intervention order in the terms suggested by the Commissioner. I would deny his request for further standing to impugn the notice of discontinuance.

[33]                        That said, in the event that I am mistaken in my conclusion, I will proceed to consider the Commissioner's arguments on the merits.

May the Court set aside the Notice of Discontinuance

[34]                        I will now turn to the Commissioner's request that the Applicant's notice of discontinuance be set aside and consider the question of the Court's jurisdiction to do so.

[35]                        An applicant in this Court has the absolute right to discontinue an application without leave, or the consent of the other parties, by simply serving and filing a notice of discontinuance pursuant to Rule 165.^[2]

[36]                        The jurisprudence of this Court is settled that the Court has no jurisdiction to set aside a notice of discontinuance that complies with the Rules.^[3] No suggestion has been made in this case that the notice of discontinuance did not comply with the Rules.

[37]                        There is obiter comment in Waterside Ocean Navigation Co. v. International Navigation Ltd., [1983] F.C.J. No. 545 (C.A.) suggesting that the Court may interfere with a notice of discontinuance if the discontinuance is found to be an abuse of the process of the Court. I note that these comments were made in relation to Rule 406 of the former Federal Court Rules, which required consent or leave of the Court for a discontinuance, in particular circumstances. The Rules have since been amended to dispense with the necessity of either consent or leave of the Court.

[38]                        The Commissioner has cited no jurisprudence to the effect that under the present Rules, a notice of discontinuance which is properly made and constituted may be set aside on any grounds. However, I will deal with the Commissioner's allegations regarding abuse of process.

[39]                        A succinct expression of the doctrine of abuse of process is found at para. 37 of Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), [2003] 3 S.C.R. 77, where Justice Arbour adopted the view expressed by Goudge J.A. in Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.) at para. 55 that "[t]he doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute."

[40]                        The Commissioner argues that the raising of the prematurity argument by the Attorney General, later acceded to by the Applicant, amount to an abuse of process because, contrary to my order that the matter be heard urgently, it suggests that the Applicant should not be heard and his allegations of bias not be determined until the proceeding is concluded.

[41]                        I disagree. The Attorney General's prematurity argument is based on the law. The general principle learned from the jurisprudence is that rulings made during the course of a tribunal's proceedings should not be challenged until the tribunal's proceedings have been completed.^[4] The rationale for this general principle is twofold: first, applications made before a tribunal has reached a final decision might ultimately be unnecessary as the complaining party might be content with the end result; second, the unnecessary delays and expenses associated with such interim appeals can bring the administration of justice into disrepute, and can bring the administrative proceedings at issue to a grinding halt.^[5]

[42]                        While there are cases where leave to challenge on the grounds of bias has been granted earlier in the proceedings, generally this only occurs where "exceptional" or "special" circumstances exist to warrant a court's immediate intervention. Such special circumstances are determined on the facts of each case, and are generally narrowly construed. While an allegation of bias may constitute a special circumstance, Evans J. (as he then was) noted in Air Canada, supra note 4, that there is no authority for the proposition that any allegation of bias is automatically sufficient to warrant the Court's immediate attention.

[43]                        Canadian courts have, in the past, held that applications for judicial review alleging bias were premature. Thus, in Krever, a decision involving allegations that the Commissioner of the Krever Commission failed to comply with the dictates of procedural fairness, the Supreme Court found as follows:

The appellants launched this application before the Commissioner's findings had been released. Therefore, it is impossible to say what findings he will make or how they will be framed. Quite simply, the appellants have launched their challenge prematurely. As a general rule, a challenge such as this should not be brought before the publication of the report, unless there are reasonable grounds to believe that the Commissioner is likely to exceed his or her jurisdiction.^[6]

[44]                        Indeed, it is not the law that judicial review must be commenced immediately where an applicant perceives grounds for alleging an apprehension of bias. What the law requires is that a party who believes that such grounds exist must raise those grounds before the tribunal, and must not remain silent, relying on such grounds only if the outcome turns out badly.^[7] In this case, the allegations of apprehension of bias were raised and debated at the first opportunity before Justice Gomery.

[45]                        The prematurity argument made by the Attorney General, in my view, neither disregards nor runs afoul of the order to expedite. It is one of a number of arguments made to persuade the Court to dismiss the judicial review application. It is not advanced in order to delay or postpone the hearing of the application but rather in order to have the application determined and dismissed in accordance with the law.

[46]                        The prematurity argument is also not inconsistent with the Attorney General's submissions made to the Court when he sought the order to expedite. He argued, at the time, that the Commission was investigating a matter of significant public importance and that it was important that the challenge to the Commissioner be determined as quickly as possible so that his work could continue to completion.

[47]                        One of the factors that strongly weighed in favour of expediting the hearing was to deal in a timely way with the Applicant's request to remove the Commissioner. By virtue of the discontinuance, and the Applicant's own acknowledgment that it is too late to remove the Commissioner, that recourse is no longer at issue.

Is the filing of the Notice of Discontinuance an abuse of the process?

[48]                        The Commissioner argues that it is an abuse of process for the Applicant to file a notice of discontinuance when he means to renew his challenge at a later date. The Commissioner points to the statement in the Applicant's press release that he will "suspend" the proceeding. The Commissioner also refers to what he characterizes as the "agreement" of the Attorney General in

his letter of May 30, 2005, that if the Applicant were to seek judicial review of the Commission report he would be entitled to renew the arguments raised in the original application, on the basis of the same alleged facts.

[49]                        There is nothing in the Rules that prevents a party from discontinuing a proceeding where an order to expedite has been granted, nor after an order issues setting a matter down for hearing, nor indeed in the course of a hearing or a trial. To find otherwise is contrary to Rule 165 which does not put any time limits on the filing of a discontinuance; it is, in effect, to impose a form of specific performance on unwilling litigants.

[50]                        As a matter of law, a discontinuance is neither an adjournment nor a suspension of the proceeding. It effectively terminates the proceeding and closes the Court file. The discontinuance in this instance cannot be characterized as an attempt to suspend or put over the judicial review, because at law, it has the effect of entirely abandoning or bringing this application for judicial review to an end.

[51]                        In addition, the jurisprudence recognizes that a notice of discontinuance does not prevent the party that filed the notice from bringing another action on the same matter.^[8] Unlike a dismissal which is a final order, a discontinuance leaves matters open, and is not a bar to further proceedings.^[9]

[52]                        The Commissioner cites Sauvé v. Canada, [2002] F.C.J. No. 1001 (T.D.) in particular, in support of his contention that a discontinuance and recommencement of an identical or substantially similar claim may constitute an abuse of process. This Court determined in that case that "to allow the plaintiff to proceed with a second action which is simply a mirror of his first action would make a mockery of the Case Management Rules."^[10] The Court continued at para. 23; "[c]ase management judges make a multitude of orders for the purpose of ensuring the orderly progress of an action. To allow a plaintiff to disregard such orders leaving a plaintiff at liberty to simply refile a new mirror action would be contrary to the very purposes of those Rules."

[53]                        In my view Sauvé can be distinguished. In that case, the plaintiff's original action was dismissed for delay after he failed to file a reply to the statement of defence within twenty days, as ordered by the Court. The plaintiff then filed a new claim for the same cause of action. The Court determined that the plaintiff "had every reasonable opportunity to advance his case to an adjudication on its merits, was given an opportunity to do so by order of Justice Dubé of this Court, but violated that order and so the dismissal of his first action."^[11] It was in this context that the Court found that the submission of a second action which was 'simply a mirror of his first action' would make a mockery of the case management rules.   

[54]                        The finding of the Court in Sauvé was based upon the particular facts of that case. It is not authority for the proposition that instituting a new claim after discontinuing a similar, or the same claim, will amount to an abuse of process. Notably, this Court has held:

[a]s to whether it is an abuse of the process to discontinue in one court and commence action in another having concurrent jurisdiction, I do not think that there is any general rule of law to this effect. Of course, in particular cases, discontinuing and commencing afresh may be found to be abusive whether it be in the same or a different court. But such a finding would be based on the facts of the case.^[12]

[55]                        More to the point, the filing of the Applicant's notice of discontinuance, even when coupled with an intention to initiate a new judicial review application upon release of the Commissioner's report, can not at this juncture be grounds to determine that the discontinuance itself is an abuse of process, particularly when it is at least arguable that the application is premature.

[56]                        Moreover, any determination of whether a discontinuance and filing of a second application amounts to an abuse of process takes place at the time of the filing of the second application. In the cases cited by the Commissioner, it was the second application or action that was alleged to be an abuse of process, not the previous discontinuance. Abuse of process, in my view, has no application at this juncture and is improperly raised as a ground for impugning the notice of discontinuance.

[57]                        Indeed, neither the statements of the Attorney General in his letter of May 30, 2005 nor the views expressed by the Applicant in his press release of the same date are binding on the Court. If a new application is brought following the Commissioner's report it will stand and be judged on its own merits. The propriety of the allegations will be for the Court to determine at that time.

SUMMARY AND CONCLUSION

[58]                        The circumstances leading to the filing of discontinuance of the within application are not new matters that warrant granting the Commissioner's motion to expand the scope of his intervention. Having nevertheless considered his arguments on the merits, I conclude that the occurrences cited by the Commissioner are not contrary to the Court's order to expedite the hearing of the application, nor tantamount to circumventing that order.

[59]                        For these reasons, there is no basis in the facts or at law to support the Commissioner's allegations of abuse of process. There are no grounds to expand the scope of the intervention of the Commissioner, to disturb the notice of discontinuance, or to order an expeditious hearing of the Applicant's allegations.

[60]                        The effect of the discontinuance filed in this proceeding, at law, is to terminate the application. If and when the Applicant brings a new application for judicial review following the report, he will be in the same position as other parties appearing before the Commission with the same rights as the others parties to challenge the report. The new application, if any, will then be assessed on its own merits.

[61]                        To that extent, the cloud that preoccupies the Commissioner cannot be removed. The Commissioner is in the same position as any tribunal, susceptible to having his rulings and report challenged by way of a judicial review. With the greatest respect, the Commissioner, an intervener, can not compel the timing and exercise of the Applicant's rights. Litigants are entitled to choose how and when to challenge a decisionmaker and the manner in which their claim will be framed. These matters are completely with in the purview of the litigant, subject only to the ultimate determination by the Court as to the propriety and merit of their claim. This case is no exception.

"Roza Aronovitch"