Date: 20011029
Docket: T-613-01
Montréal, Quebec, October 29, 2001
Before: Richard Morneau, Prothonotary
BETWEEN:
MARCEL FOURNIER
Plaintiff
and
PUBLIC SERVICE COMMISSION
Defendant
ORDER
The defendant's motion to strike the plaintiff's application for judicial review is dismissed: costs to follow.
The defendant will have 15 days from the date of this order to serve and file its affidavits and 15 days from that filing to serve and file its defendant's record.
|
Richard Morneau Prothonotary |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20011029
Docket: T-613-01
Neutral citation: 2001 FCT 1169
BETWEEN:
MARCEL FOURNIER
Plaintiff
and
PUBLIC SERVICE COMMISSION
Defendant
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] The Court has before it a motion by the defendant asking it to strike the plaintiff's application for judicial review pursuant to Rule 221(1)(c) and (f) of the Federal Court Rules, 1998 ("the Rules").
[2] Alternatively, if this Court decides not to strike the application for judicial review, the defendant asked that it be allowed 30 days to enter its affidavits in the record, beginning from the date of the order to be made on this motion, and 30 days to file the defendant's record, beginning from the 31st day from the date of the order to be made on the instant motion.
[3] It appears to me that the respondent's motion, though not submitted under this heading, should be considered in terms of this Court's inherent jurisdiction as applied by Strayer J. in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, at 54-5 ("Pharmacia").
[4] In Pharmacia, Strayer J. allowed a party to ask the Court to strike in a judicial review proceeding only in exceptional cases. This is what the Court said in that case, at 54-5:
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. (See e.g. Cyanamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). 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 allegation in the notice of motion.
(My emphasis.)
[5] The same reasoning was followed by Nadon J. of this Court in a decision on August 13, 1996 (Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc., case T-1238-96, p. 5).
[6] As Strayer J. mentioned in Pharmacia:
... [T]he focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case.
(See also Merck Frosst Canada Inc. et al. v. Minister of National Health and Welfare et al. (1994), 58 C.P.R. (3d) 245, at 248, and Glaxo Wellcome Inc. et al. v. Minister of National Health and Welfare et al., unreported judgment of this Court, September 6, 1996, case T-793-96.)
[7] In the case at bar the plaintiff is challenging in his application for judicial review inter alia certain appointments made on the basis of a relative merit selection process without a competition pursuant to s. 10(1) of the Public Service Employment Act.
[8] In the defendant's submission, the plaintiff had a right of appeal to an appeal board constituted pursuant to s. 21(1.1) of that Act. According to the defendant, that appeal was clearly the appropriate means of challenging the validity of the appointments.
[9] The notice of right of appeal filed by the defendant was dated April 3, 2001 and indicated that this right was available to Industry Canada employees holding positions in the Quebec region. It appeared from the plaintiff's affidavit - and this evidence was not contradicted in connection with this motion - that since July 6, 2000 the plaintiff had ceased to be in the employ of the Public Service. Accordingly, it is not clear here that the plaintiff had access to an appeal board, since according to the evidence available to the Court on April 3, 2001 the plaintiff did not have a position in the Public Service.
[10] In view of these facts and in view of the principles laid down in Beaudry v. Canada (Attorney General), [2000] F.C.J. No. 1876, it does not seem possible at this stage to clearly establish that the plaintiff's application for judicial review falls under s. 221(1)(c) and (f) of the Rules.
[11] Further, although the remedial measures indicated in the plaintiff's application for judicial review do not expressly deal with the situation of Mr. A. Lauzon, the defendant did not show the Court that it would really suffer any detriment from the fact that the application for judicial review by the plaintiff - who represented himself - mentioned and sought certain remedies against Mr. Lauzon. The latter's situation is not so unrelated to that of the other three candidates that a partial striking out can be done in the case at this stage. The judge of the merits will know how to deal with the matter.
[12] Accordingly, the defendant's motion to strike the plaintiff's application for judicial review will be dismissed.
[13] At the same time, it seems that the defendant should be given a short period of time to file its affidavits and its defendant's record, although the defendant allowed the deadline to pass and has provided little or no explanation of this in its motion record.
[14] My proof and hearing of this motion have indicated that these steps are necessary for the administration of justice so the Court can have a more complete view of all the issues and their background. The plaintiff did not allege any real harm as an objection to this extension of time in the defendant's favour.
[15] The defendant will accordingly have 15 days from the date of the order accompanying these reasons to serve and file its affidavits and 15 days from such filing to serve and file its defendant's record.
[16] Further, the application made by the plaintiff in para. 89 of its written submissions against the motion to strike is dismissed.
[17] The costs on the instant motion to strike will follow the decision on the merits.
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Richard Morneau Prothonotary |
MONTRÉAL, Quebec
October 29, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
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Federal Court of Canada Trial Division Date: 20011029 Docket: T-613-01 Between: MARCEL FOURNIER Plaintiff and PUBLIC SERVICE COMMISSION Defendant REASONS FOR ORDER |
FEDERAL COURT OF CANADATRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE:
STYLE OF CAUSE:
T-613-01
MARCEL FOURNIER
Plaintiff
and
PUBLIC SERVICE COMMISSION
Defendant
PLACE OF HEARING:Montréal, Quebec
DATE OF HEARING:October 22, 2001
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED:October 29, 2001
APPEARANCES:
| Marcel Fournier |
for the plaintiff |
|
| Bernard Letarte |
for the defendant |
|
SOLICITOR OF RECORD:
| Morris Rosenberg Deputy Attorney General of Canada |
for the defendant |
|