Date: 200500914
Docket: T-534-05
Citation: 2005 FC 1265
BETWEEN:
CECIL BROOKS
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The Respondent Attorney General of Canada (AGC) brought a motion to strike the Applicant's (Brooks) Notice of Application for Judicial Review dated March 21, 2005 or alternatively for an extension of time for AGC to file its affidavit materials.
[2] The grounds of the principal motion are (a) that the application is bereft of any chance of success because it seeks judicial review of the wrong decision; and (b) that the application is out of time no matter which decision is the one to be reviewed.
BACKGROUND
[3] Brooks had filed a complaint of racial discrimination against the Department of Fisheries and Oceans. The allegations were: (1) that he was treated unfairly in the course of his employment; (2) that he was discriminated against in respect of a hiring eligibility list in 1989; and (3) that he was discriminated against in a hiring competition conducted in 1992 and 1993.
[4] At the commencement of a hearing before a Canadian Human Rights Tribunal (Tribunal) the matters of liability and remedy were bifurcated.
[5] On December 3, 2004, the Tribunal issued its liability decision in which it found that Brooks was a victim of discrimination. The Tribunal then went on to invite submissions, obviously at a later date. It then went on to say, despite having bifurcated the issues of liability and remedy:
It may be of assistance to say that I am satisfied, on the evidence before me, that Mr. Brooks would not have obtained an indeterminate position, even if the competition was properly conducted. . . . I would accordingly think that the major issue relates to pain and suffering.
[6] A teleconference was held on December 15, 2004 to deal with the remedy phase of the litigation. In the initial discussion of whether the remedy phase could deal with reinstatement and lost wages, the Tribunal repeated that it had decided against Brooks on the issue of reinstatement because it had said that Brooks would not have obtained an indeterminate position. Following submissions by Brooks' counsel, the Tribunal allowed Brooks to make submissions on the scope of remedies to be considered.
[7] On February 3, 2005, (received by Brooks February 4, 2005) the Tribunal issued its directions regarding the scope of the remedy phase of this litigation. The Tribunal reiterated the position it had taken in its December 3, 2004 decision that Brooks would not have received a permanent position. The terms of that ruling are important:
My position remains firmly as it was, and I am satisfied, on the evidence before me, that Mr. Brooks would not have received a permanent position. The facts have been decided; the finding has been made; and the doctrine of functus ex officio applies. There is nothing more for me to say on the matter.
[8] To complete the time line, on February 23, 2005 an amended version of the February 3 ruling issued removing "ex" from the above quote "functus ex officio". This, Brooks says, extended the 30 day time period within which to seek judicial review. The Court concludes that it did not.
[9] Brooks filed for judicial review of the February 3 decision on March 21, 2005. Brooks seeks to set aside the Tribunal's decision holding that he would not have received a permanent position.
[10] The thrust of the AGC's motion to strike is that this judicial review is bereft of any chance of success because it is out of time. It is out of time because the real decision holding that Brooks would not have received a permanent position was made on December 3, 2004.
[11] Brooks never filed for judicial review of that December 3, 2004 decision however the AGC did seek judicial review because of the key findings on liability that Brooks was the victim of discrimination.
DETERMINATION
Re: Bereft of Success
[12] The basic principles concerning motions to strike an application for judicial review have been established in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. [1994] F.C.J. No. 1629 (FCA) (QL). That decision recognizes that save for exceptional circumstances, an application for judicial review should not be struck unless it is "bereft of any possibility of success".
[13] That decision and others on the same issue, even Scheuneman v. Canada (Attorney General) [2003] F.C.J. No. 686 which was argued to be decided on the basis of being 20 years out of time, focus the question of bereft of any possibility of success on the merits of the judicial review, not its timeliness. Timeliness is another matter.
[14] The AGC's motion is premised on the basis that Brooks' attack is on the December 3, 2004 decision and that it is out of time. The AGC does not contend that Brooks has no chance of success on the merits, nor should it at this stage.
[15] The issues raised by Brooks, the fact that the December 3, 2004 decision dealt with an aspect of remedy when it was to deal solely with liability, that Brooks was allowed post-December 3, 2004 to make submissions on reinstatement and other issues related to the merits of the judicial review are best left to the judge hearing the judicial review, if and when it proceeds.
[16] A motion to strike on the basis of "bereft of success" should not be allowed now and most particularly where Brooks was successful on the liability issue. He did establish that he was discriminated against; his opportunity to challenge the remedy phase should not be cut short.
[17] Therefore, on these grounds, the AGC cannot succeed.
Timeliness
[18] Apart from the issue of the merits of the judicial review, a second issue is whether the judicial review was filed within time.
[19] It is clear that if the decision under challenge is that of December 3, 2004, Brooks is out of time. Brooks contends that the relevant decision is the February 3, 2005 ruling and that because a corrected version was issued on February 24, 2005, the judicial review was filed on time.
[20] The corrected ruling made no substantive change, corrected only a grammatical error and did not replace the February 3 ruling. Therefore the judicial review application is out of time in respect of either decisions.
[21] Brooks' material on this motion to strike contains an affidavit of a legal assistant at counsel's office which purports to establish the reasons for the late filing of the judicial review. These reasons include a recitation of significant personal problems experienced by Brooks. In a proper format and motion these reasons may be sufficient to justify an order permitting the late filing of the judicial review.
[22] Since there are two interrelated Tribunal decisions, Brooks may wish to consider seeking an order to permit the late filing of a judicial review of each decision, to the extent that the same may be necessary, in order to ensure that the true issues are put before this Court.
[23] In the normal course the AGC would be entitled to an order striking the judicial review because it was filed out of time. However, this is an appropriate case to defer such an order on condition that Brooks seeks the necessary court order(s) for late filing of such judicial reviews as he deems necessary. One would expect that this could be done by Rule 369 proceedings and should be filed within 30 days from the date of the order on this motion.
[24] An order will issue striking the application for reasons of timeliness unless Brooks seeks the necessary orders from this Court.
[25] In view of the results of this motion, it will not be necessary to make an order extending the time for the AGC to file its affidavit material.
[26] Since the results of this motion are mixed, no award of costs will be made.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-534-05
STYLE OF CAUSE: CECIL BROOKS v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto
DATE OF HEARING: July 25, 2005
REASONS FOR ORDER: Phelan J.
DATED: September 14, 2005
APPEARANCES:
Mr. Davies Bagambiire FOR THE APPLICANT
Ms. Melissa R. Cameron FOR THE RESPONDENT
SOLICITORS OF RECORD:
Davies Bagambiire
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT