Date: 20010816
Docket: T-598-01
Neutral Citation: 2001 FCT 901
Between:
FRANCIS MAZHERO,
Applicant,
- and -
YUKON TEACHERS' STAFF RELATIONS BOARD,
DEBRA FENDRICK, MAVIS FISHER, MARGUERITE-MARIE GALIPEAU,
CHRIS GONNET, MONICA LEASK, PAUL NORDAHL, KEITH PARKKARI,
VALERIE STEHELIN and SIEDO TZOGOEFF,
Respondents.
REASONS FOR ORDER
Muldoon, J.:
[1] The applicant applies to this Court, purportedly
pursuant to section 18.1 of the Federal Court Act R.S.C. 1985, c. F-7, and Rule 300 of the Federal Court Rules, and other Rules of the Federal Court Rules, and section 276 of the Yukon Education Act, S.Y. 1990, c. 25, and sections 2(d), 7, 15 and 24 of the Canadian Charter of Rights and Freedoms, and the inherent jurisdiction of this Honourable Court.
for
judicial review of the decision of the Yukon Teachers' Staff Relations Board (the Board) dated March 8, 2001, to refuse to process the applicant's complaint against Marguerite-Marie Galipeau, Chris Gonnet, Paul Nordahl, Valerie Stehelin and Siedo Tzogoeff, which is dated February 22, 2001.
The Applicant makes application for an order in the nature of mandamus requiring the Board to refer his complaint against the individuals in question to an expedited hearing.
[2] The stated grounds upon which the applicant seeks relief are that:
1. The Board has arbitrarily, capriciously, in bad faith and without just or reasonable reason or cause refused to hear the Applicant's complaint against Messrs. Galipeau, Gonnet, Nordahl, Stehelin and Tzogoeff; and
2. The Board's unjustified refusal to entertain the Applicant's complaint has caused serious prejudice to him and his family which amounts to an abuse of process and a denial of natural justice; and
3. The Board, by its decisions, has deprived the Applicant of his rights under sections 2(d), 7 and 15 of the Canadian Charter of Rights and Freedoms to freedom of association and security of the person, and discriminated against him in a manner which is not in accordance with the principles of fundamental justice.
[3] It appears from the Court's file that two of the named respondents, Yukon Teachers' Staff Relations Board, and Marguerite-Marie Galipeau attempted a preliminary objection to this Court's jurisdiction in the matter, by means of a counter motion for an order dismissing the applicant's application. This preliminary objection was filed in Vancouver on June 11, 2001. There was some difficulty experienced by the said respondents in effecting service, as is noted in paragraphs 2, 3 and 4 of Nicole Adams' affidavit, sworn July 25, 2001, in Kelowna, British Columbia, and filed on July 25, 2001. She swore:
...
2. Attached and marked as Exhibit "A" to this my Affidavit, are copies of cover letters dated June 7, 2001 from our offices to all of the parties including the Applicant setting out the materials served upon them.
3. Attached and marked as Exhibit "B" to this my Affidavit is a copy of the receipt from A-1 Delivery in Whitehorse, Yukon dated June 8, 2001, indicating that Mr. Mazhero was served, in accordance with our instructions, with the cover letters attached as Exhibit "A" and the enclosures described in the letters.
4. On July 25, 2001 we arranged to have Mr. Mazhero re-served with the Motion Record of the Respondents by A-1 Delivery. Attached and marked as Exhibit "C" to this my Affidavit is a true copy of my letter addressed to A-1 Delivery dated July 25, 2001 instructing them to re-deliver our Motion Record to Mr. Mazhero"s address for delivery.
The Court's file contains no further documents filed by any party.
[4] The question of this Court's jurisdiction in such matters as this is of relatively long standing, but its determination is not wholly consistent. The October, 1986, issue of NATIONAL, Canadian Bar Association, reports an article by Becky Striegler datelined Whitehorse and headlined: Yukon not bound by federal bilingualism rules, Court decides, referring to a decision of Mr. Justice Perry Meyer, ad hoc of the Yukon Territorial Court. He is quoted : "The powers conferred on the Yukon legislature are analogous to those conferred on provincial legislatures. The Yukon territory is not a department of the federal Parliament ... It is an infant province, with most but not all the attributes of a province. In the reported unanimous judgment of the Federal Court of Appeal in Bradasch v. Warren et al [1990] 3 F.C. 32, 111 N.R. 149, 1993 Federal Court Practice, Sgayias & al., p. 81, the following is stated, in the latter text: "All law in the Yukon is federal law. Therefore, an action against R.C.M.P. officers for the alleged torts of assault and battery and wrongful imprisonment is founded on federal law." A fine survey of the jurisprudence was effected by Mr. Justice Joyal of this Court in Heafey v. Canada (1991) 46 F.T.R. 123. So, also, were useful jurisprudential surveys performed as reported in Re Fortier Arctic Ltd. and Liquor Control Board of Northwest Territories (1972) 21 D.L.R. (3d) 619, [1971) 5 W.W.R. 62 (per Morrow, J.) and in Re Pfeiffer and Commissioner of the Northwest Territories (1977) 75 D.L.R. (3d) 407 (per Tallis, J.). All of the last three above mentioned decisions are understood to be correct.
[5] The most recent decision rendered in regard to territorial institutions and this Court's jurisdiction in regard to them is surely this Court's Appeal Division's unanimous decision in The Queen v. Fédération Franco-Ténoise *** and Speaker of the Legislative Assembly of the N.W.T., and Language Commissioner of the N.W.T. and Commissioner of Official Languages of Canada, Nos A-555-00 and A-558-00, July 4, 2001. The judgments, hereinafter referred to as the Fédération Franco-Ténoise case, were written by Mr. Justice Décary who referred to the Commissioner of the Territories, the Speaker of the Legislative Assembly, and the Languages Commissioner under the expression "the territorial defendants".
[6] In docket A-555-00, the substantial issue was whether the Federal Court had jurisdiction in regard to the territorial defendants. In docket A-558-00, the issue was whether the action validly brought in the Federal Court against Her Majesty the Queen should not be stayed to permit the action to be moved to the Supreme Court of the Northwest Territories.
[7] Mr. Justice Décary wrote :
[6] On March 13, 2000, Her Majesty, relying on paragraph 50(1)(b) of the Federal Court Act, applied for a stay of the proceeding on the ground that the Federal Court did not have jurisdiction over all of the defendants and that it would be more appropriate to hear and determine the matter in the only court having jurisdiction to decide the entire case, the Supreme Court of the Territories.
[7] On September 8, 2000, Mr. Justice Rouleau dismissed both motions (Fédération Franco-Ténoise v. Canada, [2001] 1 F.C. 241 (Trial Division)).
[8] In regard to the motion for dismissal filed by the territorial defendants, the judge found that the conditions set out by the Supreme Court of Canada in ITO-International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, at page 766 for establishing jurisdiction of the Federal Court are fulfilled in this instance: the three territorial defendants being part of the "federal Crown" in his opinion, there is, through section 17 of the Federal Court Act, a grant of jurisdiction to the Federal Court; the Ordinances enacted by the government of the territories constitute federal law; and as the law relied on in this case is in the last analysis the Northwest Territories Act, R.S.C. 1985, c. N-27, it is a law of Canada within the meaning of section 101 of the Constitution Act, 1867.
[9] In regard to the motion to stay the proceeding filed by Her Majesty, the judge simply disposed of it in the following words:
[36] In light of the Court's finding with respect to jurisdiction, I propose to dismiss this motion.
***
[11] The reasons that follow will occasionally refer to some provisions of constitutional documents preceding the Constitution Act, 1982 that still have no official French version. I will use the texts that were proposed in 1990 by the Report of the French Language Constitutional Drafting Committee, which was assigned to prepare a draft French language version of certain constitutional documents pursuant to section 55 of the Constitution Act, 1982.
[12] The Northwest Territories Act calls an "ordinance" what the Legislative Assembly of the Territories refers to as an "act". The word "ordinance", of course, is the correct one, but in practice nothing hangs on the use of either word, neither of which is disallowed by the Parliament of Canada. I note that the Nunavut Act, which received royal assent in June 1993 (S.C. 1993, c. 28), uses the word "act" to refer to a statute adopted by the Legislature of Nunavut.
[8] Mr. Justice Décary went on to specify a goodly number of examples in the statutes of Canada whereby the northern territories are excluded from their operation by Parliament itself, in his paragraphs [24] through [29]. He wrote in paragraph [30], the following:
[30] These Acts very definitely establish that Parliament has fully exercised the authority conferred on it by section 4 of the Constitution Act, 1871 to "make provision for the administration, peace, order, and good government of any territory not for the time being included in any Province". It seems to me that Parliament has done whatever it could under the Constitution to give the Northwest Territories a status close but not equal to that of the provinces.
[31] The[se] Acts also remind us, simply by virtue of their existence, that if federal enactments are not to apply to the Territories they must say so directly, as in the case of the Official Languages Act, or indirectly, as through the application of section 35 of the Interpretation Act.
***
[33] I understand from section 30 that it establishes the same correlation, for the purposes of the application of the Charter, between the provinces and the Territories, that section 35 of the Interpretation Act establishes between the provinces and the Territories for the purposes of the application of federal enactments. This section must be read together with section 31, which states that "Nothing in this Charter extends the legislative powers of any body or authority." Thus, while the Territories are for some purposes tantamount to provinces, this is not because their legislative powers are extended by the Charter, and they cannot claim to be the equals of the provinces in terms of legislative powers.
[34] As I understand section 32 - which is headed by the title "Application of Charter" - its purpose is to ensure that all fields of legislative jurisdiction under the Constitution are covered by the Charter, irrespective of whether these powers are exercised by the federal government, the provincial governments or the governments of the Northwest Territories and Yukon Territory. I do not share the opinion of counsel for the franco-ténois that section 32 serves to dilute the scope of section 30. Section 32 simply says that the Charter applies to the areas of jurisdiction exercised by the Territories, which are attributed to the Parliament of Canada by the Constitution. In short, the Charter applied to all areas of jurisdiction, even those the exercise of which is delegated to the Territories by Parliament.
***
[36] The constitutional amendment procedure establishes beyond the shadow of a doubt not only that the Territories are not provinces but that the federal Parliament may not convert them to provinces without the consent of the provinces.
[9] In the Fédération Franco-Ténoise case, Décary, J.A. went on to deal with the status of the territories for the purpose of section 18 of the Federal Court Act. He referred to the definition of a "federal board, commission or other tribunal expressed in subsection 2(1) of this Court's statute, and discussed Re Fortier Arctic Ltd. and Liquor Control Board of Northwest Territories (supra), Re Johnston and Attorney General of Canada (1977) 72 D.L.R. (3d) 615, and Re Pfeiffer and Commissioner of Northwest Territories (supra). He wrote:
[48] These decisions are well-founded, in my opinion. The ministers and institutions of the Territories are not "federal boards, commissions or other tribunals" in regard to which the Federal Court may exercise a power of review.
The conclusion above expressed, in Mr. Justice Décary's paragraph [48], unanimously held as it was by the particular panel, is the finding necessary to determine the respondent's motion before this Court. Indeed Mr. Justice Décary's words in the Fédération Franco-Ténoise case amply reward a reader's careful consideration.
[10] This Court holds that the Federal Court lacks jurisdiction to hear and determine Francis Mazhero's motion for judicial review of the Yukon Teachers' Staff Relations board's decision by Marguerite-Marie Galipeau rendered on October 12, 2000. Jurisdiction for such judicial review resides in the Supreme Court of the Yukon Territory.
Judge
Date: 20010816
Docket: T-598-01
Ottawa, Ontario, August 16, 2001
Present: The Honourable Mr. Justice Muldoon
Between:
FRANCIS MAZHERO,
Applicant,
- and -
YUKON TEACHERS' STAFF RELATIONS BOARD,
DEBRA FENDRICK, MAVIS FISHER, MARGUERITE-MARIE GALIPEAU,
CHRIS GONNET, MONICA LEASK, PAUL NORDAHL, KEITH PARKKARI,
VALERIE STEHELIN and SIEDO TZOGOEFF,
Respondents.
O R D E R
UPON motion on behalf of the applicant pursuant to Rule 369 of the Federal Court Rules, 1998, for an Order from the Court that motion of the respondents Yukon Teachers' Staff Relations Board and Marguerite-Marie Galipeau (these Respondents) which they filed in the Federal Court - Trial Division on June 11, 2001 be dismissed with costs.
THIS COURT ORDERS THAT the motion of these respondents, filed on June 11, 2001, be and it is hereby allowed, with costs, and because the Federal Court lacks the jurisdiction to entertain and dispose of this case.
Judge