Date: 20000710
Docket: T-326-98
BETWEEN:
TERRY C. WHEATON,
Applicant,
- and -
CANADA POST CORPORATION,
CHAIRMAN OF THE BOARD,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons arise out of the Respondent"s successful motion to strike out the notice of application by reason of want of jurisdiction under section 41 of the Privacy Act , R.S.C. 1985, c. P-21.
BACKGROUND
[2] This application was commenced in February of 1998, by an originating notice of motion which sought:
| 1. All records of correspondence between Canada Post Corporation and the RCMP. |
| 2. All records of correspondence between Anne Felile of Corporate Security (Canada Post) at 604-_________, including email, to the RCMP and Canada Post officials. |
| 3. Any other pertinent information that is related to this action. |
without, on its face, background material to place the application for review in any context. On 31 January 2000, at a case management conference, I allowed Mr. Wheaton 14 days within which to serve and file an amended originating document.
[3] On 14 February 2000 Mr. Wheaton filed an amended notice of application, seeking the same production of material from Canada Post Corporation ("Canada Post") and attaching, by way of background information, a somewhat rambling letter covering 1993 and 1994 dealings with Human Resources Development Canada on the east coast and concluding with a reference to Human Resources Development Canada"s recent accounting embarrassment and advice that "at least $1,000,000" to his knowledge, went to Bermuda by way of the Bahamas. Buried in the middle of this letter is what seems to be the crux of the application, a request for Canada Post"s records as to a priority post letter, part of which was delivered to Mr. Wheaton at the RCMP office in Prince Rupert:
| I returned to Vancouver in early July, 1994 and looked for a job. I had my mother and a friend collecting my mail and sending it to Vancouver. My mother sent a large manila envelope in July and another one in August. Neither package arrived by Canada Post. A friend sent one letter in August and it to was taken by Canada Post. In Prince Rupert a letter was sent to me by a friend and co-worker, by Priority Post envelope. The Envelope did not arrive. Instead I received a phone call from the Prince Rupert RCMP to come to their office and pick up a cheque that they had at their front desk. I was contacted by the sender of the envelope and told that the RCMP had called her twice and the second interview was serious. She asked if I was in trouble with the Police because their questions were probing and suggested a criminal behaviour of some sort. The officer left my co-worker with the impression that he didn"t believe a word she said and wanted a better explanation of her note to me and the reason for sending me a cheque for $150.00. She again explained her letter. My co-worker later contacted my employer and he later raised this issue with me. I must express my concern for my missing mail and that I was being investigated by the RCMP probably at the request of HRDC. Information provided by Ms. Anne Felile of Corporate Security states that the Priority Post envelope did not leave Vancouver. And she provided me with a way to confirm this for myself. Which of course I did. |
[4] Canada Post now seeks to strike out the application as disclosing no cause of action over which the Court has jurisdiction or, alternatively, as disclosing no cause of action. I need only consider the jurisdiction aspect which relies upon both the affidavit of Richard Sharp, Corporate Privacy Coordinator for Canada Post Corporation and the affidavit of Mr. Wheaton, sworn 17 April 2000.
[5] The motion, returnable 12 June 2000, was served upon Mr. Wheaton on the 23rd of May. The hearing of the motion itself took place as part of a case management conference at 8:30 a.m. on the 12 of June. At that time counsel for Canada Post presented written material and documents together with oral argument. Mr. Wheaton, who acts for himself, spoke about his dealings with the RCMP and about being held by them, at gun point, in Prince Rupert, however his argument was not responsive to the Canada Post motion. After further discussion I allowed Mr. Wheaton 14 days within which to serve and file written representations, with a similar time within which Canada Post might respond. At that time I also set a schedule for cross-examination on affidavits and a future case management conference, in the event that the Canada Post"s motion to strike out failed.
[6] I have now reviewed the Canada Post written material and my notes of Canada Post"s oral argument, Mr. Wheaton"s oral argument and his written argument and the Canada Post response. The application for review is struck out without leave to amend. I will now consider this in more detail.
CONSIDERATION OF THE POSITION OF CANADA POST
[7] The remedy of Canada Post, that of striking out the application, is founded upon a passage written by Mr. Justice of Appeal Strayer in David Bull Laboratories v. Pharmacia Inc. [1995] 1 F.C. 588, at page 600 where he comments, to the effect, that an application generally ought not to be struck out, but should proceed to trial. However, he then went on:
| 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 bereft of any possibility of success. 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. |
The test, in this instance, is whether Mr. Wheaton"s application "is so clearly improper as to be bereft of any possibility of success.". The Federal Court has followed this principle in many instances, for example in Labbé v. Létourneau (1997), 128 F.T.R. 291 at 300 where Mr. Justice MacKay wrote:
| [25] An application for judicial review ordinarily is considered on its merits in an expeditious process and it is unusual to strike out an originating motion for such review without hearing the merits. Nevertheless, it is clear that the court will dismiss an originating motion in a summary manner where the motion is without any possibility of success. (Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. [1995] 1 F.C. 588; 176 N.R. 48 (F.C.A.); Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127 (T.D.); Robinson v. Canada (Minister of Justice), [1996] F.C.J. No. 1007 (T.D.); Chandran et al. v. Minister of Employment and Immigration et al. (1995), 91 F.T.R. 90 (T.D. Protho.). |
[8] The Federal Court has, from time to time, struck out an application for judicial review where the Court did not have the jurisdiction to hear the application: see for example Garcia v. Canada (1997), 129 F.T.R. 174 and, here most pertinent, Gauthier v. Canada (1993), 58 F.T.R. 161, in which an application for review of a decision under the Privacy Act was struck out because there had been no refusal of access to personal information. In Gauthier Madame Justice Reed referred to X. v. Canada (Minister of National Defence) (1991), 41 F.T.R. 73 in which Mr. Justice Strayer, as he then was, dealt with the respondent"s contention that the only role of the Federal Court, under section 41 of the Access to Information Act , was to hear applications by those who had actually been refused access. In that instance, there had been no refusal of access. Mr. Justice Strayer noted that:
| The Court has power to entertain an application by a private party in support of access only under s. 41 and under that section only by a "person who has been refused access to a record...". [page 76] |
Mr. Justice Strayer went on to set out the rationale for the limited scope of review:
| It is amply clear from looking at the Act as a whole that not every decision taken thereunder by heads of institutions is subject to judicial review. This is readily understandable when one considers that prior to this statute there was no common law or statutory right of access to records held by the Government of Canada and no right of action in respect thereto [loc.cit.] |
He went on to again note both the narrow scope of the new jurisdiction given to the Federal Court under section 41 of the Act and that there must be a refusal of access, not mere delay, otherwise the Court had no remedial power and specifically, referring to sections 41, 42, 44, 49 and 50 of the Access to Information Act that:
| Refusal of access is a condition precedent to an application under those sections and the only matter to be remedied by the Court where it finds for the applicant. [p. 77] |
In X. v. Canada Mr. Justice Strayer struck out the application as frivolous and vexatious, there being no jurisdiction and went on to castigate the applicant for bringing the proceeding when there had been no failure to disclose.
[9] X. v. Canada dealt with the Access to Information Act. However, in Gauthier (supra) Madame Justice Reed applied that decision to the Privacy Act noting that the position of the respondent, who argued that the proceeding ought to be struck out because there had been no refusal of access to personal information, seemed unassailable.
[10] I considered both X. v. Canada and Gauthier v. Canada in Chandran v. Minister of Employment and Immigration (1995), 91 F.T.R. 90 in the context of an application where documents had been disclosed. In Chandran I therefore struck out the application, which was under the Privacy Act, the same legislation under which Mr. Wheaton now requests production from Canada Post.
[11] There is a parallel between Mr. Wheaton"s case and Chandran in that in neither do the applications for review allege a refusal to disclose documents. Rather, to quote a passage in Mr. Wheaton"s letter attached to his amended notice of application, he seeks to ensure "... that Canada Post explains to me why the RCMP have my mail and not just one piece of mail but at least four.". We now come to the crux of the argument of Canada Post.
[12] Certainly Mr. Wheaton, in requesting documents from Canada Post, does not allege a lack of disclosure. In an appropriate instance, it might be open, by further amendment, to allege a refusal and thus bring the matter within the jurisdiction of the Court under section 41 of the Privacy Act. However, Canada Post says that it has produced all the records covered by the request to the Applicant, with no claims of exemption whatsoever. This is set out in Mr. Sharp"s affidavit, which is uncontradicted. More important, this assertion was reviewed by the Privacy Commissioner, whose Director of Investigations, Gerald Neary, wrote to Mr. Wheaton, 19 November 1997, to say, among other things, that Canada Post"s initial response to Mr. Wheaton"s request had been inappropriate:
| However, following discussions between my officials and Canada Post officials, Canada Post sent you a letter on September 19, 1997, confirming that it has no records regarding a search and seizure order in its files and that in fact search warrants of this kind are illegal under the Canada Post Corporation Act. |
| Consequently, I am satisfied that you have now received an adequate response concerning the existence of a search and seizure order related to you and that you have receive all the information in the Customer/Claims Service bank that relates to you. |
This assertion, that there has been an adequate response and full disclosure, is unchallenged.
[13] Canada Post also refers to a 19 September 1997 letter that it received from the Privacy Commissioner as follows:
| The Privacy Commissioner is satisfied that Canada Post has now provided the complainant with a clearer and more specific response to his request and he is also satisfied that the complainant received all the information in the Customer/Claims Service bank that relates to him. He has therefore concluded that the complainant has not been denied a right of access to personal information in this instance and that these complaints are not well founded. |
This response from the Privacy Commissioner to Canada Post is part of what is set out in the affidavit of Richard Sharp, Canada Post"s Corporate Privacy Coordinator. There was no cross-examination on the affidavit. Nor, as we shall see, any on point response from Mr. Wheaton.
CONSIDERATION OF THE POSITION OF MR. WHEATON
[14] In his oral response to the motion, 12 June 2000, at the case management conference which, in this instance, took place in a room open to the public, Mr. Wheaton went over some factual background including what the Prince Rupert RCMP had said to him, various taped conversations, the involvement of Human Resources Canada in a 1993 or 1994 job creation context and the view that he had been treated unfairly, including that he had been held by the RCMP at gun point. After some further discussion Mr. Wheaton agreed to serve and file written representations.
[15] Mr. Wheaton"s response, filed 26 June 2000, sets out, among other things, that the Federal Court of Canada has the jurisdiction to hear an application for a writ of mandamus and to support that contention refers to taped telephone conversation of 30 May 2000 with Mr. Bedley of the Privacy Commissioner"s office. Mr. Bedley confirmed that the Federal Court had jurisdiction to hear Mr. Wheaton"s application and to give relief by way of a writ of mandamus . Mr. Wheaton also refers to a 25 September 1995 telephone conversation with an Anne Felie [sic?] of Canada Post, a long an involved conversation involving the non-delivery of a priority post letter and conjecture as to the role played in the whole affair by the RCMP. The first of these telephone conversations, the view of someone at the Privacy Commissioner"s office in Ottawa, as to the Court"s jurisdiction, while well-meaning, is completely irrelevant. The second, the transcript of the conversation with Anne Felie, has no bearing whatsoever on the issue of jurisdiction.
CONCLUSION
[16] The case law is clear that in order to come within section 41 of the Privacy Act, which is the only grant of jurisdiction to the Court under that legislation, Mr. Wheaton must establish a refusal of access to personal information. Not only has Mr. Wheaton neglected to plead a refusal of access, but faced with sound evidence that he has been provided with all of the material which Canada Post has, he has not in anyway refuted that evidence. All of this constitutes exceptional and special circumstances for the Court can only hear Mr. Wheaton"s application for judicial review if he brings himself within section 41 of the Privacy Act, which he has failed to do for: as I have said, section 41 of the Privacy Act requires that there in fact be a refusal of access to personal information. A refusal of access is condition precedent to an application under this section. This application by Mr. Wheaton is one which is bereft of any possibility of success. The application for review is struck out.
[17] I must also consider whether Mr. Wheaton"s application is capable of being salvaged by an amendment. Here I ought to look at the whole of the pleading, reading it both in context and with a generous eye. I ought not to strike out, without leave to amend, if there is a scintilla of a legitimate cause of action: see for example McMillan v. Canada (1996), 108 F.T.R. 32 at 39, where Associate Chief Justice Jerome made the comment at page 39 that "... there must not be a scintilla of legitimate cause of action for a claim to be struck out without leave to amend.", referring to Kiely v. Canada (1987), 10 F.T.R. 10.
[18] In the present instance, there being un-refuted evidence that Mr. Wheaton has received all of the relevant material held by Canada Post Corporation, there is not a scintilla of a cause of action left. I now turn to costs.
[19] Had the futility of this application been an argument sprung on Mr. Wheaton only at the time of the Canada Post Corporation motion to strike out, I would hesitate in awarding any substantial costs. However, Mr. Wheaton knew, at least as early as November of 1997, well before he commenced the present action, that the Privacy Commission of Canada was satisfied that Canada Post had no further undisclosed material. It is unreasonable for Mr. Wheaton to have thought that he might obtain some relief from the Court when there had been no failure to disclose. To initiate and pursue this application, in the face of advice from the Privacy Commissioner as to full production and without any evidence, be it by cross-examination on affidavits or otherwise, to indicate that there might be some documents hidden by Canada Post and in the face of the clear requirement of a refusal in section 41 of the Privacy Act, is frivolous, vexatious and abusive. The Respondent shall thus have lump sum costs of this proceeding, which has been unnecessarily complicated by Mr. Wheaton, both through the nature of the material which he has filed and in the motions which have been required.
[20] In order to avoid a protracted taxation, I have considered Tariff B and particularly the mid-range of Column IV. Costs and disbursements are set in the lump sum of $3,000, payable forthwith.
(Sgd.) "John A. Hargrave"
Prothonotary
July 10, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-326-98
STYLE OF CAUSE: TERRY C. WHEATON
v.
| CANADA POST CORPORATION, CHAIRMAN OF THE BOARD |
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: June 12, 2000
REASONS FOR ORDER OF HARGRAVE J.
DATED: July 10, 2000
APPEARANCES:
Mr. Terry Wheaton PLAINTIFF"S OWN BEHALF
Mr. Scott Dawson FOR DEFENDANT
SOLICITORS OF RECORD:
Farris, Vaughan, Wills & Murphy
Vancouver, BC FOR DEFENDANT