Date: 20000613
Docket: A-66-99
A-274-99
A-276-99
| CORAM: ISAAC, J.A., |
ROBERTSON, J.A.,
SHARLOW, J.A.
BETWEEN:
CONSTANCE CLARA FOGAL and
THE DEFENCE OF CANADIAN LIBERTY
COMMITTEE/ LE COMITE DE LA
LIBERTE CANADIENNE
Appellants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
SECRETARY OF STATE, THE MINISTER OF EXTERNAL AFFAIRS,
THE DEPARTMENT OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE,
THE RIGHT OF HONOURABLE SERGIO MARCHI,
THE RIGHT HONOURABLE JEAN CHRÉTIEN and
OTHER MEMBERS OF CABINET
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered orally from the Bench at Vancouver, B.C.
on June 12, 2000)
ISAAC, J.A.
[1] These three appeals (A-66-99, A-274-99 and A-276-99) arise out of an application which the appellants filed in the Trial Division on 23 April, 1998. In it they sought "declaratory relief and ancillary, prerogative and injunctive relief, ... from the signature, ratification and/or implementation of the Multilateral Agreement on Investment (hereinafter referred to as "MAI") which treaty has or is to receive purported execution by the respondent under purported Crown prerogative on purported behalf of Canada through the organization for Economic Co-operation and Development (hereinafter referred to as "OECD") and the applicants will be making application for the following relief " which are specified with particularity in the notice of application.
[2] The appellants also seek $1 million in damages pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedom (the "Charter") to be paid to the Constitutional Challenge Fund for breaches of the Charter and the Constitution Acts, 1867 and 1982, their solicitor-client costs and such further and other relief as the Crown deems fit.
[3] For present purposes, the appellants" application came before Dubé J. sitting as Rota judge in Vancouver. It was accompanied by a motion that the Rota judge should recuse himself on a number of grounds, the principal among them being that he had been a cabinet minister at the same time as the present Prime Minister of Canada almost three decades ago and had remained friends with the Prime Minister during that time.
[4] In our respectful view, the Rota judge quite properly refused to recuse himself. He dismissed the motion with costs to the respondents in any event of the cause and adjourned the hearing of the appellants" application to be heard at a future date.
[5] The application then came on for hearing before McKeown J. at the same time as a motion by the respondents to dismiss the application for mootness, because the negotiations leading to the MAI treaty had in the meantime ended without any treaty having been signed. The motions judge granted the respondent"s motion to strike the appellants" application for judicial review on the ground of mootness and refused to exercise his discretion to proceed despite mootness, for the reasons set out by Sopinka J. in Borowski v. Attorney General of Canada1.
[6] In addition, the appellants had challenged the constitutional validity of sections 37, 38 and 39 of the Canada Evidence Act2, which the respondent had invoked in relation to matters arising on the appellants" application. McKeown J. found that the constitutional issues were also moot since the factual substratum had disappeared upon the termination of the OECD negotiations without a treaty. In this respect, he also refused to exercise his discretion to hear moot issues or to hear those issues which, although not moot, were academic, abstract or hypothetical.
[7] At the commencement of the hearing of this appeal, counsel for the appellants requested, with no objection from counsel of the respondents, that the three appeals be consolidated and heard at the same time, since they arose out of the same set of circumstances. We granted the request.
[8] Before us, the appellants attacked both the order of Dubé J. and the judgments of McKeown J. on several grounds, including the ground that McKeown J. was wrong in awarding costs against the appellants.
[9] We did not call upon the Crown to respond to any of the arguments made by the appellants in any of the appeals except on the issue of costs. We are all of the view that of the arguments advanced by the appellants, including those relating to costs, are wholly devoid of merit; that the learned judges made no error in principle and took into account all relevant considerations. Accordingly, we are of the view that the appeals should be dismissed with one set of costs.
[10] A copy of these reasons shall be filed in each of files A-66-99 and A-274-99 and A-276-99 and be considered dispositive of the appeal in each.
(Sgd.) "Julius A. Isaac"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-66-99, A-274-99, A-276-99
| STYLE OF CAUSE: Fogal et al v. Her Majesty the Queen et al |
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 12, 2000
REASONS FOR JUDGMENT BY ISAAC, J.A.
| CONCURRED IN BY: Robertson, J.A. and Sharlow, J.A. |
DATED: June 12, 2000
APPEARANCES:
Mr. Rocco Galati
Mr. Harry Rankin
Mr. Manuel Azevedo FOR THE APPELLANTS
Mr. David Sgayias FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Rocco Galati, Toronto, Ontario
Mr. Harry Rankin, Vancouver, B.C.
Mr. Manuel Azevedo, Vancouver, B.C. FOR THE APPELLANTS
Morris Rosenberg
Ottawa, Ontario FOR THE RESPONDENT
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