Docket: A-221-17
Citation: 2017 FCA 228
CORAM: TRUDEL J.A.
STRATAS J.A.
NEAR J.A.
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BETWEEN:
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JOHN MARK LEE
JR.
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Appellant
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and
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CORRECTIONAL SERVICE CANADA, PAROLE BOARD OF CANADA, PAROLE APPEAL
DIVISION and THE ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR ORDER
STRATAS J.A.
[1]
The respondents move for dismissal of this
appeal because it has no reasonable chance of success.
[2]
The appellant is an inmate in a federal
penitentiary. His notice of appeal raises only one ground. The appellant alleges
that the Federal Court “overlooked [his] Amended Judicial
Review application” and failed to consider it. As a result, “no decision in regard to the Amended Judicial Review
application” was made.
[3]
According to evidence filed by the respondents, the
Federal Court never had an amended notice of application before it. Thus, say
the respondents, the appellant’s only ground of appeal cannot succeed.
[4]
The respondents rely upon Rule 74 for the
summary dismissal of the appeal. Rule 74 allows this Court to order that “a document that is not filed in accordance with these Rules
or pursuant to an order of the Court or an Act of Parliament be removed from
the Court file.” The respondents do not identify an order of the Court,
an Act of Parliament or a Rule offended by the filing. Instead, the respondents
seek a summary dismissal of the appeal on the ground that it cannot possibly
succeed. Rule 74 does not support a dismissal on that basis alone.
[5]
Nevertheless, the case law of this Court shows
that summary dismissals of appeals in circumstances similar to these have been
allowed at this early stage: see, e.g., Lessard-Gauvin v. Canada
(Attorney General), 2013 FCA 147, 453 N.R. 380; Fotinov v. Royal Bank of
Canada, 2014 FCA 70. Neither of these cases identifies the authority that
permits this to happen. Further, the Federal Court Rules, SOR/98-106 do
not specifically authorize an appeal to be struck out at this early stage.
[6]
In my view, the authority for summary dismissal
of an appeal at this early stage is found in the Federal Courts’ plenary power
to manage their processes and proceedings: see, e.g., Canada (National
Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2014]
2 F.C.R. 557 at paras. 47-48 in the context of applications, but in principle equally
applicable here; see also Canada (National Revenue) v. RBC Life Insurance
Company, 2013 FCA 50, 443 N.R. 378 at para. 35; Pfizer Canada Inc. v.
Teva Canada Ltd., 2016 FCA 218, 141 C.P.R. (4th) 165 at para. 17; Philipos
v. Canada (Attorney General), 2016 FCA 79, 483 N.R. 328 at para. 10.
[7]
The Supreme Court has recognized that the
Federal Courts have these plenary powers. It has described them as being
analogous to the inherent powers of provincial superior courts to control their
own processes and proceedings. See Canada (Human Rights Commission) v.
Canadian Liberty Net, [1998] 1 S.C.R. 626, 224 N.R. 241 at paras. 35-36, the
most comprehensive Supreme Court case to date on the nature of the powers of
the Federal Courts, a case that remains foundational and authoritative.
[8]
The idea is that the Federal Courts’ plenary
powers emanate from their constitutional status as courts, not from any
particular legislative provision in the Federal Courts Act, R.S.C. 1985,
c. F-7 or the Federal Courts Rules. The Federal Courts are not just
ordinary agencies of government but rather part of the judicial branch within
the constitutional separation of powers. If courts are to be courts and to
fulfil their function as part of the judicial branch, they must have certain
plenary powers to manage their processes and proceedings.
[9]
Cases decided by the Supreme Court after Liberty
Net have alluded to these powers—in one case at the level of obiter in
a single paragraph, and in another case buried as an afterthought in a endnote:
see, respectively R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19 and Windsor
(City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617. Perhaps
because the treatment of the powers is brief, both cases fail to cite Liberty
Net. But both loosely suggest that the Federal Courts’ plenary powers are “necessarily incidental” to statutory powers already granted, rather than powers
stemming from the Federal Court’s status as courts within the judicial branch.
[10]
In fact, in terms of the
powers the Federal Courts have, Cunningham seems to place the Federal
Courts on the same footing as administrative tribunals and other administrative
functionaries throughout the government. But Cunningham is not the only
word on this point.
[11]
Again, there is Liberty
Net. And in a brief comment in another case, the Supreme Court seems to
have recognized the Federal Courts as superior courts established under the
federal power in the Constitution Act, 1867 to create federal courts, not
just as mere administrative functionaries: Charkaoui v. Canada (Citizenship
and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 at para. 136 (not cited
in Cunningham and Windsor); see also the clear text of section 4
of the Federal Courts Act.
[12]
In my view, the Supreme
Court’s holdings in Charkaoui and Liberty Net are unassailable. The
Federal Courts cannot be equated to administrative tribunals. As is suggested
in Liberty Net, the Federal Courts—like the Supreme Court, the
provincial courts (both superior and otherwise), the Tax Court and military
courts—are fully fledged courts within the judicial branch and, by virtue of
this, have all the plenary powers of courts to manage their processes and
proceedings.
[13]
It is to be hoped the next
time the Supreme Court has the occasion to discuss the powers of the Federal
Courts, it will confirm this position. After all, the Supreme Court and the
Federal Courts (through their predecessor, the Exchequer Court) are both
statutory courts under section 101 of the Constitution Act, 1867, born
at the same time from a single joint statute: Supreme and Exchequer Court
Act, S.C. 1875, c. 11. Thus, in terms of their plenary powers—i.e.,
their ability as courts to manage their processes and proceedings—the Supreme
Court and the Federal Courts must be seen as identical twins. In this respect,
one should not be treated as lesser than the other.
[14]
The plenary powers of the Federal Courts to
manage their processes and proceedings take their colour from contemporary
notions of the nature and purpose of proper proceedings in the Federal Courts.
Key here is the necessary and new litigation culture urged upon us by the
Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. The
Federal Courts are public property that many litigants with arguable cases need
to access on a timely basis: Canada v. Olumide, 2017 FCA 42.
[15]
From these principles, it follows that clearly
meritless proceedings—cases that are clearly doomed to fail—should be met with
the exercise of the Federal Courts’ plenary powers to manage their processes
and proceedings. They must not be allowed to continue. They must be stopped in
their tracks.
[16]
Turning to the motion for summary dismissal
before us, the respondents have filed an affidavit that appends as an exhibit
the printout of a “proceedings query” in the
Federal Court. A “proceedings query” identifies all
of the documents that were filed in the Federal Court. From this, we see that
there was no amended notice of application before the Federal Court nor was
there a motion to amend. There is no other admissible evidence suggesting the
contrary.
[17]
Thus, the appellant’s single ground of appeal
has no hope of success. Since there was neither an amended notice of
application before the Federal Court nor a motion to amend, the Federal Court
was under no obligation to deal with one.
[18]
Although the appellant did not appeal the merits
of the application for judicial review that the Federal Court dismissed, I wish
to say a few words about it by way of guidance.
[19]
The material before us is not clear and is
difficult to understand at times. But it seems that the appellant may have a
viable option open to him.
[20]
In the Federal Court, the appellant’s application
for judicial review challenged a decision of the Parole Board. The appellant
had appealed this decision to the Parole Board Appeal Division and also brought
a judicial review against it. The Appeal Division released its decision and
dismissed the appellant’s appeal from the Parole Board. The Federal Court
dismissed the judicial review of the Parole Board’s decision on the ground that
the Appeal Division was an adequate and alternative forum and so the decision
of the Appeal Division should be the focus of attack. On the material before
us, the appellant has not yet applied for judicial review of the Appeal
Division’s decision.
[21]
What seems to have happened is that the appellant
intended to amend his application for judicial review in the Federal Court in
order to challenge the decision of the Appeal Division that had just come out.
But, as the recorded entries show, the amendment, which he says was reduced to
writing, was not placed or was not properly placed before the Federal Court.
[22]
Even if the appellant had properly placed a
motion to amend before the Federal Court, the Federal Court was bound to reject
it. The Appeal Division’s decision had to be attacked by separate notice of
application supported by an evidentiary record pertaining to that decision and
a memorandum of fact and law; further, the respondent had every right to file
materials in response to the application.
[23]
From the material before me, I note two things.
First, the appellant says he had presented his “amendment”
challenging the Appeal Division’s decision to the Federal Court within the time
permitted for challenge: see Reply dated October 19, 2017, para. 6. Second, the
appellant’s clear intention seems to have been to challenge the Appeal
Division’s decision ever since it was made. The appellant has just chosen the
wrong way to launch his challenge.
[24]
If the appellant still wishes to challenge the
Appeal Division’s decision, he should bring an application for judicial review
of that decision in the Federal Court and bring a motion for an extension of
time for doing so. Motions for extensions of time are governed by a legal test.
A recent, fulsome expression of the test appears in Canada (Attorney
General) v. Larkman, 2012 FCA 204, 433 N.R. 184. I would encourage the
appellant to ensure that, to the extent possible, his written representations
on the motion are focused on that test and nothing else.
[25]
Therefore, for the foregoing reasons, I would
dismiss the appeal.
“David Stratas”
“I agree
Johanne Trudel
J.A.”
“I agree
D.G. Near J.A.”
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