Date: 20010122
Docket: T-1535-00
BETWEEN:
KEYVAN NOURHAGHIGHI
Applicant
- and -
| CANADIAN HUMAN RIGHTS COMMISSION, MERVIN WITTER, BOB FAGAN; BELL CANADA, SPRINIT CANADA, WENNIFER WILSON, THE CANADIAN RADIO-TELECOMMUNICATIONS COMMISSION; ROBERT BIRGENEAU, THE UNIVERSITY OF TORONTO; ROBERT PEARCE, THE BANK OF MONTREAL, THE CANADIAN IMERIRAL BANK OF COMMERCE, DENNIS OSBORNE, BANK OF NOVA SCOTIA, THE MBNA CANADA, TORONTO DOMINION BANK, NICOLE BARBE, OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS CANADA; ROYAL CANADIAN MOUNTED POLICE; RICHARD SCHOBESBERGER, TINA SOARES, THE TRANSPORT CANADA; BRUCE PRESTON, MICHEL LORTIE, ORLAND CARRYL, ANNE EDGE, ANNE ROLAND and THE ATTORNEY OF CANADA; |
Respondents
REASONS FOR ORDERS
GIBSON J.:
INTRODUCTION
[1] These reasons arise out of a hearing on Tuesday, the 31st of October, 2000, continued on Friday, the 12th of January, 2001, at which the Court had for consideration eleven (11) motions on this application which is at least in part for relief described in subsection 18(1) of the Federal Court Act1 and which must, therefore, be considered to be an application for judicial review made under section 18.1 of that Act, if it is to be considered to have been properly brought.
THE UNDERLYING APPLICATION FOR JUDICIAL REVIEW
[2] By application filed the 18th of August, 2000, the applicant seeks reliefs in the following terms:
| The applicant makes application to this Honourable Court for the issuance the Writ of Mandamus to compel the respondents to follow the Constitution Law and the Canadian Human Rights Act (" Act") and allow his due process of law, in accordance to the following Writs: |
| a. The respondent, the Canadian Human Rights Commission ("Commission") be required to investigate the applicant's complaints against the respondents, and appoint three members to the Human Right Tribunal ("Tribunal") into the applicant's complaints; that respondents be required to reply by filing affidavits that directly address the issues in the complaints; and the Tribunal summon witnesses to provide written evidence on oath pursuant to provision Sections 40.(1), 49.(1)(2) 50.(1)(2), 66 of the Act. |
| b. The Commission be required to calculate the time against all respondents as a group, since the cause of action raised, on the principle of continuous developing torts; or in accordance to the similar Order that the applicant obtained from the Ontario Court to not be prejudiced for passage of time due to the special condition that exists. |
| c. The respondents cease and desist discriminatory practices, nuisances, obstructionism, harassments, defective and the non standard services and ambiguous replies, in order that the same or a similar practices not occur in future; make available to the applicant such rights, opportunity and privileges were denied as the result of practices, compensations be awarded with all additional cost of obtaining alternative services and all expenses incurred by the applicant as a result of discriminatory practices, pursuant to provision of Section 53.(2)(a)(b)(c)(d)(3) of the Act. |
| d. His costs of this application. |
[3] The applicant recites the grounds for his application, the material that will be used to support his application, a claim for additional relief and his description of the material requested from the Canadian Human Rights Commission in the following terms:
| The grounds for application are: |
| 1. There is a reasonable ground of bias against the applicant where he was plaintiff in two actions in this Court against the Commission, for torts raised out of rejection of his complaints. |
| 2. The applicant honestly believes that the respondents are acting in concert to inhabit his ability to seek and obtain justice, have healthy business and free of obstruction communications, and has been wronged him in a number of ways. He is very frustrated at not having yet gaining an opportunity to have his grievances fully heard, and to have decision rendered on their merits. |
| 3. The respondents with the discriminatory practices denying the applicant's rights of access to the standards of services that are customarily available to the general public, and by acting in concert and repeatedly violated Section 5, 13 of the Canadian Human Rights Act by rendering the non standard services, defects and errors in the services, denial and harassments in providing the services; maliciously and intentionally defected, erred, and denial of services; planed and planted defected, erred, and denial of services, abuse of authorities and office for certain objects in rendering defected, erred, and denial of services; contempt and insulting nuisances in rendering of the said Investigations, the Communications, the Internet, the Banks and the Court's Services. |
| 4. The respondents, Schobesgerger, Soraes and the Transport Canada are accused of covering up the crimes committed against the Airline Transport Pilot License written examination and obstructionism and discriminatory practices in the process of the applicant's aviation licenses. The respondents are acting in concert to involve the applicant with continuous insulating nuisances that he could not concentrate on proper perusing his claims against the respondents. |
| 5. The applicant has suffered the considerable amounts of times, energies and nerves, special and general damages in last Eight years to remind to the respondents his rights to allow the professional and standards services be rendered to him, that at all material times the respondents denied with discriminatory practices, high-handed, callous and arrogant attitudes. He was assaulted and tortured numerous times by the police that suffered disabilities. He was continuously targeted with the malicious prosecutions where the Provincial and Federal Governments get involved; he was successful to obtain Wilkins Order to not be prejudiced with passages of time for all his actions in the Ontario Courts, till condition allows the large number of defendants stand before the trial tribunal for all felonies committed against the applicant. |
| 6. The Commission, repeatedly, is refusing to file and investigated the applicant's complaints against the respondents, contrary to Sections 39, 40.(1) of the Act that instructed any individual having reasonable grounds believing that that a group is engaging or has engaged in a discriminatory practice may file a complaint with the Commission. |
| 7. The Commission's correspondences contain distractive facts, ambiguous, denial and misrepresentation to cover up the respondents' wrongdoing; and acting improperly that encouraged the respondents to increase their discriminatory practices against the applicant, that the obstructions in access to the public offices' services have been caused serious damages and prejudiced to the applicant and numerous complaints and actions were made against Government and its parties in this Court and ample documents indicate the Government has motive to allow wrongs be continued against the applicant and his single parent family. |
| 8. That the applicant, being otherwise remediless, is entitled to a writ of mandamus, requiring and compelling the Commission Respondents to comply with his statutory duty to "take Care that the Laws be faithfully executed," as mandated under the Canadian Human Rights Act; R.S., c. 1985, c. H-6; c.31 (1st Supp.) and c.32 (2nd Supp.), January 1989; Sections 1, 6.(3)(b), 7, 12. 15 and 24.(1) of the Canadian Charter of Rights and Freedoms; and the Section 18.1(1)(a)(b) of the Federal Court Act, Rules 317(1)(2) the Federal Court Rules contemplated and all other related Codes, Acts, Rules and the Procedures with reference to a particular respondent. |
| This application will be supported by the following materials: |
| 1. Affidavit of Keyvan Nourhaghighi and all documentary exhibits 2. The applicant's actions against the Crown, and the Crown's application against him 3. The Judgments against a number of respondents and their parties, transcripts of Trials Proceedings against their parties who found all liable, and medical evidences. 4. Such other documents that lead the justice. |
| That this court grant such other and further relief as is just and equitable. The applicant request the Canadian Human Rights Commission send a certified copy of the following material that is not in the possession of the applicant but is in the possession of the tribunal to the applicant and to the Registry; all applicant's files, since 1993. |
| (Throughout in quoting from Mr. Nourhaghighi's documentation, I have endeavoured to faithfully reproduce that documentation.) |
[4] The respondents, apart from the Attorney General of Canada and the Canadian Human Rights Commission (the "Commission") itself, are apparently persons, corporations and other entities against whom the Commission has, over the years, refused to investigate complaints made against them, by the applicant.
THE MOTIONS BEFORE THE COURT
[5] As earlier indicated, the Court had before it eleven (11) motions, 3 by the applicant who was self represented, and 8 by various respondents, all represented by counsel. The motions, in the order in which they were considered by the Court on the 12th of January, 2001, can be described as follows:
Motion 1: a motion by the applicant seeking the following reliefs:
| (a) 1 - An Order under that Giles Order be set aside and the respondent, Sprint Canada's Notice of Appearance be validated from August 31, 2000 that was filed. |
| 2 - An Order under that the Order made on September 18, 2000 be set aside and the respondents, Richard Schobesberger, Tina Soares, Anne Edge and Anne Roland's the Notice of Appearance be returned to their solicitor. |
| 3 - An Order under that the motions brought by the respondent, the Toronto-Dominiom Bank, Dennis Osborne, Robert Birgeneau and the University of Toronto be dismissed. |
| IN THE ALTERNATIVE |
| I. An Order under the Applicant does not prejudiced for the errors that committed by the judiciary and the respondents in the court process till date of hearing of this motion. |
| II. An Order under that the Applicant does not prejudiced for the judiciary errors and the respondents and their solicitor professional negligence and the Application be heard in accordance to the timetable set in the Federal Court Rules, 1998 from its originating date August 18, 2000. |
| (b) 1 - An Order under that the issue of costs fully and clearly be determined in accordance to the customary and standard of conducts, when a single party sued several parties. |
| 2 - His Costs on the same amount that if he be obligated to pay to the respondents. |
Motion 2: a motion by the applicant seeking the following reliefs and based upon the following grounds:
| THE MOTION IS FOR: |
| a. An Order for Change of Venue from the Ontario Region of Federal Court of Canada. |
| b. An Order under that no administrative and judicial decision be made by hostile decisions makers of the Court, in the Ontario region. |
| c. An Order under that all administrative and judicial decisions made by the hostile decisions makers Court, in the Ontario Region be set aside including two malicious Judgments made by Giles ASP and an order for the Crown on September 18, 2000. His Costs. |
| THE GROUND OF THIS MOTION ARE: |
| 1. That there are sufficient evidence of bias and hostility toward the Applicant by the administrators, administration and judiciary of the Court, in the Ontario region and City of Toronto which constitute the Instructional Bias and Conflict of Interests. |
| 2. That since August 18, 2000, there are ample evidence of sever retaliations bias, hostility, arrests, assaults, conspiracies, thefts, harassments, chasing and other felonies and misdemeanors by the Court's Clerks, Managers, Judges, Securities; and the Court's Building-Canada Life Securities, the Court's Metro Toronto Police 52 Division Officers, the City of Toronto-Mayor Lastman is prosecuted by the Applicant for dishonest conduct Enforcement Officers, that made impossible the justice be able to be served independently and impartially at the City of Toronto. |
| 3. That on or about October 16-20, 2000, Giles ASP abused the judiciary power to put the malicious slanderous accusation against the Applicant in his Order that the Applicant's legal action against him for torts was abusive toward the judiciary, with intend to poison the mind of the judiciary by improper influences for benefits of the Respondents. |
| 4. That Giles ASP erred on law that the Crown Liability Act is abusive law and enforcement of that for torts raised by a wrongdoer servant constitute an abusive act. |
| 5. That Giles ASP erred in conflict of interest law in making a decision in the applicant proceeding when he was named defendant in his action, and he was aware of fact. |
| 6. That Giles ASP erred in law and fact that the Applicant would not be prejudice by allowing irregular motion brought by the respondent, the Toronto-Dominion Bank. |
| 7. That on September 1, 2000, Mr. Giles ASP, illegally, made Order for the Contemptor, Kate Broer, when she was violating the Conflict of Interest Law by creating confusion in whole applicant's proceeding. |
| 8. That the Ontario Region-Toronto, maliciously, refused to forward the Giles orders dated September 1, and or about October 16, to the applicant, interference with process of September 18 by making an illegal Order for several government servants. |
Motion 3: a motion on behalf of the respondents, as described in the motion, not necessarily conforming to their description in the style of cause, Nicole Barbe, the Superintendent of Financial Institutions Canada, the Commissioner of the Royal Canadian Mounted Police, Richard Shobesberger, Tina Soares, The Minister of Transport, Bruce Preston, Michel Lortie, Roland Carryl, Anne Edge, Anne Roland and the Attorney General of Canada for an Order dismissing the application as against them, without leave to amend, and for costs on a solicitor-client basis;
Motion 4: a motion on behalf of the respondents Robert Birgeneau, the University of Toronto, Dennis Osborne and Bank of Nova Scotia for an order dismissing the application as against them, without leave to amend, and for costs on a solicitor-client basis;
Motion 5: a motion on behalf of the respondents The MBNA Canada, stated to be properly known as MBNA Canada Bank, for an order striking the application as against it, without leave to amend, for costs of the motion on a solicitor and client basis and further and other relief as to the Court may seem just;
Motion 6: a motion on behalf of the respondent Bell Canada for an order dismissing the application as against it, without leave to amend, and for costs;
Motion 7: a motion on behalf of the respondent the Toronto-Dominion Bank, for an order dismissing the application as against it, without leave to amend, and for costs on a solicitor-client basis;
Motion 8: a motion on behalf of the respondents Canadian Human Rights Commission, Mervin Witter and Bob Fagan for an order dismissing the application as against them, without leave to amend, and for costs on a solicitor-client basis;
Motion 9: a motion on behalf of the respondent Bank of Montreal, noted to be improperly named as The Bank of Montreal, and, in the event that Robert Pearce and Sprint Canada Inc., once again noted to be improperly identified as Sprint Canada, have standing, on behalf of those two respondents as well, for an order dismissing the application as against those respondents, without leave to amend, dismissing the applicant's motion hereinafter described as Motion 11, or, in the alternative, for security in the sum of $30,000. to be paid as a condition of proceeding with the application and Motion 11, and, in any event, for costs on a solicitor-client basis and further and other relief as to the Court seems just;
Motion 10: a motion on behalf of the respondent Canadian Imperial Bank of Commerce for an order dismissing the application as against it, without leave to amend, and for costs on a solicitor-client basis; and
Motion 11: a motion by the applicant for an order that five counsel, representing certain of the respondents "...be require[d] to show cause for contempt". The grounds for Motion 11 are recited in the motion in the following terms:
| THE GROUND OF THIS MOTION ARE: |
| 1. That defendants for contempt have violated the codes of professional conduct, acted in concert to disobey order of the Court, in such a way as to interfere with the orderly administration of justice impair the authority and dignity of the Court; |
| 2. That Borden Lander Hervais LLP-(Borden and Elliot) who was accused of theft of the Applicant's documents, has committed theft of evidence before this Court which contains in the Applicant's Affidavit, that he provided on his Affidavit sworn on Sept 18, 2000; |
| 3. That Jaworski, Hamilton, Armstrong and Weisz, in a concert act and pursuant to an agreement have omitted the Applicant's Affidavit sworn of September 18, 2000, on the material filed by them in the Court, with intent to mislead and obstruct the justice; |
| 4. That Weisz, maliciously, acted in accordance to calculated objects to obstruct justice and confuse the process, by all kinds of harassing correspondences, personal law firm retaliations where its partner, Stephenson was accused of in another case; |
| 5. That Weisz, Jaworski, Hamilton are disobeying Giles Order made on Sept 1, 2000 who instructed the originating notice must be served in person to the party; |
| 6. That Jaworski and Hamilton have brought motions in the names of the respondents who have not filed notice of appearance and failed to serve in person their appearance; |
| 7. That Broer misrepresented two corporations, Sprint Canada and the Bank of Montreal and maliciously omitted Respondent Robert Pearce from record. Broer, with improper influences has maliciously abused the process and was successful to get a judgment on September 1, 2000 where Order does not refer to actual, cause for Broer's withdrawal, Findely created fabricating document to cover-up scandal after it discovered. |
| 8. That Broer and Jaworski had irregular conduct with the administrators, and forwarded to requests to the judiciary, without any kind of motions, and have obtained two contradictory orders that have caused confusion for the judiciary; |
| 9. As the result of the outrageous and dishonest conducts of defendants for contempt the main stream of the Applicant, URGENT, Application is obstructed with ample malicious vexatious materials, to delay the court process for which they must show cause for the Criminal Contempt in the Face of Court and the Civil Contempt. |
[6] As can be seen from the foregoing, Motions 3 through 10 are substantially similar on behalf of different respondents on the application for judicial review. Motion 3 was argued at some length before me on the 31st of October, 2000 by counsel on behalf of the applicants on that motion and by Mr. Nourhaghighi. Following Mr. Nourhaghighi's argument, I expressed concern to him that he had not identified any substantive relief requested on the application for judicial review, that might be considered to be within the jurisdiction of this Court on his application, as against respondents other than the Canadian Human Rights Commission. I requested that he file written submissions in this regard and that counsel on Motion 3 file responding submissions following which the hearing would be resumed. In response to my request, Mr. Nourhaghighi filed further written submissions on the 10th of November and on the 23rd of November. Counsel for the applicants on Motion 3 filed a reply. In the result, after consultation by the Court with Mr. Nourhaghighi and all counsel, hearing of motions was scheduled to resume before me on the 12th of January, 2001. Shortly before that date, on the 10th of January, 2001, Mr. Nourhaghighi filed further written submissions indicated to be a reply to Motion 10, but in fact much more broadly applicable, at least as to the authorities appended to the reply, to Motions 3 through 10.
CONSIDERATION AND ANALYSIS
[7] At the opening of the hearing on the 12th of January, 2001, I indicated the order in which the Court would hear the various motions before it, that being the order in which they are listed in these reasons. I further indicated that, following a review of the materials before me, I was satisfied that the application for judicial review giving rise to the 11 motions was in fact a relatively straight-forward application for judicial review of a decision or decisions of the Canadian Human Rights Commission to refuse to conduct investigations of the conduct, with regard to Mr. Nourhaghighi, of each of the named respondents other than the Attorney General of Canada and Canadian Human Rights Commission itself. I advised Mr. Nourhaghighi and counsel that it was my preliminary view that the application for judicial review would not involve a review of the conduct or decisions of the respondents, other than the Canadian Human Rights Commission itself. The conduct and the decisions of the respondents other than the Canadian Human Rights Commission and the Attorney General of Canada, of which Mr. Nourhaghighi complained, would, I implied, be the proper subject of investigations by the Canadian Human Rights Commission if that Commission was determined by this Court to have erred in a reviewable manner in refusing to investigate such conduct and mandamus issued.
[8] I advised Mr. Nourhaghighi and counsel that I had grave reservations as to the jurisdiction of this Court to examine, on an application such as this, the conduct of the respondents other than the Canadian Human Rights Commission except as such conduct was relevant to the issue of whether the Commission erred in a reviewable manner itself.
[9] Finally on this aspect of the matter, I advised Mr. Nourhaghighi and counsel for the respondents that it was my preliminary view that the application for judicial review could result in essentially only one of three decisions by this Court: first, an order directing the Canadian Human Rights Commission to reconsider its decision or decisions not to conduct investigations; second, an order directing (mandamus) the Commission to conduct one or more investigations; and finally, an order dismissing the application for judicial review. Concomitantly, I indicated that I could not envisage any order against the named respondents, other than the Commission, arising out of this application for judicial review.
[10] In light of the foregoing, I further indicated to Mr. Nourhaghighi and counsel my preliminary view, based upon the arguments that I had heard on the 31st of October, 2000 on Motion 3 and on a review of all of the material filed, that each of the respondents other than the Attorney General of Canada and the Canadian Human Rights Commission was not a person "directly affected by the order sought on the application" within the meaning of Rule 303(1)(a) of the Federal Court Rules, 19982 and therefore was, in no sense a proper party respondent on the application for judicial review. I further indicated that the Commission itself being "...the tribunal in respect of which the application is brought", once again within the meaning of Rule 303(1)(a), it was also not a proper party respondent unless the Attorney General of Canada were to bring a successful motion under Rule 303(3).
[11] Once again in the result, I expressed the preliminary view that, under the foregoing reasoning, this was a case to which the exception in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc.3 applied. That is to say, it was my preliminary view that this application was an application for judicial review so clearly improper as against all of the respondents other than the Attorney General or the Canadian Human Rights Commission if substituted for the Attorney General, as to be bereft of any possibility of success. I expressed the view that I regarded my jurisdiction to strike as against improper respondents as either inherent or as derived from Rule 4, the "gap rule", in association with Rule 221.
[12] I noted that Mr. Nourhaghighi had raised the issue of the right of various of the respondents to bring certain of Motions 3 through 10 in light of failure to file appearances on the application for judicial review or in light of late filing of appearances or irregular appearances. I noted that the Federal Court Rules, 1998, do not deal with the impact of failure to file an appearance or late or irregular filing except in relation to the right to receive notice (Rule 145). I expressed concern nonetheless that if one were to turn to the Ontario Rules of Civil Procedures4 by analogy, or to fill a gap, the result was unequivocal. The relevant portion of Ontario Rule 38.07(2) reads as follows:
| 38.07(2) A respondent who has not delivered a notice of appearance is not entitled to, |
| ... |
| c) file material, .... |
[13] I indicated to Mr. Nourhaghighi and counsel that I regarded the issue of failure, lateness or irregularity in filing an appearance as a technical one and one that I would consider overcoming, if, during the course of the hearing that day, counsel on behalf of any applicant or applicants on any of Motions 3 through 10 were to orally apply pursuant to Rule 8 of the Federal Court Rules, 1998 for an order extending the period fixed by the Rules for filing an appearance or for filing a further or better appearance, with or without any objection or reservation as to jurisdiction.
[14] Finally, I observed that if the applicants on Motions 3 through 10 were to be successful and their requests for costs were to be met, I was of the view that the result as against Mr. Nourhaghighi, as a self-represented applicant in a rather procedurally complex area of practice before this Court, would be unduly burdensome and, once again, I indicated my pre-disposition.
[15] Following a brief adjournment, the hearing on the 12th of January, 2001 resumed.
[16] Mr. Nourhaghighi made extensive representations on his motion described as Motion 1. While he acknowledged before the Court that the first relief requested on that motion was being abandoned, based upon what follows, I conclude that I will not rely upon that abandonment. Given the nature of the third relief requested, much of Mr. Nourhaghighi's argument was directed to his position as to why Motions 3 through 10, not simply Motions 4 and 7, should be dismissed with costs in his favour. No extensive responding argument was presented. I reserved my decision on Motion 1.
[17] Mr. Nourhaghighi advised the Court that Motion 2 was withdrawn. In the result, on the 15th of January, 2001, I issued a direction in the following terms:
| Mr. Nourhaghighi having indicated at the hearing this day [sic] when this motion was called that this motion is withdrawn, the registry is directed to clearly indicate in the file and in the record with respect to this application for judicial review that this motion has been withdrawn. |
[18] The following commentary and analysis relates to Motions 3 through 10.
[19] Rule 303 deals with the issue of proper respondents on an application for judicial review such as this. That Rule in its entirety reads as follows:
303. (1) Subject to subsection (2), an applicant shall name as a respondent every person
(a) directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought; or
(b) required to be named as a party under an Act of Parliament pursuant to which the application is brought.
(2) Where in an application for judicial review there are no persons that can be named under subsection (1), the applicant shall name the Attorney General of Canada as a respondent.
(3) On a motion by the Attorney General of Canada, where the Court is satisfied that the Attorney General is unable or unwilling to act as a respondent after having been named under subsection (2), the Court may substitute another person or body, including the tribunal in respect of which the application is made, as a respondent in the place of the Attorney General of Canada.
[emphasis added]
303. (1) Sous réserve du paragraphe (2), le demandeur désigne à titre de défendeur :
a) toute personne directement touchée par l'ordonnance recherchée, autre que l'office fédéral visé par la demande;
b) toute autre personne qui doit être désignée à titre de partie aux termes de la loi fédérale ou de ses textes d'application qui prévoient ou autorisent la présentation de la demande.
(2) Dans une demande de contrôle judiciaire, si aucun défendeur n'est désigné en application du paragraphe (1), le demandeur désigne le procureur général du Canada à ce titre.
(3) La Cour peut, sur requête du procureur général du Canada, si elle est convaincue que celui-ci est incapable d'agir à titre de défendeur ou n'est pas disposé à le faire après avoir été ainsi désigné conformément au paragraphe (2), désigner en remplacement une autre personne ou entité, y compris l'office fédéral visé par la demande
[je souligne]
[20] Even if I were to conclude that some or most of the respondents named on this application for judicial review are not proper parties, the reasons for judgment of Mr. Justice Strayer on behalf of the full panel of the Court of Appeal in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc.5 make it very clear that, except in extraordinary circumstances, consideration of the application for judicial review, on its merits, should not be delayed or otherwise impeded by a motion or motions to strike. He wrote at pages 596 through 598:
| The basic explanation for the lack of a provision in the Federal Court Rules for striking out notices of motion can be found in the differences between actions and other proceedings. An action involves, once the pleadings are filed, discovery of documents, examinations for discovery, and then trials with viva voce evidence. It is obviously important that parties not be put to the delay and expenses involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action. Even though it is important both to the parties and the Court that futile claims or defences not be carried forward to trial, it is still the rare case where a judge is prepared to strike out a pleading under Rule 419. Further, the process of striking out is much more feasible in the case of actions because there are numerous rules which require precise pleadings as to the nature of the claim or the defence and the facts upon which it is based. There are no comparable rules with respect to notices of motion. Both Rule 319(1) [as am. by SOR/88-221, s. 4], the general provision with respect to applications to the Court, and Rule 1602(2) [as enacted by SOR/92-43, s. 19], the relevant rule in the present case which involves an application for judicial review, merely require that the notice of motion identify "the precise relief" being sought, and "the grounds intended to be argued." The lack of requirements for precise allegations of fact in notices of motion would make it far more risky for a court to strike such documents. Further, the disposition of an application commenced by originating notice of motion does not involve discovery and trial, matters which can be avoided in actions by a decision to strike. In fact, the disposition of an originating notice proceeds in much the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the Court. Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. This motion to strike has involved a hearing before a trial judge and over one half day before the Court of Appeal, the latter involving the filing of several hundred pages of material, all to no avail. The originating notice of motion itself can and will be dealt with definitively on its merits at a hearing before a judge of the Trial Division now fixed for January 18, 1995. |
| The contrast between actions and motions in this Court is even more marked where the motion involved is for judicial review, as these applications for prohibition under subsection 6(1) of the Patented Medicines (Notice of Compliance) Regulations have been held to be. Unlike the rules pertaining to actions, the 1600 rules [as enacted by SOR/92-43, s. 19] pertaining to judicial review provide a strict timetable for preparation for hearing and a role for the Court in ensuring there is no undue delay. Time limits fixed by the rules can only be extended by a judge, not by consent. The Court can of its own motion dismiss applications due to delay and can also take the initiative in correcting originating documents. This all reinforces the view that the focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case.6 |
[21] Mr. Justice Strayer nonetheless acknowledged an exception to the general rule. At page 600, he wrote:
| 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 be 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. [emphasis added] |
Thus, although an exception to the general rule exists, cases where it will arise are "very exceptional" and thus the onus on the applicants in Motions 3 through 10 is an onerous one.
[22] Mr. Nourhaghighi effectively presented essentially three arguments as to why Motions 3 through 10 should not be granted: first, some if not all of those motions are described as "cross-motions" and, in his submission, cross-motions have no place on an application for judicial review; second, he urges that David Bull, supra, essentially stands for the proposition that applications that are in the nature of judicial review should proceed expeditiously and without unnecessary interlocutory motions and these motions are interlocutory in nature and in his submission unnecessary and in at least some cases improper; and third, the lack of any appearance or of timely or appropriate appearance on the part of many of the respondents who are applicants on the motions in question should disqualify them from filing and being heard on such motions.
[23] On the first issue, that is to say the issue of "cross-motions", Mr. Nourhaghighi cited W.R. Meadows, Inc. v. U.S.E. Hickson Products Ltd.7 in which Mr. Justice Lutfy, as he then was, wrote at paragraph [7], page 416:
| I am also of the view that the Rules do not contemplate a cross-application. In its cross-application, the respondent seeks the expungement of a trade-mark registered to one of the applicants. The proper way to seek this relief, in my view, is to file a separate application and, if appropriate, to seek the consolidation of the applicants' proceeding and the respondent's separate proceeding under Rule 105. The respondent's material does not justify an exception from this usual procedure. |
Mr. Justice Lutfy, now Associate Chief Justice Lutfy, was writing in a context in which a respondent was seeking to file a "reply and cross-application" in response to the applicants' application for the expungement of certain trade-marks, which had been brought under subsection 57(1) of the Trade-marks Act8.
[24] I am satisfied that Associate Chief Justice Lutfy's comments quoted above are simply not applicable on the facts of this matter. This is not a matter where the respondents, applicants of Motions 3 through 10, are seeking a separate substantive relief against the applicant on the main application. Here, rather, the applicants on Motions 3 through 10 are simply seeking to be relieved from the obligation to fully respond to the main application. They are seeking no separate relief, other than costs and in one case security for costs, by their Motions 3 through 10 which are purely in the nature of interlocutory motions for relief rather than in the nature of what would appropriately be described as cross-applications. To the extent that the applicants on Motions 3 through 10 have described their motions as cross-motions or cross-applications, I am satisfied that they are misdescribed. Mr. Nourhaghighi cannot succeed on this ground.
[25] The second ground that Mr. Nourhaghighi advances is much more substantive and, as I have earlier indicated, reflects the heavy burden that rests on the applicants on Motions 3 through 10. I am in full agreement with Mr. Nourhaghighi that the general principle enunciated both loudly and clearly in David Bull is that applications in the nature of applications for judicial review should be dealt with expeditiously and with a minimum of interlocutory procedures. In this regard, Mr. Nourhaghighi cites Tetzlaff v. Canada (Minister of the Environment)9 where Mr. Justice Hugessen, for the Court, wrote at pages 226 and 227:
| Section 18 [of the Federal Court Act] does not create jurisdiction over persons at all but rather over subject-matter. That subject-matter is the decisions of federal boards, commissions or other tribunals. Frequently the persons constituting such board, commission or tribunal are not necessarily, or even properly, parties to the proceedings before the Court. By the same token, parties to proceedings before a federal board, commission or tribunal are always properly (and usually necessarily), made parties when those proceedings, or the results thereof, are the subject of an attack under section 18 of the Federal Court Act. |
| In the present case. the Tetzlaffs were seeking an order in the nature of certiorari to quash and set aside a decision of the Minister (a federal board, commission or tribunal) granting a licence under the International River Improvements Act to Saskatchewan Water Corporation. Jurisdiction, ratione materiae, lay in the Trial Division by virtue of section 18. Saskatchewan Water Corporation's interest in the proceedings is manifest for its licence was being put at risk. It was, and is, a necessary party respondent in those proceedings. |
| Finally, and with respect, the order under appeal was counterproductive. No one sought it . It does not advance matters. On the contrary, it impedes the progress of the litigation. It flies in the face of the two recent decisions of two different panels of this Court. It was bound to be appealed and such appeal could only result in the needless expenditure of both public and private funds. The Court has wasted its time and effort and so have the parties. The latter, it should be noted, appellants and respondents both, have no one to whom they can look to recover the costs needless incurred. Before doing something with such serious consequences any judge should hesitate and ask himself earnestly if he is really the only one to be in step. |
The foregoing represents counsel to judges of the Trial Division of this Court which can only be ignored at great peril of the criticism there levelled.
[26] The foregoing counsel notwithstanding, I am satisfied the Motions 3 through 10 and my consideration of those motions take me outside the parameters of the foregoing counsel.
[27] Unlike in Tetzlaff, I am satisfied that the difficulty that the parties before me as applicants on Motions 3 through 10 now find themselves in, and that this Court has been invited to resolve, results from an over-reaching. That over-reaching is not in this case an order of the Court, but rather in the terms of Mr. Nourhaghighi's originating application, particularly in the opening words of that application as quoted earlier in these reasons, paragraph c) under those opening words and certain of the grounds for the application as also quoted.
[28] What is essentially sought on Mr. Nourhaghighi's originating application is relief against the Canadian Human Rights Commission requiring it to conduct certain investigations regarding the activities of all or most of the other named respondents, as those activities affected Mr. Nourhaghighi. Unlike in Tetzlaff, I am not satisfied that the interest of the other respondents in the proceedings resulting in the Commission's decision or decisions not to investigate was "manifest". By contrast, I am satisfied that the respondents other than the Attorney General of Canada and the Commission itself would only have a manifest interest in a matter before the Commission if this Court directed the Commission to conduct investigations in relation to the other respondents' conduct or directed the Commission to reconsider its decision or decisions not to investigate and that reconsideration resulted in a decision or decisions to investigate. There is simply nothing here on the part of the other respondents that is the equivalent of the case in Tetzlaff where the Saskatchewan Water Corporation's licence was being put at risk.
[29] In the result, I simply cannot conclude that the respondents other than the Attorney General of Canada and the Commission can be considered to be persons who might be "directly affected" by any order properly sought and granted on Mr. Nourhaghighi's originating application.
[30] Rule 303 of the Federal Court Rules, 1998 is quoted in full earlier in these reasons. Rule 303(1)(a) reflects the concept "directly affected" by the order properly sought on Mr. Nourhaghighi's originating application. As just indicated, I am satisfied that the respondents named in that application are not persons "directly affected" within the meaning of that paragraph except in the case of the Canadian Human Rights Commission itself, and it, being the tribunal in respect of which the application was brought, is specifically excluded from the ambit of that paragraph. There is no allegation that any of the respondents are required to be named as parties to the originating application under any Act of Parliament pursuant to which the application is brought.
[31] Rule 303(2) thus applies and instructs us that the appropriate respondent is the Attorney General of Canada. Rule 303(3) provides an exception to that conclusion but only where a motion on behalf of the Attorney General of Canada is brought indicating that the Attorney General is unable or unwilling to act as a respondent. In the event of such an application, and based solely on the material now before me, I would conclude that the Commission itself would be the appropriate person or body to substitute for the Attorney General but for the moment at least, that issue is not before me.
[32] Referring back to the last quoted paragraph from Tetzlaff, I am satisfied that the orders here sought on Motions 3 through 10 would not be counterproductive. Here, those orders have been sought by those bringing the motions, they would not represent an initiative of the Court itself. In my view, the orders sought would indeed "advance" or simplify matters. They would reduce the originating application to an application for relief against the decision or decisions not to investigate that would appear to be at the heart of Mr. Nourhaghighi's concerns. I am satisfied that to grant the orders sought on Motions 3 through 10, rather than impeding the progress of this litigation, would facilitate its progress. No party has cited to me any decision that I can conclude would be flown in the face of if I were to grant the reliefs sought on Motions 3 through 10. That being said, I anticipate that if I were to grant the reliefs sought on those motions, there is a strong likelihood that my decision would be appealed. If that were to be the case, it would be my view, but quite possibly not the view of others, that such an appeal would result in needless expenditure of both public and private funds. That is a matter over which I have no control. Once again by contrast to Tetzlaff, I conclude that if I were not to grant the reliefs sought on Motions 3 through 10, the result would be a needless expenditure, certainly of private funds. Respondents named in the originating application would be required, on that application, to expend resources defending themselves on an application which I am satisfied could result in no direct relief against them, a conclusion which I regard as consistent with my earlier conclusions that they are not persons "directed affected" within the meaning of Federal Court Rule 303.
[33] Finally, I turn to the issue of appearances which I touch on earlier in these reasons when I recorded my preliminary comments at the hearing before me on the 12th of January, 2001. Counsel for all respondents who were before the Court and who had not filed appearances or had any doubt as to the timeliness or efficacy of an appearance filed, orally applied for an extension of time to file or re-file. Pursuant to Rule 8 of the Federal Court Rules, 1998, in each case, I granted an extension to the close of business at the Registry of the Court on Friday, the 19th of January , 2001. Following my order in that regard which is dated the 15th of January, 2001, appearances were filed, within the time provided, on behalf of all the respondents who were before the Court on the 12th of January and who had not filed appearances or where there might have been some doubt as to the timeliness or efficacy of an appearance filed. I am satisfied that this action was appropriate as the issue regarding appearances, as raised by Mr. Nourhaghighi and, indeed, in my view properly raised by him, was a technical one and not one that should stand in the way of the removal of respondents named in the originating application where the result of failure to remove them would, as I have indicated earlier, simply complicate the process, increase the cost, and delay the ultimate resolution on the originating application.
[34] In conclusion then on the main issue that was before me on Motions 3 through 10, I am satisfied that the reliefs sought on those motions on behalf of each of the applicants, respondents on the originating application, other than the Attorney General of Canada, are appropriate and that my authority to grant that relief derives from the last quotation earlier in these reasons from the reasons of Mr. Justice Strayer in the David Bull decision.
[35] None of the foregoing addresses the issue of security for costs raised in Motion 10. Counsel on that motion requested before me that that request for relief be adjourned sine die. I will so order.
[36] I turn finally to the last motion that was before the Court on the 12th of January, 2001, that is to say, Motion 11 in which Mr. Nourhaghighi seeks an order requiring certain of the counsel who appeared before me or who were themselves represented before me to "show cause for contempt". When this motion was called, Mr. Nourhaghighi questioned whether it was be appropriate for me to consider the motion in light of the fact that I had reserved my decision on nine of the previous motions but, I suspect, had from his point of view forecasted my inclination in terms of the outcome on those motions. For reasons other than those of concern to Mr. Nourhaghighi, one of the counsel to whom Motion 11 was directed requested that I not deal with that motion but rather provide time for written submissions that might reflect not only the arguments before me on January 12 and my comments regarding my predisposition on other motions, but also my ultimate orders and these related reasons. Other counsel urged that I should deal with Motion 11 as expeditiously as possible, that is to say, in a continuation of the sitting on the 12th of January.
[37] After considering representations, I indicated to Mr. Nourhaghighi that while I did not regard myself as under any impediment to consider Motion 11, if he were to move before me to adjourn that motion to a fixed date that would allow for the filing of written submissions with minimal delay in the ultimate disposition of the motion, I would grant it. Mr. Nourhaghighi so moved orally. In the result, I granted an adjournment of Motion 11, fixed a schedule for filing of written submissions and fixed a hearing date on an ordinary motions day in Toronto on the understanding that the hearing of the motion would not require more than two hours.
CONCLUSIONS
[38] In light of all the foregoing, orders will go striking all of the respondents who are moving parties on Motions 3 through 10, including Robert Pearce and Sprint Canada Inc. who I will order added as applicants on Motion 9 at the request of their counsel and without objection from Mr. Nourhaghighi, but with the exception of the Attorney General of Canada. As earlier indicated, and also on Motion 9, I will adjourn sine die that motion as it relates to security for costs.
[39] I turn briefly to the question of costs on Motions 3 through 10. I am satisfied that the applicants on those motions, with two exceptions, are entitled to some costs given their success on the motions and the expense to which they have been put by reason of the action of Mr. Nourhaghighi in naming them respondents on his originating application. That being said, I am conscious of the fact that Mr. Nourhaghighi is self- represented and that the ordering of significant cost against him on the multiplicity of motions brought would work a substantial hardship on him. In the result, there will be no order as to costs on Motions 3 and 8, those being the motions on which the Attorney General of Canada and the Canadian Human Rights Commission are, respectively, applicants. On each other motion in the group of motions identified as Motions 3 through 10, an order will go for costs fixed at $500., inclusive of disbursements, in favour of the applicant or applicants, and against Mr. Nourhaghighi.
[40] In light of the result on Motions 3 through 10, Motion 1 will be dismissed with no order as to costs.
[41] As earlier noted in these reasons, Motion 2 stands withdrawn. Motion 11 stands adjourned in accordance with my order of the 15th of January, 2001.
_____________________________
| J. F.C.C. |
Ottawa, Ontario
January 22, 2001
__________________6 Some citations omitted. References throughout are to the rules of this Court that preceded the Federal Court Rules, 1998 , which, in this regard, were substantially similar in substance.