Date: 20000327
Docket: T-126-00
Ottawa, Ontario, March 27, 2000
Before : Pinard J.
Between:
RITA LAVOIE, domiciled at 4500 Promenade Paton, No. 1205, Chomedey, district of Laval, province of Quebec
H7W 4Y6,
Plaintiff,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, at the Complexe Favreau, Tour est, 9e étage, 200 boul. René Lévesque ouest, Montréal, district of Montréal, province of Quebec H2Z 1Y4
- and -
BUSINESS DEVELOPMENT BANK OF CANADA, at 5 Place Ville-Marie, bureau No. 500, Montréal, district of Montréal, province of Quebec H3B 5E7
- and -
MICHEL CRETE, vice-president of the BDB, Montréal sector, at 5 Place Ville-Marie, bureau No. 500, Montréal, district of Montréal, province of Quebec H3B 5E7
- and -
ALAIN BUNELLE, chief, human resources, BDB, at 5 Place Ville-Marie, bureau No. 500, Montréal, district of Montréal, province of Quebec H3B 5E7,
Defendants.
Motion by the defendants to dismiss the application
for judicial review in the case at bar.
ORDER
The defendants' motion is granted and the application for judicial review dismissed.
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YVON PINARD
JUDGE |
Certified true translation
Martine Brunet, LL. B.
Date: 20000327
Docket: T-126-00
Between:
RITA LAVOIE, domiciled at 4500 Promenade Paton, No. 1205, Chomedey, district of Laval, province of Quebec
H7W 4Y6,
Plaintiff,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, at the Complexe Favreau, Tour est, 9e étage, 200 boul. René Lévesque ouest, Montréal, district of Montréal, province of Quebec H2Z 1Y4
- and -
BUSINESS DEVELOPMENT BANK OF CANADA, at 5 Place Ville-Marie, bureau No. 500, Montréal, district of Montréal, province of Quebec H3B 5E7
- and -
MICHEL CRETE, vice-president of the BDB, Montréal sector, at 5 Place Ville-Marie, bureau No. 500, Montréal, district of Montréal, province of Quebec H3B 5E7
- and -
ALAIN BUNELLE, chief, human resources, BDB, at 5 Place Ville-Marie, bureau No. 500, Montréal, district of Montréal, province of Quebec H3B 5E7,
Defendants.
REASONS FOR ORDER
PINARD J.
[1] By their motion based on Rules 208, 221 and 359 of the Federal Court Rules, the defendants asked the Court to dismiss the application for judicial review filed by the plaintiff.
[2] The principles applicable to such a motion are set out in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588, where Strayer J.A. for the Federal Court of Appeal said the following, at 597:
. . . 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 . . .
And at 600:
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. [reference omitted] 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.
[3] In the case at bar the plaintiff asked this Court to compel the Business Development Bank of Canada (BDB), a defendant, to re-hire her and asked this Court to order the defendants to pay her compensation for all the nuisance and inconvenience caused by their attitude.
[4] The BDB is a corporation created pursuant to the Business Development Bank of Canada Act, R.S.C. 1985, c. B-9.9 ("the Act") and is listed in Part I of Schedule III of the Financial Administration Act, R.S.C. 1985, c. F-11, as a parent Crown corporation. The purpose of the BDB is to "support Canadian entrepreneurship by providing financial and management services and by issuing securities or otherwise raising funds or capital in support of those services" (s. 4(1) of the Act). In s. 10 the Act confers on the BDB the power to employ such officers and employees, and engage such agents, advisors and consultants, as it considers necessary to carry out the purpose of the Act and for the proper conduct of its business, and the Bank may fix the terms and conditions of their employment or engagement.
[5] In Wilcox v. Canadian Broadcasting Corporation, [1980] 1 F.C. 326, at 329, Thurlow A.C.J. said the following:
While I see no reason to doubt that the powers referred to in the definition of "federal board, commission or other tribunal" in section 2 are not confined to powers that are required by law to be exercised on a judicial or quasi-judicial basis, it appears to me that the expression "jurisdiction or powers" refers to jurisdiction or powers of a public character in respect of the exercise of which procedures by prerogative writs or by injunction or declaratory relief would formerly have been appropriate ways of invoking the supervisory authority of the superior courts. I do not think it includes the private powers exercisable by an ordinary corporation created under a federal statute which are merely incidents of its legal personality or of the business it is authorized to operate. Absurd and very inconvenient results would flow from an interpretation that it does include such powers and it does not appear to me that that was intended or that it is necessary to so interpret the expression in the context in which it is used.
It appears to me, as well, that if the powers of the defendant under the Broadcasting Act in respect of the defendant's broadcasting activities are not powers of the kind embraced by the definition, there is even less reason to conclude that the power of the defendant to engage employees falls within the meaning of the definition.
[6] Clearly, this Court does not have jurisdiction to grant the plaintiff the remedies she wishes to have. In view of the definition of a "federal board, commission or other tribunal" in s. 2(1) the Federal Court Act, R.S.C. 1985, c. F-7, and bearing in mind Wilcox, supra, the plaintiff's dismissal by the BDB is not a decision which can be the subject of an application for judicial review under s. 18 of the Federal Court Act as the BDB was only exercising the managerial rights which ordinarily devolve on any employer. Further, the plaintiff's remedy is not based on a rule of federal law or a federal statute, but instead on the civil law applicable in the province of Quebec, in particular arts. 2085 et seq. of the Civil Code of Quebec. These conclusions are reinforced, so far as the claim for compensation or damages is concerned, by the requirement that such a remedy be by way of an action rather than an application for judicial review.
[7] Consequently, the defendants' motion is granted and the application for judicial review dismissed. There will be no award of costs, as counsel for the defendants indicated at the hearing that she was not claiming any.
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YVON PINARD
JUDGE |
OTTAWA, ONTARIO
March 27, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-126-00
STYLE OF CAUSE: Rita Lavoie v. Her Majesty the Queen et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 20, 2000
REASONS FOR ORDER BY: PINARD J.
DATED: March 27, 2000
APPEARANCES:
Rita Lavoie ACTING FOR HERSELF
Nancy Boyle FOR THE DEFENDANT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec