Date: 20040130
Docket: T-954-03
Citation: 2004 FC 164
Ottawa, Ontario, Friday, this 30th day of January 2004
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
BETWEEN:
COMMANDER JAMES PRICE
Applicant
- and -
ATTORNEY GENERAL OF CANADA,
MINISTER OF NATIONAL DEFENCE and
CHIEF OF THE DEFENCE STAFF
Respondents
REASONS FOR ORDER AND ORDER
TABIB P.
[1] It is upon being acquainted with circumstances such as those in which Commander James Price finds himself that one begins to appreciate how it might have occurred to Joseph Heller that military rules and regulations could create the type of insoluble dilemma featured in Catch-22.
[2] I am seized of a motion to strike the Applicant's application for judicial review on the basis, inter alia, that it is moot. The circumstances giving rise to the motion are the following:
[3] Commander Price, after spending 20 years in the Canadian Forces as a legal officer, was appointed in January 2001 to be a military judge. The order in council appointing him provides that he is to hold office for a term of five years - this would take his tenure to January 2006.
[4] Commander Price celebrated his 55th birthday on July 3, 2003. On that day, he also ceased to be a military judge. He ceased to be a military judge because subsection 165.21(4) of the National Defence Act provides that a military judge ceases to hold office on reaching the retirement age prescribed in regulations. The regulations prescribe that the retirement age shall be the compulsory retirement age provided for officers of the Canadian Forces generally. That age is of 55 for the rank of Commander.
[5] It appears that the Canadian Forces are - or at least were at some time - keen to change the compulsory retirement age and extend it to 60 years of age. Pending a regulatory change, the Chief of Defence Staff implemented a policy whereby those reaching the age of 55 before a legislative change was implemented could apply to have their service extended in accordance with a pre-existing regulatory scheme. This didn't help Commander Price: The regulations made under subsection 165.21(4), where they incorporate by reference the retirement age provided for officers, incorporate only the table in which the ages are set out according to rank; the incorporation fails to include the scheme by which that age can be extended. There is therefore no mechanism by which the compulsory retirement age of 55 for Commander Price to hold office as a military judge can be varied or extended.
[6] Commander Price therefore brought this notice of application to obtain a declaration that the regulations setting out the compulsory retirement for military judges constitute an unjustified discrimination on the basis of age and are therefore unconstitutional as contrary to section 15 of the Canadian Charter of Rights and Freedoms.
[7] If the provisions setting out a compulsory age for military judges to cease holding office are struck down as unconstitutional, then Commander Price, whose order-in-council appointment is valid until January 2006, can continue to serve out his term of office, right? Wrong. This is where the Respondents say the application is moot and where the Catch-22 arises: A person, in order to hold the office of military judge, must be a member of the Canadian Forces. Unless his term of service as an officer of the Forces was extended in accordance with the regulatory scheme, Commander Price would have ceased to be a member of the Forces upon reaching 55 years of age, and would be unable to serve as a military judge, even assuming the compulsory retirement age for military judges is held invalid. An extension of the term of service is a discretionary advantage conferred by the Minister of Defence, for which a military judge cannot apply, as this would impinge on his judicial independence.
[8] So here it is: in order to continue being a judge, Commander Price had to apply to extend his term of service, and in order to apply to extend his term of service, he had to resign his office as a judge.
[9] Commander Price did not resign his office as military judge and did not seek an extension of his term of service. As a result, as of July 3, 2003, he ceased to be a member of the Canadian Forces. On that basis, the Respondents argue that Commander Price's application is moot, as regardless of the outcome, he cannot be put in a position to continue holding his office as a military judge.
[10] The parties have argued at length whether there exists, or not, a mechanism by which Commander Price could be reinstated as a member of the Canadian Forces, short of a declaration that the compulsory retirement age for all officers is also unconstitutional (a remedy which the Applicant is clearly not seeking in this application). After I had taken the matter under advisement, but before I had written my reasons, the Applicant moved to file additional evidence establishing that upon his retirement, he was transferred to the Supplementary Reserve; this evidence goes to the issue of whether and how he could, by way of a transfer, be reinstated as a member of the Canadian Forces. The Respondents objected to the Applicant's motion, but tendered their own additional evidence and cross-examined Commander Price on his new affidavit against the possibility that I would allow new evidence to be filed. It was a wise choice. In the exercise of my discretion, I ordered that the additional evidence of both parties be filed, including the cross-examination of Commander Price, as it struck me as relevant, and that in the clear absence of prejudice to the Respondents, the interest of justice in this case in having a full evidentiary record before the Court outweighed any principle preventing a party from reopening its case after a matter is taken under advisement. I then heard further lengthy submissions from the parties as to how this new evidence should be interpreted.
[11] It appears to me unlikely that a mechanism indeed exists to allow Commander Price to be reinstated as a member of the Canadian Forces in order to continue to hold his office as military judge in the event he were successful in his constitutional challenge.
[12] However, I am not prepared to conclude that it is clear and obvious that such a mechanism does not and cannot exist, such that the decision sought by Commander Price can have no practical effect on his rights. To reach this conclusion at this stage of the proceedings would require the Court to go well beyond the subject matter of the application, to consider all the routes the Applicant might attempt to achieve the desired result, to anticipate the outcome of these hypothetical steps and to interpret in a factual vacuum the fairly arcane rules and regulations governing transfers of personnel between the Regular and Reserve Forces.
[13] Mootness, like the absence of a reasonable cause of action, must be clear and obvious in order to justify the striking of an application on an interlocutory motion (Fogal v. Canada [1999] F.C.J. No. 788; Labbé v. Létourneau (1997), 128 F.T.R. 291; Arthur v. Canada (Attorney General) [1999] F.C.J. No. 1917 (C.A.)). I am not satisfied that the Respondents have met this standard.
[14] As an alternative remedy, the Respondents sought an order that this application be ordered to proceed as if it were an action, pursuant to subsection 18.4(2) of the Federal Courts Act. The Respondents' argument on that point was premised on the incorrect understanding that the application also necessarily involved the determination of the constitutional validity of the compulsory retirement age of the entire corps of officers. While this misunderstanding was cleared up in the course of the hearing, the Respondents maintained their request that the proceeding should be ordered to proceed as an action on the ground that the procedural vehicle of an application for judicial review was, in any event, inappropriate to the relief sought by the Applicant.
[15] The jurisprudence of this Court is quite clear that, while a declaration of constitutional invalidity is an available remedy in the context of an application for judicial review of a decision or an order of a federal board, commission or tribunal (as in Parisé v. Canada (1996) 114 F.T.R. 1 (T.D.)), a proceeding seeking a declaration of constitutional invalidity without impugning a decision, order or other action of a federal board, commission or other tribunal, must be taken as an action (see for example: Tremblay v. Canada [2003] F.C.J. No. 1520).
[16] As appears from the discussion in the first part of these reasons, the essential remedy sought by the Applicant is a declaration of constitutional invalidity of the statutory and regulatory provisions establishing a compulsory retirement age for military judges. The application also seeks the following remedies:
" - a declaration that requiring the Applicant in his capacity as a military judge to retire on July 3, 2003 is unlawful;
- an order in the nature of a writ of prohibition and an interim order prohibiting the Minister of National Defence, the Chief of the Defence Staff, the Department of Defence and all persons acting under their authority or direction from terminating the Applicant's service as a military judge before his 5 year judicial appointment expires on January 10, 2006;
- such interim and interlocutory injunctions as may be necessary and a permanent injunction restraining the Minister of National Defence, the Chief of the Defence Staff, the Department of Defence and all persons acting under their authority or direction from terminating the Applicant's service as a military judge before his 5 year term of service expires on January 10, 2006;"
However, it is clear that the termination of Commander Price's tenure as a military judge is not the result of any action, decision or order on the part of the Respondents, but that it comes about purely by the effect of the impugned legislative and regulatory provisions. It is equally clear that the interim orders, writs of prohibition and injunctions sought in this application are devoid of any merit or practical effect to address the Applicant's complaint. Even if the remedies of prohibition or injunctions could be said to have some subordinate usefulness in redressing the Applicant's complaint once the impugned provisions are declared invalid, the proper course to be adopted in a situation such as this is set out in the remarks of Decary J.A., in Sweet et al v. Canada (1999), 249 N.R. 17, at pages 25 and 26:
"[14] (...) Once it is ascertained that a given proceeding falls into one or the other of the two categories (judicial review and action), the duty of the Court is to determine which is the applicable category and to allow the proceeding to continue in that way. Means must be found by counsel and by the Court to address the issue intelligently and with a sense of practicality.
(...)
[17] It seems to me that in a case where many different sorts of relief are claimed, some of which require an action and some of which require judicial review, the proper course is to determine which relief it makes more sense to decide first, then to determine whether the procedure taken is the proper one with respect to that relief and, if not, to allow the party to correct it with appropriate amendments."
[17] The essential relief claimed, and the one that must be addressed first and foremost, is the declaration as to the constitutional validity of the impugned provisions, and such a relief must proceed by way of an action.
[18] Notwithstanding the decision in Sweet v. Canada to the effect that a proceeding that should have originated in another form should not be struck, but allowed to continue in a proper form by way of amendment, counsel for the Applicant has expressed the preference, if I concluded that the wrong procedural vehicle has been used, that I should strike the notice of application, without prejudice to the Applicant's right to begin its proceedings afresh as an action.
ORDER
IT IS ORDERED THAT:
1. The notice of application is struck, without prejudice to the Applicant's right to begin its proceedings afresh as an action.
2. No order for costs having been sought by the Respondents, none are awarded.
"Mireille Tabib"
Prothonotary
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-954-03
STYLE OF CAUSE: COMMANDER JAMES PRICE v. ATTORNEY GENERAL OF CANADA ET AL
PLACE OF HEARING: OTTAWA
DATE OF HEARING: JANUARY 22, 2004
REASONS FOR ORDER: MADAM PROTHONOTARY MIREILLE TABIB
DATED: JANUARY 30, 2004
APPEARANCES:
MARTHA A. HEALEY FOR APPLICANT
TINA H. HILL
ELIZABETH RICHARDS FOR RESPONDENTS
SOLICITORS OF RECORD:
OGILVY RENAULT FOR APPLICANT
Ottawa, Ontario
MORRIS ROSENBERG FOR RESPONDENTS
Deputy Attorney General of Canada