Date: 19980922
Docket: T-483-98
BETWEEN:
MALIK SULTAN MAHMOOD,
Applicant,
- and -
HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA,
SECRETARY OF STATE, THE MINISTER OF
EXTERNAL AFFAIRS, THE DEPARTMENT OF
FOREIGN AFFAIRS AND INTERNATIONAL TRADE and
THE PASSPORT OFFICE,
Respondents.
REASONS FOR ORDER
MULDOON, J.
[1] This is the respondents' motion for certain revision and expungements of the applicant's filed originating notice of motion. Before considering the respondents' motion however it is necessary, or at least desirable, to review the applicant's originating notice, which bears the title: Originating Notice of Application Pursuant to s.18 and 18.1 of the Federal Court Act.
[2] The document states that the applicant * * *
| * * * will be making an application to the Court, for the purpose of obtaining, pursuant to s.18 and 18.1 of the Federal Court Act, R.S.C. 1985, [Chap.] F-7 as amended, declaratory, prerogative and injunctive relief, from the decision of Jocelyn Francoeur, Director, Security, Policy and Entitlement, dated December 29th, 1997, of which the Applicant was apprised and informed and which decision was "communicated" to the Applicant on January 26th, 1998, which decision was rendered at the Passport Office, Ottawa, Ontario, in file #A-6909, and the Applicant will be making application for THE FOLLOWING RELIEF: |
| 1.(a) a declaration that the Respondent and its agent(s) breached his Charter and statutory rights in not providing the Applicant any assistance whatsoever and in fact having him charged by Singaporean authorities; |
| (b) (i) that ss. 2, 9, 10 et seq. of Canadian Passport Order, SI/81-86 breach ss. 6 and 7 of the Charter and, in the facts of this case their applicability further breaches s.15 of the Charter; |
| (ii) and further inconsistent, on the facts of this case, with s.7.1 et seq. of the Criminal Code of Canada; |
| (iii) that the order is ultra vires its enabling legislation; |
| (c) (i) a further declaration that the administrative decision by a Jocylen Lancour is an abusive one made on a perverse and capricious basis and that the fact of her decision brings the administration of justice into disrepute; and |
| (ii) a further declaration that in any event, her decision was made without evidence and in disregard to the evidence and in the total absence of reasons and contrary to the Regulation, Statute, and Charter; and |
| (iii) that the decision is, in any event, ultra vires as the Applicant never misused his Canadian passport; |
| 2.(a) an order (in the nature) of certiorari quashing or setting aside the decision of Jocylen Lancour; |
| (b) (i) an order (in the nature) of mandamus compelling the Respondent [sic] to release and/or issue, without delay the Applicant's passport; and |
| (ii) an order, pursuant to s.18 of the Federal Court Act, in the nature of mandamus, that the Respondent tribunal provide a phone and fax number; |
| 3. that the Applicant be accorded his solicitor-client costs and any further and other relief as this Court deems just. |
| THAT THIS APPLICATION IS BASED ON THE FOLLOWING GROUNDS: |
| (a) i) that the Respondent's agents in Singapore did not assist the Applicant when they had a duty to assist and in fact had him maliciously prosecuted by foreign authorities without any semblance of natural justice based on his skin colour and race by a regime cited for human rights violation(s); |
| ii) that, the actions taken by the Applicant are not only permitted by s.2 and 7 of the Charter but also required by s.7.1 et seq. of the Criminal Code of Canada; |
| iii) that ss.9, 10, et seq. of the Canadian Passport Order SI/81-86 are ultra vires the statute and breach s.6 and 7 of the Charter and their applicability to the facts of this case further breach s.2 and 15 of the Charter; |
| iv) that, in any event, no (mis)use of the Applicant's passport was made wherefore the decision is ultra vires; |
| v) such further and other * * * |
This above recited application is not directly at issue in the proceeding at bar.
[3] What is now before the Court is the respondents' motion, which, in essence, runs as follows:
| * * * FOR |
| An Order striking out the parties [sic] to this Judicial Review Application and substituting therefore [sic], the Attorney General of Canada as the sole Respondent; |
| An Order striking out the relief sought at paragraph 1(a) of the Originating Notice of Motion; |
| An Order that a revised Originating Notice of Motion with the revisions noted in the above two Orders be refiled with the Federal Court of Canada (Trial Division) as a non-immigration Judicial Review Application; |
| An Order extending the time within which the Respondent is required to file responding evidence to this revised Originating Notice of Motion to forty-five (45) days following the date of this Order; |
| Such further and other * * * . |
[4] Upon the completion of the hearing in Toronto, the Court ordered (doc. 13) nunc pro tunc that the docket number be as is shown above: T-483-98.
[5] Furthermore, the Court ordered, upon the applicant's counsel's freely given consent, that the respondent(s)' time for filing responding evidence will be extended for 45 days after the Court's disposition of the outstanding matters in the respondents' motion.
PROSECUTION AND IMPRISONMENT IN SINGAPORE
[6] The applicant's counsel claims resort to subsection 7(7.1) [sic] of the Criminal Code of Canada. Possibly he meant to cite subsection 7(3.71) but it matters not in the present proceeding, because it is an issue, if issue it be, for the judge who will adjudicate the applicant's substantive complaints. So will the matter of a notice of a constitutional question, which the applicant is accorded leave to serve, if so advised in the circumstances regarding the powers purported to be exercised by the passport office, as a result of the applicant's loss of his passport in Singapore.
CONVERTING THIS APPLICATION TO A NON-IMMIGRATION PROCEEDING
[7] Since this matter is not one which involves the Immigration Act, the matter should be converted into a non-immigration judicial review.
SINGLE DECISION
[8] The respondents ask for the relief sought in paragraph 1(a) of the applicant's originating notice be removed as the applicant is attacking two matters in a single application. The respondents state that the applicant ought to have filed a separate proceeding in order to seek a declaration that the actions of the Canadian officials in Singapore were unlawful. The respondents rely on Rule 1602(4) [now 302] of the Federal Court Rules which provides that:
| 1602.(4) The notice of motion shall be in respect of a single decision, order or other matter only, except in respect of a decision under the Immigration Act that a person has no credible basis for a claim as a Convention refugee and a subsequent removal order issued against the person. |
| now: |
| 302. Unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought. |
[9] Rule 501(1) is a transitional provision. It runs:
| 501.(1) Subject to subsection (2), these Rules apply to all proceedings, including further steps taken in a proceedings that were commenced before the coming into force of these Rules. |
| 504. These Rules come into force on April 25,1988. |
The Court notes that the restriction now expressed in Rule 501(1) relates only to judicial review of an "order".
[10] While the rule states that only one decision ("order" solely, now) may be attacked, the Trial Division has also recognized that continuing "acts" or decisions may also be reviewed under s.18.1 of the Federal Court Act without contravening rule 1602(4) (see for example Puccini v. Canada (Department of Agriculture), [1993] 3 F.C. 557). However, in those cases, the acts in question were of a continuing nature, making it difficult for the applicant to pinpoint a single decision from which relief could be sought by this Court. They did not involve, as in the facts here, two different fact situations, two different types of relief sought and two different decision-making bodies.
[11] The applicant asserts that the events in Singapore are relevant to the issue of the revocation of his passport. However, the sole reason that the applicant's passport was revoked is due to the fact that he gave his boarding pass to a friend fearing persecution. The applicant has not disputed this fact. Therefore that event, as it relates to the decision to revoke his passport, is not in question, and does not demonstrate a continuing violation of the applicant's rights.
[12] The applicant's treatment at the hands of the Canadian officials in Singapore is a different event, even though it stemmed from the original act of giving away his boarding pass. Accordingly, while the events that occurred in Singapore in regard to the applicant's treatment at the hands of the Canadian officials are disturbing, they do not amount to a continuing decision by the same body which in any way relates to the decision to revoke his passport. That said, if the applicant wants to obtain a declaration that those acts were unlawful, he should file a separate originating notice of motion after obtaining leave of the Court for an extension of time. Accordingly, the respondents' motion is allowed on this point. The determination of this question, however, may be seen in a different light by the judge who will make the substantive adjudication between the parties.
PROPER PARTIES
[13] The respondents argue that the only proper respondent is the Attorney General of Canada due to the relief sought by the applicant. The applicant has made oral submissions on this point. This part of the motion may be premature.
[14] In order to determine the proper parties to be named in this application for judicial review it is necessary to look at the relief sought. The applicant wants an order setting aside the decision to revoke his passport. He also seeks a declaration that sections of the Canadian Passport Order violate the Charter. In regard to the decision to revoke his passport, the applicant cannot name the Department as a respondent. In Glaxo Canada Inc. v. Department of National Health and Welfare (1987), 15 C.P.R. (3d) 1, Mr. Justice Rouleau held that a government department is not a legal entity and therefore cannot be named as a party. The correct party to name is the Minister. Similarly, in Robichaud v. Canada (Attorney General) (1991), 44 F.T.R. 172, Mr. Justice Cullen reached the same conclusion, albeit in the context of the right to sue the Crown. In Enniss v. Canada (Canadian Human Rights Commission) T-2992-93, November 24, 1995, Mr. Justice Nadon held that the same principle applies to judicial review proceedings. Accordingly, the Department of Foreign Affairs should be removed as a respondent, but the Minister of External Affairs is a properly named party as the Passport Office is a section of the Department of External Affairs. The Passport Office is a properly named respondent since the applicant is attacking the jurisdiction of the office to make the decision to revoke the applicant's passport. (C.P. Air Lines Ltd. v. CALPA, [1988] 2 F.C. 493 (C./A.)). The applicant attacks the vires of the order which is said to empower the Passport Office.
[15] In regard to Her Majesty the Queen, the respondents' statement is correct. Her Majesty the Queen is not a proper party to an application for judicial review under 18.1 of the Federal Court Act. (see McCaffrey v. Minister of National Revenue (1992), 59 F.T.R. 12). Similarly, declarations of invalidity cannot be brought against Her Majesty the Queen and should instead be brought against the Attorney General of Canada (Law Society of B.C. v. Attorney General of Canada, [1980] 4 W.W.R. 6 (B.C.C./A.), Gratton v. Canada (Judicial Council), [1994] 2 F.C. 769 and Medicine Hat v. Canada (A.G.), [1984] 3 W.W.R. 535 (Alta.Q.B.). Thus, Her Majesty the Queen is not a properly named respondent. The Attorney General should be named instead.
[16] The Secretary of State is also not a properly named respondent since the decision attacked is one which rests in the authority of the Minister of External Affairs.
[17] Therefore the strictly proper parties may seem to be the Attorney General of Canada and the Minister of External Affairs. However, the Court's complete intervention at this juncture will not be effected.
EXTENSION OF TIME
[18] The respondents ask for a 45-day extension of time due to the fact that the case was improperly filed as an immigration file and the proper parties have not been notified. While this is true, it appears that the respondents are trying to avert rule 1603(3) which provides that the responding parties must file their submissions no later than 30 days after being served with the originating notice. Due to the delay (based in part on the applicant's error in naming the correct parties) the respondents should not be granted an extension beyond the 30 days specified in the rules, in ordinary circumstances. However, the applicant's counsel averred professionally, that, if asked, he would have consented to the extension which the respondents ask the Court to order.
[19] In Pharmacia Inc. v. Minister of National Health & Welfare (1994), 58 C.P.R. (3d) 207, Mr. Justice Strayer noted that in judicial review applications parties should proceed to the merits in accordance with the timetable set out in the Rules (or by the Court). At page 215 Strayer J.A. states:
| Unlike the rules pertaining to actions, the 1600 Rules 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... This all reinforces the view that the focus in judicial review is on moving the application along to the hearing state 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. |
Therefore, the respondents should be allowed to use the registrar's mistake to their advantage by being accorded an increased amount of time within which to file their responding materials, a result to which the applicant, by counsel, consents, in any event.
[20] In one sense, that expressed in Pharmacia v. M.N.H. & W. (above), this entire motion by the respondents is premature, for these matters ought to be dealt with by the judge who will adjudicate the substantive issues between the parties, without any interlocutory interventions. However, it is apparent that the parties and the Court are faced with an anachronism which really ought to be corrected. The applicant's counsel at the hearing consented to the addition of the Attorney General of Canada as a responding party, but was unwilling to "lose" any of the respondents whom he had selected. It is obvious that not all are interested parties. The Government of Canada can be impleaded sub nomine either "Her Majesty the Queen" or "the Attorney General of Canada". Everyone knows the ancient distinctions, but it is a waste of time and creates undue complications to play such "games", which do not reflect "the better administration of the laws of Canada", as asserted in section 101 of the Constitution Act, 1867.
[21] Since this Court is not a legislative body, the two nominal descriptions of the respondent Government of Canada, must be accepted as provided from earlier eras. The Attorney General shall be designated a respondent herein, but the Court will leave in place, Her Majesty the Queen, striking only the redundant: "in the right of Canada".
[22] Costs will be costs in the cause to be awarded, if at all, by the next judge.
Judge
Ottawa, Ontario
September 22, 1998