Citation: 2007 FC 241
Ottawa, Ontario, February 23, 2007
PRESENT: The Honourable Mr. Justice Hugessen
BETWEEN:
PUBLIC SERVICE ALLIANCE OF CANADA,
JEAN YVES DUHAIME, PAUL GRAVEL, CHRISTIAN LEROUX,
JACQUES LAFOND AND JOHN HICKEY
and
REASONS FOR ORDER AND ORDER
[1] The litigation which forms the backdrop to the interlocutory motions before me is an application for judicial review brought by the Public Service Alliance of Canada (“PSAC”) against an administrative decision by an official of Public Works and Government Services Canada to the effect that five persons working for the Mint were not employees for the purposes of the Public Service Superannuation Act (R.S., 1985, c. P-36). That decision was rendered at PSAC's request following a successful application by it to the Canadian Industrial Relations Board (“CIRB”) to have those persons declared to be employees of the Mint and members of the bargaining unit represented by PSAC. The persons concerned were not initially named as applicants.
[2] There are two motions presently before me. The first is an appeal by the Attorney General from an Order of a Prothonotary dismissing the Attorney General's motion to strike out the application for judicial review on the ground that the applicant PSAC did not have the required standing.
[3] Following that Order, the prothonotary directed that the five employees on whose behalf PSAC had sought the impugned decision, being persons "directly affected" by the decision, should be added as necessary parties pursuant to Rule 104 and that has now been done and the proceedings amended accordingly. Following such amendment, and while the appeal from the original Order was pending, the Attorney General has moved before the judge seized of the appeal to strike out PSAC as an applicant in the proceeding as so amended.
[4] While in the motion before the prothonotary the issues raised included both PSAC's standing to seek judicial review as of right as a person "directly affected" by the impugned decision within the meaning of s. 18.1 of the Federal Courts Act (R.S., 1985, c. F-7) and its right to seek such review as a matter of public interest, that latter issue has now disappeared. It is common ground that the five added employees are "directly affected" by the decision and, since one of the criteria for granting public interest standing is that there is no other reasonable and effective manner in which to bring the issue to court, the presence of those employees as applicants means that that criterion can not now be met.
[5] In my view, the consequence of the forgoing is that the granting of the Attorney General's appeal can now have no practical effect since, even if PSAC were struck out as one of six applicants, the application would continue in the names of the other five.
[6] The only remaining issue, that of PSAC's standing as of right because it is "directly affected" by the impugned decision, is the basis upon which the prothonotary rested her decision and is duplicated in the second motion before me. The appeal is of purely academic interest and should therefore be dismissed as moot.
[7] Furthermore, that issue is not one which should be determined on an interlocutory motion in the context of a judicial review application (see David Bull Laboratories v. Pharmacia Inc., [1994] F.C.J. No. 2076 (QL); 182 N.R. 158). PSAC was clearly accepted by the initial decision maker as having standing (it was the initiator of the administrative process) and was notified of the decision to the exclusion of the employees concerned. While PSAC's standing may be debatable, its position is far from being obviously bereft of merit and its determination one way or the other will have no impact on the final outcome of the judicial review application. Both the Court and the parties have better and more pressing ways to spend their time and resources.
[8] Counsel for the Attorney General was frankly unable to answer me when I asked her to explain in what way her motion could contribute to “the just, most expeditious and least expensive determination” of this litigation as required by Rule 3 of the Federal Courts Rules (SOR/98-106). The five individuals are represented by the same solicitors as PSAC (as required by Rule 102) and the striking out of the latter would not diminish the costs of the litigation or prolong its resolution. The initial decision by the CIRB was dated May 1, 2003 and was not attacked by the Government; the administrative decision now impugned was dated May 23, 2006; the matter has already been dragging on for far too long. The point taken by the Attorney General is excessively technical and wholly unrelated to the merits of the application or to its just resolution. The motion to strike, too, should be dismissed.
[9] In my view, the Attorney General should bear the costs of both motions, to be assessed and payable in any event of the cause.
ORDER
THIS COURT ORDERS that:
1. The appeal of the prothonotary's decision of October 20, 2006 and the motion to strike of the Attorney General are both dismissed with costs to be assessed, payable in any event of the cause.
“James K. Hugessen”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1079-06
STYLE OF CAUSE: Public Service Alliance of Canada et al. v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 21, 2007
REASONS FOR ORDER AND ORDER: Hugessen J.
APPEARANCES:
Mr. Andrew Raven FOR THE APPLICANTS
Ms. Anne M. Turley and FOR THE RESPONDENT
Mr. Lorne Ptack
SOLICITORS OF RECORD:
Raven, Cameron, Ballantyne & Yazbeck LLP FOR THE APPLICANTS
Ottawa, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada