Federal Court of Appeal Decisions

     A-306-92

CORAM:      STONE J.A.

         STRAYER J.A.

         DÉCARY J.A.

B E T W E E N :

EMILE MARGUERITA MARCUS MENNES

     Appellant

     - and -

IAN WADDELL, in his capacity as a member of Her Majesty's Parliament of Canada

     Respondent

Heard at Ottawa, Ontario, Tuesday, September 9, 1997.

JUDGMENT delivered from the Bench at Ottawa, Ontario, on Tuesday, September 9, 1997.

REASONS FOR JUDGMENT BY THE COURT

     A-306-92

CORAM:      STONE J.A.

         STRAYER J.A.

         DÉCARY J.A.

B E T W E E N :

EMILE MARGUERITA MARCUS MENNES

     Appellant

     - and -

IAN WADDELL, in his capacity as a member of Her Majesty's Parliament of Canada

     Respondent

     REASONS FOR JUDGMENT

     (Judgment rendered at Ottawa, Ontario, Tuesday, September 9, 1997)

BY THE COURT:

         This appeal is from an order of Reed J. of February 25, 1992, dismissing without written reasons the appellant's application for relief sought therein including, particularly, a writ of certiorari or relief in the nature thereof quashing the respondent's "decision" as a Member of Parliament of December 13, 1991. This "decision" was not to "become involved in individual legal questions, be they civil or criminal in nature" and suggesting that the appellant retain legal counsel if he decided to pursue the matter further under section 690 of the Criminal Code.

         Following the dismissal of the appeal from the bench, the parties requested that brief reasons be filed.

         At the very outset of the hearing, the Court invited submissions on whether the Trial Division had jurisdiction to grant the relief sought having regard to the provisions of paragraph 18(1)(a) and (b), the definition of "federal board, commission or other tribunal" in subsection 2(1) and the provisions of subsection 2(2) of the Federal Court Act (the "Act"). Those provisions read:

18.(1) Subject to section 28, the Trial Division has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

...

2. (1) In this Act

...

"federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867;

...

(2) For greater certainty, the expression "federal board, commission or other tribunal", as defined in subsection (1), does not include the Senate, the House of Commons or any committee or member of either House.

         The appellant declined to make submissions on the question and instead requested an adjournment on two bases. The first was that due to the manner in which he had been transferred from his place of incarceration to the courtroom in Ottawa for the purposes of the appeal, the case material and notes had not accompanied him. Copies of his Memorandum of Fact and Law were available in the courtroom. Secondly, he wished time to file and serve a notice of constitutional question pursuant to section 57 of the Act. The Court noted that as his Memorandum of Fact and Law had been filed on March 11, 1993, he had had ample time to take that step in conformity with section 57. The adjournment was refused.

         At the direction of the Court, counsel for the respondent provided the appellant with a copy of the latter's Memorandum of Fact and Law. An opportunity was then afforded to the appellant to review his factum and the above referred to provisions of the Act before responding to the Court's invitation. The Court recessed. Despite this opportunity, the appellant declined to make submissions or to respond to the respondent's submission that the Trial Division was without jurisdiction under paragraph 18(1)(a) or (b) to grant the relief sought.

         It is apparent that the respondent's position is well founded. In order for the Trial Division to possess jurisdiction under paragraph 18(1)(a) or (b) it would have to be shown that the respondent was a "federal board, commission or other tribunal" as defined in section 2 of the Act. We are satisfied that as a Member of Parliament the respondent could not be so classified.

         Accordingly, the appeal from the order of February 25, 1992 was dismissed.

     "A.J. STONE"

     J.A.

     "B.L. STRAYER"

     J.A.

     "ROBERT DÉCARY"

     J.A.

                         FEDERAL COURT OF CANADA

                         Court No. A-306-92

BETWEEN:

EMILE MARGUERITA MARCUS MENNES

     - and -

IAN WADDELL, in his capacity as a member of Her Majesty's Parliament of Canada

             ________________________________________

                     REASONS FOR JUDGMENT

     ________________________________________