Federal Court of Appeal Decisions

Date: 20190429

Docket: A-23-17

Citation: 2019 FCA 101

Heard at Whitehorse, Yukon Territory and Edmonton, Alberta, by videoconference and teleconference, on April 29, 2019.

Judgment delivered from the Bench at Whitehorse, Yukon Territory, on April 29, 2019.

Date: 20190429

Docket: A-23-17

Citation: 2019 FCA 101

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Whitehorse, Yukon Territory, on April 29, 2019.)

STRATAS J.A.

[1]  The appellant appeals from the order dated January 5, 2017 of the Federal Court (per LeBlanc J.). The Federal Court dismissed her Rule 51 appeal from two orders both dated November 21, 2016 of Prothonotary Lafrenière.

[2]  One of the Prothonotary’s orders granted the respondents an extension of time to serve their affidavit of documents and required the appellant to pay into court $8,900 as security for costs. The other dismissed the appellant’s motion related to certain pre-trial and trial issues on the ground that they were moot, unnecessary, premature and unfounded. In the appeal from the Prothonotary’s orders, the Federal Court found no reviewable errors.

[3]  We dismiss the appeal to this Court. We see no reviewable error on the part of the Federal Court in its review of the factually-suffused, largely discretionary matters decided by the Prothonotary. We substantially adopt the Federal Court’s reasons.

[4]  The appellant submits the Prothonotary had no evidence to support the orders he made. We disagree. The Prothonotary had evidence on which to make the orders he did.

[5]  We wish to clarify the Federal Court’s discussion of the appellate standard of review in matters such as this. The Federal Court cited with approval both Hospira Healthcare Corporation v. The Kennedy Institute of Rheumatology, 2016 FCA 215 and Turmel v. Canada, 2016 FCA 9. Turmel, the earlier case of the two, was decided at a time when the state of the law on the standard of review was in flux in this Court. Hospira alone states the correct law on this point and, in future, should be followed exclusively.

[6]  In this Court, the appellant submits that the orders of the Prothonotary and the Federal Court discriminated against her on the basis of national origin, are cruel and unusual punishment, and deprived her of her freedom of expression and thus, are contrary to sections 2(b), 12 and 15 of the Charter. We see no merit to this submission. The Prothonotary and the Federal Court merely disagreed with the appellant on the facts and the law.

[7]  The appellant appears to have tried to use the motions before the Prothonotary as an opportunity to explore and test her concern that some documents were not produced and others were falsified, and generally to test the respondents’ evidence. In this Court, she complains she was denied that opportunity and was prejudiced. In our view, this was not procedurally unfair or prejudicial. The appellant will have this opportunity during the discovery stage of the proceedings, as was explained to her by the Federal Court at paras. 16-18.

[8]  The Federal Court appropriately warned the appellant (at paras. 34-35) not to make groundless and wholly unsupported allegations of judicial bias because of the damage they cause to the administration of justice. Nevertheless, in her memorandum in this Court and in oral submissions, the appellant again has made such allegations. All we see on this record is disappointment with the appellant’s submissions on the merits, not bias. We reiterate the warning given by the Federal Court. In the hearing before us, the appellant accepted that we were not biased though, perhaps confusing disagreement on the merits with bias, she qualified this by saying she had not yet seen the decision in this appeal.

[9]  Counsel for the respondent was to have appeared by video conference. However, there were technical difficulties and she attended the majority of the hearing by teleconference without objection. Twice the Court adjourned to try to remedy the video conference. We are satisfied that the brief adjournments did not work any procedural unfairness to any party.

[10]  The respondents seek $1,500 fixed costs, all-inclusive. We agree with this submission. The appeal will be dismissed with costs fixed at $1,500, all-inclusive.

"David Stratas"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE LEBLANC DATED JANUARY 5, 2017, NO. T-1342-16

APPEARANCES:

SOLICITORS OF RECORD: