Date: 20210407

Docket: T-1-21

Citation: 2021 FC 302

Toronto, Ontario, April 7, 2021

PRESENT: The Honourable Madam Justice Furlanetto

BETWEEN:

TIMOTHY E. LEAHY

Applicant

and

THE MINISTER OF JUSTICE

Respondent

ORDER AND REASONS

[1] UPON motion in writing by the Attorney General of Canada (“AG”), filed February 22, 2021, pursuant to Rule 369 of the Federal Courts Rules, for an Order:

1. Amending the style of cause to remove the Supreme Court of Canada Registrar as Respondent, and add the Minister of Justice as the Respondent;
2. Dismissing this application for judicial review;
3. Granting costs to the AG fixed at $2,500; and
4. Granting such further and other relief as counsel may advise and this Honourable Court permits;

[2] AND UPON considering the motion records of the AG and of the Applicant and the Applicant’s letter filed March 4, 2021;

[3] This is an application for judicial review of a decision of the Supreme Court of Canada Registrar (the “Registrar”) made pursuant to section 73(4) of the Supreme Court Act. As its requested relief on the application, the Applicant asks for:

1. an order in the nature of a mandamus requiring Mr. Power to forward my motion for reconsideration forthwith to the Court for disposition in accordance with law and the Court’s duty to ensure justice and the rule of law in Canada;

2. a declaration, declaring that neither the Registrar nor anyone who has not been appointed a justice of the Supreme Court of Canada may lawfully render a substantive decision on a matter before the Court;

3. confirmation from the Supreme Court justices verifying receipt of my motion;

4. any additional relief this Honourable Court should consider appropriate and just.

[4] The Applicant names the Registrar as Respondent, but names counsel for the AG as the Respondent’s counsel. The Applicant has served counsel for the AG with the application materials. Counsel for the AG has advised the Applicant by correspondence that it does not represent the Registrar and as such cannot accept service or respond on its behalf.

[5] By the present motion, counsel for the AG seeks to amend the named Respondent in the application to remove the Registrar and instead name the Minister of Justice as the Respondent. The AG also seeks to strike the application as a whole as being bereft of any possibility of success.

[6] As a preliminary matter, the Applicant requested by way of letter filed with its responding motion record that an oral hearing be convened despite this motion having been brought in writing under Rule 369 of the Federal Courts Rules. Pursuant to Rule 369(4), the Court maintains discretion to determine whether an oral hearing is necessary upon review of the parties’ written submissions. Having considered the application, the motion materials filed, and the Applicant’s letter, it is my view that this motion does not require an oral hearing and can be dealt with through the substantive submissions already made through the section 369 process, without prejudice to the Applicant.

I. Background

[7] By way of background, the litigation involving this matter has come full circle and involves circumstances arising from the Applicant’s disbarment from the Law Society of Ontario. It began with an application for judicial review in which the Applicant sought to quash a decision of the Department of Justice to communicate with the Law Society of Ontario regarding his entitlement to appear in the Federal Courts and a declaration that he might appear as counsel in the Federal Courts. The application was struck for want of jurisdiction and for being an abuse of process, without leave to amend. On appeal, the Federal Court of Appeal granted the appeal in part and remitted the matter back for redetermination as to whether the Applicant was entitled to the declaration sought. The Federal Court dismissed the application on July 23, 2019, finding that there was no legal basis to grant the Applicant the declaration he was seeking (“FC Decision”). The Applicant then brought a motion for an extension of time to appeal the FC Decision, which was dismissed on February 17, 2020 by a single judge of the Federal Court of Appeal (“FCA Decision”). The Applicant next brought an application seeking leave to appeal the FCA Decision to the Supreme Court of Canada, which was dismissed on October 15, 2020 (“Leave Decision”). A motion to reconsider the Leave Decision was dismissed by the Registrar on the basis that it did not comply with Rule 73 of the Rules of the Supreme Court of Canada (“Supreme Court Rules”) as the materials submitted did not establish the exceedingly rare circumstances necessary to warrant reconsideration (“Reconsideration Decision”). It is the Reconsideration Decision that is now being challenged in the present judicial review.

II. Issues

[8] There are two issues before the Court on this motion:

1. Should the style of cause be amended to replace the Registrar with the Minister of Justice?
2. Should the application be struck as being bereft of any possibility of success?

[9] For the reasons that follow, the motion shall be granted and the application struck without leave to amend.

III. Style of Cause

[10] The AG seeks to remove the “Supreme Court of Canada Registrar” from the style of cause and to name the Minister of Justice as the named Respondent.

[11] The AG asserts that the Registrar cannot be named as Respondent as it was the decision-maker of the decision that the Applicant seeks to review. It asserts that the Minister of Justice is the proper respondent as it was the respondent named in the Reconsideration Decision.

[12] The AG notes that the Applicant has named counsel for the AG on its application and has served counsel for the AG with its application materials. However, as the AG does not represent the Registrar it cannot act on its behalf. The AG seeks to correct the name of the Respondent and to then move to strike the application as being bereft of any possibility of success.

[13] The Applicant appears to agree with this change, while seeming to argue that it runs contrary to the teachings in Sydel v. Canada (Attorney General), 2013 FC 1116 (“Sydel”).

[14] Rule 303(1)(a) of the Federal Courts Rules provides that an applicant shall name as respondent every person directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought. Pursuant to Rule 303(2) where there are no persons that can be named, the Attorney General of Canada should be the named respondent.

[15] I agree with the AG that the Registrar as decision-maker should not be named as a party to the proceeding. Further, I agree that the Minister of Justice who was the responding party on the Reconsideration Decision is a party “directly affected” by the outcome of this application and should be the named Respondent.

IV. Striking the Application

[16] The AG argues that this application should be struck as prior binding decisions already establish that the Federal Court cannot grant the ultimate relief requested. The Applicant seeks to distinguish the prior decisions from the present application. For the reasons that follow, I agree that prior binding authority has already established that this application is without merit and that the ultimate relief requested (an order compelling a judge of the Supreme Court to determine the Applicant’s reconsideration motion) cannot be granted by this Court.

[17] The legal test relating to a motion to strike an application is well established. The threshold for striking a notice of application is high: the Court will strike a notice of application for judicial review only in exceptional circumstances where it is “so clearly improper as to be bereft of any possibility of success”: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCTAD), [1995] 1 F.C. 588 (C.A.), at page 600. As summarized in JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250 at para 47, “[t]here must be a “show stopper” or a “knockout punch” an obvious, fatal flaw striking at the root of the Court’s power to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117, at para 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286, at para 6; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.”

[18] Where there is clear and binding authority that is directly contrary to the position on which the application is based, it is appropriate to strike the application at an early stage as being bereft of any possibility of success: LJP Sales Agency Inc. v. Canada (National Revenue), 2007 FCA 114 at para 8.

[19] The application takes issue with the role of the Registrar under Rule 73(4) of the Supreme Court Rules. However, the role of the Registrar under Rule 73(4) was already considered by the Supreme Court of Canada in Stubicar v. Canada, 2014 SCC 38 (“Stubicar”). As stated at para 7-9 of that decision, the Registrar has authority to refuse a motion for reconsideration pursuant to Rule 73(4) where the Registrar is of the view that the exceedingly rare circumstances necessary for reconsideration are not established. A decision under Rule 73(4) is not an Order and is not reviewable by a judge under Rule 78:

[7] The Registrar has the important function of assisting the Court in managing its docket and it is in that role that the Registrar is acting when making decisions under Rule 73(4). The decision of the Registrar to not accept a motion for reconsideration for filing is a function of the Registrar’s authority pursuant to Rule 8(2), which allows the Registrar to refuse a document that does not comply with the Rules.

[8] A decision of the Registrar under Rule 73(4) is not an order of the Registrar subject to review by a judge under Rule 78. Reconsideration of an application for leave to appeal will, as Rule 73(1) states, occur in “exceedingly rare circumstances”. Rule 73(3)(b) sets forth the stringent requirement that such an application be accompanied by an affidavit setting out the exceedingly rare circumstances and the reason why the issue was not previously raised. In the absence of such an affidavit – i.e. if the circumstances set out in the affidavit are not “exceedingly rare” – the Registrar shall not submit the application to the Court and it will be refused.

[9] If a decision of the Registrar under Rule 73(4) constituted an order, it would be subject to review by a judge of the Court under Rule 78. While the judge would not be conducting a reconsideration of the application for leave, he or she would nonetheless be occupied with reviewing the Registrar’s decision, including whether the motion contains an affidavit setting out exceedingly rare circumstances and an explanation of why the issue was not previously raised. As Rule 73(4) is intended to limit access to the Court where minimum standards are not met, allowing for review of Rule 73(4) decisions of the Registrar would be contrary to the intent of the scheme. Accordingly, a decision of the Registrar under Rule 73(4) to not submit an application to the Court is not reviewable by a judge under Rule 78.

[20] I do not agree with the Applicant that there is any inconsistency or limitation to be read into the authority provided by Rule 8(2) that would restrict the review that may be conducted by the Registrar to one strictly of form. There is no such restriction provided by the language of the Supreme Court Rules. To the contrary, as set out in the full text of paragraph 8 of Stubicar cited above, the authority conferred on the Registrar is one that allows for a determination of whether the affidavit submitted in support of a motion for reconsideration meets the minimum standard of setting out circumstances that are “exceedingly rare.” While the Applicant seeks to read-down Stubicar, this decision of the Supreme Court of Canada speaks directly to the role of the Registrar and the Rules in issue. The decision is of binding authority.

[21] Further, the Applicant appears to concede the relevance of Sydel; however, he argues that there is a significant difference in how this application is formulated which distinguishes Sydelfrom this case. I do not agree. In Sydel, like the present proceeding, the applicant argued that her motion for reconsideration should have been considered by a judge of the Supreme Court of Canada. In both cases, the relief requested involves the Registrar being compelled to put the motion for reconsideration of the application for leave to appeal to the Supreme Court of Canada before a judge of that court. In her decision, Justice Kane reviewed the authority of the Registrar and the role of the Registrar on a reconsideration motion.

[33] The Supreme Court Act provides as follows:

18. The Registrar has such authority to exercise the jurisdiction of a judge sitting in chambers as may be conferred on the Registrar by general rules or orders made under this Act.

18. Le registraire exerce la juridiction d’un juge en chambre selon les pouvoirs qui lui sont conférés par les ordonnances ou règles générales édictées en vertu de la présente loi.

[34] The relevant Supreme Court Rules provide:

12. Subject to Rule 78, every order made by the Registrar shall be binding on all parties concerned as if the order had been made by a judge.

12. Sous réserve de la règle 78, l’ordonnance du registraire lie toutes les parties intéressées comme si elle émanait d’un juge.

13. The Registrar may refer any matter before him or her to a judge.

13. Le registraire peut renvoyer à un juge toute affaire qui lui est soumise.

73. (1) There shall be no reconsideration of an application for leave to appeal unless there are exceedingly rare circumstances in the case that warrant consideration by the Court.

73. (1) Aucune demande d’autorisation d’appel ne peut faire l’objet d’un réexamen sauf si des circonstances extrêmement rares le justifient.

78. (1) Within 20 days after the Registrar makes an order, any party affected by the order may make a motion to a judge to review the order.

78. (1) Toute partie visée par une ordonnance du registraire peut, dans les vingt jours suivant le prononcé de celle-ci, en demander la révision à un juge par requête.

(2) The affidavit in support of the motion shall set out the reasons for the objection to the order.

(2) L’affidavit à l’appui de la requête en expose les motifs.

(Emphasis added)

[Je souligne]

[35] As I interpret those provisions, the Registrar’s authority to refuse the motion for reconsideration is the same as that of a judge in Chambers as that authority has been conferred by Rule 12. The Order made by the Registrar is binding.

[36] The decision of the Registrar clearly indicated that section 78 was not applicable:

I have reviewed your motion for reconsideration and your affidavit in support. I regret to inform you that, in my opinion, your motion does not reveal that exceedingly rare circumstances which would warrant reconsideration by this Court. Furthermore, please note that Rule 78 of the Rules of the Supreme Court of Canada is not applicable to this matter.

[22] As noted by Justice Kane through the emphasis made to the passages from the legislation above, the Registrar has authority to review a motion for reconsideration and the decision of the Registrar is binding. There is no requirement that the Registrar refer such a motion to a judge.

[23] The Applicant argues that there is a difference between the relief requested in Sydel and the present application as in Sydel the Court was asked to order the Minister to order the Registrar to forward her reconsideration motion to the Court, while in the present case the Applicant seeks to order the Registrar directly to take this step. However this asserted difference is of no moment, the same underlying principle applies: the relief sought offends the principle of judicial independence, the hierarchy of the Court structure, and the supremacy of the Supreme Court of Canada. The teachings in Scheuneman v. Canada (Attorney General), 2003 FCA 194 (“Scheuneman”) that were applied in Sydel also apply here and are binding on any decision in respect of this application.

[24] As held at para 5-7, 10 and 11 of Scheuneman, there is a system of judicial hierarchy and the Federal Court does not have jurisdiction to override a decision of the Supreme Court:

[5] ... This is an appeal by Eric Scheuneman from a decision of Pinard J. of the Trial Division, dated May 22, 2002, granting a motion by the Attorney General to strike an application for judicial review brought by Mr. Scheuneman. The application for judicial review concerns a dismissal by the Supreme Court of Canada, dated June 21, 2001, of Mr. Scheuneman's application for leave to appeal a decision of this Court, dated December 1, 2000, and the Supreme Court's dismissal of his motion to reconsider its refusal of leave, dated November 1, 2001.

[6] Mr. Scheuneman maintains that his reconsideration motion and his leave application were improperly denied, and he asks this Court to set aside the refusal to reconsider and to order the Supreme Court to reconsider according to law its refusal to grant him leave to appeal.

[7] After carefully considering the written materials filed by the parties, we are all of the view that this appeal should be dismissed. Since Mr. Scheuneman's application for judicial review is bereft of any possibility of success it was appropriate for Pinard J. to strike the application for judicial review: David Bull Laboratories (Can.) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 (C.A.). The application was bound to fail because the Supreme Court of Canada is not a "federal board, commission or other tribunal" within the meaning of sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7. Therefore, its decisions or orders cannot be the subject of an application for judicial review in the Federal Court.

[10] .... In our view, it would be so absurd to interpret "federal board, commission or other tribunal" as including the Supreme Court of Canada that Parliament did not think it necessary specifically to exclude the Judges of that Court from the definition. The court system in Canada, and elsewhere, is hierarchical in nature. In Canada, the Supreme Court of Canada sits at the apex of our judicial system. Subject to a residual discretion to reconsider its own decisions (R. v. Hinse, 1997 CanLII 394 (SCC), [1997] 1 S.C.R. 3), the Supreme Court's judgments (including decisions not to reconsider a leave application) are final and conclusive: Supreme Court of Canada Act, section 52. They are not subject to appeal. To interpret "federal board, commission or other tribunal" as including the Supreme Court of Canada, and as thus permitting the Federal Court to review judgments of the Supreme Court of Canada, would undermine the finality of the Supreme Court's decisions and subvert the judicial hierarchy.

[11] If, as Mr. Scheuneman maintains, the Federal Court could review a decision or order of the Supreme Court of Canada, the decision of the Federal Court would itself be subject to appeal to the Supreme Court of Canada. Moreover, if the Supreme Court refused leave to appeal, that refusal could itself potentially be the subject of a further application for judicial review to the Federal Court. It would be absurd to construe the Federal Courts Act as conferring on the Court jurisdiction to review the decision of a body when the result of the review could then be appealed to the very body that made the decision under review. There would be no finality to litigation.

[25] These passages from Scheuneman, which were applied in Sydel, apply equally well to this proceeding: a decision of the Supreme Court of Canada Registrar cannot be reviewed by this Court as it is not a decision of a "federal board, commission or other tribunal" within the meaning of sections 18 and 18.1 of the Federal Courts Act.

[26] There is no higher authority than the Supreme Court of Canada and its decisions cannot be undermined by a Court whose decisions it has the authority to review. The same conclusion applies as in Sydel supra at para 57: if the relief requested by the Applicant were granted here, a decision of the Registrar, which according to Rule 12 of the Supreme Court Rules is as binding as a decision of a judge in Chambers, would be subject to, and could be undermined by, the authority of this Court. The hierarchy of authority would be disturbed and there would be no finality to the decision. Further, by compelling the Registrar to put the motion for reconsideration before a judge of the Supreme Court, this Court would be ordering a second review of the reconsideration motion, contrary to the scheme of the Supreme Court Rules.

[27] The Applicant tries to distinguish Scheuneman by arguing that he is not seeking to reverse the Supreme Court’s denial of leave or anything any Supreme Court justice has done. However, this does not follow; if he were not seeking this eventual relief, there would be no basis for his reconsideration motion or for his efforts on this judicial review.

[28] I agree with the Respondent, the present application has no reasonable chance of success.

[29] The Applicant raises as a further argument that section 25 of the Supreme Court Act requires a quorum of at least five justices before the Supreme Court may exercise its role to dispose of appeals. This section has no relevance to the present application. As set out above, the Supreme Court Registrar has authority to reject a motion for reconsideration where it does not satisfy the requirements of rule 73 of the Supreme Court Rules.

[30] The Applicant’s further contention that the Supreme Court Registrar did not fulfill his duty and that section 73(4) of the Supreme Court Rules is unlawful because it does not set out the parameters within which the delegated decision-maker may operate are nothing more than bald assertions and are not grounded by the present application.

[31] The Applicant’s argument that the Supreme Court Registrar’s decision should be reviewable has already been considered in Stubicar. As held at paragraph 9 of Stubicar, Rule 73(4) is intended to limit access to the Court where minimum standards are not met and to avoid review of determinations regarding these minimum standards. The order of mandamus and declaration sought are contrary to the teachings of Stubicar and the intended scheme of the Supreme Court Rules.

[32] The Applicant’s suggestion that the Supreme Court Registrar’s actions should be reviewed by a body similar to the Canadian Judicial Council is misplaced. There is no allegation of misconduct that has been alleged or shown. What the Applicant is seeking to do is resurrect a review of the determination to deny his reconsideration motion. Again, this speaks to the need to have finality of decision. At some point, the appeal process must end. This is that time.

[33] The present application has no reasonable prospect of success and will be struck in its entirety.

V. Costs

[34] The AG requests costs in the amount of $2,500, payable forthwith. As noted by the AG, the Applicant, who is a former lawyer, was advised of the deficiencies in the application on multiple occasions and was given an opportunity to discontinue the application so that a motion did not have to be brought. Its failure to do so in the face of settled law justifies an award of costs that should be made payable forthwith.

[35] While I agree that a forthwith costs award is appropriate in the circumstances, I will fix the amount in line with what would be awarded under the Tariff.

ORDER in T-1-21

THIS COURT ORDERS that:

1. The style of cause shall be amended with immediate effect to remove the Supreme Court of Canada Registrar from the style of cause and to add the Minister of Justice as the named respondent.
2. The application is struck, without leave to amend.
3. The AG shall be awarded costs in the amount of $1,000 payable forthwith.

"Angela Furlanetto"

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

T-1-21

STYLE OF CAUSE:

TIMOTHY E. LEAHY v THE MINISTER OF JUSTICE

MATTER CONSIDERED AT TORONTO, ONTARIO WITHOUT PERSONAL APPEARANCE OF THE PARTIES

ORDER AND REASONS:

FURLANETTO J.

DATED:

April 7, 2021

WRITTEN REPRESENTATIONS:

Timothy E. Leahy

The Applicant on his own behalf

Joseph Cheng

Samantha Pillon

For The Respondent

SOLICITORS OF RECORD:

Attorney General of Canada

Toronto, Ontario

For The Respondent