Date: 20240123
Docket: T-382-22
Citation: 2024 FC 32
Ottawa, Ontario, January 23, 2024
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
JEREMIAH JOST, EDWARD CORNELL, VINCENT GIRCYS AND HAROLD RISTAU
Applicants
and
GOVERNOR IN COUNCIL, HIS MAJESTY IN RIGHT OF CANADA, ATTORNEY GENERAL OF CANADA, AND MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
JUDGMENT
UPON an Application for Judicial Review pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c. F-7 in respect of the Proclamation Declaring a Public Order Emergency, SOR/2022-20 (Proclamation), made pursuant to s. 17(1) of the Emergencies Act, RSC 1985, c 22 (4th Supp.) (the “Act”) and regulations made pursuant to s. 19(1) of the Act: the Emergency Measures Regulations, P.C. 2022-107, SOR/2022-21 (Regulations), and the Emergency Economic Measures Order, P.C. 2022-108, SOR/2022-22 (Order);
AND UPON the motion of the Respondent to strike the application for judicial review on the grounds that it was moot as the Proclamation had been revoked and the associated Regulations and Order had been terminated by operation of law and that the Applicants, save for Messrs. Cornell and Gyrcis, lacked standing to challenge the Proclamation, Regulations and Order as they were not directly affected by them within the meaning of subsection 18.1(1) of the Federal Courts Act;
AND UPON considering the material filed by the parties and hearing the oral arguments of Counsel at a hearing in the City of Ottawa, Ontario on April 3-5, 2023;
AND UPON determining that Messrs. Jost and Ristau lack standing to start the application for judicial review;
AND UPON determining that Messrs. Cornell and Gircys do have direct standing to start the application for judicial review as persons affected by the decision to invoke the Proclamation.
AND UPON determining that while the application is moot, the Court should exercise its
discretion to hear it;
AND UPON determining that the decision to issue the Proclamation and the associated
Regulations and Order was unreasonable and ultra vires the Act;
AND UPON determining that the Regulations infringed section 2(b) of the Canadian Charter of Rights and Freedoms Part I of the Constitution Act, 1982 adopted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.) (Charter) and that the Order infringed section 8 of the Charter and that neither infringement was justified under section 1 of the Charter;
AND UPON considering that the Applicants, Messrs. Cornell and Gyrcis, requested costs in their Notice of Application and having succeeded on key elements.
THIS COURT ORDERS that:
- The Respondent’s motion for an order striking the application for judicial review isgranted in part and the Court exercises its discretion to determine the matter notwithstanding that it is moot in view of the revocation of the Proclamation and termination of the associated Regulations and Order;
- The Applicants Jeremiah Jost and Harold Ristau lack standing and their applications for judicial review are dismissed;
- The Applicants, Edward Cornell and Vincent Gircys, have direct standing and their applications are granted in part;
- It is declared that the decision to issue the Proclamation and the associated Regulations and Order was unreasonable and ultra vires the Emergencies Act;
- It is declared that the Regulations infringed section 2 (b) of the Charter and declared that the Order infringed section 8 of the Charter and that neither infringement was justified under section 1;
- The Applicants, Edward Cornell and Vincent Gircys, are awarded costs of the hearing;
- The Respondent and Messrs. Cornell and Gircys may make a joint submission on a reasonable cost award for the hearing, including disbursements;and
- In the absence of an agreement as to costs, the parties have thirty days from the date of the receipt of this judgment to submit written representations, not exceeding five pages in length, for the Court to determine an appropriate award.
"Richard G. Mosley"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-382-22
STYLE OF CAUSE:
JEREMIAH JOST, EDWARD CORNELL, VINCENT GIRCYS AND HAROLD RISTAU v GOVERNOR IN COUNCIL, HIS MAJESTY IN RIGHT OF CANADA, ATTORNEY GENERAL OF CANADA, AND MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING:
Ottawa, Ontario
DATE OF HEARING:
April 3-5, 2023
JUDGMENT:
MOSLEY J.
DATED:
January 23, 2024
APPEARANCES:
Bath-Sheba van den Berg
Blair D. Ector
For The ApplicantS
Christopher Rupar
John Provart
David Aaron
Kathleen Kohlman
For The RespondentS
SOLICITORS OF RECORD:
Loberg Ector LLP
Calgary, Alberta
For The ApplicantS
Attorney General of Canada
Toronto, Ontario
For The RespondentS