Date: 20250114

Docket: T-1334-24

Citation: 2025 FC 74

[ENGLISH TRANSLATION]

Ottawa, Ontario, January 14, 2025

PRESENT: The Honourable Justice Duchesne

BETWEEN:

TIMOTHY COBB

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

ORDER and REASONS

[1] The respondent is seeking an order striking the applicant’s notice of application for judicial review (the Application), without leave to amend. The respondent submits that by its very nature, the Application seeking declaratory relief in respect of a decision by the Warden of Archambault Institution:

(a) is wrong in law;

(b) was initiated out of time; and

(c) is premature, since the applicant had not exhausted the administrative remedies available to him before bringing his Application before the Court.

[2] For the reasons that follow, the respondent’s motion is granted and the applicant’s Application is dismissed without leave to amend.

I. Applicable law

[3] Justice Pentney aptly summarized the law on motions to strike notices of application for judicial review at paragraphs 52 to 54 of Regroupement des pêcheurs professionnels du sud de la Gaspésie v Listuguj Mi’gmaq First Nations, 2023 FC 1206:

[52] The leading decision on the test for motions to strike notices of application for judicial review in this Court is JP Morgan Asset Management (Canada) Inc v Canada (National Revenue), 2013 FCA 250 [JP Morgan], where the Court of Appeal described the approach in the following way:

[47] The Court will strike a notice of application for judicial review only where it is “so clearly improper as to be bereft of any possibility of success” [footnote omitted]: David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA), [1995] 1 F.C. 588 (C.A.), at page 600. There must be a “show stopper” or a “knockout punch”—an obvious, fatal flaw striking at the root of this Court’s power to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117, at paragraph 7; Donaldson v. Western Grain Storage By‑Products, 2012 FCA 286, at paragraph 6; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959.

[48] There are two justifications for such a high threshold. First, the Federal Courts’ jurisdiction to strike a notice of application is founded not in the rules but in the Courts’ plenary jurisdiction to restrain the misuse or abuse of courts’ processes: David Bull, above, at page 600; Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 18 C.C.L.I. (5th) 263. Second, applications for judicial review must be brought quickly and must proceed “without delay” and “in a summary way”: Federal Courts Act, above, subsection 18.1(2) and section 18.4. An unmeritorious motion—one that raises matters that should be advanced at the hearing on the merits—frustrates that objective.

[53] In examining the notice of application for judicial review, the Court “must gain ‘a realistic appreciation’ of the application’s ‘essential character’ by reading it holistically and practically without fastening onto matters of form…” (JP Morgan at para 50, citations omitted. See also: Wenham v Canada (Attorney General), 2018 FCA 199 at paras 33–‍34; Bernard v Canada (Attorney General), 2019 FCA 144 at para 33).

[54] Affidavits are generally not admissible in support of motions to strike applications for judicial review, in large part because the flaw in the notice of application must be obvious and fatal. “A flaw that can be shown only with the assistance of an affidavit is not obvious” (JP Morgan at para 52). The facts alleged in a notice of application are taken to be true, assuming they are capable of proof in a court of law (Turp v Canada (Foreign Affairs), 2018 FC 12 at para 20). Because an applicant is required to state the complete grounds in its notice of application, no affidavit is required to supplement its side of the matter. One exception to the bar on affidavits is that either side may file an affidavit which provides background information that is referred to and incorporated by reference in a notice of application (JP Morgan at para 54).

[4] Affidavit evidence is admissible to introduce evidence regarding the Court’s jurisdiction to hear a proceeding based on a lack of jurisdiction or to make arguments about the prematurity of a proceeding on the ground that an alternative remedy exists in the administrative process (Picard v Canada (Attorney General), 2019 CanLII 97266 (FC) at paras 17–18 and the cases cited therein (Picard); Tait v Canada (Royal Canadian Mounted Police), 2024 FC 217 at para 27 (Tait); Hodgson v Ermineskin Indian Band No 942, 2000 CanLII 15066 (FC) at para 16, affirmed 2000 CanLII 16686 (FCA) (Hodgson); Windsor (City) v Canadian Transit Co, 2016 SCC 54 at para 24).

[5] The Federal Court of Appeal’s decision in Wenham v Canada (Attorney General), 2018 FCA 199 (Wenham) further confirms at paragraph 33 that the applicable test for a motion to strike, regardless of the words used to describe it, requires that it be plain and obvious that the notice of application is doomed to fail.

[6] At paragraph 36 of Wenham, the Federal Court of Appeal recalls that an application for judicial review can be doomed to fail at any of the three stages of the application:

[36] An application can be doomed to fail at any of the three stages:

I. Preliminary objections. An application not authorized under the Federal Courts Act, R.S.C., 1985, c. F‑7 or not aimed at public law matters may be quashed at the outset: JP Morgan at para. 68; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26; Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605. Applications not brought on a timely basis may be barred: section 18.1(2) of the Federal Courts Act. Judicial reviews that are not justiciable may also be barred: Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737. Other possible bars include res judicata, issue estoppel and abuse of process (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77), the existence of another available and adequate forum for relief (prematurity) (Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332; JP Morgan at paras. 81–‍90) and mootness (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342).

II. The merits of the review. Administrative decisions may suffer from substantive defects, procedural defects or both. Substantive defects are evaluated using the methodology in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; procedural defects are evaluated largely by applying the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193. In certain circumstances, the application is doomed to fail at this stage right at the outset. For example, an application based on procedural defects that have been waived has no chance of success: Irving Shipbuilding Inc. v. Canada (Attorney General), 2009 FCA 116, [2010] 2 F.C.R. 488, 314 D.L.R. (4th) 340.

III. Relief. In some cases, the relief sought is not available in law (JP Morgan at paras. 92–94) and so the application can be quashed in whole or in part on that basis.

II. Notice of application

[7] The applicant describes what he is seeking in the opening paragraphs of his Application:

[translation]

This is an application for declaratory relief in respect of the decision of the Correctional Service Canada, and more specifically of the Warden of Archambault Institution, to interfere with the decision of the Parole Board of Canada (PBC) by unilaterally amending the program of unescorted temporary absences granted by the PBC, which has the sole authority to make such a decision, disregarding the statutory rules and criteria set out in the Corrections and Conditional Release Act governing where intervention is required;

This is an application for declaratory relief under sections 18 and 64 of the Federal Courts Act because the Warden of Archambault Institution made a decision outside her jurisdiction, one that she is prepared to make again because she does not understand, or chooses to not understand, that it is beyond the powers she has under the provisions of her enabling statute, the Corrections and Conditional Release Act, instead choosing to conclude that she should let the psychological suffering of victims guide her assessment of the powers conferred on her by Parliament. The purpose of the application is as follows:

1. DECLARE that the Warden of Archambault Institution cannot, on her own initiative and outside the rules prescribed by Parliament, interfere with decisions rendered by the PBC, which has exclusive power to grant or suspend unescorted temporary absences and, furthermore, do so based on criteria not provided for by Parliament;

2. MAKE such further order as the Court considers proper and just in the circumstances of this case;

[8] The Application essentially alleges the following.

[9] Sections 116 and 117 of the Corrections and Conditional Release Act (the Act) regulate, at least in part, unescorted temporary absences for inmates for a maximum total of 72 hours (UTAs). Although UTAs are within the exclusive jurisdiction of the Parole Board of Canada (the PBC), the Act provides that the PBC may confer its powers in respect of UTAs on a commissioner appointed under the Act or on the institutional head of the penitentiary in which an offender is confined, on such terms and conditions and for a period of time as may be determined by the PBC.

[10] Subsection 117(3) of the Act provides that the institutional head of the penitentiary from which a UTA has been effected may suspend an absence granted by the PBC if, in the opinion of the institutional head, the offender’s retention in custody or recommitment to custody is justified in order to protect society, on the basis of information that could not reasonably have been provided to the PBC when the absence was authorized. An institutional head who suspends the UTA of an offender shall forthwith refer the offender’s case to the PBC, and the PBC shall decide whether the UTA should be cancelled.

[11] The applicant has been an inmate since 1998. He has been an inmate in minimum‑security penitentiaries since January 2018 and has been under the responsibility of the Warden of Archambault Institution (the Warden) since January 2023.

[12] On April 17, 2024, the Warden allegedly cancelled the applicant’s UTA scheduled for April 22 to 27, 2024, without explanation. Following enquiries from the applicant, the Warden allegedly justified her actions by communicating that the applicant’s UTA had not been cancelled, but [translation] “that the decision was made to ensure the psychological safety of the victims”.

[13] The applicant submits that this decision is a decision to cancel a UTA and that it was the second decision taken in a short period of time on the grounds of ensuring the psychological safety of the offender’s victims. The Warden was allegedly informed that the UTA would coincide with the victim’s birthday in the applicant’s file, but the information provided to the Warden that formed the basis for the decision was not shared with the applicant.

[14] The applicant alleges that the Warden’s decision is purely arbitrary and completely unrelated to the criteria for cancelling a UTA set out by Parliament in the Act, and that the Warden’s statutory interpretation of the Act runs contrary to the case law.

[15] The applicant alleges that he did nothing to justify the cancellation of his UTA.

III. Motion to dismiss and evidence filed

[16] The respondent produced the affidavit of Sandra Haley, Assistant Warden of Interventions at Archambault Institution, for Correctional Service Canada, in support of his motion.

[17] Ms. Haley produced eight exhibits in her affidavit. The first three are presented as exhibits that the applicant refers to in his Application. Ms. Haley does not specify the paragraphs in which said documents are raised, either explicitly or implicitly, in the Application.

[18] The first exhibit, Exhibit SH-1, described as the PBC’s Decision of January 30, 2024, is not raised by the applicant in his Application. As this exhibit is not raised by the applicant in his Application and does not correspond to any other exception to the prohibition on affidavit evidence on a motion to strike (Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250 at paras 53–54 (JP Morgan), Picard and Tait), Exhibit SH-1 is inadmissible as evidence on this motion and will not be considered.

[19] The second exhibit, Exhibit SH-2, described as the [translation] “Letter from Sylvie Bordelais, April 17, 2024”, is raised by the applicant at paragraph 7 of the Application. The third, Exhibit SH-3, described as the [translation] “Letter from the Warden of Archambault Institution, April 18, 2024”, is also raised by the applicant at paragraph 7 of the Application. These two exhibits are admissible as evidence in accordance with the case law cited above.

[20] Exhibit SH-4 is a copy of the grievance filed by the applicant on April 28, 2024. The existence of the grievance against the Warden’s decision of April 17, 2024, and its future disposition through the grievance procedure under sections 74 and following of the Corrections and Conditional Release Regulations, SOR/92-620 and sections 90 and following of the Act, is relevant and admissible as evidence on the exhaustion of administrative remedies that may be available to the applicant (Picard, Tait and Hodgson).

[21] Exhibit SH-5, “Commissioner’s Directive 081 – Offender Complaints and Grievances”, falls within the same exception to the prohibition against evidence and is admissible as evidence in respect of the exhaustion of administrative remedies that may be available to the applicant (Picard, Tait and Hodgson).

[22] Exhibit SH‑6, [translation] “Assessment for Decision, May 13, 2024”, is not raised by the applicant in his Application and addresses neither the Court’s jurisdiction to hear the Application nor the exhaustion of administrative remedies that may be available to the applicant in pursuing his grievance. Exhibit SH‑6 is therefore inadmissible.

[23] Exhibits SH‑7 and SH‑8 set out the standards for absences that could later occur in the event of a favourable decision following the PBC’s consideration of Exhibit SH‑6. As these exhibits present standards pertaining to future and uncertain events and not to material facts raised in the Application, these exhibits do not fall within the exceptions to the prohibition against evidence on this motion. They are therefore inadmissible for the purposes of this motion.

[24] Ms. Haley’s affidavit contains 10 paragraphs. Paragraphs 1, 2, 4 and 5 contain admissible evidence regarding the documents raised in the Application as well as evidence addressing the exhaustion of administrative remedies that may be available to the applicant. Paragraphs 3, 6, 7, 8, 9 and 10 are inadmissible because they contain evidence relating to matters that fall within the prohibition against affidavit evidence on a motion to strike explained in the case law.

[25] The applicant has filed no affidavit in reply, no evidence whatsoever, and relies solely on his written submissions in response to the motion to strike.

IV. Arguments

(a) Respondent (the moving party)

[26] The respondent submits that the applicable law recognizes that a motion to strike is a remedy which should be granted in exceptional cases and should only succeed if the application is so clearly improper as to be bereft of any chance of success (Apotex Inc v Governor in Council, 2007 FCA 374 at para 16; JP Morgan at paras 47 and 48; David Bull Laboratories (Canada) Inc v Pharmacia Inc, 1994 CanLII 3529 (FCA) (CB Powell)).

[27] He argues that the Federal Court of Appeal has recognized that a motion to strike based on the prematurity of an application for judicial review is a “show stopper” or a “knockout punch” (an obvious, fatal flaw striking at the root of the Court’s power to entertain the application) (JP Morgan at para 47), as it is well established that, absent exceptional circumstances, parties can proceed to the court system only after all adequate remedial recourses in the administrative process have been exhausted (Forner v Professional Institute of the Public Service of Canada, 2016 FCA 35 at paras 9 and 10–14).

[28] The respondent submits that a realistic appreciation of the application’s essential character shows that the applicant is seeking judicial review of the Warden’s decision of April 17, 2024, despite the use of the term [translation] “declaratory relief” in the pleading. He notes that the Application [translation] “pertains to the decision of the Service . . . and, more specifically, of the Warden of Archambault Institution, to interfere with the decision rendered by the Board” and was undertaken [translation] “because the Warden of Archambault Institution made a decision outside of her jurisdiction, one that she is prepared to make again”.

[29] An assessment of the reasons pleaded in the Application—which relate to the decision and the Warden’s alleged excess of jurisdiction, or her alleged breach of procedural fairness in rendering her decision on April 17, 2024—confirms that the proceeding was instituted to obtain a judicial review of the decision and not for the purpose of seeking a declaration of rights.

[30] The respondent submits that the application for judicial review was filed 48 days after the date of the decision, whereas the time limitation under subsection 18.1(2) of the Federal Courts Act is within 30 days after the time the decision was first communicated, without the need for an extension of time order. According to the respondent, since the proceeding was instituted out of time, the Court does not have jurisdiction to hear the matter.

[31] The respondent also submits that the applicant’s proceeding is premature and that this Court should decline jurisdiction to hear it, since the applicant has filed a grievance against the decision in accordance with the procedure provided for in sections 90 and following of the Act, and the grievance procedure has not been exhausted. The grievance procedure in the Act has often been recognized as a comprehensive mechanism that is an adequate alternative to judicial review, barring any exceptional circumstances pleaded by the applicant (Haug v Canada (Attorney General), 2023 FC 682 at para 21; Ritch v Canada (Attorney General), 2022 FC 1462 at para 26; Blair v Canada (Attorney General), 2022 FC 957 at para 44 (Blair)). The respondent argues that the applicant cannot ask this Court to simultaneously address the decision now and remedy said decision by granting declaratory relief. To say otherwise would be to allow the grievance mechanism established by Parliament to be bypassed.

[32] The respondent argues that the Application is clearly unfounded, as the applicant’s fear of negative future decisions cannot give rise to declaratory relief, and that the Application itself is based on a false premise, namely that the Warden “suspended” or “cancelled” the applicant’s UTA within the meaning of subsections 117(3) and (4) of the Act, which is clearly not the case.

[33] Finally, the respondent argues that the remedy sought by the applicant cannot be granted because of subsections 116(2) and 117(3) of the Act, which empower the Warden to make the decision under review.

(b) Applicant

[34] The applicant is not pleading to the respondent’s arguments. Rather, he is relying on excerpts from the case law applicable in other circumstances and areas of law to support his application for declaratory relief (Shot Both Sides v Canada, 2024 SCC 12 at para 66, among others).

[35] The applicant argues that the Act does not empower the warden of an institution to interfere in the file of an inmate at an institution under the warden’s direction, and that there is no other meaningful recourse available to the respondent to ensure that the Warden of the institution will not arbitrarily interfere with his file for reasons not provided for in the Act.

[36] He claims that his decision to avail himself of the grievance procedure in the Act cannot be used against him, when it should be a matter of judicial notice that the processing times for grievances are such that only offenders with many more years of incarceration remaining can begin the process and expect a response. He argues, with no supporting evidence in the record and with no legal argument or support to the effect that the Court may take judicial notice of administrative institutional time frames or other types of time frames, that the anticipated time frame for a decision on his grievance exceeds the wait time for a new decision from the PBC in his regard.

[37] The applicant cites Bilodeau-Massé v Canada (Attorney General), 2017 FC 604 in support of his argument that, in this case, the Warden acted purely arbitrarily and did not rely on statutory provisions, such that her decision cannot stand. The applicant did not explain in his written submissions how that case law applies here.

[38] He argues that the Court can grant the declaratory relief sought, as it did in MacDonald v Canada (Attorney General), 2007 FC 1277. The applicant did not explain how that case law applies here.

[39] Finally, the applicant pleads that he [translation] “agrees with the application for an extension of time” to commence his proceeding and is seeking an order extending the time to make his application.

(c) Reply

[40] In his reply, the respondent notes that it appears from the applicant’s written submissions in response that he does not dispute that the proceeding he is instituting concerns a decision and that the time period for applying for judicial review of a decision of a federal board, commission or other tribunal having an impact on the applicant’s rights begins to run from the moment the applicant has knowledge of the decision in question and not from the date explanations are provided following explanations sought and subsequently received (Meeches v Assiniboine, 2017 FCA 123 at paras 32–33).

[41] The respondent notes that the applicant’s written submissions show that the latter is actually seeking judicial review of a decision, as he asserts that [translation] “the remedy sought is clear and can be granted by this Court, as it did in MacDonald [2007 FC 1277]”. In MacDonald, the Court had before it an application for judicial review (certiorari) of a decision of the Correctional Service Canada, and the remedy granted was the setting aside of the decision at issue. No declaration was granted in the judgment.

[42] The respondent also notes that the principle cited by the applicant based on Shot Both Sides does not apply here. The principle relied upon by the applicant is that declarations on the constitutionality of the Crown’s conduct are not subject to the rules on limitation periods that apply to Aboriginal and treaty rights claims when sought in an action for damages in the Federal Court. The Application does not align with the declaratory relief principle set out in Shot Both Sides.

V. Analysis

[43] The Court agrees with the respondent that the applicant’s Application is actually an application for review disguised by the use of the term [translation] “declaratory relief”.

[44] The allegations in the Application reflect an application for judicial review of an administrative decision pleaded under Rule 301(c) of the Federal Courts Rules rather than an application for declaratory relief, which would instead allege that (a) the Court has jurisdiction to hear the dispute; (b) the question is real and not theoretical; (c) the applicant has a genuine interest in its resolution; and (d) there is a live controversy between the parties (Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 at para 11; Canada (Prime Minister) v Khadr, 2010 SCC 3). The applications for declaratory relief as pleaded by the applicant are but wordsmithing that runs counter to the real essence of an application for judicial review, in which any declaratory relief sought must necessarily be subordinate to judicial review (JP Morgan at para 49).

[45] At most, it should be understood that the applicant is asking the Court to make declarations as to the Warden’s conduct, none of which can be made without a decision on the application for judicial review of the decision of April 17, 2024, because they all depend on the judicial review. In short, the proceeding undertaken is not a genuine application for declaratory relief.

[46] The Court also agrees with the respondent that the applicant’s application for judicial review had to be made within 30 days after the date on which the applicant became aware of the decision in question, failing which the application would be brought out of time, subject to an order extending the time for the commencement of the proceeding (Federal Courts Act, subsection 18.1(2)). Nothing in the Application suggests that the decision was first communicated to the applicant on any date other than the date of the decision, namely April 17, 2024. In fact, the applicant’s grievance admitted into evidence on this motion states that the decision was first communicated to him orally on April 17, 2024. That being the case, the applicant had until May 17, 2024, to make his application for judicial review. The application was not filed until June 4, 2024, which was after the time limit.

[47] The applicant has not brought a motion for an order extending the time limitation set out in subsection 18.1(2) of the Federal Courts Act. Saying that he [translation] “agrees with the application for an extension of time” in his written submissions in response to the motion to dismiss is not equivalent to, or a substitute for, making a motion for an extension of time order. Such a motion must be initiated in the same manner as all motions under the Federal Courts Rules, namely by way of a notice of motion and a motion record setting out the evidence and arguments (Rules 358, 359, 363 and 364 of the Federal Courts Rules). Since the applicant does not have a motion for an extension of time order before the Court or evidence before the Court that could satisfy the case law requirements for such an order (Canada (Attorney General) v Hennelly, 1999 CanLII 8190 (FCA); Canada (Attorney General) v Larkman, 2012 FCA 204; Alberta v Canada, 2018 FCA 83; Greenblue Urban North America Inc v Deeproot Green Infrastructure, LLC, 2024 FCA 19 at para 6), it is clear that the applicant’s Application is out of time and can simply be dismissed as a matter of routine. But there is more.

[48] The Court agrees with the respondent that the applicant’s application is premature and should be dismissed because he did not exhaust the internal remedies available to him under the Act before proceeding to this Court (Blair; Nome v Canada (Attorney General), 2016 FC 187 at paras 19 and following; CB Powell at paras 30–33).

[49] The case law treats a decision that can be grieved under the grievance procedure in sections 90 and following of the Act as an interlocutory decision until such time as the administrative remedies available in the Act have been exhausted. The remarks of the Federal Court of Appeal in Dugré v Canada (Attorney General), 2021 FCA 8 at paragraphs 37 and 38 regarding the summary dismissal of such decisions are clear, informative and determinative:

[37] In short, the non-availability of interlocutory relief is next to absolute. A less stringent criterion would only encourage premature forays into courts and a resurgence of the ills identified in C.B. Powell. Hence, certain recent attempts by the Federal Court to restate the settled test by refining criteria for exceptions are ill‑advised and should not be viewed as authoritative (see Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732, [2019] 4 F.C.R. 217, at paras. 20–21 and subsequent Federal Court cases). Although well‑intentioned, these attempted restatements only serve to muddy the waters and compromise the rigour of the principle of non‑interference.

[38] In addition, the case law bearing on the unacceptability of premature judicial review applications makes it unequivocally clear that the Court may summarily dismiss a proceeding of its own motion (Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75, at para. 22; Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2017 FCA 241, at paras. 47 to 56).

[50] Since the applicant has neither alleged or proven exceptional circumstances that would warrant this Court hearing his proceeding despite its prematurity (Blair at paras 44–54) nor alleged or demonstrated that his grievance under the Act is not an adequate remedial recourse (Strickland v Canada (Attorney General), 2015 SCC 37 at paras 42–45), the Court must conclude that his application is premature and should be dismissed.

[51] Referring back to paragraph 36 of Wenham at paragraphs 5 and 6 above, this Court finds that the applicant’s application is doomed to fail at the preliminary issue stage. It can, and should, be dismissed.

[52] No amendment to the notice of application could cure its prematurity, given the nature of the proceeding commenced. No leave to amend the Application is appropriate in the circumstances as there is no scintilla of an arguable cause of action (Al Omani v Canada, 2017 FC 786 at paras 32–‍34).

VI. Conclusions

[53] The respondent’s motion is granted and the applicant’s Application is dismissed, with costs payable to the respondent.

[54] The respondent seeks his costs. The parties are encouraged to discuss and settle the matter of costs between themselves and to file a proposed costs order on consent with the Court if they agree on costs by January 27, 2025. If the parties cannot agree on costs by that date, each party may serve and file his submissions on costs not exceeding three pages, double‑spaced, by 5:00 p.m. on January 28, 2025, failing which no costs will be awarded.

THIS COURT ORDERS as follows:

1. The respondent’s motion is granted.

2. The applicant’s application is dismissed without leave to amend.

3. The Court reserves the right to make an order as to costs following its consideration of the parties’ written submissions in this regard.

“Benoit M. Duchesne”

Judge

Certified true translation

Melissa Paquette, Senior Jurilinguist

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

T-1334-24

STYLE OF CAUSE:

TIMOTHY COBB v THE ATTORNEY GENERAL OF CANADA

DATE OF HEARING:

IN WRITING

ORDER AND REASONS BY:

BM DUCHESNE J

DATED:

JANUARY 14, 2025

WRITTEN REPRESENTATIONS:

Sylvie Bordelais

FOR THE APPLICANT

Virginie Harvey

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Bordelais, Nguyen S.N.A. Montréal, Quebec

FOR THE APPLICANT

Attorney General of Canada Montréal, Quebec

FOR THE RESPONDENT