SUPREME COURT OF CANADA
Date: 20140515 Docket: 35368
Between:
Vlasta Stubicar
Applicant/Applicant on motion
and
Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness
Respondents/Respondents on motion
Coram: Rothstein J.
Order for Motion: (paras. 1 to 10)
Rothstein J.
stubicar v. canada, 2014 SCC 38, [2014] 2 S.C.R. 104
Vlasta Stubicar Applicant/Applicant on motion
v.
Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness Respondents/Respondents on motion
Indexed as: Stubicar v. Canada (Public Safety and Emergency Preparedness)
2014 SCC 38
File No.: 35368.
2014: May 15.
Present: Rothstein J.
motion for directions
Courts — Supreme Court of Canada — Application for leave to appeal — Reconsideration — Whether decision of Registrar refusing motion for reconsideration for filing subject to review by judge — Rules of the Supreme Court of Canada, SOR/2002-156 , rr. 8(2), 73, 78.
Statutes and Regulations Cited
Rules of the Supreme Court of Canada , SOR/2002-156, rr. 8(2), 73, 78.
MOTION for directions. Motion dismissed.
Written submissions by Vlasta Stubicar , on her own behalf.
Written submissions by Jacques Mimar , for the respondents/respondents on motion.
The following is the order delivered by
[ 1 ] Rothstein J. — The issue that arises on this motion is whether the Registrar’s refusal to submit a matter to the Court under Rule 73(4) of the Rules of the Supreme Court of Canada , SOR/2002-156, is an order of the Registrar subject to review by a judge of the Court under Rule 78.
[ 2 ] Vlasta Stubicar’s application for leave to appeal to this Court was dismissed on September 12, 2013, [2013] 3 S.C.R. xi. Following that decision, Ms. Stubicar sought a reconsideration of the decision. Rule 73(1) provides that “[t]here 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.” Pursuant to Rules 73(2) and 73(3)( b ), the motion for reconsideration must be filed with the Registrar and must include an affidavit setting out the exceedingly rare circumstances in the case that warrant consideration by the Court and an explanation of why the issue was not previously raised. If the affidavit does not set out the required exceedingly rare circumstances, Rule 73(4) states that the motion “shall not be submitted to the Court”. Accordingly, the Registrar will not accept for filing a motion that does not contain an affidavit setting out “exceedingly rare circumstances”.
[ 3 ] In a letter dated November 20, 2013, the Registrar informed Ms. Stubicar that her reconsideration application would not be accepted for filing because it did not “reveal the exceedingly rare circumstances which would warrant reconsideration by this Court”. Ms. Stubicar’s motion materials were returned to her.
[ 4 ] On December 10, 2013, Ms. Stubicar sought to file a motion to a judge under Rule 78 to review the Registrar’s decision. That rule provides that 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.
[ 5 ] On December 19, 2013, the Registrar returned the Rule 78 motion materials on the basis that the initial motion for reconsideration had been reviewed and refused in accordance with Rule 73.
[ 6 ] Now, Ms. Stubicar has filed the present motion for directions, in which she is seeking, amongst other things, an order directing the Registrar to accept for filing her Rule 78 motion. She contends that the decision of the Registrar to refuse to accept a motion for reconsideration for filing constitutes an order of the Registrar subject to review by a judge under Rule 78. In my view, it does not.
[ 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.
[ 10 ] The motion for an order directing the Registrar to accept for filing the Rule 78 motion is dismissed.
Order accordingly.
Vlasta Stubicar , on her own behalf .
Solicitor for the respondents/respondents on motion: Attorney General of Canada.