Court File and Parties

Court File No.: CR-17-007-MO Date: 20170327 Ontario Superior Court of Justice

Between: Anthony Francis, Applicant – and – The Attorney General of Canada, Respondent

Counsel: John Dillon, for the Applicant Sarah Churchill-Joly, for the Respondent

Heard at Kingston: 27 March 2017

Ruling on Application

Mew J. (orally)

[1] Anthony Francis has brought an application for an order declaring that he was entitled to an in-person hearing before the Parole Board of Canada prior to the imposition of a residency condition, and that the failure to convene such a hearing was unfair and fundamentally unjust and in breach of the rules of procedural fairness.

[2] In the motion before me today, the Attorney General of Canada seeks an order dismissing that application on the basis that the Ontario Superior Court of Justice has no jurisdiction over the subject matter of the application. The Attorney General’s position is founded upon section 18(1)(a) of the Federal Courts Act, R.S.C., 1985, c.F-7, which provides:

Subject to section 28, the Federal Court has exclusive original jurisdiction, to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal.

[3] The section goes on in paragraph (b) to say that the court has the exclusive power to hear and determine any application or other relief in the nature of the relief contemplated by paragraph (a) that I just recited.

[4] The term “any federal board, commission or other tribunal” is defined in section 2(1) of the Federal Courts Act. It is undisputed that the Parole Board of Canada is such an entity.

[5] On behalf of Mr. Francis, it is conceded that this court has no power to grant the consequential relief sought against the Parole Board. Nevertheless, he argues that section 97 of the Courts of Justice Act, R.S.O., 1990, c. C.43 gives this court jurisdiction to make binding declarations of right whether or not any consequential relief is, or could be, claimed.

[6] The application makes reference to the Ontario Court of Appeal’s decision in McGuire v. Haugh, [1934] O.R. 9. In that case, the Court of Appeal was dealing with the request made by a plaintiff for an order setting aside a judgment obtained at trial on the ground that the judgment had been procured by fraud and directing the trial of an issue as to the fraud by which the judgment was obtained, and in the meantime staying all proceedings under the judgment.

[7] As I understand it from reviewing the case, the plaintiff had already unsuccessfully appealed against that judgment. The Court of Appeal characterized the plaintiff’s request as “a simple case where no consequential relief is sought.” It ordered the trial of the question of whether the defendant’s judgment against the plaintiff was obtained by the defendant’s fraud and provided a timetable for that to happen. And, perhaps most significantly, the operation of the judgment in favour of the defendant was suspended.

[8] As I read the McGuire case, however, it involved more than just a simple declaration of rights. The result of the court’s pronouncement was the suspension of the impugned judgment and an order requiring the trial of an issue as to whether the impugned judgment would remain permanently unenforceable.

[9] The present case is quite different. Here, setting aside any issues of jurisdiction, the application seeks declaratory relief while acknowledging the inability of this court to grant any other consequential relief. Counsel hypothesizes that such a declaration may nevertheless be of value to his client because of the possibility of a subsequent claim for damages for breach of the applicant’s rights, or because the Parole Board might, in the face of such a declaration from this court, grant the applicant the hearing he seeks, even though this court does not have the power to order the Parole Board to do so.

[10] Counsel also acknowledges that he could seek this declaratory relief from the Federal Court, but claims that the delays in that court are such that the hearing would not take place before the applicant’s warrant expires.

[11] Quite apart from the jurisdictional issue, I am concerned about the inefficiency of mounting a proceeding in this court for declaratory relief alone. I am also concerned about the fairness of this court rendering a decision on the merits of the Parole Board’s treatment of the applicant, which may then be held up as precluding any further determination on the merits in a subsequent proceeding for damages.

[12] Ultimately however, these concerns are academic because, in my view, a complete answer to the issues raised on this motion can be found in the decision of Mr. Justice Belobaba in Burkes v. Canada (Revenue Agency), 2010 ONSC 3485. At para. 9, Belobaba J. says as follows:

It is beyond dispute that the Superior Court is a court of general jurisdiction and has inherent jurisdiction to adjudicate virtually any kind of claim in any area of the law. The legislature may divest from this universal jurisdiction if it does so in unequivocal terms. The legislature, for example, may stipulate that certain remedies in certain situations can only be obtained in another forum.

[13] And then continuing, at para. 10:

Section 18 of the Federal Court Act is one such legislative provision. Section 18 deals with remedies and provides, inter alia, that only the Federal Court can issue an injunction against “a federal board, commission or tribunal.” Section 2 of the Act provides that a federal board, commission or tribunal is anybody or person that exercises powers conferred by an Act of Parliament.

[14] Then Justice Belobaba goes on to conclude, at paragraph 13 of his decision:

In short, section 18 of the Federal Court Act has unequivocally divested the Superior Court of its jurisdiction to grant an injunction against a federal board, commission or tribunal. This particular remedy can only be granted by the Trial Division of the Federal Court.

[15] I should say that in between the quotations I have recited, Justice Belobaba does discuss TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892, which is one of the other authorities that was discussed during the course of submissions on this motion.

[16] The references in the paragraphs I have just recited to injunctions are equally applicable to the term “declaratory relief”.

[17] Accordingly, in my view, this court does not have jurisdiction to entertain the declaratory relief sought against the Parole Board.

[18] The motion is therefore granted and the application dismissed.

Graeme Mew J.

Handed down: 27 March 2017 (orally) Corrected, 19 June 2017 Title of Proceedings corrected by changing “Her Majesty the Queen” to “The Attorney General of Canada” and by changing the case name in the citation from “R v. Francis” to “Francis v. Canada (Attorney General)”.