Target Apparel’s swift action to protect its name comes as no surprise.  Mr. Benitah was forced to defend it nine years ago when the Registrar of Trade-marks (the “Registrar”) issued him a notice requiring Mr. Benitah to show that the “Target Apparel” trade-mark was still in use.  Fairweather had first acquired it in 2001 along with other various assets from a bankrupt Dylex Ltd.  The Registrar sent Fairweather the notice in 2002 then eventually decided to expunge the trade-mark.  Mr. Benitah appealed the Registrar’s decision and emerged successful at both the Federal Court trial division and appellate levels, which stirs some unease for Target Corp. and my penchant for bargain gift-wrap. 

Use it or lose it

In April 2002, the Registrar issued Fairweather a notice pursuant to s. 45 of the Trade-marks Act, the so-called “use it or lose it” provision.  Fairweather would have been required to show that it had used the “Target Apparel” trade-mark – by, for example, selling Target Apparel merchandise – since having acquired it in 2001.  However, on the facts, because Fairweather had not yet used the name, the Registrar’s decision focused on whether there was evidence that absence of use was due to “special circumstances.”  Section 45(3) sets out:

Effect of non-use

(3) Where, by reason of the evidence furnished to the Registrar or the failure to furnish any evidence, it appears to the Registrar that a trade-mark, either with respect to all of the wares or services specified in the registration or with respect to any of those wares or services, was not used in Canada at any time during the three year period immediately preceding the date of the notice and that the absence of use has not been due to special circumstances that excuse the absence of use, the registration of the trade-mark is liable to be expunged or amended accordingly.

As Fairweather had only acquired the trade-mark six months before receiving the s. 45 notice, the Registrar ordered that it would only have to establish a “a serious intention to start using the mark in question in the near future.”  After deciding that Fairweather had not done so, the Registrar expunged its “Target Apparel” trade-mark.

Designs/Intentions

In appealing the Registrar’s decision, Fairweather submitted additional evidence to prove it did indeed have a “serious intention” to use the trade-mark.  The new evidence showed that preliminary designs of labels and hang tags for Target Apparel had actually been developed before the s. 45 notice had been issued.

In a decision released in October 2006, Justice Mactavish at the Federal Court held in Fairweather Ltd. v. Registrar of Trade-marks, 2006 FC 1248, that Fairweather had successfully established that it intended to use its “Target Apparel” trade-mark in the near future.  She considered the extent to which the new evidence had “probative significance” that extended beyond the material that was before the Registrar.  Justice Mactavish found that it did.  She held that “concrete steps” had been taken with respect to the development of labels and hang tags to constitute sufficient probative significance.  Thus, the appropriate standard of review of the Registrar’s decision was correctness.

In light of the new evidence, Justice Mactavish allowed Fairweather’s appeal.  She also considered evidence of use after the s. 45 notice was issued, including several hundred thousand dollars worth of “Target Apparel” men’s clothing sold in International Clothiers and ongoing artwork on the labels and hang tags, all pointing to the conclusion that Fairweather had provided sufficient evidence of an ongoing intention to use the trade-mark.

Justice Mactavish’s decision was later upheld in the Federal Court of Appeal decision in Bereskin & Parr v. Fairweather Ltd., 2007 FCA 376, in which the appellant only challenged the trial judge’s findings of fact.  However, the Court found no “palpable and overriding error” in the trial ruling.

A Bull’s Eye Settlement

Given Target Apparel’s performance at the Federal Courts three years ago, Target Corp. seems unlikely to succeed in forcing Mr. Benitah to give up the “Target” name.  If hang tag designs were sufficient to signal a serious intention to use the trade-mark, then Target Apparel’s existing stores in Sudbury and Nanaimo only serve to reinforce Mr. Benitah’s position.  Moreover, the “Target Apparel” trade-mark has existed in Canada since 1981 and been proudly safeguarded by Fairweather for ten years.

As a result, there is already speculation that Target Corp. will be compelled to offer Mr. Benitah a hefty settlement if it hopes to enter the Canadian market without another “Target” label jousting for customers.  Would Mr. Benitah accept such an offer?  With two relatively uncharted (and, for the many Canadians who are more familiar with the U.S. retailer, confusing) stores situated in modest-sized cities and a dramatic, hundred-million dollar lawsuit, Mr. Benitah appears to have signalled his agreement to settle – with an expensive wish list.  I, for one, have doubts as to whether this is truly a case about taking up arms for one’s pride and joy and the product of the sweat of the brow.  All I smell is one shrewd party pooper at a grand opening ceremony.

I. Facts of Telezone and the Companion Cases

Six cases, including Telezone, hinged on the SCC’s determination of whether Grenier was good law. For your convenience, I will briefly discuss the facts of each case. In each one of them, a federal administrative decision maker sought to avoid private law claims against it by arguing that Grenier required that judicial review of its impugned decision by the Federal Court had to occur before any private law claims could be made against it. Furthermore, the judicial review had to  invalidate the decision. It is noteworthy that none of the plaintiffs actually sought to challenge the decision maker’s decision. Where the plaintiff initiated private law claims in the provincial courts the decision maker argued not only that judicial review had to occur first, but also that the Federal Court had exclusive jurisdiction.

In Telezone, Telezone Inc. initiated a claim in the Ontario Superior Court for $250 million in damages against Industry Canada for breach of contract, negligence and unjust enrichment. Telezone alleged that Industry Canada broke the rules of a call for telecommunication licence applications.

My colleague Katherine MacLellan recently wrote about Canada (Attorney General) v. McArthur, 2010 SCC 63 here. Like Grenier, that case involved an inmate claimed damages in the Ontario Superior Court for wrongful or false imprisonment, and for the intentional or negligent infliction of emotional and mental distress arising out of his stay in solitary confinement.

In Public Service of Canada v. Professional Institute of the Public Service of Canada, 2010 SCC 66, slaughterhouse operators claimed $1.8 million in damages against striking veterinarians in a labour dispute with the Canadian Food Inspection Agency (CFIA). After the veterinarians did not inspect the slaughterhouse operators’ meat, the CFIA declared that meat did not satisfy regulatory requirements and had to be destroyed. In defence, the veterinarians argued that the damages arose out of the CFIA’s decisions and measures and called the CFIA in warranty.

Last year I discussed the FCA’s decision in Manuge v. Canada, 2010 SCC 67 in detail here. After the amount he received from his disability pension was deducted monthly from the among that he received for long-term disability benefits under the Canadian Forces’ disability plan, Denis Manuge claimed among other relief, constitutional remedies, declaratory relief and damages in relation to these deductions in the Federal Court.

In Nu-Pharm Inc. v. Canada (Attorney General), 2010 SCC 65 a drug maker claimed injunctive and mandatory relief and damages for various torts against Health Canada in the Federal Court. The claims were in relation to Health Canada’s decision not to authorize the sale of the drugmaker’s product in Canada.

Finally, in Parrish & Heimbecker Ltd. v. Canada (Agriculture and Agri-Food), 2010 SCC 64, an importer claimed damages for various torts and recovery costs against the CFIA. The CFIA revoked the importer’s permits then reissued them with new conditions that made the product unacceptable to customers.

As will be discussed below, the Telezone decision determined all of these cases in favour of the plaintiffs with private law actions against federal administrative decision makers.

II. Grenier Creates Controversy

In order to understand the SCC’s decision and its significance, it is important to recall the decision in Grenier. As alluded to above, the FCA had to determine whether an inmate, Daniel Grenier, could challenge an administration decision by the institutional head of a penitentiary through an action for damages instead of judicial review. This issue was essentially one of statutory interpretation. Although many court decisions involve statutory interpretations, the decision in Grenier was particularly significant because of its implications for limitations periods and access to remedies.

According to s. 17 of the Federal Courts Act, R.S.C. 1985, c. F-7, the Federal Court has concurrent jurisdiction in all cases in which relief is claimed against the Crown. One exception to this provision is a claim for damages under the Crown Liability and Proceedings Act (17(2)(d)). However, s. 18(1)(b) of the Federal Courts Act states that the Federal Court has exclusive jurisdiction to hear any application for relief that includes “any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.” Moreover, s. 18(3) of the Federal Courts Act states that the relief provided for in s. 18(1) may only be obtained through an application for judicial review made under s. 18.1.

According to the unanimous decision of the FCA in Grenier the combined effect of these provisions was that judicial review must be used to challenge the decision of a federal administrative body. In other words, Grenier could not initiate proceedings to seek damages for the institutional head’s decision. The FCA’s decision seemed to undercut access to justice because s. 18(2) of the Federal Courts Act requires that an application for judicial review of a decision of a federal board, commission or tribunal be made within thirty days after the decision is communicated. Since Grenier waited three years after the decision was communicated to him to initiate his action, he was effectively barred for seeking recourse for what he considered to be an “oppressive and arbitrary” decision to segregate him from the rest of the prison population.

Despite these negative implications for access to justice, Letourneau J.A. writing for the unanimous FCA was unwilling to interpret the Federal Courts Act otherwise for several reasons. First, review of the lawfulness of decisions of federal administrative bodies through an action in damages would allow a remedy under s. 17. To do so would ignore legislative intent in s. 18(3) that the remedy must be exercised only by way of an application for judicial review.

Second, the clear division of jurisdiction between the Federal Court and the provincial courts would be upset. It would be unclear where to apply for damages since s. 18(1) provides that the Federal Court has exclusive jurisdiction to hear applications for relief involving federal boards, while s. 17(2) states that the Federal Court does not have concurrent jurisdiction to hear any application for damages under the Crown Liability and Proceedings Act.

Third, the public interest would be undermined on various fronts. The public interest in the finality of decisions and the accompanying legal certainty would be destroyed. Letourneau J.A. reasoned that it was Parliament’s intent that finality be protected based on the short limitations period for judicial review. As well, the public interest not allowing collateral attacks of federal administrative decisions through tort actions would be undermined.

On the issue of collateral attacks, the FCA added that Supreme Court of Canada clearly indicated that judicial review of administrative decision making requires a determination of the appropriate standard of review. The latter signals to a reviewing court the amount of deference that a decision of an administrative decision maker should receive. Letourneau J.A. reasoned that if an action for damages were allowed to proceed rather than judicial review, then the appropriate level of deference would not be accorded to the decision of an administrative decision maker.

In summary, Grenier was a significant precedent because it precluded private law claims against federal administrative decision-makers in relation to impugned decisions where judicial review was not sought first. As well, the decision was overextended so that the Federal Court had exclusive jurisdiction over such claims.

III. The SCC Rejects Grenier

Writing for the unanimous seven judge panel in Telezone,  Binnie J. overturned the principle in Grenier and clarified the state of the law. Upholding the lower provincial courts’ decisions, he held that s. 17 of the Federal Courts Act and s. 21 of the Crown Liability and Proceedings Act conferred concurrent jurisdiction on the superior courts and the Federal Court for claims against the Crown. He also held that it was unnecessary for claimants to seek judicial review of federal administrative decision makers’ decisions before they could seek private law claims. To uphold Grenier and require judicial review by the Federal Court would be contrary to access to justice. If claimants do not wish to challenge a federal administrative decision and seek compensation for alleged damages, then there is no reason to force them to jump through the additional hoop of judicial review.

IV. The Proper Interpretation of the Federal Courts Act

Binnie J. rejected the interpretation of the Federal Courts Act in Grenier based on the overarching principle of Parliamentary intent. At paragraph 22, he wrote that it was Parliament’s intention to have concurrent jurisdiction in all cases in which relief is claimed against the federal Crown. The subject matter overlap in ss. 17 and 18 of the Federal Courts Act was meant to provide claimants with convenience and a choice of forum.

At paragraph 42, Binnie J. added that the derogation of jurisdiction requires clear and explicit statutory language. Since there was no such language, exclusive jurisdiction by the Federal Court was implausible. In particular, the language in s. 18 does not oust the superior courts’ jurisdiction. The “exclusive jurisdiction” accorded to the Federal Court is over prerogative writs, declarations, and injunctions federal administrative decision makers. Disagreeing with the FCA in Grenier, he emphasizes that s. 18

does not say that a dispute over the lawfulness of exercise of statutory authority cannot be assessed in the course of a trial governed by the Crown Liability and Proceedings Act brought in the provincial superior court or pursuant to s. 17 of the Federal Courts Act itself.

In addition to the lack of explicit language ousting the superior courts’ jurisdiction, he adds at paragraph 51 that s. 18 merely provides a grant of exclusive jurisdiction to judicially review federal administrative decisions. Further, the remedies in s. 18 do not include an award for damages. The unfairness and arbitrariness of the procedure advocated by the Attorney General is implicit in that observation. A claimant cannot seek damages in an application for judicial review. It is contrary to access to justice to require  that a claimant waste time and money going to the Federal Court for judicial review of a decision that it has no interest in so that it can satisfy a pre-condition to making a damages claim in the provincial courts.

Access to justice is also impeded by the short limitations period in s. 18. Recall that s. 18 requires applicants to make an application for judicial review within thirty days of a decision being communicated to it. One problem with that provision is that, as noted by colleague James Gotowiec here, s. 18 does not incorporate the discoverability principle. The latter is a principle which states that the limitations period starts ticking when a person obtains knowledge of his or her potential cause of action. Section 18 would preclude a person that obtains knowledge about their cause of action after that short period from seeking damages. Although he does not explicitly addresses the lack of the discoverability principle, Binnie J. did note that a thirty day cut-off to file a damages claim is unrealistic. As well, consistent with the rest of the decision, he added that that s. 18 is designed to facilitate access to justice. The short limitations period in s. 18 is designed to facilitate a quick and summary judicial review procedure and not designed to address a private law action for damages.

V. The Doctrine of Collateral Attack

The Attorney General’s support for Grenier based on the doctrine of collateral attack also fell apart before the SCC. To begin its analysis, the SCC quoted the following excerpt from Garland v. Consumers’ Gas Co., 2004 SCC 25:

The fundamental policy behind the rule against collateral attack is to “maintain the rule of law and to preserve the repute of the administration of justice” (R. v. Litchfield, [1993] 4 S.C.R. 333, at p. 349).  The idea is that if a party could avoid the consequences of an order issued against it by going to another forum, this would undermine the integrity of the justice system.  Consequently, the doctrine is intended to prevent a party from circumventing the effect of a decision rendered against it. [Emphasis added.]

Among other things, the SCC noted that Telezone Inc. was not attempting to avoid the consequences of Industry Canada’s decision. Instead, its alleged financial losses constitute the foundation of its damages claim.

VI. Floodgates vs. Gate keeper

In my post on Manuge here, I was concerned that overturning Grenier would open up the floodgates to the provincial courts and create chaos. My observation that the jurisdiction between the Federal Court and the provincial courts would be muddied and that people would wage collateral attacks that undermine the principles of finality and legal certainty was consistent with the position of the Attorney General. The SCC’s decision in Telezone eases these fears.

The SCC’s reasoning illuminates why Grenier is bad law that needed to be overturned. With the benefit of the SCC’s decision, it is now clear that it is contrary to access to justice and irrational to require claimants to seek judicial review first in order to claim damages against a federal administrative decision maker. Collateral attack is not a great concern because the claimant is not trying to get around the decision – rather, in those circumstances where the claimant accepts the decision and yet feels aggrieved by it, it should be able to seek damages notwithstanding the identity of the decision-maker as a federal body. The concern should be over the waste of scare judicial resources on litigation that claimants must undertake so that it can access the provincial courts. Further, affirming Grenier would not completely avoid the mudding of jurisdiction since federal administrative decision makers would still have to appear before the provincial courts after judicial review was completed.

The SCC correctly saw through the Attorney General’s use of Grenier to gate keep access to the provincial courts so that federal administrative decision makers would be shielded from civil liability.  While there is some merit to the argument that this decision will open floodgates of civil liability, that argument should not overshadow the fact that the decision serves to increase access to justice by eliminating a needless and time-sensitive two step process.  Furthermore, it is possible that this decision will increase the accountability of federal administrative decision makers because they will no longer be shielded from civil liability. On the other hand, the ability of decision makers to make decisions in an impartial manner may be compromised. It is possible that decision makers will let the potential for civil liability sway their decision making. However, that possibility does not signal the end of days for administrative decision makers. As noted by the SCC, decision-makers can rely upon the defence of statutory authority to protect themselves. Coupled with the ability of the courts to see through crafty pleadings that mask a collateral attack so that the provincial courts can be accessed, the existing safeguards favour the approach in Telezone.

One case in particular, Canada (Attorney General) v. McArthur, has caught the public’s imagination. The facts are fantastical. It involves one of Canada’s most notorious criminals, a hostage-taking, prison-breaking bank robber, who is trying to sue the Crown for damages stemming from the extraordinary time he spent in solitary confinement.

The Suit

In 2006, Michiel McArthur brought a suit against his warden and the appellant James Blackler, who is an Agent of the Crown. McArthur alleged that the warden’s decisions to keep McArthur in solitary confinement for four years and six months from 1994-1999 were unlawful. In his Statement of Claim, McArthur sought damages on the claim that he suffered “severe emotional and psychological injury and harm” as a result of his inability to visit with his wife and daughter, as well as from being denied access to schooling, rehabilitation and recreation programs. He further claimed that his solitary confinement was based on the warden’s “malicious ill-will” towards McArthur, and as such, arbitrary and cruel and unusual punishment, contrary to ss. 9 and 12 of the Charter.

The Crimes

Any ill – will on the part of the warden for this particular inmate may be understandable. McArthur has two apparent proclivities: robbing banks and escaping from prison once he’s caught. In 1983, McArthur robbed a bank in Hepworth, Ontario and shot a citizen who tried to stop his escape. He was apprehended, and put in Milhaven Penitentiary, a maximum-security prison. A short time after, he escaped, and proceeded to rob three more banks over the next 14 months before he was arrested again. While out on automatic early release, he robbed another bank in Port Perry, Ontario, shooting the bank manager in the leg, and brutally wounding three police officers.Read more about it here.

All told, since 1968, McArthur has been convicted of 160 crimes, including four counts of attempted murder. He has staged brazen escapes not only from Milhaven, but also from Collins Bay Penitentiary and Saskatchewan Penitentiary. In 1990, he wrote a book his escapades entitled “I’d Rather be Wanted than Had, the Memoirs of an Unrepentant Bank Robber.” So, you can see how his relations with his jailers might be a bit strained.

Time Served

Eventually, McArthur was apprehended and once again sentenced to prison, where he was placed in solitary for an 18-month stint. In 1996, McArthur elects to be moved to Kingston penitentiary, but just before he is scheduled to arrive, Blackler is appointed the warden there. Together again, Blackler locks McArthur away in solitary in Kingston for a 14 month period. You know the saying: escape from jail once, shame on you. Escape from jail four times, shame on me! I imagine the warden, Blackler, keeps the only key on a string tied around his neck, but that’s just conjecture.

During all these months in solitary confinement, McArthur has had some serious time to think. As you can guess from the title of his book, he has not been mourning his victims or expressing regret for his crimes.  Instead, he has been thinking of a way to get paid, as clearly, his bank robbing days are behind him. Unfortunately, he may have concocted a clever means to make money:  Blackler may have cut some administrative corners in his decisions to keep his least favorite inmate in solitary. Lucky for McArthur, there are rules that govern warden’s decisions, and those rules apply to every single incarcerated person.

The Issue

McArthur is seeking compensation for damages caused by Blackler’s decision to keep him in solitary confinement. A crucial element of McArthur’s argument for damages is proof that Blackler acted contrary to the Corrections and Conditional Release Act, S.C. 1992, c. 20 which regulates the segregation order to place inmates into solitary confinement. This would require a review on the lawfulness of Blackler’s decision in his role as warden. Administrative law tells us the usual way to review decisions of the executive branch of government is through judicial review; in this case because the decision maker is regulated by a federal statute, that judicial review would be through the Federal Court of Canada.

McArthur, however, is not seeking judicial review of Blackler’s decision because he is not interested in an order that the decision was contrary to law, but is only interested in that finding as it is useful to his claim for damages. At issue is whether McArthur can bring his claim for damages directly in the provincial superior court, or whether he must first get an order from the Federal Court that Blackler acted contrary to law before he proceeds with a claim for financial compensation.

Judicial History

In 2006, the Superior Court of Ontario, the motions judge accepted the AG’s arguments based on the Federal Court of Appeal’s decision in Grenier that allowing the action to proceed would be denying the intention stated in the Federal Courts Act, R.S.C. 1985, c. F-7 to grant the Federal Court exclusive jurisdiction in matters of judicial review. Therefore, it was found that a plaintiff alleging a compensable loss as a result of an administrative decision must first have the lawfulness of the decision determined by the Federal Court.

In 2008, the Ontario Court of Appeal in Telezone decided that Grenier had in fact not been correctly decided, and that the Attorney General had not established that the plaintiff’s claim fell within s. 18 (para 94) of the Federal Courts Act. In their view, s. 18 of the FCA is concerned with the remedies of prerogative writs and other extraordinary remedies, not simply relief by way of damages.

Essentially, the Federal Court has exclusive jurisdiction in matters pertaining to causes of action in administrative law, which are to be put for judicial review, but not contract or tort law, and certainly not constitutional law.

The Law

The SCC decided that the provincial superior court has jurisdiction over both McArthur’s claim for damages and the question of the constitutionality of Blakley’s segregation order.

Regarding McArthur’s claim for damages, while the issue of the lawfulness of Blackler’s segregation orders is in play, it is an element of a private law cause of action over which the provincial superior court has jurisdiction. “There is nothing in the federal legislation that says the provincial courts can only determine some – but not all – elements of his monetary claims against the Crown” (para 13). McArthur, then, does not have to seek judicial review of Blackler’s segregation order to make out his claim for damages.

Regarding the constitutional challenges, the Court held that the FCA “cannot operate to prevent provincial superior court scrutiny of the constitutionality of the conduct of federal officials” (para 14). While the Constitution authorizes the creation of additional of the Federal Court, that does not preclude the provincial superior court’s concurrent jurisdiction over the Constitution.

Looking at this case from the lens of access to justice, it is a good thing that the SCC has told the Federal Court that it’s not allowed to be the only one to decide matters of such national importance as challenges to the Crown. Had the SCC decided against McArthur, claimants seeking compensation for wrongs committed by the Crown would first have to seek an order declaring a decision unlawful before proceeding with a separate action for compensation. Given the costs involved in making a legal claim, this process would have functioned as a barrier to insulate the Crown from liability for its actions.  The mode adopted by the Court more readily holds the Crown liable for its wrongs.

If that’s the case, then Michiel McArthur – bank-robber, hostage-taker and three-time prison-escapee – has actually done the world some good.

George Galloway is an alarming man. When he is interviewed on television, renowned and regularly resolute broadcasters succumb to trembling in trepidation. Although he possesses a cheeky grin and charming Scottish lilt, he is loud, blunt, and, on occasion, exceptionally rude.

Although some find the former Member of the British Parliament to be distasteful or worse, others see him as a fervent and eloquent supported of the Palestinian people and a mainstay in the anti-war coalition. A great deal of the opprobrium directed towards Mr. Galloway revolves around this very point. There has been hearty criticism of his funding of Hamas, the terrorist organization and governing party in the Gaza Stip. Mr. Galloway, for his part, claims his donations are humanitarian aid to a democratically elected government, and that Hamas is the only organization currently capable of alleviating the hardships felt by Gaza residents.

Mr. Galloway was a British MP from 1987 to April 2010. In 2009 he scheduled a speaking tour in Canada and the United States where he planned to speak about the wars in Iraq and Afghanistan. While he was touring the United States, the Canadian Minister of Citizenship and Immigration, and the Minister of Public Safety and Emergency Preparedness decided pursuant to the Immigration and Refugee Protection Act (The IRPA) that Mr. Galloway was inadmissible to Canada. In response, Mr. Galloway and some supporters made an application for judicial review pursuant to s. 72 of The IRPA, a review that constitutes the substance of this post. The initial decision was reviewed here.

Justice Mosley of the Federal Court ruled that because Mr. Galloway never actually officially presented himself to the border officials, there was no decision to review – which is technically correct. Mr. Galloway, for his part, called what he perceived to be a ban from entering the country “an affront to Canada’s good name.” Those concerned with our country’s image can rest easy knowing that this whole debacle was characterized by a lot of loose talk, and not enough careful thought – especially on the part of a certain Ministerial aid who leaked the story to the press.

The (Unfortunate) Pre-Entry Entry Denial

Submissions to the judicial review process painted impressively different pictures of the governmental decision. The applicants, Mr. Galloway and his supporters, submitted that the decision to ban Mr. Galloway from Canada was based solely on the respondent’s political views, and that the decision was based on bad faith and an abuse of executive power. The respondents, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration, submitted that Mr. Galloway’s inadmissibility was legitimately evaluated on the basis of his own actions and in accordance with the relevant legislation, and that his political views had no bearing on the original decision. They also submitted that a decision to exclude Mr. Galloway from the country, which would trigger the possibility of judicial review, was never actually made.

The reviewing Judge, Mosley, concluded that, as a matter of law, the government’s position on reviewability was correct and that as such the application for judicial review must be dismissed. The basic reason for this determination is that Mr. Galloway was not physically denied entry from the country. Had he presented himself to border officers and been barred from entry, there would have been a judiciable issue.

The reasoning behind this is interesting, as the respondent’s political staff had requested the Canada Border Services Agency (CBSA) prepare a preliminary assessment when Mr. Galloway announced his intention to enter the country. Interestingly, the CBSA began the report and then abandoned it when Mr. Galloway announce he was not going to try to risk detainment by trying to physically enter the country.

The judge based his decision on the lack of an actual entry attempt, but did note that this finding and decision should not be taken as an agreement with the respondent’s position that there were reasonable grounds to believe that Mr. Galloway is impermissible for Canadian entry pursuant to s. 34 of The IRPA.

The whole snafu began when the Minister of Citizenship and Immigration, Jason Kenney, received an open letter requesting Mr. Galloway be banned from Canada on account of his involvement with a recognized terrorist organization. This letter was forwarded to Mr. Kenney by a Mr. Alykhan Velshi, who self-describes as “Pro-Israel” and works as the Minister’s Director of Communications.

Mr. Kenney and his staff (briefly) reviewed the case against Mr. Galloway, and decided the Department’s position matched the open letter.  Mr. Kenney’s office then presented an alert to the Department of Public Safety and Emergency Preparedness (PSEP) suggesting that Mr. Galloway might be astray of paragraphs 34(1)(c) and 34(1)(f) of The IRPA.

The relevant provisions of the IRPA read as follows:

s.34

(1) A permanent resident or a foreign national is inadmissible on security grounds for …

(c) engaging in terrorism;

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).

(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.

Before the Minister’s preliminary steps were communicated to Mr. Galloway, the very same Mr. Velshi who forwarded the letter to Mr. Kenney, was quoted in British papers stating (in frighteningly unequivocal terms) that “George Galloway is not getting the permit – end of story. He defends the very terrorists trying to kill Canadian forces in Afghanistan.”

While the Minister’s office was apparently operating in the place of the CBSA, Mr. Robert Orr, the highest-ranking CIC at the Canadian High Commission, was drafting a letter in a liaising role between the CIC and Mr. Galloway stating that the information in the newspapers came solely from Mr. Kenney’s advisors.

At this point, Minister Kenney’s actual letter reached Mr. Galloway. Part of the letter stated as follows:

“Further to my conversation with your parliamentary office, this letter confirms the preliminary assessment of the Canada Border Services Agency that you are inadmissible to Canada….

Hamas is a listed terrorist organization in Canada. There are reasonable grounds to believe you have provided financial support for Hamas. Specifically, we have information that indicates you organized a convoy worth over one million British pounds in aid and vehicles, and personally donated vehicles and financing to Hamas Prime Minister Ismail Haniya. Your financial support for this organization makes you inadmissible to Canada pursuant to paragraph 34(1)(c) and paragraph 34(1)(f) of IRPA.

In order to overcome this inadmissibility, you could submit an application for a Temporary Resident Permit. I have been asked to convey to you that it is unlikely that the application would be successful. However, a final determination with respect to a temporary permit will only be issued upon application.”

Mr. Galloway balked at the language and implications of the letter, and at this point made the decision not to try and enter the country. He broadcast his messages via video conferencing, which was relatively unsuccessful; attendance was less than expected, and many demanded a full refund.

Send Back the Red Carpet – Roll Out the Charter

Another important aspect of Galloway’s involvement in the Canadian Court system was the claim’s allegation that Mr. Galloway was denied the Charter of Rights and Freedoms protections of association and expression.

Justice Mosley and Justice Martineau on Appeal denied the claim first and foremost on the finding that Charter protections did not extend to Mr. Galloway. The analysis notes that Mr. Galloway is not a Canadian citizen, was outside of Canada at the time of the alleged Charter infringement, and concludes that Mr. Galloway lacks any “nexus” to Canada (Slahi v. Canada (Minister of Justice) 2009 FC 160.) Interestingly, the fact that the respondents did not actually apply Canadian law to Galloway helped the court come to the conclusion that there was no nexus. If there had been a reviewable decision, the court felt that such a nexus might well have been formed [para 82].

Similar situations have occurred in both the United States and Great Britain, and in both countries the speakers physically turned away at the border were successful in challenging their freedom of speech infringement. In the United States this was a successful First Amendment challenge, (Kleindienst et al v. Mandel et al 408 U.S. 753 [1972]) while in the UK it was via the Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950, 213 U.N.T.S. 221 at 223, Eur. T.S. 5.

Section 2 of the Charter has been held to protect not only the rights of the person wanting to speak, but also the rights of those people that wish to listen (Irwin Toy v. Quebec). Justice Mosley agreed with the Canadian applicants that joined Mr. Galloway that the activity for which they sought s. 2(b) protection is a form of expression, and that the main reason for seeking to prevent Mr. Galloway’s entrance into Canada was in fact his political beliefs. However, he did not agree that these first two conclusions result in the applicant’s s. 2(b) right to hear Mr. Galloway was infringed. To support this ruling, the Justice quoted Dunmore v. Ontario (A.G.) 2001 SCC 94, which stated that: “there is no requirement for the government to permit someone to enter Canada so that they may meet and speak with him, by providing the means (in this case, the forum), by which the applicants may exercise their right of freedom of expression.”

George Galloway, MP (and Terrorist?)

The judge decided it was necessary to review whatever assessment had been done by the CBSA, and found it was done in error. The judgment notes that the overall standard for inadmissibility with regards to paras. 34(1)(c) and (f) is reasonableness, and the standard of review must be tempered by a fair degree of deference to the fact finder. However, in deciding that the review was improper, the court notes that deference does not extend to turning a blind eye to “evident failings” in the assessment [para. 96]. The judge’s determination was that the assessment was not reasonable in that it over-reached in its interpretation of the facts, erred in its application of the governing law, and “fundamentally failed to take into account the purposes for which Galloway provided aid to the people of Gaza through the Hamas government” [para. 98].

The definition of “terrorism” provided in s. 83.01 of the Criminal Code provides that the offence requires a mental element. The accuse must “accused both knowingly participated in or contributed to a terrorist group, but also knew that it was such a group and intended to aid or facilitate it’s terrorist activity.”: R. v. Khawaja, [2006] O.J. No. 4245, 214 C.C.C. (3d) 399 at para. 38.

The real substance of the issue is whether Mr. Galloway’s particular interaction with Hamas constitutes “contributing … and intend(ing) to aid or facilitate (the group’s) terrorist activity.”

The CBSA’s determination regarding Mr. Galloway seemingly relies very heavily on the fact that Mr. Galloway openly and publically asserts his support for Hamas as a governmental organization, and that he has delivered them aid on several occasions. While Mr. Galloway made open donations to Hamas, no evidence was adduced to suggest that the funds were used for anything other than humanitarian purposes.

There was no evidence that Mr. Galloway was specifically supporting the terrorist elements of Hamas, or, put another way, that his goal was not humanitarian support. Mosley J chastised the CBSA decision for characterizing Mr. Galloway’s financial aid as “providing a support function” or “financial backing” amounting to an agreement to participate in the affairs of a terrorist organization as an overreach on the appropriate interpretation of the law [para. 112].

Although the factual record is unclear, surely people (and particularly sitting Members of Commonwealth Parliaments) deserve the benefit of the doubt when condemning evidence is unavailable. Mr. Galloway supported Hamas. Had Mr. Velshi been in charge of the CBSA decision and Mr. Gallway actually been denied simply for arguably distasteful views on the Iraq and Afghanistan wars, then the government’s action would be beyond condemnation. However, where the organization donated to is a democratically elected government,  the support provided cannot be proven to be anything other than humanitarian aid to a ravaged and squalid part of the world. To characterize the donor as a terrorist or terrorist supporter is, as the court noted, unreasonable.

For the purposes of at least newsreel and commentary fodder, it is too bad Mr. Galloway did not present himself to the border. If he had done so, been denied, and drew Mosley J for his review, there would have been a swift conclusion that there was a reasonable apprehension of bias in that decision [at para. 148]. For an issue this compelling and important to Canadian policy, it is tragic that this case ended up turning on a fact scenario that could have, in retrospect, easily been avoided.

Galloway came – and left – Canada this week without much additional fanfare. After all, his opinions are widely available on the Internet (as are videos of choice moments during his bizarre stint on the UK reality TV show Celebrity Big Brother) and as Canada has learned in the past, it usually works out much better for everyone to let people speak their minds than to use the law to silence them.

Finally, Mosley J. noted that the statements made to the British press by the apparently over-sold and preposterously self-promoting Mr. Velshi as nothing more than “unfortunate expressions of opinion.” [para 145]. This case has some drama, some controversy, and a significant amount of nuance. Although there is no doubt that not all can agree on Mr. Galloway, hopefully we can rally sentiment that quotes such as “(he) is not getting the permit – end of story” by nothing more than a ministerial aid has nothing to do with the way this or any country should be governed nor in the way our celebrated democracy should be presenting itself internationally.

In part, the CHRA provides individuals with the ability to challenge a discriminatory practice in areas within Federal jurisdiction. A complaint must first be filed with the Canadian Human Rights Commission which then decides whether or not to forward it to the CHRT for adjudication. In the present case, the CHRT ordered the CAF to reimburse Mowat’s legal costs pursuant to s. 53(2)(c) of the CHRA, which states:

If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
…
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;

In Canada (Attorney General) v. Mowat, 2008 FC 118, the Federal Court upheld the CHRT ruling by concluding that the appropriate standard of review of the CHRT decision was “reasonableness.” The CHRT was reasonable in its determination that it had the authority, pursuant to s. 53(2)(c) of the CHRA, to award legal costs to a successful complainant. The Attorney General (“AG”) appealed and the Federal Court decision was subsequently overturned in Canada (Attorney General) v. Mowat, 2009 FCA 309. Mowat did not appear before Court of Appeal and the CHRC intervened on her behalf.

What is the Appropriate Standard of Review?

The primary issue before the Court of Appeal was whether the tribunal was within its jurisdiction to award legal costs. In order to do this, the Federal Court was required to determine what standard of review applied to the CHRT decision. As mentioned, the Federal Court ruled that the “reasonableness” of the CHRT’s interpretation of s. 53(2)(c) was the appropriate standard. The Court of Appeal had to decide whether the Federal Court chose the proper standard of review and if that standard was utilized properly.

Before the Court of Appeal, the AG argued that the appropriate standard of review was “correctness.” Accordingly, the issue of whether or not the CHRT could award legal costs was a question of law and beyond the expertise of the CHRT. In contrast, the Canadian Human Rights Commission (“CHRC”), as intervener, asserted that the appropriate standard was “reasonableness with deference.” As stated by the Court of Appeal “if the standard of review analysis yields a standard of review of correctness, no deference is owing.”

Referring to the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,  the appeal court noted “three situations where the correctness standard of review is appropriate”:

[First, a] true question of jurisdiction where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter is the first situation…The second is where there is a question of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise…The third situation is where a determination of jurisdiction between two competing tribunals is required…

(In Dunsmuir, a discharged employee filed a grievance challenging the method of his dismissal. An adjudicator ruled that he was improperly dismissed and the case was eventually appealed to the SCC. The decision is notable for the SCC’s simplification of the standard of judicial review categories.)

In the present case, the CHRC asserted that the broad wording of s. 53(2)(c) provided the authority to grant costs. The Court of Appeal disagreed, concluding that the issue of awarding legal costs is “a question of general law of central importance to the legal system as a whole and one that is outside the specialized expertise of the Tribunal…The Tribunal’s authority to award costs of a proceeding to a successful complainant has nothing to do with the substance of human rights.” Hence, the appropriate standard of review was determined to be correctness.

Is the CHRA a “One-Sided Regime”?

Before the Court of Appeal, the AG presented more persuasive arguments than the CHRC. As is evident from s. 53(2)(c), the CHRT has the authority to mandate compensation for “expenses” incurred by the complainant as a result of the discriminatory practice. Yet, the term “expenses” in s. 53(2)(c) is distinct from “costs”, which is not mentioned in the CHRA. Furthermore, a Parliamentary intention to provide the CHRT with the jurisdiction to awards costs is absent from s. 53(2), or the statute as a whole.

One of the most interesting arguments forwarded by the AG was that Parliament could not have intended to have “established a one-sided regime…” The Court of Appeal agreed, noting that “costs” is a “legal term of art” widely recognized as being awarded to the losing party. While I agree with this reasoning in the narrow context of the appeal court decision and the scope of s. 53(2)(c), it can also be argued that Parliament has already “established a one-sided regime.” More specifically, in the case of an unsubstantiated claim, the CHRA lacks a provision providing any form of compensation for the accused.

Obviously not every complaint is valid and, pursuant to s. 53(1), if it is unsubstantiated it must be dismissed by the CHRT. The accused is not afforded an additional remedy under the CHRA and considering potential legal costs and associated stresses, a successful challenge is likely a hollow victory.

Conclusion

Authorizing the CHRT to award legal costs to successful complainants under s. 53(2)(c) will only further imbalance the CHRA regime. If a complainant is able to obtain expenses, including costs, on a substantiated complaint, the accused should be afforded similar compensation when one is unsubstantiated. As a possible legislative compromise, if it is determined that the unsubstantiated complaint was made in good faith, the CHRC should be responsible for the compensation, not the complainant.

In regards to the CBSA’s motion to dismiss Mr. Anisman’s application for judicial review, Barnes J. relied upon the test in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. In David Bull, Strayer J.A. held that an application for judicial review could be dismissed where the application was “so clearly improper to be bereft of any possibility of success”. Since such cases are exceptional, and excludes situations where the allegations in the application have questionable adequacy, Barnes J. held that the Federal Court could decide motions where the ground for dismissal is on the basis of jurisdiction.

He found that the CBSA was acting as an agent of the LCBO whenever it collected mark-ups on alcohol, pursuant to their 1993 agreement. The Ontario Liquor Control Act allowed the LCBO to enter into such an agreement with the Government of Canada. Mr. Anisman conceded that the CBSA had authority to act as an agent of the LCBO to collect mark-ups under provincial law, but maintained that it did not have such authority under federal law. Barnes J. held that the CBSA currently has authority under federal law, but did not have such authority in 1993. Although there was legislation supporting federal/provincial agreements regarding the collection of a tax in 1993, a mark-up is not a tax, and thus it was unclear to Barnes J. whether the CBSA had authority under federal law in 1993. Since the CBSA failed the David Bull test, Barnes J. ultimately refused to dismiss the application for judicial review.

Motion for Summary Judgment on Mr. Anisman’s Request for a Refund

The key issue in Mr. Anisman’s motion for summary judgment was whether the Federal Court had jurisdiction under s. 18 of the Federal Courts Act to deal with the CBSA’s decision to collect the mark-up. Since the agreement and the authority of the CBSA to act on behalf of the LCBO was rooted in the provincial Liquor Control Act, Barnes J. held that the provincial courts were the proper forum to deal with the matter. He explained that it is not the role of the Federal Court to enforce provincial law, specifically where the provincial law is the source of a decision-maker’s authority.

There are a few issues that arise out of Barnes J.’s decision. He emphasized that the matter should be before the provincial courts because the CBSA was an agent acting pursuant to provincial law. Based on his reasoning, it seems as though Mr. Anisman should have made a claim against the LCBO and not the CBSA, because the latter was merely acting as an agent. According to the common law concept of agency, the principal is vicariously liable for the acts of its agent. Since the CBSA was an agent that was executing its principal’s orders in the agreement, it should not have been exposed to Mr. Anisman’s claim. The common law can be overridden by express statutory language, but there was no such language here. The Federal Court of Appeal took issue with this particular portion of Barnes J.’s decision, but applied different reasoning.

The primary issue before the Federal Court of Appeal was whether the CBSA was acting as a “federal board, commission or other tribunal” when it collected the mark-up. Nadon J.A. agreed with Barnes J.’s finding that the authority of the CBSA to collect the mark-up was rooted in the Ontario Liquor Control Act, but he disagreed with the finding that Mr. Anisman could make an application against the CBSA based on the definition of “federal board, commission or other tribunal” in s. 2 of the Federal Courts Act. The latter states that bodies that exercise or purport to “exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown…” are federal boards, commissions or other tribunals that fall within the scope of the Federal Court’s jurisdiction. Since the source of the CBSA’s authority was neither federal legislation nor an order made pursuant to a prerogative of the federal Crown, the CBSA did not fall within the scope of s. 2. Thus, Mr. Anisman could only proceed against the LCBO in the provincial courts.

The Federal Court of Appeal’s decision in this matter will be highly welcomed among travelers attempting to seek relief from the plethora of government agencies involved. It is instructive on the proper party from whom a plaintiff should seek a mark-up refund, and the proper forum to hear such claims. As well, the decision can be appreciated on the basis that Nadon J.A.’s statutory interpretation is consistent with the common law concept of agency. While the decision does not provide relief against paying mark-ups, it does at least let you know which agency has its hand in your pocket, and where to go to get relief.

Upon landing and being taken into custody by Customs officials, no one could quite blame Abdulmutallab for thinking he was heading to Guantanamo Yemen. Indeed, Abdulmutallab was subjected to an entire 52 minutes of question by federal agents. But then a funny thing happened. The agents were replaced by a new team of federal agents who, acting on instructions from Washington, promptly read Abdulmutallab his Miranda rights and provided him with a lawyer. Not surprisingly, Abdulmutallab instantly clammed up and refused to divulge any more top secret information (for example, Osama’s whereabouts).

On December 26, Abdulmutallab was indicted in the United States District Court in Michigan. The move drew the ire of many, with Republicans blistering in their response. Maine’s Susan Collins complained that the Obama administration made a terrible mistake to “treat a foreign terrorist who had tried to murder hundreds of people as if he were a common criminal”. In a letter to Attorney General Eric Holder, all the Republicans on the Senate Judiciary Committee questioned why Abdulmutallab was treated as a criminal suspect rather than an enemy combatant. In response, the Democrats argued that Republicans were “politicizing” the bombing, in a manner inconsistent with former President George Bush’s choice to try shoe bomber Richard Reid as a criminal back in 2001. Back when Reid was tried in federal court, Judge William Young famously said:

You are not an enemy combatant, you are a terrorist. You are not a soldier in any army you are a terrorist. To call you a soldier give you far too much stature.

Political agendas aside, what then serves as the basis for deciding whether to view a terrorist as a criminal or an enemy combatant?

The Law Enforcement Paradigm

The traditional approach to viewing terrorism has been to consider it as a criminal phenomenon to be dealt with using normal law enforcement methods. Under this paradigm, the same measures that are used in combating crime – investigations, trials, and incarcerations – should be used to combat terror. The inherent checks and balances of these systems protect the human rights of accused persons. After all, human rights law exists to protect the minorities and the most vulnerable in our society. Who is a terrorist but an outcast, a minority, one that needs the very protection that human rights laws proclaim to give?

As the strength of terrorist organization grows, however, the traditional paradigm has been reformulated in order to grant authorities stronger enforcement powers to better combat terrorism. For example, after 9/11 the United States adopted The Patriot Act, which in part allowed invasive powers of search and surveillance, detention, and seizure of property which previously had not been allowed because they compromised human rights and basic freedoms. This increase in enforcement powers thus compromises the human rights of people suspected of terrorist activity.

In Charkoui, the Supreme Court of Canada ruled that legal proceedings which allow prolonged detention of terror suspects based upon confidential evidence and limited judicial review violate the s. 7 Charter rights of liberty. In order to use the Law Enforcement Paradigm effectively, therefore, the human rights of suspected terrorists may be severely curtailed; alternatively, adherence to human rights law will obstruct the State from adopting measures in order to effectively combat terror. As a result, whether to prevent spillover effects from diluting human rights or law or in effort to effectively be able to combat ever increasingly sophisticated terrorism, there has been a paradigm shift towards the Armed Conflict Paradigm.

The Armed Conflict Paradigm

In view of the resources available to terrorist organizations that allow them to inflict as much, if not more, damage as some standing armies, the war on terror has been viewed in many quarters as essentially a military conflict. While in a Law Enforcement Paradigm it is the Judiciary that combats criminals, in an Armed Conflict Paradigm it is the Executive that fights a war. No longer bound by the strict Law Enforcement rules, under this Paradigm the executive may use targeted killing, lengthy administrative detention, and any similar tools that are analogous to those used against enemy forces in times of war.

While the Executive can doubtless act speedily and mobilize the resources of the nation in combating terror, there are two primary concerns with the Armed Conflict Paradigm. First, it is questionable whether international law truly analogizes terrorist activity with enemy state action. Where the level of violence is extremely high and cannot be adequately dealt with by the Law Enforcement Paradigm, however, a nation’s right to self-defense has been extended to allow for military action. Second, there is a concern that the Executive may use terrorism as a pretext for military action, rather than legitimate defensive strategies.

Conclusion

The increased power of terrorist organizations has forced a shift away from the traditional framework of the Law Enforcement Paradigm. In order to adequately combat terror, restrictions would have to be placed on human rights. Essentially, there is a tension between human rights laws aimed at preventing abuses by the State and limiting these same rights by endowing the State with increased powers to combat terrorism. Furthermore, the Law Enforcement Paradigm is reactive rather than proactive: it responds to the results of terrorism rather than the threat from terrorism.

By only allowing federal agents just over 50 minutes to question Abdulmutallab, a valuable opportunity to combat the existential threat of terrorism, particularly from al-Qaeda, was lost. At the time, White House spokesman Robert Gibbs attempted to defend the short interrogation period claiming that “FBI interrogators believe they got valuable intelligence and were able to get all that they could out of him”.  Oddly enough, however, on February 2 senior officials stated that Abdulmutallab was co-operating with officials and had provided “actionable intelligence”. Somehow it seems that the first interrogation wasn’t quite comprehensive enough. Furthermore, six weeks is quite a delay to act on “actionable intelligence”. One has to presume Osama’s real estate agent has already put Osama’s cave up for sale.

The limits of the Law Enforcement Paradigm, in turn, argue for the necessity of exploring the Armed Conflict Paradigm. Yet the legitimacy of entering the Armed Conflict Paradigm only extends insofar it is necessitated to combat that existential threat. In other words, the existence of a terrorist with information that could help combat terrorism should have placed Abdulmutallab squarely as an armed combatant. Once that information was gathered – and by all accounts Abdulmutallab was initially singing like a canary – the paradigm should once again shift back to the Law Enforcement model. At that point, by all means, indict and try Abdulmutallab with all the protections of human rights law.

Obama could have looked at Jose Padilla and Ali al-Marra, charged and detained on U.S. soil as an example of how to approach this contentious issue. In that case, the pair were initally designated enemy combatants but were eventually tried and convicted in Federal Courts. This time, however, the U.S. administration went ahead with the decision to handle Abdulmutallab in criminal courts without consulting FBI director Robert Mueller, National Counterterrorism Center director Michael Leiter, Director of National Intelligence Dennis Blair, or Homeland Security Secretary Janet Napolitano. While the intention to enshroud Abdulmutallab in all the protections the Federal Courts have to offer may be admirable, when facing enemy combatants one should be wary of the deficiencies of the Law Enforcement Paradigm.

At issue is the reach of ss. 18 and 18.1 of the Federal Courts Act, which together give the Federal Court exclusive jurisdiction to grant prerogative writs (such as certiorari, prohibition and mandamus) or other declaratory relief against “any federal board, commission or tribunal”. In each of the cases before the Court, the plaintiffs are seeking damages from the Crown as a result of such a decision. For instance, in Telezone v. Attorney General, Telezone is seeking damages from Industry Canada for allegedly breaching a contract that was created when it issued a call for applications for telecommunications licenses. The company is not seeking to have the original decision changed, and is not asking the court to compel Industry Canada to issue a license. This is important, as it influences whether s. 18 applies in this case.

Collateral Attaaaaaacccckkkkkkkk!!!
The Crown’s response in each action has been to rely on Grenier to argue that any time the success of an action depends on a finding that a federal board’s decision was invalid or unlawful, the plaintiff must first apply to the Federal Court to determine that preliminary issue. This is where the doctrine of collateral attack comes in. If a plaintiff is trying to nullify or alter a final decision in a proceeding outside of one specifically for that purpose, that is considered a collateral attack. Here, the Crown contends that the plaintiffs are indirectly challenging the decisions of federal boards or tribunals, and therefore sections 18 and 18.1 require them to do so in Federal Court. (The Supreme Court has discussed the doctrine of collateral attack, albeit in the criminal context, in Toronto v. CUPE, 2003 SCC 63)

In the criminal context, the collateral attack doctrine makes some amount of sense. If a decision is issued that leads to the prospect of criminal prosecution (for instance, disobeying an administrative order requiring a site cleanup for environmental reasons), then that decision should be challenged by way of judicial review; if the challenge is successful, then the basis of the prosecution will disappear. But those considerations do not apply in the civil context, especially where the plaintiff is seeking damages and not any judicial review remedy. In that context, there are many reasons to reject the Crown’s argument; Borins J.A. effectively summarized them in his judgment in the Telezone case, which dealt with four of the seven appeals at issue (2008 ONCA 892):

[I]f generally accepted, Grenier’s insistence that actions in provincial superior courts against the Crown are precluded without a prior application for judicial review would have far reaching implications with respect to principles of Crown liability. In particular, the Crown’s position as based on Grenier, would require split or multiple proceedings in different forums, waste scarce judicial resources, impose huge additional costs on plaintiffs, and subject every tort and contract claim against the Crown to a draconian 30-day limitation period.

I’m sure this passage will feature prominently in the respondents’ arguments this week. The most troubling implication of the Crown’s argument is the 30-day limitation period, which arises by virtue of s. 18.1 of the Federal Courts Act. That is an awfully short time to allow for the bringing of an action, especially when the damage from the decision may not be immediately apparent. In the case of an action for misfeasance in public office or other tort claims, the facts surrounding the decision may not be immediately available, and the plaintiff may not know within 30 days that an action exists. Provincial limitations statutes generally correct for this by using a discoverability rule — the limitation period does not start to run until the claim has been discovered. But s. 18.1 of the Federal Courts Act starts the limitations clock as soon as the decision is issued.

The section does allow a judge discretion to extend the time for the bringing of an action, but you can be sure that the Crown would fight any attempt to use that discretion, which provides yet another avenue of appeal, bogging down the court system and increasing costs for litigants. If the Supreme Court endorses the approach taken in Grenier, this will surely lead to another raft of case law on when it is appropriate to exercise the discretion allowed by s. 18.1, and possibly lead to more tortuous 5-part tests along the lines of Des Champs v. Conseil des écoles séparées catholiques de langue française de Prescott‑Russell, [1999] 3 S.C.R. 28, where Binnie J. attempted to set out the conditions under which a special 6-month limitation period would apply to actions by public authorities.

Happily, as Justice Borins makes clear, it doesn’t have to be this way. If s. 18 is read as conferring exclusive jurisdiction over particular remedies, then there is no problem. Since the section gives the Federal Court “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 federal boards, and “to hear and determine any application or other proceeding for relief in the nature of” those remedies, such a reading is not particularly creative. Damages are not available in an application for judicial review, and so s. 18 should not apply to an action for damages.

A plaintiff seeking damages as a result of a decision by a federal actor, but who is not challenging the legal force of that decision, should be able to bring an action in superior court within whatever limitation period applies generally in the province. There are no reasons of interpretation or policy that support such a short limitation period, or that support the highly technical reading of s. 18 advocated in Grenier. The Supreme Court should see fit to stop the madness and set the record straight.

Upon his release from the Canadian Forces, Mr. Manuge qualified for a long-term disability pension under a mandatory disability plan created by s. 39 of the National Defense Act. He filed an action for damages against the Crown with the Federal Court, challenging the lawfulness and constitutional validity of the disability plan. He claimed that the plan infringed his right to equality under s. 15 of the Charter because it deducted a portion of his pension, leaving him with 59% of the income he was earning while in the employ of the Canadian Forces. As well, the Crown failed to fulfill its obligations under public law, breached its fiduciary duty to Mr. Manuge, acted in bad faith and was unjustly enriched by its conduct. Mr. Manuge subsequently amended his action and requested that it be certified as a class action. The Crown objected to him proceeding by way of action under s. 17 of the Federal Courts Act, and to the certification of this action as a class action. Citing Canada v. Grenier, 2005 FCA 238, the Crown argued that Mr. Manuge should have applied for judicial review pursuant to s. 18 of the Federal Courts Act.

The Leading Precedent in this Area of Law

In Grenier, the issue was whether an inmate could challenge an administrative decision by the head of the penitentiary through an action for damages instead of judicial review. Pursuant to ss. 18, 18.1 and 28 of the Federal Courts Act, it was held that judicial review must be used to challenge the decision of a federal administrative body. Under ss. 18 and 28, the Federal Court has exclusive jurisdiction over those particular matters. In contrast, s. 17(1)(d) gives the Federal Court concurrent jurisdiction with the provincial courts over claims under the Crown Liability and Proceedings Act. Writing for the Federal Court of Appeal, Letourneau J.A. held that the lawfulness of decisions of federal administrative bodies cannot be reviewed through an action in damages because it would allow a remedy under s. 17. To do so would ignore legislative intent that an action for damages should proceed only by way of judicial review. Allowing a remedy by way of an action for damages would result in the duplicity of jurisdiction, something that Parliament tried to avoid by granting exclusive jurisdiction to the Federal Court through the enactment of s. 18.

At the Federal Court, Barnes J. distinguished the case at hand from Grenier. In his claim, Mr. Manuge challenged s. 24 of Part III(B) of Insurance Policy SISIP901102 (SISIP). Barnes J. held that s. 24(a)(iv) of the SISIP did not result in a decision of a federal administrative body, but was a government policy. Since Grenier did not apply, Mr. Manuge could proceed by way of an action for damages. Even if judicial review was required under the circumstances, Barnes J. held that Mr. Manuge would not have to start his proceedings over. The latter would be converted into an action. To the dismay of the Federal Court of Appeal, Barnes J. went even further. He held that this “action” should be a class action. This particular portion of the decision struck me as being odd and unnecessary because of Barnes J.’s uncertainty regarding the proper procedure to be followed. According to s. 18.4(2) of the Federal Courts Act, he could exercise his discretion to convert a proceeding by way of judicial review into an action. However, Mr. Manuge instituted proceedings by way of an action. In what can only be described as generosity to Mr. Manuge, Barnes J. treated the action for damages as an application for judicial review.

At the Federal Court of Appeal, Letourneau J.A. overturned the lower court’s decision. He decided the matter consistent with his decision in Grenier. The disability plan was a decision of a federal administrative body (which consisted of the Minister and Chief of Defense Staff), and thus judicial review was warranted. Letourneau J.A. explained that even if the disability plan was a policy, the decisions made by the administrative body in the implementation of that policy would still be subject to judicial review.

Disrupting Organization or the Beginnings of Reorganization?

Bearing in mind that there a few appeals in front of the SCC that deal with the Grenier decision, Letourneau J.A. discusses the ensuing chaos associated with overturning the latter. First, legislative intent that there be segregated jurisdiction between the federal and provincial courts will be frustrated. Parliament assigned the federal courts the unique role of reviewing the lawfulness of federal administrative body decisions. If Mr. Manuge is allowed to proceed with his action for damages, then a decision that should properly be subjected to judicial review will essentially fall under s. 17. As mentioned earlier, there is shared jurisdiction between the provincial and federal courts under that section.

Part of me believes that if Mr. Manuge is successful, then he will be opening up Pandora’s box, and the neat segregation of jurisdiction  between the courts will erode. The drawbacks are manifold – litigants will begin to wage collateral attacks, the certainty that comes with a limited appeal period of federal administrative body decisions will be eliminated, and the efficiency of administrative bodies will be reduced. At the same time, I can appreciate the litigant’s frustration of having to start all over if the incorrect procedure is followed. The complexity of individual legal problems can make it difficult to determine the proper procedure, or as illustrated in other appeals currently before the SCC, the proper court.

One such appeal, Telezone v. Canada, originates from the Ontario Court of Appeal. The four appeals that were decided in that decision involved actions for damages for false imprisonment, breach of Charter rights, breach of contract, tort and misfeasance in public office. Like in Mr. Manuge’s case, the Crown argued that Grenier applied to all four appeals because a federal administrative body decision was somehow involved. This argument was held to be a stretch in two of the appeals.

These cases illustrate the need to formulate a clear delineation in order to distinguish between a case that primarily deals with a federal administrative decision and that which tangentially deals with the latter. The worthy goal of segregating jurisdiction must not be used to improperly determine the court or legal procedural to be used in the circumstances.

At issue in Boulter was the constitutional validity of legislation requiring the Utility and Review Board to set the same power rates for all consumers. The appellants argued poverty was an analogous ground under s. 15(1) of the Canadian Charter of Rights and Freedoms, and the legislation discriminated against the poor. In dismissing the appeal, the Court of Appeal held that poverty was neither an immutable characteristic of the individual nor constructively immutable, and thus did not meet the criteria to be considered an analogous ground.

While an argument can be made that poverty can be seen as constructively immutable, (see Daniel Del Gobbo, (Mis)Construing Kapp to Preclude the Impoverished,) the entire immutable characteristics doctrine is somewhat puzzling. The purported policy rationale of s. 15 is to promote equality by preventing legislation being passed that exacerbates existing inequalities. In Law v. Canada, [1999] 1 S.C.R. 497, the Supreme Court of Canada set out the tests for determining a discrimination claim. Under the first branch of the Law test, one must inquire as to whether the impugned law draws a formal distinction between the claimant and others on the basis of one or more personal characteristics. In Corbiere v. Canada, [1999] 2 S.C.R. 203, the Court established the criteria to identify an analogous ground. The Court held that the common thread running through all enumerated grounds in s. 15 is that they serve as the basis for stereotypical decisions made on the basis of a personal characteristic that is immutable, or changeable only at great cost to personal identity.

The decision to limit the scope of s. 15 to discrimination based on personal characteristics has a valid objective. As McIntyre J. wrote in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143:

Distinctions based upon personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

The purpose of such enumerated and analogous grounds, then, is to serve as an indicator for suspect decision making. The adoption of “personal characteristics” serves as a bright line, clearly demarcating between decisions based on stereotypical decisions and those based upon merit. However, as Professor Alan Dale Gibson points out in “Analogous Grounds of Discrimination Under the Canadian Charter: Too Much Ado About Next to Nothing”, (1991) 29 Alta. L. Rev. 772, the “personal characteristic” standard is inherently incompatible with the notion of discrimination. Discrimination is based upon broad stereotypes of a group, rather than one’s personal characteristics. The Court recognized such difficulties in Corbiere when it introduced the concept of a “constructively immutable” characteristic; thus, grounds such as marriage and religion which would not be easily encompassed by the umbrella of immutable “personal characteristics” can nonetheless fit under the Court’s expanding definition of what may constitute discrimination. Yet the Court relegates other factors such as personal care and social assistance to the side, despite their potential to serve as bases for discriminatory decision making.

In adopting the “personal characteristics” standard as an indicator for discrimination, the Court runs the risk of ignoring discrimination on other grounds. The real danger lies in relying on preconceived notions of what may constitute discrimination, and dismissing actual discrimination where it doesn’t fit tidily in our prior definitions. One is well served to remember Wilson J.’s caution in R. v. Turpin, [1989] 1 S.C.R. 1296:

If the larger context is not examined, the s. 15(1) analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation.

Returned to Boulter, one is struck by the Court’s repeated refusal to recognize poverty as an analogous ground of discrimination. In Sparks v. Dartmouth/Halifax County Regional Housing Authority, 1993 CanLII 3176 (NS C.A.), the court largely avoided the poverty argument in favour of finding the ground of distinction was “public housing tenant”. While the end result may have been the same, the Court’s refusal to extend its analysis beyond the confines of the narrow boundaries it itself has created is troubling. What would be the difference if an individual is denied tenancy on the basis of their race or ethnicity instead of on the basis of their impoverished state? In both situations the individual would be experiencing discrimination on the basis of a stereotype about a particular group. Are we prepared only to recognize discrimination when it occurs to members of a sub-group on a recognized analogous ground, denying s. 15 protection to other segments of the population?

Whether or not poverty should be considered an analogous ground, and whether the legislation in Boulter is indeed discriminatory is not at issue here. The refusal to consider poverty as an analogous ground since it fails to meet the “personal characteristics” standard, however, is a matter of some concern. The “personal characteristics” standard has the effect of drastically reducing the scope of s. 15 protection. Though useful as an indicator of discrimination, its use as a gatekeeper function for s. 15 defeats its very purpose.

In reconceptualising the criteria to establish analogous grounds, perhaps the “personal characteristics” standard could be replaced with a more flexible approach that has the potential to encompass all grounds of discrimination, regardless of whether they conform to our preconceived norms. For example, the “distinct community” standard in Commission For Racial Equality v. Dutton, [1989] QB 783, could theoretically include poverty as an analogous ground. Perhaps we can also rephrase McIntyre J.’s explanation of discrimination in light of our expanding conceptions of what constitutes discrimination.

Distinctions based upon stereotypes of an individual on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

While this would expand the scope of s. 15 protection, this is by no means a bad thing. The focus on stereotypes stemming from one’s association with a group acts both to encompass other discriminations and specify a specific and identifiable disadvantaged group. It is indeed the collective characteristics of the group –be it gender, sexual orientation, or religion– that is the target of the stereotypical assumptions. In removing the “personal characteristics” standard, it is our hope that an analysis for analogous grounds can take place free from our own myths and stereotypes of what may constitute discrimination.