Dutchak v. Canada (Attorney General)

Dutchak v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2005-12-20 Neutral citation 2005 FCA 438 File numbers A-403-05 Decision Content Date: 20051220 Docket: A-403-05 Citation: 2005 FCA 438 Present: SHARLOW J.A. BETWEEN: DALE DUTCHAK Applicant and ATTORNEY GENERAL OF CANADA and MINISTER OF LABOUR JOSEPH FONTANA and TEAMSTERS CANADARAIL CONFERENCE, UNITED TRANSPORTATION UNION, CANADIAN PACIFIC RAILWAY COMPANY Respondents Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario on December 20, 2005. REASONS FOR ORDER BY: SHARLOW J.A. Date: 20051220 Docket: A-403-05 Citation: 2005 FCA 438 Present: SHARLOW J.A. BETWEEN: DALE DUTCHAK Applicant and ATTORNEY GENERAL OF CANADA and MINISTER OF LABOUR JOSEPH FONTANA and TEAMSTERS CANADARAIL CONFERENCE, UNITED TRANSPORTATION UNION, CANADIAN PACIFIC RAILWAY COMPANY Respondents REASONS FOR ORDER [1] The applicant Mr. Dale Dutchak has filed a notice of application for judicial review of a decision of the Canada Industrial Relations Board dated August 15, 2005. [2] A dispute has arisen as to who should be named as a respondent. This matter is governed by Rule 303 of the Federal Courts Rules, SOR/98-106, which reads as follows: 303. (1) Subject to subsection (2), an applicant shall name as a respondent every person (a) directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought; or (b) required to be named as a party under an Act of Parliament pursuant to which the application is brought. (2) Where in an application for judicial review there are no persons that can be named under subsection (1), the applicant shall name the Attorney General of Canada as a respondent. (3) On a motion by the Attorney General of Canada, where the Court is satisfied that the Attorney General is unable or unwilling to act as a respondent after having been named under subsection (2), the Court may substitute another person or body, including the tribunal in respect of which the application is made, as a respondent in the place of the Attorney General of Canada. 303. (1) Sous réserve du paragraphe (2), le demandeur désigne à titre de défendeur : a) toute personne directement touchée par l'ordonnance recherchée, autre que l'office fédéral visé par la demande; b) toute autre personne qui doit être désignée à titre de partie aux termes de la loi fédérale ou de ses textes d'application qui prévoient ou autorisent la présentation de la demande. 2) Dans une demande de contrôle judiciaire, si aucun défendeur n'est désigné en application du paragraphe (1), le demandeur désigne le procureur général du Canada à ce titre. 3) La Cour peut, sur requête du procureur général du Canada, si elle est convaincue que celui-ci est incapable d'agir à titre de défendeur ou n'est pas disposé à le faire après avoir été ainsi désigné conformément au paragraphe (2), désigner en remplacement une autre personne ou entité, y compris l'office fédéral visé par la demande. [3] Mr. Dutchak initially named as respondents the Attorney General of Canada, the Minister of Labour Joseph Fontana, the Canada Industrial Relations Board, Teamsters Canada Rail Conference, United Transportation Union, and Canadian Pacific Railway Company. [4] There is no doubt that Mr. Dutchak was correct to name Teamsters Canada Rail Conference, United Transportation Union, and Canadian Pacific Railway Company as respondents. [5] The Canada Industrial Relations Board was struck as a respondent on the direction of Mr. Justice Sexton. That is because the Canada Industrial Relations Board is the tribunal whose decision is the subject of the application for judicial review. It is obviously outside the scope of Rule 303(1)(a), and it is also outside the scope of Rule 303(1)(b) because there is no Act of Parliament requiring the Canada Industrial Relations Board to be named as a party. [6] Counsel for the Attorney General of Canada and the Minister of Labour has filed a notice of motion for an order striking those parties as respondents as well, on the basis that they should not have been named as respondents. [7] Mr. Dutchak attempted to file a motion record in response, but it was not accepted for filing because he did not file proof that his motion record had been served on the other parties. Mr. Dutchak, having been informed that his motion record was not accepted, did not file proof of service or ask for additional time to effect service. Therefore, the motion will be dealt with on the basis of the material filed by counsel for the Attorney General of Canada and the Minister of Labour. [8] The motion must be granted because Rule 303(2) does not apply, and there is no basis for concluding that the Attorney General of Canada or the Minister of Labour are within the scope of Rule 303(1)(a). [9] There is a misconception held by some litigants that they must name a federal government party in any application for judicial review, because if they do not, the federal government will not be bound by any resulting order. In fact, the federal government will not be free to disregard any judgment of this Court relating to Mr. Dutchak's application for judicial review, whether it is successful or unsuccessful. [10] It appears from the notice of application for judicial review that Mr. Dutchak will be seeking to raise one or more constitutional questions. If so, it may be necessary to serve the Attorney General of Canada, among others, with a notice of constitutional question. However, that can be done without adding the Attorney General of Canada as a party. "K. Sharlow" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-403-05 STYLE OF CAUSE: DALE DUTCHAK Applicant and ATTORNEY GENERAL OF CANADA and MINISTER OF LABOUR JOSEPH FONTANA and TEAMSTERS CANADA RAIL CONFERENCE, UNITED TRANSPORTATION UNION, CANADIAN PACIFIC RAILWAY COMPANY Respondents MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: SHARLOW J.A. DATED: December 20, 2005 WRITTEN REPRESENTATIONS BY: Daryl Schatz FOR THE RESPONDENTS ATTORNEY GENERAL OF CANADA and MINISTER OF LABOUR JOSEPH FONTANA, MOVING PARTY Dale Dutchak ON HIS OWN BEHALF SOLICITORS OF RECORD: Dale Dutchak Moose Jaw, SK ON HIS OWN BEHALF Deputy Attorney General of Canada Ottawa, Ontario FOR THE RESPONDENTS ATTORNEY GENERAL OF CANADA and MINISTER OF LABOUR JOSEPH FONTANA CaleyWray Labour Lawyers Toronto, Ontario FOR THE RESPONDENT UNITED TRANSPORTATION UNION Legal Services Calgary, Alberta FOR THE RESPONDENT CANADIAN PACIFIC RAILWAY COMPANY