Dugré v. Canada (Attorney General)

Dugré v. Canada (Attorney General) Court (s) Database Federal Court Decisions Date 2024-11-08 Neutral citation 2024 FC 1797 File numbers T-141-23 Decision Content Date: 20241108 Docket: T-141-23 Citation: 2024 FC 1797 [ENGLISH TRANSLATION] Ottawa, Ontario, November 8, 2024 PRESENT: The Honourable Justice Roy BETWEEN: THE HONOURABLE GÉRARD DUGRÉ Applicant and

ATTORNEY GENERAL OF CANADA Respondent

JUDGMENT AND REASONS [1] The Attorney General of Canada comes before the Court seeking to strike the application for judicial review brought by Mr. Justice Gérard Dugré, a judge of the Superior Court of Quebec, whose removal as a judge of the Superior Court was recommended by the Canadian Judicial Council [Council] further to the administrative process that was in effect at the time under the Judges Act, RSC 1985, c J-1. It is important to note at the outset that this process has been considerably modified by An Act to amend the Judges Act, SC 2023, c 18 [Amending Act] and has taken on a very different appearance. Those changes are at the heart of the motion to strike the application for judicial review, which was filed long before the Amending Act received royal assent on June 22, 2023. [2] The respondent does not invoke a rule from the Federal Court Rules, SOR/98-106 [Rules] that is directly applicable. Instead, he relies on Rule 221, which concerns only actions, by analogy in the case of an application for judicial review. Although motions of this type are not encouraged since applications for judicial review should be heard expeditiously, it is argued that in this case, the motion to strike should be heard and granted because, among other things, it would avoid a hearing of the application for judicial review. The applicant has already exercised a remedy available to him

under a transitional provision of the Amending Act, and the moving respondent in this case contends that the applicant is therefore barred from coming before this Court now. [3] Generally, preliminary arguments related to an allegation that an application for judicial review is without merit should be presented and heard at the same time as the application itself. It also stands to reason that, if appeals are to be heard, it is preferable that they be heard together. But that door has not been tightly shut. It avoids a “waste of resources and time”, as the Federal Court of Appeal stated in its oft-cited decision in David Bull Laboratories (Canada) Inc v Pharmacia Inc (CA), [1995] 1 FC 588 at 597 [David Bull Laboratories]. The Court of Appeal did not declare that there was no jurisdiction in the Court to dismiss in summary manner an application for judicial review. Rather, it stated this must be reserved for very exceptional cases, where “a notice of motion which is so clearly improper as to be bereft of any possibility of success” (at 600) should not be heard. [4] The Attorney General therefore had to endeavour to make that case. This is clearly a high bar. It would avoid a judicial review hearing scheduled to last a week next December, but it would also deprive Justice Dugré of access to a judicial review of decisions that affect him. I. Background [5] The Council received

complaints in respect of Justice Dugré. The process in place called for the constitution of an Inquiry Committee to look into allegations of misconduct involving a federally appointed judge. The Inquiry Committee in this case, which was constituted by the Chief Justice of New Brunswick, the Chief Justice of the Supreme Court of the Northwest Territories, and a lawyer from Montreal, conducted its inquiry in 2021. The Inquiry Committee held 38 days of hearings, during which more than 60 people were heard. [6] The seven complaints against the applicant related to his conduct in the courtroom, including certain remarks that he made and his delays in rendering judgment. Consequently, at his request, the Inquiry Committee listened to the recordings of the hearings, which were 46 hours long. [7] The Inquiry Committee prepared a 208-page report, comprising 687 paragraphs. This is in addition to the reasons for decisions on preliminary motions brought by Justice Dugré, which are 225 paragraphs long. The Inquiry Committee’s report is dated June 9, 2022. [8] The Committee’s report was then sent to the Council. The Inquiry Committee had concluded that the impugned conduct consisted of breaches constituting serious misconduct in the execution of the office of judge held by Justice Dugré, undermining public confidence in the judiciary. The Inquiry Committee had further concluded that the

judge lacked promptness in rendering judgment and had thus demonstrated chronic incapacity since his swearing-in. [9] The Council’s report was released on December 19, 2022, and that document is the subject of the pending application for judicial review. The Council recommends the removal of Justice Dugré, as follows: [99] After due deliberation we conclude Justice Dugré’s misconduct significantly damages the administration of justice. Considered as a whole, his conduct is so manifestly and profoundly destructive of the concept of impartiality, integrity and independence of the judicial role, that the public’s confidence in Justice Dugré is sufficiently undermined that he is incapable of executing the judicial office. For this reason, we find him to be incapable of executing his judicial office and recommend his removal from that position. [10] It is obviously not advisable at this stage to try to address the arguments the applicant would like to put forward should his application for judicial review proceed. The whole issue in this matter is what recourse the applicant has with respect to the Council’s recommendation for removal. It is sufficient to note, at this stage, that the Attorney General affirms that the application for judicial review covers essentially the same issues as the application for leave to appeal to the Supreme Court of Canada. That is because the applicant

availed himself of a transitional provision in the Amending Act making it possible to be heard by the Supreme Court with leave. That application was refused by the Supreme Court without the matter having been heard on its merits before a court. That refusal, as will be seen, is at the heart of this motion to strike. [11] The case involving Justice Dugré has come before the Federal Court of Appeal and this Court a number of times. Below is a list of the decisions that have been rendered, where this Court granted motions by the Attorney General to strike the applicant’s repeated applications for judicial review (and where the Court of Appeal upheld those decisions) because the applicant’s applications for judicial review were premature, or where the Court refused to order stays: Dugré v Canada (Attorney General), 2019 FC 1604; Dugré v Canada (Attorney General), 2019 FC 602; Dugré v Canada (Attorney General), 2019 FC 789; Dugré v Canadian Judicial Council, 2008 FC 448; Dugré v Canada (Attorney General), 2022 FC 1506; Dugré v Canada (Attorney General), 2021 FCA 8; Dugré v Canada (Attorney General), 2021 FCA 40; Dugré v Canada (Attorney General), 2021 FCA 139; Refusals of leave before the Supreme Court of Canada were entered in respect of the appeals decided by the Federal Court of Appeal in 2021 FCA 8 and 2021 FCA 40. As a result, the legal challenges Justice Dugré wished to bring

have not come before this Court. II. The application for leave to appeal to the Supreme Court of Canada [12] The final provision of the Amending Act, section 16, provided Justice Dugré with a remedy before the Supreme Court of Canada. As noted above, the Amending Act created an entirely new regime for reviewing the conduct of federally appointed judges. [13] Before the June 2023 reform, the regime was governed by Part II of the Judges Act, entitled “Canadian Judicial Council”, and included provisions on “Inquiries concerning judges” (sections 63–66). That Part created an administrative process leading to judicial review before this Court. With the reform, a separate part of the Judges Act was created under section 12 of the Amending Act. This new Part IV, entitled “Conduct Review Process”, is considerably longer. Its Divisions 1 and 2, which are dedicated to the conduct of judges, span sections 79 to 150. As was the case under the Judges Act, the Amending Act also permits consideration of a request by the Minister of Justice of Canada regarding the removal of a person appointed to hold office during good behaviour. The new Division 3, which deals with this possibility, has no impact on the issue before this Court. Division 4 consists of general provisions that also do not apply here. [14] It is section 16 of the Amending Act, appearing under the heading “Transitional

Provisions”, that provides for an appeal before the Supreme Court of Canada with leave. Section 16 reads as follows: Notice of application for leave to appeal Avis de demande d’autorisation d’appel 16 If a report made under section 65 of the Judges Act, as that section read immediately before the day on which this Act comes into force, contains a recommendation that a judge be removed from office, that judge may, within 30 days after that day, file a notice of application for leave to appeal the report to the Supreme Court of Canada and, if leave is granted, section 138 of that Act, as enacted by section 12 of this Act, applies with respect to the appeal. 16 Si un rapport présenté en vertu de l’article 65 de la Loi sur les juges, dans sa version antérieure à la date d’entrée en vigueur de la présente loi, contient une recommandation de révocation d’un juge, celui-ci peut, dans les trente jours suivant cette date, déposer un avis de demande d’autorisation d’appel du rapport auprès de la Cour suprême du Canada et, si l’autorisation est accordée, l’article 138 de cette loi, édicté par l’article 12 de la présente loi, s’applique. [15] Indeed, Justice Dugré filed an application for leave to appeal to the Supreme Court of Canada under that provision. On February 29 of this year, the Supreme Court decided to refuse leave (Honorable Gérard Dugré v Canadian Judicial Council, No

40827). [16] But the application for judicial review before this Court remained pending. Now that the Supreme Court has decided to refuse leave, the Attorney General of Canada seeks to strike this most recent application for judicial review, even though Justice Dugré’s previous attempts to bring his arguments before this Court were found, at the Attorney General’s own request, to be premature. Essentially, the Attorney General claims that the Federal Court does not have jurisdiction, in accordance with section 18.5 of the Federal Courts Act, RSC 1985, c F-7. Justice Dugré, on the other hand, argues that section 16 simply aims to provide an additional recourse for anyone who received a report from the Council under the former regime (section 65 at the time) and that, consequently, the application for judicial review filed in January 2023 is not dead and buried. III. The motion to strike [17] The Council received the Inquiry Committee’s report in June 2022. The applicant sought to challenge it, without success (2022 FC 1506). He now impugns the Council’s decision of December 19, 2022, recommending his dismissal. The reality is quite simple. The applicant has repeatedly sought to bring challenges before the Federal Court against decisions made during the process. Every time, the answer given was that his proceeding was premature. In its first ruling on the first two decisions of

this Court declaring the applications to be premature, the Federal Court of Appeal, per the Chief Justice, even stated that, “[n]eedless to say, this dismissal has no impact on the appellant’s right to challenge, via judicial review upon completion of the administrative process, any decision taken by the CJC during the proceeding or in its report” (2021 FCA 8 at para 50). If the Attorney General is successful, it does seem as though the Chief Justice’s pronouncement will become a dead letter. [18] The memorandum seeking leave from the Supreme Court to challenge the Council’s report came shortly after the Amending Act received royal assent on July 21, 2023. The Council’s reply memorandum was dated September 8. As noted above, leave was refused on February 29 of this year. I have found no indication that the parties were aware of the possible combination of section 16 of the Amending Act and section 18.5 of the Federal Courts Act, which the Attorney General now raises. [19] Since Justice Dugré has availed himself of section 16 of the Amending Act, the Attorney General now argues that the Federal Court has no jurisdiction to hear an application for judicial review. [20] The Amending Act sets out transitional provisions. In addition to section 16, Parliament considered it necessary to deal with cases or matters still ongoing before the Council. That is the case with Justice Dugré.

Section 14 of the Amending Act states: Ongoing inquiries and investigations Enquêtes pendantes 14 The Judges Act, as it read immediately before the day on which this Act comes into force, continues to apply in respect of any inquiry or investigation commenced under that Act before that day. 14 La Loi sur les juges, dans sa version antérieure à la date d’entrée en vigueur de la présente loi, continue de s’appliquer à l’égard de toute enquête commencée sous le régime de cette loi avant cette date. [21] The second transitional provision, section 15, deals with cases where an inquiry requested before the day on which the Amending Act came into force has not yet commenced. In that case, the Amending Act is applicable. The same is true if a complaint or allegation covered by the Judges Act was made before the day the Amending Act came into force but no investigation has yet commenced. In that case, the new regime must apply. It is clear that Parliament wanted any new matter where the administrative process had not yet commenced to proceed under the new regime, with the remedies it provides. Essentially, for anyone who was formally notified before an inquiry was commenced, the new regime will apply. And for anyone who was dealt with while the inquiry was under the former regime and its administrative process, that former regime will continue to apply. [22] The combination of sections

14, 15 and 16 of the Amending Act presents the following picture. Only inquiries commenced before the coming into force of the Amending Act continue under the former Judges Act regime. Where proper inquiries have not commenced before that date despite complaints or allegations having been made or an inquiry having been requested, the regime under the Judges Act prior to the coming into force of the Amending Act no longer applies. [23] Under the regime to which the applicant is subject—the former one, where the inquiry commenced before the coming into force of the Amending Act—there is no recourse other than judicial review before the Federal Court. In fact, Justice Dugré’s application for judicial review was ongoing long before the Amending Act came into force. As noted earlier, Justice Dugré made several attempts to bring his proceedings before the Federal Courts. We have seen that Justice Dugré repeatedly tried to submit applications for judicial review to this Court before the Council released its recommendation (under section 62, as it read prior to the coming into force of the Amending Act). Because they were premature, none of these applications could be granted. But this prematurity no longer exists, since the Council rendered its decision recommending removal of the applicant on December 19, 2022. After that, the applicant brought his application for judicial review

before this Court in January 2023, within the time limit under the Federal Courts Act and long before the Amending Act came into force. In July 2023, he applied for leave to the Supreme Court of Canada because section 16 of the Amending Act provides for that possibility. [24] Section 16 of the Amending Act, which is already reproduced at paragraph 14 of these reasons, states that if a report made under the former regime contains a recommendation that a judge be removed from office, as in this case (and it appears to be the only such case), that judge may apply for leave to appeal the report to the Supreme Court of Canada. The applicant invoked section 16, and the Supreme Court refused leave to appeal. It is clear that the applicant was facing a dilemma. Section 16 is drafted using the word “may”, which, according to the Interpretation Act, RSC 1985, c I-21, s 11, suggests a discretion. The case law of the Federal Courts, however, requires that available remedies be exhausted before judicial review may be sought, failing which an application for judicial review will be found to be premature. As I stated before the parties, the Attorney General could conceivably have raised the prematurity argument before this Court again, had there been no application for leave to appeal to the Supreme Court as permitted under section 16. Now that this application for leave has been refused, the

Attorney General relies on the Federal Courts Act to challenge the applicant’s proceeding. The dilemma appears to have been Cornelian. [25] The Attorney General seeks to strike the application for judicial review of the Council’s report because the Supreme Court refused the application for leave to appeal. The Attorney General now relies on section 18.5. This Court, the Attorney General argues, does not have jurisdiction because of the wording of section 18.5 of the Federal Courts Act, which reads as follows: Exception to sections 18 and 18.1 Dérogation aux art. 18 et 18.1 18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act. 18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour

suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi. [26] In his notice of motion, the Attorney General relies on these two provisions (section 16 of the Amending Act and section 18.5 of the Federal Courts Act). He limits himself to this short equation, without considering the broader context. He also submits the memoranda of the parties before the Supreme Court of Canada, arguing that the grounds raised before the Supreme Court and those raised in judicial review before this Court are essentially the same. The difference between a judicial review of administrative law and the scope of an application for leave to appeal a report is not discussed any further. It is clear that the Attorney General was not a party to Justice Dugré’s attempt to appeal before the Supreme Court of Canada. IV. The Attorney General’s Arguments [27] The Attorney General’s argument is in fact elegant in its simplicity and ingenuity. Based on a reading the two provisions, he notes first

that Justice Dugré has availed himself of section 16. From there, he moves on to section 18.5 and argues that, inasmuch as there is a right to appeal, including to the Supreme Court of Canada, the decision “is not, to the extent that it may be so appealed, subject to review...or to be…otherwise dealt with”. An application for judicial review is virtually equivalent to an application for leave to appeal to the Supreme Court from an administrative decision, as the process under the former regime was seen. Referring to the test to grant the motion to strike, the Attorney General submits that it is plain and obvious that this Court is without jurisdiction to rule on the application for judicial review. [28] According to the Attorney General, the right to appeal to the Supreme Court was not limited to specific issues such as questions of law or even of jurisdiction, which would have left the door open to the possibility of judicial review (Yatar v TD Insurance Meloche Monnex, 2024 SCC 8 at para 8; Canadian National Railway Company v Scott, 2018 FCA 148 [Scott] at paras 31, 48). The right of appeal could not have been broader. [29] Moreover, it does not matter whether the appeal is subject to leave, as it is in this case (Pritchard Broadcasting Inc v Canadian Radio-television and Telecommunications Commission, 2012 FCA 127 at paras 5–7; Scott, supra at paras 31, 48). In Turmel v

Canadian Radio-television and Telecommunications Commission, 2008 FCA 405, a case involving the application of section 18.5 of the Federal Courts Act, it was stated that “[t]he existence of a right of appeal, whether or not limited by a requirement to obtain leave, is a bar against judicial review” (at para 12). [30] Thus, according to the Attorney General, it is in the interests of justice that the proceeding the applicant has attempted to bring not be heard on its merits and that it immediately be declared inadmissible. Indeed, the aim of the sweeping reform of the judicial conduct review process was clearly to address a systemic and systematic issue created by the addition of judicial proceedings where an inquiry had already been conducted by a panel of judges, and where the Canadian Judicial Council had already reviewed the inquiry report and made its recommendation to the Minister of Justice. The new process limits recourse after the Council’s recommendation by providing for an appeal to the Supreme Court of Canada only in Justice Dugré’s case. The Attorney General seems to believe that access to the remedy under the former regime is no longer available, despite the wording of section 14 of the Amending Act. The Attorney General does affirm that the existence of the appeal is confirmed by the applicant’s application for leave, but this seems to imply that, in bringing that

application, the applicant lost access to judicial review (respondent’s written submissions at paras 42–43), even though it existed under the former regime and an application for judicial review has been pending since long before section 16 came into force. [31] Left unanswered is the question as to whether the applicant truly had a choice in respect of an appeal to the Supreme Court, since an application for judicial review might have been “premature” because that proceeding was available. When questioned by the Court, counsel for the Attorney General did not deny this possibility. If that is the case, the applicant did not really have a choice about applying to the Supreme Court. This would, to say the very least, be an unusual way of preventing access to the ordinary courts, since it would be reasonable to think that the transitional provision (section 14 of the Amending Act) protects the full use of the Judges Act as it existed prior to the Amending Act. Indeed, as the applicant contends, the effect the Attorney General seeks to give to section 16 is retrospective, if not retroactive, since it insists on applying a combination of sections 16 and 18.5 to eliminate a properly initiated proceeding. The applicant fails to see how this could have been Parliament’s intention. [32] Thus, the recourse under section 16 did not simply become available. According to this reading of

the new regime, Parliament decided to remove the judicial review proceeding by adding section 16 of the Amending Act, essentially for Justice Dugré’s case alone. It was allegedly Parliament’s intention to remove the possibility of judicial review for Justice Dugré by adding section 16, in conjunction with the already existing section 18.5, but without saying so expressly. I reproduce below paragraph 56 of the respondent's written submissions, which seem to leave no doubt as to his favoured interpretation: [translation] 56. In conclusion, there is no doubt that allowing the applicant to pursue his application for judicial review would be contrary not only to the letter but also to the purpose of section 18.5 of the Federal Courts Act and section 16 of the Act to amend the Judges Act. Indeed, the continuation of these proceedings would frustrate Parliament’s clear intention that judicial oversight of the inquiry process under the Judges Act be henceforth vested exclusively in the Supreme Court of Canada, to put a stop to the multiplicity of judicial proceedings resulting from the Council's inquiries and thereby to promote public confidence in the judicial system and the judiciary. Indeed, at the hearing, counsel argued that Parliament’s presumed [translation] “omniscience” means that knowledge of section 18.5 and of its effect precludes the Federal Court from conducting judicial

review. This omniscience should include presumed knowledge of the ongoing judicial review proceeding. According to the Attorney General, this is plain and obvious. Therefore, it should be plain and obvious that, in adding section 16, Parliament intended to deprive a litigant of an ongoing administrative law proceeding, even though another provision, section 14 of the Amending Act, appears to preserve the administrative regime in place in Justice Dugré’s case. The result is a retroactive effect to section 16. V. The Applicant’s Arguments [33] Ultimately, the applicant argues that Parliament intended section 16 of the Amending Act merely to allow for a proceeding in addition to those under section 14, even if the Supreme Court refuses leave to appeal because the lower courts have not yet given their opinion. The filtering by the lower courts had not taken place under the regime in effect in Justice Dugré’s case. It was certainly possible for there to have been hesitation to grant leave. This did not have the effect of barring a proceeding before the Federal Court, particularly since another transitional provision of the Amending Act (section 14, reproduced in paragraph 21 of these reasons) provides that the pre‑amendment version of the Judges Act continues to apply to inquiries ongoing before the new Amending Act regime came into force. The same omniscient Parliament was well

aware that the proceeding under the former regime was before the Federal Court in the first place. There is only one such case remaining, in any event. [34] Under the Judges Act, as it continues to apply to Justice Dugré in accordance with section 14 of the Amending Act, judicial review exists (Girouard v Canada (Attorney General), 2018 FC 865, [2019] 1 FCR 404, aff'd by Canada (Canadian Judicial Council) v Girouard, 2019 FCA 148, [2019] 3 FCR 503, leave to appeal to the SCC refused, No. 117826). The applicant does not doubt that the purpose of the Amending Act is to reduce costs and delays. But this cannot be at the cost of prematurely eliminating access to justice before the courts without saying so. If the wish is to reduce future costs and delays, so be it. But the Amending Act maintains the recourses in Justice Dugré’s case. [35] The reformed regime has five levels: 1. screening officer; 2. reviewing member; 3. review panel; 4. hearing panel; 5. appeal panel. Relying on the new subsection 146(2) of the Amending Act, the applicant suggests that Parliament is seeking to discourage judicial reviews, reducing costs and delays, by providing that the fees and expenses incurred by a judge in an application for judicial review of a decision made under Divisions 1 and 2 are not payable. The very possibility of such judicial reviews, given that recourse to the Supreme Court after

the appeal panel level seems to be what the new Act provides (section 137), is not addressed by the Attorney General. Things are not as simple as what the Attorney General is trying to argue. [36] The applicant emphasizes the importance of judicial review because, as he says, the proceeding is the protector of the rule of law. He cites the decision in Canada (Minister of Citizenship and Immigration) v Vavilov, [2019] 4 SCR 653 at paragraph 24, to justify his proposition that an administrative tribunal cannot be exempt from all judicial review. As I stated at the hearing, it is doubtful whether this case law is of any real use if a judicial remedy is available. Of course, a limited right of appeal may leave the door open to judicial review. [37] The applicant suggests, more than he actually demonstrates, that if the Federal Court does not have jurisdiction, as the Attorney General submits, then the provincial superior courts would have to take over. It is easy to imagine that thorny issues would arise, given that, among other things, the exclusive jurisdiction of the Federal Court in cases where a “federal board, commission or other tribunal” would still be involved. [38] It is argued that section 14 of the Amending Act renders the Attorney General’s argument invalid. Section 14 must be interpreted as preserving everything relating to the investigation commenced under the former

Act, which should include proceedings yet to be brought. As noted above, the applicant submits that what the Attorney General puts forward gives a retroactive effect to the transitional provision in section 16 of the Amending Act. This effect is considerable. Not only would judicial review be abolished, it would be abolished retroactively in respect of a proceeding that is already under way. Neither the Act itself nor even the parliamentary debates can justify such a draconian interpretation in relation to the last federally appointed judge to whom the transitional provisions apply. [39] Section 16 should therefore be read restrictively and as an additional recourse made available to the last judge covered by the former regime. This would not contravene section 18.5 and would be more in alignment with section 14 of the Amending Act. [40] The applicant further complains that, because leave to appeal is granted only very rarely, recourse to the Supreme Court becomes a de facto privative clause for the administrative tribunal. There would no longer be any real review of legality by a court of law. Under the former regime, the litigant was entitled to organize his affairs with a view to a legal challenge, as indeed he did. According to the applicant, the principle of judicial independence is at stake. At worst, it constitutes a transfer of jurisdiction from the Federal Court to the

superior courts, even though the decisions emanate from a federal board, commission or other tribunal. Do we really believe that this is what Parliament intended to accomplish with section 16, despite section 14? [41] Emphasis is placed on provisions of the Amending Act that may be difficult to reconcile with the Attorney General’s reading of section 16. The new section 158 constitutes a privative clause only in certain circumstances. It reads as follows: Decision final Caractère définitif des décisions 158 A decision made by a member of the Council under any of Divisions 1 to 3 or by a member of a panel established under any of those Divisions is final and is not to be questioned or reviewed in any court other than provided for in this Part. 158 Sous réserve des autres dispositions de la présente partie, les décisions rendues par un membre du Conseil en vertu de l’une des sections 1 à 3 ou par un membre d’un comité constitué en vertu de l’une de ces sections sont définitives et non susceptibles de recours judiciaires. [42] Similarly, the applicant expressly raises subsection 146(2), which I also reproduce here. This provision recognizes the possibility of using judicial review. A judge under inquiry who decides to rely on it must do so without being paid in respect of any fees or expenses incurred. Restriction Limites (2) Fees and expenses of lawyers representing judges may be

paid only in respect of proceedings under this Division or Division 2 or in respect of appeals to the Supreme Court of Canada relating to those proceedings. For greater certainty, no payments to lawyers representing judges are to be made in respect of any judicial review of any decision made under this Division or Division 2. (2) Seuls les honoraires et les dépenses de l’avocat mandaté par le juge qui sont encourus dans le cadre des procédures au titre de la présente section ou de la section 2, ou dans le cadre d’un appel auprès de la Cour suprême du Canada, peuvent être remboursés. Il est entendu que les honoraires et les dépenses encourus par l’avocat mandaté par le juge dans le cadre d’un contrôle judiciaire d’une décision rendue au titre de la présente section ou de la section 2 ne sont pas remboursables. The applicant submits that judicial review is clearly not prohibited. Yet the Attorney General’s reading aims to assert the contrary. [43] The applicant notes that subsection 65.1(3) of the Judges Act, relating to annuity calculations, specifically recognizes the existence of judicial review proceedings under the Act following a recommendation for removal by the Council. This subsection is reproduced here: Reimbursement and resumption Remboursement et reprise (3) If a recommendation for removal is rejected by the Minister, the Senate or the House of Commons or if, on

judicial review, the recommendation is rejected by a court whose decision is final, subsection (1) does not apply for the purposes of calculating the annuity of the judge who was the subject of the recommendation and that judge shall (3) Si la recommandation de révocation est rejetée par le ministre, le Sénat ou la Chambre des communes ou est annulée par une décision définitive d’une cour à l’issue d’un contrôle judiciaire, le paragraphe (1) ne s’applique pas au calcul de la pension du juge et celui-ci : (a) contribute, as if subsection (2) had never applied, the amounts that would have been required under section 50 as of the day on which the Council submitted the report to the Minister; and a) verse les cotisations qui auraient dû être versées en application de l’article 50 depuis la date de présentation du rapport comme si le paragraphe (2) ne s’était jamais appliqué; (b) resume contributing the amounts required under section 50 as of the day on which the recommendation was rejected. b) recommence, dès la date du rejet, à verser toute cotisation prévue à cet article. This remedy was preserved under section 14 of the Amending Act. The applicant argues that this establishes that the right of appeal under section 16 can only be supplementary, not substitutive. The Supreme Court had the discretion to end the debate, the applicant says. It did not do so, and that was obviously

within its authority. But that should not bar access to the courts. [44] In this respect, the applicant is repeating the criticisms of Bill C-9, now the Amending Act, that were raised before the parliamentary bodies respecting recourse before the Supreme Court of Canada, which is now provided not only in the transitional measure of section 16, but also in the new section 137. Interveners had come forward to complain that recourse before the highest court is inappropriate. To put it prosaically, the highest court has other things to do than to hear appeals of this nature, which, according to interveners, would be outside its institutional role. Obviously, those criticisms were not accepted. [45] Perhaps more relevant to the debate on this motion to strike is the argument drawn from Harelkin v University of Regina, [1979] 2 SCR 561, that before judicial review can be eliminated, the alternative regime taking its place must be effective. I reproduce the following passage from Harelkin, quoted by the applicant, which aptly describes the argument put forward: In order to evaluate whether appellant’s right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration among which the procedure on the appeal, the composition of the

senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor likely to do so. (at 588) [Emphasis added.] If the decision on the recourse is purely discretionary, the remedy becomes inadequate and ineffective. In this case, it is submitted that it would not have been possible for the applicant to refrain from using section 16 of the Amending Act without being faced with the Attorney General’s objection that he had not pursued the remedy available to him before turning to judicial review as the final remedy authorized by law. [46] Of course, the existence of section 18.5 of the Federal Courts Act is an obstacle for Justice Dugré. He interprets this provision as excluding judicial review only where the right of appeal is an appropriate and effective remedy. The existence of a right of appeal is one thing; whether it is appropriate and effective is quite another. Section 18.5 should be interpreted “restrictively” to prevent it from limiting access to judicial review of an administrative decision, to the detriment of a litigant. [47] The applicant invokes Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250, [2014] 2 FCR 557 [JP Morgan]. Paragraph 99 of that decision reads as follows: [99] After all, there must always be some

forum where rights can be vindicated when they need vindication. In the words of McLachlin J. (as she then was), “if the rule of law is not to be reduced to a patchwork, sometime thing, there must be a body to which disputants may turn where statutes and statutory schemes offer no relief”: Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495, at pages 501 and 502. [48] It is just as possible to explain the Supreme Court’s refusal of leave to appeal by its preference that the lower courts consider the issues raised before they are brought to the higher court, as it is by the Attorney General’s proposition that the judicial remedy sought is without merit. The new regime under the Amending Act is entirely different from the former regime, and the two should not be confused. [49] In the end, the test for a motion to strike in a case involving the application of section 18.5 of the Federal Courts Act applies: the flaw must be obvious and fatal. According to JP Morgan, this does not mean that section 18.5 necessarily constitutes a bar. In this regard, the applicant cites paragraph 91: [91] Consistent with David Bull, above, and the need for an obvious, fatal flaw, a notice of application for judicial review should not be brought on the basis of this objection unless the matter is clear. If, after discerning the

true character of the application, the Court is not certain whether section 18.5 of the Federal Courts Act applies to bar the judicial review or if the Court is not certain whether: ● there is recourse elsewhere, now or later; ● the recourse is adequate and effective; or ● the circumstances pleaded are the sort of unusual or exceptional circumstances recognized by the case law or analogous thereto; then the Court cannot strike the notice of application for judicial review. If the Court is uncertain of the effect of section 18.5, it must refuse to strike the motion to quash. The applicant even argues that a reading of section 18.5 of the Federal Courts Act and sections 14 and 16 of the Amending Act [translation] “supports a clear and obvious conclusion that this application for judicial review is admissible and has a chance of success” (applicant’s memorandum of fact and law at para 90). VI. Analysis [50] In matters of judicial review, motions to strike have been subject to a stringent test since David Bull Laboratories, due to the very nature of the remedy. There is no doubt today that a motion to strike can be appropriate, even though Rule 221 does not, strictly speaking, apply to applications for judicial review. Justice Strayer, writing for the Federal Court of Appeal, stated that the Court hearing the motion to strike has the discretion to refuse to strike in appropriate

cases, provided, of course, that it has applied the correct principle of law and has not misapprehended the facts. [51] However, the Court of Appeal set the bar quite high to grant a motion to strike an application for judicial review. The following paragraph appears at page 600: For these reasons we are satisfied that the Trial Judge properly declined to make an order striking out, under Rule 419 or by means of the “gap” rule, as if this were an action. This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. [Emphasis added.] Again, just recently, Chief Justice de Montigny reiterated the wording (“is so clearly improper as to be bereft of any possibility of success”) of the test that applies to applications for judicial review for those seeking to strike them out (Southern Railway of British Columbia Limited v Vancouver Fraser Port Authority, 2024 FCA 175). Clearly, the test is still applied in the Federal Courts. The requirement is that it be clear that the application for judicial review is so improper as

to have no possibility of success. [52] Is that the kind of case before us here? In my opinion, the lack of possibility of success on the applicant’s part has not been established by the moving respondent in this case. [53] JP Morgan strengthens my conviction that the Attorney General has not met the burden of establishing a lack of possibility of success in the proceeding commenced six months before the coming into force of the Amending Act. In my view, an application for judicial review is not so clearly improper that it is bereft of the possibility of success solely because the applicant applied for leave to appeal to the Supreme Court of Canada as permitted by section 16 of the Amending Act. [54] In the words of Justice Stratas in JP Morgan, there must be “a ‘show stopper’ or a ‘knockout punch’ [in French, Justice Stratas refers to “une efficacité assez radicale”]—an obvious, fatal flaw striking at the root of this Court’s power to entertain the application” (at para 47). In the next paragraph, he explains the reasons for such a strict rule: [48] There are two justifications for such a high threshold. First, the Federal Courts’ jurisdiction to strike a notice of application is founded not in the rules but in the Courts’ plenary jurisdiction to restrain the misuse or abuse of courts’ processes: David Bull, above, at page 600; Canada (National Revenue) v. RBC Life Insurance

Company, 2013 FCA 50, 18 C.C.L.I. (5th) 263. Second, applications for judicial review must be brought quickly and must proceed “without delay” and “in a summary way”: Federal Courts Act, above, subsection 18.1(2) and section 18.4. An unmeritorious motion—one that raises matters that should be advanced at the hearing on the merits—frustrates that objective. [55] In JP Morgan, the Court of Appeal was dealing with the application of section 18.5 of the Federal Courts Act. Paragraph 91 of the decision, which I reproduce here again even though it is already quoted at paragraph 49 of these reasons, this time with my own added emphasis, states the following: [91] Consistent with David Bull, above, and the need for an obvious, fatal flaw, a notice of application for judicial review should not be brought on the basis of this objection unless the matter is clear. If, after discerning the true character of the application, the Court is not certain whether section 18.5 of the Federal Courts Act applies to bar the judicial review or if the Court is not certain whether: ● there is recourse elsewhere, now or later; ● the recourse is adequate and effective; or ● the circumstances pleaded are the sort of unusual or exceptional circumstances recognized by the case law or analogous thereto; then the Court cannot strike the notice of application for judicial review. [Emphasis added.] [56] It falls

to the party seeking to strike the application to demonstrate an obvious, fatal flaw. Failing this, the judicial proceeding will run its course. The case the Attorney General makes solely to avoid a hearing on the application for judicial review does not consider the existence of a transitional provision—section 14 of the Amending Act—the purpose of which is to ensure that the Judges Act as it existed before the coming into force of the Amending Act applies to the only litigant to whom it still can: Justice Dugré. Under this regime, there is nothing in section 14 indicating that proceedings otherwise permitted for those investigations that began before the coming into force of the Amending Act have ceased to exist. In my opinion, that would be quite surprising. Indeed, the proceeding before the Court had already commenced when the Amending Act came into force. Section 14 merely states that the regime under the former statute continues to apply to the only judge still covered by that regime, who believed he had access to judicial review, as the Chief Justice of the Federal Court of Appeal in fact confirmed to him after applying the prematurity doctrine in the first decision in this regard, Dugré v Canada (Attorney General), 2021 FCA 8: [50] I therefore propose that the appeals be summarily dismissed. Needless to say, this dismissal has no impact on the appellant’s right to

challenge, via judicial review upon completion of the administrative process, any decision taken by the CJC during the proceeding or in its report. [57] It can even be said that, to a certain extent, fairness favours an applicant who has been denied access to the courts and who would ultimately lose that opportunity by the operation of a transitional provision that appears to confer a discretion, even if Parliament has specifically provided that the former regime applies to him. [58] On more than one occasion, the Supreme Court of Canada has reiterated that its refusal to grant leave to appeal in no way indicates agreement with the judgment sought to be appealed. One of the most eloquent expressions of this principle can be found in Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3, which reads, at paragraph 88: 88 In this appeal, as well, the appellants centred their argument on the provincial licensing requirement. However if, as we conclude, the promotion of insurance is not vital or essential to the banking activity, there is no reason why the banks should be shielded from the consequences of non-compliance with the provincial Insurance Act. If a bank were to misrepresent the amount of a policy premium, or wrongfully disclose confidential information to third parties, or engage in other market practices considered by the Alberta Legislature to be unfair, there is

no reason why it should escape the regulatory discipline to which all other promoters of insurance in the province are subject. Of course, if the Minister should single out banks for discriminatory treatment, the banks would have recourse to judicial review in the ordinary way. (We note parenthetically, as much stress was laid by the appellants on the refusal by this Court of leave to appeal the Optima case, that refusal of leave should not be taken to indicate agreement with the judgment sought to be appealed, from any more than the grant of leave can be taken to indicate disagreement. In the leave process, the Court does not hear or adjudicate a case on the merits. The notation “leave to appeal to S.C.C. refused” is inserted in law reports for editorial convenience.) [Emphasis added.] Refusing leave when section 14 could give access to the ordinary courts, possibly leading as far as the highest court after the case is filtered through the lower courts, is a possibility the applicant raises that cannot be ignored. It seems that not only does fairness in some sense favour dismissing the motion to strike, but prudence also urges access to the ordinary courts in cases where an administrative proceeding has been commenced, given section 14, which maintains the former regime. [59] This is very different from the new regime, which is decidedly judicial. Section 137 of the Amending

Act provides for an appeal with leave from the appeal panel’s decision to the Supreme Court. Under the Amending Act, proceedings involving federally appointed judges will in the future be more akin to court proceedings than those under the administrative law system that continues only in the applicant’s case. Thus, the appeal panel, whose decision may be appealed under section 137, consists of the following members under section 130 of the Amending Act and has the powers described in section 131: Establishment Constitution 130 On receipt of a notice of appeal filed under section 116 or 123, the Council shall establish an appeal panel consisting of the following persons designated by it: 130 Sur réception d’un avis d’appel visé aux articles 116 ou 123, le Conseil constitue un comité d’appel et y désigne : (a) three members of the Council; and a) trois membres du Conseil; (b) two judges named in the roster of judges. b) deux juges inscrits sur la liste de juges. Power Pouvoirs 131 The appeal panel has all the powers vested in the court of appeal of the province in which the judge who is the subject of the complaint resides. It may, among other things, reverse, vary or affirm any decision of the reduced hearing panel or full hearing panel, as the case may be, and make any decision the hearing panel could have made. 131 Le comité d’appel a les mêmes pouvoirs que la cour d’appel de

la province où réside le juge en cause. Il peut notamment infirmer, modifier ou confirmer toute décision d’un comité d’audience restreint ou plénier, selon le cas, et rendre toute autre décision qu’ils auraient pu rendre. [60] I also reproduce section 137: Notice of application for leave to appeal Avis de la demande d’autorisation d’appel 137 The judge who is the subject of a decision of an appeal panel and the presenting counsel may respectively, within 30 days after the day on which the appeal panel sends them a notice of its decision, file a notice of application for leave to appeal to the Supreme Court of Canada. 137 Le juge en cause et l’avocat chargé de présenter l’affaire peuvent, respectivement, dans les trente jours suivant la date à laquelle la décision du comité d’appel leur a été notifiée, déposer un avis de demande d’autorisation d’appel auprès de la Cour suprême du Canada. [61] Thus, in a circumscribed process with different bodies, the matter can go before the Supreme Court of Canada after being heard by what greatly resembles an appellate court. Sections 133 and 134 provide us with additional clues about the process that is governed by and formalized in the Amending Act: Right to make submissions Droit de présenter des arguments 133 The judge who is the subject of the appeal and the presenting counsel are each entitled to make oral and written submissions to the

appeal panel. 133 Le juge en cause et l’avocat chargé de présenter l’affaire ont respectivement le droit de présenter des arguments oraux et écrits au comité d’appel. Nature of appeal Nature de l’appel 134 The appeal is to be heard on the basis of the record of the hearing panel whose decision was appealed and on any submissions made by the judge who is the subject of the appeal and the presenting counsel. The appeal panel may, in exceptional circumstances, admit additional evidence or testimony if, in its opinion, it is essential in the interests of justice to do so. 134 L’appel est entendu sur la base du dossier du comité d’audience dont la décision fait l’objet de l’appel et sur les arguments du juge en cause et de l’avocat chargé de présenter l’affaire; le comité d’appel peut toutefois, dans des circonstances exceptionnelles, s’il estime que l’intérêt de la justice l’exige, admettre de nouveaux éléments de preuve ou entendre de nouveaux témoignages. [62] Despite the court-like structure, including an appeal panel, the Amending Act seems ambiguous with respect to the possibility of judicial review, as the door does not appear to be shut, or at least not tightly. In fact, the provision of the Amending Act that constitutes what has been referred to as a [translation] “statutory appropriation” sets out the amounts payable out of the Consolidated Revenue Fund. Subsection 146(2)

is the provision that permits fees and expenses of lawyers representing judges to be paid only in respect of proceedings under the Amending Act, but not in respect of a judicial review instituted by the judge: Restriction Limites (2) Fees and expenses of lawyers representing judges may be paid only in respect of proceedings under this Division or Division 2 or in respect of appeals to the Supreme Court of Canada relating to those proceedings. For greater certainty, no payments to lawyers representing judges are to be made in respect of any judicial review of any decision made under this Division or Division 2. (2) Seuls les honoraires et les dépenses de l’avocat mandaté par le juge qui sont encourus dans le cadre des procédures au titre de la présente section ou de la section 2, ou dans le cadre d’un appel auprès de la Cour suprême du Canada, peuvent être remboursés. Il est entendu que les honoraires et les dépenses encourus par l’avocat mandaté par le juge dans le cadre d’un contrôle judiciaire d’une décision rendue au titre de la présente section ou de la section 2 ne sont pas remboursables. According to the applicant, this suggests that the Amending Act does not prohibit the possibility of applying for judicial review. It is unclear, however, under what circumstances it might be possible. What is intended by this provision is a mystery that has not been illuminated in any

way. But it does indeed refer to judicial review. [63] To establish an obvious, fatal flaw sufficient to strike out an application for judicial review as exceptional as the applicant’s, the Attorney General had to provide a more comprehensive explanation to clarify how the various elements fit together. It is certainly possible that this can be done. But it is up to the Attorney General to demonstrate it. [64] The same is true regarding how sections 14 and 16 of the Amending Act can give rise to a retroactive effect that is apparent not only in the effect of section 16, but also on a judicial proceeding, the application for judicial review that has been before the Court since January 2023. It is reasonable to believe that the implementation of such a drastic measure would have required a clear legislative intent. That is not the case here. And what can be said of the provisions of the Amending Act that seem to recognize the possibility of judicial review? Leave to appeal to the Supreme Court under section 137 of the new regime is part of a framework that is very different from the discretion created under section 16 of the Amending Act. Is the effect that Parliament intended as draconian as the Attorney General seems to argue? In my opinion, clarity is lacking. [65] The effect of all these questions seems to be that the Attorney General has not discharged his burden of

demonstrating the obvious, fatal flaw required by the Court of Appeal in JP Morgan and David Bull Laboratories. The Court does not seek to answer these questions; it would be entirely inappropriate to do so without complete arguments in the factual context that informs the debate. What this illustrates is also the inadequacy of the argument, elegant in its simplicity and ingenuity, if it does not take into consideration the other aspects of the two regimes that, ultimately, have little in common. VII. Conclusion [66] To the Court’s knowledge—and the parties have given no indication to the contrary—the situation before us is not only extraordinary, but also exceptional. While a proceeding has moved forward under a regime that featured the possibility of judicial review before the Federal Courts as an essential component, a transitional provision in the Amending Act has allowed the applicant (the last litigant to be covered by this transitional measure) to have the former regime apply to him. [67] The applicant undoubtedly wished to exercise the recourses available to him to challenge the decisions made in his case. This is evident from the challenges he undertook, which led to a refusal to be heard after the Attorney General argued that his challenges were premature. The Chief Justice of the Court of Appeal went so far as to emphasize that the applicant would be able to present

his arguments once the administrative process was complete. [68] The addition at the very end of the process under the Amending Act of another transitional provision, section 16, is seen by the Attorney General as a major bar to accessing the Federal Court after the administrative process is initiated. [69] The possibility of applying for leave to appeal to the Supreme Court of Canada under the Amending Act’s new regime is part of a process that is entirely different from the one to which the applicant is subject under the former regime. Indeed, it is clear that the process under the former regime was typically administrative and provided for recourse by way of judicial review, whereas the new regime is structured very differently, with an appeal panel established in a way that strongly resembles an appellate court and with powers that are the same as those of an appellate court. That is the decision from which litigants will be able to appeal, with leave, to the Supreme Court in the future. The appeal under section 16 of the Amending Act is of an entirely different nature. [70] The effect of section 14 and its relationship with section 16 must be considered. The retroactive, or retrospective, effect of the interpretation advanced by the Attorney General had to be explained, especially since that effect is felt on a judicial proceeding initiated several months before section 16

came into force. The flaw must be obvious. In the absence of a significantly more complete demonstration, the Court cannot accept that an obvious, fatal flaw exists at this stage. Indeed, other unexplained aspects are problematic. [71] A consideration of the new regime reveals confusion that has not been resolved. The applicant has noted that the Amending Act does not appear to exclude judicial review entirely; rather, Parliament simply declares that the government will not pay for any such attempts. However, there is a privative clause in section 158 of the Amending Act. [72] Finally, the applicant has obviously organized his affairs with a focus on the application for judicial review in what is an administrative process under the former regime, which has been replaced by a different process under the Amending Act. To his credit, the Attorney General has candidly conceded that if the applicant had chosen not to avail himself of section 16, it would have been possible to argue that judicial review was premature. The applicant was therefore compelled to make this attempt before being told that judicial review is not available to him. In my view, there is a measure of fairness in this case that is difficult to ignore completely. [73] In view of these incongruities, regarding which the applicant has not provided an answer, the David Bull Laboratories test (“so clearly improper as

to be bereft of any possibility of success” or “rejeter sommairement un avis de requête qui est manifestement irrégulier au point de n’avoir aucune chance de succès”) is not met. JP Morgan states that the test involves a “show stopper”, a “knock out punch”. Before striking out an application for judicial review, there must be certainty that section 18.5 of the Federal Courts Act constitutes a bar to judicial review. This certainty has not been established. [74] That is the burden the Attorney General has not discharged. It is incumbent on the party seeking the outright striking out to demonstrate an obvious flaw. In this case, to succeed, the arguments had to address more than what they in fact raised. With respect, it is my opinion that the arguments fall short. As a result, the need for the flaw to be obvious and fatal is not met. In my view, the uncertainty should be resolved in favour of the applicant. Caution must be exercised when seeking to promote an important value, in this case, access to justice. The motion to strike must therefore be dismissed. [75] There will be no costs awarded. JUDGMENT in T-141-23 THE COURT’S JUDGMENT is as follows: The motion to strike the application for judicial review is dismissed. Without costs. “Yvan Roy” Judge Certified true translation Vera Roy, Senior Jurilinguist

FEDERAL COURT

SOLICITORS OF RECORD DOCKET: T-141-23 STYLE OF CAUSE: THE HONOURABLE GÉRARD DUGRÉ V ATTORNEY GENERAL OF CANADA PLACE OF HEARING: ottawa, ontario DATE OF HEARING: jULY 18, 2024 REASONS FOR JUDGMENT AND JUDGMENT BY: Roy J DATED: NOVEMBER 8, 2024 APPEARANCES: Magali Fournier, Ad.E. Camille Vignaud Paul Daly

FOR THE APPLICANT Bernard Letarte Pascale Guay Sara Gauthier Benjamin Chartrand

FOR THE RESPONDENT SOLICITORS OF RECORD: Fournier Avocat inc. Westmount, Québec Paul Daly Law PC Ottawa, Ontario for the applicant Attorney General of Canada Montréal, Québec

FOR THE RESPONDENT