Jost v. Canada (Governor in Council)
- Citation
- 2024 FC 32
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Federal Court
- Decision
- 23 January 2024
- Posture
- Application for Judicial Review (s.18.1 Federal Courts Act) / Hearing on Motion to Strike and Full Judicial Review; Decision on Standing, Mootness, Merits and Costs
- Language
- English
More details
- Court
- Federal Court
- Decision
- 23 January 2024
- Posture
- Application for Judicial Review (s.18.1 Federal Courts Act) / Hearing on Motion to Strike and Full Judicial Review; Decision on Standing, Mootness, Merits and Costs
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Court held that two applicants (Cornell and Gircys) had direct standing while two (Jost and Ristau) did not; despite mootness caused by revocation the Court exercised its discretion to hear the matter; the decision to issue the Proclamation and associated Regulations and Order was unreasonable and ultra vires the Emergencies Act; the Regulations infringed s.2(b) of the Charter and the Order infringed s.8, and neither infringement was justified under s.1; consequently declarations were granted and costs awarded to Cornell and Gircys.
Court disposition
Application granted in part and dismissed in part: Jost and Ristau dismissed for lack of standing; Cornell and Gircys succeeded on key elements; declarations issued that the Proclamation, Regulations and Order were unreasonable and ultra vires and that Regulations breached s.2(b) and Order breached s.8 of the Charter not justified under s.1; costs awarded to Cornell and Gircys.
Orders
- Respondent's motion to strike granted in part and Court exercised discretion to determine the matter despite mootness
- Applications of Jeremiah Jost and Harold Ristau dismissed for lack of standing
- Applications of Edward Cornell and Vincent Gircys granted in part
- Declared that the decision to issue the Proclamation and the associated Regulations and Order was unreasonable and ultra vires the Emergencies Act
- Declared that the Regulations infringed section 2(b) of the Charter and the Order infringed section 8 of the Charter and that neither infringement was justified under section 1
- Awarded costs of the hearing to Applicants Edward Cornell and Vincent Gircys
- Allowed Respondent and Messrs. Cornell and Gircys to make a joint submission on a reasonable cost award including disbursements
- If no agreement as to costs, parties to file written representations not exceeding five pages within thirty days of receipt of the judgment
02
Material facts
Parties
Jeremiah Jost
Applicant Counsel: Bath-Sheba van den Berg; Blair D. EctorEdward Cornell
Applicant Counsel: Bath-Sheba van den Berg; Blair D. EctorVincent Gircys
Applicant Counsel: Bath-Sheba van den Berg; Blair D. EctorHarold Ristau
Applicant Counsel: Bath-Sheba van den Berg; Blair D. EctorGovernor in Council; His Majesty in Right of Canada; Attorney General of Canada; Minister of Public Safety and Emergency Preparedness
Respondent Counsel: Christopher Rupar; John Provart; David Aaron; Kathleen Kohlman03
Procedural history
Posture
Application for Judicial Review (s.18.1 Federal Courts Act) / Hearing on Motion to Strike and Full Judicial Review; Decision on Standing, Mootness, Merits and Costs
04
Questions and positions
Legal issues
- 01
Do applicants have standing under s.18.1 of the Federal Courts Act?
- 02
Is the application moot and should the Court exercise its discretion to hear it?
- 03
Was the decision to invoke the Emergencies Act reasonable and within statutory authority?
- 04
Did the Regulations infringe s.2(b) of the Charter and was any infringement justified under s.1?
- 05
Did the Order infringe s.8 of the Charter and was any infringement justified under s.1?
- 06
Appropriate costs remedy?
Party arguments
- Applicant
- Applicants challenged the Proclamation, Regulations and Order under the Emergencies Act as unlawful, ultra vires and contrary to the Charter and sought declarations and costs; Cornell and Gircys asserted direct impact and standing; applicants submitted that despite revocation the Court should hear the matter to address legality and Charter breaches.
- Respondent
- Respondent moved to strike as moot due to revocation and termination by operation of law and argued that most applicants lacked standing; respondent defended the exercise of emergency powers and the measures as lawful and proportionate.
05
Court’s reasoning
Legal principles
- 01
Federal Courts Act, s.18.1
Standing requires a person be directly affected to commence a judicial review under s.18.1 of the Federal Courts Act
- 02
Common law mootness doctrine / Federal Court discretion
Courts may decline or exercise discretion to hear moot cases where legal issues remain live and public importance or accountability require adjudication
- 03
Administrative law: reasonableness review principles
Administrative decisions are reviewed for reasonableness, assessing justification, transparency and intelligibility of the decision and whether outcomes fall within a range of acceptable results
- 04
Canadian Charter of Rights and Freedoms, s.1 and Oakes test
Charter infringements must be established and then justified under s.1 using the Oakes proportionality test
- 05
Emergencies Act, relevant provisions and principles of statutory interpretation
Statutory powers must be exercised within the limits of the enabling statute; acts beyond that authority are ultra vires
06
Ratio, limits and disposition
Ratio decidendi
The Court held that two applicants (Cornell and Gircys) had direct standing while two (Jost and Ristau) did not; despite mootness caused by revocation the Court exercised its discretion to hear the matter; the decision to issue the Proclamation and associated Regulations and Order was unreasonable and ultra vires the Emergencies Act; the Regulations infringed s.2(b) of the Charter and the Order infringed s.8, and neither infringement was justified under s.1; consequently declarations were granted and costs awarded to Cornell and Gircys.
Obiter and limits
- Court should exercise discretion to decide moot cases where there is significant public importance and a need for legal clarification and accountability
- Remedial consequences are tailored by the Court where statutory instruments have been revoked but legal issues remain for determination
Court disposition
Application granted in part and dismissed in part: Jost and Ristau dismissed for lack of standing; Cornell and Gircys succeeded on key elements; declarations issued that the Proclamation, Regulations and Order were unreasonable and ultra vires and that Regulations breached s.2(b) and Order breached s.8 of the Charter not justified under s.1; costs awarded to Cornell and Gircys.
- Respondent's motion to strike granted in part and Court exercised discretion to determine the matter despite mootness
- Applications of Jeremiah Jost and Harold Ristau dismissed for lack of standing
- Applications of Edward Cornell and Vincent Gircys granted in part
- Declared that the decision to issue the Proclamation and the associated Regulations and Order was unreasonable and ultra vires the Emergencies Act
- Declared that the Regulations infringed section 2(b) of the Charter and the Order infringed section 8 of the Charter and that neither infringement was justified under section 1
- Awarded costs of the hearing to Applicants Edward Cornell and Vincent Gircys
- Allowed Respondent and Messrs. Cornell and Gircys to make a joint submission on a reasonable cost award including disbursements
- If no agreement as to costs, parties to file written representations not exceeding five pages within thirty days of receipt of the judgment
Source and reliance status
Federal Court · 23 January 2024
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Federal Court
Judgment· 23 January 2024
Jost v. Canada (Governor in Council) Court (s) Database Federal Court Decisions Date 2024-01-23 Neutral citation 2024 FC 32 File numbers T-382-22 Decision Content Date: 20240123 Docket: T-382-22 Citation: 2024 FC 32 Ottawa, Ontario, January 23, 2024 PRESENT: The Honourable Mr. Justice Mosley BETWEEN: JEREMIAH JOST, EDWARD CORNELL, VINCENT GIRCYS AND HAROLD RISTAU Applicants and GOVERNOR IN COUNCIL, HIS MAJESTY IN RIGHT OF CANADA, ATTORNEY GENERAL OF CANADA, AND MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondents
JUDGMENT UPON an Application for Judicial Review pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c. F-7 in respect of the Proclamation Declaring a Public Order Emergency, SOR/2022-20 (Proclamation), made pursuant to s. 17(1) of the Emergencies Act, RSC 1985, c 22 (4th Supp.) (the “Act”) and regulations made pursuant to s. 19(1) of the Act: the Emergency Measures Regulations, P.C. 2022-107, SOR/2022-21 (Regulations), and the Emergency Economic Measures Order, P.C. 2022-108, SOR/2022-22 (Order); AND UPON the motion of the Respondent to strike the application for judicial review on the grounds that it was moot as the Proclamation had been revoked and the associated Regulations and Order had been terminated by operation of law and that the Applicants, save for Messrs. Cornell and Gyrcis, lacked standing to challenge the Proclamation, Regulations and Order as they were not directly affected by them within the meaning of subsection 18.1(1) of the Federal Courts Act; AND UPON considering the material filed by the parties and hearing the oral arguments of Counsel at a hearing in the City of Ottawa, Ontario on April 3-5, 2023; AND UPON determining that Messrs. Jost and Ristau lack standing to start the application for judicial review; AND UPON determining that Messrs. Cornell and Gircys do have direct standing to start the application for judicial review as persons
affected by the decision to invoke the Proclamation. AND UPON determining that while the application is moot, the Court should exercise its discretion to hear it; AND UPON determining that the decision to issue the Proclamation and the associated Regulations and Order was unreasonable and ultra vires the Act; AND UPON determining that the Regulations infringed section 2(b) of the Canadian Charter of Rights and Freedoms Part I of the Constitution Act, 1982 adopted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.) (Charter) and that the Order infringed section 8 of the Charter and that neither infringement was justified under section 1 of the Charter; AND UPON considering that the Applicants, Messrs. Cornell and Gyrcis, requested costs in their Notice of Application and having succeeded on key elements. THIS COURT ORDERS that: The Respondent’s motion for an order striking the application for judicial review isgranted in part and the Court exercises its discretion to determine the matter notwithstanding that it is moot in view of the revocation of the Proclamation and termination of the associated Regulations and Order; The Applicants Jeremiah Jost and Harold Ristau lack standing and their applications for judicial review are dismissed; The Applicants, Edward Cornell and Vincent Gircys, have direct standing and their applications are granted in part; It is declared that the
decision to issue the Proclamation and the associated Regulations and Order was unreasonable and ultra vires the Emergencies Act; It is declared that the Regulations infringed section 2 (b) of the Charter and declared that the Order infringed section 8 of the Charter and that neither infringement was justified under section 1; The Applicants, Edward Cornell and Vincent Gircys, are awarded costs of the hearing; The Respondent and Messrs. Cornell and Gircys may make a joint submission on a reasonable cost award for the hearing, including disbursements;and In the absence of an agreement as to costs, the parties have thirty days from the date of the receipt of this judgment to submit written representations, not exceeding five pages in length, for the Court to determine an appropriate award. "Richard G. Mosley" Judge
FEDERAL COURT
SOLICITORS OF RECORD DOCKET: T-382-22 STYLE OF CAUSE: JEREMIAH JOST, EDWARD CORNELL, VINCENT GIRCYS AND HAROLD RISTAU v GOVERNOR IN COUNCIL, HIS MAJESTY IN RIGHT OF CANADA, ATTORNEY GENERAL OF CANADA, AND MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: April 3-5, 2023 JUDGMENT: MOSLEY J. DATED: January 23, 2024 APPEARANCES: Bath-Sheba van den Berg Blair D. Ector For The ApplicantS Christopher Rupar John Provart David Aaron Kathleen Kohlman For The RespondentS SOLICITORS OF RECORD: Loberg Ector LLP Calgary, Alberta For The ApplicantS Attorney General of Canada Toronto, Ontario For The RespondentS
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