Reference re subsection 18.3 (1) of the Federal Courts Act, R.S.C. 1985 c. F-7

Reference re subsection 18.3 (1) of the Federal Courts Act, R.S.C. 1985 c. F-7

A party or the Court cannot force the inclusion of constitutional issues into a s.18.3 reference when the referring tribunal, exercising its exclusive discretion, framed questions that exclude them; s.57 does not confer such a right and the reference process and Rules require tribunal‑generated findings and an appropriate record before constitutional issues may be adjudicated, so the proper remedy for an improperly framed reference is a strike (with or without leave) rather than unilateral expansion of the reference.

Citation
2019 FC 464
Parties
Applicant: The Privacy Commissioner of Canada; Respondent: Google LLC; Intervenor: Attorney General of Canada; Complainant: Complainant
Court
Federal Court
Jurisdiction
Canada
Judgment Date
16 April 2019
Procedural Posture
Reference Pursuant to S.18.3 of the Federal Courts Act (pipeda) / Preliminary Motion to Vary Reference / Motion to Strike; Directions Hearing
Outcome
Google LLC's motion dismissed
Legal Topics
Reference Procedure Under S.18.3, PIPEDA Application to Search Engines, Notice of Constitutional Question (s.57), Journalistic Exemption (pipeda Ss.4(2)(c)), De Indexing, Evidentiary Record for Constitutional Issues
Source Language
English
Administrative Law Constitutional Law Privacy Law Procedural Law Freedom of Expression Law Reference Procedure Under S.18.3 PIPEDA Application to Search Engines Notice of Constitutional Question (s.57) +3 more

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Parties

The Privacy Commissioner of Canada

Applicant

Google LLC

Respondent

Attorney General of Canada

Intervenor

Complainant

Complainant

Procedural Posture

Reference Pursuant to S.18.3 of the Federal Courts Act (pipeda) / Preliminary Motion to Vary Reference / Motion to Strike; Directions Hearing

Legal Issues

  1. 1 Whether parties or the Court can expand or vary the questions framed by a tribunal in a s.18.3 reference
  2. 2 Whether constitutional issues served in a notice of constitutional question can be added to a reference absent tribunal inclusion
  3. 3 Whether the reference should be struck for being inappropriate, prejudicial or lacking necessary factual findings

Ratio Decidendi

A party or the Court cannot force the inclusion of constitutional issues into a s.18.3 reference when the referring tribunal, exercising its exclusive discretion, framed questions that exclude them; s.57 does not confer such a right and the reference process and Rules require tribunal‑generated findings and an appropriate record before constitutional issues may be adjudicated, so the proper remedy for an improperly framed reference is a strike (with or without leave) rather than unilateral expansion of the reference.

Court Disposition

Google LLC's motion dismissed

Orders

  • Google LLC's motion is dismissed.