Date: 20130422
Docket: T-2096-12
Citation: 2013 FC 402
Ottawa, Ontario, April 22, 2013
PRESENT: The Honourable Sean J. Harrington
BETWEEN:
MR KEVIN PAGE, PARLIAMENTARY
BUDGET OFFICER
Applicant
and
MR THOMAS MULCAIR,
LEADER OF THE OPPOSITION AND
THE ATTORNEY GENERAL OF CANADA
Respondents
THE SPEAKER OF THE SENATE OF
CANADA AND THE SPEAKER OF THE
HOUSE OF COMMONS
Participants
The principle of Parliamentary sovereignty means neither more nor less than
this, namely, that Parliament thus defined has, under the English constitution,
the right to make or unmake any law whatever; and, further, that no person
or body is recognised by the law of England as having a right to override or set
aside the legislation of Parliament.
(A.V. Dicey, Introduction to the Study of the
Law of Constitution,
10th edition, 1964, pages 39-
Page: 2
[1] The Parliament of Canada has, by statute, mandated its budget officer to, among other
things, “estimate the financial cost of any proposal that relates to a matter over which Parliament
has jurisdiction” when requested to do so by any member of the House of Commons or any Senator.
[2] Thomas Mulcair, a Member of the House of Commons, and Leader of Her Majesty’s Loyal
Opposition, wrote to Kevin Page, the then Parliamentary Budget Officer, to call upon him to
analyze whether savings outlined in the 2012 budget were achievable or likely to be achieved;
whether and the extent to which a failure to achieve them would result in fiscal consequences in the
longer term, and purported savings premised on staff reductions.
[3] Mr. Page responded by saying that questions had been raised as to whether the analyses Mr.
Mulcair required fell within his mandate. He stated he would seek a reference from the Federal
Court and would only perform the analyses requested should the Court decide he had jurisdiction. In
furtherance thereof, Mr. Page referred the following questions of law and jurisdiction to this Court:
1. Whether it is within the Parliamentary Budget Officer’s
jurisdiction, pursuant to
Parliament of Canada Act RSC
1985, c P-1, s. 79.2, to analyze:
a. the extent to which the fiscal savings that are outlined in
the Government’s Budget are achievable or likely to be
achieved; and
b. the extent to which the achievement of the savings there
outlined would result in fiscal consequences in the longer
term.
2. Whether it is within the Parliamentary Budget Officer’s
jurisdiction, pursuant to
Parliament of Canada Act RSC
1985, c P-1, s.79.3, to request from departments their planned
fiscal savings premised on staffing reductions.
Page: 3
[4] Mr. Page submits that the answer to both questions is “yes”. He is supported by Mr.
Mulcair. The Attorney General of Canada, the Speaker of the Senate and the Speaker of the House
of Commons make no submissions as to what the answers to Mr. Page’s questions should be.
Rather, they say this Court has no jurisdiction to answer them because Parliament has reserved the
answer to itself by way of parliamentary privilege or in virtue of the language of the
Parliament of
Canada Act
. In the alternative, should I find this Court has jurisdiction to answer the questions, in
my discretion I should not do so as there is no justiciable dispute. In any event, the questions are too
vague to be answered satisfactorily.
DECISION
[5] Neither on the basis of parliamentary privilege nor on the principles of statutory
interpretation has Parliament reserved for itself the right to answer Mr. Page’s questions. That task
falls upon this Court. However, questions cannot be answered in a factual vacuum. More
particularly, Mr. Page has never actually requested data from any department at the instance of
Mr. Mulcair. It follows that no refusal to provide data is contained in the record before me.
Therefore, the questions are hypothetical and I decline to answer them on the grounds of nonjusticiability.
BACKGROUND
[6] In response to the Commission of Inquiry into the Sponsorship Program and Advertising
Activities (the Gomery Commission), in 2006 Parliament enacted the
Federal Accountability Act,
Page: 4
SC 2006, c 9. The full title of the Act is far more telling:
An Act providing for conflict of interest
rules, restrictions on election financing and measures respecting administrative transparency,
oversight and accountability
.
[7] The
Federal Accountability Act amended the Parliament of Canada Act to create the
position of Parliamentary Budget Officer. This person, in accordance with s. 79.1(1), is an “officer
of the Library of Parliament”. Section 78 provides that the Parliamentary Budget Officer, as well as
other officers, clerks and servants of the Library, is responsible for the faithful discharge of his or
her official duties as defined “subject to this Act” by regulations agreed on by the Speakers of the
two Houses of Parliament and concurred in by a joint committee appointed by both Houses. There
are no such regulations.
[8] Therefore, the mandate of the Parliamentary Budget Officer, as set out in section 79.2 of the
Act, appended hereto, is:
a. to provide independent analysis to the Senate and to the House of Commons about
the state of the nation’s finances, the estimates of the government and trends in the
national economy;
b. when requested by certain committees of the Senate or the House of Commons to
undertake research for that Committee into the nation’s finances and economy;
c. when requested by any committee that is mandated to consider the estimates of the
Government to undertake research for that committee; and
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d. when requested by any committee or any member of the House of Commons or the
Senate to “estimate the financial cost of any proposal that relates to a matter over
which Parliament has jurisdiction.”
[9] In order to give effect to that mandate, subject to certain exceptions, section 79.3 appended
hereto, the Parliamentary Budget Officer by request to the deputy head of a department, or delegate,
is entitled to “…free and timely access to any financial or economic data in the possession of the
department that are required for the performance of his or her mandate.”
[10] The opposition by the Attorney General and the two Speakers has two facets, one of the
highest constitutional principle bolstered by the rules of statutory interpretation: parliamentary
privilege, and the other procedural: the provisions of the
Federal Courts Act, and Rules of Practice
pertaining to references by federal boards, commissions or other tribunals to the Federal Court for
hearing and determination
PARLIAMENTARY PRIVILEGE
[11] The preamble of the
Constitution Act, 1867, calls for a constitution “similar in Principle to
that of the United Kingdom”. Section 18 provides:
18.
The privileges, immunities,
and powers to be held, enjoyed,
and exercised by the Senate and
by the House of Commons, and
by the members thereof
respectively, shall be such as
are from time to time defined
by Act of the Parliament of
18.
Les privilèges, immunités et
pouvoirs que posséderont et
exerceront le Sénat et la
Chambre des Communes et les
membres de ces corps
respectifs, seront ceux prescrits
de temps à autre par loi du
Parlement du Canada; mais de
Page: 6
Canada, but so that any Act of
the Parliament of Canada
defining such privileges,
immunities, and powers shall
not confer any privileges,
immunities, or powers
exceeding those at the passing
of such Act held, enjoyed, and
exercised by the Commons
House of Parliament of the
United Kingdom of Great
Britain and Ireland, and by the
members thereof.
manière à ce qu’aucune loi du
Parlement du Canada
définissant tels privilèges,
immunités et pouvoirs ne
donnera aucuns privilèges,
immunités ou pouvoirs
excédant ceux qui, lors de la
passation de la présente loi, sont
possédés et exercés par la
Chambre des Communes du
Parlement du Royaume-Uni de
la Grande-Bretagne et d’Irlande
et par les membres de cette
Chambre.
[12] Sections 4 and 5 of the
Parliament of Canada Act, appended hereto, go on to provide that
the Senate and the House of Commons, as well as their members, enjoy and exercise the like
privileges, immunities and powers which were held, enjoyed and exercised by the House of
Commons, U.K., in 1867, as well as such other privileges, immunities and powers defined by the
Canadian Parliament, not exceeding those above, and that such privileges, immunities and powers
are part of the general and public law of Canada to be taken notice of judicially.
[13] Since the Constitution of the United Kingdom has not been codified and has not in all
instances been reduced to statute, it is no easy task to ascertain with precision the privileges,
immunities and powers of the Houses of Parliament as a good part thereof derives from the
lex non
scripta
.
[14] I approach this task with two thoughts in back of mind. The first is that the Houses of
Parliament are to hold the executive to account. Money bills must be initiated in the House of
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Commons. Parliament did not need to enact legislation to create the position of Parliamentary
Budget Officer. It could have done so by way of internal management.
[15] The second point is that the Houses may elect to waive their privileges (
R v Connolly, 1891
OJ No 44, 22 OR 220) or to assert them (
R v Lavigne, 2010 ONSC 2084, [2010] OJ No 1450,
Gagliano v Canada (Attorney General)
, 2005 FC 576, [2005] FCJ No 683 (QL)).
[16] What then is the privilege being asserted?
[17] The Speakers, who took the lead in this aspect of the case, assert privilege on a number of
grounds. They say:
a. if this Court decides the questions, it would be interfering in the internal affairs and
business of the Houses and would be in violation of article 9 of the
Bill of Rights,
1689
(UK);
b. the Parliamentary Budget Officer’s role, functions and mandate fall within the
internal affairs of Parliament and come within the ambit of parliamentary privilege;
c. the fact that the Parliamentary Budget Officer’s position was legislated does not
clothe this Court with jurisdiction to address what still falls within the exclusive
cognisance of Parliament; and
d. they, as neutral parties, do not take any position on the merits of Mr. Page’s
questions,
i.e. the scope of the mandate of the Parliamentary Budget Officer.
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[18] There are a number of authorities on point from England, from the Privy Council and from
Canada. Two Supreme Court of Canada cases of fairly recent vintage are:
Canada (Auditor
General) v Canada (Minister of Energy, Mines and Resources)
, [1989] 2 SCR 49, [1989] SCJ No
80 (QL), which deals more with the statutory interpretation aspect of this case, and
Canada (House
of Commons) v Vaid
, 2005 SCC 30, [2005] 1 SCR 667, [2005] SCJ No 28 (QL).
[19] To begin with the latter case, Mr. Vaid, who had been chauffeur to the Speaker of the House
of Commons, complained to the Canadian Human Rights Commission that he had been
constructively dismissed on discriminatory grounds. Before deciding that his only recourse fell
within the grievance procedure established under the
Parliamentary Employment and Staff
Relations Act
, Mr. Justice Binnie, speaking for the Court, dealt at some length with parliamentary
privilege. He was not making new law when he said at paragraph 4:
There are few issues as important to our constitutional equilibrium as
the relationship between the legislature and the other branches of the
State on which the Constitution has conferred powers, namely the
executive and the courts.
[20] The issue there was whether the alleged actions of the Speaker, which were not directed
towards a member of Parliament or a parliamentary official, but rather against a stranger to the
House, someone quite remote from the legislative functions that parliamentary privilege was
designed to protect, should be immunized from outside scrutiny. The Court held that the burden was
on the Speaker to establish such privilege and that he failed to do so. On administrative law
principles, the Court held that the House of Commons was, however, entitled to require Mr. Vaid to
utilize the statutory machinery that Parliament had enacted, which was an exclusive method of
dispute resolution for employees such as himself.
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[21] Reference was made to article 9 of the
Bill of Rights, 1689, which provides that “freedom of
speech and debates or proceedings in Parliament ought not to be impeached or questioned in any
court or place out of Parliament.”
[22] At paragraph 29, Mr. Justice Binnie set out twelve non-exhaustive propositions.
Parliamentary privilege is the sum of privileges, immunities and powers without which the Houses
and their members could not discharge their functions. Privilege includes such immunity as is
necessary so that they may do their legislative work.
[23] His fifth point was:
The historical foundation of every privilege of Parliament is
necessity. If a sphere of the legislative body’s activity could be left
to be dealt with under the ordinary law of the land without interfering
with the assembly’s ability to fulfill its constitutional functions, then
immunity would be unnecessary and the claimed privilege would not
exist (
Beauchesne’s Rules & Forms, at p. 11; Maingot, at p. 12;
Erskine May
, at p. 75; Stockdale v. Hansard, at p. 1169; New
Brunswick Broadcasting
, at pp. 343 and 382).
[24] The citations for his references are as follows:
a. Beauchesne’s
Rules & Forms of the House of Commons of Canada with
annotations, comments and procedures, Canada, Parliament, House of Commons, 6
th
Edition, 1989;
b. J.P. Joseph Maingot’s
Parliamentary Privilege in Canada, 2nd Edition, Montreal,
McGill-Queens University Press, 1997;
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c. Erskine May’s
Treatise on the Law, Privileges, Proceedings and Usage of
Parliament
, 23rd Edition, William McKay, E.D., London, Lexis Nexus, U.K., 2004;
d.
Stockdale v Hansard (1839), 9 Ad. & E 1, 12 E.R 1112; and
e.
New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly),
[1993] 1 SCR 319
[25] Proof of necessity is required only to establish the existence and scope of a category of
privilege. Once established, it is for Parliament, not the courts, to determine whether in a particular
case the exercise of the privilege is necessary or appropriate.
[26] Categories of privilege include freedom of speech, control over debates or proceedings in
Parliament, the power to exclude strangers from the House and disciplinary authority over members
and non-members who interfere with the discharge of parliamentary duties, including immunity of
members from subpoena during a parliamentary session.
[27] It was submitted that even if the Speakers agreed with Mr. Page’s interpretation of his
mandate and his right to access departmental records in furtherance thereof, and notwithstanding the
wording of sections 79.2 and 79.3 of the
Parliament of Canada Act, the Chief Librarian, to whom
the Parliamentary Budget Officer reports, or the two Speakers, to whom the Chief Librarian reports,
or Parliament itself, could have forbidden him from acting on Mr. Mulcair’s request. If that be so,
like the majority view in the Federal Court of Appeal in
Vaid, such privilege would actually
diminish the integrity and dignity of the House without improving its ability to fulfil its
constitutional mandate. The mandate of the Parliamentary Budget Officer was not only to provide
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independent analysis to the Senate and to the House of Commons at large, but also to undertake
research at the request of certain standing committees, to undertake research into estimates of the
Government at the request of any committee of the Senate or the House of Commons mandated to
consider those estimates, and, finally, when requested by any committee of the Senate or House, or
any member of either House, to estimate the financial cost of any proposal.
[28] The cascading or tumble-down structure of s. 79.2 is such that Parliament not only intended
that the Parliamentary Budget Officer be answerable to it and to its committees, but also to every
backbencher irrespective of political stripe. In my view, the purpose of the statute is to shield any
given member of either House of Parliament from the will of the majority. However, there are no
Charter of Rights and Freedoms or federal/provincial division of legislative powers issues at stake
here. If the majority wants to abolish the position of the Parliamentary Budget Officer, or define his
or her mandate somewhat differently, so be it! However, it must do so by legislation. Having made
that law by statute, it must unmake it by statute. In the meantime, Parliament has no right to ignore
its own legislation.
[29] Mr. Page’s application to this Court is not in violation of the
Bill of Rights, 1689, U.K. The
application does not infringe upon freedom of speech within Parliament. Only the courts have
jurisdiction to answer pure questions of law (
Re: Resolution to Amend the Constitution [1981] 1
SCR 753). Although, as shall be seen, at least two ministers have expressed in the House of
Commons the opinion that Mr. Page has acted beyond his jurisdiction, those comments were made
months before Mr. Page applied to this Court, and months before his exchange of letters with Mr.
Mulcair. They cannot be taken as an expression of opinion as to the Parliamentary Budget Officer’s
Page: 12
jurisdiction under section 79.2(d) of the
Parliament of Canada Act, as applied to requests by an
individual member of the House of Commons. In any event, an expression of opinion on the
interpretation of a statute, be it in the House of Commons or not, is not binding on this Court. The
interpretation of a statute by a Minister responsible for its implementation is to be reviewed on a
standard of correctness unless Parliament has provided otherwise (
Bartlett v Canada (Attorney
General)
, 2012 FCA 230, [2012] FCJ No 1181 (QL) at para 46, Georgia Strait Alliance v. Canada
(Minister of Fisheries and Oceans)
, 2012 FCA 40, [2012] FCJ No 157 (QL) at paras 65-105 and
Sheldon Inwentash & Lynn Factor Charitable Foundation v Canada
, 2012 FCA 136, [2012] FCJ
No 555 (QL) at para 23.
[30] The Speakers have not discharged the burden upon them to establish that it is necessary to
deny the Parliament Budget Officer access to the courts on the grounds that such access as would
render the Houses of Parliament unable to discharge their functions.
[31] I shall now turn to whether this is a matter entirely internal to Parliament, and conclude that
it is not.
STATUTORY INTERPRETATION
[32] It is a fundamental principle of the separation of powers among Parliament, the Executive
and the Courts, that Parliament cannot oust the superintending power of superior courts when it
comes to ordinary citizens. Despite their wording, privative clauses are of limited value and go more
to the standard of judicial review, rather than to the right of review. (See for instance
United
Page: 13
Brotherhood of Carpenters and Joiners of America, Local 579 v Bradco Construction Ltd,
[1993] 2
SCR 316, [1993] SCJ No 56 (QL), at para 26: “In the presence of a full privative clause, judicial
review exists not by reason of the wording of the statute (which is, of course, fully preclusive) but
because as a matter of constitutional law judicial review cannot be ousted completely (...)” and
Dunsmuir v New Brunswick
, 2008 SCC 9, [2008] 1 SCR 190, [2008] SCJ No 9 (QL) at para 31.)
[33] However, in addition to, or perhaps as part of, parliamentary privilege, as the two are not
really watertight compartments, Parliament has greater power when it comes to restricting remedies
of its own members or its officers. In
Bradlaugh v Gossett (1884), 12 QBD 271, the United
Kingdom’s House of Commons resolved that Mr. Bradlaugh, who had been elected, should not be
permitted to take the oath prescribed by statute for members of Parliament and that he be excluded,
by force if necessary, from the House. The legal question was whether the House could forbid a
member to do what the
Parliamentary Oaths Act required him to do, i.e. to take an oath.
[34] The Speakers rely particularly upon the following passage from the concurring reasons of
Mr. Justice Stephen at page 278:
In my opinion, we have no such power. I think that the House of
Commons is not subject to the control of Her Majesty’s Courts in its
administration of that part of the statute law which has relation to its
own internal proceedings, and that the use of such actual force as
may be necessary to carry into effect such a resolution as the one
before us is justifiable.
[35] The matter came before the court on demurrer,
i.e. a motion to strike. At page 280, he went
on to say:
But it would be indecent and improper to make the further
supposition that the House of Commons deliberately and
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intentionally defies and breaks the statute-law. The more decent and I
may add the more natural and probable supposition is, that, for
reasons which are not before us, and of which we are therefore
unable to judge, the House of Commons considers that there is no
inconsistency between the Act and the resolution.
[36] To put in context the passage relied on, consider also what Mr. Justice Stephen had to say at
page 284:
It is certainly true that a resolution of the House of Commons cannot
alter the law. If it were ever necessary to do so, this Court would
assert this doctrine to the full extent to which it was asserted in
Stockdale v. Hansard.
[9 Ad. & E. 1]
And at page 286:
Some of these rights are to be exercised out of parliament, others
within the walls of the House of Commons. Those which are to be
exercised out of Parliament are under the protection of this Court,
which, as has been shewn in many cases, will apply proper remedies
if they are in any way invaded, and will in so doing be bound, not by
resolutions of either House of Parliament, but by its own judgment as
to the law of the land, of which the privileges of Parliament form
part.
[37] Thus,
Bradlaugh dealt with matters completely internal to the House. This case deals with
the right of the Parliamentary Budget Officer to obtain information neither from parliamentarians
nor from officers of parliament, but rather from the members of the third branch of government, the
Executive. To follow in Mr. Justice Stephen’s footsteps, the rights Mr. Page asserts he is entitled to
exercise are to be exercised outside Parliament and, therefore, are under the protection of this Court.
[38] I think the same point holds true in
Temple v Bulmer, [1943] SCR 265. Mr. Temple had
applied to the Supreme Court of Ontario for an order in the nature of a prerogative writ of
mandamus
directing the clerk to issue a writ for the election of a member for a district to fill a
Page: 15
vacancy created by the death of the sitting member. It was held that the issue of
mandamus would
constitute an intrusion upon the privileges of the legislative assembly. The duties which fell upon
the Clerk were imposed upon him in his capacity as an officer under the control of and answerable
to the Legislative Assembly.
[39] The decision in
Canada (Auditor General) v Canada (Minister of Energy, Mines and
Resources)
, above, supports the proposition that if the language is sufficiently tight, Parliament can
deny a governor-in-council appointee access to the courts. In that case, Petro-Canada, a Crown
corporation and an agent of Her Majesty, acquired Petrofina. The Auditor General sought to
ascertain whether due regard to economy had been demonstrated and value for money achieved. He
was denied access to information even though section 13(1) of his enabling statute, the
Auditor
General Act,
provided that he was entitled to free access to information that related to the fulfillment
of his responsibilities. Certain recourses were set out in the Act. The governor-in-council could
order production of the information, which although requested was refused. He also had the remedy
of an annual report to the House of Commons on whether he had received all the information
required. The Parliamentary Budget Officer has neither of these statutory recourses, at least
explicitly.
[40] Chief Justice Dickson, speaking for the Court, held that the Auditor General did not, in the
circumstances of that case, have a judicially enforceable right of access to information. The case
turned on the concept of justiciability and the doctrine of alternative remedies, including political
remedies.
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[41] At page 84 of the decision, he asked:
[…]does the Auditor General have recourse to the courts, as an
alternative remedy, in the event of the denial by Parliament,
responsible Ministers, and the Governor in Council to make available
to him all of the documentation he may seek in what he regards as
the discharge of his responsibilities in auditing the accounts of
Canada?
[42] After dealing at length with with
Terrasses Zarolega Inc v Québec (Régie des installations
olympiques)
, [1981] 1 SCR 94, and Harelkin v University of Regina, [1979] 2 SCR 561, he said at
page 95:
It would, I think, be an overstatement to suggest that the courts are
simply implementing Parliament's own decision on justiciability
when they determine that remedies are implicitly ousted by means of
the presence of adequate alternative remedies, whether found in the
statute creating the legal right at issue, or not. Albeit with the
assistance of the wording and scheme of the Act in which the
alternative remedy is found, both the fact that ouster needs to be
implied and the fact that an evaluation of adequacy is called for
suggest that the alternative remedies bar to discretionary judicial
relief entails, in reality, a decision by the courts on the
appropriateness of their intervention, and less a clear statement of
intention by Parliament. By not unambiguously highlighting the
exclusivity of the statutory remedy, Parliament leaves it to the
judiciary to define its role in relation to that remedy. I agree with the
following conclusion of Peter Cane in
An Introduction to
Administrative Law
(1986), at p. 190, as regards what he calls the
constitutional function of administrative law rules on ouster of
remedies:
The rules about implied exclusion of review tend to
raise questions about the suitability of the judicial
process as opposed to the other avenues open for the
control of administrative misconduct. In other words,
these rules tend to rest on ideas of justiciability and
the proper scope of judicial review.
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[43] He was of the view that the political remedy of that case,
i.e. a report to Parliament, was an
adequate alternative remedy as the Auditor General was acting on Parliament’s behalf, carrying out
a quintessentially parliamentary function. At page 103, he concluded:
Where Parliament has indicated in the
Auditor General Act that it
wishes its own servant to report to it on denials of access to
information needed to carry out his functions on Parliament's behalf,
it would not be appropriate for this Court to consider granting
remedies for such denials, if they, in fact, exist.
[44] It seems to me that this case is different in that the Parliamentary Budget Officer would not
be acting on Parliament’s behalf but on behalf of an individual member of the House of Commons.
Parliament did not expressly legislate his recourses in the event that a deputy minister, or delegate,
refused to provide information, and this is not a case where a political remedy is adequate, as
Parliament cannot be taken to unmake its own law, except by legislation.
[45] Time and time again, the Supreme Court has interpreted statutes by relying upon the
following passage from Elmer Driedger’s
Construction of Statutes, 2nd Edition, 1983:
Today there is only one principle or approach, namely, the words of
an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament.
See for instance
Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, [1998] SCJ No 2 (QL) and Bell
ExpressVu Limited Partnership v Rex
, 2002 SCC 42, [2002] 2 SCR 559, [2002] SCJ No 43 (QL).
[46] It seems to me that by establishing the position of a Parliamentary Budget Officer and
enshrining his or her mandate in legislation, Parliament intended that independent,
i.e. independent
from Government, financial analysis should be available to any member of Parliament, given the
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possibility that the Government of the day may be a majority government with strong party
discipline.
[47] That was the mischief Parliament addressed and dealt with. If the legislation infringed upon
parliamentary privilege, and I say it did not, then such privilege was legislatively waived.
JUSTICIABILITY
[48] Section 18.3(1) of the
Federal Courts Act was invoked by Mr. Page. It provides:
18.3 (1) A federal board,
commission or other tribunal
may at any stage of its
proceedings refer any question
or issue of law, of jurisdiction
or of practice and procedure to
the Federal Court for hearing
and determination.
18.3 (1) Les offices fédéraux
peuvent, à tout stade de leurs
procédures, renvoyer devant la
Cour fédérale pour audition et
jugement toute question de
droit, de compétence ou de
pratique et procédure.
[49] The Federal Court was established pursuant to section 101 of the
Constitution Act which
permits Parliament to establish courts for the better administration of the Laws of Canada. Although
the
Parliament of Canada Act is obviously a Law of Canada, it is submitted that it is not a Law of
Canada over which this Court has jurisdiction. Reliance is placed upon the decision of Chief Justice
Iacobucci of the Federal Court of Appeal, as he then was, in
Southam Inc v Canada (Attorney
General)
, [1990] 3 FC 465, [1990] FCJ No 712 (QL). He was of the view that the Parliament of
Canada Act
did not arise from the general legislative jurisdiction of the Federal Parliament under
section 91 of the
Constitution Act, but rather under section 18, referred to above. He concluded the
Federal Court was without jurisdiction. I do not consider that case applicable. It dealt with a matter
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purely internal to Parliament,
i.e. the right to deny strangers access to Senate Committee Hearings,
and was decided before
Vaid. Furthermore, for the reasons stated above, this is not a case which
deals with matters purely internal to Parliament.
[50] Then, the Attorney General, who took the lead in this part of the opposition to Mr. Page’s
application, submitted that the Parliamentary Budget Officer was not a federal board, commission
or tribunal. Quite apart from that objection, he added that there was nothing to determine. It is not
necessary to rule on the first point, as I agree that there is nothing in the record before me to
determine, which brings the matter to an end.
[51] During oral argument, I suggested that Mr. Page should have acted on his own interpretation
of his statutory mandate and called upon deputy ministers to provide the information requested. Had
they refused to do so, then what would have been at issue in this Court would have been a decision
of a federal deputy minister. Such individuals are, without question, federal boards, commissions or
tribunals.
[52] Mr. Page may have had reason to believe requests would have been refused because in the
past some departments had not provided information, because two standing committees had
declined to exercise their rights under section 79.2 of the Act, and because at least two ministers
speaking in Parliament offered the opinion that he had overstepped his bounds. However, from the
record before me, the context of those statements is not clear. An argument can be made that he had
indeed overstepped his bounds. As set out in the
Report on the Operations of the Parliamentary
Budget Officer within the Library of Parliament
, the Report of the Standing Joint Committee on the
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Library of Parliament
, June 2009, it was said that although Mr. Page was an officer of the Library
of Parliament, he refused to attend library meetings, and would not tell the Chief Librarian how
many cases he was dealing with.
[53] The reason Mr. Page did not act on his own convictions appears to be that he wanted to
avoid the impression he was seeking coercive measures, and because he wished to be seen as
neutral. A declaration might be considered as a form of coercion as the Government is expected to
follow it. I think the determination of a reference comes to the same thing.
[54] The leading case in this area is
LeBar v Canada, [1989] 1 FC 603, [1988] FCJ No 940 (QL),
in which Mr. Justice MacGuigan of the Federal Court of Appeal reviewed the fundamental
principles of the declaratory judgment, starting with the seminal decision in
Dyson v Attorney
General
, [1911] 1 KB 410. He stated the following at paragraph 11 of his decision:
In my opinion, the necessity for the Government and its officials to
obey the law is the fundamental aspect of the principle of the rule of
law, which is now enshrined in our Constitution by the preamble to
the
Canadian Charter of Rights and Freedoms [being Part I of the
Constitution Act, 1982
, Schedule B, Canada Act 1982, 1982 c. 11
(U.K.)]. This aspect was noted by A.V. Dicey,
Introduction to the
Study of the Law of the Constitution
, 10th ed., E.C.S. Wade, 1959,
pages 193, 202-203, and was authoritatively established by the
Supreme Court in its
per curiam decision in Reference re Manitoba
Language Rights
, [1985] 1 S.C.R. 721, at page 748: 1
The rule of law, a fundamental principle of our
Constitution, must mean at least two things. First, that
the law is supreme over officials of the government
as well as private individuals, and thereby preclusive
of the influence of arbitrary power.
Page: 21
[55] Decisions of this Court which rule upon the jurisdiction of federal boards or tribunals
include
Lawson v Accusearch Inc., 2007 FC 125, [2007] FCJ No 164 (QL) and Canada (Attorney
General) v Amnesty International Canada
, 2009 FC 918, [2009] FCJ No 1096 (QL).
[56] Although counsel for Mr. Mulcair submits I should answer the questions, he accepts that
Mr. Page could have proceeded by way of declaration or
mandamus.
[57] I dislike dismissing applications on procedural grounds, but there are times when it is
necessary to do so. This is one of those cases, as there is no live controversy.
[58] I have more than once invoked rule 3 of the
Federal Courts Rules, which provides that the
Rules are to be interpreted and applied to secure the just, most expeditious and least expensive
determination of every proceeding on its merits. As Mr. Justice Pigeon said in
Hamel v Brunelle,
[1977] 1 SCR 147, at page 156: “…que la procédure reste la servante de la justice et n’en
devienne jamais la maîtresse.” / “…that procedure be the servant of justice not its mistress.”
However, there are limits.
[59] Moreover, this is not a case of a defect in the form of pleadings, which could be cured. If it
were, as Lord Denning M.R. said in
Letang v. Cooper, [1964] 2 All E.R. 929 at p. 932:
I must decline, therefore, to go back to the old forms of action in
order to construe this statute. I know that in the last century
MAITLAND said “the forms of action we have buried but they still
rule us from their graves.” But we have in this Century shaken off
their trammels. These forms of action have served their day. They
did at one time form a guide to substantive rights; but they do so no
longer. Lord Atkin told us what to do about them:
Page: 22
“When these ghosts of the past stand in the path of
justice, clanking their medieval chains, the proper
course for the judge is to pass through them
undeterred. See
United Australia, Ltd. v. Barclays
Bank Ltd.
[1940] 4 All E.R. 20 at p. 37”
[60] Had, for instance, a deputy minister refused Mr. Page information on the grounds that his
jurisdiction was limited to the analysis of money proposed to be spent, as opposed to the analysis of
alleged savings in comparison with the previous budget, I would have been pleased to answer the
question. However, given the studious refusal of the respondents in opposition to Mr. Page to take
any position, there is simply no live controversy to be ruled upon. Under rule 322 of the
Federal
Courts Rules
, it was upon Mr. Page to establish the record on which he intended to rely. As his
material shows, in response to general requests on his part, and not at the instance of Mr. Mulcair,
some departments provided information while others did not. Some may have had valid excuse.
[61] In order to avoid the issue of mootness, there must be a live controversy both when the
proceeding is commenced, and also at the time the Court is called upon to make a decision. As a
matter of general policy, a court may decline to hear a case which raises merely hypothetical or
abstract questions. The leading case is
Borowski v Canada (Attorney General), [1989] 1 SCR 342,
[1989] SCJ No 14 (QL). In that case, there had been a concrete legal dispute but it had disappeared
by the time the appeal was heard. The Court resolves legal disputes based on the adversary system.
In this case, the dispute relates to whether Mr. Page has access to the courts, not to the scope of his
legislative mandate.
[62] Much of the argument before me was made on a hypothetical basis. Suppose Mr. Page had
interpreted his mandate such that he considered he was unable to accede to Mr. Mulcair’s request.
Page: 23
What would Mr. Mulcair’s recourses have been? That is a matter for another day. Suppose Mr. Page
had done what I think he should have done,
i.e. actually demanded information from deputy
ministers? Suppose they refused to provide information? He had a number of remedies, such as
complaining to the Chief Librarian, perhaps complaining to the two Speakers and the Joint
Committee, and perhaps to Parliament as a whole. What I am saying is that in addition to such
remedies, ultimately he would have had recourse to this Court. There may or may not be a sequence
to these alternative remedies, and the Court, in its discretion, may refuse to hear an application if
other adequate alternative remedies have not been exhausted (
Reda v Canada (Attorney General),
2012 FC 79, 404 FTR 85, [2012] FCJ No 82 (QL) and
Forget v Canada (Attorney General), 2012
FC 212, 405 FTR 246, [2012] FCJ No 226 (QL)).
CONCLUSION
[63] Mr. Page’s application shall be dismissed, not on the grounds of parliamentary privilege, not
on the grounds of statutory interpretation, but on the grounds of non-justiciability. There shall be no
order as to costs.
Page: 24
JUDGMENT
FOR REASONS GIVEN;
THIS COURT ORDERS AND ADJUDGES that
this application is dismissed, without
costs.
“Sean Harrington”
Judge
Page: 25
APPENDIX
PARLIAMENT OF CANADA ACT
RSC, 1985, c P-1
LOI SUR LE PARLEMENT DU CANADA
LRC (1985), ch P-1
4.
The Senate and the House of Commons,
respectively, and the members thereof hold,
enjoy and exercise
(
a) such and the like privileges, immunities
and powers as, at the time of the passing of
the
Constitution Act, 1867, were held,
enjoyed and exercised by the Commons
House of Parliament of the United Kingdom
and by the members thereof, in so far as is
consistent with that Act; and
(
b) such privileges, immunities and powers as
are defined by Act of the Parliament of
Canada, not exceeding those, at the time of
the passing of the Act, held, enjoyed and
exercised by the Commons House of
Parliament of the United Kingdom and by the
members thereof.
5.
The privileges, immunities and powers
held, enjoyed and exercised in accordance
with section 4 are part of the general and
public law of Canada and it is not necessary
to plead them but they shall, in all courts in
Canada, and by and before all judges, be
taken notice of judicially.
4.
Les privilèges, immunités et pouvoirs du
Sénat et de la Chambre des communes, ainsi
que de leurs membres, sont les suivants :
a
) d’une part, ceux que possédaient, à
l’adoption de la
Loi constitutionnelle de
1867
, la Chambre des communes du
Parlement du Royaume-Uni ainsi que ses
membres, dans la mesure de leur
compatibilité avec cette loi;
b
) d’autre part, ceux que définissent les lois
du Parlement du Canada, sous réserve qu’ils
n’excèdent pas ceux que possédaient, à
l’adoption de ces lois, la Chambre des
communes du Parlement du Royaume-Uni et
ses membres.
5.
Ces privilèges, immunités et pouvoirs sont
partie intégrante du droit général et public du
Canada et n’ont pas à être démontrés, étant
admis d’office devant les tribunaux et juges
du Canada.
79.2
The mandate of the Parliamentary Budget
Officer is to
(a) provide independent analysis to the Senate
and to the House of Commons about the state
of the nation’s finances, the estimates of the
government and trends in the national
economy;
(b) when requested to do so by any of the
following committees, undertake research for
that committee into the nation’s finances and
economy:
79.2
Le directeur parlementaire du budget a
pour mandat :
a
) de fournir au Sénat et à la Chambre des
communes, de façon indépendante, des
analyses de la situation financière du pays, des
prévisions budgétaires du gouvernement et des
tendances de l’économie nationale;
b
) à la demande de l’un ou l’autre des comités
ci-après, de faire des recherches en ce qui
touche les finances et l’économie du pays :
Page: 26
(i) the Standing Committee on National
Finance of the Senate or, in the event that
there is not a Standing Committee on
National Finance, the appropriate
committee of the Senate,
(ii) the Standing Committee on Finance of
the House of Commons or, in the event that
there is not a Standing Committee on
Finance, the appropriate committee of the
House of Commons, or
(iii) the Standing Committee on Public
Accounts of the House of Commons or, in
the event that there is not a Standing
Committee on Public Accounts, the
appropriate committee of the House of
Commons;
(c) when requested to do so by a committee of
the Senate or of the House of Commons, or a
committee of both Houses, that is mandated to
consider the estimates of the government,
undertake research for that committee into
those estimates; and
(d) when requested to do so by a member of
either House or by a committee of the Senate
or of the House of Commons, or a committee
of both Houses, estimate the financial cost of
any proposal that relates to a matter over which
Parliament has jurisdiction.
79.3
(1) Except as provided by any other Act of
Parliament that expressly refers to this
subsection, the Parliamentary Budget Officer is
entitled, by request made to the deputy head of
a department within the meaning of any of
paragraphs (a), (a.1) and (d) of the definition
“department” in section 2 of the Financial
Administration Act, or to any other person
designated by that deputy head for the purpose
of this section, to free and timely access to any
financial or economic data in the possession of
the department that are required for the
(i) le Comité permanent des finances
nationales du Sénat ou, à défaut, le comité
compétent du Sénat,
(ii) le Comité permanent des finances de la
Chambre des communes ou, à défaut, le
comité compétent de la Chambre des
communes,
(iii) le Comité permanent des comptes
publics de la Chambre des communes ou, à
défaut, le comité compétent de la Chambre
des communes;
c
) à la demande de tout comité parlementaire à
qui a été confié le mandat d’examiner les
prévisions budgétaires du gouvernement, de
faire des recherches en ce qui touche ces
prévisions;
d
) à la demande de tout comité parlementaire
ou de tout membre de l’une ou l’autre chambre
du Parlement, d’évaluer le coût financier de
toute mesure proposée relevant des domaines
de compétence du Parlement.
79.3
(1) Sous réserve des dispositions de toute
autre loi fédérale renvoyant expressément au
présent paragraphe, le directeur parlementaire
du budget a le droit, sur demande faite à
l’administrateur général d’un ministère, au
sens des alinéas a), a.1) ou d) de la définition
de « ministère » à l’article 2 de la Loi sur la
gestion des finances publiques, ou à toute
personne désignée par cet administrateur
général pour l’application du présent article, de
prendre connaissance, gratuitement et en
temps opportun, de toutes données financières
Page: 27
performance of his or her mandate.
(2) Subsection (1) does not apply in respect of
any financial or economic data
(a) that are information the disclosure of which
is restricted under section 19 of the Access to
Information Act or any provision set out in
Schedule II to that Act; or
(b) that are contained in a confidence of the
Queen’s Privy Council for Canada described in
subsection 69(1) of that Act, unless the data are
also contained in any other record, within the
meaning of section 3 of that Act, and are not
information referred to in paragraph (a).
ou économiques qui sont en la possession de
ce ministère et qui sont nécessaires à l’exercice
de son mandat.
(2) Le paragraphe (1) ne s’applique pas aux
données financières ou économiques qui, selon
le cas :
a
) sont des renseignements dont la
communication est restreinte en vertu de
l’article 19 de la Loi sur l’accès à l’information
ou d’une disposition figurant à l’annexe II de
cette loi;
b
) sont contenues dans les documents
confidentiels du Conseil privé de la Reine pour
le Canada visés au paragraphe 69(1) de cette
loi, sauf si elles sont également contenues dans
tout autre document au sens de l’article 3 de
cette loi et ne sont pas des renseignements
visés à l’alinéa a).
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
T-2096-12
STYLE OF CAUSE:
PAGE v MULCAIR ET AL
PLACE OF HEARING:
OTTAWA, ONTARIO
DATE OF HEARING:
MARCH 21-22, 2013
REASONS FOR JUDGMENT
AND JUDGMENT:
HARRINGTON J.
DATED:
APRIL 22, 2013
APPEARANCES:
Joseph E. Magnet
FOR THE APPLICANT
Paul Champ FOR THE RESPONDENT,
MR. MULCAIR
Robert MacKinnon
Zoe Oxaal
FOR THE RESPONDENT,
THE ATTORNEY GENERAL OF CANADA
Henry Brown, Q.C.
Matthew Estabrooks
FOR THE PARTICIPANT,
THE SPEAKER OF THE SENATE
Steven Chaplin
Catherine Beaudoin
FOR THE PARTICIPANT,
THE SPEAKER OF THE HOUSE OF COMMONS
SOLICITORS OF RECORD:
Joseph Magnet
Barrister & Solicitor
Ottawa, Ontario
FOR THE APPLICANT
Champ & Associates
Barristers & Solicitors
Ottawa, Ontario
FOR THE RESPONDENT,
MR. MULCAIR
Page: 2
SOLICITORS OF RECORD: Cont’d
William F. Pentney
Deputy Attorney General of Canada
Ottawa, Ontario
FOR THE RESPONDENT,
THE ATTORNEY GENERAL OF CANADA
Gowling Lafleur Henderson LLP
Barristers & Solicitors
Ottawa, Ontario
FOR THE PARTICIPANT,
THE SPEAKER OF THE SENATE
Office of the Law Clerk and
Parliamentary Counsel, House of
Commons
Ottawa, Ontario
FOR THE PARTICIPANT,
THE SPEAKER OF THE HOUSE OF COMMONS
