Monday, April 22, 2013

Date: 20130422 Docket: T-2096-12 Citation: 2013 FC 402 FEDERAL COURT OF CANADA

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

Page: 5

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

Page: 7

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.

Page: 8

[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.

Page: 9

[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;

Page: 10

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

Page: 11

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

Page: 14

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.

Page: 16

[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.


Page: 17

[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

Page: 18

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

Page: 19

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

Page: 20

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