T-1611-88
Southam Inc. and Charles Rusnell (Plaintiffs)
v.
Attorney General of Canada, The Senate, Senate
Standing Committee on Internal Economy, Budg
ets and Administration, Her Majesty the Queen
(Defendants)
INDEXED As: SOUTHAM INC. v. CANADA (ATTORNEY GENER
AL) (T.D.)
Trial Division, Strayer J.—Ottawa, May 17 and
June 8, 1989.
Constitutional law — Charter of Rights — Fundamental
freedoms — Denial of public access to Senate Committee
hearings — Action for declaration denial infringing Charter
guaranteed freedom of expression — Motion to strike defend
ants — Adoption of Charter fundamentally altering nature of
Canadian Constitution, by giving paramount value to certain
individual rights and liberties as against public bodies —
Charter superseding implied constitutional immunity from
judicial review.
Federal Court jurisdiction — Trial Division — Action for
(1) declaration denial of access to Senate and Senate Commit
tee hearings infringing Charter guaranteed freedom of expres
sion; (2) certiorari quashing decision to hold hearings in
camera; (3) injunction against continuing refusal — Whether
any court having jurisdiction to review manner of exercise of
parliamentary privilege — Whether Federal Court having
jurisdiction to hear action — Three conditions to establish
Federal Court jurisdiction set out in ITO case satisfied.
Practice — Parties — Standing — Application to strike
Senate and Senate Committee as defendants in action seeking
declaration Senate's exercise of parliamentary privilege to
hold in camera hearings contrary to Charter — If Senate
lacking standing to appear, standing may be granted to officer
of Senate to bring application — Law Clerk having sufficient
interest to raise matter before Court — Action against Senate
eo nomine nullity as not body corporate — Senate Committee
not suable entity — Open to plaintiffs to name as defendants
individual members of Committee at relevant time — Crown
unnecessarily made party — Attorney General proper party —
Federal Court Act, s. 18(b) giving Trial Division exclusive
original jurisdiction to hear proceeding for relief brought
against Attorney General to obtain relief against federal
board, commission or other tribunal — Attorney General may
be party though lacking authority to direct board — Court
entitled to have Attorney General's views on such important
matter.
Practice — Pleadings — Motion to strike — Action seeking
declaration denial of public access to Senate Committee hear
ings contrary to Charter guaranteed right to freedom of
expression — Delay in moving to strike defendants not fatal
where based on lack of reasonable cause of action for jurisdic
tional or other like reasons going to validity of claim — Where
statement of defence not pleading merits and raising legal
validity of action, and no special circumstances such as preju
dice to plaintiff court should not refuse to entertain motion at
later date — Even if dissolution of 33rd Parliament also
dissolving Senate and rendering issue (scope of exercise of
parliamentary privilege) moot, court should exercise discretion
in favour of dealing with matter as issue raised by situations
of recurring nature, but of brief duration.
Construction of statutes — Senate Committee hearings held
in camera — Plaintiffs asserting Charter, s. 2(b) guaranteeing
freedom of expression, limiting exercise of parliamentary
privilege — Principle express provision required to abrogate
parliamentary privilege, irrelevant as alleged abrogation
imposed by Charter — S. 32 making Charter applicable so as
to potentially limit exercise of royal prerogative — Reference
to "Parliament" imposing restraints on constituent elements of
Parliament.
The Senate Standing Committee on Internal Economy,
Budgets and Administration had refused to allow public access
to its inquiry into the alleged misuse of Senate funds by
Senator Hazen Argue. An action was brought by the publisher
of the Ottawa Citizen newpaper seeking declarations that such
refusal infringed freedom of expression as guaranteed by the
Charter, and was not justified; that Senate Rule 73, which
gives the Senate discretion to deny public access, is also con
trary to the Charter; and that refusals to allow the plaintiffs to
make oral representations to the Committee on their right of
access were a breach of the Senate's duty to receive and
consider representations. The plaintiffs also seek certiorari to
quash the decision to hold in camera hearings and an injunction
against continuing to refuse access. The Law Clerk and Parlia
mentary Counsel to the Senate brought a motion to strike the
Senate and the Senate Committee as defendants on the ground
that the action was an abuse of process. The Attorney General
and the Queen sought to be struck out on the ground that the
statement of claim disclosed no reasonable cause of action.
Alternatively, they argued that they were improper parties. The
issues were whether (I) courts in general and (2) this Court in
particular, had jurisdiction to review the manner of exercise of
parliamentary privileges. It was argued that only courts of
inherent jurisdiction (superior courts of each province) had
jurisdiction, or, that no court had jurisdiction in light of section
9 of The Bill of Rights (1688) which provided that the
proceedings in Parliament ought not be questioned in any court
and which was incorporated into the Canadian Constitution by
the preamble to the Constitution Act, 1867. Other procedural
matters raised were: (I) whether the Law Clerk had status to
bring this application, since he was not a party to the action;
(2) whether the defendants should be allowed to bring this
motion when they had filed a statement of defence and had
waited seven months before moving to strike; (3) whether the
Senate and the Standing Committee were suable entities; (4)
whether the dissolution of the 33rd Parliament had also dis
solved the Senate; (5) whether the Queen was a necessary
party; (6) whether the Attorney General was a necessary party.
Held, the Senate and the Senate Committee should be struck
as defendants, with leave to file an amended statement of claim
naming as defendants the individual members of the Commit
tee during the relevant period. The Crown should also be
struck.
It was not "plain and obvious" that all courts, including the
Federal Court, lacked jurisdiction to review the manner of
exercise of parliamentary privileges. The adoption of the Chart
er has fundamentally altered the nature of the Canadian Con
stitution, by giving paramount importance to certain rights and
liberties of the individual, and authorizing the courts to enforce
those rights against the public bodies referred to in section 32.
The Canadian Constitution is no longer similar in principle to
that of the United Kingdom. The Charter has superseded any
implied constitutional immunity from judicial review of the
exercise by organs of Parliament of their alleged privileges
when such exercise infringes individual rights guaranteed by
the Charter.
The principle of statutory interpretation that an express
statutory provision is required to abrogate a parliamentary
privilege was not relevant as the alleged abrogation would be
imposed by the Charter. Paragraph 32(1)(a) makes the Chart
er applicable to Parliament. In the Operation Dismantle case,
the Supreme Court found that Charter, section 32 made the
Charter apply so as to limit the exercise of the royal preroga
tive. Section 32 must also, in referring to "Parliament" impose
on the constituent elements of Parliament such restraints as
may otherwise flow from the language of the Charter.
Federal Court Act, section 18 satisfied the first condition set
out in /TO case in order for the Federal Court to have
jurisdiction, i.e. that there be a statutory grant of jurisdiction
by the federal Parliament. Both declaratory relief and certio-
rari are referred to in paragraph 18(a). A Senate Committee is
either a "body" or consists of "persons" and is therefore within
the definition of "federal board, commission or other tribunal".
Further, the Committee was exercising or purporting to exer
cise jurisdiction or powers conferred by or under an Act of
Parliament, and not under the Constitution. The Parliament of
Canada Act provides that the Senate and the House of Com
mons enjoy the privileges, immunities and powers enjoyed by
the Commons House of Parliament of the United Kingdom at
the time of Confederation. Whatever the scope and legal basis
of Parliament's privileges at Confederation, by the 1868 statute
they were placed on a statutory basis and continue to be so. The
Parliament of Canada Act and its predecessors are clearly Acts
of Parliament as referred to in section 2 of the Federal Court
Act. The other two conditions (that the matters in question
involve federal law and that such law be a "law of Canada"
within the meaning of section 101 of the Constitution Act,
1867) are met by sections 4 and 5 of the Parliament of Canada
Act, a valid federal enactment.
As to the procedural issues, the procedure chosen by the Law
Clerk was proper. Obiter dicta in House of Commons v.
Canada Labour Relations Board was authority for the proposi
tion that if the Senate lacked status to appear, standing could
be granted to an officer of the Senate. The Law Clerk had
sufficient interest to raise the matter before the Court.
Delay in moving to strike is not normally a barrier where the
ground is lack of reasonable cause of action for jurisdictional or
other like reasons going to the legal validity of the claim. Also,
where a defendant has not pleaded to the merits and has raised
the legal validity of the action from the outset in the statement
of defence, and where there is no prejudice to the plaintiff, a
court should not refuse to hear a motion to strike at a later
date.
The Senate is not a body corporate and an action against it
eo nomine is a nullity. It should be struck out as a defendant.
The Senate Committee is not a suable entity and should be
struck out. However, the plaintiffs may seek remedies against
the individual members of the Standing Committee at the
relevant time.
Although the dissolution of the 33rd Parliament may have
rendered the issue (the scope of the exercise of parliamentary
privilege) moot, as the issue was raised by a situation of a
recurring nature, but of short duration, the Court should
consider it.
The Queen should be struck out as the Attorney General was
the proper party. Paragraph 18(b) of the Federal Court Act
gives the Trial Division exclusive original jurisdiction to hear
any proceeding for relief "brought against the Attorney Gener
al ... to obtain relief against a federal board, commission or
other tribunal". The Attorney General may be a party even
though he has no authority to direct the board, commission or
tribunal as to how it should proceed. Although not a necessary
party, the Court is entitled to have his views on such an
important matter.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s.
1(d),( f).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. I, 2(b), 32(1)(a).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item I), ss. 18 (as am. by R.S.C.
1970, Appendix II, No. 13, s. 1), 92(14), 101.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 2,
17, 18, 28.
Federal Court Rules, C.R.C., c. 663, RR. 401, 419(1)(f),
425, 1716(2)(a).
Indian Act, R.S.C. 1970, c. 1-6.
Interpretation Act, R.S.C., 1985, c. 1-21, s. 17.
Parliament of Canada Act, R.S.C., 1985, c. P-1, ss. 4, 5.
The Bill of Rights (1688), 1 Wm. III & Mary, 2nd Sess.,
c. 2 (Imp.), s. 9.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735; Operation Dismantle Inc. et
al. v. The Queen et al., [1985] 1 S.C.R. 441; ITO-
International Terminal Operators Ltd. v. Miida Elec
tronics et al., [1986] I S.C.R. 752; Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342.
DISTINGUISHED:
House of Commons v. Canada Labour Relations Board,
[1986] 2 F.C. 372 (C.A.).
REFERRED TO:
Re: Resolution to amend the Constitution, [1981] I
S.C.R. 753; Stockdale v. Hansard (1839), 48 Rev. Rep.
326 (Q.B.); Kielley v. Carson (1842), 13 E.R. 225 (P.C.):
Landers v. Woodworth, [1877-79] 2 S.C.R. 158; Refer
ence Re Bill 30, An Act to Amend the Education Act
(Ont.), [1987] 1 S.C.R. 1148; Newcastle (Duke of) v.
Morris (I870), L.R. 4 H.L. 661; Montreuil v. The
Queen, [ 1976] I F.C. 528 (T.D.); Procter & Gamble Co.
v. Nabisco Brands Ltd. (1985), 62 N.R. 364 (F.C.A.);
Canadian Olympic Association v. Olympic Life Publish
ing Ltd. (1986), I F.T.R. 29I (F.C.T.D.); CRTC v.
Teleprompter Cable Communications Corp., [ 1972] F.C.
1265 (C.A.); Attorney General of Canada v. Canadian
Human Rights Commission, [ 1980] 1 F.C. 142;
(1979), 30 N.R. 569 (C.A.); Bell Canada v. Attorney
General of Canada, [1978] 2 F.C. 801 (T.D.); Canaton-
quin v. Gabriel, [1980] 2 F.C. 792 (C.A.).
AUTHORS CITED
Maingot, J., Parliamentary Privilege in Canada, Scar-
borough, Ontario: Butterworths, 1982.
Ward, N., "Called to the Bar of the House of Commons"
(1957), 35 Can. Bar Rev. 529.
COUNSEL:
Richard Dearden, Alan D. Reid, Q.C. and
Neil R. Wilson for plaintiffs.
W. Ian Binnie, Q.C. and D. I. W. Hamer for
defendants The Senate and the Senate Stand
ing Committee on Internal Economy, Budgets
and Administration.
Yvonne E. Milosevic for defendants Attorney
General of Canada and Her Majesty the
Queen.
SOLICITORS:
Gowling & Henderson, Ottawa for plaintiffs.
McCarthy & McCarthy, Toronto, for defend
ants The Senate and the Senate Standing
Committee on Internal Economy, Budgets
and Administration.
Deputy Attorney General of Canada for
defendants Attorney General of Canada and
Her Majesty the Queen.
The following are the reasons for order ren
dered in English by
STRAYER J.:
Relief Sought
These are two motions to have all of the defend
ants struck out of this action. One motion is
brought by Raymond L. du Plessis, Law Clerk and
Parliamentary Counsel to the Senate on behalf of
those defendants described as "the Senate" and
"The Senate Standing Committee on Internal
Economy, Budgets and Administration". His
motion is brought under paragraph 419(1)(f) of
the Federal Court Rules [C.R.C., c. 663] on the
ground that the action is an abuse of the process of
the Court. The other motion is brought on behalf
of the defendants the Attorney General of Canada
and Her Majesty the Queen, asking that they be
struck out pursuant to Rule 419(1) (a) on the
ground that as against them the statement of claim
discloses no reasonable cause of action. In the
alternative they request an order under paragraph
1716(2)(a) that they cease to be parties on the
grounds that they have been improperly or
unnecessarily made parties to the action.
Facts
As in any motion to strike, I must assume that
for the purpose of these motions the allegations in
the statement of claim are true. I will summarize
those allegations briefly.
The corporate plaintiff is the publisher and pro
prietor of The Ottawa Citizen, a daily newspaper,
and the individual plaintiff Charles Rusnell is a
reporter for the Citizen. In June, 1988 the Senate
Standing Committee on Internal Economy, Budg
ets and Administration (hereinafter "The Senate
Committee") began investigating allegations
against Senator Hazen Argue involving his use of
Senate funds and services. The Senate Committee
established a sub-committee on or about July 7,
1988 to examine and report upon those allegations
and it submitted a report to the Senate Committee
dated July 29, 1988. In the course of its examina
tion it heard evidence from fourteen witnesses. The
Senate Committee subsequently considered this
report on at least one occasion at a meeting of
August 18, 1988.
All of these meetings of the Senate Committee
and its sub-committee were held in camera. At
various times Charles Rusnell requested that he be
allowed to attend the hearings of the Senate Com
mittee or the sub-committee and these requests
were refused. On June 23, 1988 and on August 18,
1988 Rusnell and his counsel waited outside the
place of meeting of the Senate Committee which
was closed to the public and protected by security
guards. Rusnell was allowed through counsel to
make a written submission on June 24, 1988 sup
porting his request for access to the hearings, but
this produced no change in the position of the
Committee. He was advised twice by Senator
Royce Frith, Deputy Chairman of the Senate
Committee, on June 23 and on August 18, that the
Committee was maintaining its practice of meet
ing in camera.
On August 22, 1988 the plaintiffs commenced
this action. They seek declarations: that refusals
by the Senate Committee to allow them access to
the hearings infringe the freedom of expression
guaranteed by paragraph 2(b) of 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.)] and are not justified
under section 1 of the Charter; that Rule 73 of the
Senate (which provides that members of the public
may attend any meeting of a committee "unless
the committee otherwise orders") is contrary to
the Charter for the same reasons, as is any refusal
based on Rule 73; that such refusals were also
contrary to paragraphs 1(d) and (J) of the
Canadian Bill of Rights [R.S.C. 1970, Appendix
III] "and contrary to the common law"; and that
refusals to allow the plaintiffs to make oral
representations to the Committee on their right of
access were a breach of the duty of the Senate
Committee to receive and consider representations.
Further the plaintiffs seek certiorari to quash the
decisions of the Senate Committee to hold these in
camera hearings and an injunction against the
Committee continuing to refuse access of the
plaintiffs to such hearings.
It appears to be common ground, and I concur,
that what is involved here is the legal scope of a
privilege of Parliament, namely the power of each
House to determine who shall be admitted to its
sessions and those of its committees.
The parties have raised a number of technical
issues which I will deal with in due course. The
principal issue, however, is that of the jurisdiction
of courts in general, and in particular of this
Court, to review the manner of exercise of parlia
mentary privileges.
Conclusions
Criteria for Striking Out
These criteria are well established. As confirmed
by the Supreme Court of Canada, all the facts
pleaded in the statement of claim must be deemed
to have been proven and the Court should strike
out a claim
... only in plain and obvious cases and where the Court is
satisfied that "the case is beyond doubt".'
Jurisdiction of the Courts Generally
Counsel for the Law Clerk and Parliamentary
Counsel to the Senate contended that the only
issue for me to decide was whether jurisdiction to
consider such a matter resided in the Federal
Court or whether it is in the exclusive domain of
"courts of inherent jurisdiction". By this latter
expression he was referring to superior courts
created by provincial statutes pursuant to the
jurisdiction conferred in head 14 of section 92 of
the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)], as con
trasted to superior courts created by federal stat
ute pursuant to section 101 of the same Act. In
effect he argued that if there is any such jurisdic
tion in any courts to apply constitutional restraints
to the exercise of privileges by the Senate or its
committees, that jurisdiction resides in "courts of
inherent jurisdiction". He agreed that the implica
tion of this would be that the plaintiffs could bring
such an action to seek review of a federal institu
tion in the superior court of any, and indeed all, of
the provinces. Conceivably the plaintiffs could
pursue such actions in the superior court of several
provinces seeking a favourable judgment in at least
one. At the same time, according to counsel for
this applicant, the Federal Court of Canada would
have no jurisdiction in the matter.
While counsel suggested this was the real issue
for determination, in fact a substantial part of his
' Attorney General of Canada v. Inuit Tapirisat of Canada
et al., [1980] 2 S.C.R. 735, at p. 740; see also Operation
Dismantle Inc. et al. v. The Queen et al., [1985] I S.C.R. 441,
at pp. 475-477.
submission was really to the effect that no court
has jurisdiction to apply the requirements of the
Canadian Charter of Rights and Freedoms to the
Senate or its committees. This sweeping proposi
tion was based on alleged constitutional principles
and the rules of statutory interpretation.
With respect to the constitutional argument,
counsel cited section 9 of the The Bill of Rights
(1688) z which stated
That the freedome of speech and debates or proceedings in
Parlament ought not to be impeached or questioned in any
court or place out of Parlament.
No doubt The Bill of Rights (1688) can be said in
general to be part of the Constitution of Canada,'
having been adopted by reference in the preamble
to the Constitution Act, 1867 which states that
Canada is to have a "Constitution similar in Prin
ciple to that of the United Kingdom". One must,
however, apply The Bill of Rights (1688) with
some caution to contemporary Canada. That great
document, adopted at the conclusion of the Glori
ous Revolution, was primarily designed to consoli
date the Protestant ascendency and ensure the
supremacy over the King and the Royal Courts of
a Parliament composed exclusively of male Pro
testant members of the middle and upper classes.
In Canada section 9 has never been interpreted
since Confederation as limiting the power of the
courts to determine whether Parliament has acted
within the limits imposed on it by the distribution
of powers laid down by the Constitution Act, 1867.
With particular reference to the exercise of parlia
mentary privileges, the courts both in the United
Kingdom and in Canada have, notwithstanding
section 9, been prepared to review the exercise of
alleged parliamentary privileges where that exer
cise has impinged on the rights of individuals. 4
There is nothing in such jurisprudence to suggest
that either the Judicial Committee of the Privy
2 1 Wm. III & Mary, 2nd Sess., c. 2 (Imp.).
3 See Re: Resolution to amend the Constitution, [1981] I
S.C.R. 753, at p. 785.
4 See e.g. Stockdale v. Hansard (1839), 48 Rev. Rep. 326
(Q.B.); Kielley v. Carson (1842), 13 E.R. 225 (P.C.); Landers
v. Woodworth [1877-79], 2 S.C.R. 158 and the numerous cases
referred to therein.
Council or the Supreme Court of Canada felt
precluded from such review by The Bill of Rights
(1688).
What is more important for present purposes,
the adoption of the Charter has fundamentally
altered the nature of the Canadian Constitution.
The Constitution Act, 1867 contained few express
guarantees of personal rights and liberties—guar-
antees which the courts could enforce as against
Parliament, legislatures, and governments. The
Charter changed all that. It gave paramount value
to certain rights and liberties of the individual and
authorized the courts to enforce those rights and
liberties as against those public bodies (including
Parliament) which are referred to in section 32.
Thus our Constitution in this respect is no longer
"similar in principle to that of the United King
dom". That is surely what much of the debate was
about in Canada over the adoption of the Charter.
That is why some statesmen and jurists in the
United Kingdom rejoice that their Constitution is
not similar in principle to ours. I accept that the
Charter should not be automatically assumed to
override other pre-existing, express, provisions of
the Constitution. 5 I believe, however, that it must
be taken to have superceded any implied constitu
tional immunity, if such there were, from judicial
review of the exercise by organs of Parliament of
their alleged privileges, at least where such exer
cise is said to infringe individual rights and free
doms guaranteed by the Charter. Other branches
of government have had to accept this consequence
of the Charter and so must parliamentary
committees.
It is therefore not "plain and obvious" to me,
nor is the matter "beyond doubt" that all courts
including the Federal Court of Canada are without
jurisdiction to undertake such a review. Of course
I need not, and do not, venture any conclusion as
to what the result of that review might be. In
5 Reference Re Bill 30, An Act to Amend the Education Act
(Ont.), [1987] 1 S.C.R. 1148, at pp. 1197-1198.
particular, it will be necessary for the plaintiffs to
convince the Court that freedom of the press
includes access to such meetings. If they do, the
defendants will have an opportunity, if they so
plead, to show that such a limit is justifiable. None
of those issues are addressed or concluded here.
With respect to the argument based on statutory
interpretation, counsel relied on the statement of
the Federal Court of appeal in House of Commons
v. Canada Labour Relations Board 6 as follows:
It is a well established principle that an express provision of a
statute is necessary to abrogate a privilege of Parliament or its
members.
In support of this principle Pratte J. on behalf of
the Court cited the decision in Newcastle (Duke
of) v. Morris.' While the particular relevance of
this principle to the jurisdiction of the Federal
Court will be considered below, this argument if
correct would equally preclude any court (even
those of "inherent jurisdiction") from enforcing a
statutory limitation on a parliamentary privilege
unless the intention to limit was expressly stated in
the statute. Assuming that what is involved in the
present case is an "abrogation" of the asserted
privilege of Senate committees to exclude the
public when the expenditure of public funds is
under discussion, the principle of statutory inter
pretation as enunciated by Pratte J. is not relevant
here as this case arises under the Charter. The
principal assertion of the plaintiffs (I refrain from
dealing with their reliance on the Canadian Bill of
Rights as it is unnecessary for me to do so) is that
paragraph 2(b) of the Charter has now limited the
exercise of a parliamentary privilege. By para
graph 32(1)(a) of the Charter, its provisions are
made applicable
32. (1) ...
(a) to the Parliament and government of Canada in respect
of all matters within the authority of Parliament ....
It is equally a principle of statutory interpretation
6 [1986] 2 F.C. 372, at p. 384.
7 (1870), L. R. 4 1-1.L. 661.
that no enactment is to affect Her Majesty's rights
or prerogatives unless expressly referred to therein,
a principle which is codified in the Interpretation
Act. 8 However in the Operation Dismantle case 9
in 1985 the Supreme Court had little difficulty in
finding that by virtue of section 32, the Charter
had been made applicable so as potentially to limit
the exercise of the royal prerogative. I find it
difficult to believe that section 32 does not also, in
referring to "Parliament", impose on the constitu
ent elements of Parliament such restraints as may
otherwise flow from the language of the Charter
just as the reference to "government" in section 32
makes the Charter binding on every component
and officer of government while acting as such. I
therefore find that the argument based on statu
tory interpretation is irrelevant as the alleged
"abrogation" would be imposed by the Charter.
Jurisdiction of the Federal Court
The Supreme Court of Canada has held that
three conditions must be met to establish the
jurisdiction of the Federal Court in a given case: 10
1. There must be a statutory grant of jurisdiction by the
federal Parliament.
2. There must be an existing body of federal law which is
essential to the disposition of the case and which nourishes the
statutory grant of jurisdiction.
3. The law on which the case is based must be "a law of
Canada" as the phrase is used in s. 101 of the Constitution Act,
1867.
It is necessary to consider whether those conditions
have been met in this case. This involves determin
ing whether there is an assignment of jurisdiction
by Parliament through the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] or other statute
and, if so, whether there are federal laws in ques
tion which may be regarded as "laws of Canada".
It is asserted by the plaintiffs that a statutory
grant of jurisdiction can be found in sections 17
and 18 of the Federal Court Act. The relevant
portion of section 17 is as follows:
R.S.C., 1985, c. 1-21, s. 17.
9 Supra note 1, at pp. 463-464.
1 °17'0—International Terminal Operators Ltd. v. Miida
Electronics et al., [1986] 1 S.C.R. 752, at p. 766.
17. (1) The Trial Division has original jurisdiction in all
cases where relief is claimed against the Crown and, except
where otherwise provided, the Trial Division has exclusive
original jurisdiction in all such cases.
Section 18 provides:
18. The Trial division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
To interpret the scope of section 18 it is necessary
to have regard to the definition of "federal board,
commission or other tribunal", as used therein, as
is provided in section 2 of that Act as follows:
2. In this Act
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of the Parliament of Canada, other than any such body
constituted or established by or under a law of a province or
any such person or persons appointed under or in accordance
with a law of a province or under section 96 of The British
North America Act, 1867;
For reasons which will be explained below, I
have serious doubts that section 17 is applicable to
the present action.
It appears to me, however, that such an action
could be entertained by this Court under section
18 against a committee of the Senate if properly
named in the action and properly served. What is
sought here is declaratory relief and certiorari,
matters both referred to in paragraph 18(a) of the
Federal Court Act. While in normal parlance one
might not refer to a committee of the Senate as a
"federal board, commission or other tribunal",
that expression is specially defined in section 2 of
the Act as quoted above. It appears to me clear
that a committee of the Senate is either a "body"
or consists of "persons" and therefore is potentially
within the definition. Further, I have concluded
that in this case the committee in question is
alleged to have been "exercising or purporting to
exercise jurisdiction or powers conferred by or
under an Act of the Parliament .... "
It is the position of the Law Clerk and Parlia
mentary Counsel to the Senate, that the Senate or
its committees in the exercise of their privileges
are exercising powers under the Constitution and
not under a law of Parliament. This theory in part
depends on the proposition that at Confederation
the Houses of the Canadian Parliament automati
cally and by implication were granted all the
privileges, immunities and powers enjoyed by one
or both of the Houses of the United Kingdom
Parliament because, according to the preamble to
the Constitution Act, 1867 Canada was to have a
"constitution similar in principle to that of the
United Kingdom". But here as elsewhere the gen
erality of that statement must be taken to be
qualified by specific provisions of our written con
stitution. Section 18 of the Constitution Act, 1867
itself specifically provided instead that the privi
leges, immunities and powers to be enjoyed by the
Senate and House of Commons "shall be such as
are from time to time defined by Act of the
Parliament of Canada". It also limited Parlia
ment's jurisdiction in this respect by providing that
the privileges so defined should never exceed those
exercised by the House of Commons of the United
Kingdom at the time of Confederation. This origi
nal version of section 18 was subsequently repealed
and reenacted in 1875 in the form in which it now
exists, as follows:
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 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. HH
'I Parliament of Canada Act, 1875 (U.K.), 38-39 Vict.,
c. 38.
On May 22, 1868 assent was given to an Act of
the Parliament of Canada defining the privileges,
immunities and powers of the Senate and House of
Commons to be those enjoyed by the U.K. House
of Commons at the time of Confederation. It also
provided that such privileges, immunities and
powers were deemed to be "part of the general and
public law of Canada". 12 The relevant current
provisions to this effect, now found in the Revised
Statutes of Canada, 1985, are identical to those in
effect at the time of the events in question in this
case. They are found in the Parliament of Canada
Act" as follows:
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.
It is the thesis of the Law Clerk and Parliamen
tary Counsel to the Senate, if I understand it
correctly, that such privileges of the Senate pre
existed their "definition" by statute in 1868 and
they continue to have an existence independent of
the Parliament of Canada Act or its predecessors.
That Act is at best only a "definition" of those
privileges. It appears to me to be debatable wheth
er any given privilege was impliedly conferred on
the Senate prior to the Acts of the Canadian
Parliament defining parliamentary privilege.
There was certainly substantial jurisprudence of
12 S.C. 1868, 31 Vict., c. 23, ss. 1, 2.
" R.S.C., 1985, c. P-1.
high authority 14 prior to Confederation holding
that colonial legislatures did not enjoy the same
privileges as the U.K. Parliament. Referring to
such jurisprudence, one eminent author has
explained section 18 of the Constitution Act, 1867
as follows:
Consistently with this judicial opinion, the British North
America Act of 1867 did not expressly provide that all British
parliamentary practices could be assumed by the new Canadian
legislature. However, the act did allow Canada to place "the
Privileges, Immunities, and Powers" of the Dominion Parlia
ment on a statutory foundation, for they were to be "such as
are from Time to Time defined by Act of the Parliament of
Canada", provided that they never exceeded those held at the
passing of the B.N.A. Act by the United Kingdom Parliament
and its members (section 18). 15
Therefore whatever the scope and legal basis of
Parliament's privileges were at Confederation, by
the 1868 statute they were placed on a statutory
basis and continue to be so. The Parliament ,of
Canada Act and its predecessors are clearly Acts
of Parliament as referred to in section 2 of the
Federal Court Act. Further, the power to legislate
on the subject of privileges, immunities and powers
of the respective Houses of Parliament is in
essence a legislative power to control the privi
leges, immunities and powers which each House of
Parliament and its committees shall enjoy. It is
open to Parliament to "define" those privileges,
etc. very narrowly or very broadly up to the level
enjoyed by the U.K. House of Commons, and in
doing so Parliament confers jurisdiction or powers
on those exercising them including the power of
each House to make its own rules. The fact that
the Parliament of Canada has adopted by refer
ence the recognized principles governing the privi
leges, etc. of the U.K. House of Commons does not
mean that the Parliament of Canada has not legis
lated on the subject. It has simply taken the line of
least effort in doing so. Parliament as a whole,
including the Queen, the Senate, and the House of
Commons has collectively adopted by reference a
14 See Kielley v. Carson, supra, note 4; other pre-Confedera
tion decisions to like effect are discussed at length in Landers v.
Woodworth, supra, note 4.
15 Ward, N., "Called to the Bar of the House of Commons"
(1957), 35 Can. Bar Rev. 529, at p. 531.
set of principles which govern the privileges enjoy
able by each Chamber and its committees and
such expression of those privileges as there may be
in the Rules of each House. The exercise of those
privileges, immunities and powers must surely be
the exercise or purported exercise of "jurisdiction
or powers conferred by or under an Act of Parlia
ment" as described in section 2 of the Federal
Court Act. This renders the Senate Committee in
question, for the purposes of the Federal Court
Act, a "federal board, commission or other tribu
nal" and gives the Trial Division jurisdiction under
section 18 of that Act.
This is the literal meaning of section 2 of the
Federal Court Act. It leads to no absurdity, since
the role of the Federal Court is to review for
legality the actions of public authorities of one sort
or another exercising governmental powers under
Acts of Parliament. The result may be surprising
to some, but it is not the only situation where
actions of public or quasi-public bodies, exercising
powers under federal laws, are reviewed by this
Court even where such bodies are not in any way
part of the federal executive branch of govern
ment. For example, it is well established that the
councils of Indian bands acting under the Indian
Act [R.S.C. 1970, c. I-6] are subject to review in
this Court. 16
The first condition for Federal Court jurisdic
tion as set out above, namely the existence of a
statutory grant of jurisdiction by Parliament, has
thus been met. The other two conditions require
that the matters in question involve federal law
and that such law be a "law of Canada" within the
meaning of section 101 of the Constitution Act,
1867.
16 Canatonquin v. Gabriel, [ 1980] 2 F.C.792 (C.A.).
The federal law in question here is essentially
sections 4 and 5 of the Parliament of Canada Act
as quoted above. Even if some of the law in
question has its origins in a kind of common law of
Parliament or lex parliamenti, Parliament itself by
section 5 of the Parliament of Canada Act states
that:
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 ....
It is obivous that this is a valid federal enactment,
clearly authorized by section 18 of the Constitu
tion Act, 1867, adopting British law as federal law.
Thus conditions 2 and 3 for the existence of Feder
al Court jurisdiction are established.
I therefore conclude that this Court has jurisdic
tion to hear such an action if otherwise properly
constituted. I turn now to a number of other issues
relating to the propriety of those motions to strike
and the suability of the various defendants named
in the statement of claim.
Status of Law Clerk and Parliamentary Counsel
to Make This Application
The plaintiffs contend that as the Law Clerk
and Parliamentary Counsel to the Senate is not a
party to this action he has no status to apply to
have the Senate and Senate Committee struck out.
It is said that he is merely seeking a legal opinion
which would not be binding on those defendants
should it turn out to be adverse to them. It is
further argued that there are alternative means for
these two defendants to raise similar objections by
means of filing a conditional appearance under
Rule 401.
As these defendants assert that they are not
suable entities it is somewhat debatable as to
whether they could have resort to Rule 401. I need
not decide that as I believe the procedure chosen
was one open to the applicant Law Clerk and
Parliamentary Counsel. I respectfully agree with
the obiter dicta of Hugessen J. in House of Com
mons v. Canada Labour Relations Board'? that, if
the House of Commons lacked status to appear as
an applicant, standing could be granted to an
officer of the House to make an application under
section 28 of the Federal Court Act. I think the
same may be said of the present application, par
ticularly having regard to the fact that the ques
tion of jurisdiction is involved. This would be a
matter which the Court could have considered
proprio motu, and it is surely one in which the
Law Clerk and Parliamentary Counsel to the
Senate has sufficient interest to raise the matter
before this Court.
Delay in Motion to Strike
The plaintiffs object to the motion to strike by
the named defendants Her Majesty the Queen and
the Attorney General of Canada on the ground
that, having filed a statement of defence on Sep-
tember 28, 1988 these defendants could not some
seven months later apply, as they did on May 4,
1989, to have the statement of claim struck out.
It should first be noted that their application is
under paragraph 419(1)(a) of the Rules, based on
a lack of a reasonable cause of action against
them. Second, their statement of defence did not
plead to the merits of the case, but simply alleged
that they were not necessary or proper parties to
the action.
There is ample jurisprudence recognizing that
delay in moving to strike is not normally a barrier
where the ground is lack of a reasonable cause of
action for jurisdictional or other like reasons going
17 Supra, note 6, at p. 389, n. 20.
to the legal validity of the claim." Moreover,
where a defendant has not pleaded to the merits
and has raised the legal validity of the action from
the outset in his statement of defence, and where
no special circumstances such as prejudice to the
plaintiff can be demonstrated, a court should not
refuse to entertain such a motion at a later date. I
therefore find that these defendants were entitled
to bring this motion when they did.
Suability of the Senate and the Standing
Committee
These two named defendants contend that they
are not legal persons and therefore cannot be sued.
I accept that the Senate is not a body corporate 19
and an action against it eo nomine is a nullity. I
therefore conclude it should be struck out as a
defendant, and as I can see no necessity for the
entire membership of the Senate being brought
back in the proceedings by other means I will
make no order in that respect.
As for the Senate Committee I accept also that
it is not a suable entity as such. Nor has it an
organization and title established by statute which
might suffice, for purposes of section 18 review, to
allow it to be proceeded against by that title. 20
Consistently with my finding that members of
such committees come within the definition of a
"federal board, commission or tribunal" for pur
poses of section 18 review, however, I believe it is
open to the plaintiffs to name the members of the
Standing Committee on Internal Economy, Budg
ets and Administration as that membership stood
at the time of the events in question and seek the
'" See e.g. Montreuil v. The Queen, [ 1976] 1 F.C. 528
(T.D.), at p. 529; Procter and Gamble Co. v. Nabisco Brands
Ltd. (1985), 62 N.R. 364 (F.C.A.), at p. 366; Canadian
Olympic Association v. Olympic Life Publishing Ltd. (1986), 1
F.T.R. 291 (F.C.T.D.), at p. 293.
19 House of Commons case, supra, note 6.
20 See, e.g., CRTC v. Teleprompter Cable Communications
Corp., [ 1972] F.C. 1265 (C.A.), at p. 1267; Attorney General
of Canada v. Canadian Human Rights Commission, [1980] 1
F.C. 142, at pp. 142-145; (1979), 30 N.R. 569 (C.A.), at pp.
569-571.
remedies against those members. It was that group
to which the plaintiffs intended to refer when the
statement of claim was issued. An amendment for
this purpose would be in the nature of a correction
of name as contemplated by Rule 425. Indeed, it
appears to me that the objection which has been
taken on behalf of that Committee is surprisingly
technical for a public body of this sort to take in
the face of a legal challenge to its authority.
I will therefore order the Senate Committee as
such struck out of the statement of claim but give
leave to the plaintiffs to amend their statement
naming as defendants those Senators who were
members of the Committee at the time in question.
As I understand the lex parlementi, members can
always be served with statements of claims in civil
actions, 21 but it may be that they will now agree to
accept service through counsel and facilitate a
consideration of the substantive issues.
Effect of Dissolution of 33rd Parliament
It is argued by the Law Clerk and Parliamen
tary Counsel to the Senate that as the 33rd Parlia
ment, during which the events in question took
place, was dissolved on October 1, 1988 the Senate
and its Committee as they existed at that time are
no more. Much authority was presented to demon
strate that dissolution of Parliament for the pur
poses of an election has the effect of dissolving
both Houses.
I do not think this argument worthy of much
consideration. As I have indicated above, I believe
that in lieu of the Senate and Senate Committee as
defendants the plaintiffs should be entitled to sue
the individual members of the Senate Committee
as it was constituted in June, July, and August of
1988 during the 33rd Parliament. It was the activi
ties and decisions of the members of that Commit
21 Maingot, J., Parliamentary Privilege in Canada, Scarbor-
ough, Ontario: Butterworths, 1982, at pp. 130-137.
tee which are complained of. If the objection
founded upon dissolution of Parliament has any
merit, it is to the effect that the issue is now moot.
But I am satisfied that even if in theory there is an
element of mootness because neither the Senate
nor the Committee as they existed in the summer
of 1988 are now extant, this is a situation where a
court should exercise its discretion in favour of
dealing with the matter. As Sopinka J. said on
behalf of the Supreme Court of Canada in the
recent Borowski case, 22 where the issue is raised
by situations of a recurring nature but of brief
duration it may be appropriate for a court to
consider it. In the present case the defendants as
presently named seemingly take pride in the fact
that the meetings of this Committee are always
held in camera and it is fair to assume that, in the
absence of some judicial determination inconsist
ent with that practice, such will continue. It there
fore appears to me to involve an issue of a recur
ring nature which can legitimately be considered,
even if in technical terms the Committee and the
Chamber to which it belongs were "dissolved" in
the interim and were resurrected only as part of
the 34th Parliament.
Validity of Service on the Speaker
Counsel for the Law Clerk and Parliamentary
Counsel to the Senate accepted service of the
statement of claim in this action as if service had
been made on the Speaker, but has taken the
position throughout that such service was not ser
vice on the Senate or on the Senate Committee. As
I have decided that neither the Senate nor the
Senate Committee as such are proper defendants I
need consider this question no further.
Her Majesty as Defendant
Counsel for Her Majesty in applying to have
Her removed as a defendant has contended that
the Crown is in no way responsible for the activi
ties of the Senate. Therefore an action cannot be
22 Borowski v. Canada (Attorney General), [1989] 1 S.C.R.
342, at p. 360.
brought against the Crown under section 17 of the
Federal Court Act.
I have very serious doubts that an action of this
nature can be regarded as an action against the
Crown where the claims do not involve the activi
ties of servants of the Crown, the exercise of
executive authority, or property or financial inter
ests of the Crown. Having regard to the conclu
sions I have reached as to the Attorney General
being a proper party, I will order Her Majesty
struck out of the action under paragraph
1716(2)(a) on the basis that She has been
unnecessarily made a party.
The Attorney General of Canada as Defendant
Counsel for the Attorney General of Canada
argues that the Attorney General can only be sued
as a representative of the Crown. It would there
fore follow that, as I have struck the Crown out of
the proceedings as having no interest or responsi
bility in the matter, I should also strike out the
Attorney General.
It appears to me he should not be struck out.
Paragraph 18(b) of the Federal Court Act gives
the Trial Division exclusive original jurisdiction to
hear any proceeding for relief
18... .
(b) ... brought against the Attorney General of Canada, to
obtain relief against a federal board, commission or other
tribunal.
As I have already concluded that for purposes of
section 18 the Senate Committee is a federal
board, commission or other tribunal, the Attorney
General of Canada can be joined as a party in
respect of the declaratory relief being sought. It
has been held that in such circumstances the
Attorney General can be added as a defendant
even where he has no authority to direct the board,
commission or tribunal as to how it should
proceed. 23
23 Bell Canada v. Attorney General of Canada, [ 1978] 2 F.C.
801 (T.D.), at pp. 805-806.
While the Attorney General may not be a neces
sary party, he is in my view a proper party and it
would have been open to the Court to add him of
its own motion. 24 The Court is entitled to have the
views of the Attorney General on such an impor
tant matter. He has of course the liberty to take
whatever position seems to him most consistent
with government under the rule of law. If the
plaintiffs do not amend their statement of claim
within the time allowed by my order, however, the
Attorney General should be struck out and the
action dismissed. I do not think it would be appro
priate for him to remain the sole defendant in an
action to review the decisions of a body not part of
the federal executive.
Disposition of the Applications
An order will therefore be issued striking out
both the Senate and the Senate Committee as
defendants, but with leave to the plaintiffs to file
an amended statement of claim within thirty days
from the date hereof, naming as defendants the
individual members of the Senate Committee
during the period of June-August, 1988. Her
Majesty the Queen will also be struck out as a
party without costs. Otherwise, costs will be in the
cause. Although the Law Clerk and Parliamentary
Counsel to the Senate has in effect succeeded on
his motion, those whom he represents have not
succeeded in substance. I therefore think that any
disposition of costs should depend on the disposi
tion of the action itself.
If, however, the plaintiffs fail to amend their
statement of claim as permitted herein, the action
will be deemed dismissed upon the expiry of the
time allowed for filing an amendment, with costs
payable to the Law Clerk and Parliamentary
Counsel to the Senate, and to the Attorney
General.
24 CRTC v. Teleprompter case, supra, note 20, at p. 1266.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.