Frezza v. Canada (Minister of National Defence), (2014) 445 F.T.R. 299 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: September 30, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 445 F.T.R. 299 (FC);2014 FC 32

Frezza v. Can. (2014), 445 F.T.R. 299 (FC)

MLB headnote and full text

Temp. Cite: [2014] F.T.R. TBEd. JA.013

John Michael Joseph Frezza (applicant) v. Minister of National Defence Canada (respondent)

(T-1375-12; 2014 FC 32)

Indexed As: Frezza v. Canada (Minister of National Defence)

Federal Court

Russell, J.

January 13, 2014.

Summary:

Frezza was a civilian employee of the Department of National Defence whose employment was terminated. He applied under s. 41 of the Privacy Act for judicial review of two decisions of a delegate of the Minister of National Defence, refusing access to certain personal information he requested under s. 12(1) of the Act. Frezza continued with the application even after he received the information he sought. The Minister moved to strike the application on the basis that it was plain and obvious that it could not succeed. Frezza, self-represented, conceded that the application was moot but requested that the Court nevertheless examine the issues involved and provide declaratory relief. The Minister claimed costs of $5,476.61.

The Federal Court dismissed the application with costs to the Minister fixed at $1,500. The practical result was the same whether the application was dismissed for mootness or struck because it was plain and obvious that it could not succeed.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Crown - Topic 7244 ].

Crown - Topic 7244

Examination of public documents - Freedom of information - Judicial review and appeals - Jurisdiction - The applicant, a self-represented litigant, applied under s. 41 of the Privacy Act for judicial review of two decisions of a delegate of the Minister of National Defence, refusing access to certain personal information he requested - The applicant continued with the application even after he received the information - He conceded that the application was moot but requested that the Court nevertheless examine the issues involved and provide declaratory relief - The Federal Court held that the applicant was seeking relief that the Court did not have the jurisdiction to grant - First, the request for declaratory relief was not a part of the original application - Second, the jurisprudence was clear that the Court had a narrow jurisdiction when it came to s. 41 applications and the relief it could provide - The underlying principle of those cases was that once the information had been provided, there was no other remedy for the Court to provide - Third, this was not the kind of case that, given the agreement between the parties that the application was moot, warranted further consideration and relief from the Court - The applicant's experiences in seeking information under the Act were specific to him - The Court declined to exercise its jurisdiction to decide the matter despite its mootness, guided by the three main factors set out in Borowski v. Canada (Attorney General) (1989) (S.C.C.) - A concern was the lack of a full and complete record upon which to decide the legal questions at issue - As such, this was not a proper case for the Court to answer legal questions that it did not need to answer to settle a live controversy between the parties - A related concern was judicial economy - See paragraphs 51 to 67.

Crown - Topic 7285

Examination of public documents - Freedom of information - Practice - Costs - The applicant, a self-represented litigant, applied under s. 41 of the Privacy Act for judicial review of two decisions of a delegate of the Minister of National Defence, refusing access to certain personal information he requested - The applicant continued with the application even after he received the information - He was offered the opportunity to discontinue on a no-cost basis three times, which he refused - The Minister sought costs of $5,476.61 - The applicant's position was that he was providing a service to Canadians by attempting to have the Court review general practices of the Office of the Privacy Commissioner - The Federal Court dismissed the application with costs to the Minister fixed at $1,500 - There was nothing malicious or vexatious in the applicant wanting to place the issue before the Court - People in the position of the applicant should not be discouraged from raising genuine complaints and bringing them before the Court by imposing substantial cost awards against them - At the same time, there had to be some encouragement to self-represented applicants to examine the issues and the jurisprudence carefully before they put the respondent to the trouble of defending what had in this case become a "fairly obvious case of mootness" - See paragraphs 68 to 73.

Practice - Topic 7106

Costs - Party and party costs - Special orders - Moot cases - [See Crown - Topic 7285 ].

Cases Noticed:

Leahy v. Canada (Minister of Citizenship and Immigration) (2012), 438 N.R. 280; 2012 FCA 227, refd to. [para. 22].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 27].

Savard v. Canada Post Corp. (2008), 324 F.T.R. 311; 2008 FC 671, refd to. [para. 28].

Thurlow v. Canada (Solicitor General) et al. (2003), 242 F.T.R. 214; 2003 FC 1414, refd to. [para. 28].

Canadian Association of Elizabeth Fry Societies v. Canada (Minister of Public Safety) et al. (2010), 368 F.T.R. 211; 2010 FC 470, refd to. [para. 28].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 29].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 32].

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282; 2002 SCC 53, refd to. [para. 32].

Information Commissioner (Can.) v. Canada (Minister of Citizenship and Immigration) et al. (2002), 291 N.R. 236; 2002 FCA 270, refd to. [para. 34].

Information Commissioner (Can.) et al. v. Immigration and Refugee Board (Can.) (1997), 140 F.T.R. 140 (T.D.), refd to. [para. 34].

Kaiser v. Minister of National Revenue (1995), 95 D.T.C. 5416 (F.C.T.D.), refd to. [para. 36].

Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75; 49 F.T.R. 161 (T.D.), refd to. [para. 37].

Davidson v. Canada (Solicitor General), [1987] 3 F.C. 15; 9 F.T.R. 295 (T.D.), affd. [1989] 2 F.C. 341; 98 N.R. 126 (F.C.A.), refd to. [para. 37].

R. v. Duke, [1972] S.C.R. 917, refd to. [para. 38].

R. v. H., [1986] 2 F.C. 71 (T.D.), refd to. [para. 38].

Gough v. National Parole Board, [1991] 2 F.C. 117; 40 F.T.R. 91 (T.D.), refd to. [para. 38].

Gray v. Disability Support Program (Ont.) (2002), 158 O.A.C. 244; 212 D.L.R.(4th) 353 (C.A.), refd to. [para. 38].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 38].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 38].

Megens v. Ontario Racing Commission (2003), 170 O.A.C. 155; 64 O.R.(3d) 142 (Div. Ct.), refd to. [para. 38].

Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 38].

Wheaton v. Canada Post Corp. (2000), 186 F.T.R. 108 (T.D.), refd to. [para. 41].

Connolly v. Canada Post Corp. et al. (2000), 197 F.T.R. 161 (T.D.), affd. [2002] N.R. Uned. 24; 2002 FCA 50, refd to. [para. 41].

Galipeau v. Canada (Procureur général) et al., [2003] N.R. Uned. 181; 2003 FCA 223, refd to. [para. 41].

Lavigne v. Canadian Human Rights Commission, [2011] F.T.R. Uned. 178; 2011 FC 290, refd to. [para. 41].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 41].

Canada (Minister of Public Safety and Emergency Preparedness) v. Maydak (2005), 337 N.R. 249; 2005 FCA 186, refd to. [para. 44].

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588; 176 N.R. 48 (F.C.A.), refd to. [para. 67].

Statutes Noticed:

Privacy Act, R.S.C. 1985, c. P-21, sect. 41 [paras. 1, 30].

Counsel:

John Michael Joseph Frezza, on his own behalf, for the applicant;

Rina M. Li, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on September 30, 2013, before Russell, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated January 13, 2014, at Ottawa, Ontario.