Kealey v. Canada et al., (1991) 139 N.R. 189 (FCA)

• Judge: Mahoney, Stone and MacGuigan, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 11, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 139 N.R. 189 (FCA)

Kealey v. Can. (1991), 139 N.R. 189 (FCA)

MLB headnote and full text

Glen Kealey (appellant) v. Her Majesty the Queen, the Attorney General of Canada, Norm Inkster, Andre Potvin, Brian Mulroney, Harvey Andre and Doug Lewis (respondents)

(A-823-91)

Indexed As: Kealey v. Canada et al.

Federal Court of Appeal

Mahoney, Stone and

MacGuigan, JJ.A.

September 11, 1991.

Summary:

The Federal Parliament amended the Pub­lic Works Nuisance Regulations. The amendment prohibited demonstrations or loud descriptive noises within 50 metres of Parliament Hill from Monday to Friday. Kealey (the plaintiff) was arrested while demonstrating in contravention of the amendment, was detained in custody and nuisance charges were filed. The charges were later stayed. The plaintiff commenced an action against Her Majesty the Queen, the Attor­ney General of Canada, the R.C.M.P. Com­missioner (Inkster), a member of the R.C.M.P. (Potvin), the Prime Minister of Canada (Mulroney), a federal cabinet mem­ber (Andre) and the Minister of Justice (Lewis). The plaintiff claimed damages and declaratory relief on a number of grounds. All defendants applied to have the action struck out against them.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 46 F.T.R. 107, allowed the applications, except the applica­tion of Her Majesty the Queen, which was allowed in part. The court struck out the statement of claim as against the defendants: the Attorney General, Inkster, Potvin, Mul­roney, Andre and Lewis. The court also struck out certain claims against Her Majesty the Queen. Kealey considered the decision to be a final determination of those matters. Therefore, Kealey submitted his notice of appeal within the 30 days allotted to appeal final determinations. The Registry claimed the appeal was out of time because, as an appeal from an interlocutory matter, it had to be filed within 10 days. Kealey was ordered to show cause why the appeal should not be quashed because of failure to commence within the specified time period.

The Federal Court of Appeal ruled that the notice of appeal was filed within time and that the appeal could proceed.

Practice - Topic 9000

Appeals - Notice of appeal - Time for filing - Interlocutory v. final determination - Kealey was arrested under the Public Works Nuisance Regulations - Kealey sued, inter alia, the Queen and the Prime Minister on the grounds of wrongful arrest, breach of statutory duty, etc. - The Fed­eral Court of Canada, Trial Division, struck out the actions against all of the defendants except the Crown on the grounds of failure to disclose a cause of action - Kealey filed a notice of appeal within the 30 day period specified for appeals of final determinations - The Crown submitted that the appeal was out of time because it was filed outside the 10 day period specified for interlocutory matters - The Federal Court of Appeal held that the appeal was within time.

Cases Noticed:

Binkley v. Matera, [1973] 1 O.R. 386, refd to. [para. 3].

Statutes Noticed:

Federal Court Act, R.S.C. 1985, c. F-7, sect. 2, sect. 27(1), sect. 27(2) [para. 2].

Counsel:

Todd McKendrick, for the appellant;

Barbara McIssac, for the respondents, Her Majesty the Queen, the Attorney General of Canada, Norm Inkster and Andre Potvin;

No appearance for the respondents, Brian Mulroney, Harvey Andre and Doug Lewis.

Solicitors of Record:

Bosada & Associates, Ottawa, Ontario, for the appellant;

John C. Tait, Q.C., Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondents, Her Majesty the Queen, the Attorney General of Canada, Norm Ink­ster and Andre Potvin;

Tory, Tory, Deslauriers and Binnington, Toronto, Ontario, for the respondents, Brian Mulroney, Harvey Andre and Doug Lewis.

This matter was heard in Ottawa, Ontario, on September 11, 1991, by Mahoney, Stone and MacGuigan, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court by Mahoney, J.A., on the same day.