Larouche v. Wachowich et al., (2015) 611 A.R. 55 (QB)

• Judge: Watson
• Neutral Citation: 2015 ABQB 25
• Citation: (2015), 611 A.R. 55 (QB),2015 ABQB 25,611 AR 55,(2015), 611 AR 55 (QB),611 A.R. 55
• Date: 12 November 2014
• Court: Court of Queen's Bench of Alberta (Canada)

Larouche v. Wachowich (2015), 611 A.R. 55 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.151

Eric Larouche (applicant) v. The Honourable (Former) Chief Justice of the Court of Queen's Bench, A.H. Wachowich, Her Majesty the Queen, and the Clerk of the Court of Queen's Bench of Alberta (Criminal)

(respondents)

(0603 04866; 2015 ABQB 25)

Indexed As: Larouche v. Wachowich et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Watson, J.A., acting ex officio

January 12, 2015.

Summary:

The applicant sought a declaration that a direction by the former Chief Justice of the Court of Queen's Bench to court administrative staff was unlawful and caused a significant interference with the applicant's Charter rights. The impugned direction set a precondition for scheduling judicial interim release review motions. The applicant was not in custody at the time. The direction, in place for at least eight years, was rescinded in 2014. The Crown moved to have the application for certiorari and for declaratory relief declared moot and summarily dismissed (rule 7.3(1)(b), no merit to the claim or part of it).

The Alberta Court of Queen's Bench dismissed the application. The application was moot in all its particulars. The Court also declined to exercise its discretion to hear any part of the application.

Constitutional Law - Topic 5.3

General - General principles - Unwritten constitutional principles - Constitutionalism and the rule of law (incl. access to justice) - [See both Courts - Topic 1410].

Constitutional Law - Topic 8633

Judicial Power - Appointment of judges (s. 96) - Access to courts - The applicant sought a declaration that a direction by the former Chief Justice of the Court of Queen's Bench to court administrative staff was unlawful - The impugned direction set a precondition for scheduling judicial interim release review motions - The applicant was not in custody at the time - The direction, in place for at least eight years, was rescinded in 2014 - The Crown moved to have the application for certiorari and for declaratory relief declared moot - The Alberta Court of Queen's Bench held that the issues of "ultra vires" and the remedy of "certiorari" were moot because there was nothing left to quash or to declare void - Neither of those contentions had any merit in the first place - "[F]or s. 96 courts, certiorari and the rightly hallowed 'great writ' of habeas corpus simply do not lie against any exercise of judicial power (including necessarily incidental administrative judicial power) by a s. 96 judge or court." - As for the declaration remedy aspects, "there is a judicial wisdom involved in choosing not to adjudicate where, in effect, the party seeking the opinion of the Court has nothing directly at stake in the answer, even as to future behaviour by that person." - See paragraphs 45 to 47.

Constitutional Law - Topic 8633

Judicial Power - Appointment of judges (s. 96) - Access to courts - [See both Courts - Topic 1410].

Courts - Topic 1403

Administration - General - Access to courts (incl. access to justice issues) - [See both Courts - Topic 1410].

Courts - Topic 1410

Administration - General - Role of chief justice or chief judge (incl. judicial review) - The applicant sought a declaration that a direction by the former Chief Justice of the Court of Queen's Bench to court administrative staff was unlawful and caused a significant interference with the applicant's Charter rights - The impugned direction set a precondition for scheduling judicial interim release review motions - The applicant was not in custody at the time - The direction, in place for at least eight years, was rescinded in 2014 - The Crown moved to have the application for certiorari and for declaratory relief declared moot and summarily dismissed (rule 7.3(1)(b), no merit to the claim or part of it) - The Alberta Court of Queen's Bench, in granting the motion, stated that "[a]lthough the applicant's 'originating notice' asserts the illegality of 'ultra vires' against the direction, there is no such problem in this case. Within the territorial jurisdiction of the Court, the Court of Queen's Bench as a superior court under s. 96 of the Constitution Act, 1867, possesses 'constant, concurrent and complete' jurisdiction to perform both its inherent and its statutory functions, and all necessarily incidental authority pertaining thereto is also possessed. The Court in exercise of this jurisdiction may err in law, and consequently act unlawfully, but where the jurisdiction is apparent from the outset, there is no question of ultra vires. For similar (indeed allied) reasons, there is no question of certiorari being available against this direction of the Chief Justice" - See paragraph 18.

Courts - Topic 1410

Administration - General - Role of chief justice or chief judge (incl. judicial review) - The applicant sought a declaration that a direction by the former Chief Justice of the Court of Queen's Bench to court administrative staff was unlawful and caused a significant interference with the applicant's Charter rights - The impugned direction set a precondition for scheduling judicial interim release review motions - The Alberta Court of Queen's Bench stated that the applicant "is not out of bounds to argue that, under the Rule of Law, the legality of even a business management direction by a Chief Justice of a superior trial court under s. 96 [of the Constitution Act, 1867] - to the extent that it directly affects the legal right of any person to have access to the Court - would be justiciable by means of a motion for a declaration in the same Court. ... Bringing a motion for a declaration is an available method despite the fact that the only court to which the motion for a declaration could be presented is the same court that promulgated the rule in the first place. ... Only a s. 96 Court has the authority to make general declarations of legality. ... [I]t was entirely open to any member of the Court of Queen's Bench to entertain the applicant's application for a declaration." - See paragraphs 19 to 22.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See first Constitutional Law - Topic 8633].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Practice - Topic 5708.1].

Practice - Topic 5708.1

Judgments and orders - Summary judgments - Bar to application - Merit to claim and facts to substantiate claim - The Alberta Court of Queen's Bench discussed the governing test for summary judgment in Alberta - "From the process perspective, summary judgment can be given if a disposition that is fair and just to both parties can be made on the existing record. ... From the substantive perspective, summary judgment can be granted if, in light of what that fair and just process reveals, there is no merit to the claim. ... [I]n order for the non-moving party's case to have merit, there must be a genuine issue of a potentially decisive material fact in the case which cannot be summarily found against the non-moving party on the record revealed by the 'fair and just process'. The mere assertion of a position by the non-moving party, or the mere hope of the non-moving party that something will turn up at a trial, does not suffice. The key is whether the circumstances require a full regular trial on that issue in order to properly resolve the case" - See paragraphs 12 to 14.

Cases Noticed:

Windsor v. Canadian Pacific Railway Ltd. (2014), 572 A.R. 317; 609 W.A.C. 317; 2014 ABCA 108, refd to. [para. 12].

Sherwood Steel Ltd. v. Odyssey Construction Inc. (2014), 59 C.P.C.(7th) 22; 2014 ABCA 320, refd to. [para. 12].

Maxwell v. Wal-Mart Canada Corp. et al. (2014), 588 A.R. 6; 626 W.A.C. 6; 2014 ABCA 383, refd to. [para. 12].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, refd to. [para. 12].

Lameman et al. v. Canada (Attorney General) et al., [2008] 1 S.C.R. 372; 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26; 2008 SCC 14, refd to. [para. 14].

Ernst v. EnCana Corp. et al. (2014), 580 A.R. 341; 620 W.A.C. 341; 2014 ABCA 285, refd to. [para. 14].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 19].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 19].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93; 44 C.C.C.(3d), refd to. [para. 20].

Alberta Union of Provincial Employees v. Alberta et al. (2014), 566 A.R. 380; 597 W.A.C. 380; 2014 ABCA 43, reconsideration refused (2014), 575 A.R. 338; 612 W.A.C. 338; 2014 ABCA 197, refd to. [para. 20].

R. v. Lloyd (J.R.) (2014), 356 B.C.A.C. 275; 610 W.A.C. 275; 2014 BCCA 224, refd to. [para. 20].

Okwuobi v. Quebec (Attorney General), [2005] 1 S.C.R. 257; 331 N.R. 300; 2005 SCC 16, refd to. [para. 20].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1998] 1 S.C.R. 3; 223 N.R. 21; 212 A.R. 161; 168 W.A.C. 161; 126 Man.R.(2d) 96; 167 W.A.C. 96; 161 Nfld. & P.E.I.R. 124; 497 A.P.R. 124, refd to. [para. 21].

Canadian Broadcasting Corp. et al. v. Canada (Attorney General) et al., [2011] 1 S.C.R. 19; 411 N.R. 23; 2011 SCC 2, consd. [para. 23].

Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) - see Vilardell v. Dunham.

Vilardell v. Dunham (2014), 463 N.R. 336; 375 D.L.R.(4th) 599; 2014 SCC 59, refd to. [para. 25].

R. v. O'Brien (M.D.), [2011] 2 S.C.R. 485; 417 N.R. 52; 304 N.S.R.(2d) 383; 960 A.P.R. 383; 2011 SCC 29, refd to. [para. 35].

Imperial Oil Ltd. v. Calgary (City) et al. (2014), 580 A.R. 125; 620 W.A.C. 125; 374 D.L.R.(4th) 489; 2014 ABCA 231, refd to. [para. 45].

Robinson v. Western Australian Museum, [1977] HCA 46; 138 C.L.R. 283, refd to. [para. 47].

Kuczborski v. Queensland, [2014] HCA 46, refd to. [para. 47].

Director-General Department of Home Affairs v. Mukhamadiva, [2013] ZACC 47, refd to. [para. 47].

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General), [2012] 2 S.C.R. 524; 434 N.R. 257; 325 B.C.A.C. 1; 553 W.A.C. 1; 2012 SCC 45, refd to. [para. 49].

Delgumuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 54].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 56].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 58].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 58].

Haig et al. v. Canada; Haig et al. v. Kingsley, [1993] 2 S.C.R. 995; 156 N.R. 81, refd to. [para. 60].

Ravndahl v. Saskatchewan et al., [2009] 1 S.C.R. 181; 383 N.R. 247; 320 Sask.R. 305; 444 W.A.C. 305; 2009 SCC 7, refd to. [para. 60].

Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623; 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 60].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 13 C.R.(7th) 1; 2014 SCC 54, refd to. [para. 64].

R. v. Vuozzo (A.B.) et al. (2013), 544 A.R. 271; 567 W.A.C. 271; 2013 ABCA 130, refd to. [para. 66].

R. v. Shoker (H.S.) (2006), 353 N.R. 160; 230 B.C.A.C. 1; 380 W.A.C. 1; 2006 SCC 44, refd to. [para. 69].

Statutes Noticed:

Rules of Court (Alta.), rule 7.3(1)(b) [para. 11].

Counsel:

T. Engel, for the applicant;

T. Hurlburt, Q.C., and R.J. Normey, for the respondents.

This motion to dismiss for mootness was heard on November 12, 2014, before Watson, J.A., acting as an ex officio member of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment and reasons on January 12, 2015.