Manley v. Telezone Inc., (2004) 180 O.A.C. 360 (CA)

• Judge: Laskin, MacPherson and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 10, 2003
• Jurisdiction: Ontario
• Citations: (2004), 180 O.A.C. 360 (CA)

Manley v. Telezone Inc. (2004), 180 O.A.C. 360 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JA.004

The Honourable John Manley, in his capacity as Member of Parliament for Ottawa South (appellant) v. Telezone Inc. and The Attorney General of Canada (defendant/appellant)

Telezone Inc. (plaintiff/respondent) v. The Attorney General of Canada (defendant/appellant)

(C40084; C40211)

Indexed As: Manley v. Telezone Inc.

Ontario Court of Appeal

Laskin, MacPherson and Simmons, JJ.A.

January 6, 2004.

Summary:

A motions judge ordered Manley (the Deputy Prime Minister of Canada and Minister of Finance) to attend for examination for discovery in a civil suit no sooner than the 15th day after the commencement of the summer recess of Parliament in 2003. The motions judge held that the parliamentary privilege of testimonial immunity applied only while Parliament was actually sitting and for the first 14 days of an adjournment of Parliament. Manley and the Attorney General of Canada appealed from the motion judge's order.

The Ontario Court of Appeal allowed the appeals and set aside the motion judge's order. The court declared that the parliamentary privilege not to attend as a witness in a civil action applied throughout a session of Parliament and extended 40 days after the prorogation or dissolution of Parliament and 40 days before the commencement of a new session.

Crown - Topic 2207

Crown privilege or prerogative - Parliamentary privilege - A motions judge held that the parliamentary privilege of testimonial immunity applied only while Parliament was actually sitting and for the first 14 days of an adjournment of Parliament - The Ontario Court of Appeal held that the motions judge erred by confining the parliamentary privilege of testimonial immunity to the sittings of Parliament - The proper scope of the privilege was parliamentary sessions, not sittings - The court held that the parliamentary privilege not to attend as a witness in a civil action applied throughout a session of Parliament and extended 40 days after the prorogation or dissolution of Parliament and 40 days before the commencement of a new session - See paragraphs 21 to 44.

Crown - Topic 2207

Crown privilege or prerogative - Parliamentary privilege - Manley (the Deputy Prime Minister of Canada and Minister of Finance) and the Attorney General of Canada appealed from an order which required Manley to attend for examination for discovery in a civil suit - The respondent argued that the court had to review the parliamentary privilege of testimonial immunity and determine whether it was necessary to the proper functioning of Parliament - The respondent further submitted that the temporal context for that inquiry was today, not the time at which the privilege was created nor the time it may have arisen in Canada - The Ontario Court of Appeal held that the temporal context of the necessity inquiry was July 1, 1867 by virtue of s. 18 of the Constitution Act, 1867 and s. 4 of the Parliament of Canada Act - There was a recognized and necessary category of parliamentary privilege relating to testimonial immunity of members of Parliament in 1867 - Whether the privilege was necessary to the proper functioning of Parliament today was a question for Parliament, not the courts - See paragraphs 45 to 52.

Cases Noticed:

New Brunswick Broadcasting Corp. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181, refd to. [para. 15].

R. v. Brown (E.W.) (2001), 197 Nfld. & P.E.I.R. 285; 591 A.P.R. 285 (P.E.I.T.D.), refd to. [para. 27].

Ainsworth Lumber Co. v. Canada (Attorney General) et al. (2003), 181 B.C.A.C. 256; 298 W.A.C. 256 (C.A.), leave to appeal denied [2003] S.C.C.A. No. 296, agreed with. [para. 27].

Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) (2003), 238 F.T.R. 68 (T.D.), disagreed with [para. 27].

Harvey v. New Brunswick (Attorney General) et al., [1996] 2 S.C.R. 876; 201 N.R. 1; 178 N.B.R.(2d) 161; 454 A.P.R. 161, refd to. [para. 49].

Speaker of the Legislative Assembly (Ont.) v. Human Rights Commission (Ont.) (2001), 146 O.A.C. 125; 54 O.R.(3d) 595 (C.A.), refd to. [para. 49].

Statutes Noticed:

Constitution Act, 1867, sect. 18 [para. 16].

Parliament of Canada Act, R.S.C. 1985, c. P-1, sect. 4 [para. 17].

Authors and Works Noticed:

Blackstone, W., Commentaries on the Laws of England (1765), p. 160 [para. 42].

Bourinot, J.G., Parliamentary Procedure and Practice in the Dominion of Canada (4th Ed. 1916), pp. 37 to 46 [para. 19]; 45 to 46 [para. 25].

Canada, Hansard, House of Commons Debates (May 19, 1989), p. 1953 [para. 29].

Canada, Hansard, House of Commons Debates (May 26, 2003), p. 6413 [paras. 30, 31, 52].

Dawson, W.F., Procedure in the Canadian House of Commons (1962), p. 30 [para. 25].

Hansard - see Canada, Hansard, House of Commons Debates.

Maingot, J.P., Q.C., Parliamentary Privilege in Canada (2nd. Ed. 1997), pp. 1 [para. 14]; 12 [para. 13]; 15 [para. 19]; 155 [para. 42]; 158 [para. 25].

Marleau, R., and Montpetit, C., House of Commons Procedure and Practice (2000), p. 81 [para. 25].

May, Erskine, Treatise on the Law, Privileges, Proceedings and Usage of Parliament (21st Ed. 1989), generally [para. 26]; p. 100 [para. 22].

Ward, N., Dawson's The Government of Canada (6th Ed. 1987), p. 115 [para. 25].

Wittke, C., The History of English Parliamentary Privilege (1921), 26 Ohio State University Bulletin 9, p. 52 [para. 42].

Counsel:

Barbara A. McIsaac, Q.C. and Gregory S. Tzemenakis, for The Honourable John Manley;

Peter F.C. Howard and Eliot N. Kolers, for Telezone Inc.;

Paul J. Evraire, Q.C. and Karen Lovell, for The Attorney General of Canada.

These appeals were heard on November 10, 2003, before Laskin, MacPherson and Simmons, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by MacPherson, J.A., and was released on January 6, 2004.