Page v. Mulcair et al., (2013) 431 F.T.R. 180 (FC)

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: April 22, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 431 F.T.R. 180 (FC);2013 FC 402

Page v. Mulcair (2013), 431 F.T.R. 180 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. AP.025

Mr. Kevin Page, Parliamentary Budget Officer (applicant) v. Mr. Thomas Mulcair, Leader of the Opposition, and the Attorney General of Canada (respondents) and the Speaker of the Senate of Canada and the Speaker of the House of Commons (participants)

(T-2096-12; 2013 FC 402; 2013 CF 402)

Indexed As: Page v. Mulcair et al.

Federal Court

Harrington, J.

April 22, 2013.

Summary:

Canada's Parliamentary Budget Officer (PBO) was mandated by statute to "estimate the financial cost of any proposal that relates to a matter over which Parliament has jurisdiction" when requested to do so by "any" Member of Parliament or Senator. Following a request by the Leader of the Opposition (Mulcair) for the PBO to analyze the 2012 federal budget and the impact of staff reduction, the PBO referred the following questions of law and jurisdiction to the Federal Court: "1. Whether it is within the Parliamentary Budget Officer's jurisdiction, pursuant to Parliament of Canada Act RSC 1985, c P-1, s. 79.2, to analyze: a. the extent to which the fiscal savings that are outlined in the Government's Budget are achievable or likely to be achieved; and b. the extent to which the achievement of the savings there outlined would result in fiscal consequences in the longer term. 2. Whether it is within the Parliamentary Budget Officer's jurisdiction, pursuant to Parliament of Canada Act RSC 1985, c P-1, s. 79.3, to request from departments their planned fiscal savings premised on staffing reductions.".

The Federal Court declined to dismiss the PBO's application on the grounds of Parliamentary privilege or on the basis of any principle of statutory interpretation. However, since the PBO had never actually requested data from any government department at Mulcair's request, there was no refusal to provide data. Accordingly, the two questions referred to the court were hypothetical and would not be answered on the ground of non-justiciability.

Courts - Topic 2022

Jurisdiction - Conditions precedent - Requirement of justiciable issue - Canada's Parliamentary Budget Officer (PBO) was mandated by statute to "estimate the financial cost of any proposal that relates to a matter over which Parliament has jurisdiction" when requested to do so by "any" Member of Parliament or Senator - Following a request by the Leader of the Opposition (Mulcair) for the PBO to analyze the 2012 federal budget and the impact of staff reduction, the PBO referred the following questions of law and jurisdiction to the Federal Court: "1. Whether it is within the Parliamentary Budget Officer's jurisdiction, pursuant to Parliament of Canada Act RSC 1985, c P-1, s. 79.2, to analyze: a. the extent to which the fiscal savings that are outlined in the Government's Budget are achievable or likely to be achieved; and b. the extent to which the achievement of the savings there outlined would result in fiscal consequences in the longer term. 2. Whether it is within the Parliamentary Budget Officer's jurisdiction, pursuant to Parliament of Canada Act RSC 1985, c P-1, s.79.3, to request from departments their planned fiscal savings premised on staffing reductions." - The Speakers of the House of Commons and Senate opposed the application on the grounds of Parliamentary privilege - The Federal Court dismissed the application for want of justiciability - The PBO never demanded information from the Deputy Ministers, so there was no decision or refusal to judicially review - The PBO could have proceeded by way of declaration or mandamus - There was no live controversy to be resolved because the application dealt only with hypotheticals - There was no justiciable issue - See paragraphs 48 to 63.

Crown - Topic 2207

Crown privilege or prerogative - General - Parliamentary privilege - The Federal Court discussed the origins and scope of Parliamentary privilege in Canada, stating, inter alia, that "it is no easy task to ascertain with precision the privileges, immunities and powers of the Houses of Parliament as a good part thereof derives from the lex non scripta [unwritten law]. ... Parliamentary privilege is the sum of privileges, immunities and powers without which the Houses and their members could not discharge their functions. Privilege includes such immunity as is necessary so that they may do their legislative work. ... Proof of necessity is required only to establish the existence and scope of a category of privilege. Once established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege is necessary or appropriate. Categories of privilege include freedom of speech, control over debates or proceedings in Parliament, the power to exclude strangers from the House and disciplinary authority over members and non-members who interfere with the discharge of parliamentary duties, including immunity of members from subpoena during parliamentary session" - See paragraphs 22, 25, 26.

Crown - Topic 2207

Crown privilege or prerogative - General - Parliamentary privilege - Canada's Parliamentary Budget Officer (PBO) was mandated by statute to "estimate the financial cost of any proposal that relates to a matter over which Parliament has jurisdiction" when requested to do so by "any" Member of Parliament or Senator - Following a request by the Leader of the Opposition (Mulcair) for the PBO to analyze the 2012 federal budget and the impact of staff reduction, the PBO referred the following questions of law and jurisdiction to the Federal Court: "1. Whether it is within the Parliamentary Budget Officer's jurisdiction, pursuant to Parliament of Canada Act RSC 1985, c P-1, s. 79.2, to analyze: a. the extent to which the fiscal savings that are outlined in the Government's Budget are achievable or likely to be achieved; and b. the extent to which the achievement of the savings there outlined would result in fiscal consequences in the longer term. 2. Whether it is within the Parliamentary Budget Officer's jurisdiction, pursuant to Parliament of Canada Act RSC 1985, c P-1, s.79.3, to request from departments their planned fiscal savings premised on staffing reductions." - The Speakers of the House of Commons and Senate opposed the application on the grounds of Parliamentary privilege - The Federal Court stated that "the Speakers have not discharged the burden upon them to establish that it is necessary to deny the Parliamentary Budget Officer access to the courts on the grounds that such access would render the Houses of Parliament unable to discharge their functions" - Further, if the legislation establishing the position, duties and powers of the PBO infringed Parliamentary privilege, such privilege was legislatively waived - See paragraphs 11 to 47.

Cases Noticed:

R. v. Connolly (1891), 22 O.R. 220 (S.C.), refd to. [para. 15].

R. v. Lavigne (J.H.R.), [2010] O.T.C. Uned. 2084; 2010 ONSC 2084, refd to. [para. 15].

Gagliano v. Canada (Attorney General) et al. (2005), 265 F.T.R. 218; 2005 FC 576, refd to. [para. 15].

Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 18].

House of Commons et al. v. Vaid et al., [2005] 1 S.C.R. 667; 333 N.R. 314; 2005 SCC 30, refd to. [para. 18].

Stockdale v. Hansard (1839), 9 Ad. & E. 1; 12 E.R. 1112 (Q.B.), refd to. [para. 24].

New Brunswick Broadcasting Co. 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. 24].

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. l; 95 A.P.R. 1, refd to. [para. 29].

Bartlett v. Canada (Attorney General) (2012), 434 N.R. 241; 2012 FCA 230, refd to. [para. 29].

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, refd to. [para. 29].

Sheldon Inwentash and Lynn Factor Charitable Foundation v. Minister of National Revenue (2012), 432 N.R. 338; 2012 FCA 136, refd to. [para. 29].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140, refd to. [para. 32].

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. 32].

Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, refd to. [para. 33].

Temple v. Bulmer, [1943] S.C.R. 265, refd to. [para. 38].

Terrasses Zarolega Inc. et al. v. Régie des Installations Olympiques, [1981] 1 S.C.R. 94; 38 N.R. 411, refd to. [para. 42].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 42].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 45].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 45].

Southam Inc. and Rusnell v. Canada (Attorney General) et al., [1990] 3 F.C. 465; 114 N.R. 255 (F.C.A.), dist. [para. 49].

LeBar v. Canada, [1989] 1 F.C. 603; 90 N.R. 5 (F.C.A.), refd to. [para. 54].

Dyson v. Attorney General, [1911] 1 K.B. 410 (C.A.), refd to. [para. 54].

Lawson v. Accusearch Inc. (2007), 308 F.T.R. 186; 2007 FC 125, refd to. [para. 55].

Canada (Attorney General) v. Amnesty International Canada et al. (2009), 352 F.T.R. 201; 2009 FC 918, refd to. [para. 55].

Hamel v. Burnelle and Labonte, [1977] 1 S.C.R. 147; 8 N.R. 481, refd to. [para. 58].

Letang v. Cooper, [1964] 2 All E.R. 929 (H.L.), refd to. [para. 59].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 61].

Reda v. Canada (Attorney General) (2012), 404 F.T.R. 85; 2012 FC 79, refd to. [para. 62].

Forget v. Canada (Attorney General) (2012), 405 F.T.R. 246; 2012 FC 212, refd to. [para. 62].

Authors and Works Noticed:

Beauchesne, Rules and Forms of the House of Commons of Canada (6th Ed. 1989), generally [para. 24].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 45].

Maingot, Joseph, Parliamentary Privilege in Canada (2nd Ed. 1997), generally [para. 24].

May, Erskine, Treatise on the Law, Privileges, Proceedings and Usage of Parliament (23rd Ed. 2004), generally [para. 24].

Counsel:

Joseph E. Magnet, for the applicant;

Paul Champ, for the respondent, Mulcair;

Robert MacKinnon and Zoe Oxaal, for the respondent, The Attorney General of Canada;

Henry Brown, Q.C., and Matthew Estabrooks, for the Participant, The Speaker of the Senate;

Steven Chaplin and Catherine Beaudoin, for the Participant, The Speaker of the House of Commons.

Solicitors of Record:

Joseph Magnet, Ottawa, Ontario, for the applicant;

Champ & Associates, Ottawa, Ontario, for the respondent, Mulcair;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, The Attorney General of Canada;

Gowling Lafleur Henderson, LLP, Ottawa, Ontario, for the Participant, The Speaker of the Senate;

Office of the Law Clerk and Parliamentary Counsel, House of Commons, Ottawa, Ontario, for the Participant, The Speaker of the House of Commons.

This application was heard on March 21-22, 2013, at Ottawa, Ontario, before Harrington, J., of the Federal Court, who delivered the following judgment on April 22, 2013.