Auer v Auer, 2014 ABQB 650

Court of Queen ’ s Bench of Alberta Citation: Auer v Auer, 2014 ABQB 650 Date: 20141112 Docket: 4803 156019 Registry: Edmonton Between: Roland Nikolaus Auer Plaintiff - and - Aysel Igorevna Auer Defendant _______________________________________________________ Written Reasons for Decision of the Honourable Mr. Justice M.David Gates _______________________________________________________ [ 1 ] On June 19, 2014, the Plaintiff, Roland Auer, filed an application in this action seeking a declaration that the Federal Child Support Guidelines are ultra vires the Divorce Act and, as such, of no force and effect.

In his application, Mr. Auer says that, on purely administrative law grounds, the parent statute, the Divorce Act , does not authorize the Guidelines . He does not, however challenge the constitutionality of the Guidelines . [ 2 ] In his application, Mr. Auer also seeks an order that the evidence taken in Strickland v The Attorney General of Canada be admitted in evidence in this application. Further, he seeks advice and directions from the court regarding procedural issues relative to this application. [ 3 ] In similar proceedings launched in November 2012, Strickland , Mr.

Auer, together with a number of other applicants, sought judicial review in the Federal Court. In that instance, the Applicants sought a declaration that the Federal Child Support Guidelines are ultra vires the Divorce Act and, as such, of no force and effect. In that proceeding, Mr. Auer advanced the same position, i.e. that the Guidelines are not authorized by the parent statute, the Divorce Act . As in the within action, there is no challenge to the constitutionality of the Guidelines .

[ 4 ] On May 6, 2013, Gleason J. of the Federal Court granted the Attorney General’s preliminary motion to dismiss the application for judicial review. She found that provincial superior courts have concurrent jurisdiction to hear and determine an administrative law challenge to the Guidelines given that such a challenge is an integral part of a matter over which the provincial superior courts possess jurisdiction, namely proceedings under the Divorce Act . She went on to find that there was concurrent jurisdiction between the Federal Court, pursuant to the Federal Court Act , and the provincial superior courts.

However, she exercised her discretion to decline jurisdiction on the basis that the Court of Queen’s Bench was the more appropriate forum to hear a challenge to the Guidelines . [ 5 ] An appeal to the Federal Court of Appeal was dismissed on February 5, 2014. In April 2014, Mr. Auer and the other applicants in Strickland sought leave to appeal to the Supreme Court of Canada. Leave was granted on June 26, 2014, seven days after the filing of the within application. The appeal is tentatively set to be heard by the Supreme Court on January 20, 2015.

By order of the Chief Justice, the appellant’s record, factum, and book of authorities are to be filed by October 15, 2014, two weeks from today’s date. [ 6 ] In the proceedings before Gleason J., as well as the Federal Court of Appeal, Mr. Auer took the position that the Court of Queen’s Bench of Alberta, a superior court, does not have jurisdiction to hear this administrative law challenge to the Guidelines or grant the declaratory relief sought. As such, he argued that the Federal Court is the only appropriate forum to hear this challenge given ss. 18 and 18.1 of the Federal Courts Act . Mr.

Auer advanced this same argument in his leave application to the Supreme Court [ 7 ] On July 24, 2014, the Attorney General of Canada filed a preliminary application to “stay, adjourn or put in abeyance” Mr. Auer’s application pending the outcome of the appeal to the Supreme Court. The Attorney General says that it is in the interests of justice and judicial and litigant economy to await the decision in Strickland before continuing these proceedings. [ 8 ] This application was heard before me on October 1, 2014. At the conclusion of the hearing, I directed that Mr.

Auer application in the within matter be adjourned sine die pending the outcome of his appeal to the Supreme Court. Mr. Auer may renew his application before this Court to have this matter set down for a hearing on the merits, assuming such an avenue remains open to him, once the Supreme Court has released its decision on the Strickland matter. While allowing the application on October 1, 2014, I indicated that brief reasons would follow.

Analysis [ 9 ] In bringing this application, the Attorney General takes the position that the content of this application is substantially identical to his pleadings in the Federal Court and, indeed, that he relies on essentially the same affidavit evidence. Moreover, the Attorney General also says that if Mr. Auer is successful before the Supreme Court, his current application before this Court will be rendered moot. Any ruling by this Court on the merits of this application would be nullified by the decision of the Supreme Court.

According to the Attorney General, permitting this matter to proceed while the appeal in Strickland is before the Supreme Court creates the risk of inconsistent findings and/or decisions, the duplication of effort and the running up of unnecessary costs. The Attorney General cites the courts inherent jurisdiction to control its own process; s. 8 of the Judicature Act ; s. 21(2) of the Crown Liability and Proceedings Act ; and the principle of stare decisis , as the authority for the Court to make the requested order. [ 10 ] Mr.

Auer concedes in his written materials that his “submissions before the Federal Court of Appeal were inconsistent with the Application that he now brings to challenge the Guidelines in the superior court.” I would simply add that his written materials filed in support of his leave application and, presumably the arguments he plans to advance before the Supreme Court, are also inconsistent with the Application that he now brings in the Court of Queen’s Bench. [ 11 ] Mr.

Auer’s argument is, briefly stated, that the decision of the Federal Court of Appeal striking his judicial review action is a final decision until set aside. The decision of the Court of Appeal directs him to proceed with his challenge to the vires of the Guidelines in the Court of Queen’s Bench; the precise action that he has taken in this instance. Furthermore, he says that he and his fellow applicants no longer have an action in the Federal Court challenging the Guidelines in light of the fact that their action was struck by order of Gleason J.

As such, there is no duplicative proceedings “and this Honourable Court has jurisdiction and is the forum conveniens of this Application.” Finally, Mr. Auer says that the Attorney General is, in effect arguing that this application should be adjourned, stayed or held in abeyance notwithstanding the fact that the AG is also arguing that this court has jurisdiction and is the forum conveniens of this application. In short, Mr.

Auer says that while he does not agree with the decision in the Federal Court and Federal Court of Appeal – and continues to challenge the decision in the Supreme Court – he is complying with it. [ 12 ] While there is some superficial appeal to this argument advanced by Mr. Auer, I am of the view that it misses the mark.

Moreover, it treats the various decisions in Strickland , as well as this application, as though they are somehow unrelated to one and other or “water-tight compartments” entirely disconnected from one and other. [ 13 ] This application by the AG is fundamentally about judicial and litigant economy, and avoiding unnecessary and/or duplicative proceedings. [ 14 ] At the very same time that Mr.

Auer seeks the assistance of the Court of Queen’s Bench to obtain a declaration of invalidity of the Guidelines , he continues to advance an argument in other courts that the Court of Queen’s Bench has no jurisdiction to make such a ruling. He seeks, in effect, to simultaneously ride two horses. He cannot, in my view, insist on the legal rights he says are conferred on him by the decision of the Federal Court of Appeal at the same time that he asks the Supreme Court to over-rule that same decision.

I agree with the Attorney General of Canada that leave having been granted and a date set for the hearing of the Strickland appeal in the Supreme Court, it would not be a wise use of scare judicial resources to proceed with this application until such time as we have the benefit of the Supreme Court’s decision on the issue of jurisdiction. [ 15 ] I do not agree with Mr. Auer’s suggestion that the actions of the Attorney General in bringing this application amount, in effect, to an application to stay the enforcement of the decision of the Federal Court of Appeal.

Likewise, I do not agree that the proper course of action for the Attorney General would be to seek a stay in either the Federal Court of Appeal or the Supreme Court. This contention flows from a mischaracterization of the AG’s application as being tantamount to a stay application. I do not accept such a characterization. As previously indicated, I view the application before me as an attempt on the part of the Attorney General to avoid the

possible duplication of proceedings in this court in circumstances where no urgency has been demonstrated. [ 16 ] Mr. Auer claims that his attempts to determine the appropriate level of child support he is required to pay, including his challenge to the validity of the Guidelines , will be somehow frustrated if the within application is not permitted to proceed until such time as there is a ruling from the Supreme Court in Strickland . Beyond the mere assertion of “frustration”, Mr. Auer adduces no actual evidence of prejudice. Indeed, in parallel proceedings before this Court, Mr.

Auer is actively seeking to reduce his retroactive and on- going child support obligations through a claim of undue hardship. [ 17 ] Mr. Auer also says that the Attorney General has earlier in these proceeding alleged delay on his

part in advancing his challenge to the Guidelines . He expresses concern that this argument may be renewed at some point in the future if he does not oppose the within application. In my view, there is no merit to this argument. While this point was not thoroughly argued before me, my understanding is that the Attorney General did advance arguments before the Federal Court related to Mr. Auer’s alleged delay in initiating his challenge to the Guidelines . In view of the fact that this challenge has clearly been initiated in the Court of Queen’s Bench, Mr.

Auer faces no greater prejudice in responding to such an argument, if advanced, in several months, once Strickland has been decided, than he would if this application were to proceed forthwith. [ 18 ] Further, Mr. Auer says further delay puts him at risk of having to obtain new and/or updated economic and socio-economic expert reports to support his challenge to the Guidelines . In my view, this argument is somewhat circular. In pursuing his appeal to the Supreme Court to restore his judicial review application in Federal Court, Mr.

Auer is the effective cause of the delay in having this matter proceed on the merits. If his evidence may be somehow rendered less relevant and/or persuasive with the passage of time, this is one of the natural results of electing to pursue this matter to the Supreme Court. As previously indicated, I am of the view that Mr. Auer seeks to ride two horses at the same time and must be taken to accept the possibility that the two horses may head off in divergent directions. [ 19 ] In effect, Mr.

Auer is asking to have this within matter go forward so that his current expert evidence is still timely and relevant notwithstanding the fact that it will all be rendered moot and/or a nullity if he succeeds on his appeal. At the end of the day, the relevance and probative value of his expert evidence will have to be determined by the court that ultimately hears the substantive application. Any risk that Mr.

Auer perceives in this regard is, in my view, risk of his own creation and cannot be fairly attributed to the actions of the Attorney General in pursuing this particular application. [ 20 ] As with a number of Mr. Auer’s other arguments, there is superficial appeal to this suggested approach. I am, however, in serious doubt as to the ability of the Court to require parties to agree that litigation steps and processes conducted in this action are to apply to another action in another court. Mr.

Auer offers no authority to support such a novel proposition. [ 21 ] While I do not believe that it is necessary for me to decide the point, I would say that I have serious reservations as to the applicability of the test in RJR-Macdonald Inc v Canada to the within matter. [ 22 ] I also do not accept Mr. Auer’s argument that the issues in Strickland and the within matter are not identical.

While I agree that there is no challenge to the jurisdiction of the Court of Queen’s Bench to hear this matter contained in the within application, both this application and the one that commenced the proceedings in Strickland both challenge the vires of the Child Support Guidelines on identical grounds. His appeal to the Supreme Court provides the clearest of indications that Mr. Auer wishes to pursue his challenge to the Guidelines in the Federal Court.

If he is successful, his application for judicial review in the Federal Court will simply continue. [ 23 ] The position of the Attorney General of Canada is that it is in the interests of justice and judicial and litigant economy to await the decision in Strickland before continuing these proceedings. Under all of the circumstances, I agree. [ 24 ] Finally, Mr. Auer urges this court to issue a procedural order which allows the various stages in the litigation process to proceed at the same time as the appeal from the Federal Court of Appeal is proceeding in the Supreme Court.

In this regard, he says that this court could direct that parties to agree that any Questioning, fulfillment of Undertakings and Affidavits completed in this Queen’s Bench action could be used in the Federal Court action if the Supreme Court were to overturn the decision in the Federal Court of Appeal. [ 25 ] The Application is granted. This matter is adjourned sine die pending the outcome of Mr. Auer’s appeal to the Supreme Court. Mr.

Auer may renew his application before this Court to have this matter set down for a hearing on the merits, assuming such an avenue remains open to him, once the Supreme Court has released its decision on the Strickland matter. Heard on the 1 st day of October, 2014. Dated at the City of Calgary, Alberta this 12 th day of November, 2014.

M. David Gates J.C.Q.B.A. Appearances: Glenn Solomon Q.C. for the Plaintiff Denise Kiss for the Defendant (not appearing on this preliminary application) Jaxine Oltean for the Respondent Intervenor, Attorney General of Canada