2016 FCA 79, 2016 FCA 79

[2016] 4 F.C.R. 268 A-481-15 2016 FCA 79 Nader Philipos (Appellant) v. Attorney General of Canada (Respondent) Indexed as: Philipos v. Canada (Attorney General) Federal Court of Appeal, Stratas J.A.—Ottawa, March 9, 2016.

Practice — Principles, criteria governing granting of leave to resurrect, continue discontinued proceeding — Minister of Transportcancelling appellant’s transportation security clearance — Federal Court finding decision reasonable — Appellant appealing decisionbut discontinuing appeal soon afterward — Subsequently bringing motion seeking to resurrect, continue discontinued appeal — Whethermotion should be granted — Only fundamental event striking at root of decision to discontinue warranting resurrection, continuation ofdiscontinued proceeding — Court having to be satisfied that discontinued proceeding sought to be resurrected having reasonableprospect of success — Prejudice resulting from resurrected proceeding also needing to be considered — Appellant failing to showfundamental event striking at root of decision to discontinue; that appeal having reasonable prospect of success — Appeal destined tofail — Motion dismissed.

This was a motion by the appellant for an order allowing him to resurrect and continue a discontinued appeal. Upon learning that the appellant had attempted to export long guns on a trip to Sudan, the Minister of Transport cancelled the appellant’stransportation security clearance to enter restricted areas at the Calgary International Airport. The Federal Court found the Minister’sdecision to be reasonable. The appellant appealed that decision but discontinued his appeal soon afterward. At issue was whether the motion should be granted.

More specifically, what are the principles and criteria that ought to govern thegranting of leave to resurrect and continue a discontinued proceeding. Held, the motion should be dismissed. Only some fundamental event that strikes at the root of the decision to discontinue can warrant the resurrection and continuation of adiscontinued proceeding. Even where a fundamental event of that sort has happened, the Court must be satisfied that the discontinuedproceeding sought to be resurrected has some reasonable prospect of success.

There is neither sense nor judicial economy in resurrectinga discontinued proceeding destined to fail. The prejudice that may result if a discontinued proceeding is resurrected must also beconsidered. In the present case, the appellant failed to point to something that strikes at the root of his earlier decision to discontinue. Thefact that he may have acted by mistake without appreciating the consequences of discontinuance is insufficient cause. The appellant alsofailed to show that his appeal had a reasonable prospect of success.

Even if the appellant’s new evidence was admitted and areasonableness review of the decision of the Minister conducted, the appeal would still be destined to fail. The appellant offered nothingto suggest that the Federal Court of Appeal would disagree with the Federal Court’s conclusion that the Minister’s decision wasreasonable. STATUTES AND REGULATIONS CITED Federal Courts Act, R.S.C., 1985, c. F-7, ss. 18.4, 50. Federal Courts Rules, SOR/98-106, rr. 4, 8, 165, 383, 384, 397, 398, 399. United Nations Sudan Regulations, SOR/2004-197. CASES CITED CONSIDERED: Marleau v.

Canada (Attorney General), 2001 FCT 1208; Warford v. Zyweck, 2002 BCCA 221, 1 B.C.L.R. (4th) 41. REFERRED TO: Mayne Pharma (Canada) Inc. v. Pfizer Canada Inc., 2007 FCA 1, 54 C.P.R. (4th) 353; Canada (Human Rights Commission) v.Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, (1998), 157 D.L.R. (4th) 385; JP Morgan Asset Management(Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557; Canada (National Revenue) v. RBC Life InsuranceCompany, 2013 FCA 50, 18 C.C.L.I. (5th) 263; Canada (National Revenue) v.

McNally, 2015 FCA 195; Mylan Pharmaceuticals ULC v.AstraZeneca Canada, Inc., 2011 FCA 312, 98 C.P.R. (4th) 235; Audet v. Canada, 2002 FCA 130, 289 N.R. 382; “Kronprinz” (1887), 12A.C. 256, 56 L.T. 345 (H.L.); Del Zotto v. Canada (Minister of National Revenue), (FCA), [1996] 2 C.T.C. 22,(1996), 96 D.T.C. 6222 (F.C.A.); Lifeview Emergency Services Ltd. v. Alberta Ambulance Operators’ Assn. (1995), 64 C.P.R. (3d) 157,101 F.T.R. 43 (F.C.T.D.); Daniele v. Johnson, , 45 O.R. (3d) 498 (Div. Ct.); Singh v. Street et al., ,84 Sask. R. 161 (C.A.); Neis v. Yancey, 1999 ABCA 272 , 250 A.R. 19; Pacific Centre Ltd. v.

Micro Base Development Corp.(1990), (BC CA), 49 B.C.L.R. (2d) 218, 43 C.P.C. (2d) 302 (C.A.); Teodorescu v. Canada (Public Service StaffRelations Board), [1993] F.C.J. No. 1124 (C.A.) (QL); Ahmed v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No.55 (C.A.) (QL); Canada (Attorney General) v. Hennelly, , 167 F.T.R. 158 (F.C.A.); Williams v. The Personal

Insurance Co. of Canada, 2004 NSSC 73, 222 N.S.R. (2d) 270; Canada (Attorney General) v. Larkman, 2012 FCA 204, [2012] 4C.N.L.R. 87; Adam v. Ins. Corp. of B.C., , 66 B.C.L.R. 164 (C.A.); Delios v. Canada (Attorney General), 2015 FCA117, 100 Admin. L.R. (5th) 301; Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189; Association of Universities andColleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297; Canada (Transport,Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006.

MOTION by the appellant for an order allowing him to resurrect and continue an appeal that he had discontinued. Motion dismissed. WRITTEN REPRESENTATIONS Nader Philipos on his own behalf. James Elford for respondent. SOLICITORS OF RECORD Deputy Attorney General of Canada for respondent. The following are the reasons for order rendered in English by [1] Stratas J.A.: The appellant moves for an order allowing him to resurrect and continue an appeal that he had discontinued. For thereasons that follow, I dismiss the motion. A. Background [2] The appellant was a ramp agent at the Calgary International Airport.

He held a transportation security clearance that allowed himto enter restricted areas at the airport. [3] Upon learning of certain facts, the Minister of Transport cancelled the appellant’s security clearance. The appellant challengedthe cancellation by way of judicial review in the Federal Court. By judgment dated November 6, 2015, the Federal Court (per FothergillJ.) dismissed the judicial review. [4] The appellant appealed the Federal Court’s judgment to this Court by filing a notice of appeal.

But soon afterward hediscontinued his appeal. [5] The appellant now wants to resurrect his appeal and continue it in this Court. So he moves for leave to do so. [6] The parties have cited to the Court only one decision in the Federal Courts system setting out the criteria governing this motion:Marleau v. Canada (Attorney General), 2001 FCT 1208. Marleau suggests (at paragraph 5) that a proceeding can be resurrected if a“valid reason” is stated. It says nothing more.

Marleau is not binding upon this Court. [7] I have discovered two decisions of this Court, cited below, that dismissed motions to resurrect proceedings. In each, the motionwas dismissed because the moving party’s proceeding was destined to fail. Neither decision sets out the general principles governing thissort of motion. In these reasons, I will develop some of the general principles. B.

Opening considerations [8] A party may discontinue all or part of a proceeding in the Federal Courts, including an appeal to this Court, by filing a notice ofdiscontinuance: Federal Courts Rules, SOR/98-106 [the Rules], rule 165. This is a unilateral act. One does not need the consent ofopposing parties or leave from the Court to discontinue a proceeding, nor does one have to explain it: Mayne Pharma (Canada) Inc. v.Pfizer Canada Inc., 2007 FCA 1, 54 C.P.R. (4th) 353.

Upon discontinuance, the Court file is closed. [9] The Rules do not expressly provide for the resurrection and continuance of a proceeding after discontinuance under rule 165.However, discontinuance is different from dismissal in that theoretically a party can resurrect and continue a discontinued proceeding orstart a new proceeding. By providing for discontinuance under rule 165, impliedly the Rules permit a party to pursue those options. [10] Here, the appellant has brought a motion seeking to resurrect and continue his appeal. He was correct to do so.

When theappellant discontinued his appeal, the Court file was closed. Leave must be sought from the Court to reopen its file. The Federal Courtsare armed with plenary powers that allow them to regulate the integrity of their own processes, including regulating the opening andclosing of their own files: Canada (Human Rights Commission) v. Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626,at paragraphs 35–38; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557,at paragraph 92; Canada (National Revenue) v.

RBC Life Insurance Company, 2013 FCA 50, 18 C.C.L.I. (5th) 263, at paragraphs 35 and36; Canada (National Revenue) v. McNally, 2015 FCA 195, at paragraphs 8 and 9. [11] Given that the Federal Courts Rules do not explicitly speak to the issue of granting leave to resurrect and continue a discontinuedproceeding, where can we find the governing principles? [12] Rule 4—frequently called the “gap rule”—provides that where the Federal Courts Rules do not speak to a procedure, we canlook by analogy to other rules. Here this is a fruitful avenue of inquiry.

Discontinuance of a proceeding is just one of five things that canhappen to proceedings under the Federal Courts Rules. By analogizing or comparing discontinuance with these things, a spectrumemerges. This spectrum sheds light on the principles that ought to govern the granting of leave to resurrect and continue a discontinuedproceeding. C. Discontinuance and other things that can happen to proceedings

[13] Five things can happen to proceedings once they are started: • Self-regulation. Parties can pursue the steps open to them within the time permitted by the Federal Courts Rules to get theircases ready for hearing. The parties have every expectation that their cases will proceed through to determination. • Court regulation. At the behest of a party, the Court can

schedule steps within the proceedings or the proceedings themselves,expediting or slowing them down: rule 8. Proceedings can also be managed by the Court: rules 383 and 384. Despite the involvement ofthe Court through scheduling or management, the parties still have every expectation that their cases will proceed through todetermination. • Suspension. Proceedings can be suspended through the issuance of a stay under

section 50 of the Federal Courts Act, R.S.C.,1985, c. F-7; Mylan Pharmaceuticals ULC v. AstraZeneca Canada, Inc., 2011 FCA 312, 98 C.P.R. (4th) 235. A stay expires according tothe terms set by the Court. Unless the stay is renewed or the proceeding is dismissed, the proceeding resumes after the expiration of astay. While a stay is in place, the proceeding still subsists and so the parties must have every expectation that their cases will proceedthrough to determination. • Discontinuance. This is more than suspension. Discontinuance terminates the proceeding and closes the Court file.

After theunilateral filing of a notice of discontinuance under rule 165, parties need not take any further steps. Discontinuance is not adetermination on the merits, so it does not trigger the bar against relitigation expressed by the doctrine of res judicata. Theoretically, aparty may start a new proceeding concerning the same subject matter: Audet v. Canada, 2002 FCA 130, 289 N.R. 382; The “Kronprinz”(1887), 12 A.C. 256 (H.L.). And theoretically a party can resurrect and continue a discontinued proceeding, as the appellant seeks to dohere.

But unlike a stay, the unilateral filing of a notice of discontinuance tells everyone they can regard the proceeding as over. • Determination. The Court may determine proceedings in certain interlocutory motions or upon hearing the merits of theapplication, action or appeal, as the case may be. The matter is then final, subject to an appeal to a higher court and subject to a brief,limited jurisdiction of the Court to fix slips or errors (rule 397) or set aside or vary the order or judgment where there are markedlychanged circumstances (rule 398 and see, e.g., Del Zotto v.

Canada (Minister of National Revenue), (FCA), [1996] 2C.T.C. 22 (F.C.A.), at paragraph 12). A determination may also be set aside where there is a fundamental failure of natural justice orfraud (rule 399). Following determination, the proceeding is over and the Court file is closed. After the time for bringing any appeals hasexpired, later proceedings concerning the same subject matter will be struck according to the doctrine of res judicata. [14] This spectrum shows that there is very little difference between discontinuance and determination.

Both discontinuance anddetermination are terminations meant to be final. Both close the Court file. Both engender expectations of finality. [15] One difference, mentioned above, is the theoretical possibility that after discontinuance a new proceeding can be broughtconcerning the subject matter of the discontinued proceeding. But that is not so realistic a possibility. An attempt to start a newproceeding may be met with, for example, a motion to strike based on the expiration of a statutory limitation period or an abuse ofprocess (see, e.g., Lifeview Emergency Services Ltd. v.

Alberta Ambulance Operators’ Assn. (1995), 64 C.P.R. (3d) 157 (F.C.T.D.), atparagraph 13), or the unavailability of an order granting an extension of time when an extension is needed, as in the case of applicationsfor judicial review. [16] These considerations underscore the point that discontinuances are not suspensions but rather terminations with consequences.This tells us much about the criteria that must be applied when a party seeks to resurrect and continue a discontinued proceeding. D. The criteria for allowing a discontinued proceeding to be resurrected and continued [17] Finality matters.

Discontinuance is an economical procedure for terminating proceedings that are no longer in dispute or worthyof prosecution. If expectations of finality engendered by discontinuance are not enforced strictly and discontinuances can be easilyreversed, there will be no economy. Opposing parties will have no choice but to continue to incur expenses, collect evidence and preparearguments for hearing in case the proceeding resumes one day.

Discontinuance would become nothing more than a form of suspendingproceedings much akin to a stay. [18] Determinations are not lightly reversed; the same should be so for discontinuances. Those who decide to unilaterally discontinuedecide not to suspend their proceeding but to terminate it. They should be held to their decision.

Only circumstances that strike at theroot of the decision to discontinue can allow a discontinued proceeding to be resurrected and continued. [19] The case law of other jurisdictions supports these observations and allows for the resurrection and continuation of discontinuedproceedings only in exceptional circumstances: see, e.g., Daniele v. Johnson, , 45 O.R. (3d) 498 (Div. Ct.), atparagraph 21; Singh v. Street et al., , 84 Sask. R. 161 (C.A.), at paragraph 14; Neis v. Yancey, 1999 ABCA 272, 250 A.R. 19, at paragraph 23.

The British Columbia Court of Appeal, typical of courts across Canada, has suggested that adiscontinued proceeding can almost never be resurrected (Warford v. Zyweck, 2002 BCCA 221, 1 B.C.L.R. (4th) 41, at paragraph 3; seealso Pacific Centre Ltd. v. Micro Base Development Corp., , 49 B.C.L.R. (2d) 218 (C.A.), at paragraph 19): ….

Because there should be an expectation of finality flowing from the filing of a notice of discontinuance or abandonment, such a stepis a serious matter from which, in the absence of exceptional circumstances of a compelling nature, the court will not relieve theappellant. [20] Only some fundamental event that strikes at the root of the decision to discontinue can warrant the resurrection and continuationof a discontinued proceeding.

Examples include the procurement of discontinuance by fraud, mental incapacity of the party at the time ofdiscontinuance, or repudiation of a settlement agreement that required a proceeding to be discontinued. [21] Even where a fundamental event of that sort has happened, we must be satisfied that the discontinued proceedings sought to beresurrected have some reasonable prospect of success. There is neither sense nor judicial economy in resurrecting a discontinuedproceeding destined to fail. Twice we have refused to allow a discontinued proceeding to be resurrected because it did not have a

reasonable prospect of success: Teodorescu v. Canada (Public Service Staff Relations Board), [1993] F.C.J. No. 1124 (C.A.) (QL), atparagraph 14; Ahmed v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 55 (C.A.) (QL), at paragraph 2. Thisrequirement is akin to our insistence that a party seeking an extension of time to bring an appeal demonstrate that it has some reasonableprospect of success: Canada (Attorney General) v. Hennelly, , 167 F.T.R. 158 (F.C.A.). [22] Further, we must also consider the prejudice that may result if a discontinued proceeding is resurrected.

For example, someonemight have taken significant steps relying on a discontinuance, such as carrying out obligations under a trial judgment after the appealfrom that judgment has been discontinued: Warford v. Zyweck, 2002 BCCA 221, 1 B.C.L.R. (4th) 41 [cited above], at paragraph 7.Prejudice can also result from the destruction of files, the cessation of evidence collection or the disappearance of witnesses: Williams v.The Personal Insurance Company of Canada, 2004 NSSC 73, 222 N.S.R. (2d) 270, at paragraphs 15–20.

In the case of applications forjudicial reviews and appeals therefrom, the public interest requires prompt prosecution and determination: Canada (Attorney General) v.Larkman, 2012 FCA 204, [2012] 4 C.N.L.R. 87, at paragraphs 86–89; Federal Courts Act, above,

section 18.4. The categories ofprejudice are not closed: other types of prejudice may cause the Court to exercise its discretion against allowing a party to resurrect adiscontinued proceeding. [23] I do not foreclose the possibility that other considerations might foreclose resurrection of a discontinued proceeding. The FederalCourts have a plenary power to manage their practices and procedures, police the conduct of proceedings, and prevent abuses of theirprocesses. That power stands ready to be exercised judicially whenever called for. E.

Applying the criteria to this case [24] The appellant’s motion must be dismissed. He discontinued his appeal of his own volition. Thus, he must point to something thatstrikes at the root of his earlier decision to discontinue. He has not done so. Instead, he seems to have had merely a change of heart. [25] The appellant submits that he discontinued his appeal without legal advice. The fact that he may have acted by mistake withoutappreciating the consequences of discontinuance is insufficient cause: Adam v. Ins. Corp. of B.C., , 66 B.C.L.R. 164(C.A.), at paragraphs 24–26.

The respondent was entitled to rely upon the discontinuance and the expectations of finality it engendered. [26] The appellant has also failed to show that his appeal has a reasonable prospect of success. In his notice of appeal, the appellantadvances two grounds of appeal:

(1) The Federal Court erred in refusing to admit evidence into the judicial review that was not before the Minister when he made hisdecision. This is destined to fail based on the well-settled law of this Court: Delios v. Canada (Attorney General), 2015 FCA 117, 100Admin. L.R. (5th) 301, at paragraphs 41–46; Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189; Association ofUniversities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297, atparagraphs 18–26.

(2) The Federal Court had no jurisdiction to order the matter “back to Transport Canada for review”. This is destined to fail becausethe Federal Court ordered no such thing.

The Federal Court simply dismissed the appellant’s application for judicial review. [27] Although the notice of appeal does not raise any other grounds, even if this Court were to admit the new evidence and conduct areasonableness review of the decision of the Minister of Transport, this appeal would still be destined to fail. [28] The Minister of Transport cancelled the appellant’s security clearance upon learning that he had attempted to export two longguns on a trip to Sudan.

The appellant says that he intended to hunt wildlife while on vacation in Sudan and was assured by Canadianauthorities that he would be given an export permit for the guns. But the documentary evidence shows that he applied for an exportpermit only after he had exported the guns.

As well, his application had no chance of succeeding because of the prohibition againstexporting guns to Sudan: United Nations Sudan Regulations, SOR/2004-197. [29] The Minister of Transport began proceedings for cancellation of the appellant’s security clearance on these facts—well-established and uncontested in the evidence—based on his loss of trust in the appellant’s judgment, trustworthiness and reliability. Inresponse, the appellant offered items that the Minister found were insufficient to regain his trust: the appellant’s Sudanese passport, theappellant’s Sudanese firearms license, a letter from U.S.

Customs (which intercepted the guns) confirming that a sizable amount of cashand a pistol grip had been returned to him, and a release agreement between the appellant and U.S. authorities regarding the return ofseized items. [30] The Federal Court, noting the highly discretionary nature of security clearance cancellations, found the Minister’s decision to bereasonable. The standard of review is the deferential standard of reasonableness and this Court has found that the Minister’s margin ofappreciation when granting and cancelling security clearances is high: Canada (Transport, Infrastructure and Communities) v.

Farwaha,2014 FCA 56, [2015] 2 F.C.R. 1006. In his motion, the appellant offers nothing whatsoever to suggest that this Court will disagree withthe Federal Court’s conclusion that the Minister’s decision was reasonable. [31] The new evidence that the Federal Court properly refused to admit consists of a copy of the appellant’s Canadian firearmslicence, an incomplete application for an export permit, and an affidavit disclosing the origin of the cash seized by the U.S. authorities—matters that would not affect the outcome of reasonableness review. [32] Therefore, the motion will be dismissed.

Given the appellant’s circumstances and the novelty of the issues in this motion, quitefairly the respondent has not asked for costs. So none will be awarded.