2023 FC, 2023 FC 1234

Date: 20230913Docket: T-1021-21 Citation: 2023 FC 1234Toronto, Ontario, September 13, 2023PRESENT: The Honourable Madam Justice HeneghanBETWEEN: ROMAN BELOUSOVPlaintiff andHIS MAJESTY THE KING Defendant REASONS AND ORDER [1] By a Notice of Motion dated January 16, 2023, Mr. Roman Belousov (the “Plaintiff”) appeals from the Order of Associate JudgeDuchesne issued on December 21, 2022.

In that Order, the Associate Judge dismissed the Plaintiff’s Motion to remove this action fromthe operation of Rules 294 to 299 of the Federal Courts Rules, S.O.R./98-106 (the “Rules”). [2] The Plaintiff commenced the within proceeding, as a “Simplified Action”, on June 29, 2021. He seeks relief and damages in theamount of $10,000.00 in respect of alleged misbehaviour of an employee of the Canadian Passport Office in Montreal.

The Statement ofClaim named “Her Majesty the Queen in Right of Canada (Minister of Immigration Refugees and Citizenship Canada)” as theDefendant. [3] There is no such minister as the “Minister of Immigration Refugees and Citizenship Canada”. Although the Index of Recorded Entriesdoes not show any order amending the style of cause, by operation of law His Majesty the King in right of Canada is the Defendant (the“Defendant”) in this proceeding.

The style of cause will be amended with immediate effect. [4] The Plaintiff now argues that the Associate Judge erred in law in dismissing his Motion. [5] The Defendant submits that the Associate Judge made no errors. [6] Upon an appeal, the order of a prothonotary, now an associate judge, is reviewable upon the standard set out in the decision inHospira Healthcare Corp. v. Kennedy Institute of Rheumatology (2016), 2016 FCA 215 , 402 D.L.R. (4th) 497 (FCA).

In thatdecision, the Federal Court of Appeal said that reviewing courts should intervene in the discretionary decision of a prothonotary whenthe prothonotary has made an error of law or has exercised his or her discretion upon a wrong principle or where he or she hasmisapprehended the evidence such that there is a palpable and overriding error. In the later case, the reviewing court is to apply thestandard of review applicable to decisions of trial judges, as set out by the Supreme Court of Canada in Housen v.

Nikolaisen, 2002 SCC33 , [2002] 2 S.C.R. 235. [7] I refer to paragraphs 27 and 66 of Hospira, supra, which discuss the applicable standard of review, as follows: [27] …A discretionary decision made by a prothonotary is clearly wrong, and thus reviewable on appeal by a judge, where itis based: (1) upon a wrong principle – which implies that correctness is required for legal principles – and (2) upon amisapprehension of facts – which seems to be the equivalent of the “overriding and palpable error” criterion of the Housenstandard if it caused the prothonotary’s decision to be “clearly wrong”. […] [66] In Housen, the Supreme Court enunciated the standard of review applicable to decisions of trial judges.

Moreparticularly, it concluded that with respect to factual conclusions reached by a trial judge, the applicable standard was that ofpalpable and overriding error. It also stated that with respect to questions of law and questions of mixed fact and law, wherethere was an extricable legal principle at issue, the applicable standard was that of correctness (paragraphs 19 to 37 ofHousen). [8] The Order of the Associate Judge in this matter does not involve findings of fact. He made a discretionary Order about the manner inwhich the Plaintiff’s action would proceed.

He made no error in the exercise of his discretion. [9] The Plaintiff chose to begin a "“Simplified Action”". Such manner of proceeding is governed by Rules 292 to 299 of the Rules. Rules294 to 299 are engaged in this appeal. [10] In my opinion, the Associate Judge did not err in his consideration of the Plaintiff’s Motion nor in his consideration of the relevantRules. He exercised his discretion reasonably.

There is no basis for judicial intervention and the appeal will be dismissed, with costs tothe Defendant. [11] I note, in passing, that by the Order made on April 14, 2023, Associate Judge Tabib granted a similar Motion brought by thePlaintiff. [12] In the result, the appeal is dismissed, with costs to the Defendant in the amount of $250.00.

ORDER in T-1021-21 THIS COURT ORDERS that the appeal is dismissed, with costs to the Defendant in the amount of $250.00. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1021-21 STYLE OF CAUSE: ROMAN BELOUSOV v HIS MAJESTY THE KING MOTION IN WRITING CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES REASONS AND ORDER: HENEGHAN J. DATED: SEPTEMBER 13, 2023 WRITTEN REPRESENTATIONS BY : Roman Belousov For The PLAINTIFF Mathieu Laliberté For The DEFENDANT SOLICITORS OF RECORD : Attorney General of Canada Montreal, Quebec For The DEFENDANT