ALEX MARTINEZ Applicant v. ROYAL CANADIAN MOUNTED POLICE, CANADA BORDER SERVICES AGENCY, 2021 FC 529

Date: 20210602 Docket: T-1781-19 Citation: 2021 FC 529 Ottawa, Ontario, June 2, 2021 PRESENT: Madam Justice Pallotta BETWEEN: ALEX MARTINEZ Applicant and ROYAL CANADIAN MOUNTED POLICE, CANADA BORDER SERVICES AGENCY Respondent ORDER AND REASONS I. Introduction [ 1 ] The applicant and moving party, Mr. Martinez, brings this motion under Rule 51 of the Federal Courts Rules , SOR/98-106 [ Rules ] to appeal the January 25, 2021 order (Order) of Case Management Judge Molgat (CMJ). Mr.

Martinez submits the CMJ erred in allowing the respondents’ motion to strike the notice of application, and in dismissing his two motions for leave to amend the notice of application. [ 2 ] For the reasons below, the appeal is dismissed. Mr. Martinez has not established that the CMJ committed an extricable error of law, or a palpable and overriding error regarding a question of fact or a question of mixed fact and law. Accordingly, there is no basis to interfere with the Order. II.

Issue and Standard of Review [ 3 ] The sole issue on this Rule 51 appeal is whether the CMJ erred in striking the notice of application, without leave to amend. [ 4 ] The standard of review on an appeal of a discretionary order of a prothonotary is palpable and overriding error for questions of fact and questions of mixed fact and law, and correctness for questions of law and questions of mixed fact and law where there is an extricable legal principle at issue: Hospira Healthcare Corporation v Kennedy Institute of Rheumatology , 2016 FCA 215 , [2017] 1 FCR 331 [ Hospira ] at paras 64 , 66; Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 .

As noted by the Federal Court of Appeal in Hospira at paragraph 64, " “discretionary orders of prothonotaries should only be interfered with when such decisions are incorrect in law or are based on a palpable and overriding error in regard to the facts.” " [ 5 ] Since I find that the CMJ did not commit an extricable error of law, this Court should only interfere with the Order if the CMJ committed a palpable and overriding error regarding a question of fact, or a question of mixed fact and law. [ 6 ] The palpable and overriding error standard of review is highly deferential.

When arguing palpable and overriding error, " “it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall” " : Mahjoub v Canada (Citizenship and Immigration) , 2017 FCA 157 at para 61 , citing Canada v South Yukon Forest Corporation , 2012 FCA 165 at para 46 .

As noted in Brauer v Canada , 2020 FC 828 at paragraph 17 , a palpable and overriding error is one that is obvious, plainly seen and apparent, the effect of which is to vitiate the integrity of the reasons (citing Madison Pacific Properties Inc v Canada , 2019 FCA 19 at para 26 and Maximova v Canada (Attorney General) , 2017 FCA 230 at para 5 ). [ 7 ] To the extent that Mr. Martinez relies on the grounds of review under Rule 18.1(4) of the Federal Courts Act , RSC 1985, c F-7 [ Federal Courts Act ] in support of the appeal, I agree with the respondents that s. 18.1 of the Federal Courts Act is not applicable.

An appeal of a prothonotary’s order under Rule 51 is distinct from a judicial review of a decision or order of a federal board, commission or other tribunal under s. 18.1 of the Federal Courts Act . III. Analysis [ 8 ] The crux of the CMJ’s decision is that, while the application purports to be an application for judicial review under s. 41 of the Privacy Act , RSC, 1985, c P-21 , the notice of application does not properly identify the decision maker or any decision that is reviewable under s. 41 of the Privacy Act , and does not clearly set out the grounds of review and the relief sought.

The CMJ noted that the notice of application contains vague, sweeping, and conclusory allegations of misconduct, unsupported by material facts that could support an application for judicial review under s. 41 of the Privacy Act . The CMJ found that despite being aware of the deficiencies in the notice of application that were identified in the respondents’ motion to strike, Mr. Martinez did not seek to remedy the identified deficiencies in his proposed amendments, but rather, sought to add parties and make additional bald allegations.

The CMJ found that the proposed amendments are unrelated to an application under the Privacy Act , and have no reasonable prospect of success. [ 9 ] Mr. Martinez makes the following points in support of his position that the CMJ erred in striking the notice of application, and in

dismissing his motions for leave to amend: 1) the CMJ should not have made the Order before holding a further case management conference (CMC), allegedly rescheduled for February 21, 2020 after Mr. Martinez failed to appear at a CMC that was held on February 11, 2020; this constituted an error of law according to s. 18.1(4) (

c) of the Federal Courts Act ; 2) the reasons state that no affidavit evidence was tendered in support of Mr. Martinez’ motions for leave to amend, when affidavit evidence was not required; 3) the CMJ’s finding that the Court lacks jurisdiction to add the new proposed parties is incorrect; Mr.

Martinez submits the new parties should have been added on the basis of " “overlap and collusion” " between them and the respondents; 4) the CMJ erred in finding the notice of application lacks a legal basis and material facts to justify the requested relief, as one of the respondents, the Royal Canadian Mounted Police Services, conceded to a prior application for judicial review; 5) " “this case and Judicial Review was requested to be done in ‘Duplicity,’ which [the CMJ] failed to do” " or recognize; and 6) the CMJ failed in her duty to assist a self-represented litigant. [ 10 ] There is no merit to Mr.

Martinez’ submission that the CMJ should have rescheduled a further CMC before issuing the Order. The Court did not

schedule a CMC for February 21, 2020. Contrary to Mr. Martinez’ submissions, the Court did not commit to reschedule a CMC or fail to appear at a CMC on February 21, 2020 that had been allegedly rescheduled by virtue of Mr. Martinez’ letter indicating the parties’ mutual availability on that date. As noted above, s. 18.1(4) (

c) of the Federal Courts Act is not applicable, and Mr. Martinez does not otherwise explain how the failure to hold a further CMC resulted in a reviewable error with respect to the Order under appeal. All three motions that were before the CMJ were made in writing. The parties had the opportunity to file written motion materials, and the Order was made based on the parties’ written motion records. [ 11 ] The CMJ made an accurate statement that Mr. Martinez had not filed affidavit evidence in support of either of his two motions for leave to amend the notice of application, and Mr.

Martinez has not demonstrated a reviewable error in this regard. The CMJ’s decision to strike the notice of application and dismiss the motions for leave to amend was not based on the absence of an affidavit. [ 12 ] Mr. Martinez’ motions sought to amend the notice of application to add relief, based on s. 18.1 of the Federal Courts Act , for alleged misconduct by the new proposed parties.

The CMJ held that the Court lacks jurisdiction to grant such relief, as none of the parties sought to be added to the proceeding is a federal board, commission or other tribunal whose decisions are subject to review in accordance with s. 18.1 of the Federal Courts Act . On appeal, Mr. Martinez simply states that the new parties should be added based on their collusion with the respondents. Mr. Martinez has not pointed to a reviewable error in the CMJ’s finding that the Court lacks jurisdiction to grant the relief that Mr. Martinez would have sought against those parties. [ 13 ] Mr.

Martinez’ submission that the legal basis and material facts to justify the requested amendments were concessions made in a different proceeding does not establish an error. Mr. Martinez has not demonstrated that the other proceeding has any bearing on the motions that were before the CMJ. [ 14 ] The alleged error related to the CMJ’s failure to recognize “duplicity” is unclear. Possibly, it relates to a paragraph in the notice of application seeking costs and damages to avoid a duplicative process. The reference to Exhibit C, which is found at Tab 3 of Mr. Martinez’ motion record, does not assist his case.

It is unclear how the documents attached as Exhibit C support the alleged error regarding “duplicity”, or any other alleged error by the CMJ. In addition, the respondents point out that Exhibit C, which is attached as a freestanding “exhibit” without a supporting affidavit, was not before the CMJ. [ 15 ] Mr. Martinez provides no details to support a bare assertion that the CMJ failed in her duty to assist him as a self-represented litigant.

No error is apparent from the motion record. [ 16 ] I make a further observation regarding a point raised by the respondents, namely that the relief sought on this appeal includes an injunction and damages. I agree with the respondents that such relief is improper. [ 17 ] Mr. Martinez has failed to demonstrate a basis to interfere with the CMJ’s Order: Hospira at para 64. The CMJ set out the proper legal principles regarding the requirements of a notice of application as well as the tests for striking and amending a notice of application.

The CMJ’s decision to grant the motion to strike, and to dismiss the motions for leave to amend, is entitled to deference. In support of his Rule 51 appeal, Mr. Martinez makes only vague allegations that fail to establish a palpable and overriding error in the CMJ’s findings. [ 18 ] For the above reasons, the Rule 51 motion to appeal the Order is dismissed. [ 19 ] The respondents seek their costs of the motion. Generally, costs are awarded to the successful party, and in my view, an award of costs in favour of the respondents is appropriate in this case. Costs are fixed in the amount of $600. IV.

Conclusion [ 20 ] The CMJ did not commit a reviewable error in striking the notice of application without leave to amend. This motion to appeal the Order is dismissed, with costs to the respondents. ORDER in T-1781-19

ORDER in T-1781-19 THIS COURT ORDERS that : 1 . The Rule 51 motion appealing the CMJ’s Order is dismissed; and 2 . Costs are awarded to the respondents, in the amount of $600. "Christine M. Pallotta" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1781-19 STYLE OF CAUSE: ALEX MARTINEZ v ROYAL CANADIAN MOUNTED POLICE, CANADA BORDER SERVICES AGENCY MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO ORDER AND REASONS: PALLOTTA J. DATED: June 2, 2021 WRITTEN REPRESENTATIONS BY : Alex Martinez For The Applicant (ON HIS OWN BEHALF) Monika Rahman For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Toronto, Ontario For The Respondent