CORY PENNEY Applicant v. THE MINISTER OF PUBLIC SAFETY CANADA, 2016 FC 877

Date: 20160726 Docket: T-876-16 Citation: 2016 FC 877 Vancouver, British Columbia, July 26, 2016 PRESENT: Prothonotary Roger R. Lafrenière BETWEEN:CORY PENNEYApplicantandTHE MINISTER OF PUBLIC SAFETY CANADA AND ATTORNEY GENERAL OF CANADARespondents ORDER AND REASONS [1] The Respondents seek an order pursuant to Rule 383 of the Federal Courts Rules (the Rules) that the application be specially managed and that all timelines fixed in

Part 5 of the Rules be suspended pending theappointment of a case management judge. The motion is opposed by the Applicant on the grounds that the proceeding is not complicatedand the appointment of case management judge is therefore unnecessary. According to the Applicant, the request for case managementis “clearly a delay tactic” on the part of the Respondents. [2] By way of background, the Applicant filed a Notice of Application on June 2, 2016 seeking to challenge the denial of theApplicant’s passport renewal application. The refusal letter dated May 6, 2016 states that a delegated official of the Minister of PublicSafety decided pursuant to

section 10.1 of the Canadian Passport Order, SI/81-86 that a passport would not be issued in the Applicant’sname as there were reasonable grounds to believe that the decision was necessary to prevent the commission of a terrorism offence asdefined in

section 2 of the Criminal Code or for the national security of Canada or a foreign state. The Applicant seeks relief in thenature of quo warranto to require the Minister to show under what authority he had to deal with the Applicant’s renewal application andcertiorari to quash all decisions made against the Applicant under the Canadian Passport Order. [3] Rule 383 empowers the Chief Justice of the Federal Court to assign one or more judges to act as a case management judge ina proceeding.

However, the Rules do not prescribe any criteria to assist in determining when an order under Rule 383 will be appropriate. [4] The Applicant relies on the decision of Madam Justice Heneghan in Canada (Attorney General) and Janice Cochrane vCanada (Information Commissioner), (FC) (“Cochrane”) for the proposition that there must be a substantial reasonfor special management and to justify departure from the timetables set out in the Rules.

In Cochrane, the Respondent had moved for anorder appointing a case management judge to specially manage two proceedings and to hold a dispute resolution conference inaccordance with Rules 387 to 389 for the purpose of narrowing the issues in the proceedings. The motion was opposed by bothApplicants. Justice Heneghan held that the appointment of a case management judge was not subject to hard and fast rules.

Sheconcluded that the allocation of judicial resources for case management was not warranted as the proceedings were at an early stage andthere was “neither confusion nor a need to narrow the issues”. [5] The Cochrane decision was rendered at the advent of case management in the Federal Court. Although special managementis neither routine nor automatically granted on request, this Court is now taking a much more flexible approach in assessing whether casemanagement should be granted.

Case management orders will automatically be issued when it appears necessary from the nature of theproceedings, such as class actions, proceedings brought pursuant to the Patented Medicines (Notice of Compliance) Regulations andcases involving First Nations band governance). Special management can also be requested informally by letter when it is anticipatedthat the timelines set out in the Rules cannot reasonably be met by the parties, or when the Court’s intervention will be required to issuedirections, resolve procedural issues or deal with interlocutory motions.

The goal is to ensure that the proceeding is determined in themost just, expeditious and least expensive manner, as set out in Rule 3. [6] There are ample reasons for appointing a case management judge in the present case. In reaching that conclusion, I haveconsidered the arguments the Applicant has advanced to the contrary. [7] This application concerns the refusal to issue a passport in the name of the Applicant. The refusal to issue the passport wasbased on the grounds that it was necessary to prevent the commission of a terrorist offence or for the national security of Canada or aforeign state.

Section 6(2) of the Prevention of Terrorist Travel Act, SC 2015, c 36, [PTTA] sets out special rules that apply toproceedings relating to refusals or revocations under Canadian Passport Order. [8] Subsection 6(2)(

a) of the PTTA provides that the judge hearing the matter (the “designated judge”) must, on request of theMinister of Public Safety, hear submissions on evidence of which the disclosure may be harmful to national security or endanger thesafety of an individual. The specific processes by which such submissions are to be made have not yet been established. Subsections6(2)(b)(

c) and (

d) also provide that the designated judge must ensure the confidentiality of the evidence and other information providedby the Minister, ensure that the Applicant is provided with a

summary of the evidence and other information available to the judge, andprovide the Applicant and the Minister with an opportunity to be heard. [9] The Respondents have stated that they intend to make submissions to the Court pursuant to section 6(2)(

a) and will be

requesting directions to that effect. Due to the exigencies of the business of the Court, it will take some time before this process can be completed.

It follows that information which might be used by the Respondents to justify or explain the decision under review will not be available for inclusion in the certified tribunal record as the deadline for transmittal of the tribunal record in accordance with Rule 318 has expired, and may not be available for inclusion in the Respondents’ supporting affidavit within the timeframe prescribed by Rule 307. [ 10 ] Given that the PTTA was recently adopted and that there has been no judicial consideration of the legislation, and in light of the Respondents’ stated intention to seek directions from a designated judge and the almost certain need for Court’s directions on how this matter should proceed, I conclude that the appointment of a case management judge is both just and necessary to ensure that the matter proceeds in an orderly and expeditious manner.

ORDER THIS COURT ORDERS that: 1. The application shall continue as a specially managed proceeding. 2. No further steps shall be taken by the parties in this proceeding pending further order or directions of the Court. 3. The matter shall be referred forthwith to the Chief Justice to appoint a case management judge. 4. There shall be no order as to costs of this motion. “Roger R.

Lafrenière” Prothonotary FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-876-16 STYLE OF CAUSE: CORY PENNEY v THE MINISTER OF PUBLIC SAFETY CANADA AND ATTORNEY GENERAL OF CANADA MOTION IN WRITING CONSIDERED AT VANCOUVER, BRITISH COLUMBIA PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: LAFRENIÈRE P. DATED: July 26, 2016 WRITTEN REPRESENTATIONS BY : Arman Chak For The Applicant Robert Drummond For The RespondentS SOLICITORS OF RECORD : Arman Chak Barrister & Solicitor Edmonton, Alberta For The Applicant William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta For The Respondents