TIMOTHY E. LEAHY Appellant v. MINISTER OF JUSTICE, 2023 FCA 64

Date: 20230321 Docket: A-108-21 Citation: 2023 FCA 64 CORAM: WEBB J.A. RENNIE J.A. LOCKE J.A. BETWEEN: TIMOTHY E. LEAHY Appellant and MINISTER OF JUSTICE Respondent Heard at Toronto, Ontario , on March 14, 2023 . Judgment delivered at Ottawa, Ontario , on March 21, 2023 . REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: WEBB J.A. LOCKE J.A. Date: 20230321 Docket: A-108-21 Citation: 2023 FCA 64 CORAM: WEBB J.A. RENNIE J.A. LOCKE J.A. BETWEEN: TIMOTHY E.

LEAHY Appellant and MINISTER OF JUSTICE Respondent REASONS FOR JUDGMENT RENNIE J.A. [ 1 ] This is an appeal of an order of the Federal Court ( 2021 FC 302 , per Furlanetto J.). In that decision, Furlanetto J. granted the respondent’s motion to strike the appellant’s judicial review application of a decision of the Registrar of the Supreme Court of Canada (the Registrar).

Under subsection 73(4) of the Rules of the Supreme Court of Canada, S.O.R./2002-156 (the Rules ), the Registrar had refused the appellant’s motion for reconsideration of the Supreme Court’s decision to dismiss his motion for leave to appeal from a decision of this Court. [ 2 ] The procedural background that gives rise to this appeal may be briefly stated. [ 3 ] The appellant sought a declaration in the Federal Court that he was permitted to appear as counsel in the Federal Courts despite not

being a member of the Law Society of Ontario. The Minister of Justice moved, successfully, to strike the application (Leahy v. Canada(Justice), 2019 FC 973, 63 Admin. L.R. (6th) 161). The appellant did not file a notice of appeal from the judgment striking hisapplication within the 30-day limit prescribed by paragraph 27(2)(

b) of the Federal Courts Act, R.S.C. 1985, c. F-7, and later brought amotion for leave to extend the time within which he could do so. Stratas J.A., sitting as single judge of this Court, dismissed the motionand refused to extend the time within which the appellant could appeal. The appellant next sought leave to appeal Stratas J.A.’s decisionto the Supreme Court.

The Supreme Court dismissed the appellant’s application for leave to appeal on October 15, 2020 (39254, ). [4] The appellant then filed a motion for reconsideration of the Supreme Court’s refusal to grant leave. [5] The Registrar, noting the criteria prescribed in Rule 73 of the Rules, refused to accept the reconsideration motion because theappellant’s accompanying affidavit did not establish the exceedingly rare circumstances required for the filing of such a motion.

Thisprompted the appellant to file his judicial review application, which was struck by the Federal Court. [6] I see no error in the Federal Court’s reasons. Furlanetto J. correctly identified the legal test to strike a notice of application for judicialreview, where the application may only be struck where it is "“so clearly improper as to be bereft of any possibility of success”"(Reasons at para. 17, citing David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.), [1995] 1 F.C. 588, (FCA)).

The judge noted that where there is clear and binding authority that is directly contrary to the position on which the applicationis based, the application meets the standard of being "“bereft of any possibility of success”" and may appropriately be struck at an earlystage (Reasons at para. 18). That is the case here. [7] Settled jurisprudence—specifically, the Supreme Court’s decision in Stubicar v. Canada, 2014 SCC 38, [2014] 2 S.C.R. 104, theFederal Court of Appeal’s decision in Scheuneman v. Canada (Attorney General), 2003 FCA 194, 303 N.R. 359 [Scheuneman] and theFederal Court’s decision in Sydel v.

Canada (Attorney General), 2013 FC 1116, 441 F.T.R. 310 [Sydel]—confirm that the SupremeCourt cannot be compelled to consider a motion for reconsideration. [8] The Supreme Court is not a federal board, commission or tribunal within the meaning of

section 18.1 of the Federal Courts Act. Tohold that the Federal Court could compel the Supreme Court to hear a motion for reconsideration would offend the principle that courtscontrol their own processes, which is in turn an element of the unwritten constitutional principle of judicial independence. Further, if theFederal Court could judicially review a decision or order of the Supreme Court, that decision itself would be subject to appeal to theSupreme Court (Scheuneman at para. 11; Sydel at paras. 56-58).

The absurdity of the proposition is self-evident. [9] The appellant argues that the Registrar is not a judge, and cannot therefore decide matters that bear on appeals to the Supreme Court.He further argues that, as applications for leave to appeal are considered by a panel of three judges of the Supreme Court, the sameprocedure must apply to his motion for reconsideration. I disagree with both of these arguments. [10]

Section 18 of the Supreme Court Act, R.S.C. 1985, c. S-26 authorizes the Registrar to exercise any jurisdiction of a judge sitting inchambers as may be conferred by general rules or orders made under that Act, and subsection 73(4) of the Rules specifically allows theRegistrar to refuse to accept a motion for reconsideration. Lest there be any doubt on the point,

section 12 of the Rules provides thatevery order of the Registrar shall be binding on the parties "“as if the order had been made by a judge.”" [11] I note as well that while subsection 43(3) of the Supreme Court Act requires a quorum of three judges to dispose of an applicationfor leave, there is no equivalent requirement regarding the necessary quorum for the Supreme Court’s decision on whether it shouldaccept a motion for reconsideration. A motion for reconsideration is not the same as a motion for leave to appeal.

The former engages aninquiry into circumstances extraneous to the decision of the Supreme Court itself, while the latter assesses the issues in the decisionsought to be appealed against statutory criteria of national or public importance. Further, motions for reconsideration arise only under theRules; they are not governed by the Supreme Court Act, unlike applications for leave to appeal. [12] I would dismiss the appeal with costs, which I would fix at $500.00. “Donald J. Rennie” J.A. “I agree. Webb J.A.” “I agree.

Locke J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-108-21STYLE OF CAUSE: TIMOTHY E. LEAHY v. MINISTER OF JUSTICE

PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: March 14, 2023 REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: WEBB J.A. LOCKE J.A. DATED: March 21, 2023 APPEARANCES : Timothy E. Leahy ON HIS OWN BEHALF James Schneider For The Respondent SOLICITORS OF RECORD : Shalene Curtis-Micallef Deputy Attorney General of Canada For The Respondent