COMER Appeal of Federal Court Decision

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By Rocco Galati, BA, LLB, LLM
On August 9, 2013, Prothonotary Aalto (a Justice of the Federal Court), struck COMER’s claim against the Bank of Canada and Minister of Finance.
On August 16, 2013, COMER issued a Notice of Appeal. The Appeal is scheduled to be argued, for a full day, on Tuesday, December 10, 2013, at 9:00 am, at 180 Queen Street West, Toronto.
In its decision, in a nutshell, the Federal Court decided as follows:
1. That the Plaintiffs have standing to bring the claim.
2. That the Court has jurisdiction to hear the case.
3. That Declaratory Relief is obtainable in such cases.
The Court however struck the claim because it was not “justiciable.” Justiciability is a doctrine that, in short is normally and properly invoked where the Court essentially does not have the expertise, or is incapable, at the end of the day, to come to a judicial determination of the issue because it is beyond the scope of what a Court does.
In this case, invoking the doctrine of justiciability lacks logic, is devoid of cogency, and is reverse circular reasoning. It is one of the most embarrassing decisions I have seen in a long time. It is contrary to the avalanche of jurisprudence.
On a motion to strike, the Court is not allowed, according to the Supreme Court of Canada, to come to any (final) conclusions with respect to the merits of the case, including interpreting any statutory provisions in issue.
The Federal Court decided the claim was not justiciable because the case deals with “policy-ridden” socio-economic issues. This would not be the first time the Courts, including the Supreme Court of Canada, dealt with policy-ridden socio-economic issue(s), which contravene statue and the Constitution. These cases were put to the Federal Court, but ignored.
The Court’s decision rests on a flawed interpretation of the word “may” in section 18 of the Bank of Canada Act which interpretation is one of the crux issues in dispute. Again, the Supreme Court of Canada has made it clear that statutory interpretation, particularly in the face of a constitutional challenge, should be determined by the trial judge, after evidence in a trial, not by a motions judge on a motion to strike, just based on the pleadings. The Supreme Court of Canada jurisprudence on this point was also ignored by the Federal Court.
The Federal Court decision is devoid of any logic, but-for its absurd reverse circular reasoning, because, by deciding these substantive issue(s), which the Court did not have the jurisdiction to do so, on a motion to strike, proved that the issue(s) are justiciable. But the Court, in essence, rules that the issue(s) are not justiciable because if he were the trial judge, he would decide them against the plaintiffs…which is not his function on a motion to strike.
We have therefore appealed, this lilting decision, which is perversely circular in its ignoring of the law and the crux of the issue(s) it decides without jurisdiction to do so.

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