T-1350-75
William Smith (Plaintiff)
v.
Attorney General of Canada (Defendant)
Trial Division, Collier J.—Vancouver, September
2, 1976.
Practice—Jurisdiction—Application for writ of prohibi-
tion—Motion brought under s. 17 of Federal Court Act—
Specific relief can only be obtained by proper proceedings in
proper form and in proper court—Court cannot tell plaintiff
how to proceed—Federal Court Act, s. 17.
Request for leave to effect service by first class mail under
Federal Court Rule 311—Only way to ensure proper service
and providing date is to effect service by registered mail—
Request for free certified copies of documents refused as
previously directed—Federal Court Rule 311.
APPLICATION under Rule 324.
SOLICITORS:
Plaintiff for himself.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
COLLIER J.: This is yet another motion by the
plaintiff (undated as usual) in this proceeding. It
was received in the Ottawa registry on August 10,
1976. It was accompanied by an affidavit sworn by
the plaintiff on August 4, 1976 and a letter dated
August 3. The contents of the letter are as follows:
Old Crow Y. T.
3 August 1976.
The Administrator
The Federal Court of Canada
Ottawa
T-1350-75
Dear Sir—
Enclosed is an Application for an Order to show cause why a
Writ of Prohibition should not issue to prohibit certain acts
authorized by Land Use Permits. I request disposition under
Rule 324.
The Court is hereby petitioned for leave in the circumstances
to effect service by first class mail and upon this my declaration
that I have no money of my own to pay copying fees nor
facilities to make such copies to order in the circumstances the
Registry to supply copies essential for service i.e.
4 certified copies Application
4 certified copies Affidavit
4 certified copies this letter
Yours truly
William Smith
I have concluded the motion must be dismissed.
If my decision had been to allow the motion to
proceed further, I would not have directed service
on the defendant Attorney General by first class
mail, rather than registered mail as required
(except by Court order) by the Rules. (See Rule
311). There have been in the past a large number
of motions in this suit and in T-1514-75. The only
orderly way to ensure that such motion or docu
ment has been properly served, and the actual date
on which service has been effected, is by insisting
service be effected by registered mail. In respect of
the request for certified copies without payment of
the required fees, I repeat the direction I gave in
reasons for judgment dated September 2, 1976 in
respect of a motion seeking an order against Tank
& Bridge Company. The plaintiffs (in this suit and
T-1514-75) must, in the future, tender the
required fees of 20 cents per page in order to have
copies of documents returned to them.
I now go to the merits of the motion. It is
purportedly brought under section 17 of the Fed
eral Court Act. The relief sought is against the
defendant for
.. an Order to show cause why a Writ of Prohibition
restraining any of Her Majesty's subjects from proceeding in
any manner touching upon or relating to construction or erec
tion of a bridge across Eagle River at or about point 67°N.L.,
137°W.L. or touching upon or relating to, or connected with
the construction of the Dempster Highway under any author
ity, franchise, immunity, or privilege purported to be granted
under issue or instruments purported to be authorized in the
name of and in behalf of Her Majesty the Queen under
Regulations made under and purported to be authorized under
a statute of Canada styled "The Territorial Lands Act (as
amended)" and called therein "Land Use Permits until adjudi
cation of the captioned cause ...."
As I understand it (on reading the whole of the
notice of motion) the plaintiff's complaint is this.
Certain land use permits have been issued by one
Brian Trevor permitting persons to construct and
do certain things on certain lands. In particular,
permits are said to have been issued in respect of
the Dempster Highway and a bridge at Eagle
River. It is said by the plaintiff that the Govern
ment of Canada has no jurisdiction or rights in
respect of the lands described by the plaintiff in
the originating document of this proceeding.
In paragraph 20 of the plaintiff's affidavit,
Brian Trevor is asserted to be acting as an inferior
court in a judicial capacity, involving exercise of
discretion. I assume the plaintiff's position to be
that this Court has power to issue a writ of prohi
bition against an inferior Court, in this case,
Trevor. This power is, I further presume, then
translated into some kind of jurisdiction to give
prohibitory relief under section 17 of the Federal
Court Act against the Crown, or in this case the
defendant Attorney General of Canada. The relief
further sought is not against the Crown, but
appears to be a restraining order against "any of
Her Majesty's subjects", who may carry on activi
ties under land use permits.
The whole motion and procedure is miscon
ceived. If specific relief is sought against certain
individuals, including Brian Trevor, then proper
proceedings, in the proper form, in the proper
court must be brought against those persons. An
application for a writ of prohibition against the
Attorney General in this proceeding ("An applica
tion for a Declaratory Order T-1350-75") is not,
in my opinion, proper or tenable. It is not for me to
tell the plaintiff how he should proceed.
I dismiss the motion.
ORDER
The motion set out in paragraph 1 of these
reasons is dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.