Date: 20140919

Docket: A-218-14
Citation: 2014 FCA 205
Present: WEBB J.A.
BETWEEN:
DR. GBOR LUKCS
Applicant
and
CANADIAN TRANSPORTATION AGENCY
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on September 19, 2014.
REASONS FOR ORDER BY: WEBB J.A.


Date: 20140919
Docket: A-218-14
Citation: 2014 FCA 205
Present: WEBB J.A.
BETWEEN:
DR. GBOR LUKCS
Applicant
and
CANADIAN TRANSPORTATION AGENCY
Respondent
REASONS FOR ORDER
WEBB J.A.
[1] Dr. Gbor Lukcs, on April 22, 2014, commenced an application for judicial review in
respect of:
(a) the practices of the Canadian Transport Agency (Agency) related to the
rights of the public, pursuant to the open-court principle, to view information
provided in the course of adjudicative proceedings; and
Page: 2
(b) the refusal of the Agency to allow the Applicant to view unredacted
documents in File No. M4120-3/13-05726 of the Agency, even though no
confidentiality order has been sought or made in that file.
[2] The Agency brought a motion to quash this application for judicial review pursuant to
paragraph 52(a) of the Federal Courts Act. This paragraph provides that:
52. The Federal Court of Appeal may
(a) quash proceedings in cases brought
before it in which it has no jurisdiction
or whenever those proceedings are not
taken in good faith;


52. La Cour dappel fdrale peut :
a) arrter les procdures dans les
causes qui ne sont pas de son ressort
ou entaches de mauvaise foi;
[]

[3] The Agency does not allege that the notice of application for judicial review was not
taken in good faith but rather that this Court does not have the jurisdiction to hear this
application. The grounds upon which the Agency relies are the following:
1. Subparagraph 28(1)(k) of the Federal Courts Act provides that it has jurisdiction
to hear application for judicial review made in respect of decisions of the Agency.
2. A refusal to disclose government information, containing personal information
such as in the present case for example, is a refusal of the head of the
institution. It is therefore not a decision of the Agency falling within the purview
of section 28 of the Federal Courts Act.
Page: 3
3. The application for judicial review should have been filed with the Federal Court.
4. Any person who has been refused access to a record requested under the Access to
Information Act or a part thereof may, if a complaint has been made to the
Information Commissioner in respect of the refusal, apply to the Federal Court for
a review of the matter within the time specified in the Access to Information Act.
5. There are three prerequisites that must be met before an access requestor may
apply for Judicial Review:
1) The applicant must have been refused access to a record
2) The applicant must have complained to the Information Commissioner
3) The applicant must have received an investigation report by the
Information Commissioner
6. The applicant could not apply for a judicial review because (1) the applicant's
request was treated informally and there is therefore no refusal; (2) the applicant
did not complain to the Information Commissioner before filing the within
judicial review application; and (3) the applicant did not receive an investigation
report by the Information Commissioner.
7. Even if the application for judicial review had been filed with the appropriate
Court, it would have had no jurisdiction to obtain this application.
Page: 4
8. Such further and other grounds as counsel may advise and this Honourable Court
may permit.
[4] In Canada (Minister of National Revenue) v. JP Morgan Asset Management (Canada)
Inc., 2013 FCA 250, [2013] F.C.J. No. 1155, Stratas J.A., writing on behalf of this Court, noted
that:
(3) Motions to strike notices of application for judicial review
47 The Court will strike a notice of application for judicial review only where it is
"so clearly improper as to be bereft of any possibility of success": David Bull
Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at page 600
(C.A.). There must be a "show stopper" or a "knockout punch" - an obvious, fatal
flaw striking at the root of this Court's power to entertain the application: Rahman
v. Public Service Labour Relations Board, 2013 FCA 117 at paragraph 7;
Donaldson v. Western Grain Storage By-Products, 2012 FCA 286 at paragraph 6;
cf..Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.
48 There are two justifications for such a high threshold. First, the Federal Courts'
jurisdiction to strike a notice of application is founded not in the Rules but in the
Courts' plenary jurisdiction to restrain the misuse or abuse of courts' processes:
David Bull, supra at page 600; Canada (National Revenue) v. RBC Life Insurance
Company, 2013 FCA 50. Second, applications for judicial review must be brought
quickly and must proceed "without delay" and "in a summary way": Federal
Courts Act, supra, subsection 18.1(2) and section 18.4. An unmeritorious motion -
one that raises matters that should be advanced at the hearing on the merits -
frustrates that objective.
[5] In this case the Agency is relying on the authority provided in section 52 of the Federal
Courts Act to strike the notice of application for judicial review. However, the comments of
Stratas J. that an application for judicial review will only be struck if the application is so
clearly improper as to be bereft of any possibility of success" are equally applicable in this case.
In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, this Court also
Page: 5
noted that a reason for such a high threshold is the difference between an action and an
application for judicial review. As stated in paragraph 10:
An action involves, once the pleadings are filed, discovery of documents,
examinations for discovery, and then trials with viva voce evidence. It is
obviously important that parties not be put to the delay and expense involved in
taking a matter to trial if it is "plain and obvious" (the test for striking out
pleadings) that the pleading in question cannot amount to a cause of action or a
defence to a cause of action
Further, the disposition of an application commenced by originating notice of
motion does not involve discovery and trial, matters which can be avoided in
actions by a decision to strike. In fact, the disposition of an originating notice
proceeds in much the same way that an application to strike the notice of motion
would proceed: on the basis of affidavit evidence and argument before a single
judge of the Court. Thus, the direct and proper way to contest an originating
notice of motion which the Agency thinks to be without merit is to appear and
argue at the hearing of the motion itself
[6] Therefore, there is a high threshold for the Agency to succeed in this motion to quash the
application for judicial review.
[7] The first three grounds for quashing the application for judicial review identified by the
Agency can be consolidated and summarized as a submission that there is no decision of the
Agency and that this Court only has the jurisdiction under subparagraph 28(1)(k) of the Federal
Courts Act to judicially review decisions of the Agency.
[8] Subparagraph 28(1)(k) of the Federal Courts Act provides that:
28. (1) The Federal Court of Appeal
has jurisdiction to hear and determine
applications for judicial review made
in respect of any of the following
federal boards, commissions or other
tribunals:

28. (1) La Cour dappel fdrale a
comptence pour connatre des
demandes de contrle judiciaire visant
les offices fdraux suivants :
[]
Page: 6
(k) the Canadian Transportation
Agency established by the Canada
Transportation Act;

k) lOffice des transports du Canada
constitu par la Loi sur les transports
au Canada;

[9] There is nothing in subsection 28(1) to suggest that an application for judicial review can
only be made to this Court if there is a decision of the Agency.
[10] In Air Canada v. Toronto Port Authority, 2011 FCA 347, [2011] F.C.J. No. 1725, Stratas
J.A. stated that:
23 Although the Federal Court judge and the parties focused on whether a
"decision" or "order" was present, I do not take them to be saying that there has to
be a "decision" or an "order" before any sort of judicial review can be brought.
That would be incorrect.
24 Subsection 18.1(1) of the Federal Courts Act provides that an application for
judicial review may be made by the Attorney General of Canada or by anyone
directly affected by "the matter in respect of which relief is sought." A "matter"
that can be subject of judicial review includes not only a "decision or order," but
any matter in respect of which a remedy may be available under section 18 of the
Federal Courts Act: Krause v. Canada, [1999] 2 F.C. 476 (C.A.). Subsection
18.1(3) sheds further light on this, referring to relief for an "act or thing," a
failure, refusal or delay to do an "act or thing," a "decision," an "order" and a
"proceeding." Finally, the rules that govern applications for judicial review apply
to "applications for judicial review of administrative action," not just applications
for judicial review of "decisions or orders": Rule 300 of the Federal Courts Rules.
25 As far as "decisions" or "orders" are concerned, the only requirement is that
any application for judicial review of them must be made within 30 days after
they were first communicated: subsection 18.1(2) of the Federal Courts Act.
[11] Subsection 28(2) of the Federal Courts Act provides that section 18 to 18.5 (except
subsection 18.4(2)) apply to any matter within the jurisdiction of this Court. Therefore, a
decision is not necessarily required in order for this Court to have jurisdiction under section 28 of
the Federal Courts Act.
Page: 7
[12] The other grounds that are submitted for quashing the notice of application are related to
the Access to Information Act, R.S.C., 1985, c. A-1. It is acknowledged by both Dr. Lukcs and
the Agency that Dr. Lukcs did not submit a request for information under this Act. Section 41 of
that Act would only apply if the conditions as set out in that section were satisfied. Since he did
not submit a request under that Act, the conditions of this section are not satisfied.
[13] However, the argument of Dr. Lukcs is that he has the right to the documents in question
without having to submit a request for these under the Access to Information Act. The Agency
did not refer to any provision of the Access to Information Act that provides that the only right to
obtain information from the Agency is by submitting a request under that Act.
[14] The issue on this motion is not whether Dr. Lukcs will be successful in this argument
but rather whether his application is so clearly improper as to be bereft of any possibility of
success. I am not satisfied that the Agency has met this high threshold in this case. I agree with
the comments of this Court in David Bull Laboratories (Canada) Inc. that the direct and proper
way to contest a [notice of application for judicial review] which the Agency thinks to be without
merit is to appear and argue at the hearing of the [application] itself.
[15] The Agencys motion to quash the notice of application for judicial review in this matter
is dismissed, with costs, payable in any event of the cause.
Wyman W. Webb
J.A.


FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-218-14
STYLE OF CAUSE: DR. GABOR LUKACS v.
CANADIAN TRANSPORTATION
AGENCY

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: WEBB J.A.

DATED: SEPTEMBER 19, 2014

WRITTEN REPRESENTATIONS BY:
Self-represented

FOR THE APPLICANT

Odette Lalumire

FOR THE RESPONDENT

SOLICITORS OF RECORD:
Self-represented

FOR THE APPLICANT

Legal Services Branch
Canadian Transportation Agency

FOR THE RESPONDENT