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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.
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