Babineau v. Canada
T-2496-93
Nadon J.
14/1/94
7 pp.
Motion to set aside order striking out statement of claim as revealing no cause of action -- Plaintiff writing to every member of House of Commons, Senate enclosing petition to be tabled in each House seeking address of each House for removal of Federal Court, Trial Division Judge -- Submitting right to petition Queen and Senate pursuant to Bill of Rights, 1688, s. 5, and Governor General under obligation to summon and call together House of Commons, Senate to grant that right pursuant to Constitution Act, 1867, ss. 40, 24 -- Day before issuance of Proclamation dissolving Parliament and Proclamation issuing writ of election, plaintiff filing originating notice of motion seeking mandamus directing Governor General to summon House of Commons and Senate so that plaintiff's petitions could be dealt with or declaration Governor General ought to be recalled for such purpose or setting aside dissolution -- Associate Chief Justice dismissing motion without prejudice to plaintiff's right to seek similar relief by way of action for declaratory judgment instead of through judicial review -- Plaintiff issuing and serving impugned statement claim -- Motion dismissed -- Discretionary orders of prothonotaries not to be set aside unless discretion based upon wrong principle or misapprehension of facts -- A.S.P.'s order not based upon wrong principle or misapprehension of facts -- R. 336(1)(b)(i) removing from prothonotaries jurisdiction to grant orders "inconsistent with order previously made by Court or judge" -- In submitting statement of claim dated October 22, 1993 plaintiff not obeying order directed at him -- Order of Associate Chief Justice simply stating plaintiff's right to initiate action for declaratory judgment -- Although Bill of Rights, 1688 giving individuals right to petition Crown, dictionary definition of "petitioning" including acts far less onerous than full parliamentary audience, including writing letters -- Rights of Parliamentary privilege, including freedom of speech, limited to both Houses of Parliament and to members thereof -- Nothing in Bill of Rights, 1688 stating right to petition superseding all other prerogative acts when petition pending, i.e. Governor General issuing writ of election, or speaking to consequences of prerogative acts when petition pending -- Plaintiff's actual complaint relating to Governor General's decision to dissolve Parliament before plaintiff's petition considered by Parliament -- No evidence why plaintiff's petition had to be considered before dissolution of Parliament -- Even if Bill of Rights, 1688 received into Canadian law and not superseded by subsequent legislation, not providing plaintiff with rights seeks -- Pleadings not revealing cause of action -- Federal Court Rules, C.R.C., c. 663, RR. 2(2), 6 (as am. by SOR/90-846, s. 2), 336(1)(b)(i), (5), 419(1) (a),(c),(f) -- Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 2], ss. 24, 40, 99(1) -- Bill of Rights, 1688 (U.K.), 1 W. & M. sess. 2, c. 2, ss. 1, 5 -- Department of Justice Act, R.S.C., 1985, c. J-2, ss. 4(a),(b), 5(b).