Executive Summary: Key Legal and Evidentiary Issues

• Proper designation of the respondent in a judicial review application where Cartesian Theatre Corp. initially named the Business Development Bank of Canada instead of the Attorney General of Canada.

• Application of Rules 303 and 304 of the Federal Courts Rules to determine that the Attorney General of Canada must be the respondent where the purported tribunal is the Business Development Bank of Canada and the Attorney General was properly served.

• Use of Rule 76 to correct the style of cause and substitute the Attorney General of Canada as respondent, treating the misnaming as a technical error rather than a substantive defect.

• Limits of the Hennelly extension-of-time test in circumstances where the only change sought is a technical correction of the respondent’s name and no prejudice to the Attorney General of Canada is shown.

• Express reservation of the question whether the Business Development Bank of Canada is a “federal board, commission or other tribunal” whose actions are reviewable under sections 18 and 18.1 of the Federal Courts Act, and whether the impugned matters are amenable to judicial review.

• Dismissal of the Attorney General of Canada’s appeal and award of fixed, all-inclusive costs of $7,500.00 in favour of Cartesian Theatre Corp., confirming the Federal Court’s order and amending the appeal style of cause to remove the Business Development Bank of Canada.

Facts and background

Cartesian Theatre Corp. commenced an application for judicial review in the Federal Court challenging actions it attributed to the Business Development Bank of Canada. In framing its proceeding, Cartesian Theatre Corp. treated the Bank as the relevant decision-maker and named it as the respondent in the style of cause. Under the Federal Courts Rules, however, when the challenged entity is treated as the tribunal, that entity is not to be named as respondent; instead, if there is no other directly affected party, the Attorney General of Canada must be named as respondent. Despite the misnaming in the style of cause, the Attorney General of Canada was properly served with the application in accordance with Rule 304(1), and there was no evidence that the Attorney General suffered any prejudice from either the original designation or the timing of any corrective steps taken by Cartesian Theatre Corp.

Procedural history and motion to correct the style of cause

Recognizing the misdescription of the respondent, Cartesian Theatre Corp. brought a motion in writing in the Federal Court under Rule 76 to correct the name of the respondent by substituting the Attorney General of Canada for the Business Development Bank of Canada in the underlying judicial review. The Federal Court considered subsection 18.1(2) of the Federal Courts Act, which permits extensions of the 30-day period for commencing or regularizing an application for judicial review, even after expiry of that time. Relying on the test for extensions of time described in authorities such as Canada v. Hennelly and Whitefish Lake First Nation v. Grey, the Federal Court found that the interests of justice supported granting an extension and allowed the substitution, effectively regularizing the proceeding to show the Attorney General of Canada as respondent. The Attorney General of Canada appealed this interim order to the Federal Court of Appeal, arguing that the Federal Court had erred in law by failing to properly articulate or apply the Hennelly factors when exercising its discretion. On the appeal, the Attorney General of Canada conceded that he was, and always had been, the appropriate respondent in the judicial review, accepted that service had been properly effected, and did not assert any actual prejudice arising from the delay or from Cartesian Theatre Corp.’s procedural steps. Nonetheless, the Attorney General challenged the manner in which the Federal Court had exercised its discretion and continued to list the Business Development Bank of Canada in the style of cause on appeal, even though the real controversy was between the Attorney General of Canada and Cartesian Theatre Corp.

Legal framework and characterization of the error

The court examined the operation of Rules 303 and 304 of the Federal Courts Rules in the context of judicial review. Under Rule 303(1), where the application is brought “in respect of a federal board, commission or other tribunal,” that body is not to be named as respondent in the style of cause. In the absence of any other party directly affected by the application, Rule 303(2) requires that the Attorney General of Canada be named as the respondent instead. Given that Cartesian Theatre Corp.’s application alleged that the Business Development Bank of Canada was the tribunal whose actions were at issue, Rule 303 dictated that the Bank could not properly be named as respondent, and that the Attorney General of Canada was the correct respondent from the outset. The court treated the motion under Rule 76 as a technical correction to the style of cause to reflect this default position. Against that background, the court concluded that it was unnecessary and indeed incorrect for the Federal Court to have required Cartesian Theatre Corp. to satisfy the Hennelly extension-of-time test as a precondition to simply correcting the respondent’s name. Nonetheless, the court found that this misstep in the Federal Court’s reasoning did not undermine the validity of the order made, given the absence of prejudice and the Attorney General’s concession that he should have been the respondent. The court expressly declined to decide whether the Business Development Bank of Canada qualifies as a “federal board, commission or other tribunal” within the meaning of sections 18 and 18.1 of the Federal Courts Act, or whether the impugned conduct in the underlying proceeding is amenable to judicial review. Those questions were left open for determination on a more complete record at a later stage of the litigation.

Outcome and financial consequences

The court dismissed the Attorney General of Canada’s appeal from the Federal Court’s interim order. It held that Cartesian Theatre Corp. was entitled to bring a motion to correct the style of cause to substitute the Attorney General of Canada as respondent and that such a correction was a technical matter within the scope of Rule 76, especially where the proper respondent had been correctly identified in substance and properly served, and no prejudice was shown. The Federal Court’s order was therefore upheld. In addition, the court ordered that the style of cause in the appeal be amended to remove the Business Development Bank of Canada so that only Cartesian Theatre Corp. appeared as respondent opposite the Attorney General of Canada. As to monetary consequences, the court awarded costs of the appeal to Cartesian Theatre Corp., fixing them at an all-inclusive amount of $7,500.00 payable by the Attorney General of Canada, and no damages were granted because the proceeding concerned procedural and jurisdictional issues in public law rather than a claim for compensation.