Executive Summary: Key Legal and Evidentiary Issues

• Adan McIntosh sought "clarification" of the Judgment of Justice Pallotta issued on September 11, 2024, which had dismissed his judicial review application regarding three decisions of the Canadian Judicial Council.

• The Attorney General argued the Court lacked jurisdiction because the Court is functus officio and that the Judgment of Justice Pallotta does not require "clarification."

• Federal Courts Rules do not provide for a motion for "clarification," though they do provide for reconsideration of orders (Rule 397) and setting aside or variance of orders (Rule 399).

• McIntosh's separate action (T-787-25) claiming a breach of Charter rights and seeking $20,000.00 in damages was struck out by Justice Fuhrer without leave to amend as a collateral attack on Justice Pallotta's Judgment.

• No appeal had been taken from the Judgment of Justice Pallotta, despite the availability of appellate remedies under paragraph 27(1)(c) of the Federal Courts Act.

• The motion was dismissed with costs of $250.00, inclusive of disbursements and taxes, awarded to the Attorney General of Canada.

Background and origin of the dispute

This case arises from a series of legal proceedings initiated by Adan McIntosh against the Attorney General of Canada. McIntosh had filed complaints against three judges of the Ontario Superior Court, which are referred to in the decision as the Shore Complaint, the Morawetz Complaint, and the McWatt Complaint. The Canadian Judicial Council (CJC) dismissed all three complaints. McIntosh then filed an application for judicial review of those dismissal decisions in the Federal Court under docket T-234-23. On September 11, 2024, Justice Pallotta issued a Judgment dismissing McIntosh's application for judicial review.

The subsequent action and collateral attack finding

On March 7, 2025, McIntosh commenced a new action in the Federal Court under cause number T-787-25 by issuing a statement of claim naming the Attorney General as the Defendant. McIntosh claimed a breach of his rights pursuant to the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, and sought the award of damages in the amount of $20,000.00. On January 9, 2026, Justice Fuhrer granted a motion filed by the Attorney General to remove the statement of claim from the Court files and struck out the statement of claim without leave to amend. In her reasons, Justice Fuhrer found that the action commenced by McIntosh amounted to a collateral attack on the Judgment of Justice Pallotta.

The motion for "clarification"

By a notice of motion dated January 27, 2026, McIntosh sought "clarification" of Justice Pallotta's Judgment. Among the grounds set out in his notice of motion, McIntosh argued that the order provided by Justice Pallotta either contains ambiguities or is not written in plain enough English for certain judges and lawyers to understand, and that Justice Fuhrer appeared to take a position inconsistent with the actual meaning of Justice Pallotta's order. The Court observed, however, that McIntosh was not seeking clarification of the "Judgment" itself but rather of certain words in the "Reasons" of Justice Pallotta, specifically taking issue with the second sentence of paragraph 37 of those reasons. McIntosh submitted that an appeal of the Order of Justice Fuhrer would be unnecessary if the Court "explained" what was meant by Justice Pallotta at paragraph 37 of her reasons. In support of his motion, McIntosh relied on paragraph 24 of the decision in Canadian Doctors for Refugee Care v. Canada (Attorney General), 2015 FC 149, but did not refer to the preceding paragraphs in that decision where Justice Mactavish reviewed the principles of functus officio.

The Attorney General's response

On February 2, 2026, the Attorney General filed written submissions in response to McIntosh's notice of motion. The Attorney General raised two arguments: first, that the Court lacks jurisdiction to entertain the motion because the Court is functus officio, and second, that the Judgment of Justice Pallotta does not require "clarification." The doctrine of functus officio, as cited by the Court from Canada v. Greenwood, 2024 FCA 22, provides that once a matter is finally ruled upon, the judge has discharged its office and cannot re-open the matter, as to do so would impede on "orderly appellate procedure."

The Court's analysis of jurisdiction and procedural rules

Madam Justice Heneghan, presiding over the motion heard on February 4, 2026 in Toronto, Ontario, reviewed the applicable Federal Courts Rules, S.O.R/98-106. The Court noted that the Rules do not provide for a motion for "clarification." As referenced in Canadian Doctors for Refugee Care, there are provisions for the Court to reconsider the terms of an order and to correct clerical mistakes (Rule 397), and to vary or set aside an order (Rule 399), but no provision exists for the type of relief McIntosh was seeking. The Court stated that no Court has the authority to "re-write" reasons, and that the Court has limited authority to correct orders. Justice Heneghan also noted that the statutory context in Wong v. Canada (Minister of Citizenship and Immigration), which McIntosh relied upon through Canadian Doctors for Refugee Care, was the immigration context — a very different context from that prevailing in McIntosh's litigation vis-à-vis the Canadian Judicial Council. Justice Mactavish herself, in Canadian Doctors for Refugee Care, had characterized the Wong decision as being "of limited assistance."

The ruling and outcome

The Court dismissed McIntosh's motion for clarification. Justice Heneghan noted that the Applicant has the right to appeal the Order of Justice Fuhrer, as "Order" under Rule 2 of the Federal Courts Rules includes a judgment, and paragraph 27(1)(c) of the Federal Courts Act, R.S.C., 1985, c. F-7, allows an appeal to the Federal Court of Appeal from an interlocutory judgment of the Federal Court. According to the Court files, no appeal had been taken from the Judgment of Justice Pallotta. Although Counsel for the Attorney General did not appear upon the hearing of the motion, written representations were filed, and the Attorney General opposed the motion and succeeded in his opposition. The Court, exercising its discretion under Rule 400(1), awarded costs in favour of the Attorney General of Canada in the amount of $250.00, inclusive of disbursements and taxes.