Date: 19981013
Docket: 98-T-33
BETWEEN:
STEVE KASS
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant, Steve Kass, seeks an extension of time within which to make an application for judicial review pursuant to subsection 18(1) of the Federal Court Act. The decision he wishes to have reviewed is that of the Board of Directors of the Canadian Kennel Club ("CKC") refusing to issue him a permit to judge dog shows held pursuant to CKC Rules. The main issue for consideration is whether the Board of Directors of the CKC was acting as a "federal board, commission or other tribunal" in making that decision. If it was not then this Court has no jurisdiction to entertain the application for judicial review.
[2] Mr. Kass is a Canadian citizen who owns and exhibits pure bred dogs. He has been for many years and remains a member of the CKC. In June 1996, he requested and received materials from the CKC concerning the requirements he would have to meet in order to be approved as qualified to judge dog shows held in accordance with CKC Rules. The CKC is an association incorporated under the Animal Pedigree Act, R.S. 1985, c. 8 (4th Supp.). The material that was sent to him indicated that an applicant must be a "resident of Canada during the 5 year period immediately preceding the submission" of the application for a judging permit. An applicant was also required to have been a member of the CKC for that period of time.
[3] Mr. Kass submitted his application for a permit on October 14, 1996. On November 15, 1996 he was notified that he met all the pre-requisite requirements and that a judge's "Name Badge" would be issued once he successfully completed the written exam.
[4] Sometime in November 1996, Mr. Kass moved twenty miles south of his then residence in Abbotsford, B.C., to Ferndale, Washington, U.S.A. On April 27, 1997, Mr. Kass wrote and passed the Conformation Judges Permit Examination. He subsequently received a letter refusing him a judge's permit because it was CKC policy not to issue such permits to non-residents of Canada.
[5] Mr. Kass protested this decision on a number of grounds: 1) the material that had been sent to him the previous June had not indicated that an applicant had to be resident of Canada at the time the judge's permit was issued but only that he need be resident in Canada for the five years preceding the submission of his application; 2) the by-laws of the CKC allowed for non-resident members who were granted, with some exceptions of which judge's permits was not one, all the rights and privilege of resident members; 3) refusing to grant him a permit was contrary to the Canadian Charter of Rights and Freedoms; 4) he had put a lot of time, effort and money into becoming qualified to obtain a judge's permit and he did not see the rationale for requiring the holder of such to be a resident of Canada since the CKC frequently hired foreign judges who were neither Canadian citizens nor Canadian residents.
[6] Mr. Kass sought legal advice immediately after learning that his application for a permit had been rejected. He appealed that rejection to the Board of Directors of the CKC. His appeal was denied by letter dated January 5, 1998. The letter reiterated the CKC policy that Canadian judges required both residency for 5 years preceding the submission of the application and at the time the issuing of a permit took place. On receipt of the January 5, 1998 letter, Mr. Kass informed his solicitor that he wished to pursue whatever legal action was available to him to review the decision. His counsel informed him that he could seek judicial review of the CKC decision in the Federal Court but neglected to advise him of the 30 day limitation period contained in the Federal Court Act. His counsel did not pursue the judicial review application and instead made several unsuccessful efforts to contact the relevant parties at the CKC. Finally, Mr. Kass's counsel suggested that he seek a more experienced lawyer.
[7] The application before this court is pursued by Mr. Kass's new counsel. The delay in filing the application was caused by the inexperience of Mr. Kass's former counsel. Mr. Kass maintained the intention to pursue legal action from the moment his appeal was denied and states that he would have sought judicial review within the time period specified had he been properly informed by counsel. It seems clear that Mr. Kass has provided a satisfactory explanation for the delay that occurred and has demonstrated a continuing intention to pursue whatever legal remedies he might have. The question remains whether he has an arguable case, in particular, whether this court has jurisdiction.
[8] In that context, then, as noted the question to be addressed is whether the CKC Board of Directors was acting as a "federal board, commission or other tribunal" when making the decision in question. If it was then the decision is subject to judicial review by this Court.
[9] The phrase "federal board, commission or other tribunal' is defined in section 2 of the Federal Court Act:
| "federal board, commission or other tribunal" means any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867. [Underlining added] |
[10] As noted, the CKC is a pedigree association incorporated under the Animal Pedigree Act, R.S.C. 1985, c. 8 (4th Supp.). The Act provides for the incorporation of pedigree associations, on application to the Minister.1 The Minister has authority to approve or refuse incorporation depending upon whether the breed with which the association will be involved and the incorporating members meet certain criteria.2
[11] Once approval is given by the Minister, the association is incorporated as a body corporate and is given powers as such.3
[12] An association is required by the Act to make by-laws with respect to certain matters, for example:
| 15.(1) Every association incorporated under this Act shall, within one year after coming into existence, make by-laws |
| . . . . |
| (k) establishing rules respecting the eligibility for the registration or identification, as the case may be, of animals by the association; |
| (l) establishing the procedure to be followed in applications for the registration or identification, as the case may be, of animals by the association; |
| (m) respecting the issuance of certificates of registration or certificates of identification, as the case may be, by the association and the amendment, transfer and cancellation of such certificates; |
| (n) respecting the individual identification of animals registered or identified, as the case may be, by the association, the supervision of all practices in relation thereto and the manner in which unsatisfactory practices in relation thereto are to be dealt with; |
[13] An association is allowed to make by-laws with respect to other matters. Subsection 15(2)(a) of the Act provides:
| Notwithstanding subsection (1), an association may make any by-law necessary for the conduct of its business and affairs, including, without restricting the generality of the foregoing, by-laws |
| (a) respecting the promotion and establishment of breed improvement programs ... [Underlining added] |
[14] The running of dog shows is provided for in the CKC's by-laws pursuant to this subsection. CKC's By-law 5.1(e) provides that one of the objects of the CKC shall be:
| (e) Maintaining a system whereby clubs and associations wishing to do so may hold dog shows, obedience trials, field trials and other trials, tests and activities for purebred dogs under the auspices of, and in accordance with the rules, regulations, standards and procedures established by the Club; ... |
[15] Under subsection 16(1) of the Act, an association's by-laws must be approved by the Minister:
| 16.(1) No by-law of an association and no amendment or repeal of any by-law of an association has any effect until it is approved by the Minister. |
| (4) Where the Minister approves a by-law or an amendment or repeal of a by-law, the Minister shall issue a certificate of by-law approval, or a certificate of by-law repeal, as the case may be, in respect thereof. |
[16] In addition the Minister has authority to inspect and examine the affairs of any association incorporated pursuant to the Act:
| 52.(1) The Minister may, at any time, undertake such inspections and examinations of the business and affairs of any association, or of the Corporation, as the Minister deems appropriate, including, without restricting the generality of the foregoing, inspections into and examinations of |
| (a) the manner in which the registration or identification, as the case may be, of animals is carried out by any association or by the Corporation; |
| (b) the manner in which the individual identification of animals is carried out and supervised by any association or by the Corporation; and |
| (c) the private breeding records of any member of an association. |
| . . . . |
| 58.(1) The Minister may, by order, declare the corporate powers of any association to be terminated in any of the following circumstances: |
| (a) where the association has failed to make by-laws in accordance with section 15 within one year after coming into existence; |
| (b) where the Minister is satisfied that the association has failed for any period to conduct its business and affairs in accordance with the provisions of its by-laws or this Act; ... |
[17] As noted, one of the purposes that a pedigree association may pursue is the "promotion and establishment of breed improvement programs". The CKC opted to make that one of its purposes and passed a by-law stating that one of its objects was "maintaining a system whereby clubs and associations ... may hold dog shows ... and activities for purebred dogs ... in accordance with the rules ... established by the Club ...". In the furtherance of this objective the CKC adopted policies governing the holding of such shows part of which relates to the accreditation of judges therefor. It is pursuant to that policy, found in Chapter VIII, s. C.2(e) of CKC's Policy and Procedures Manual, that Mr. Kass has been refused a judge's permit.
[18] Counsel for Mr. Kass refers to the decisions in Tsang v. Medical Council of Canada, [1981] 2 F.C. 838 (T.D.), Canadian Daily Newspapers Association v. Canada Post Corp., [1995] 3 F.C. 131 (T.D), Aeric, Inc. v. Canada Post Corporation, [1985] 1 F.C.127 (C.A). He relies upon the facts that the incorporation of the CKC must be approved by the Minister for the purposes set out in the Act, that the by-laws of the organization, including that which authorizes it to hold dog shows, must be approved by the Minister, and that the Minister has investigating powers with respect to the operation of the CKC as support for the position that in refusing Mr. Kass a judge's permit the CKC was operating "by or under an Act of Parliament", and that that decision is therefore subject to judicial review by this Court.
[19] I have not been persuaded that this argument is sound. Every corporation that is incorporated under the Canada Corporations Act is operating to some extent "by or under an Act of Parliament". They owe their corporate existence to that Act. More than incorporation pursuant to a federal statute, even when coupled with ministerial approval of its by-laws and the possible inspection of its activities by a Minister is required to make a decision by the corporate body a decision of a federal board, commission or other tribunal. The powers that the Board of Directors were exercising were not required responsibilities under the relevant federal statute. In this regard the decision in question is not similar to those that were under review in the Canadian Daily Newspaper Association and the Aeric cases. Insofar as the Tsang case is concerned there is doubt that it was correctly decided " see Rosenbush v. The National Dental Examining Board of Canada , [1992] 2 F.C. 692 (F.C.A.) at 696, fn. 6.
[20] Mr. Kass may have remedies of a civil nature that can be pursued against the CKC in a provincial court but the decision by the Board of Directors is not one that is subject to judicial review by this Court. I must therefore decline to grant the extension of time that is sought.
Judge
OTTAWA, ONTARIO
October 13, 1998
__________________ 1 3. The purposes of this Act are (a) to promote breed improvement, and (b) to protect persons who raise and purchase animals by providing for the establishment of animal pedigree associations that are authorized to register and identify animals that, in the opinion of the Minister, have significant value.
4. The principal purpose of animal pedigree associations shall be the registration and identification of animals and the keeping of animal pedigrees.
2 6. (1) An association may be incorporated under this Act only if the Minister is satisfied (a) that the animals of each distinct breed and evolving breed in respect of which the association is sought to be incorporated have significant value; (b) that the persons submitting the articles of incorporation in respect of the association represent the breeders throughout Canada of the animals of each distinct breed and evolving breed in respect of which the association is sought to be incorporated; and (c) that the keeping of pedigrees and other records in respect of the animals of each distinct breed and evolving breed in respect of which the association is sought to be incorporated would be beneficial to the breeders thereof and to the public-at-large. . . . .
3 10. Every association is a body corporate.
11. An association may do any act or thing necessary for, or incidental or conductive to, the carrying out of its purpose and business and affairs related thereto.