Federal Court of Appeal - Hamilton v. Driftpile First Nation Band Council

[1] In 1995, the appellant made a complaint that the respondent had discriminated against him in employment by reason of his age and race. In November 1999, the Canadian Human Rights Commission dismissed his complaint. In December 1999, the appellant made an application for judicial review of the Commission's decision. On April 10, 2002, Madam Justice Tremblay-Lamer dismissed the appellant's application.

[2] In the course of the hearing before Madam Justice Tremblay-Lamer, the appellant, who has acted for himself in all these proceedings, sought to introduce a motion in which he raised constitutional and procedural issues arising from the procedural history of his application. The applications judge held that the motion was not properly before the Court and refused to deal with it. She was fully justified in taking that position.

[3] At that point, the appellant could have appealed the order dismissing his application to this Court. In that appeal, he could have raised issues of bias, procedural fairness as well as substantive legal objections to the decision. Instead, he brought a motion for reconsideration under Rule 397 upon which he grafted a request that Madam Justice Tremblay-Lamer recuse herself and a request for the appointment of a new judge to rehear the matter.

[4] Madam Justice Tremblay-Lamer dismissed the motion without reasons, saying simply "The motion for reconsideration is dismissed." The appellant has chosen to appeal the dismissal of his motion for reconsideration, which he has used as a vehicle for an attack upon the order dismissing his application.

[5] The appellant argued before this Court that Justice Tremblay-Lamer ought to have dealt with his request for recusal. We take her order to have disposed of all matters raised by the motion. The fact of the matter is that, having heard the appellant's application and having signed and filed an order disposing of it on the merits, Justice Tremblay-Lamer did not have jurisdiction to set aside her own order, recuse herself and order a new hearing. She was functus officio and therefore without jurisdiction to deal with the application any further.

[6] Consequently, Justice Tremblay-Lamer was not only entitled to dismiss the appellant's motion, she was bound to do so.

[7] The appeal will therefore be dismissed with costs.

"J. D. Denis Pelletier"

J. A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-240-02

STYLE OF CAUSE: William Lloyd Hamilton v. Driftpile

First Nation Band Council

PLACE OF HEARING: CALGARY, Alberta

DATE OF HEARING: May 29, 2003

REASONS FOR JUDGMENT

OF THE COURT: (DÉCARY, NADON, PELLETIER, JJ.A.)

RENDERED FROM

THE BENCH BY: PELLETIER, J.A.

DATED: May 29, 2003

APPEARANCES:

Mr. William Lloyd Hamilton FOR THE APPELLANT

Mr. Timothy D. Mitchell FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. William Lloyd Hamilton

Calgary, Alberta FOR THE APPELLANT

Laird Armstrong

Calgary, Alberta FOR THE RESPONDENT