Date: 20030529
Docket: A-240-02
Neutral citation: 2003 FCA 240
CORAM: DÉCARY, J.A.
BETWEEN:
WILLIAM LLOYD HAMILTON
Appellant
and
DRIFTPILE FIRST NATION BAND COUNCIL
Respondent
Heard at Calgary, Alberta, on May 29, 2003.
Judgment delivered from the Bench at Calgary, Alberta, on May 29, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER, J.A.
Date: 20030529
Docket: A-240-02
Neutral citation: 2003 FCA 240
CORAM: DÉCARY, J.A.
BETWEEN:
WILLIAM LLOYD HAMILTON
Appellant
- and -
DRIFTPILE FIRST NATION BAND COUNCIL
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Calgary, Alberta
on May 29, 2003.)
[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