Court File No: T- q, i 

FEDERAL COURT

  

GHT TO LIFE ASSOCIATION OF TORONTO AND AREA, BLAISE
ALLEYNE AND MATTHEW BATTISTA

Applicants
and

CANADA (MINISTER OF EMPLOYMENT, WORKFORCE, AND LABOUR)

Respondent

APPLICATION UNDER Sections 18.1 of the Federal Courts Act and Rule 301 of
the Federal Courts Rules.

NOTICE OF APPLICATION
TO THE RESPONDENTS:

A PROCEEDING HAS BEEN COMMENCED by the applicants. The relief
claimed by the applicants appears on the following page.

THE APPLICATION will be heard by the Court at a time and place to be
?xed by the Judicial Administrator. Unless the Court orders otherwise, the place of

hearing will be as requested by the applicants. The applicants require that this
application be heard at the Federal Court in Calgary.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any
step in the application or to be served with any documents in the application, you or a
solicitor acting for you must prepare a notice of appearance in Form 305 prescribed
by the Federal Courts Rules and serve it on the applicants? solicitor, or where the
applicants are self-represented, on the applicants, WITHIN 10 DAYS after being
served with this notice of application.

Copies of the Federal Courts Rules, information concerning the local of?ces
of the Court and other necessary information may be obtained on request to the
Administrator of this Court at Ottawa (telephone: 613-992-4238) or at any local
of?ce.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY
BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO

YOU.
JAN 04 2018

 

(Date) ORIGINAL SIGNED BY

KEVIN LEMIEUX
Issued by: A 

Address of local of?ce:
Federal Court

Canadian Occidental Tower
635 Eighth Avenue SW.
3rd Floor

Calgary, Alberta

T2P 3M3

 

 

  

filed in the Courier2813

KEVIN LEMIEUX I REGISTRY OFFICER

 

TO: MINISTER OF EMPLOYMENT, WORKFORCE DEVELOPMENT,

AND LABOUR

c/o DEPARTMENT OF JUSTICE CANADA
Prairie Regional Of?ce- Calgary

Suite 601, 606 4th Street SW

Calgary, Alberta

T2P 1T1

 

Application
(For a Judicial Review)

The Applicants challenge the decision (?Decision?) of the Minister of Employment,
Workforce, and Labour (the ?Ministry?), to add to the application for funding under
the Canada Summer Jobs program which was released on December 19,
2017, the requirement that the applicants attest to the following:
Both the job and the organization?s core mandate respect individual human
rights in Canada, including the values underlying the Canadian Charter of
Rights and Freedoms as well as other rights. These include reproductive
rights, and the right to be free from discrimination on the basis of sex,

religion, race, national or ethnic origin, colour, mental or physical disability,
sexual orientation, or gender identity or expression.

The Application Guide states that, ?The attestation is required for the application to
be considered complete and eligible for assessment? (pages 6, 11 and 22). If
applicants submit online, ?you must check this box (the attestation requirement) in
order to proceed, otherwise the system will not allow you to continue. If you are
submitting a paper application, you must check this box in order for your application

to be assessed? (page 22).
The Application Guide also states the following:

The employer attestation for 2018 is consistent with individual human
rights in Canada, Charter rights and case law, and the Government of
Canada?s commitment to human rights, which include women?s rights and
women?s reproductive rights, and the rights of gender-diverse and transgender
Canadians.

The government recognizes that women?s rights are human rights. This
includes sexual and reproductive rights- and the right to access safe and legal
abortions.

On December 20, 2017, TRTL submitted a paper copy of its 2018 application,
accompanying the application with a cover letter to the Minister which said the
following:
On the basis of conscience, we are unable to express the words that the
Minister has required in the Applicant?s Guide. We are, however, able to
attest that ?we support all Canadian law, including Charter and human rights

law.? We believe the Minister does not have the jurisdiction under law to
compel us to make a statement that con?icts with our conscience rights under

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the Charter. Nor does the Minister have the right to compel speech as a
condition of receiving a ?nancial bene?t from the government of Canada. We
respectfully decline to make a statement that is inconsistent with our
fundamental personal beliefs about the value of life and the right to life under
section 7 of the Charter. Please con?rm that you will accept our application
with the above noted statement in substitution for the statement set forth in the
on line application process and in the Applicant?s Guide.

TRTL received con?rmation that its materials were delivered to Service Canada on

December 22, 2017.

The Applicant?s Guide states that, ?For employers applying by mail or in person an
acknowledgment con?rming receipt will be emailed to you within 10 business days?
(page 5). On January 3, 2018, TRTL received a receipt from Service Canada
indicating it had received its application. TRTL received no response to its letter of

objection and substitute attestation.

In 2016, Right to Life Association of Toronto and Area applied for
summer student funding in the amount of $28,800.00 and was approved for the
amount of $10,800.00. In 2017, TRTL applied for funding in the amount of
$29,184.00. Its 2017 application for funding was denied.

The reasons for the 2017 denial were communicated to TRTL via email on April 27,
2017, by a representative of Service Canada, a department of the Ministry, informing
TRTL that its application for funding had been denied on the following basis:
?Unfortunately, although your application is considered eligible, we are unable to
offer you Canada Summer Jobs funding, since the demand for funding has exceeded

the budget available in your constituency."

Subsequent to the denial, TRTL discovered that other similar organizations had
received funding denials. TRTL received information from Guelph and Area Right
to Life Association and the Canadian Centre for Bio?Ethical Reform
that on the same date, April 27, 2017, they had been also denied funding.
GRTL and CCBR told TRTL that they had received identical reasons as TRTL via
email from a representative of Service Canada, telling them that their funding had
been denied ?since the demand for funding has exceeded the budget available in your

constituency.?

On May 25, 2017, TRTL, GRTL and the CCBR each ?led notices of application for
judicial review in Federal Court against the Ministry for denying their applications

for summer student job funding on the basis of their beliefs.

The judicial reviews alleged that the Ministry had issued a directive to instruct
members of the Liberal Party to deny funding to organizations like TRTL. This
conclusion was based on an April 13, 2017, iPolitics article written by Amanda
Connolly, ?Anti?abortion group got federal grant from Liberal where she
said the following:
When iPolitics requested clari?cation from Khalid?s of?ce as to whether the
funding might be some kind of legacy grant issued by her Conservative

predecessor, of?cials referred the request to the spokesperson for
Employment Minister Patty Haj du.

?Our government has been unequivocal in our support of a woman?s
fundamental right to choose,? said Matt Pascuzzo, press secretary for Hajdu.
?The minister is currently looking into this matter and we will have a
resolution shortly. We will continue advancing gender equality and standing
up for a woman?s right to choose.?

Following publication, Pascuzzo provided a second response saying the 2016
grant was a mistake and would not happen again.

?Any funding provided to an organization that works to limit women?s
reproductive rights last summer was an oversight,? he said. ?That?s why this
year we ?xed the issue and no such organizations will receive funding from
any constituencies represented by Liberal 

The Applicants pleaded that a denial of their applications on the basis of their opinion
and belief was not an authorized factor under the applicable legislative framework for
assessing the merits of applications for CSJ funding, and was also prohibited by the
Canadian Charter of Rights and Freedoms (?Charter?).

The Applicants also pleaded that the denials were both unlawful on administrative
law grounds (including on the basis of consideration of irrelevant considerations, a
fettering of discretion, breach of duty of procedural fairness, and Reasonable
Apprehension of Bias), and limited each Applicant?s 2(b) Charter right to freedom of
expression more than was reasonably necessary in order to achieve the statutory

objectives of the legislation underlying the CSJ program.

The Applicants asked for declarative relief in regard to Charter breach, as well as

relief in way of certiorari, mandamus, and prohibition.

On November 23, 2017, the three Applicants received an offer of settlement from the
Ministry, which they accepted, which included full payment of the funds which were
initially approved by the Ministry, and costs.

Upon settlement, the Ministry also provided the following statement to the
Applicants:
The Canada Summer Jobs Program is providing this settlement because the
publicly available Applicant?s Guide indicated that applications would be
assessed against seven criteria (including local priorities) using a scoring
guide. However, your clients were denied funding on the basis of a criteria

neither set out in the applicant?s Guide nor included in the list of local
priorities for 2017.

The Applicants make application for:

1. A declaration that the Decision infringes sections 2(b) and 15 of the

Charter and cannot be saved under section 1;

2. A declaration that the Decision is ultra vires, unlawful, unreasonable, or is an

otherwise invalid decision;

3. Orders pursuant to section 24(1) of the Charter and sections 18(1) and 18.2 of
the Federal Courts Act:

in the nature of certiorari quashing the Decision;

in the nature of mandamus requiring the Respondent to award those CSJ
funds which would be awarded but for the requirement of the attestation;

in the nature of relief by way of an urgent interim injunction to stay the
operation of the Respondent?s decision to add an attestation requirement
to the application for Canada Summer Student Job funding, as included
in the 2018 Canada Summer Jobs Applicant Guide made available
December 19, 2017, pending ?nal determination of the originating
application; and

in the nature of prohibition prohibiting the Respondent from denying
CSJ funding in future in whole or in part on the basis of the attestation.

4. Such further and other relief as counsel may advise and this Honourable Court

considers just; and
5. Costs.
The grounds for the application are:

1. The Applicant, TRTL, is a registered charity incorporated under

the Corporations Act, R.S.O. 1990, 0. C38, carrying on business in Toronto and the
GTA. TRTL is a volunteer, non-sectarian human rights organization dedicated,
through education, to ?upholding the sacredness and inviolability of human life from

conception to natural deat 
2. Blaise Alleyne is President of TRTL.

3. Matthew Battista is a student at the University of Toronto who intends to
apply for employment this summer with TRTL. The funding for his position will

come from the Canada Summer Jobs programs.

4. Service Canada is a department of the Ministry of Employment, Workforce,
and Labour. Acting through Service Canada, the Ministry awards yearly funding to

organizations across Canada through the Program.

5. On April 27, 2017, Service Canada sent an email to TRTL, GRTL and CCBR,
informing them that their applications for funding were denied, stating the following:
?Unfortunately, although your application is considered eligible, we are unable to
offer you Canada Summer Jobs funding, since the demand for funding has exceeded

the budget available in your constituency.?

6. TRTL, GRTL, and CCBR had all received funding from the program
prior to the application year of 2017.

7. TRTL, GRTL, and CCBR concluded that the funding denial was based on
information they received from an April 12, 2017, iPolitics article written by Amanda
Connolly, ?Anti-abortion group got federal grant from Liberal where she
quoted Matt Pascuzzon, press secretary for the Minister of Employment, Workforce,
and Labour, as saying, ?Any funding provided to an organization that works to limit

women?s reproductive rights last summer was an oversight,? he said. ?That?s why

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this year we ?xed the issue and no such organizations will receive funding from any

constituencies represented by Liberal 

8. On May 25, 2017, TRTL, GRTL and the CCBR each ?led notices of
application for judicial review against the Ministry for denying their applications for

summer student job funding on the basis of their belief and opinion.

9. On November 23, 2017, the Ministry made an offer of settlement to the three
parties, which the parties accepted, remitting the amounts originally approved, costs,
and providing the following statement:
The Canada Summer Jobs program is providing this settlement because the
publicly available Applicant?s Guide indicated that applications would be
assessed against seven criteria (including local priorities) using a scoring
guide. However, your clients were denied funding on the basis of a criteria
neither set out in the Applicant?s Guide nor included in the list of local
priorities for 2017.
10. On December 19, 2017, the Ministry released its 2018 Application. Contained
within this application was the new requirement that applicants attest to the following
in order to receive funding:
Both the job and the organization?s core mandate respect individual human
rights in Canada, including the values underlying the Canadian Charter of
Rights and Freedoms as well as other rights. These include reproductive
rights, and the right to be free from discrimination on the basis of sex,

religion, race, national or ethnic origin, colour, mental or physical disability,
sexual orientation, or gender identity or expression.?

1 1. On December 20, 2017, TRTL applied for funding, objecting to the Ministry?s
attestation and asking the Minister to process application on the basis of its

own substitute statement.

12. On January 3, 2018, TRTL received a receipt from Service Canada indicating
it had received its application. TRTL received no response to its letter of objection

and substitute attestation.

13. The Decision fetters the discretion of the decision-makers who approve

applications for summer student job funding.

14. The Decision is also ultra vires, unlawful, unreasonable, or is otherwise

invalid.

15. The Decision also constitutes a breach of sections 2 2 b) and 15 of the
Charter.

The application will be supported by the following material:

1. Such to be sworn, as may be necessary to bring to the attention of

the Court any facts pertaining to this Notice of Application;

2. Material requested pursuant to Rule 317 of the Federal Courts Rules and
produced to the applicants and to the Court pursuant to Rule 318; and

3. Such further and other materials as counsel for the Applicants may advise and

this Honourable Court will permit.

Pursuant to Rule 317 of the Federal Court Rules, the Applicants request that the
respondents provide to the applicants and to the Registry of the Federal Court:

all documents relating directly or indirectly to Minister?s Decision to
require the attestation, including directives, memoranda, emails, handwritten notes,
and policies, authored by, or sent to or from or within the possession or control of, the

respondent; and

all documents consulted or considered by the Respondent relating to

the Decision to impose the attestation.

DATED this 4 day of January, 2018

  

 

Counsel for the Applicants

CROSSON CONSTITUTIONAL LAW
Suite 414, 203-304 Main Street South
Airdrie, Alberta T4B 3C3

Phone: 403-796?81 10

Fax: 403-316-3291

Email: ccrosson@crossonlaw.ca