Tolga R Yalkin Office of the Parliamentary Budget Officer Library of Parliament 50 O'Connor, Suite 9I9 Ottawa ON KIP 6L2 Telephone: 613-797-5698 Fax: 613-947-8480 November 2I, 20I2 J udicia1 Administrator Federal Court 333 Laurier Ave W Ottawa ON KIP ICI Dear Judicial Administrator: This letter concerns the attached application. Given the urgency with which a decision needs to be reached on this issue to allow the Parliamentary Budget Officer to know whether or not he has jurisdiction to conduct the requested analyses for the Senate and House of Commons, counsel requests that the ex parte motion be set down for hearing as soon as possible. Counsel is available on the following dates: Nov 29 and 30, Dec 3, 4, 5, 6, and 8, and Jan 3, 4, 7, 8, 9, 10, and 11. Counsel also requests that, pursuant to Rule 32, the hearing be held by teleconference. As a courtesy, counsel has copied the Attorney General to this correspondence and attached all documents filed with the court. Many thanks c.c.: Attorney General of Canada Court FileNo.: . I ?I \',('\~ ? \l FEDERAL COURT MRKEVINPAGE,PARLIAMENTARYBUDGETOFFICER Applicant and MR THOMAS MULCAIR, LEADER OF THE OPPOSmON Respondent NOTICE OF APPLICATION UNDER SECTION 18.3 OF THE FEDERAL COURTSACTRSC 1985, C F-7 Joseph Magnet Barrister and Solicitor LSUC #19386E c/o Tolga Yalkin Office of the Parliamentary Budget Officer Library of Parliament 50 O'Connor, Suite 919 Ottawa, ON KIP 612 Telephone: 613-797-5698 Fax: 613-947-8480 email: tyalkin@ottawa.ca email: jmagnet@uottawa.ca 1 TO: Thomas Mulcair Leader of the Official Opposition House of Commons Ottawa ON KIA oA6 AND TO Attorney General of Canada Justice Building Kent and Wellington Streets Ottawa ON KIA oH8 2 TO THE RESPONDENT: A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following page. THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at Ottawa, Ontario. 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 applicant's solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application. Copies of the Federal Courts Rules information concerning the local offices 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 office. IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Date: November 21,2012 Issued by: ~~ ~ (RegistryOfficer) ANN F~ MURPHY REGISTRY OFFICER AGENTE DU GREFFF Address of local office: Registries of the Federal Courts Thomas D'Arcy McGee Building 90 Sparks Street, sth floor Ottawa, Ontario K1AoH9 1HEREBY CERTIFY that the above document !S a irue copy oi the original filed in the Court./ JE CERTIFIE que le donoment ci-de;;sus est une copie coniorme a I' original depose +JW/s~r <1a lcl'tJ&it federate Filing date~---:~:--------- DateAtYf>' Dated 1 7ni( \..___:A.._--~- - _s:::::: ~--!b,-,r!~?:-:1'-J--'/'----_ Fait le ANN F. MURPHY REGISTRY OFFICER AGENTE DU GREFFE 3 APPLICATION This is an application for a reference by the Parliamentary Budget Officer to refer the following questions of law and jurisdiction to the Federal Court for hearing and determination: 1. Whether it is within the Parliamentary Budget Officer's jurisdiction, pursuant to Parliament of Canada Act RSC 1985, c P-1. Section 79.2, to analyze: a. the extent to which the fiscal savings that are outlined in the Government's Budget are achievable or likely to be achieved; and b. the extent to which the achievement of the savings there outlined would result in fiscal consequences in the longer term, 2. Whether it is within the Parliamentary Budget Officer's jurisdiction pursuant to to Parliament of Canada Act RSC 1985, c P-1. Section 79.3, to request from departments their planned fiscal savings premised on staffing reductions The grounds for the application are: 1. Federal Courts Act RSC 1985, c F-7, Section 18.3(1). 2. Federal Courts Act RSC 1985, c F-7, Section 18-4(1). 3. Parliament of Canada Act RSC 1985, c P-1, Section 79.2, which mandates the Parliamentary Budget Officer to provide independent analysis to the Senate and to the House of Commons about the state of the nation's finances, the estimates of the government, and trends in the national economy. 4 4. Parliament of Canada Act RSC 1985, c P-1, Section 79.3(1), which provides that the Parliamentary Budget Officer is entitled to request from deputy heads of government departments free and timely access to any financial or economic data in the possession of the department required for the discharge of his mandate. 5? The Leader of the Official Opposition asked the Parliamentary Budget Officer to provide specific analyses of the Estimates of the Government to the Senate and the House of Commons. 6. The Parliamentary Budget Officer responded explaining that he was unclear as to whether he had jurisdiction to undertake the required analyses and that he did not have the information he would need to undertake the required analyses. 7. The Leader of the Official Opposition responded, requiring that the Parliamentary Budget Officer obtain the information, conduct the analyses, and provide the analyses to the Senate and House of Commons. 8. The Parliamentary Budget Officer responded explaining that questions had been raised as to whether he had jurisdiction to request such types of information and that he would seek clarity on the scope of his jurisdiction to undertake the analyses and request the information. This application will be supported by the following material: 1. Affidavit of Ms. Patricia Brown, Administrative Coordinator to the Parliamentary Budget Officer, with attached exhibits; and 5 2. Such further and additional materials as counsel may advise and this Honourable Court permit. November 21, 2012 Address for service: cj o Tolga Yalkin Parliamentary Budget Officer Library of Parliament so O'Connor, Suite 919 Ottawa, ON KIP 6L2 Telephone: 613-797-5698 Fax: 613-947-8480 email:tyalkin@uottawa.ca email: jmagnet@uottawa.ca Court File No.:\---) Q~~.:U.. FEDERAL COURT MR KEVIN PAGE, PA.RLIAl\ffiNTAR.Y BUDGET OFFICER Applicant (Moving? Party) and MR THOMAS MUJ,.CAIR, LEADER OF mE OPPOSmON Respondent (Responding Party) EX PARTE MOTION RECORD I i Court File No.: _ _ __ FEDERAL COURT BETWEEN: MR KEVIN PAGE, PARLIAMENTARY BUDGET OFFICER Applicant (Moving Party) and MR THOMAS MULCAIR, LEADER OF THE OPPOSITION Respondent (Responding Party) TABLE OF CONTENTS Tab Pages 1 Notice of Motion 1-3 2 Affidavit of Patricia Brown 4-9 3 Written Submissions 10-13 4 Draft Order 14-16 I I II I I I I I I I I I o 1 Court File No.: _ _ __ FEDERAL COURT BETWEEN: MR KEVIN PAGE, PARLIAMENTARY BUDGET OFFICER Applicant and MR THOMAS MULCAIR, LEADER OF THE OPPOSITION Respondent NOTICE OF MOTION TAKE NOTICE THAT the Applicant will make an ex parte motion to the Court on a date set by the Court as soon as the motion can be heard, for a period of 30 minutes, by teleconference pursuant to Rule 32. THIS MOTION IS FOR an Order pursuant to Rule 322 of the Federal Court Rules, in relation to a reference to this Honourable Court by the Parliamentary Budget Officer, pursuant to Section 18.3 of the Federal Courts Act, concerning his jurisdiction to undertake certain analyses and request certain information, as to: o I I I 2 a) which persons shall be given notice of the reference; b) the material that will constitute the case to be determined on the reference; c) the preparation, filing and service of copies of the material; d) the preparation, filing and service of memoranda of fact and law; e) the procedure for the hearing of the reference; f) the time and place for the hearing of the reference; and g) the role, if any, of the Applicant. THE GROUNDS FOR THE MOTION ARE: 1. The Applicant is bringing a reference to the Federal Court for determination of the jurisdiction of the Parliamentary Budget Officer to: a. analyze: 1. the extent to which the fiscal savings that are outlined in the Government's Budget are achievable or likely to be achieved; and ii. the extent to which the achievement of the savings there outlined would result in fiscal consequences in the longer term, and b. request from departments their planned fiscal savings premised on staffing reductions. c. Federal Courts Act RSC 1985, c F-7, Section 18.3(1). 3 d. Federal Courts Act RSC 1985, c F-7, Section 18.4(1). THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion: 1. The Affidavit of Patricia Brown, sworn November 21, 2012; 2. Such further and additional materials as counsel may advise and this Court permit. Date: November 21,2012 .c/o Tolga alkin Office of the Parliamentary Budget Officer Library of Parliament so O'Connor, Suite 919 Ottawa, ON K1P 6L2 Telephone: 613-797-5698 Fax: 613-947-8480 Email: tyalkin@uottawa.ca Email: jmagnet@uottawa.ca II o o I I 4 Court File No.: _ _ __ FEDERAL COURT BETWEEN: I I I MR KEVIN PAGE, PARLIAMENTARY BUDGET OFFICER I I MR THOMAS MULCAIR, LEADER OF THE OPPOSITION I I I I I I I I I Applicant and Respondent AFFIDAVIT I, PATRICIA BROWN, Administrative Coordinator at the Office of the Parliamentary Budget Officer, of the City of Ottawa in the Province of Ontario, SWEAR THAT: 5 1. I am the Administrative Coordinator at the Office of the Parliamentary Budget Officer and have been so since 2008. As such, I have knowledge of records of correspondence received by and sent from the Parliamentary Budget Officer. 2. On November 13, 2012, the Parliamentary Budget Officer received a letter from the Honourable Thomas Mulcair, Leader of the Official Opposition. I have attached this letter to this, my affidavit, as "Exhibit A". 3. On November 14, 2012, the Parliamentary Budget Officer responded to Mr Mulcair's letter. I have attached this letter to this, my affidavit, as "Exhibit B". 4. On November 16, 2012, the Parliamentary Budget Officer received a further letter from Mr Mulcair. I have attached this letter to this, my affidavit, as "Exhibit C". s. On November 19, 2012, the Parliamentary Budget Officer responded to Mr Mulcair's letter. I have attached this letter to this, my affidavit, as "Exhibit D". Date: November 21, 2012 Sworn/Affirmed hdorc me in~N,..I..llo?.:u'v\""'"1_c__ on the ._, \ Patricia Brown :::).- \ da'' of . ~ ~ .~~-.,o...lL ' ' !.J ANN F. o URPHY REGISTRY OFFICER AGENTE OU GREFFE ;I II i,,; f? ' ~ ~. ~? r I I I I .I This is Exhibit "A" referred to in the affidavit of Patricia Brown sworn in Ottawa on November 21, 2012 ANN F. MURPHy REGISTR AGENTe riuOFFICER GREFFe 6 ' o I CHEF DE L'0PPOSJTION OFFICIELLE fl o NEW DEMOCRATIC PARTY OF CANADA HOUSE OF CONNON$ CHAMBRI!$ DI!S COMMUNES CANADA Thomas Mulcair, Depute!MP. I Io LEADER OF THE OFFICIAL OPPOSITION NouVEAU PARTI DEMOCRATIQVE ou CANADA PatUamentary Budget Officer Outremont NOV 1 3 2012 ? t1lttt~l~i~t ~lirlementalre November 8, 2012 ~~--~~!~~9~~-.----~ Kevin Page Parliamentary Budget Officer Room 908, 50 O'Connor Street Ottawa, ON K1A OA9 Dear Mr. Page: I want to thank you very much for the analysis you have recently provided in your report entitled, "Budget 2012: Monitoring Framework Update". Despite this very Important contribution, much analysis remains to be provided. In order for parliamentarians to do their job of voting supply and holding the government to account, they need adequate analyses of the Estimates. These analyses include the fiscal risks and consequences posed by the cuts outlined in Budget 2012. As such, I require your analyses as to: o o whether the savings that are outlined in Budget 2012 are achievable or likely to be achieved. (This will, of course, require you to analyse, as a condition precedent, how these savings are proposed to be achieved, I.e. by "efficiencies" or actual reductions in services to Canadians.); and, whether and the extent to which the failure to achieve them would result in fiscal consequences in the longer term (e.g. differed capital maintenance resulting In the requirement to replace an asset). These analyses are among the major reasons your office was created. As such, I would be very grateful if you provided them to the House and the Senate as soon as possible. Sincerely, Thomas Mulcair, M.P. (Outremont) Leader of the Official Opposition New Democratic Party of Canada OTTAWA House of Commons I Chambre des communes Ottawa, Ontario KIA OA6 Tel./Tel.: 613-995-7224 Fax/Telec.: 613-995-4565 OUTREMQNT 3333, chemin Queen-Mary, Bureau 310 Montreal (Quebec) H~V IA2 thomas.mulcair@parl.gc.ca www.ndp.ca Tel./Tel.: 514-736-2727 Telec./Fax: 514-736-2726 This is Exhibit "B" referred to in the affidavit of Patricia Brown sworn in Ottawa on November 21, 2012 Sworn/\ ffirmed hl'fore me in a-t\ '''e C1 ~~ \ day otO {) ~b , on the 2o.l.l_ ~~\--------ANN F. M REGIST. URPHy AGENTER,jUOFFICER GREFFE 7 November 14, 2012 The Honourable Thomas J. Mulcair, M.P. Leader of the Official Opposition New Democratic Party of Canada House of Commons Centre Block Room 409-S Ottawa, ON K1A OA6 Dear Mr. Mulcair: Thank you for your letter. Questions have been raised as to whether the analyses you require fall within my mandate. Further, at a minimum, to conduct these analyses, I would need to know the departmental savings premised on staffing reductions. Yours truly, ( ~v\ Kevin Page ~ "' Parliamentary Budget Officer tel/tel: +1 613 992 8026 If faxltelec +1 613 947 8480 II pbo-dpb@parl.gc.ca II Ottawa, Canada K1A OA9 II www.pbo-dpb.gc.ca I i fl:' This is Exhibit "C" referred to in the affidavit of Patricia Brown sworn in Ottawa on November 21, 2012 s!?ornf.\ftirmcd hl'forc mc in. 0 '\\ V'-t c I ....,..........._do~y of'J.l~~.t.~ \.2&,\ o on the 2(1....\.b_ o I 8 CHEF DE L'0PPOSITION OFFICIELLE LEADER OF THE OFFICIAL 0PPOSmON NOtJVEAU PARTI DEMOCRATIQVE DtJ CANADA NEW DEMOCRATIC PARTY OF CANADA HOUSE 0, COMMONS CHAMIR!S DES COMMUNIS CANADA Thomas Mulcair, Depute/MP. Outremont ? November 15, 2012 Kevin Page Parliamentary Budget Officer Room 908, 50 O'Connor Street Ottawa, ON K1A OA9 Dear Mr. Page: Thank you for your response. As you are aware, parliamentarians have an obligation to scrutinize the spending plans of the Government. In order to do this, they require and are entitled to your analyses on the Estimates. If you need departmental savings premised on staffing reductions to perform these analyses, please request that data from departments, perform the analyses we require, and publish it. Sincerely, Thomas Mulcair, M.P. (Outremont) Leader of the Official Opposition New Democratic Party of Canada OTTAWA House of Commons I Chambre des communes Ottawa, Ontario KIA OA6 Tel.!fel.: 613o995-7224 Fax/Telec.: 613-995-4565 thomas.mulcair@parl.gc.ca www.ndp.ca OUTREMONT 3333, chemin Queen-Mary, Bureau 310 Montreal (Quebec) H3V 1A2 Tel./Tei.: 514-736-2727 Telec./Fax: 514-736-2726 This is Exhibit "D" referred to in the affidavit of Patricia Brown sworn in Ottawa on November 21, 2012 Swornl\fftrmNI hL'forc me in _ _ _ (ht~? of_ t4tw- C. o on the _ ANN F. MURPHY REGISTRY OFFICER AGENTE DU GREFFE 9 November 19, 2012 o ., c IJ II It II The Honourable Thomas J. Mulcair, M.P. Leader of the Official Opposition New Democratic Party of Canada House of Commons Centre Block Room 409-S Ottawa, ON K1A OA6 Dear Mr. Mulcair: Thank you for your letter. As you may be aware, in addition to whether I have jurisdiction to conduct these analyses, questions have been raised as to whether I have jurisdiction to request this type of data. Before I make any decision about whether to accede to your demand, I will need clarification as to whether I have jurisdiction both to conduct the required analyses and request the data necessary to perform the analyses. I will, therefore, seek a reference from the Federal Court on the matter, asking: (1) whether it is within my jurisdiction to analyze: ,~,-, o o I I o ,, ' I o a. the extent to which the fiscal savings that are outlined are achievable or likely to be achieved; and b. the extent to which the answer(s} to (a) would result in fiscal consequences in the longer term, and (2) whether it is within my jurisdiction to request departments to provide me with their fiscal savings premised on staffing reductions by program activity. If the Court decides that I do not have jurisdiction to perform the analysis you require, it will not be performed and the data will not be requested. If the Court decides that I have jurisdiction to perform the analysis you require and request the necessary data, I will ask for the data and, when provided with it, endeavour to produce the analysis. 0 Yours truly :::la Parliamentary Budget Officer tel/tel: +1 613 992 8026 II fax/telae: + 1 613 947 8480 II pbo-dpb@parl.gc.ca II Ottawa, Canada K 1A OA9 II www pbo-dpb.gc ca 10 Court File No.: - - - - FEDERAL COURT BETWEEN: MR KEVIN PAGE, PARLIAMENTARY BUDGET OFFICER Applicant and MR THOMAS MULCAIR, LEADER OF THE OPPOSITION Respondent WRITTEN SUBMISSIONS 1. The Parliamentary Budget Officer (the "Applicant") seeks directions from the Court pursuant to Rule 322 of the Federal Court Rules. 2. The directions are for the reference the Applicant brings before this Honourable Court. 3. The Applicant is an Officer of the Library of Parliament. He is mandated to "provide independent analysis to the Senate and to the House of Commons about 11 the state of the nation's finances, the estimates of the government and trends in the national economy." Parliament of Canada Act RSC 1985, c P-1, Sections 79.1 and 79.2 4? In addition, he "is entitled, by request made to the deputy head of a department [... ]to free and timely access to any financial or economic data in the possession of the department that are required for the performance of his or her mandate." Parliament of Canada Act RSC 1985, c P-1, Sections 79?3 5? The Parliamentary Budget Officer was requested by the Leader of the Official Opposition to provide specific analyses of the Estimates of the Government to the Senate and the House of Commons. 6. The Parliamentary Budget Officer responded explaining that he was unclear as to whether he had jurisdiction to undertake the required analyses and that he did not have the information he would need to undertake the requested analyses. 7? The Leader of the Official Opposition responded, requiring that the Parliamentary Budget Officer obtain the information, conduct the analyses, and provide the analyses to the Senate and House of Commons. 8. The Parliamentary Budget Officer responded explaining that questions had been raised as to whether he had jurisdiction to request such types of information and that he would seek clarity on the scope of his jurisdiction to undertake the analyses and request the information. 12 9? The Applicant seeks the advice of this Honourable Court regarding whether it is within the Parliamentary Budget Officer's jurisdiction to analyze: a. the extent to which the fiscal savings that are outlined in the Government's Budget are achievable or likely to be achieved; and b. the extent to which the achievement of the savings there outlined would result in fiscal consequences in the longer term. Parliament of Canada Act RSC 1985, c P-1. Section 79.2 10. The Applicant seeks the advice of this Honourable Court regarding whether it is within the Parliamentary Budget Officer's jurisdiction to request from departments their planned fiscal savings premised on staffing reductions. Parliament of Canada Act RSC 1985, c P-1. Section 79?3 11. The Applicant seeks directions, pursuant to Rule 322, as to: ' '1 I a. which persons shall be given notice of the reference; b. what material will constitute the case to be determined on the reference; c. the preparation, filing and service of copies of that material; d. the preparation, filing and service of memoranda of fact and law; e. the procedure for hearing of the reference; f. the time and place for the hearing of the reference; and ~i i --t 13 g. the role of the Parliamentary Budget officer. Date: November 21,2012 c/o Tolga R Yalkin Office of the Parliamentary Budget Officer Library of Parliament so O'Connor, Suite 919 Ottawa, ON K1P 612 Telephone: 613-797-5698 Fax: 613-947-8480 Email: tyalkin@uottawa.ca Email: jmagnet@uottawa.ca I I. I 14 Court File No.: _ _ __ FEDERAL COURT BETWEEN: MR KEVIN PAGE, PARLIAMENTARY BUDGET OFFICER Applicant And MR THOMAS MULCAIR, LEADER OF THE OPPOSITION Respondent ORDER UPON MOTION by the Applicant for an order pursuant to Rule 322 of the Federal Court Rules as to: (a) which persons shall be given notice of the reference; (b) the material that will constitute the case to be determined on the reference; (c) the preparation, filing and service of copies of the material; (d) the preparation, filing and service of memoranda of fact and law; 15 (e) the procedure for the hearing of the reference; (f) the time and place for the hearing of the reference; and (g) the role, if any, of the tribunal in question. AND UPON reading the motion record of the applications and hearing the submission of counsel for the Applicant and Respondent at the Court's general sitting in Ottawa on (date); AND UPON the Applicant and Respondent agreeing to the terms of this order; THIS COURT ORDERS that: 1. Notice of reference shall be given to the Attorney General of Canada by serving him with a copy of this order and with copies of the other documents later referred to in this order within one week of the issuance of this order. 2. The material that will constitute the case to be determined by the reference shall consist of the affidavit of Patricia Brown sworn November 21, 2012. 3. The Applicant shall serve and file his memorandum of fact and law within one week of the issuance of this order. 4. The Respondents shall each serve and file their memoranda and fact of law within one week of receiving the Applicant's memorandum of fact and law. s. The Reference shall be heard at Ottawa on the _ _ day of December, 2012. 6. The Applicant shall have carriage of the Reference and participate in the hearing. 16 7? In the event that further directions are required, any party may direct correspondence to the Registry of the Court, requesting that such correspondence be directed to Justice _ _ __ \