Date: 20000224
Docket: T-875-99
BETWEEN:
MICHAEL OMINAYAK, JAMES OMINAYAK, BETSY OMINAYAK,
PAUL OMINAYAK, KIM OMINAYAK, EDNA OMINAYAK, DENISE OMINAYAK,
VIOLET OMINAYAK, TRUDY WHITEHEAD, VERONICA WHITEHEAD,
MARINA CARDINAL, NORA LABOUCAN, JUNE OMINAYAK,
IDA CHRISTAIN, HARVEY RIVARD, GLORIA OMINAYAK,
GLADYS CALLIOU, MARTHA OMINAYAK, EDITH RIVARD,
PETER CALLIOU, SONIA HAMELIN, LORNA HAMELIN,
ELSIE HAMELIN, LORI AUGER, LORNA VERHAGE, DELMA
SUPERVAULT, MARLENE SUPERNAULT, DENNIS LABOUCAN,
HELEN CALLIOU, MARINA CALLIOU (GLADUE), BILLY JOE LABOUCAN,
BARB OMINAYAK, JUANITA LABOUCAN, KENNY LABOUCAN,
YVONNE BUC, RICHARD SUPERNAULT, DARCY OMINAYAK, VIOLA
SUPERNAULT, VERNA SUPERNAULT, ISABEL SUPERNAULT,
AUGUST SUPERNAULT, BRIAN SUPERNAULT, MELVIN OMINAYAK,
LISA OMINAYAK, GERALD LABOUCAN, BRIAN LABOUCAN,
DALE LABOUCAN, RAMONA LABOUCAN, RALPH LABOUCAN
and CORRINE LABOUCAN,
Plaintiffs (Applicants)
- and -
SHARON VENNE, in her capacity as RETURNING OFFICER for the
LUBICON LAKE INDIAN NATION ELECTION
HELD ON APRIL 25, 1999,
Defendant (Respondent)
REASONS FOR ORDERS
REED, J.:
[1] These reasons relate to two motions, one filed on January 21, 2000, by the applicants and the second filed on February 2, 2000, by the respondent. On February 7, 2000, a decision was rendered on the respondent's motion and brief oral reasons were given. Written reasons are now set out below. A decision was reserved with respect to the applicants' motion. The respondent"s counsel wished to file written submissions. Written submissions have now been received and the reasons relating to the disposition of that motion are also set out below.
[2] The application for judicial review, to which both motions relate, was filed on May 18, 1999, and seeks review of a decision made by Sharon Venne as Chief Electoral officer when conducting the election of Chief and Council of the Lubicon Lake Indian Nation, on April 25, 1999. The applicants assert that she refused to allow anyone associated with action T-2060-96 to vote, unless they signed an affidavit disassociating themselves from that action. That action had been started to attempt to establish a new band (The Little Buffalo Cree Band).
Motion of February 2, 2000
[3] The respondent's motion sought an order: (1) striking the applicants' application for judicial review; or (2) striking out as parties to that application those applicants who had not filed affidavits, and (3) allowing the respondent to withdraw the affidavit of Dwight Gladue, sworn November 10, 1999, from the record.
[4] The respondent sought an order striking out the applicants' judicial review application of May 18, 1999, because that application did not contain a precise statement of the relief sought, as required by Federal Court Rule 301(d). The failure to specifically identify the remedy sought in the application of May 18, 1999, is a defect that the Court will allow to be corrected. There has never been doubt as to the remedy sought by the judicial review application. Also, the defect has existed since the application was filed last May. The respondent has responded to the application, without concern for the defect, and only now raises it. I conclude there has been no prejudice to the respondent, and the defect appears to be a clerical oversight. I consider the failure to specifically identify the remedy, a defect the Court should allow to be corrected, pursuant to its authority to do so under Rule 59(b).
[5] Counsel also asserts that the application should be struck because no practical consequences can flow from quashing Ms. Venne's decision. He argues that the evidence filed by the applicants only shows that five individuals were not allowed to vote, and since those who were elected, were elected by more than 5 votes, there are no practical consequences. That is a matter for consideration by the judge hearing the application on the merits. There is authority that the proper way to contest an application is to appear and argue at the hearing of the application rather than bringing a motion to strike. The decision in David Bull Laboratories (Can.) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, 176 N.R. 48 (sub. nom. Pharmacia Inc. v. Canada (Min. of National Health & Welfare)), 58 C.P.R. (3d) 209 (C.A.) was annotated in Sgayias, Kinnear, Rennie, Saunders, Federal Court Practice, 2000, at page 153, as follows:
| The proper way to contest an originating notice of motion, which a respondent thinks to be without merit, is to appear and argue at the hearing of the motion itself rather than to bring a motion to strike. While the Court has the jurisdiction to dismiss in a summary manner an originating notice of motion that is so clearly improper as to be bereft of any possibility of success, such cases must be very exceptional. |
Comments are also found at pages 506-7 of the Sgayias text.
[6] In the David Bull case, it was made clear that the focus in a judicial review application should be on moving the application to the hearing stage as quickly as possible. The approach should be to discourage, not encourage, preliminary motions to dismiss judicial review applications: see Association of Distillers v. Canada (Minister of Health) (1998), 148 F.T.R. 215; also Lazar v. Canada (A.G.) (T-459-98, June 16, 1998) (F.C.T.D.); Agawa v. Hewson (T-764-98, June 18, 1998) (F.C.T.D.); and Merck Frosst Canada Inc. et al v. Apotex Inc. et al. (1997), 128 F.T.R. 222.
[7] I turn then to the motion for an order that those applicants who did not file affidavits in support of the application be struck out as applicants. I find that argument to be without merit. A person who files an application for judicial review does not himself or herself have to file affidavits: see Nelson v. Commissioner of Corrections (Canada) (1996), 206 N.R.180 (F.C.A.). Indeed, there is case law that states that an application for judicial review can proceed in the absence of any affidavit filed on behalf of the applicant(s): see Canada (Minister of Citizenship and Immigration) v. Chak (T-1681-98, May 10, 1999). The focus in a judicial review application is on the validity of the decision that is the subject of the judicial review, in this case, the decision of Sharon Venne, as Chief Electoral officer, an appointee of the Chief and Band Council. The presence or absence of an affidavit from each applicant is not a ground for striking an applicant from the record. I refer again to the jurisprudence cited above " interlocutory motions are not encouraged in judicial review proceedings. The time limits imposed by the Rules demonstrate that the preferred course of action is to move expeditiously to the hearing of the application.
[8] I turn then to the request that an order be granted allowing the respondent to withdraw the affidavit of Dwight Gladue, sworn November 10, 1999. The affidavit describes the procedures used by Ms. Venne at the election and, for example, identifies 42 persons as having been prevented from voting, who would not sign an affidavit disassociating themselves from the T-2060-96 action.
[9] The respondent seeks to withdraw the affidavit of Mr. Gladue because counsel does not intend to rely on it as part of his argument; he considers that it adds nothing to the respondent's position. In seeking to withdraw the affidavit, counsel for the respondent relies on the decision in Bhatnager v. Minister of Employment and Immigration, [1986] 2 F.C. 3 (T.D.), at paragraph 10. In that case, Mr. Justice Strayer allowed the respondent to withdraw an affidavit, stating that such withdrawal was analogous to a respondent deciding not to call a witness. Mr. Justice Strayer stated that the affidavit in question had not become part of the evidence.
[10] The Bhatnager case was not a judicial review application. The proceeding was one in which the respondent was required to appear and show cause why she should not be held in contempt for failing to comply with an order of the Court. A contempt proceeding is usually conducted on the basis of viva voce evidence. In that case, however, much of the evidence was overseas (in India), so Mr. Justice Strayer allowed the proceeding to be based on affidavit evidence. The reason the respondent sought to withdraw the affidavit was that the deponent was in New Delhi, India, and therefore could not be produced for cross-examination.
[11] I consider the Bhatnager case to be a very particular situation, particular to its facts. I accept counsel for the applicant's assertion that the withdrawal of Mr. Gladue's affidavit in this case is more analogous to a party putting a witness on the stand, adducing his evidence in chief, but then applying to have that evidence struck from the record, and the witness excused, rather than to a decision not to call a witness.
[12] Counsel for the respondent also relies upon Syntex Inc. et al. v. Canada (Minister of National Health and Welfare) (1995), 94 F.T.R. 215. In that case, Mr. Justice Gibson dealt with a request to withdraw affidavits, which would be replaced by others containing "substantially identical substance" but would be sworn by a different affiant. The withdrawal was in the context of a judicial review application and Mr. Justice Gibson referred to the Bhatnager decision. He referred to the applicable principles concerning the rule that affidavits once filed cannot be withdrawn, principles discussed in R.O.M. Construction Ltd. v. Heeley et al. (1982), 46 A.R. 366 (Q.B.). He stated that allowing the withdrawal of affidavits, and their replacement by others having substantially similar content, was a matter within the discretion of a judge. In the case before him, however, he was not prepared to allow the withdrawal and replacement, because the affiant it was proposed to substitute was less knowledgeable about the facts than the affiant of the already filed affidavits.
[13] In the present case, the withdrawal is clearly sought in order to withdraw from the record relevant evidence that has been filed. The affidavit in question was filed on November 12, 1999, in response to a Court order of October 26, 1999, requiring the respondent to file within 30 days all affidavits on which she intended to rely. The request that the respondent be allowed to withdraw the affidavits must be considered together with the affidavit Ms. Venne has filed, stating she has no knowledge of a band membership list or a list of those eligible to vote at the April 25, 1999, election. Not only will withdrawal prevent cross-examination, the withdrawal appears to be part of a strategy to limit the applicants" access to relevant information. The fact that counsel has now decided that he does not wish to rely upon the affidavit, is not an acceptable reason to grant an order permitting withdrawal.
[14] For the reasons given, the respondent"s motion of February 2, 2000, was dismissed. Costs were reserved to be dealt with at the same time as the costs of the applicants' motion of January 21, 2000.
Motion of January 21, 2000
[15] The applicants" motion seeks an order requiring Ms. Venne to produce the band membership list as it existed on April 25, 1999, and an order that Mr. Gladue be required to attend for cross-examination on his affidavit.
[16] Counsel for the respondent argues that Ms. Venne cannot be required to produce a copy of the band membership list, as it existed on April 25, 1999, because she never had it in her possession. As noted above, she filed an affidavit, dated January 28, 2000, stating that she had never seen an electors" list or a band membership list, at any time. (Counsel for the applicants argues that this admission, alone, should allow me to grant, now, the remedy the applicants seek, without more.)
[17] In addition to the above arguments, the respondent cites: Canada (Attorney General) v. Canada (Information Commissioner), [1998] 1 F.C. 337 (T.D); Canada Post v. P.S.A.C. (1999), 164 F.T.R. 288; Brychka v. Canada (1998), 141 F.T.R. 258; Beno v. Letourneau, J. et al. (1997), 130 F.T.R. 183; Veale v. M.N.R. (1998), 143 F.T.R. 33; Eli Lilly and Co. v. Novopharm Ltd. (1996), 67 C.P.R. (3d) 362 (T.D.). These decisions do not assist the respondent.
[18] In the Canada v. Information Commissioner case, a request for documents was refused because the documents were privileged and the relevant statute stated that they were not to be disclosed.
[19] In the Canada Post, case a request for documents was refused because they had not been sought by the applicant at the time the decision under review was being made. The applicant had not sought to have the documents made part of the record.
[20] In the Brychka case, the Court refused to accept new medical evidence that had not been before the decision maker whose decision was under review.
[21] In the Beno decision, the documents requested were described in very general terms. Part of the description reads: "... all correspondence, notes, memoranda, minutes of meetings and discussions that the Commissioners and their staff, including counsel, have reviewed or prepared" regarding the issuance of the s.13 Notices, and regarding the inter-relationship between the phases of the Somalia inquiry. An order requiring the production of these documents was refused because: it was not clear that the internal documents of the Commissioner were relevant to the applicant"s application to have the s.13 Notices set aside; the request was too broad and vague; it was not even clear that such documents existed; the applicant already had access to all relevant documents since they were disclosed in the record of the tribunal"s proceedings.
[22] In the Veale case, the applicant sought information concerning contents of the tax file of other taxpayers. The Court held that this information was confidential and the taxpayer was only entitled to the material relating to his own income tax file.
[23] In the Eli Lilly case, the Court stated that cross-examination on affidavits filed in a judicial review application is more limited in scope than an examination for discovery; cross-examination is limited to relevant matters arising from the affidavit. The documentation and answers sought were found not to fall within this category.
[24] In the present case, while Ms. Venne may not have had physical possession of the membership list or list of eligible voters, the record discloses, that she relied on such a list in deciding who was eligible to vote and who was not. This is clear by the questions she asked the membership clerk. The document(s) are clearly not of a confidential or privileged nature, and a number of those attending the meeting asked Ms. Venne to produce the membership list. The request is not a vague or general one; it is for specific documents. It is directly relevant to Ms. Venne"s affidavit. The Final Report of the Chief Electoral Officer, 25 April 1999 Lubicon Election is referred to in Ms. Venne"s affidavit, and has been made part of the record of the application.
[25] Thus, this is not a situation in which the documents requested: were not relied upon by the decision maker in making the decision under review; were not asked to be produced as part of the record at the time the decision was made; were confidential or privileged in nature; constitute new evidence that was not before the decision maker; are not relevant to the judicial review application or to Ms. Venne"s affidavit. The document(s) should be produced. An order will issue accordingly.
[26] The respondent refuses to produce Mr. Gladue for cross-examination because her counsel does not intend to rely on his evidence.
[27] The written submissions filed by counsel for the respondent do not add much to the arguments discussed above with respect to the respondent"s request to withdraw Mr. Gladue"s affidavit from the record. From the reasons given above, it is clear that Mr. Gladue should be required to attend for cross-examination. An order will issue accordingly.
[28] Given the completely unreasonable approach the respondent has taken to this proceeding, the applicants should have their costs of the two motions on a solicitor-client basis and payable forthwith.
_______________________________
Judge
OTTAWA, ONTARIO
February 24, 2000