Date: 19980309
Docket: T-578-96
Between:
MARILYN MARACLE and BRIAN MARACLE
Applicants
- and -
SIX NATIONS COUNCIL of the SIX NATIONS OF THE GRAND RIVER
BAND OF INDIANS and THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
Respondents
- and -
RONALD LEROY HILL, ALSO KNOWN AS HOHUHES,
on behalf of THE SIX NATIONS CONFEDERACY COUNCIL
AT THE SIX NATIONS GRAND RIVER TERRITORY
Intervenor
REASONS FOR ORDERS
MacKAY, J.:
[1] These are reasons for orders dismissing two motions by the respondent the Six Nations Council of the Six Nations of the Grand River Band of Indians (the "Six Nations Council"), both of which motions are appeals from decisions by orders on February 16, 1998 by the Associate Senior Prothonotary.
[2] The first motion sought reversal of his decision dismissing a motion by the Six Nations Council that the application for judicial review in this matter be dismissed or struck out as having been commenced out of time in light of s-s. 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7, as amended. The second motion sought reversal of the decision to allow an application, to be an Intervenor in the judicial review proceedings, by Ronald Leroy Hills, also known as Hohuhes on behalf of the Six Nations Confederacy Council at the Six Nations Grand River Territory. The order allowing intervention specified terms limiting the evidence the Intervenor might introduce and the purposes of the intervention.
[3] When the motions appealing the prothonotary's decisions came on for hearing on March 2, 1998 counsel for the applicants in these proceedings, Marilyn Maracle and Brian Maracle, opposed the appeal of the decision not to dismiss the application for judicial review, and advised that the applicants did not oppose the decision to allow the Intervenor standing in the proceedings. Counsel for the Intervenor opposed the appeal of the order allowing intervention, and counsel for the respondent Minister advised that the Minister took no position on the appeal from the motion to dismiss the proceedings, but if it were not allowed and the proceedings for judicial review carried forward the Minister was supportive of the standing accorded to the Intervenor.
[4] The originating notice of motion dated March 8, 1996 seeks declaratory relief that
| i) a new elections code introduced at Six Nations by the respondent Six Nations Council on August 15, 1995 is invalid; |
| ii) a band council general election on November 4, 1995 under the new elections code is invalid; |
| iii) a band council by-election held February 24, 1996 under the new elections code is invalid; and |
| iv) that band council elections in future under the new elections code will be invalid. |
The Order dismissing an application to strike the originating motion
[5] Among submissions in its Respondent's Application Record the Six Nations Council submits that the application for judicial review is filed out of time. That submission was the basis of its motion, heard on February 16, 1998, that the application for judicial review should be dismissed, a motion dismissed by order of the Associate Senior Prothonotary whose order is now appealed. It is urged that the order was based on an error of law and that it should now be reversed.
[6] The Federal Court Act provides, in part,
| 18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction |
| (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and |
| (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. |
| ... |
| 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. |
| (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. |
[7] For the Six Nations Council it is urged that the prothonotary erred in law by not dismissing the application, since the application for judicial review was commenced by filing beyond the time limitation period specified by s-s. 18.1(2), a period which it is urged applies in the case of the declaratory relief here sought and which period has not been extended. Further, it is said the application is not saved by its commencement within 30 days of the by-election of February 24, 1996, conducted pursuant to the Six Nations Elections Code, one of the "decisions" here impugned, since it is the validity of the elections code itself, adopted in August 1995, and approved by order of the respondent Minister in November 1995, that the applicants challenge.
[8] For the applicants it is urged, as it was before the prothonotary, that the judicial review does not seek to question a decision of the Band Council or a decision of the Minister. Rather, the applicants seek declarations in respect of the new elections code and elections conducted under it. The applicants' argument is based on interpretation of the Federal Court Act, which they say does not limit declaratory relief to those circumstances where relief is concerned only with decisions of a federal board, commission or tribunal. It is also based, in part, on interpretation of the definition of "council of the band" in s-s. 2(1) and of s-s. 74(1) of the Indian Act. It is urged that the application here is in respect of acts or proceedings of a federal board, commission or tribunal other than a "decision" or "order" of such a tribunal.
[9] The decision of prothonotary Giles that is here appealed dismissed the motion to dismiss or strike the application on a preliminary ground that he believed was better left for determination after full argument when the application is heard. He was not persuaded in light of the applicants' argument that it was plain and obvious that the application for judicial review will fail and that the argument of the applicants and of the respondent Six Nations Council, about applicable time limits for commencing proceedings in this case, warrant hearing, as in the normal course, when the application for judicial review is heard by the Court.
[10] I am not persuaded that the prothonotary erred in law. No final disposition of the issue raised by the Six Nations Council's motion has been made. It has simply been left to be heard and determined when the application is heard. That is the normal process for dealing with objections in judicial review proceedings. Intended as an expeditious means of resolving certain issues, the process ordinarily goes forward to a hearing without interlocutory motions. It is only where it is clear even without a hearing that the applicant's case is without merit that a motion to dismiss the application before hearing the parties is allowed.
[11] In Guerin v. Canada (Attorney General), [1996] F.C.J. No. 745, May 31, 1996 (F.C.T.D.), my colleague Mr. Justice Pinard dismissed a motion to extend time for filing of an originating motion for declaratory relief in relation to a decision that the applicant was subject to an intensive supervision program within the correctional facility where he was detained. A motion to strike the originating notice of motion was also allowed. As I read that case it clearly relates to a decision made with respect to applying a particular regime to the party seeking declaratory relief. Those circumstances are distinguishable from those in this case upon which declaratory relief is sought.
[12] In Bone v. Sioux Valley Indian Band No. 290 Council et al. (1996), 107 F.T.R. 133, Mr. Justice Heald notes that while the time limited by s-s. 18.1(2) of the Federal Court Act was raised as a preliminary matter that was said to bar relief in the nature of quo warranto there sought, in that case the respondents conceded that in relation to the declaratory relief sought the limitation period is not applicable. He found that the Court has jurisdiction to grant declaratory relief, jurisdiction which admittedly was not questioned in that case.
[13] Finally, I see no error in law where the prothonotary, in the exercise of discretion taking account of legal principles involved, makes no final disposition of a legal issue raised. I am not persuaded that he erred in law or that he erred in the exercise of his discretion. For these reasons I dismissed the application of the Six Nations Council, that the decision of the prothonotary, permitting these proceedings to continue, be reversed. My order specifies that it is without prejudice to the raising of the issue of the application of s-s. 18.1(2), and the limitation period there set out, to the application for judicial review when the matter is heard.
The Order allowing the application to intervene
[14] The Six Nations Council urges that the decision of the prothonotary allowing the application to intervene should be reversed, principally because of delay in bringing the application, without explanation for the delay. In addition, it is urged that the proposed Intervenor takes the same position as the applicants, and that in any event, intervention should have been limited to submissions on the issues in the application on the basis of the already closed evidentiary record.
[15] For Ronald Leroy Hill, also known as Hohuhes, seeking to intervene on behalf of the Six Nations Confederacy Council at the Six Nations Grand River Territory, it is urged that the interests and position of the proposed intervenor differ from those of the applicants. I am satisfied that this is so. Though both parties contend the new election code is invalid, the bases for their claims differ and the effects of their submissions will differ. For the applicants it will be urged that the code is invalid since it was not adopted within the Six Nations by the Band, the effect of which is simply that following the Minister's order in November 1995 there is no elections code in effect. The proposed intervenor sees the Minister's authority under the Indian Act as extending no further than abolishing elections procedures established under that Act, the result of which is to remove that Act's limitation on the customary law of the Band or Bands concerned which law, in effect, is restored.
[16] That is a legal result that may be significant and one which is not likely to be adequately presented to the Court unless the proposed intervenor is permitted to provide evidence, by affidavit, on the matter as it proposes to do. That it was permitted to do by the order of the prothonotary, including filing as an exhibit to a draft affidavit already provided to the parties, a substantial excerpt from a historical record. In my opinion, the order appealed from properly authorizes the specific evidence to be adduced by the intervenor and the purpose of the intervention.
[17] Finally, I turn to the major concern of the Six Nations Council, that is, the delay in applying by the proposed intervenor. Application is made only in February 1998 when the application for judicial review commenced by filing of the originating notice of motion in March 1996, and with a hearing date set for March 28, 1996. The Six Nations Council is concerned in part that it may be prejudiced by the late intervention, unless the hearing date were now to be postponed. In any event, it is urged that the application is not made in a timely fashion (see Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1993), 65 F.T.R. 292 at 297). In Wewayakum, Mr. Justice Teitelbaum referred to the criteria to be met by a proposed intervenor in a judicial review application pursuant to Rule 1611 of the Court's Rules, as enunciated by Mr. Justice Rouleau in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) (No. 1), (1989), 29 F.T.R. 267. To those criteria Teitelbaum J. added an additional factor, that is, the applicant who desires to intervene must file an application in a timely manner so that no party to the proceedings would be prejudiced by the applicant being allowed to intervene.
[18] Timeliness was a major factor, in my view, in the decision by Teitelbaum J. to dismiss the application to intervene in Wewayakum. There that application was presented in June 1993, some seven weeks after trial had commenced, in an action in which the statement of claim was filed in December 1985. Delay in filing in this case, it is argued, arises from the need for those in the proposed intervenor group to consult and reach a consensus on whether to seek to intervene. In any event, the application is made and originally dealt with about five weeks before the scheduled hearing date. If any party perceives it may be prejudiced as a result of the order to permit intervention, I believe that prejudice can be avoided by the Court rescheduling the hearing, if that be necessary.
[19] In my opinion the decision of the prothonotary in this case was one within his discretion. I am not persuaded that he erred in law in considering the criteria for intervention, including the potential prejudice to either party that might arise from approval of a late application to intervene.
Conclusion
[20] For the reasons set out the two applications by the Six Nations Council, appealing from the decisions made by the prothonotary by orders with effect on February 16, 1998, were dismissed.
[21] Any party concerned about the arrangements now scheduled for hearing the application for judicial review, as a result of the decision permitting the intervenor's participation in the hearing, is invited to request through the Registry a telephone conference for all parties with the Acting Associate Chief Justice.
[22] Of its own motion the Court directs by the Order issued in relation to the motion appealing the decision to allow an Intervenor that the style of cause shall hereafter be as it is set out at the commencement of these Reasons.
W. Andrew MacKay
Judge
OTTAWA, Ontario
March 9, 1998.