Agawa v. Hewson, docket T-764-98

                                                                                                     Docket: T-764-98

OTTAWA, ONTARIO, Thursday, June 18, 1998

PRESENT: THE HONOURABLE MR. JUSTICE HUGESSEN

B E T W E E N :

PERCY AGAWA, ALAN BOYER, ANDY CLARKE, LIZETTE COLLINS

ADELENE V. CORBIÈRE, LLOYD HILL, RICHELE ROBINSON, IRENE STEVENS, VICTORIA SYRETTE and DONALD WABOOSE

                                                                                                                  Applicants

                                                             - and -

ROLAND HEWSON, CAROL NADJIWON, JAMES ROACH, VERNON SYRETTE, ANN TEGOSH and KEVIN TEGOSH in their representative capacity as councillors of the Batchewana Band and NOEL SYRETTE in his illegal capacity as councillor for the Batchewana Band.

                                                                                                             Respondents

                                                           ORDER

The motion is dismissed with costs fixed in the amount of $750.00 payable to the applicants by the respondents forthwith and in any event of the cause.

                                                                                              "James K. Hugessen"              

                                                                                                                           judge

Date: aajj8

                                                                                                     Docket: T-764-98

B E T W E E N :

PERCY AGAWA, ALAN BOYER, ANDY CLARKE, LIZETTE COLLINS

ADELENE V. CORBIÈRE, LLOYD HILL, RICHELE ROBINSON, IRENE STEVENS, VICTORIA SYRETTE and DONALD WABOOSE

                                                                                                                  Applicants

                                                             - and -

ROLAND HEWSON, CAROL NADJIWON, JAMES ROACH, VERNON SYRETTE, ANN TEGOSH and KEVIN TEGOSH in their representative capacity as councillors of the Batchewana Band and NOEL SYRETTE in his illegal capacity as councillor for the Batchewana Band.

                                                                                                             Respondents

                                            REASONS FOR ORDER

HUGESSEN J.

[1]         This is a motion in writing pursuant to Rule 369 brought by the respondents seeking a stay of the judicial review proceedings launched by the applicants.

[2]         The grounds asserted by the respondent in support of their motion may be compendiously summarized as being that the judicial review proceeding is ill-founded in law, that it improperly seeks to attack more than one decision, that it improperly joins different forms of relief, and that it is frivolous and vexatious. Although the relief sought is stated to be a stay, both in substance and in form (other than the use of the word "stayed" instead of "struck") it is a motion to strike. It is also for several reasons utterly misconceived.

[3]         In the first place, and at a purely technical level, the motion is brought by parties who are not before the Court at all. The application for judicial review was served on the respondents on April 27 and 28, 1998. In accordance with Rule 305, the respondents had ten days to produce a notice of appearance. It would appear that they have not done so even to this day.

[4]         Second, and more fundamentally, the motion is, as I have said, essentially a motion to strike. Except in the rarest of circumstances, such a motion is not available on an application for judicial review^[1]. Those circumstances do not exist in this case.

[5]         Next, it is the respondents' assertion that the question of law raised by the application for judicial review has been definitively settled by a judgment of this Court. I am far from persuaded that that is indeed the case but even if it were that is something which should be raised on the merits of the application and not by way of a preliminary motion.

[6]         Finally, as regards the respondents' assertion that there has been improper joinder of different forms of relief and that the proceedings attack more than one decision, even assuming that there was any merit to the point (a dubious assumption), it would, at best, in accordance with Rule 56 constitute non-compliance with the Rules and a simple irregularity. Rule 58(2) requires that a motion attacking such an irregularity be brought "as soon as practicable after the moving party obtains knowledge of the irregularity". The burden of proving compliance with that provision clearly falls upon the moving party. Nothing in the materials submitted indicates such compliance.

[7]         For the foregoing reasons, the motion will be dismissed with costs fixed in the amount of $750.00 payable to the applicants by the respondents forthwith and in any event of the cause.

                                                                                              "James K. Hugessen"           

                                                                                                                           judge

FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                      T-764-98

STYLE OF CAUSE:                   PERCY AGAWA, ALAN BOYER, ANDY CLARKE, LIZETTE COLLINS ADELENE V. CORBIÈRE, LLOYD HILL, RICHELLE ROBINSON, IRENE STEVENS, VICTORIA SYRETTE AND DONALD WABOOSE

-and

ROLAND HEWSON, CAROL NADJIWON, JAMES ROACH, VERNON SYRETTE, ANN TEGOSH AND KEVIN TEGOSH in their representative capacity as councillors of the Batchewana Band AND NOEL SYRETTE in his illegal capacity as councillor for the Batchewana Band

MOTION IN WRITING WITHOUT THE APPEARANCE OF THE PARTIES

ORDER AND REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN DATED:                                                        JUNE 18, 1998              

WRITTEN REPRESENTATIONS BY:

Mr. Gary E. Corbière                  ON BEHALF OF THE APPLICANTS

Mr. William B. Henderson          ON BEHALF OF THE RESPONDENTS

SOLICITORS ON THE RECORD:

Mr. Gary E. Corbière

Garden River, Ontario                   ON BEHALF OF THE APPLICANTS

Mr. William B. Henderson

Toronto, Ontario                          ON BEHALF OF THE RESPONDENTS