Date: 20051116
Docket: 05-T-58
Citation: 2005 FC 1541
Ottawa, Ontario, Wednesday the 16th day of November, 2005
Present: THE HONOURABLE CHIEF JUSTICE LUTFY
BETWEEN:
ALICE BEAUVAIS
Applicant
- vs -
MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA
- and -
SHIRLEY MCGREGOR DIABO
Respondents
REASONS FOR ORDER AND ORDER
LUTFY C.J.
[1] Thirty-eight months after receiving communication of a decision made by the respondent Minister of Indian and Northern Affairs ("DIAND"), the applicant filed a motion, under subsection 18.1(2) of the Federal Courts Act, seeking an extension of time beyond the normal thirty days for instituting an application for judicial review.
[2] The parties agree that to succeed on this motion the applicant must demonstrate that: (a) she had a continuing intention to pursue the application for judicial review; (b) the application has some merit; (c) no prejudice to the respondents arises from the delay; and (d) a reasonable explanation for the delay exists. See: Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263 (C.A.) and Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (C.A.).
[3] This four-fold test need not always be absolute. In his concurring reasons in Grewal, supra, Justice Marceau aptly noted that these factors should be balanced and adapted to the particulars of the situation (at page 282):
It seems to me that, in order to properly evaluate the situation and draw a valid conclusion, a balancing of the various factors involved is essential. For example, a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay.
[4] On June 14, 2002, DIAND formally advised the applicant of its decision to rule against her and in favour of the respondent Shirley McGregor Diabo concerning their respective interests in lands on the Kahnawake Indian reserve. The ministerial order was dated May 27, 2002.
[5] It is likely the applicant knew as early as June 6, 2002 of the DIAND decision formally communicated to her one week later. On June 17, 2002, the Mohawk Council of Kahnawake met to consider the applicant's situation and a memorandum of that date stated as follows:
Further to the duly convened Council Meeting of Monday, June 17, 2002, Chief & Council agreed to allow the Mohawk Council of Kahnawake Legal Department to offer Ms. Alice Beauvais advice without getting involved in her court case.
[Emphasis added]
[6] In her affidavit to support this motion, the applicant explained the lapse of time in these terms:
19. The Respondent, Minister of Indian and Northern Affairs, never informed me that I had any right to seek judicial review of its decision and never informed me of any possible recourse whatsoever against their decisions;
20. Given the Band Council's authority under the Indian Act in respect to Certificates of Possession, I duly sought the assistance of the Mohawk Council of Kahnawake in respect to this matter and I awaited their input, the whole as appears from Exhibit GG;
21. Following the Mohawk Council of Kahnawake's issuance of Exhibit GG, I regularly followed up with various council members as to the status of my file and had several meetings with council Chiefs Keith Myiaow and Marvin Zacharie, the whole over a three year period extending between the Band Council's issuance of Exhibits GG and II;
[Emphasis added]
[7] On June 8, 2005, the Mohawk Council of Kahnawake wrote to the applicant confirming that it could not resolve the land dispute and suggesting that it would be difficult to challenge DIAND'S investigation:
As requested, the Land Management Office has conducted extensive research regarding Reserve Lot 10, Block A, Village Lot 498 and Reserve Lot 76, Block F. A consultation with Legal Services, MCK was also conducted in order to obtain a legal opinion regarding the file. After reviewing the file in depth, it has become clear that there is not much that can be done to reverse the Ministerial Order dated May 27, 2002. In lieu of the above, the Land Management Office has recommended that a Sub-Division of the lots be agreed upon by both Shirley Ann Diabo and yourself.
Legal counsel may be sought in order to try overturning the Ministerial Order, however, this will be a difficult challenge given the forensic report of the RCMP and the investigation carried out by DIAND. Further, given that most parties, including [Mr.] Wilfred Beauvais and Mr. Joseph Diabo Martin are now deceased and can not testify or provide further writing samples, it may be very difficult to prove the authenticity of the "Agreement of Heirs".
The Land Management Office is not in the capacity of resolving private land disputes, however, may provide information regarding parcels of land including mapping information. Should an agreement be reached regarding a Sub-Division, the Land Management Office is willing to assist in the division of the land.
[Emphasis added]
[8] The applicant described her efforts in defending her interests prior to the DIAND decision of early June 2002. It is more relevant, however, to establish the measures she undertook subsequent to the decision in demonstrating her continuing intention.
[9] In Grewal, supra, Chief Justice Thurlow emphasized the importance of establishing the continuing intention to pursue the matter diligently (at page 277):
Among the matters to be taken into account in resolving the first of these questions is whether the applicant intended within the 10-day period to bring the application and had that intention continuously thereafter. Any abandonment of that intention, any laxity or failure of the applicant to pursue it as diligently as could reasonably be expected of him could but militate strongly against his case for an extension.
[Emphasis added]
[10] The DIAND decision letter of June 14, 2002 was addressed to the applicant and a copy was forwarded to her counsel of the day. The memorandum of the Mohawk Council of Kahnawake dated June 17, 2002, referred to the applicant's "court case". I have read this reference to a "court case" in light of the applicant's information in paragraph 19 of her affidavit that she was never informed of any possible recourse against the DIAND decision. One might surmise from the reference to her "court case" that some form of judicial proceeding may have been contemplated at that time.
[11] Counsel agree that the applicant has the burden of establishing a reasonable explanation for the delay. The applicant's affidavit contains bald statements that she "awaited" the input of the Mohawk Council of Kahnawake and that she "regularly followed up" with "several meetings" with Council members. This does not meet the test in Grewal, supra, to pursue the matter "as diligently as could reasonably be expected". It is not sufficient to argue that the applicant was not cross-examined concerning her general assertions. Even if I were to accept that the applicant had a continuing intention to contest the DIAND decision, I have concluded on the record before me that the applicant has fallen far short of demonstrating a reasonable explanation for the delay.
[12] In her attempts to establish an arguable case, the applicant focused on alleged errors in the procedures followed by DIAND prior to making its decision. In particular, the applicant submits that DIAND should have met with Joseph Martin, the purported witness to a written agreement, to determine whether his signature was authentic. DIAND relied principally on the reports of handwriting experts. The applicant also argues that she was misled by departmental officials who returned her documentation to her without stating that the department would subsequently proceed to expert testing. In her view, DIAND should not have made this decision prior to receiving her expert's report.
[13] In my view, on the record before me, it would be difficult to conclude that the applicant has established an arguable case in the context of an application for judicial review. The threshold of an arguable case could be met if it were known whether the application for judicial review could be converted into an action. In either circumstance, however, I am satisfied that the late filing of the proceeding would cause prejudice to both respondents.
[14] The public land registry system must be seen as credible and certain. Moreover, the parties acknowledge that the witness, Joseph Martin, has died since the DIAND decision of May 27, 2002. His evidence, oral or by affidavit, is no longer available for any new court proceeding.
[15] Despite the able and principled submissions of the applicant's counsel, this motion must fail. The applicant has demonstrated neither a reasonable explanation for the thirty-eight month delay nor a continuing intention to pursue her recourse diligently and without laxity. In exercising the balancing test suggested by Justice Marceau in Grewal, supra, I conclude that the applicant's failure to explain sufficiently the lengthy delay and the prejudice which would be caused to both respondents outweigh the merits of the applicant's case on the basis of the record now before me.
[16] For these reasons, the applicant's motion for an extension of time to file her application for judicial review will be dismissed. Each party to the proceeding sought costs. The most extensive materials by far were those of the applicant. Keeping in mind the circumstances of this case, I have concluded in the exercise of my discretion that there should be no order as to costs.
ORDER
[17] THIS COURT ORDERS THAT:
The applicant's motion for an extension of time to file her application for judicial review is dismissed. No order as to costs.
"Allan Lutfy"
Chief Justice
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 05-T-58
STYLE OF CAUSE: Alice Beauvais (Applicant) -vs-
Minister of Indian and Northern Affairs Canada -and-
Shirley McGregor Diabo (Respondents)
PLACE OF HEARING: Montréal (Quebec)
DATE OF HEARING: October 20, 2005
REASONS FOR ORDER AND ORDER Chief Justice Lutfy
DATED: November 16, 2005
APPEARANCES:
Mr. Stephen Ashkenazy FOR THE APPLICANT
Mr. Jason Ruby FOR THE RESPONDENT - Shirley McGregor
Me Louis-Alexandre Guay FOR THE RESPONDENT - Minister of Indian and Northern Affairs Canada
SOLICITORS OF RECORD:
Hamilton Cooper Ashkenazy FOR THE APPLICANT
Dollard des Ormeaux (Quebec)
Mr. John H. Sims, Q.C. FOR THE RESPONDENTS
Deputy Attorney General of Canada
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