Pauktuutit, Inuit Women's Association v. Canada, 2004 FC 804

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2004 FC 804

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Date: 20040603

Docket: T-1523-01

Citation: 2004 FC 804

Ottawa, Ontario, this 3^rd day of June, 2004

Present: The Honourable Justice James Russell

BETWEEN:

PAUKTUUTIT, INUIT WOMEN'S ASSOCIATION

and

VERONICA DEWAR

Applicants

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR ORDER AND ORDER

[1] This motion by the Respondent is an appeal of the Order by way of Endorsement of Prothonotary Hargrave dated October 31, 2003 ("Order") which granted leave to the Applicants to file a reply affidavit of Veronica Dewar. The motion requests the following relief:

1. An order setting aside the Order of Prothonotary Hargrave and denying the Applicants' motion dated September 23, 2003 requesting leave to file a reply affidavit;

2. In the alternative, an order directing that any reply affidavit of Veronica Dewar shall be re-filed within 10 days of the order and shall be restricted to the subject matter referred to in the first and second paragraphs of the Order of Prothonotary Hargrave;

3. If necessary, an extension of the time for cross-examinations on any reply affidavit to 20 days from the date of the order;

4. Costs; and

5. Such further and other relief as this Honourable Court may deem just.

[2] The grounds for the motion are:

1. Prothonotary Hargrave was clearly wrong or erred in law or principle in the following respects:

(a) he failed to consider the principle that a party bringing a motion for leave to file reply evidence in a judicial review application should not be permitted to file material which could have been available at an earlier date; and

(b) he failed to take into account that the Order causes prejudice to the Respondent by permitting the Applicants to split their case, leading to a chain of further steps and delay which is fundamentally inconsistent with the summary nature of such proceedings.

2. Prothonotary Hargrave was also clearly wrong or erred in fact in the following respects:

(a) he misread the proposed reply affidavit of Veronica Dewar as being solely "tendered to rebut the view of the deponents of the Crown's affidavit material that Pauktuutit ... was represented by Ms. Roda Grey [at the material times] ...";

(b) even though Prothonotary Hargrave restrictively (and incorrectly) read the proposed affidavit as aforesaid, he granted leave to file a reply affidavit in the Order without restriction as to the matters so enumerated, providing a virtual carte blanche to the Applicants to introduce further matters, such as matters which could have been introduced in their earlier material;

3. Rules 51 and 312 of the Federal Court Rules, 1998;

4. Such further and other grounds as counsel may advise and this Honourable Court may permit.

BACKGROUND

[3] The within application was filed in conjunction with three other judicial review applications: T-1520-01, T-1521-01, T-1522-01. On November 23, 2001, the Respondent moved to strike all four applications on various grounds.

[4] The Applicants also brought a motion dated November 15, 2001, seeking documents pursuant to Rule 318. In support of that motion the Applicants filed an affidavit of Veronica Dewar, sworn November 6, 2001.

[5] By Reasons and Order dated February 10, 2003, Prothonotary Hargrave struck out and dismissed applications T-1520-01, T-1521-01 and T-1522-01. The application in T-1523-01 was allowed to proceed. Prothonotary Hargrave, however, observed as follows:

I have some real doubts as to the success of application T-1523-0l and all the more so in that there is not material bearing on any direct approach by Pauktuutit to be part of the actual discussion leading to the founding of the Aboriginal Health Institute.

Pauktuutit et al v. The Queen, 2003 FCT 139, para. 31; Order dated February 10, 2003.

[6] Prothonotary Hargrave dismissed the motion for production of records pursuant to Rule 318.

[7] The Respondent filed its affidavits on March 26, 2003. The deadline for cross-examination was April 17, 2003. The Applicants did not indicate that they intended to cross-examine on the affidavits by that deadline.

[8] The deadline for the filing of the Applicants' Application Record was May 7, 2003. That deadline also passed without any communication from the Applicants. The first indication that the Applicants wished to cross-examine was a letter dated May 21, 2003.

[9] The Applicants sought leave to extend the time period for cross-examination, to file a reply affidavit and to extend the time for the filing of Applicants' Record. That motion was dealt with by the Court in writing. By Order dated August 26, 2003, Lemieux J., inter alia, granted the Applicants an extension to September 19, 2003, to complete cross-examinations.

[10] Cross-examination of the Respondent's witnesses took place on September 12, 2003. The Applicants then filed the following three separate notices of motion:

(a) a notice of motion dated September 19, 2003, seeking leave to dispense with copying an affidavit as part of the Applicants' Record;

(b) a notice of motion dated September 30, 2003, seeking leave to file a "supplementary" affidavit of Jordana McIvor-Grismer sworn September 29, 2003; and

(c) a notice of motion dated September 23, 2003, seeking leave to file a proposed "reply" affidavit of Veronica Dewar sworn September 24, 2003.

Notice of Motion of the Applicants Re Reply Evidence dated September 23, 2003.

[11] The aforesaid motions were dealt with in writing. On October 31, 2003, Prothonotary Hargrave did the following:

(a) he granted the requested order dispensing with copying;

(b) he denied leave to file the affidavit of Jordana McIvor-Grismer (Order by way of Endorsement of Prothonotary Hargrave, October 31, 2003 Re McIvor-Grismer Affidavit); and

(c) he granted leave to file a reply affidavit of Veronica Dewar (Order by way of Endorsement of Prothonotary Hargrave, October 31, 2003 Re Dewar Affidavit).

[12] It is the third ruling which is the subject matter of this motion.

[13] In dismissing the motion to file the affidavit of Jordana McIvor-Grismer, Prothonotary Hargrave stated as follows:

It is far too late in the day to patch up, edit, augment, properly commission and re-file, in support of this judicial review application, an affidavit which was initially provided by the Applicants in November of 2001 in support of an interlocutory motion. Further, there is no material to explain or justify the delay or the attempt to adduce new material at this late date.

I accept the submissions of the Respondent that to bring in a re write of the very substantial November 2001 affidavit of Ms. Dewar, at this time, would cause the Respondent substantial and unjustified prejudice.

Endorsement and Order of Prothonotary Hargrave, October 31, 2003.

[14] By letter dated November 7, 2003, counsel for the Applicants provided a proposed reply affidavit of Veronica Dewar, sworn November 5, 2003. That proposed reply affidavit contained numerous paragraphs that were not included in the affidavit sworn on September 24, 2003, in support of the motion for reply evidence. It also attached numerous exhibits that were not part of that affidavit.

[15] On November 10, 2003, the Respondent filed the within Notice of Motion.

[16] On November 12, 2003, counsel for the Respondent wrote Ottawa counsel for the Applicants pointing out that the proposed affidavit in question was beyond the scope of the Order of Prothonotary Hargrave, but proposing that the cross-examination could proceed if certain paragraphs were excised from the affidavit.

[17] By letter dated November 12, 2003, counsel for the Applicants indicated they were not prepared to excise any of the paragraphs of the affidavit at issue.

ARGUMENTS

Respondent

Test For Review

[18] The Respondent says that the Federal Court of Appeal has set out the test for reviewing interlocutory decisions of prothonotaries as follows:

. . . discretionary orders of Prothonotaries ought not to be disturbed on appeal to a judge unless:

(a) they are clearly wrong, in the sense that the exercise of discretion by the Prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or

(b) they raise questions vital to the final issue of the case.

Where such discretionary orders are clearly wrong and that the Prothonotary has fallen into error of law (a concept in which I included discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo."

Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) at para. 95.

[19] That test was slightly reformulated by the Federal Court of Appeal recently in Merck & Co. v. Apotex, [2003] F.C.J. No. 1925 at para. 19 as follows:

Discretionary orders or prothonotaries ought not to be disturbed on appeal to a judge unless:

(a) the questions raised in the motion are vital to the final issues of the case, or

(b) the orders are clearly wrong, in the sense that the exercise of discretion by the Prothonotary was based upon a wrong principle or upon a misapprehension of the facts.

[20] Because the decision of Prothonotary Hargrave in the present motion was not vital to the final disposition of this case, the Respondent concedes that the Court should only intervene if he was clearly wrong, in the sense of making a decision based upon a wrong principle or upon a misapprehension of the facts.

Failure to Consider

[21] The Respondent notes that the Federal Court of Appeal has stated the following about applications for leave to file further evidence:

Applications for judicial review are summary proceedings that should be determined without undue delay. Consequently, the discretion of the Court to permit the filing of additional material should be exercised with great circumspection. Thus, in Deigan v. Canada (Industry), [1999] F.C.J. No. 304 (Proth.), affd. [1999] F.C.J. No. 645 (T.D.), Prothonotary Hargrave said (at para. 3):

The new Federal Court Rules allow the filing of a supplementary affidavit and of a supplementary record, however such should only be allowed in limited instances and special circumstances, for to do otherwise would not be in the spirit of judicial review proceedings, which are designed to obtain quick relief through a summary procedure. While the general test for such supplementary material is whether the additional material will serve the interests of justice, will assist the Court and will not seriously prejudice the other side, it is also important that any supplementary affidavit and supplementary record neither deal with material which could have been made available at an earlier date, nor unduly delay the proceedings.

Mazhero v. Canada 2002 FCA 295 at para. 5.

[22] The Respondent argues that, as the above quotation makes clear, in order to justify reply evidence an applicant for leave must provide an indication of why the evidence could not have been filed with its earlier material. Unless this is shown, unjustifiable delay and prejudice to the Respondent will be created:

The supplementary affidavit improperly raises, in my view, facts which could, and in fact should, have been filed as part of the Applicant's original evidence. ...

To permit the filing of the proposed affidavit at this stage would in my view cause a serious prejudice to the Respondent. The Respondent has served and filed her affidavit material upon which she relies. It would be improper to allow the Applicants to now split their case and introduce new facts which could, with due diligence, have been advanced earlier.

Couchiching First Nation v. Canada (Minister of Indian Affairs and Northern Development), [1999] F.C.J. 1795 (Proth.) at paras. 12-13.

[23] Unless parties file available evidence prior to cross-examination, a fundamental prejudice and unfairness is introduced. Lemieux J. has made the following observation in the context of the limitation placed on filing evidence following cross examination:

As I view the law on the point in this Court there is the additional requirement as to the non-availability of the material in the proposed affidavit prior to cross-examination; a supplementary affidavit cannot be a substitute for putting available information to a deponent on cross-examination. A further affidavit is not designed to repair answers which cross-examining counsel wishes he did not get. Moreover, normally, parties are obliged to disclose all available information before cross-examination so as to avoid splitting the evidence.

Salton Appliances (1985) Corp. v. Salton Inc. (2000), 4 C.P.R. (4th) 491 (FCTD) at p. 497;

Adopted in the context of Rule 312: AstraZeneca AB v. Apotex Inc., [2004] F.C.J. No. 54 at para. 39;

See also Marshall v. Canada (Solicitor General), [2002] F.C.J. No. 221 at paras. 17-19.

[24] For the foregoing reasons, the Respondent says it is a fundamental aspect of the test for reply evidence that the moving party demonstrate that the proposed evidence was not previously available.

Evidence Could Not Have Been Advanced Earlier

[25] The Respondent says that, in support of their Notice of Motion dated September 23, 2003, seeking leave to file reply evidence, the Applicants filed the affidavit of Veronica Dewar, sworn September 24, 2003. The stated rationale for the reply evidence was that the affiants of the Respondent's affidavits were mistaken as to certain details surrounding the relationship between the Applicant Pauktuutit ("PIWA") and another Inuit organization, the Inuit Tapirisat of Canada ("ITC"). The affidavit of Ms. Dewar stated as follows:

7. I have noted that neither of these affiants has any knowledge of the inner workings of the Board of Directors of Inuit Tapirisat of Canada and its successor organization, but it is their belief that ITC represented PIWA in discussions and consultations leading to the establishment of the Aboriginal Health Institute (AHI)...

8. I believe it is in the interest of Justice for me to file a reply affidavit to clarify for the record that at all material times leading to the development of the AHI, PIWA existed in its own right, was not subsumed within ITC, and while on the Board of ITC, it was only as an ex officio Member with no voting rights but had only observer status."

Affidavit of Veronica Dewar sworn September 24, 2003, Motion Record of the Applicants in support of Notice of Motion dated September 23, 2003.

[26] The Respondent points out that the Applicants knew prior to the filing of this application that the relationship between ITC and PIWA played a role in the process leading to the creation of the AHI (which is the subject matter of this application). It was not a new factor they learned of in the Respondent's affidavit or which took them by surprise. ITC and PIWA worked closely together on the AHI project. For example, a March, 1999 report by ITC entitled "Creating the Aboriginal Health Institute: Inuit Report and Recommendations" stated as follows:

A Joint Steering Committee (JSC) composed of technical people from the five national Aboriginal Organizations involved in the process was created to oversee the consultations leading to the creation of the AHI. ITC participated in this Committee in cooperation with Pauktuutit. (p. 2, emphasis added)

ITC provided the regional Inuit organizations and the Inuit public with information regarding the establishment of the proposed Aboriginal Health Institute through briefing notes to its Board of Directors, press releases, and media interviews. Resource people were appointed by the following organizations to sit on the Inuit Planning Committee of the AHI:

...

- Pauktuutit (pp. 2-3)

Affidavit of Mark Wigmore, sworn March 24, 2003

[27] The Respondent argues that the supporting affidavit of Veronica Dewar on the motion for reply evidence provided no explanation as to why this issue could not have been, with reasonable diligence, dealt with earlier. Furthermore, the Applicants have had the opportunity to cross-examine on these issues and test the accuracy of any facts relied upon by the Respondent, so they have suffered no unfairness or injustice.

[28] Prothonotary Hargrave, however, failed to even consider whether the Applicants had established that this evidence could have been provided earlier.

[29] The Respondent says it is a reviewable error of law for a prothonotary to fail to consider a factor or consideration relevant to a legal test applicable to the issues at bar (see Francosteel Canada Inc. v. The African Cape 2003 FCA 119 at paras. 21-23; Kirkbi AG v. Ritvik Holdings Inc., [2001] 1 F.C. 681 (T.D.) at para. 32).

[30] The Respondent also says that, in failing to consider a relevant factor, Prothonotary Hargrave misdirected himself and erred. Had he considered it, for the reasons set out above, he would have found that there was no basis to suggest that this evidence could not have been produced earlier. Given this error, combined with the delay on the part of the Applicants in proposing this evidence, and the fact that the Applicants have already had the opportunity to cross-examine, the Respondent submits that this Court should exercise its discretion de novo and find that it is in the interests of justice that the motion for leave to file reply evidence be denied.

[31] The rationale offered by the Respondent for this position is that unless parties to judicial review are required to ensure that the affidavit material filed is as complete as possible at the outset, judicial review proceedings, like this one, will become bogged down and delayed by numerous rounds of reply and sur reply evidence. To ignore this consideration creates unfairness and rewards sloppy or sharp practice. It frustrates the important principle stated by the Federal Court of Appeal in Mazhero, supra, that "Applications for judicial review are summary proceedings that should be determined without undue delay."

[32] For the foregoing reasons, the Respondent says that this motion should be granted, and

the Applicants' motion for leave to file reply evidence should be denied.

Misapprehension Of Facts

[33] The Respondent notes that, in the Order, Prothonotary Hargrave provided as follows at pp. 1-2:

The affidavit, shorn of verbose irrelevancies, is tendered to rebut the view of the deponents of the Crown's affidavit material that Pauktuutit Inuit Women's Association was represented by Ms. Roda Grey during the development, formation and implementation of the National Aboriginal Health Organization, formerly called the Aboriginal Health Institute.

The affidavit tendered by Ms. Dewar is to the effect that the Crown's cross-examined deponents are mistaken in their view, for Ms. Grey was not at material times an employee of Pauktuutit Inuit Women's Association, but rather an employee of Inuit Taperisat [sic] of Canada.

[34] In fact, the Respondent points out that the proposed "Draft Reply Affidavit" of Ms. Dewar went beyond the issue of the relationship between PIWA and the ITC or of who Roda Grey represented during the process leading up to the formation of the AHI. Paragraphs 19-22 and 31-32 of that draft affidavit dealt with funding-related matters that were beyond the scope of the issues referred to by Prothonotary Hargrave.

[35] The Applicants' supporting affidavit on the motion for leave focussed on the issue of the relationship between PIWA and ITC and the role of Roda Grey. It stated as follows:

9. The Health Coordinator for PIWA was Roda Grey who left PIWA to work for ITC after Health Canada cancelled its contract with PIWA and transferred money for Inuit Health to ITC in 1999.

10. The affiants of Justice Canada mentioned seeing Roda Grey at all meetings representing PIWA, but she went to work for ITC when Health Canada withdrew funding from PIWA and gave it to ITC.

11. In the filed affidavits of Mark Wigmore and Pierre Belanger for Justice Canada they expressed the view that PIWA was a subservient organization to ITC, serving on the ITC Board during consultations leading to the implementation of AHI now called NAHO.

12. Both affiants of Justice Canada admit they have no knowledge of the inner workings of the ITC Board of Directors, or of the relationship between the PIWA and the ITC Board although they expressed their belief that ITC represented PIWA.

13. On 15 May 1997, the Board of Directors of ITC amended their by laws giving PIWA the status of an ex officio Board member having no vote on the ITC Board of Directors.

14. When I became Acting President and during my tenure of President, which I still hold, I have never voted on the ITC Board of Directors but attend as an observer of their meetings.

15. After completing the cross-examination of Justice Canada's affiants, and recognizing that they have no knowledge of the relationship between ITC and PIWA, I believe it is important to file a Reply Affidavit.

Supporting Affidavit of Veronica Dewar sworn September 24, 2003, Motion Record of the Applicants Re Notice of Motion dated September 23, 2003.

[36] The Respondent says that the issue of funding had been dealt with in an interlocutory affidavit that the Applicants moved (at the same time as the motion under review) to re-file in support of their application. Prothonotary Hargrave denied leave to file that affidavit, finding "It is far too late in the day to . . re-file . . . an affidavit which was initially provided by the applicants in November 2001 in support of an interlocutory motion." That decision was not appealed. However, the Respondent says that the Applicants now attempt to introduce evidence on the funding issue under the guise of the proposed reply affidavit.

[37] The Respondent's position is that Prothonotary Hargrave erred to the extent that he did not confine the leave granted to the Applicants to the matters he described as being related to the rationale for the proposed reply evidence: i.e. the relationship between PIWA and ITC and the role of Roda Grey (and not the funding matters covered in the Jordana McIvor-Grismer affidavit for which he denied leave).

[38] For the foregoing reasons, the Respondent submits that this Court should find that the Order should have been so limited and that paragraphs 17 -18 and 28 - 29 of the proposed reply affidavit should be struck.

[39] In the Alternative, the Respondent says that portions of the proposed reply affidavit are beyond the Order of Prothonotary Hargrave and should be struck.

[40] The Respondent says that while, generally speaking, motions to strike affidavit evidence in judicial review proceedings should await the main hearing, the situation is otherwise where a proposed affidavit is beyond the terms of an existing Order of the Court. The Court has held as follows on this issue:

Where affidavit evidence is adduced pursuant to the terms of an order ... an affidavit that does not comply with the terms of that order may be struck from the record unless there are exceptional circumstances that would warrant otherwise. No such circumstances are here established by evidence.

AB Hassle v. Canada (Minister of National Health and Welfare), [2000] F.C.J. No.578 (T.D.)

[41] The Respondent says that should the Court find no reviewable error by Prothonotary Hargrave, the proposed reply affidavit of Veronica Dewar is beyond the scope of his October 31, 2003 Order in the following respects:

(a) it contains paragraphs not contained in the proposed affidavit filed as the foundation for the Applicants' motion to file reply evidence;

(b) it appends exhibits not so included; and

[42] In support of the notice of motion for leave to file reply evidence, the Applicants filed both a "Supporting Affidavit of Veronica Dewar" and a "Draft Reply Affidavit of Veronica Dewar" both sworn on September 24, 2003. Neither affidavit had exhibits.

[43] Following the receipt of Prothonotary Hargrave's Order granting leave, the Applicants sent the Respondent the proposed reply affidavit. It went well beyond the scope of what Prothonotary Hargrave referred to as the "intended affidavit." An annotated copy of that affidavit was returned to counsel for the Applicants indicating those portions of the proposed affidavit which, in the Respondent's view, were beyond the scope of the Order.

[44] Paragraphs 11, 12, 13, 14, 15, 16, 26, 34, 35, 36, 40 and 41 were new to the proposed affidavit. These paragraphs cover facts and details not covered in the "intended affidavit," and refer to five new exhibits.

[45] The Respondent says that the aforesaid paragraphs are clearly beyond the scope of the Order of Prothonotary Hargrave and should be struck.

Funding Issues

[46] In his Order, Prothonotary Hargrave stated as follows:

[47] The Respondent says that, properly read, the Order of Prothonotary Hargrave was intended to be confined to matters covered in the above quotation, which fairly summarizes the claimed scope of the proposed reply evidence. Prothonotary Hargrave cannot have intended that the Order should permit reply evidence on matters for which no justification had been given, or matters covered in the proposed Jordana McIvor-Grismer affidavit, for which leave had been denied.

[48] The following paragraphs in the affidavit proposed by the Applicants deal with such issues:

(a) paras. 17-18 relating to the funding of Pauktuutit and ITC; and

(b) paras. 28-29 dealing with funding and role of other aboriginal groups: AFN, MNC,

CAP, ITC and NWAC.

Affidavit of Veronica Dewar sworn November 5, 2003; Affidavit of Linda Ott, sworn February 17, 2004, Exhibit "A".

[49] For the foregoing reasons, the Respondent submits that these paragraphs should be struck from the reply affidavit of Veronica Dewar dated November 5, 2003.

Applicant

[50] The Applicants say that the case law is clear that when reviewing a Prothonotary's decision de novo, the judge should do so on the basis of material that was before the prothonotary and not on the basis of new materials. (Dawe v. Canada, [2002] F.C.J. No. 629, per O'Keefe J., at para. 17 (T.D.)).

[51] No new evidence may be submitted on an appeal of a Prothonotary's order (Educational Testing Service v. Maple Leaf International Consulting Inc., [2004] F.C.J. No. 159, per Mosley J. at para. 18 (T.D.)).

[52] The Applicants also point out that an appeal from an order of a prothonotary can be disposed of in writing on the basis of written submissions (Educational Testing Service v. Maple Leaf lnternational Consulting Ltd., [2001] F.C.J. No. 1590, per Gibson J., at paras. 5, 6, 7 (T.D.)).

Standard Of Review

[53] The Applicants are of the view that Prothonotary Hargrave was not considering a question vital to the final issue of the case and, therefore, there is no need for an oral hearing on this motion. The Respondent's Written Representations are clear at para. 19 that "the decision of the Prothonotary here was not vital to the final disposition of this case" (Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.) per McGuigan J. cited in para. 11 of Educational Testing Service v Maple Leaf International Consulting Ltd., [2001] F.C.J. No. 1590 (T.D.).

[54] The Applicants point out that the Federal Court of Appeal has recently addressed the standard of review to be applied upon appeal of a decision of a prothonotary in Merck & Co. v. Apotex Inc., [2003] F.C.J. No. 1925, at para. 19.

[55] The Merck, supra, decision makes it clear that, if there is a finding that the question is not vital to the final issue of the case, the standard of review that must be applied is whether the Order is "clearly wrong," in that it was based on a wrong legal principle or on a misapprehension of the facts.

[56] Unless a legal error is established by the party seeking to nullify the Order the court must not exercise its discretion de novo. As Wetson J. noted in Hayden Manufacturing Co. v. Canplas Industries Ltd., [1998] F.C.J. No. 1842 at para. 8:

I agree that relevance is the test, but I also am of the opinion that the order is discretionary in that the Court must consider whether the Prothonotary had fallen into legal error of law which prevented him from exercising his discretion properly .... In other words even if I would have made a different order, unless the Prothonotary erred in the manner described previously, this Court should not interfere.

[57] The Applicants also point out that it is well settled that the Court will not interfere with the discretion of a prothonotary making an interlocutory order unless it is demonstrated to the satisfaction of the Court that the prothonotary either erred in the application of the pleadings, or erred in law by misapplying a principle of law or applying an erroneous principle. If this standard is not met the Court cannot allow the appeal, even where it would have decided otherwise had it heard the matter at first instance (Visx Inc. v. Nidek Co., [1996] F.C.J. No. 1721, Isaac C.J., McDonald J. and Henry D.J. (F.C.A.), para. 10).

[58] The Federal Court of Appeal has held that it is not necessary or desirable to dispose of appeals (such as the one brought by the Respondent) on the basis of the merits of the contentions made before the motions judge and again before the Court of Appeal:

In my respectful view, where, as here, an appeal is taken from a discretionary order of the Motions Judge in an interlocutory matter, a disposition most consistent with the optimum use of judicial resources and the optimum conservation of judicial time should focus not on the merits of the contentions before the Motions Judge, but rather on the question of whether or not the Motions Judge exercised his or her discretion judicially in the making of the order. In other words, on appeal, the merits of the contentions should only be dealt with by counsel to the extent required in order to demonstrate that the discretion of the Motions Judge was not exercised judicially.

Visx Inc., supra, at para. 9

[59] The Applicants are of the view that the Respondent has filed an extensive compilation of documents that were not filed before Prothonotary Hargrave when he decided the Applicant's motion for leave to file a reply affidavit. For the hearing of that motion, the Respondent filed written representations consisting of 10 paragraphs and attached two cases. Clearly what the Respondent has filed on this appeal, even if taken from the court record, is not confined to the motion material that was before Prothonotary Hargrave when he made the Order.

[60] In the Order, Prothonotary Hargrave allowed the Respondent to cross-examine on any reply affidavit to be filed by the Applicants within 20 days, and allowed the Respondent to file its own reply affidavit, which constitutes due consideration to the Respondent.

[61] Hence, the Applicants say that the Order allowing the Applicants to file a reply affidavit ought not to be overturned (Visx Inc., supra, at para. 17).

[62] The Respondent's Motion Record and Written Representations contain arguments against the filing of a reply affidavit that were not contained in the submissions it placed before Prothonotary Hargrave when he considered the motion for leave to file a reply affidavit. Hence, the new legal arguments ought not to be considered in appealing the order in this motion (Dawe, supra, at para. 17).

Filing Reply Affidavits

[63] The Applicants sought leave to file a reply affidavit because the Applicants' affidavit of November 2001 was not in the court record and not available to include in the Applicants' Record. This information was provided by the Vancouver Court Registry to the Applicants' counsel prior to the filing of the motion seeking leave to file a reply affidavit, and prior to filing the motion seeking to file a supplementary record under the affidavit of Jordana McIvor-Grismer.

[64] In response to the Respondent's Motion Record containing the said November 2001 affidavit of Veronica Dewar, an inquiry to the Vancouver Federal Registry confirmed that, indeed, it had been commissioned and filed, but it was not in file T-1523-01. It was, rather, in file T-1520-01, a case of the same applicant that was thrown out as moot.

[65] When the Respondent brought a motion to declare four cases of the Applicant to be moot (Files T-1520-01, T-1521-01, T-1522-01 and T-1523-01) it insisted that the style of cause contain all four cases for consideration. There was an order to have materials placed in all four files as each was a separate case. However, the Registry did not file the affidavit of Veronica Dewar of November 2001 in T-1523-01, the only case not declared moot.

[66] Material in Veronica Dewar's affidavit of November 2001 is crucial to the central issue of the case (Ling Chi Medicine Co. (H.K.) Ltd. v. Persaud, [1996] F.C.J. No. 1138, per Dube J., at para. 2 (T.D.)).

[67] Instead of bringing a fourth motion to have the affidavit of November 2001 moved from file T-1520-01 to file T-1523-01, a minimum of that evidence was put into the reply affidavit because it is crucial to the central issue of the case.

[68] The Applicants say that this Court has allowed the filing of a supplementary affidavit dealing with material that was available at an earlier date in order to correct a mistake (Larson Radok v Canada (Minister of National Revenue - M.N.R.), [2000] F.C.J. No. 587, per Hargrave, Proth. at para. 7 (T.D.)).

[69] The only other material filed in the reply affidavit with five new exhibits now objected to by the Respondent consisted of material found in the records of the Applicant crucial to the case. The Executive Director of PIWA, responsible for assisting in this case, left her employment and now works for the AHI. The materials found at PIWA's headquarters after the Executive Director's departure were never made available to counsel for the Applicants until the filing of the motion seeking leave to file a reply affidavit.

[70] The Applicants did file a draft reply affidavit with the motion seeking leave of the Court to file the same. The Court may grant leave to file a reply affidavit without first reviewing the content of that affidavit. Reed J. indicated in Walker, supra, at para. 4 as follows:

I am not persuaded that it is necessary for the Court to first see the affidavit before leave is granted in order to be able to determine that leave should be granted in accordance with the principles set out in Eli Lilly.

[71] Hence, the Applicants say that where a prothonotary has granted leave to file a reply affidavit the other party should be given the opportunity to cross-examine on it and extend the time limit for doing so accordingly. In this case, Prothonotary Hargrave did provide for both an opportunity to cross-examine on the reply affidavit and extended the time for doing so.

[72] The Applicants say that the appropriate time to object to the contents of a reply affidavit (after being given leave to cross-examine, extra time to do so, and the opportunity to file its own reply affidavit) is at the hearing where the judge can either accept or ignore the material (Walker,supra, at para. 5).

[73] The most important consideration for a court in deciding on whether a reply affidavit can be filed is that justice be done. The Court can grant leave to file a supplementary affidavit provided the party concerned seeks leave to do so (as the Applicants did) and satisfies the three tests stated in Cote, supra, at page 3:

1) was the information in the affidavit available before the cross-examination?

2) are the facts established by the supplementary affidavit relevant to the case?

3) might the filing of the supplementary affidavit cause serious prejudice to the other parties?

Cote v. Canada, [1996] F.C.J. No. 1670, per Dube J., at para. 9.

[74] Prothonotary Hargrave did not err in law by failing to consider whether the reply evidence in the case at bar could have been made available earlier because he was familiar with the entire case, having been the case manager from the beginning in 2001. He did consider whether the filing of the reply affidavit by the Applicant was in the interests of justice. (Canada Post Corp. v. Canada (Minister of Public Works and Government Services), [2002] F.C.J. No. 1822, per Noël J. at para. 19 (T.D.)).

[75] The Applicants say that Prothonotary Hargrave did consider the factors in Eli Lilly & Co. v. Apotex Inc. (1997), 76, C.P.R. (3d) 15, (at pages 20-21) [order amended (1997), 77 C.P.R (3d) 154 (T.D.)] and applied the proper test in determining whether to grant leave to the Applicants to file a reply affidavit. The Eli Lilly test is as follows:

a. would it serve the interest of justice?

b. would it assist the Court in making its final determination?; and

c. would it cause substantial or serious prejudice to the respondents [other parties]?

[76] Prothonotary Hargrave then exercised his discretion to allow the filing of a reply affidavit of the Applicants taking into consideration the proper test based on materials submitted by the Respondent and Applicants and held it was in the interest of justice that leave be granted for filing of the same.

[77] In Abbott Laboratories Ltd v. Apotex Inc., [1997] F.C.J. No. 1659, Rouleau J. noted as follows in para. 11:

This court has the discretion to allow reply affidavits to be filed when it will not cause unreasonable delay, serve the interest of justice and assist the court in making a final determination. I am also persuaded that it would cause substantial prejudice to the applicant should I deny this motion.

Restricting The Subject Matter Of The Reply Affidavit

[78] The Respondent is asking the Court to alter the Order of Prothonotary Hargrave and to substitute its own order. Given that the Respondent was granted leave to cross-examine on the Applicants' reply affidavit, was granted an extension of time of 20 days to complete the cross-examination, and was given leave to file its own reply affidavit, the Applicants say that Prothonotary Hargrave exercised his discretion in a manner that was fair to both parties. Unless there is a legal error proven by the Respondent, the Court cannot exercise its discretion de novo (Hayden Manufacturing Co., supra, at para. 8).

[79] The Respondent argues that Prothonotary Hargrave erred by not confining the matters to be put into the reply affidavit of the Applicant, but the Respondent does not refer to this as an error of law.

[80] The Applicant submits that para. 35 of the Respondent's written representations should be struck because it was not part of the motion that led to the Order.

[81] The Applicants also say that any materials, including those appended because of para. 35 of the Respondent's written representations, should be struck because they are extraneous to the Order under appeal.

[82] The Applicants take the position that if opposing parties are allowed to dictate the contents of reply affidavits there is a possibility that justice will be denied because damaging evidence will not get before the Court.

[83] The Applicants did submit a draft reply affidavit and Prothonotary Hargrave did not restrict its contents when granting leave to file the same. He considered the Eli Lilly test and granted leave so that justice would be done.

Evidence Filed Earlier

[84] The Respondent argues that Prothonotary Hargrave did not consider whether the reply evidence could have been made available earlier. However, there is no reference to this issue in the Order. Hence, the Applicants say that this Court cannot determine what was in the mind of Prothonotary Hargrave when he made the Order. As case manager, he was familiar with the entire file. He found that it was in the interests of justice to grant leave to the Applicant to file the reply affidavit.

[85] It is true that some of the evidence in the reply affidavit was available in the November 2001 affidavit of Veronica Dewar, and that affidavit was misfiled and remained misfiled in File T-1520-01. The reply affidavit corrects that error made by the Registry.

Reply Evidence Could Not Have Been Advanced Earlier

[86] The Applicants say they could not have anticipated what would be filed by the Respondent. The attack on the reply affidavit by the Respondent is clearly aimed at ensuring that any damaging evidence of the Respondent's behaviour and policy is not part of the record for consideration by the judge who hears this matter.

[87] The Court has held in Visx Inc., supra, at para. 9 that "the merits of the contentions should only be dealt with by counsel to the extent required in order to demonstrate that the discretion of the Motions Judge was not exercised judicially." The Respondent is asking the Court to change or dismiss the Prothonotary's Order concerning the filing of a reply affidavit by the Applicant and for this reason has filed a large volume of extraneous material and documents it did not submit in its motion before the Prothonotary.

Costs

[88] The Applicants say that this Motion could have been dealt with by written representations under Rule 369 instead of at an oral hearing. Counsel are located in Ottawa and Merritt, B.C. and the hearing was held in Vancouver, B.C. The Applicants believe they should be granted costs on this basis.

ANALYSIS

[89] I have considered the various issues and arguments raised by both sides in this dispute. In the end, however, I believe the Court should only concern itself with the matters that are material to the appeal of the Order.

[90] Both sides are in agreement that when considering an appeal from the decision of a prothonotary the court should apply the jurisprudence found in Canada v. Aqua-Gem Investment Ltd., [1993] 2 F.C. 425 (C.A.) as supplemented by the more recent Federal Court of Appeal decision in Merck & Co. v. Apotex Inc., [2003] F.C.J. No. 1925.

[91] Both sides are also in agreement that, for purposes of this motion, we are not dealing with a question or issue that is "vital to the final issue of the case." Thus the Court is being asked to consider whether the Order of Prothonotary Hargrave of October 31, 2003, allowing the Applicants to serve and file a reply affidavit of Ms. Veronica Dewar is clearly wrong in the sense of being based upon a wrong principle or upon a misapprehension of the facts.

[92] The reply affidavit in issue was brought forward for a specific purpose: to rebut the evidence of the Respondent given in cross-examination concerning the role of Ms. Roda Grey in the development, formation and implementation of the National Aboriginal Health Organization (formerly Aboriginal Health Institute).

[93] The Respondent advances various grounds as to why Prothonotary Hargrave was clearly wrong to allow Mrs. Dewar's reply affidavit. The Respondent says that Prothonotary Hargrave failed to consider whether the reply evidence could have been made available earlier and he also misapprehended the facts because the Order can be read in such a way as to permit reply evidence on more than the relationship between Pauktuutit Inuit Women's Association ("PIWA") and the Inuit Tapirisat of Canada ("ITC").

[94] As the Respondent points out, in exercising his discretion to permit a supplementary affidavit under the Federal Court Rules, 1998, a supplementary affidavit is not a substitute for putting information to a deponent on cross-examination. A party must put its best case forward at the first opportunity.

[95] Legal authority for this position can be found in the words of Prothonotary Hargrave himself, who has been quoted and approved by the Federal Court of Appeal in Mazhero v. Canada (Industrial Relations Board) 2002 FCA 295 at para. 5:

5. Applications for judicial review are summary proceedings that should be determined without undue delay. Consequently, the discretion of the Court to permit the filing of additional material should be exercised with great circumspection. Thus, in Deigan v. Canada (Industry),[1999] F.C.J. No. 304 (Proth.), aff'd. [1999] F.C.J. No. 645 (T.D.), Prothonotary Hargrave said (at para. 3):

[96] My review of the materials before Prothonotary Hargrave in the case at bar suggests that there was nothing before him that dealt with why the material in question could not have been made available at an earlier date and he did not deal with this issue in his Order.

[97] Also, as Prothonotary Lafrenière pointed out in Couchiching First Nation v. Canada (Minister of Indian Affairs and Northern Development), [1999] F.C.J. No. 1795 at para. 12, it is not appropriate in a supplementary affidavit to raise facts that could have been filed as part of the Applicants original evidence. In the case at bar, the Applicants could not have been taken by surprise by the facts and issues raised on the relationship issue.

[98] Prothonotary Hargrave does not address this important matter in his Decision and, on this occasion, he appears not to have followed his own checklist. In my view, he was clearly wrong not to do so.

[99] This issue is determinative of the appeal before me. The supplementary affidavit provides no explanation or evidence as to why the information could not have been provided or dealt with as part of the Applicant's original evidence. To allow it to be introduced following cross-examination would be a significant prejudice to the Respondent. As Lemieux J. pointed out in Salton Appliances (1985) Corp. v. Salton Inc. (2000), 4 C.P.R. (4^th) 491 (F.C.T.D.) at para. 18, a "further affidavit is not designed to repair answers which cross-examining counsel wishes he did not get. Moreover, normally, parties are obliged to disclose all available information before cross-examination so as to avoid splitting the evidence." There is no convincing evidence in the case at bar that the materials and facts were not available to the Applicants earlier. The Applicants are merely trying to add to the record following a cross-examination in which they did not get the answers they wanted. The relationship issue, which the Applicants say is crucial to their case, was crucial when the application was filed and they had all the facts at that time to place before the court.

[100] If I should be wrong on this issue, I am not persuaded by the Respondent that Prothonotary Hargrave misapprehended the facts before him. In the Decision he characterizes the "intended affidavit" as rebutting the Respondent's material on the role and position of Ms. Roda Grey. The Respondent says the intended affidavit also deals with funding issues. But my reading of the document suggests to me that funding and Ms. Grey's role are inextricably linked. So I am not convinced that Prothonotary Hargrave was clearly wrong in the facts he took into account.

[101] I do agree with the Respondent, however, that the affidavit submitted by the Applicants goes well beyond the affidavit that was authorized by Prothonotary Hargrave. If I had decided against the Respondent on the "clearly wrong" aspect of this motion, the submitted affidavit would need to be struck to the extent it does not comply with the "intended affidavit" that was placed before Prothonotary Hargrave. I cannot agree with the Applicants' assertion that Prothonotary Hargrave's Order was open-ended and that the Applicants were authorized to file an affidavit that contained additional information. The Order was clearly based on the "intended affidavit" contained in the Motion Record and the Order by way of endorsement was granted on that basis.

ORDER

THIS COURT ORDERS that

1. The order and endorsement of Prothonotary Hargrave of October 31, 2003, is set aside and the Applicants' motion dated September 23, 2003, requesting leave to file a reply affidavit is denied;

2. The Respondent shall have the costs of this motion.

"James Russell"

____________________________________

JFC

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET:T-1523-01

STYLE OF CAUSE:PAUKTUUTIT, INUIT WOMEN'S ASSOCIATION

Applicants

- and -

HER MAJESTY THE QUEEN

Respondent

PLACE OF HEARING:Vancouver, British Columbia

DATE OF HEARING:April 15, 2004

REASONS FOR ORDER

AND ORDER BY:RUSSELL J.

DATED:JUNE 3, 2004

APPEARANCES BY:Ms. Teressa Nahanee

For the Applicants

Mr. John S. Tyhurst

For the Respondent

SOLICITORS OF RECORD:Ms. Teressa Nahanee

Barrister & Solicitor

P.O. Box 213

1779 Main Street

Merritt, British Columbia

V1K 1B8

For the Applicants

Department of Justice

234 Wellington Street

East Tower, Room 1251

Ottawa, ON

K1A 0H8

For the Respondent

FEDERAL COURT

Date: 20040603

Docket: T-1523-01

BETWEEN:

PAUKTUUTIT, INUIT WOMEN'S ASSOCIATION

and

VERONICA DEWAR

Applicants

- and -

HER MAJESTY THE QUEEN

Respondent

REASONS FOR ORDER

AND ORDER

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Pauktuutit, Inuit Women's Association v. Canada, 2004 FC 804

Citations2004 FC 804

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2004 FC 804