Date: 20090414
Docket: T-1538-08
Citation: 2009 FC 368
Ottawa, Ontario, April 14, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
BETTY HORSEMAN
Applicant
and
HORSE LAKE FIRST NATION,
AS REPRESENTED BY ITS Chief
and Council,
Chief Dion Horseman,
Walter Horseman,
Michael
Horseman, Eugene Horseman,
and Dean
Horseman
Respondents
REASONS FOR ORDER AND ORDER
[1]
In the
present Application, Ms. Horseman seeks access to justice to gain a declaration
with respect to her status as a member of the Horse Lake First Nation (First
Nation and HLFN). Ms. Horseman’s request is for a declaration that “the
Applicant is, and has been since July 7, 1972, a member of the Band”. The
First Nation sought to bar access to Ms. Horseman by bringing a motion to strike
her Notice of Application. In a decision dated January 26, 2009, Prothonotary
Lafrenière dismissed the motion based on an application of the principle set by
the Federal Court of Appeal in David Bull Laboratories (Canada) inc. v.
Pharmacia Inc. et al., [1995] 1 F.C. 588 (C.A) that a motion to strike an
application for judicial review will only be entertained in exceptional
circumstances; a moving party must establish that the application is “so
clearly bereft of any possibility of success” that it should be struck out
(Decision, pp. 4 - 5). In reaching this finding, Prothonotary Lafrenière addressed
the following key access issues: whether a First Nation decision has been made
against Ms. Horseman’s membership interests; whether Ms. Horseman has produced
evidence respecting any delay in bringing the present Application; and whether
this Court has jurisdiction over the subject matter of the declaration
requested.
[2]
The
present Motion is an appeal of Prothonotary Lafrenière’s order. I agree that paras.
20 to 23 of the argument presented by Counsel for Ms. Horseman correctly sets
out the current standard of review, and, in particular, under what
circumstances should a Judge hearing an appeal consider issues de novo:
The standard of review applicable to an appeal
from a Prothonotary, articulated in Canada v. Aqua-Gem Investments Ltd. ([1993] 2 F.C. 425 (Fed. C.A.)) and affirmed in Z.I. Pompey Industrie
v. ECU Line N.V.
([2003] 1
S.C.R. 45) was
reformulated by the Federal Court of Appeal in Merck & Co. v. Apotex
Inc. (2003 FCA 488,
para. 19, leave to appeal refused, 331
N.R. 394 (S.C.C.)) as follows:
To avoid the confusion which we
have seen from time to time arising from the wording used by MacGuigan J.A., I
think it is appropriate to slightly reformulate the test for the standard of
review. I will use the occasion to reverse the sequence of the propositions as
originally set out, for the practical reason that a judge should logically
determine first whether the questions are vital to the final issue: it is only
when they are not that the judge effectively needs to engage in the process of
determining whether the orders are clearly wrong. The test would now read:
"Discretionary orders of prothonotaries ought not be disturbed on appeal
to a judge unless: (a) the questions raised in the motion are vital to the
final issue 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."
[Emphasis in the original)
A Prothonotary’s decision to not strike
an application is not vital to any final issue in the case. In Peter G.
White Management Ltd. V. Canada (Peter G. White Management Ltd. v. Canada (2007), 315 F.T.R. 284) the Court stated:
. . . the mere
fact that what was sought before the prothonotary might have been determinative
of the final issues in the case does not result in the judge hearing the matter
entirely de novo. A reading of the decisions, and particularly the key
decision of the Court of Appeal in the case of Canada v. Aqua-Gem Investments
Ltd., makes it quite clear that it was not what was sought but what was ordered
by the prothonotary which must be determinative of the final issues in order
for the judge to be required to undertake de novo review.
. . . . .
Put briefly,
barring extraordinary circumstances, a decision of a prothonotary not to strike
out a statement of claim is not determinative of any final issue in the case.
In determining the standard of review the focus is on the Order as it was
pronounced, not on what it might have been.
The Court in Chrysler Canada Inc. v. Canada et al. (2008 FC 1049) followed the
same logic in the specific context of an application, and noted that:
While there
may be merit in seeking an early termination of an action upon a motion to
strike there is less reason to do so, except in the clearest of cases, where
the proceedings are brought by way of an application. Much of the argument
expended on a motion to strike is simply duplicative of arguments that can be
raised at the hearing of the application itself. To expend the Court’s
resources on a motion to strike, particularly on an appeal from a decision of a
Prothonotary not to strike, means that the Court is obliged in many cases, to hear
the matter twice, on the motion by way of appeal, and on the merits of the
application itself. Only where, to use the words of the Court of Appeal in
Merck, the Prothonotary can be demonstrated to have been “clearly wrong” should
an appeal from a refusal to strike be considered.
The Court has even more recently affirmed
that the formulation in Peter G. White is correct (Apotex Inc. v. Astrazeneca Canada Inc., 2009 FC 120).
[3]
In the
present Motion, Counsel for the First Nation states that, by refusing to strike
out the Notice of Application, Prothonotary Lafrenière erred in law or
exercised discretion based upon an error of principle on the following grounds:
a.
The
learned Prothonotary erred in law or exercised discretion based upon an error
of principle in that:
i.
The HLFN
Chief and Council is a federal board, commission or tribunal delegated by
Parliament to make determinations as to any person’s membership status in the
HLFN, subject thereafter to right of appeal or judicial review;
ii.
The only
relief sought by the Applicant is “[a]declaration that the Applicant is, and
has been since July 7, 1972, a member of the band”;
iii.
This
application for judicial review is barred because the Applicant has failed to
avail herself of adequate alternative legal remedies which so clearly apply as
to render the judicial review bereft of any possibility of success;
iv.
This
proceeding is so clearly an impermissible collateral attack on the jurisdiction
of the HLFN Chief and Council as a federal board, commission or tribunal that
the judicial review is bereft of any chance of success;
v.
The
declaration of membership in the HLFN claimed by the Applicant is outside the
jurisdiction of this Court because it relates only to facts. In the
alternative, the question of membership in the HLFN is a question of mixed fact
and law which is also outside the jurisdiction of this Court. The Applicant
does not seek a declaration of an extricable question of law in respect of band
membership;
vi.
The
Court’s lack of jurisdiction over the sole relief sought by the Applicant
constitutes a “exceptional circumstance” such that this is a proper case to
contest the Notice of Application on a preliminary motion to strike;
vii.
The
Applicant has not met the cumulative substantive conditions for a declaratory
order to be made. The application does not disclose a real question; and
viii.
The
Court’s jurisdiction to “fashion other remedies to assist the Applicant in
having her membership status properly adjudicated” does not exist where the
Applicant has not claimed “such other relief” as may be within the Court’s
jurisdiction. The Applicant’s sole, single claim for relief is a declaration of
membership status, and the Applicant has not sought to amend her Notice of
Application.
b.
While the
Applicant did not seek the Court’s leave to amend her Notice of Application, no
leave to amend the Notice of Application should be granted because it is plain
and obvious that the Applicant is out of time to commence judicial review
proceedings in respect of the HLFN’s decision which the Respondents say was
made and communicated to the Applicant in the fall of 1999 that she was not a
member.
c.
The relief
sought on this motion is appropriate to be decided by a Motions Judge early in
this proceeding and prior to the merits of the judicial review before the
Applications Judge.
(Motion,
pp. 2-4)
These grounds are supported by a 33 - page written argument.
The standard of review is the first issue addressed in the argument, and on
this issue Aqua-Gem is stated to be the prime authority in support of
the proposition that the grounds cited in the Motion can “dispose of this
proceeding, and, therefore must be considered vital to the final resolution of
the case” (Appellant’s Argument, para. 14). This argument fails to apply the
current standard of review.
[4]
I
find that, since Prothonotary
Lafrenière denied the motion to strike, the arguments advanced by Counsel for
the First Nation are not vital to the final resolution of the Application. In
my opinion, they are arguments which are properly to be addressed by the
Justice who hears and determines the Application.
[5]
With
respect to the second leg of the standard of review set in Merck & Co.
v. Apotex Inc., I find that Prothonotary Lafrenière proceeded on the basis
of a correct principle and under no misapprehension of the facts. As a result,
I find that Prothonotary Lafrenière’s decision is not made in error.
ORDER
Accordingly, the present Motion
is dismissed.
I award costs of the Motion to
Ms. Horseman payable forthwith.
“Douglas
R. Campbell”
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