Docket: T-1352-10
Citation: 2011 FC 940
Ottawa, Ontario, July 27, 2011
PRESENT: The Honourable Mr. Justice
Mandamin
BETWEEN:
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PHILLIP EIDSVIK
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Applicant
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and
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MINISTER OF
FISHERIES AND OCEANS
and ATTORNEY GENERAL
OF CANADA
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Respondents
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REASONS FOR
ORDER AND ORDER
[1]
The Respondents, the Minister of Fisheries and Oceans and
the Attorney General of Canada, have filed a motion for an order to strike out
the application by Phillip Eidsvik, the Applicant, for judicial review of the
continuing course of conduct by the Minister of Fisheries and Oceans to issue
salmon fishing licences to First Nations communities under the Economic
Opportunities Fisheries program of the Aboriginal Fisheries Strategy which
permit them to sell the fish they catch.
[2]
In the alternative, the Respondents apply for an order for
an extension of time to file affidavits on the merits of the judicial review
application and an order that the proceeding continue as a specially managed
proceeding.
[3]
For reasons that follow, I am not satisfied that the
application for judicial review, assuming the facts alleged, clearly falls
short of the minimal threshold of being so bereft of any possibility of success
that it should be struck out because the case is without merit. Rather,
notwithstanding the submission of the Respondent that it is re-litigation of an
issue already decided, I conclude the matter should be left until the record
and issues are finalized.
[4]
Further, I am satisfied that this matter should continue as
a specially managed proceeding given that there is no agreement as to the
record for the judicial review and the issues are not clearly set out.
Background
[5]
The self-represented Applicant is a commercial gillnet
fisherman and the Executive Director of the B.C. Fisheries Survival Coalition.
He has participated in protest fisheries in opposition to the Aboriginal
Fisheries Strategy’s Economic Opportunities Fisheries and its predecessor the
Pilot Sales Program operated by the Department of Fisheries and Oceans. He has
represented himself and acted as the agent for other commercial fishermen who
were charged as a result of the protest fisheries.
[6]
The B.C. Fisheries Survival Coalition has been involved
through its organization of the protest fisheries and funding of legal
challenges and appeals.
[7]
The Department of Fisheries and Oceans introduced the
Aboriginal Fisheries Strategy [AFS] in June 1992, following the Supreme Court
of Canada’s decision in R v Sparrow, [1990] 1 S.C.R. 1075 which recognized
an aboriginal right to fish. One component of the AFS was the Pilot Sales
Program [PSP] whereby certain First Nations could sell fish caught under the
licence issued to them under the Aboriginal Communal Fishing Licences
Regulations, SOR/93-332 [ACFL Regulations]. The PSP has been renamed
the Economic Opportunities Fisheries [EOF]. The goals and purpose of the AFS
remain unchanged and the goal of the EOF, as with the PSP, remains to provide
economic opportunities to Aboriginal groups in order to support their progress
towards self-sufficiency.
[8]
The Applicant was directly involved in two court challenges
which culminated in R v Huovinen, 2000 BCCA 427 [Huovinen] and R
v Armstrong, 2010 BCSC 1041 [Armstrong] and indirectly, through the
B.C. Fisheries Survival Coalition in legal challenges and appeals culminating
in the Supreme Court of Canada decision in R v Kapp, 2008 SCC 41 [Kapp].
[9]
The Applicant filed his application for judicial review on
August 20, 2010, challenging “the continuing course of conduct of the Minister [Minister
of Fisheries and Oceans] to racially segregate the workplace in the Lower
Fraser River in British Columbia as exemplified by the issuance of a commercial
communal fishing licence was issued to Musqueam First Nation on April 9,
2010.” This license issued by the Minister of Fisheries and Oceans to the
Musqueam First Nation was issued August 6, 2010 under the authority of the Fisheries
Act, R.S.C. 1985, c. F-14 [the Fisheries Act ] and section 4 of the ACFL
Regulations, authorized fishing from 9:00 am to 9:00 pm on August 9, 2010.
[10]
In his correspondence to the Respondents, the Applicant has
described his challenge in broader terms than the single communal licence
issued to the Musqueam First Nation in 2010. His challenge is directed at the EOF
under which a number of First Nations may sell fish caught under the licence
issued to them under the ACFL Regulations.
[11]
The Respondents seek an order, pursuant to Rule 4 and Rule
221(f) of the Federal Courts Rules, SOR/98-106 [the Federal Courts
Rules] and the inherent jurisdiction of the Court, that the notice of application
be struck on the ground that the application is an abuse of process by re‑litigation.
The Respondents submit that the issues raised by the Applicant have been conclusively
adjudicated by the Supreme Court of Canada and the British Columbia Court of
Appeal. The Respondents submit that the Applicant was involved directly or
indirectly in the above mentioned cases and is using the Federal Court as a
forum in which to raise the same arguments already decided by the British
Columbia Court of Appeal and the Supreme Court of Canada.
Legislation
[12]
The Federal Courts Rules, SOR/98-106 provide:
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4. On motion, the
Court may provide for any procedural matter not provided for in these Rules
or in an Act of Parliament by analogy to these Rules or by reference to the
practice of the superior court of the province to which the subject-matter of
the proceeding most closely relates.
8. (1) On motion,
the Court may extend or abridge a period provided by these Rules or fixed by
an order.
221. (1) On
motion, the Court may, at any time, order that a pleading, or anything
contained therein, be struck out, with or without leave to amend, on
the ground that it
(a) discloses no
reasonable cause of action or defence, as the case may be,
(b) is immaterial or
redundant,
(c) is scandalous,
frivolous or vexatious,
(d) may prejudice or
delay the fair trial of the action,
(e) constitutes a
departure from a previous pleading, or
(f) is otherwise
an abuse of the process of the Court,
and may order the
action be dismissed or judgment entered accordingly.
384. The Court may
at any time order that a proceeding continue as a specially managed
proceeding.
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4. En cas de silence
des présentes règles ou des lois fédérales, la Cour peut, sur requête,
déterminer la procédure applicable par analogie avec les présentes règles ou
par renvoi à la pratique de la cour supérieure de la province qui est la plus
pertinente en l’espèce.
8. (1) La Cour peut,
sur requête, proroger ou abréger tout délai prévu par les présentes règles ou
fixé par ordonnance.
221. (1) À tout
moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie
d’un acte de procédure, avec ou sans autorisation de le modifier, au motif,
selon le cas :
a) qu’il ne révèle
aucune cause d’action ou de défense valable;
b) qu’il n’est pas
pertinent ou qu’il est redondant;
c) qu’il est
scandaleux, frivole ou vexatoire;
d) qu’il risque de
nuire à l’instruction équitable de l’action ou de la retarder;
e) qu’il diverge
d’un acte de procédure antérieur;
f) qu’il constitue
autrement un abus de procédure.
Elle peut aussi
ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en
conséquence.
384. La Cour peut, à
tout moment, ordonner que l’instance se poursuive à titre d’instance à
gestion spéciale.
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(emphasis
added)
Issues
[13]
The Respondent submits that the application is an abuse of
process by relitigation. It submits the Applicant was involved in the previous
legal challenges either directly or indirectly through the B.C. Fisheries
Survival Coalition. The Respondent states the issues raised by this application
have been conclusively determined in the earlier proceedings, notably, the
decisions by the British Columbia Court of Appeal in 2000 in Huovinen,
by the Supreme Court of Canada in 2008 in Kapp and most recently by the
British Columbia Supreme Court in 2010 in Armstrong.
[14]
The Respondent’s motion to strike poses two questions:
i.
What is the proper legal test for a motion to strike a
notice of application for judicial review?
ii.
Should the notice of application be struck on the grounds
that it is an abuse of process by re-litigation?
Analysis
[15]
The Supreme Court of Canada addressed the issue of striking
a statement of claim in Canada (Attorney General) v Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735 [Inuit Tapirisat]:
As I have said, all
the facts pleaded in the statement of claim must be deemed to have been proven.
On a motion such as this a court should, of course, dismiss the action or
strike out any claim made by the plaintiff only in plain and obvious cases and
where the court is satisfied that "the case is beyond doubt": Ross
v. Scottish Union and National Insurance Co. [(1920), 47 O.L.R. 308 (App.
Div.).]
(emphasis added)
[16]
The Supreme Court relied on Inuit Tapirisat when it
revisited this question in Hunt v Carey Canada Inc, [1990] 2 S.C.R. 959 [Hunt]
at paras 33 and 34 which remains the authority on striking out a statement of
claim. The Supreme Court, after examining the question of under what
circumstances a statement of claim (or portions of it) may be struck out, looked
at the history in England and
various provisions in the provincial legislation, and concluded:
Thus, the test in
Canada governing the application of provisions like Rule
19(24)(a) of the British Columbia Rules of Court is the same as
the one that governs an application under R.S.C. O. 18, r. 19: assuming that
the facts as stated in the statement of claim can be proved, is it "plain
and obvious" that the plaintiff's statement of claim discloses no
reasonable cause of action? As in England, if there is a chance
that the plaintiff might succeed, then the plaintiff should not be "driven
from the judgment seat". Neither the length and complexity of the issues,
the novelty of the cause of action, nor the potential for the defendant to
present a strong defence should prevent the plaintiff from proceeding with his
or her case. Only if the action is certain to fail because it contains a
radical defect ranking with the others listed in Rule 19(24) of the British
Columbia Rules of Court should the relevant portions of a plaintiff's
statement of claim be struck out under Rule 19(24)(a).
The question therefore
to which we must now turn in this appeal is whether it is "plain and
obvious" that the plaintiff's claims in the tort of conspiracy disclose no
reasonable cause of action or whether the plaintiff has presented a case that
is "fit to be tried", even although it may call for a complex or
novel application of the tort of conspiracy.
(emphasis added)
[17]
The Supreme Court has thus established the “plain and
obvious” test for striking out claims or dismissing actions. However, that test
was applied in the context of a request to strike a statement of claim on the
basis of no reasonable cause of action. The present case is different in that
the party has requested that the notice of application be struck on the grounds
that it is an abuse of process by re-litigation.
[18]
The Federal Court of Appeal has employed different wording
for the legal test when addressing the issue of striking out a notice of motion
for an application for judicial review, as opposed to striking a statement of
claim in an action. It discussed these differences in David Bull
Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1 F.C. 588 (CA) [David
Bull Laboratories] which involved an appeal from the Federal Court decision
to dismiss the application to strike out the originating notice of motion for
prohibition. The Federal Court of Appeal noted that an application for
prohibition commenced by a notice of motion is not an “action” and the notice
of motion was not a “pleading”. The Court of Appeal first described the process
for striking out a pleading of an action at para 10:
An action involves,
once the pleadings are filed, discovery of documents, evidence. It is
obviously important that parties not be put to the delay and expense involved
in taking a matter to trial if it is "plain and obvious" (the test
for striking out pleadings) that the pleading in question cannot amount to a
cause of action or a defence to a cause of action. Even though it is important
both to the parties and the Court that futile claims or defences not be carried
forward to trial, it is still the rare case where a judge is prepared to strike
out a pleading under Rule 419. Further, the process of striking out is much
more feasible in the case of actions because there are numerous rules which
require precise pleadings as to the nature of the claim or the defence and the
facts upon which it is based.
(emphasis added)
[19]
The Court then compared this to notices of motion involving
judicial reviews:
There are no
comparable rules with respect to notices of motion. Both Rule 319(1) [as am. by
SOR/88-221, s. 4], the general provision with respect to applications to the
Court, and Rule 1602(2) [as enacted by SOR/92-43, s. 19], the relevant rule
in the present case which involves an application for judicial review,
merely require that the notice of motion identify "the precise
relief" being sought, and "the grounds intended to be argued." The
lack of requirements for precise allegations of fact in notices of motion would
make it far more risky for a court to strike such documents. Further, the
disposition of an application commenced by originating notice of motion does
not involve discovery and trial, matters which can be avoided in actions by a
decision to strike. In fact, the disposition of an originating notice
proceeds in much the same way that an application to strike the notice of
motion would proceed: on the basis of affidavit evidence and argument before a
single judge of the Court.
(emphasis added)
[20]
Having compared the two, the Court concluded at para 10:
Thus, the direct and
proper way to contest an originating notice of motion which the respondent
thinks to be without merit is to appear and argue at the hearing of the motion
itself. This case well illustrates the waste of resources and time
in adding on to what is supposed to be a summary judicial review proceeding the
process of an interlocutory motion to strike.
(emphasis added)
[21]
The Court qualified this with a statement that has now been
relied upon as the test for notices of motion at para 15:
This is not to say
that there is no jurisdiction in this Court either inherent or
through Rule 5 by analogy to other rules, to dismiss in summary manner a
notice of motion which is so clearly improper as to be bereft of any
possibility of success. Such cases must be very exceptional and cannot
include cases such as the present where there is simply a debatable issue as to
the adequacy of the allegations in the notice of motion.
(emphasis
added)
[22]
This approach has been taken in subsequent motions for
striking out applications for judicial review. In Association of Canadian
Distillers v Canada
(Minister of Health), [1998] 148 FTR 215 (TD) [Association
of Canadian Distillers], the Minister sought an order striking out the
application for judicial review of the Minister’s decision, submitting that the
application stood no chance of success. Justice Nadon offered the following
observations of the David Bull Laboratories case at paras 5 to 7 while
finding that the situation which was before the Court of Appeal did not meet
the test:
Strayer J.A. opines
that an originating notice of motion shall only be dismissed when that
originating notice of motion "is so clearly improper as to be bereft of
any possibility of success". These are the words on which the Minister
relies in making his submission that the Association's judicial review
application should be struck.
I have not been
persuaded that the Association's originating notice of motion should be struck.
In David Bull, Strayer J.A. stated that, only in exceptional cases,
would originating notices of motion be struck. That comment can only be
understood by a careful reading of Strayer J.A.'s comments where he explains
why the Court should be reluctant to entertain a motion to strike out an
originating notice of motion. I wish to emphasize those words at 596 and 597:
... Thus the direct and proper way to contest an originating notice of motion
which the respondent thinks to be without merit is to appear and argue at the
hearing of the motion itself. This case well illustrates the waste of resources
and time in adding on to what is supposed to be a summary judicial review
proceeding the process of an interlocutory motion to strike.
It is clear from the
above that the Court of Appeal is not encouraging respondents to file motions
to strike originating notices of motion. The Court of Appeal is saying that
the proper way to contest an originating notice of motion, even one where the
respondent believes that the applicant has a very weak case, is to file a
respondent's record and to argue the matter at the hearing on the merits of the
case. To adopt any other procedure would defeat one of the clear purposes
of the judicial review process which is designed to provide the parties with a
summary procedure to deal with the issues raised in the proceedings.
(emphasis added)
[23]
Justice Nadon concluded that the notice of motion was not
“so clearly improper as to be bereft of any possibility of success”, though
noting that this did not mean that he was of the view that it would win or that
there stood a reasonable chance of success. Instead, he found that this was not
one of the exceptional cases anticipated in David Bull Laboratories.
[24]
The Applicant has cited a more recent case, Odynsky v
League for Human Rights of B’nai Brith Canada, 2009 FCA 82 which was an
appeal of a Federal Court decision allowing an appeal from a prothonotary’s
decision to grant the motion to strike the application for judicial review. The
Federal Court judge found that it was not plain and obvious that a judge would
conclude that the party did not have public interest standing on the matter.
The Federal Court of Appeal summarized at paras 5 and 6 again the circumstances
for striking an application for judicial review:
In the case of David
Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.), [1995] 1 F.C.
588, this Court ruled that motions to strike an application for judicial review
should be resorted to only in the most exceptional circumstances, i.e. when the
application is bereft of any possibility of success.
The rationale for this
ruling was that judicial review proceedings are designed to proceed
expeditiously and motions to strike have the potential to unduly and
unnecessarily delay their determination. In other words, as per the Bull case,
justice is better served by allowing the application judge to deal with all of
the issues raised by the judicial review application.
[25]
In Canadian Generic Pharmaceutical Association v Canada
(Minister of Health), 2011 FC 465 Justice de Montigny recognized that one
of the rare exceptions was where the applicant had no standing to bring the
application and therefore had no chance of success. This case involved an
appeal of the prothonotary’s order striking out the application for judicial
review of the Minister’s decision, on the grounds that the applicant did not
have standing. Justice de Montigny found that it was “plain and obvious” that
the applicant was not directly affected by the Minister’s decision and
therefore could not meet the test for public interest standing. He discussed
the test defined in David Bull Laboratories by the Federal Court of
Appeal at paras 33 to 35 of his decision:
In David Bull
Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1
FC 588 (CA), the Federal Court of Appeal determined that applications for
judicial review should not be struck out prior to a hearing on the merits
unless the application is "so clearly improper as to be bereft of any
possibility of success". The FCA added that "such cases must be very
exceptional and cannot include cases ... where there is simply a debatable
issue as to the adequacy of the allegations in the notice of motion".
The reason for such a
stringent test is easy to understand: since a full hearing on the merits of a
judicial review application proceeds in much the same way that a motion to
strike a notice of application would proceed - that is, on the basis of
affidavit evidence and argument before a judge - there is no real advantage or
economic reason to strike out an application in a preliminary manner.
Applications for judicial review are intended to be summary proceedings, and
therefore, it will ordinarily be more efficient for the Court to deal with a
preliminary argument at the hearing on the merits instead of doing so in a
preliminary motion which would only add to the cost and time required: see Addison
& Leyen Ltd v Canada, 2006 FCA 107, at para 5, rev'd on other grounds
2007 SCC 33; Amnesty International v Canadian Forces, 2007 FC 1147, at
paras 22-24.That being said, there are exceptions to that general rule, and one
of them is where the Applicant has no standing to bring the application: see Apotex
Inc v Canada (Governor in Council), 2007 FC 232, at para 33; Canwest
Mediaworks Inc v Canada (Minister of Health), 2007 FC 752, at para 10,
aff'd 2008 FCA 207. …
(emphasis added)
[26]
In Esgenoôpetitj (Burnt Church) First Nation v. Canada (Human Resources and Skills Development),
2010 FC 1195, the matter concerned a complaint of unjust dismissal. The
applicant commenced two applications for judicial review before the Adjudicator
had made a final decision on the substantive merits of the case. The respondent
brought motions to strike both applications which the prothonotary granted.
Afterwards the Adjudicator released his decision on the unjust dismissal
complaint. The applicant sought judicial review of this decision as well as
appeals of the protohonotary’s order to strike. The respondent argued that it
was an abuse of process for the applicant to pursue the appeal of the prothonotary’s
decision because the Adjudicator had already made a determination of the
substantive issues, and that decision was subject of another application for
judicial review. Justice de Montigny dismissed the appeal from the
Prothonotary’s order to strike, agreeing that it was an abuse of process.
Specifically, Justice de Montigny found that the application was fundamentally
flawed because the proper forum for the applicant to challenge the matter was
before the Adjudicator, not before the Federal Court. He also found that it had
been premature.
[27]
Accordingly, instances of where an application for judicial
review has been struck include where the party has no standing, where the
application is so fundamentally flawed to constitute an abuse of process, where
the application is brought in the wrong forum or where the application is
brought prematurely.
[28]
In this motion, the Respondent has applied to strike the
notice of application for judicial review on the basis it is an abuse of
process in that the Applicant is attempting to relitigate issues previously
decided by other courts. The Supreme Court of Canada considered the doctrine
of abuse of process by re-litigation in Toronto (City) v Canadian Union of
Public Employees, Local 79, 2003 SCC 63 at para 51. The Supreme Court
explained the doctrine aims to protect the integrity of the adjudicative
process against three practical problems:
1.
there is no assumption that re-litigation will produce a
more accurate result than in the first proceeding;
2.
if the same result is reached, re-litigation is a waste of
judicial resources, an unnecessary expense for the parties and an additional
hardship for witnesses; and
3.
if a different result is reached, the inconsistency will
undermine the credibility of the entire judicial process, and will diminish its
authority, credibility and its aim of finality.
[29]
The question that therefore must be addressed is whether
the notice of application should be struck out on the basis that it is an abuse
of process by relitigation. In deciding the issue, I must ask myself, as per David
Bull Laboratories, is the notice of motion bereft of any possibility of
success?
Motion
to Strike
[30]
The Respondent submits this application for judicial review
raises the following specific issues, each of which has been conclusively
addressed by appellate courts in previous cases:
a.
The Magna Carta: the Applicant asserts a public
right to fish, the same argument made in Kapp before the British Columbia
Court of Appeal wherein the Appeal Court held that Parliament had limited the
common law right to fish by enacting the Fisheries Act;
b.
Subsection 91(12) of the Constitution Act, 1867: the
Applicant argues that the granting of a commercial fishery to an exclusive
racial group is ultra vires the federal power to manage seacoast and
inland fisheries under s. 91(12), which was the same argument raised and
rejected in Kapp on the basis that the impugned licence does not create
an exclusive fishery and did not infringe a provincial power;
c.
Authority under the Fisheries Act: the Applicant
claims the Minister is acting outside the scope of the Fisheries Act by
exercising licensing authority in a racially discriminatory manner. However, the
courts in Kapp and Huovinen held the actions of the Minister was
authorized by legislation;
d.
Canadian Bill of Rights, S.C. 1960, c. 44, reproduced in R.S.C. 1985, App. III [Bill of Rights]: the Applicant makes the same claim as was made in s. 15 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11 [the Charter];
and
e.
The Charter: the Applicant argues that racial
segregation of a public workplace, the commercial salmon fishery on the Lower Fraser River, is a violation of the equality rights guaranteed by the Charter. This
question was squarely before the Supreme Court of Canada in Kapp which
held the validity of the AFS under s. 15(2) of the Charter.
[31]
The Respondent submits these issues have all been
conclusively determined and need not be reconsidered by the Federal Court in
the context of a judicial review. The Respondent submits the Applicant’s
attempt to bring these issues before this Court amounts to an abuse of process
by re-litigation.
[32]
Given that the genesis of the Applicant’s complaint arises
from the same legal and factual scenario as the protest fisheries and legal
proceedings resulting in the court decisions in Huovinen, Kapp
and now Armstrong, it is tempting to agree with the Respondent’s
submission that this is an abuse of process by raising the same issues in
another forum.
[33]
However, I find there is a further consideration sufficient
to dispose of the motion to strike. The question is whether or not it is
premature to consider the motion to strike at this time.
[34]
In LJP Sales Agency Inc v Canada, 2007 FCA 114 [LJP
Sales Agency Inc], the Federal Court of Appeal had upheld the motions
judge’s decision to strike an application for judicial review on the basis that
the application was bereft of all possibility of success, based on the
interpretation in Sherway Centre Inc. v. Canada, 2003 FCA 26 of
subsection 152(4.3) of the Income Tax Act, R.S.C. 1985 (5th Supp.), c.
1. The Federal Court of Appeal stated from paras 7 to 9:
… We are not persuaded
that the Motions Judge committed any reviewable error in reaching her decision.
First, the Minister's
motion to strike was not inappropriate, even though, as this Court held in David
Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (1994), 58 C.P.R. (3d)
209 (F.C.A.), motions to strike applications for judicial review should only be
brought in exceptional circumstances because of the summary nature of the
proceedings. However, the presence of an authority which is directly
contrary to the position on which an application is based can be such an
exceptional circumstance, when no further development of the factual record
is required.
Second, counsel
submits that Sherway Centre was wrongly decided and that the Judge
hearing the application for judicial review, and this Court on appeal, should
reconsider it. We disagree. In the interests of certainty and judicial economy,
this Court will usually not reconsider its own decisions: Miller v. Canada (Attorney
General), [2002] F.C.J. No. 1375, 2002 FCA 370. In light of this
general principle, and its exceptions, we are not persuaded that there is any
basis for reconsidering Sherway Centre in this case.
(emphasis added)
[35]
On occasion, it has been necessary to reconsider an issue.
Illustrative of this situation is the subsequent decision in Moresby
Explorers Ltd. v Canada (Attorney General), 2007 FCA 273 [Moresby
Explorers Ltd.]. The Federal Court of Appeal noted that the appellants had
previously advised their challenge was based on Charter grounds only and
the Court did not consider it necessary to address their argument that an
impugned policy was void on grounds of administrative discrimination. The
appellants subsequently advised that it had not abandoned its argument with
respect to administrative discrimination necessitating the Court’s reconsideration
of that aspect of the matter.
[36]
Thus two situations arise. First, having regard to LJP
Sales Agency Inc., the question of striking an application for judicial
review may be premature where the record before the Court is not finally
developed. Second, as in Moresby Explorers Ltd., reconsideration may be
necessitated where an issue or argument was not clearly placed before the
Court.
[37]
While legal counsel may be held to have a working knowledge
of what is required to advance the case he or she may be advocating, a
self-represented party, even one who is knowledgeable about the issues, may
not.
[38]
In Edell v Her Majesty the Queen, the Superintendent of
Bankruptcy and Risman & Zysman Inc, 2010 FCA 26 [Edell], the
Federal Court of Appeal restored a statement of claim that had been struck by
the motions judge where a self-represented plaintiff failed to include any
particulars of his harassment compliant. The Federal Court of Appeal so decided
on the basis that the flaw was not fatal and could be cured through a
subsequent amendment of pleadings.
[39]
Here, the Applicant is self-represented and his submissions
are both imprecise and variable both with respect to the facts he intends to
rely on and the legal basis for his many arguments.
[40]
An example of the Applicant’s factual imprecision is the
geographic area he references in the application for judicial review. His notice
of application specifies the commercial salmon fishery on the Lower Fraser River. However in correspondence with the Respondent and in submissions to the
Court, the Applicant broadens the geographical scope of his application to
include both tidal and non-tidal sectors of the entire course of the Fraser River.
[41]
In response to the Respondent’s submission that the s. 15 Charter
issue has been conclusively decided by the Supreme Court of Canada in Kapp,
the Applicant says that he does not intend to argue subsections 15(1) or 15(2)
of the Charter in this Court. However, in his notice of application,
the Applicant states that he is seeking declarations that racial segregation of
the commercial salmon fishery on the Lower Fraser River “violates the equality
rights guaranteed to the Applicant by the Canadian Charter of Rights and
Freedoms”. He goes on to expressly specify:
Section 15(1) of the Charter
of Rights and Freedoms is pled in this application but no submissions will be
made in this honourable court. The Applicant will seek to make submissions on
ss. 15(1) and 15(2) in the event of an appeal to the Supreme Court of Canada.
[42]
The Applicant repeats this unusual submission in oral
argument before the Court.
[43]
It seems to me that the Federal Court of Appeal decision in
Edell leaves room in those proceedings involving a self-represented
party for amendments to finalize issues in originating documents and the completion
of the record to better focus on the issue or issues. Given this view, I
consider the issues and record in this judicial application will need to be
finalized prior to consideration of any motion to strike in part or in whole.
[44]
Accordingly, I come to the conclusion that it is premature
to consider a motion to strike the application for judicial review prior to the
completion of the record and the clear identification of the issues that are to
be placed before the Court. That is not to say that a motion to strike may not
be entertained once the record and issues are fixed.
Specially
Managed Proceeding
[45]
The Respondent seeks, in the alternative, that an extension
of time be granted pursuant to Rule 8 and that the proceeding continue as a
specially managed proceeding pursuant to s. 384 of the Federal Courts Rules.
[46]
I agree with the Respondent that this matter should
continue as a specially managed proceeding. As I have noted above there is no
agreement on the scope of the record and clarification of the issues is
required.
[47]
The Applicant does not agree nor consents to special
management. Nevertheless, it is his imprecise characterization of the facts
upon which he intends to rely and the issues he intends to raise that
necessitate special management.
[48]
Given that the Respondent has had mixed success in its
motion and the Applicant is unrepresented, I make no order for costs.
Conclusion
[49]
The motion to strike the application for judicial review is
dismissed without prejudice to renewing the motion at a time when the record
and issues are sufficiently developed as to enable the court to properly assess
the issue.
[50]
An order will issue designating the application to continue
as a specially managed proceeding.
[51]
The Respondent is granted an extension of time of 30 days
from the date of this order to file its record subject to any further extension
or directions given in the course of case management.
[52]
I make no order of costs in respect of the motion.
ORDER
THIS COURT ORDERS that:
1.
The motion to strike the application for judicial review is
dismissed without prejudice to renewing the motion at a time when the record
and issues are sufficiently developed as to enable the court to properly assess
the issue.
2.
An order will issue designating the application to continue
as a specially managed proceeding.
3.
The Respondent is granted an extension of time of 30 days
from the date of this order to file its record subject to any further extension
or directions given in the course of case management.
4.
I make no order of costs in respect of the motion.
"Leonard S. Mandamin"
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