Date: 20080725
Docket: T-1374-07
Citation: 2008
FC 912
Vancouver, British
Columbia,
July 25, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
GWASSLAAM, also known as
GEORGE PHILLIP DANIELS
on his own behalf and on behalf of all of
the Members of the House of Gwasslaam
Applicants
and
MINISTER
OF FISHERIES AND OCEANS
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present motion is an appeal from a decision of Prothonotary Lafrenière, dated
June 25, 2008 (Decision), dismissing the Applicant’s motion for leave to file
an additional affidavit in the Applicant’s present judicial review application
(Application) pursuant to Rule 312(a) of the Federal Courts Rules, SOR/98-106.
[2]
The Application is based on a claim to an Aboriginal fishing
right. A primary argument made before the Prothonotary by Counsel for the
Applicant is that the evidence clarifies the state of the oral history which
supports this claim. It is apparent in the Prothonotary’s reasons for decision
that the oral history argument in aid of admission of the affidavit was not
addressed. As a result, for the reasons which follow, I find that the Prothonotary exercised his
discretion based on a wrong principle. As a result, I will decide the contested
evidentiary issue de novo (see MacGuigan J.A. in Canada v. Aqua-Gem
Investment Ltd., [1993]
2 F.C. 425, [1993] F.C.J. No. 103 (C.A.)
(QL) at paras. 65-66).
[3]
The
procedural history leading to the contested evidentiary history gives important
context to disposing of the present appeal.
[4]
The
Application contains allegations that certain actions taken by the Minister of
Fisheries and Oceans infringe the Applicant’s Aboriginal right to fish. The
Applicant originally brought a motion for an expedited hearing and filed
affidavits as part of this motion. The Applicant later abandoned this motion
but, on April 7, 2008, by order, the affidavits in support of the motion were
deemed to have been filed in the Application. One of these affidavits is
affirmed by Gwasslaam, to which two books are exhibited: a book containing Aboriginal
oral histories and a book containing archaeological information (the book
evidence).
[5]
The
Respondent filed a motion on May 13, 2008, in part, to strike the Application
on the basis that it has no chance of success due to the lack of evidence of
the Aboriginal claim upon which it is based. While the motion to strike was
dismissed by Prothonotary Lafrenière on May 22, 2008, a primary argument made by Counsel for the
Respondent fuelled the tendering of the additional affidavit. Counsel for the
Respondent argued that the book evidence was not properly before the Court and,
therefore, did not provide an evidentiary basis upon which the Applicant could
possibly succeed on judicial review. To respond to this argument, which has the
potential to be made in the course of the hearing of the Application, Counsel
for the Applicant subsequently sought leave to file an additional affidavit
under Rule 312(a):
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312. With leave of the Court, a party may
(a) file affidavits additional to those provided
for in rules 306 and 307;
(b) conduct cross-examinations on affidavits additional to those
provided for in rule 308; or
(c) file a supplementary record.
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312. Une partie peut, avec l’autorisation de la Cour :
a) déposer des affidavits complémentaires
en plus de ceux visés aux règles 306 et 307;
b) effectuer des contre-interrogatoires
au sujet des affidavits en plus de ceux visés à la règle 308;
c) déposer un dossier complémentaire.
|
[6]
The Prothonotary dismissed the Applicant’s
motion on June 26, 2008, for the following reasons:
In deciding
whether leave to file a further affidavit should be granted, the Court must
take into account the relevance of the proposed affidavit, any prejudice to the
opposing party, whether the additional evidence would be of assistance to
the Court, and the overall interest of justice. The Court must also consider
whether the supplemental material was available, and could have been adduced,
at an earlier date.
The
Applicant’s request to file additional evidence is said to be prompted by the
Respondent’s motion to dismiss the proceeding. Counsel submits that, upon
reflection, the Applicant is concerned about perceived deficiencies in his
evidence as identified by the Respondent. The Applicant has, however, adduced
no evidence on this motion to explain why the evidence contained in the
draft affidavit of Robert Good could not have been adduced earlier, or why
his motion for leave to adduce further evidence could not have been brought
earlier. The Applicant had more than sufficient time to consider his position.
In fact, he had two previous opportunities to request leave from the Court.
And, yet counsel for the Applicant represented to the Court on April 7,
2008 at the hearing of the Applicant’s motion for leave to file his affidavit
evidence under Rule 306 that the Applicant did not intend to file any other
affidavit in support of the application for judicial review. Moreover, at the
hearing of the Respondent’s motion to dismiss on May 22, the Applicant
maintained that the affidavit evidence filed in support of the application for
judicial review was sufficient.
Being substantially in agreement
with paragraphs 15, 16, 17, 26, 27, 28, 29, 30 and 31 of the written
representations file on behalf of the Respondent, I do not consider it in
the interests of justice to grant the relief requested by the Applicant.
(Decision, p. 2)
[7]
The
paragraphs incorporated by reference from the Respondent’s written
representations state the argument that the Applicant’s motion to file the
additional affidavit should not be granted because: the Applicant is not able
to provide a satisfactory reason for the delay in filing the affidavit; the book
evidence was available when the Applicant’s affidavit evidence was originally
admitted; and the additional affidavit is simply a “beefed-up” version of the
Applicant’s original affidavit evidence.
[8]
The
Applicant argues that the decision under appeal is made in error as the
Prothonotary failed to apply the correct principle when assessing the test for
leave under Rule 312. In particular, the Applicant argues that the Prothonotary
erred by not considering the nature of the evidence respecting Aboriginal oral
history in the additional affidavit, and failed to take relevant considerations
into account when applying the test under Rule 312. I agree with these
arguments.
[9]
The
parties agree that the correct test to apply under Rule 312 is stated in Atlantic Engraving Ltd. v. Lapointe Rosenstein, 2002 FCA 503, [2002] F.C.J. No 1782
(F.C.A.) (QL) at paras. 8-9 [Atlantic
Engraving]:
By
exception, rule 312 allows a party, with leave of the Court, to file additional
affidavits. Under that rule, the Court may allow the filing of additional
affidavits if the following requirements are met:
i)
The evidence to be
adduced will serve the interests of justice;
ii)
The evidence will
assist the Court;
iii)
The evidence will not
cause substantial or serious prejudice to the other side (see Eli Lilly and
Co. v. Apotex Inc. (1997), 76 C.P.R. (3d) 15 (T.D.); Robert Mondavi
Winery v. Spagnol's Wine & Beer Making Supplies Ltd. (2001), 10 C.P.R.
(4th) 331 (T.D.)).
Further,
an applicant, in seeking leave to file additional material, must show that the
evidence sought to be adduced was not available prior to the cross-examination
of the opponent's affidavits. Rule 312 is not there to allow a party to split
its case and a party must put its best case forward at the first opportunity
(see Salton Appliances (1985) Corp. v. Salton Inc. (2000), 181 F.T.R.
146, 4 C.P.R. (4th) 491 (T.D.); Inverhuron & District Ratepayers Assn.
v. Canada (Min. of Environment) (2000), 180 F.T.R. 314 (T.D.)).
In the present case, no response to the Application had yet
been served and filed by the Respondent at the time the Applicant applied for
admission of the additional affidavit, and since cross examination was yet to
occur, a factor with respect to admission is whether the additional affidavit
evidence was available and could have been adduced at the time the original
affidavits were submitted (see e.g. Pfizer Canada Inc. v. Canada (Minister
of Health), 2006
FC 984, [2006] F.C.J. No. 1243). It is important to note, however, that the
purpose behind considering this factor is to ensure that there is no
unwarranted delay in proceeding with a judicial review application because it
is considered to be a summary proceeding requiring expeditious processing (Mazhero
v. Canada (Industrial Relations Board) 2002 FCA 295, [2002] F.C.J. No. 1112
(QL) at para. 5).
[10]
The
Prothonotary’s reasons for decision do not exhibit consideration of all the Atlantic
Engraving factors. Indeed, the Decision focuses exclusively on the fact
that the material in the proposed affidavit was available at the time the
original Application affidavits were filed; the Prothonotary does not address
the reasons advanced by the Applicant for tendering the additional affidavit,
namely, to address the Aboriginal oral history evidentiary issues raised
by the Respondent on the strike motion. In addition, there is no indication that the Prothonotary
considered the following important factors: the assistance that the additional
affidavit could provide to the judge deciding the Aboriginal oral history
evidence issue on judicial review; the lack of prejudice that the admission of
the additional affidavit would have on the Respondent; and the overall
interests of justice given that the additional affidavit evidence concerned is
oral history of a claimed Aboriginal right. Indeed, the Prothonotary does not address whether an
unwarranted delay would exist if the additional affidavit was admitted. For
these reasons, I find that the Prothonotary’s exercise of discretion was based
on a wrong principle.
[11]
In my
opinion, in determining the admission of the additional affidavit de novo,
I find that on a consideration of the Atlantic Engraving factors,
the additional affidavit should be admitted.
[12]
With
respect to the factors of delay and prejudice to the Respondent, a fact that
leads to a neutral conclusion on both factors is that, at the time the
additional affidavit was tendered, the Respondent had not yet filed a response
to the Application. As a result, it is not possible to say that at that time a
delay would be caused by the filing of an additional affidavit because the
process of judicial review had just begun. It is also not possible to say that
the Respondent would suffer prejudice by the filing of the additional affidavit
because it was only being tendered to meet the Respondent’s own argument on the
stay motion, and, therefore, does not raise a new issue to the detriment of the
Respondent.
[13]
In keeping
with the flexible approach to be taken with respect to oral history evidence as
expressed by the Supreme Court of Canada in Mitchell v. Canada (Minister of
National Revenue), [2001] 1 S.C.R. 911, in my opinion, it is certainly in the
interests of justice that available evidence with respect to the state of the oral history underlying the Aboriginal
claim at the heart of the Application should be available to aid the judge
deciding the Application. Of course, the judge hearing the Application is at
liberty to decide the relevance and weight to be given to all the evidence
tendered.
ORDER
THIS COURT ORDERS that:
1) The appeal is granted, and the
additional affidavit is admitted as evidence on the Application.
2) The costs of the present
appeal are awarded in the cause.
“Douglas
R. Campbell”
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