Date: 19990312
Docket: A-603-96
C O R A M: STRAYER J.A.
B E T W E E N:
GITXSAN TREATY SOCIETY, as represented by the
GITXSAN HEALTH AUTHORITY
Applicant
" and "
THE HOSPITAL EMPLOYEES UNION
Respondent
" and "
THE BRITISH COLUMBIA NURSES' UNION
Respondent
" and "
THE ATTORNEY GENERAL OF CANADA
Intervenor
" and "
THE ATTORNEY GENERAL OF BRITISH COLUMBIA
Intervenor
REASONS FOR ORDER
STRAYER J.A.
[1] The Attorney General of Canada filed two motions on February 3, 1999 in this judicial review proceeding, for disposition in writing pursuant to Rule 369.
[2] The first motion is made under Rule 107 seeking the preliminary determination that no constitutional issue should be considered in this application for judicial review of a Canada Labour Relations Board decision because no notice of a constitutional question was served on the attorneys general as required by section 57 of the Federal Court Act prior to the determination of the matter under review by the Canada Labour Relations Board. It is therefore argued that this Court should not address the constitutional question stated by a "Notice of Constitutional Question" dated April 28, 1998 and served by the applicant.
[3] The second motion also filed on February 3, 1999 is made by the Attorney General of Canada pursuant to Rule 315 requesting a pre-hearing conference in respect of the application for judicial review as contemplated by Rule 315.
[4] I shall deal with these motions together.
[5] It appears to me that it would be in the interests of justice to consider a motion made under Rule 107. The applicant has indicated that in order for the constitutional issues to be addressed a week will be required for the hearing of its application for judicial review. It appears to me that if there is no constitutional issue properly before the Court the hearing might well take less than one day. Further, there is a serious question as to whether the Court would be prepared to address the constitutional issue given the fact that no notice was given under section 57 of the Federal Court Act prior to the hearing in the Canada Labour Relations Board. While in my view it is not impossible that this Court could consider the constitutional issue, it will almost certainly not do so unless it concludes that the circumstances meet the test set out, inter alia, by this Court in Tyler v. Minister of National Revenue.1 The absence of notice to the Attorney General before the Board hearing is a particular barrier, because if facts are pertinent to the determination of the constitutional issue, the Attorney General should have had the opportunity to contribute to the factual record.2 I recognize that any decision made as to whether the Court will entertain the constitutional issue on the judicial review application is a critical one for the parties and the intervenors. The question of the state of the Board record and whether this Court could fairly entertain a constitutional argument on the basis of that record is one which must be explored with care, and it is not possible to do so on the basis of the written arguments as filed on the motion in writing under Rule 369.
[6] I must also observe that the Notice of Constitutional Question dated April 28, 1998 as provided by the applicant is entirely inadequate. It does not comply with the requirements of Form 69 of the Federal Court Rules, 1998 which were in force at the time the notice was prepared. In particular the notice provided does not state the material facts or the legal basis for the constitutional question as required by Form 69. It is not appropriate to give notice to non-parties that "the material facts and legal basis . . . are set out in the Application Record . . . ." Unless the applicant provides a proper Notice of Constitutional Question the Court will have to assume that it has no serious question to be addressed.
[7] Responding to both of these motions, I will therefore direct that a pre-hearing conference be held pursuant to Rule 315 at 2:30 p.m. on April 28 in Vancouver, at which time the motion filed under Rule 107 will be considered for the purpose of deciding whether the Court can hear a constitutional issue in these circumstances. Unless, however, the applicant serves and files a proper Notice of Constitutional Question at least 15 days before that conference the Court will treat that issue as having been abandoned. Apart from determining the Rule 107 motion, the pre-hearing conference will deal with the matters set out in Rule 263 (adopted by reference in Rule 315) to the extent that they are applicable. Specifically the parties and intervenors should be prepared to address the questions of simplification of the issues, the duration and date of the hearing. Parties and intervenors may however identify other issues for consideration in their pre-hearing conference memoranda which every party and intervenor shall serve and file at least 7 days before the date of the conference.
J.A.
__________________
1 (1990) 120 N.R. 140 at para. 10. It was there said that in such circumstances an appellate court should not consider a constitutional issue "unless it is clear that, had the question been raised at the proper time, no further light could have been thrown upon it".
2 Eaton v. Brant County Board of Education [1997] 1 S.C.R. 241 at 264-67.
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