Date: 20120704
Docket: A-410-10
Citation: 2012 FCA 204
CORAM: EVANS
J.A.
LAYDEN-STEVENSON
J.A.*
STRATAS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
ANGEL SUE LARKMAN
Respondent
REASONS FOR JUDGMENT
STRATAS J.A.
[1]
The
respondent, Ms. Larkman, intends to bring an application for judicial review in
the Federal Court, seeking to set aside an Order in Council.
[2]
As
will be seen, that Order of Council was made under a statutory regime, now
repealed, known as “enfranchisement.” That statutory regime was aimed at
assimilating Aboriginal peoples, eradicating their culture and folding them
into what was regarded as mainstream culture.
[3]
From
the face of the Order in Council, it appears that Ms. Larkman’s grandmother, a member of the
Matchewan First Nation, applied for it.
[4]
The
Order in Council gave effect to the grandmother’s “enfranchisement”. As we
shall see, it stripped the grandmother of her status of “Indian” under the Indian
Act, S.C. 1951, c. 29. However, in accordance with this statutory regime,
it did more. It denied Indian status to all of the grandmother’s descendants,
including Ms. Larkman.
[5]
In
her intended application for judicial review, Ms. Larkman alleges that the
Order in Council was obtained by a fraud committed upon her grandmother. But
before Ms. Larkman can proceed with her application, she must overcome a
daunting obstacle.
[6]
A
thirty day deadline applies to applications for judicial review seeking to set
aside a government order, such as the Order in Council in this case: Federal
Courts Act, R.S.C. 1985, c. F‑7, subsection 18.1(2). Here, the Order
in Council was made in 1952.
[7]
In
the Federal Court, Ms. Larkman moved for an extension of time to bring her
application for judicial review of the Order in Council.
[8]
Without
offering reasons, the Federal Court allowed Ms. Larkman’s motion and granted
her an extension of time until shortly after its Order. The Attorney General
appeals to this Court. As explained below, this Court is required to consider
Ms. Larkman’s motion de novo because it is not possible for us to
discern the basis upon which the Federal Court granted the extension of time.
[9]
Ms.
Larkman’s intended application for judicial review is not her first step to
address the Order in Council and its consequences. Rather, it is the latest
step in a multi-year quest, pursued in various fora for the benefit of
herself and her descendants. On the basis of the highly unusual circumstances
of this case and the criteria that guide the exercise of this Court’s
discretion to grant an extension of time in the interests of justice, I would
grant Ms. Larkman’s motion. While this is the same result reached by the
Federal Court, I would allow the appeal in part in order to vary the deadline
set by the Federal Court.
A. The
background to Ms. Larkman’s motion: “enfranchisement”
[10]
“Enfranchisement”
is a euphemism for one of the most oppressive policies adopted by the Canadian
government in its history of dealings with Aboriginal peoples: Report of the
Royal Commission on Aboriginal Peoples: Looking Forward, Looking Backward,
vol. 1 (Ottawa: Canada Communication Group Publishing, 1996) at page 271.
[11]
Beginning
in 1857 and evolving into different forms until 1985, “enfranchisement” was
aimed at assimilating Aboriginal peoples and eradicating their culture or, in
the words of the 1857 Act, encouraging “the progress of [c]ivilization” among
Aboriginal peoples: An Act to Encourage the Gradual Civilization of Indian
Tribes in the Province and the Amend the Laws Respecting Indians, S. Prov.
C. 1857, 20 Vict., c. 26 (initial law); An Act to Amend the
Indian Act,
S.C. 1985, c. 27 (the abolition).
[12]
Under
one form of “enfranchisement” – the form at issue in this case – Aboriginal
peoples received Canadian citizenship and the right to hold land in fee simple.
In return, they had to renounce – on behalf of themselves and all their
descendants, living and future – their legal recognition as an “Indian,” their
tax exemption, their membership in their Aboriginal community, their right to
reside in that community, and their right to vote for their leaders in that
community.
[13]
The
Supreme Court has noted the disadvantage, stereotyping, prejudice and
discrimination associated with “enfranchisement”: Corbiere v. Canada (Minister of
Indian and Northern Affairs), [1999] 2 S.C.R. 203. With deep reluctance
or at high personal cost, and sometimes under compulsion, many spent decades
cut off from communities to which they had a deep cultural and spiritual bond.
[14]
On
April 17, 1985, the day on which the equality provisions of the Canadian
Charter of Rights and Freedoms came into force, amendments to the Indian
Act also came into force, doing away with the last vestiges of
“enfranchisement” and permitting those who lost Indian registration through
“enfranchisement” to register and regain registration: An Act to Amend the
Indian Act, supra. However, under these amendments, only some of the
descendants of those who were “enfranchised” could be added to the Indian
Register. In other words, only some were able to regain their
recognition as an “Indian” and their membership in their Aboriginal community.
B. “Enfranchisement”
and the Larkman family
[15]
Ms.
Larkman’s grandmother purportedly “enfranchised” in 1952, affecting all of her
descendants, living or future, including, of course, Ms. Larkman.
[16]
By
virtue of the 1985 amending Act, Ms. Larkman’s mother could regain her rights.
Under the terms of that Act, Ms. Larkman could not.
[17]
Soon
after the 1985 amending Act came into force, Ms. Larkman’s mother applied under
the Indian Act to add herself and Ms. Larkman to the Indian Register.
Her application suggests that she applied for reinstatement not because she had
been “enfranchised,” but because she believed she had lost her status as a
result of her marriage to a non-native man.
[18]
In
1988, the Registrar ruled on the application. In accordance with the terms of
the 1985 amending Act, Ms. Larkman’s mother was added to the register, but Ms.
Larkman was not. The decision letter did not disclose the grandmother’s earlier
“enfranchisement” as the reason why Ms. Larkman could not be added to the
Indian Register.
C. Ms.
Larkman’s multi-year quest to regain her status as “Indian”
(1) Initial
steps
[19]
Seven
years later, in 1995, Ms. Larkman began in earnest her quest to regain her
status as “Indian.” As we shall see, later decision-makers, such as the
Registrar under the Indian Act, the Ontario Superior Court of Justice,
and the Court of Appeal for Ontario, did not express any concern about the
seven year delay. Likewise, the federal Crown, party to all of those
proceedings, expressed no such concern.
[20]
In
April 1995, Ms. Larkman re-applied to the Registrar to be added to the Indian
Register. On September 13, 1995, the Registrar refused the application, finding
no grounds to revisit the 1988 decision and advising that the grandmother had
been “enfranchised” in 1952.
[21]
In
an affidavit filed in the Federal Court, Ms. Larkman says that only at that
time – September 13, 1995 or soon thereafter – did she know that the 1952 Order
in Council had been made, understand the background to it, and appreciate its
ramifications. In particular, only at that time did she learn of the
circumstances of fraud that she says surrounded the “enfranchisement” of her
grandmother in 1952.
[22]
In 1996, Ms. Larkman applied again to the Registrar, supplying two
affidavits in support of her recently-discovered allegation that “the
enfranchisement…is invalid as it was fraudulently obtained.” In her new
application, she asked the Registrar to provide “a decision as to the validity
of the enfranchisement.” She asked the Registrar to provide all records related
to the “enfranchisement.”
[23]
In
1997, without any expression of concern about the delay that had taken place to
date, the Registrar provided the records and some explanations, but ruled that
the “enfranchisement” was valid.
[24]
Under
the Indian Act, Ms. Larkman had recourses from that decision. She
pursued them. Her first step, taken in 1998, was a “protest” under section 14.2
of the Act. Ms. Larkman’s protest fell within the three year time period
permitted by that section.
[25]
In
her protest, Ms. Larkman asked that the Minister of Indian Affairs and Northern
Development declare the Order in Council invalid and add her grandmother to the
Indian Register. She raised the following grounds:
1. That the Minister of
the Department of Citizenship and Immigration, as it then was, had a fiduciary
duty towards Indians. That duty was breached when it enfranchised [the
grandmother] in 1952.
2. That the Minister of
the Department of Citizenship and Immigration, as it then was, erred in law by
enfranchising [the grandmother] when the statutory preconditions for the
enfranchisement were not met.
3. That the
enfranchisement of [the grandmother] was processed by the Department of
Citizenship and Immigration, as it then was, in bad faith and pursuant to
unconscionable behaviour.
4. That the
enfranchisement application of [the grandmother] was involuntary.
5. That the
enfranchisement application of [the grandmother] was obtained by way of
fraudulent misrepresentations and duress.
As shall be seen, these grounds are
substantially the same Ms. Larkman later asserted in other fora,
including in her intended application for judicial review in the Federal Court.
[26]
Upon
receiving Ms. Larkman’s protest, the Registrar was obligated to conduct an
investigation and render a decision: subsection 14.2(5) of the Indian Act.
It is not known what investigative steps the Registrar may have taken in this
case. However, the Registrar’s decision, dated July 21, 2000, refers to
documents and information obtained by the Registrar that were not supplied by
Ms. Larkman. It is apparent that the Registrar did investigate the matter.
[27]
The
Registrar was also entitled to receive affidavits: subsection 14.2(6) of the Indian
Act. The grandmother filed three affidavits in support of the claim that
her “enfranchisement” was fraudulent.
[28]
On
July 21, 2000, the Registrar dismissed the protest.
[29]
On
November 13, 2000, Ms. Larkman wrote to the Registrar, asking for an oral
hearing. In her view, the Registrar’s letter of July 21, 2000 raised a number
of issues and referred to evidence on which Ms. Larkman should have been
afforded an opportunity to respond.
[30]
Having
heard nothing from the Registrar, Ms. Larkman exercised her right to appeal to
the Ontario Superior Court of Justice under section 14.3 of the Indian Act.
This appeal was brought within the deadline set out in that subsection. The
federal Crown was a respondent.
(2) The
appeal to the Ontario Superior Court of Justice
[31]
In
the appeal, Ms. Larkman and her grandmother contended that the Order in Council
was void and that they should both be added to the Indian Register. They raised
the following grounds:
1. That the Registrar,
acting on behalf of the Minister of the Department of Indian Affairs and
Northern Development, exceeded its jurisdiction by requiring that [the
grandmother] meet a burden of proof greater than that on a balance of
probabilities to establish her claim.
2. That the Registrar,
acting on behalf of the Minister of the Department of Indian Affairs and
Northern Development, erred in ignoring the fiduciary duty owed to [the
grandmother].
3. That the Registrar,
acting on behalf of the Minister of the Department of Indian Affairs and
Northern Development, erred in finding that the statutory preconditions for the
enfranchisement of [the grandmother] had been met.
4. That the Registrar,
acting on behalf of the Minister of the Department of Indian Affairs and
Northern Development, erred in finding that the enfranchisement application of
[the grandmother] was voluntary, and that the Department of Citizenship and
Immigration, as it then was, acted in good faith in processing her
enfranchisement, when these findings are unsupported by the evidence.
[32]
In
appeals under section 14.3 of the Indian Act, parties are able to file
evidence. Fortunately for Ms. Larkman, her grandmother, quite elderly at this
time, was still alive. She was able to swear an affidavit setting out her
recollections of the relevant facts. Of importance, the federal Crown, as
respondent to the appeal, had a full opportunity to submit rebutting evidence
to the Court, and to cross-examine Ms. Larkman’s grandmother.
[33]
In
her affidavit filed in the Ontario Superior Court of Justice, Ms. Larkman’s
grandmother detailed the background to her “enfranchisement,” suggesting that
it was not voluntary on her part.
[34]
In
1952, the local Indian Agent received a typed letter, purporting to be from Ms.
Larkman’s grandmother. The letter sought “enfranchisement.” Interestingly,
though, Ms. Larkman’s grandmother was unable to read and could only write her
first and last name.
[35]
The
Indian Agent responded to the letter, asking for further information. Later, he
received that information, through persons other than Ms. Larkman’s
grandmother. Based on the letter and the later information received, the Indian
Agent considered her to be eligible for “enfranchisement.” He sent out the
necessary application.
[36]
The
Chief of the Matchewan First Nation and the Indian Agent placed the application
in front of the grandmother and told her to sign it. It was filled in for her.
She signed it. In her affidavit, the grandmother deposed that she was not
informed of the consequences of signing it. She deposed that she simply “signed
whatever documentation [she] was asked to sign,” trusting her Chief and the
Indian Agent, whom she “always obeyed.”
[37]
The
letter to the Indian Agent and the application, purportedly from the
grandmother, contained several suspicious errors, ranging from misspellings of
the grandmother’s name, to the omission of the names of the grandmother’s sons.
[38]
Before
sending the application for processing, the Indian Agent wrote the grandmother
a letter informing her that upon “enfranchisement” she would lose her
entitlement to timber royalties. The Indian Agent received back a letter,
purportedly from the grandmother, requesting that the application be sent off
despite her loss of timber royalties. Off it went.
[39]
The
application for “enfranchisement” was approved and Order in Council P.C. 4582
was issued on December 4, 1952. It declared the grandmother to be
“enfranchised.” An “Enfranchisement Card” was sent to her, and she signed it.
She did not know that she was signing a document that would strip her of her
status as an “Indian.”
[40]
In
the proceedings in the Ontario Superior Court of Justice, the federal Crown had
the opportunity to file evidence and to cross-examine Ms. Larkman’s
grandmother. It did neither.
[41]
In
particular, the federal Crown did not seek to file evidence from any other
witnesses to the events in 1952. To the extent that those witnesses had
disappeared or died, the Crown did not object, nor did it seek to dismiss the
proceedings on the basis of delay. Instead, the Crown was content to contest
the grounds raised by Ms. Larkman’s grandmother – grounds substantially the
same as she asserts in her intended application for judicial review in the
Federal Court – based solely on the evidence of Ms. Larkman and her
grandmother.
[42]
The
appeal in the Ontario Superior Court of Justice took seven years. Although it
was open to the federal Crown to move to dismiss the appeal for delay, it did
not do so. In addition, the record shows absolutely no concern on the part of
the federal Crown about the slow pace of the proceedings.
(3) The
decision of the Ontario Superior Court of Justice
[43]
On
March 5, 2008, the Ontario Superior Court of Justice allowed the appeal from
the Registrar: R.
v. Etches
(2008), 89 O.R. (3d) 599 (S.C.J.) (per Justice Forestell).
[44]
In
the Court’s view, the Registrar imposed upon Ms. Larkman and her grandmother a
burden of proof greater than the balance of probabilities (at paragraphs 59-64,
70 and 76). In addition, the Registrar erred by failing to assess the evidence
of the grandmother alongside all of the circumstantial evidence (at paragraphs
67, 70 and 76). The Registrar also erred in refusing to accept the
grandmother’s evidence without corroboration (at paragraphs 68 and 77).
[45]
Another
serious error on the part of the Registrar was the making of speculative and
unsupported findings of fact (at paragraphs 71-75 and 78). For example, the
grandmother was entitled to receive a share of band funds by cheque upon
“enfranchisement.” There was no evidence of such a cheque. If no cheque were
ever issued, then the remaining members of the band would benefit. This might
constitute a motive for improperly procuring the grandmother’s removal from the
band without compensation. However, the Registrar asserted that the cheque
“probably” arrived with the “Enfranchisement Card.” The Court noted that there
was no evidentiary basis for that statement (at paragraph 75).
[46]
Finally,
the Court rejected an argument that it did not have jurisdiction because the
Order in Council must be attacked in the Federal Court.
[47]
For
present purposes, the most important aspect of the Ontario Superior Court of
Justice’s decision is its consideration of the evidence before it. In the
course of its reasons, the Court recounted the facts set out above (at
paragraphs 33-41). From this, it appears that it accepted the evidence of Ms.
Larkman’s grandmother. It did not express any reason for disbelieving it.
[48]
Even
more importantly, the Court not only quashed the Registrar’s decision but also
made the decision that, in its view, the Registrar should have made. Noting the
presence of “a full record…on the appeal,” and based on that record, it held
that the grandmother’s “enfranchisement” was invalid (at paragraph 82).
Although not explicitly stated, it can be inferred that the Court was of the
view that Ms. Larkman’s “enfranchisement” was involuntary or that a fraud had
been committed upon her. It ordered that the grandmother and all of her
descendants, including Ms. Larkman, were entitled to registration as “Indians”
under the Indian Act.
[49]
The
federal Crown appealed to the Court of Appeal for Ontario.
(4) The
decision of the Court of Appeal for Ontario
[50]
On
February 27, 2009, the Court of Appeal for Ontario allowed the federal Crown’s
appeal: Etches v. Canada (Indian and Northern Affairs), 2009 ONCA 182, 94 O.R. (3d) 161. It held that the
Ontario Superior Court of Justice lacked jurisdiction to make the order it did.
In effect, the Superior Court had invalidated the Order in Council. In the
Court of Appeal’s view, this could only be done by the Federal Court.
[51]
The
Court of Appeal did not comment on the Superior Court judge’s findings of fact
or observations about the evidence.
(5) Later
proceedings
[52]
Within
the deadlines set out in the Supreme Court Act, R.S.C. 1985, c. S-26,
Ms. Larkman and her grandmother applied for leave to appeal to the Supreme
Court of Canada. On October 1, 2009, the application for leave to appeal was
dismissed.
[53]
In
light of this, if Ms. Larkman and her grandmother were to continue their
multi-year quest and pursue their challenge against the Order in Council, they
had to proceed to the Federal Court.
(6) Proceedings
in the Federal Court
[54]
On
September 10, 2010, eleven months after the Supreme Court refused leave to
appeal, Ms. Larkman began proceedings in the Federal Court by bringing her
motion for an extension of time to bring an application for judicial review of
the Order in Council.
[55]
Included
in the motion record is her intended notice of application. Ms. Larkman is the
only named applicant in the intended notice of application. Her grandmother
died on August 8, 2010, just before Ms. Larkman brought her motion for an
extension of time.
[56]
The
intended notice of application alleges that the Order in Council is invalid,
asks that it be set aside, and raises two grounds in support. These are:
33. That the Registrar,
acting on behalf of the Minister of the Department of Indian Affairs and
Northern Development, erred in finding that the statutory pre-conditions for
the enfranchisement of [the grandmother] had been met;
34. That the Registrar,
acting on behalf of the Minister of the Department of Indian Affairs and
Northern Development, erred in finding that the enfranchisement application of
[the grandmother] was voluntary, and that the Department of Citizenship and
Immigration, as it then was, acted in good faith in processing her enfranchisement
when these findings are unsupported by the evidence.
[57]
These
grounds appear after a lengthy recital of many of the facts pertaining to the
suspicious circumstances surrounding the grandmother’s “enfranchisement” in
1952.
[58]
The
wording of these grounds is infelicitous. They smack of an effort to set aside
the Registrar’s decision, rather than the Order in Council. Perhaps the drafter
borrowed their wording from the originating documents in earlier proceedings
that were aimed at setting aside the Registrar’s decision. Nevertheless, in my
view, properly interpreted, these grounds do raise the issue of whether the
Order in Council was procured by fraud and, thus, should be set aside. These
grounds substantially overlap with those in the earlier proceedings before the
Registrar and the Ontario Courts. Before us, the Attorney General conceded
this.
[59]
As
mentioned above, the Federal Court exercised its discretion in favour of
granting Ms. Larkman an extension of time to file her application for judicial
review under subsection 18.1(2) of the Federal Courts Act.
D. Analysis
(1) The
standard of review
[60]
The
Federal Court offered no reasons for exercising its discretion in favour of
allowing Ms. Larkman an extension of time. Further, the record before it does not
disclose the basis for that exercise of discretion. Accordingly, this Court is
required to review the matter de novo and exercise its own discretion
based on the law and the facts before it, without any deference to the decision
of the Federal Court: Plante v. Canada (Correctional Service), 2005 FCA
120 at paragraph 2; Infonet Services Corp. v. Matrox Electronic Services
Ltd., 2004 FCA 162 at paragraph 6; Jukatavicius v. Canada (Attorney
General), 2004 FCA 289 at paragraph 24.
(2) The
test for an extension of time
[61]
The
parties agree that the following questions are relevant to this Court’s
exercise of discretion to allow an extension of time:
(1) Did
the moving party have a continuing intention to pursue the application?
(2) Is
there some potential merit to the application?
(3) Has
the Crown been prejudiced from the delay?
(4) Does
the moving party have a reasonable explanation for the delay?
See Grewal v. Canada (Minister of
Employment & Immigration), [1985] 2 F.C. 263 (C.A.); Muckenheim
v. Canada (Employment
Insurance Commission), 2008 FCA 249 at paragraph 8.
[62]
These
questions guide the Court in determining whether the granting of an extension
of time is in the interests of justice: Grewal, supra
at pages 277-278. The importance of each question depends upon the circumstances of each
case. Further, not all of these four questions need be resolved in the moving
party’s favour. For example, “a compelling explanation for the delay may lead to a
positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less
satisfactory justification for the delay”: Grewal, at page 282. In certain
cases, particularly in unusual cases, other questions may be relevant. The overriding consideration
is that the interests of justice be served. See generally Grewal, at
pages 278-279; Canada (Minister of Human Resources Development) v.
Hogervorst, 2007 FCA 41 at paragraph 33; Huard v. Canada (Attorney General), 2007 FC 195, 89 Admin LR (4th) 1.
(3) The period of delay to be
assessed
[63]
At
the outset, it is necessary to identify the period of delay to be assessed.
[64]
This
is an unusual case. Ms. Larkman was born in 1972, approximately 20 years after
the Order in Council was made. She became an adult approximately 40 years after
the Order in Council was made. Further, Ms. Larkman deposed that she only
became aware of the Order in Council and the circumstances surrounding it on
September 13, 1995 or soon thereafter: see paragraph 21, above.
[65]
The
Attorney General suggests that Ms. Larkman knew of the circumstances
surrounding the Order in Council at a time earlier than 1995. The Attorney
General points out that in 1985, when Ms. Larkman’s grandmother
applied to be added to the Indian Register, she wrote “disenfranchisement 1952”
as the reason for her application.
[66]
In my view, this does not assist the Attorney General. The
endorsement on the application form proves that Ms. Larkman’s grandmother was
aware of the Order in Council in 1985. But this is no evidence that Ms. Larkman
was aware of the Order in 1985.
[67]
The Attorney General also points out that Ms. Larkman never set
out specific details about the circumstances of her discovery of the
circumstances surrounding the Order in Council. Indeed, that is true. However,
in my view, Ms. Larkman has put forward enough credible evidence to establish
that she
only became aware of the Order in Council and the circumstances surrounding it
on September 13, 1995 or soon thereafter. As a tactical matter, it was
incumbent on the Attorney General to cross-examine Ms. Larkman on this critical
issue. No cross-examination took place.
[68]
Therefore,
in the circumstances of this case, I conclude that the relevant period of delay
that must be considered is from September 13, 1995 to September 10, 2010, the
date of Ms. Larkman’s motion for an extension of time.
[69]
I
now turn to the four questions that guide our exercise of discretion.
(a) Continuing
intention
[70]
It
is apparent from Ms. Larkman’s multi-year quest that she had a continuing
intention during the relevant period of delay to challenge the validity of her
grandmother’s “enfranchisement.”
[71]
It
is true that at times she pursued her quest very slowly. But, with the
exception of one period of time, there is no evidence that she ever abandoned
her quest. That one period of time is from October 2009 to September 2010, the
period following the Supreme Court’s dismissal of her application for leave to
appeal, when it was incumbent on her to start proceedings in the Federal Court,
but she did not. I shall return to this later in these reasons.
(b) Potential
merit to the application
[72]
As
to the merit of Ms. Larkman’s application, the Ontario Superior Court of
Justice had “a full record” before it (see paragraph 48, above), assessed the
evidence concerning the application for the Order in Council in 1952, and,
based on that evidence, ruled that the grandmother’s “enfranchisement” was
invalid. The Court of Appeal for Ontario reversed that ruling, but only on
jurisdictional grounds.
[73]
The
evidence concerning the application for the Order in Council in 1952 came from
Ms. Larkman’s grandmother. Does her death in 2010 mean that the Federal Court
is deprived of that evidence, with the result that the intended application for
judicial review is now utterly devoid of merit? I think not.
[74]
The
application for judicial review in the Federal Court raises issues
substantially similar to those canvassed by the Ontario Superior Court of
Justice. The parties in the Ontario Superior Court of Justice had a full
opportunity to adduce and test the evidence on those issues. Although the
federal Crown was the responding party in the Ontario Superior Court of Justice
and the Attorney General is the responding party in the Federal Court, the
Attorney General rightly draws no significance from that difference. In
circumstances such as these, evidence admitted in the Ontario Superior Court of
Justice, including the prior evidence of the deceased grandmother, might well
be admissible in the Federal Court: R. v. B. (K.G.), [1993] 1
S.C.R. 740; see also R. v. Khan, [1990] 2 S.C.R. 531
and R. v. Smith, [1992] 2 S.C.R. 915 and later
cases applying these authorities. Further, the Crown
might not be able to challenge the factual findings underlying the Ontario
Superior Court of Justice’s overall ruling: Toronto (City) v.
C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. Here, it
bears repeating that the Court of Appeal for Ontario did not
question those factual findings and allowed the federal Crown’s appeal only for
jurisdictional reasons.
[75]
It
will be for the Federal Court applications judge to assess these issues. As a
result, my comments should be seen as relevant only to my assessment here,
namely whether Ms. Larkman’s application for judicial review has sufficient
merit to warrant the granting of an extension of time. In my view, it does.
(c) Prejudice
[76]
Ms.
Larkman’s main ground in the application for judicial review is that there was
a fundamental defect in the process leading to the issuance of the Order in
Council. In her submission, this renders the Order in Council invalid.
[77]
Here,
the Attorney General points to the fact that this process happened sixty years
ago. Many witnesses have died. To the extent that anyone is still alive,
memories have surely faded. Documents may no longer be available.
[78]
This
would be an important consideration in a normal case. But this case is far
from normal. As mentioned above, the federal Crown had a full opportunity to
adduce evidence in the Ontario Superior Court of Justice and to test any
opposing evidence. In that Court, it did not complain that the passage of time
prejudiced it. From that emerged a series of factual findings and conclusions
based on a full evidentiary hearing – findings, conclusions, and evidence that
may well be admissible in the Federal Court proceedings.
[79]
In
effect, as things have turned out many years later, the parties took the
opportunity in the Ontario Superior Court of Justice to create a time capsule
of evidence and findings. No one complained at the time that the time capsule was
incomplete because of the disappearance of witnesses and documents over time.
Now we have Federal Court proceedings in which the same allegations are being
made. The contents of the time capsule are still available for use in the
Federal Court proceedings, subject to any decisions on admissibility by that
Court. In my view, there is no prejudice that should factor into our assessment
as to whether Ms. Larkman should receive an extension of time.
(d) A
reasonable explanation for the delay
[80]
Ms.
Larkman’s primary explanation is that from September 1995 until the Supreme
Court’s dismissal of her leave application in October 2009, she was pursuing
her rights in fora that she believed had the jurisdiction to grant her
the relief she sought. Only in October 2009 did it become clear to her that she
had to proceed in Federal Court.
[81]
There
are many cases where the Federal Court has granted an extension of time for
bringing an application for judicial review on the basis that a party wrongly,
but in good faith, proceeded in another court. I also note that there is no
evidence that the federal Crown ever complained about the delay from September
1995 to October 2009. I am prepared, in these circumstances and for the
“interests of justice” considerations below, to regard her multi-year quest
from September 1995 to October 2009, albeit in the wrong fora, to be a
satisfactory explanation for that delay.
[82]
On
this basis, Ms. Larkman should have started proceedings in the Federal Court in
November 2009. But she did not do so until September 2010. Earlier, I mentioned
that her inaction during this period also suggests that she might have
abandoned her intention to challenge the Order in Council.
[83]
Ms.
Larkman offers explanations for the delay during the period from November 2009
to September 2010, such as a change in counsel, a lack of financial resources,
and her residence in Timmins. These do not explain the delay.
[84]
Ms.
Larkman also notes that her grandmother died in August 2010 and the court
documents had to be redrafted. This does not explain the delay up until that
point. There is no evidence that her grandmother was ill before that time or
that Ms. Larkman faced demanding responsibilities to care for her.
(e) Overall
assessment
[85]
As mentioned
above, the
overriding consideration is that the interests of justice be served.
[86]
In
considering this, I am mindful that the Federal Court and this Court have
underscored the importance of the thirty day deadline in subsection 18.1(2) of
the Federal Courts Act. Many authorities suggest that unexplained
periods of delay, even short ones, can justify the refusal of an extension of
time: Powell v. United Parcel Service, 2010 FCA 286 at paragraph 3; Kobek
v. Canada (Attorney General), 2009 FCA 220 at paragraphs 2 and 5; McBean
v. Canada (Minister of Citizenship and Immigration), 2009 FC 1149; and many
others.
[87]
The
need for finality and certainty underlies the thirty day deadline. When the
thirty day deadline expires and no judicial review has been launched against a
decision or order, parties ought to be able to proceed on the basis that the
decision or order will stand. Finality and certainty must form part of our
assessment of the interests of justice.
[88]
Often
decisions or orders resolve important questions that impact many members of the
public. Often decisions or orders make it possible for other matters to go
ahead in the public interest. In these situations, the need for finality and
certainty is heightened. For example, soon after a decision on an environmental
assessment is made, the government, the proponent of the project and the wider
public need to know quickly whether the decision is final. An all-too-liberal
approach to the granting of an extension of time can interfere with this,
allowing applications for judicial review to pop up like a jack-in-the-box,
long after the parties have received the decision and have relied upon it.
[89]
In this case,
the rationale for a strict approach to the thirty day deadline carries less
force. This is a most unusual case. The Order in Council is very narrow. It
affects only Ms. Larkman and any descendants she might have. The ground for
challenge is very narrow. It concerns particular actions by particular people
at a particular time. Finality and certainty do not deserve as much prominence
in a case such as this. A late judicial review will not disrupt the
administration of justice or detrimentally affect the public interest.
[90]
The
overall question is this: is it in the interests of justice that the extension
of time be granted and the application for judicial review be permitted to
proceed?
[91]
This
question can be rephrased, incorporating many of the circumstances and considerations
discussed in these reasons. Although Ms. Larkman cannot satisfactorily
explain several months of delay, should she be permitted to continue her
multi-year quest – a quest with some potential merit that, if successful, will
affect only her and any descendants she may have, undo serious misconduct, and
reverse the effects of a policy condemned by a Royal Commission and our highest
Court as oppressive and discriminatory?
[92]
I
answer this in the affirmative.
F. Proposed disposition
[93]
Therefore,
like the Federal Court, I would grant Ms. Larkman’s motion for an extension of
time.
[94]
The
Federal Court ordered that Ms. Larkman may file her notice of application for
judicial review within fifteen days of its order. I would vary that part of the
Order to provide that Ms. Larkman may file her notice of application for
judicial review within fifteen days of the judgment of this Court. I would
otherwise affirm the Federal Court’s Order. I would grant Ms. Larkman her
costs.
“David Stratas”
“I
agree
John M. Evans J.A.”
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