Date: 20030107
Docket: A-646-02
Neutral Citation: 2003 FCA 5
Present: MR. JUSTICE DÉCARY
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JOCELYN DUSSAULT
Respondent
Written motion decided without appearance of the parties.
Order delivered in Ottawa, Ontario, January 7, 2003.
REASONS FOR ORDER: DÉCARY J.A.
Date: 20030107
Docket: A-646-02
Neutral Citation: 2003 FCA 5
Present: MR. JUSTICE DÉCARY
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
JOCELYN DUSSAULT
Respondent
ORDER AND REASONS FOR ORDER
DÉCARY J.A.
[1] The Attorney General of Canada (the applicant) appeals through an application for judicial review of a decision delivered by an umpire in favour of the beneficiary (the respondent). In his reasons, the umpire rejected a number of arguments cited by the respondent but ultimately found in his favour on the basis of another argument.
[2] The respondent, who intends to show that the umpire erred in rejecting one or more of the other arguments he had raised, wonders what procedure he should follow. Should he file an incidental application for judicial review, notwithstanding that the impugned decision was ultimately in his favour? Or should he make his submissions in the respondent's proceeding, leaving it to the Court to spell out the procedures that the parties ought to follow in the preparation of their respective records?
[3] The applicant, on the other hand, suggests that, by analogy with the rules governing the cross-appeal (Rules 341 et seq.), the respondent could either file a cross-application for judicial review that would identify that part of the reasons that he wishes to attack, or file a notice of his intention to attack those reasons. The parties would then file a joint judicial review record composed of exhibits relevant to both applications; the applicant would file his memorandum thirty days later as applicant; the respondent would then file within thirty days a memorandum containing his submissions as respondent and his submissions as a "cross" applicant; the applicant, finally, would have thirty days within which to file his memorandum in reply as the "cross" respondent.
[4] I hasten to note the good faith and cooperative spirit demonstrated by Mr. Jean-Guy Ouellet, the respondent's counsel, and Ms. Carole Bureau, the applicant's
counsel.
[5] A party that wins but does not necessarily endorse the reasons given certainly has no interest in attacking the judgment, whether by an appeal or by an application for judicial review. Technically, it is the disposition that is attacked, not the reasons leading up to it. It is equally certain, however, that if the adverse party attacks the judgment, the party that won has the right, in its memorandum if it is an appeal or in its record if it is an application for judicial review, to go after the reasons for judgment that are under attack in order to improve them, if appropriate, or, as in this case, to demonstrate their lack of merit and even to have the appeal or application dismissed on grounds other than those adopted by the trial judge.
[6] In an appeal, this situation presents few problems since the parties, under Rule 341, determine by mutual agreement the content of the appeal book. The respondent will as a rule be able at that point to insist that the appeal book contain the documents on which he will base his memorandum and if that memorandum (extended, where applicable, by leave of the Court) attacks some of the reasons for judgment at trial that were not attacked by the appellant, the latter will, on a motion, be granted leave to file a supplementary memorandum.
[7] In an application for judicial review, the applicant, as a rule, begins by filing his own affidavits (Rule 306), to which the respondent may reply by filing his own (Rule 307), and then the applicant files his own record, which includes his memorandum (Rule 309), to which the respondent will reply by filing his own (Rule 310). Rule 312(c) allows the parties to file, with leave of the Court, a supplementary record.
[8] Although the approach taken by counsel in this case is, technically speaking, not necessary, since the respondent would have had the option of filing a record containing the documents he needs and a memorandum in which he could attack the reasons for judgment, it is nevertheless fortunate since it will facilitate the work of the Court and of the counsel themselves. However, I will reject the applicant's proposal, which would have led to the filing of a cross-application for judicial review - which would complicate the nature of the proceedings - and adopt instead the suggestion that a detailed notice be filed.
[9] Accordingly, I issue the following order:
- the respondent shall file an amended notice of appearance, which shall contain, as if Form 301 applied, a description of the position he intends to argue and the documents on which he intends to rely;
- the applicant, within thirty days of the filing of the amended notice of appearance, shall file a joint record, Rule 343 applying with the necessary adaptations;
- within thirty days of the filing of the joint record, the applicant shall file his memorandum;
- within thirty days of the filing of the applicant's memorandum, the respondent shall file a memorandum in two parts, one replying to the applicant's memorandum, the other setting out the reasons why he is attacking some of the reasons that the applicant is not attacking;
- within thirty days of the filing of the respondent's memorandum, the applicant shall file a memorandum in reply to the second part only of the respondent's memorandum.
[10] I note that the parties have not raised the issue of the affidavits they intend to submit in support of their respective submissions. They will have the option of presenting a motion to the Court should that become necessary.
"Robert Décary"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO: A-646-02
STYLE: A.G.C. v. Jocelyn Dussault
ORDER DELIVERED AT: Ottawa, Ontario
REASONS FOR ORDER: Décary J.A.
DATE OF REASONS: January 7, 2003
WRITTEN MOTION DECIDED WITHOUT APPEARANCE OF PARTIES
WRITTEN SUBMISSIONS BY:
Carole Bureau FOR THE APPLICANT
Jean-Guy Ouellet FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPLICANT
Ouellet, Nadon & Associés
Montréal, Quebec FOR THE RESPONDENT
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