Date: 20030319
Docket: A-714-01
Citation: 2003 FCA 146
CORAM: ROTHSTEIN J.A.
PELLETIER J.A.
MALONE J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as
represented by THE MINISTER OF FISHERIES AND OCEANS;
ATTORNEY GENERAL OF CANADA,
Appellants
and
HELIODORE AUCOIN, LUCIEN CHIASSON, ROMEO
CORMIER, AURELIEN HACHE, GUY HACHE, RHEAL HACHE,
ROBERT F. HACHE, JEAN-PIERRE LEBOUTHILLIER,
ALBANIE NOEL, ALPHEE NOEL, JOSEPH NOEL, LEVI NOEL,
LORENZO NOEL, MARTIN NOEL, MATHURIN NOEL,
NICHOLAS NOEL, ONESIME NOEL, RENALD NOEL,
RAYMOND NOEL, SERGE NOEL, JEAN-CAMELLE ROUSSEL,
DONAT VIENNEAU, RHEAL VIENNEAU, GILLES NOEL, LE
FONDS DE SOLIDARITE DE L'INDUSTRIE DU CRABE DES
NEIGES INC.; and LE PARTENARIAT DU CRABE DES NEIGES INC.
Respondents
Heard at Fredericton, New Brunswick, on March 19, 2003.
Judgment delivered from the Bench at Fredericton, New Brunswick, on March 19, 2003.
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
Date: 20030319
Docket: A-714-01
Citation: 2003 FCA 146
CORAM: ROTHSTEIN J.A.
PELLETIER J.A.
MALONE J.A.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, as
represented by THE MINISTER OF FISHERIES AND OCEANS;
ATTORNEY GENERAL OF CANADA,
Appellants
and
HELIODORE AUCOIN, LUCIEN CHIASSON, ROMEO
CORMIER, AURELIEN HACHE, GUY HACHE, RHEAL HACHE,
ROBERT F. HACHE, JEAN-PIERRE LEBOUTHILLIER,
ALBANIE NOEL, ALPHEE NOEL, JOSEPH NOEL, LEVI NOEL,
LORENZO NOEL, MARTIN NOEL, MATHURIN NOEL,
NICHOLAS NOEL, ONESIME NOEL, RENALD NOEL,
RAYMOND NOEL, SERGE NOEL, JEAN-CAMELLE ROUSSEL,
DONAT VIENNEAU, RHEAL VIENNEAU, GILLES NOEL, LE
FONDS DE SOLIDARITE DE L'INDUSTRIE DU CRABE DES
NEIGES INC.; and LE PARTENARIAT DU CRABE DES NEIGES INC.
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench at Fredericton, NB, on March 19, 2003)
ROTHSTEIN J.A.
[1] The Crown appeals a direction of a Motions Judge of December 7, 2001, that certain monies held by a corporation incorporated under the laws of New Brunswick "be paid in trust to the applicants' counsel". The corporation was a party in a judicial review allowed by the Judge on July 17, 2001. The judicial review judgment itself was not appealed.
[2] The Crown says the Motions Judge was without jurisdiction to make a direction against a provincial corporation. The respondents say the matter is moot. They say the monies ordered to be paid by the Judge have been paid. Crown counsel says that if the appeal is allowed, the Crown will not be seeking the return of any funds.
[3] The appeal on the jurisdictional issue is, therefore, moot.
[4] However, the Crown argues that this Court should exercise its discretion under the circumstances set forth in Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, to hear and decide the appeal even though it is moot. The Crown says there is an action proceeding in the Trial Division against the Crown and that the direction of the Motions Judge may be used by the plaintiffs against the Crown to support their action.
[5] Counsel for the respondents says that there is nothing in the Judge's direction that would entitle the plaintiffs in the Trial Division action to a remedy against the Crown (he does not say the same about the decision of the Judge to allow the judicial review, but that decision is not before us on this appeal). He also points out that there is no adversarial relationship involving the Crown in respect of the direction, as the direction did not affect the Crown, only the provincial corporation directed to pay out funds.
[6] The Crown says the issue here is one of jurisdiction and that the objective of judicial economy will best be served by this Court hearing and deciding the appeal. We do not agree. This case involves a very particular set of circumstances. While it may be that, generally, a judge may not have jurisdiction to make an order respecting the payment of money as a result of a decision on an application for judicial review (a subject on which we need not express an opinion), it would seem likely that the facts in a particular judicial review would have some bearing on that question. That being the case, we are not persuaded that a decision in this appeal will have far-reaching consequences in respect of a question of general jurisdiction of the Court on applications for judicial review.
[7] Therefore, we will not exercise our discretion to hear and decide the jurisdictional question raised in this appeal.
[8] The Crown also appeals the Order of the Motions Judge dated December 7, 2001, ordering it to pay costs of $4,000 to the applicants before him (the respondents before this Court except Le Fonds de Solidarité de l'Industrie du Crabe des Neiges Inc. and Le Partenariat du Crabe des Neiges Inc.) The Order of Costs pertains to submissions leading to the direction for payment that was the subject of the jurisdictional appeal which we have found to be moot. The basis of the Order of Costs was first, that the question of the court's jurisdiction should have been raised at an earlier time when an Order was made that certain amounts be held in trust; and second, that the question of jurisdiction was of no concern to the Crown.
[9] We agree with the Crown that these were not appropriate bases upon which to ground an Order for Costs. It is true that the question of jurisdiction had not been raised earlier. However submissions on the question of payment were called for by the Court and we see nothing inappropriate about the Crown raising an issue of the jurisdiction of the Court to order payment in the submissions. Further, although the question of the Court's jurisdiction was not with respect to an order made against the Crown, as a general rule, we see no reason why any party to a proceeding may not raise a question of the Court's jurisdiction, provided the question of jurisdiction is relevant to the issue to be decided.
[10] We would note that the Order of Costs might be interpreted as reflecting some criticism of Crown counsel by the Judge. We do not read the Order that way. In any event, we are satisfied there was no inappropriate conduct on the part of Crown counsel.
[11] The Crown says that there should be a reduction in the amount of costs awarded to reflect the inappropriate bases of the award. Opposing counsel submits that irrespective of the reasons given, an award of costs of $4,000 is appropriate. Having heard submissions as to the amount of solicitor and client costs incurred with respect to the issue of jurisdiction in the payment proceedings, we cannot say that $4,000 party-party costs, which include disbursements, is inordinate or unreasonable. We would not disturb the amount of the award.
[12] The Crown also appeals the order of costs in favour of the Le Partenariat du Crabe des Neiges Inc. and Le Fonds De Solidarite de l'Industrie du Crabe des Neiges Inc. of $500 each in respect of an aborted telephone conference. Having heard argument on this point, we have not been persuaded that we should interfere with the exercise of discretion by the Motions Judge.
[13] The appeal will be dismissed. The respondents will be entitled to costs in this Court of $2,500 inclusive of disbursements.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-714-01
STYLE OF CAUSE Her Majesty the Queen in Right of Canada, as
Represented by the Minister of Fisheries and Oceans;
Attorney General of Canada, - and- Heliodore Aucoin, Lucien Chiasson, Romeo Cormier, Aurelien Hache, Guy Hache, Rheal Hache,Robert F. Hache, Jean-Pierre Lebouthillier, Albanie Noel, Alphee Noel, Joseph Noel, Levi Noel, Lorenzo Noel, Martin Noel, Mathurin Noel,
Nicholas Noel, Onesime Noel, Renald Noel, Raymond Noel, Serge Noel, Jean-Camelle Roussel, Donat Vienneau, Rheal Vienneau, Gilles Noel, Le Fonds de Solidarité de l'Industrie du Crabe des Neiges Inc.; and Le Partenariat du Crabe des Neiges Inc.
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: March 19, 2003
REASONS FOR JUDGMENT
OF THE COURT: (ROTHSTEIN, PELLETIER & MALONE JJ.A)
RENDERED FROM THE
BENCH BY: ROTHSTEIN J.A.
APPEARANCES:
Mr. Michael Donovan FOR THE APPELLANT
Mr. David N. Rogers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR THE APPELLANT
Gilbert McGloan Gillis
Saint John, New Brunswick FOR THE RESPONDENT
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