Docket: 14-A-38
Citation: 2014 FCA 182
Present: STRATAS
J.A.
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BETWEEN:
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FORESTETHICS ADVOCACY ASSOCIATION,
LIVING OCEANS SOCIETY and RAINCOAST CONSERVATION FOUNDATION
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Applicants
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and
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ATTORNEY GENERAL OF CANADA, NATIONAL ENERGY BOARD and NORTHERN
GATEWAY PIPELINES INC.
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Respondents
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REASONS
FOR ORDER
STRATAS J.A.
[1]
There are ten related applications for leave
currently before this Court. Those applications are governed by a direction of
this Court. Among other things, the direction sets out certain procedures to be
followed and filing deadlines.
[2]
Northern Gateway Pipelines Limited Partnership,
a respondent in many of the ten applications, seeks changes to the direction.
In particular, it seeks an order permitting the respondents to file one motion
record in response to all of the applications – in effect, a request for
consolidation of the ten applications – and also an adjustment to the filing
deadlines for the responding and reply materials.
[3]
To illustrate the changes it seeks, Northern
Gateway helpfully sets out how the relevant paragraph of the direction would
look if its requests were to be accepted. In that paragraph, it provides for
the respondents to be able to file memoranda of fact and law of up to 85 pages,
almost three times the page limit set by Rule 70 of the Federal Courts Rules,
SOR/98-106, as amended. I have taken this as a request to increase the page
limit.
[4]
For the reasons that follow, I will consolidate
the applications and adjust the filing deadlines. However, I reject the request
for an increase in the page limit.
A. Background
to the applications for leave
[5]
The ten applications for leave arose after the
enactment of Order in Council, P.C. 2014-809 (Canada Gazette, vol. 148,
no. 26, p. 1645) made by the Governor in Council under subsection 54(1) of the National
Energy Board Act, R.S.C. 1985, c. N-7. The
Governor in Council directed the National Energy Board to issue certificates of
public convenience and necessity concerning Northern Gateway’s pipeline
project. The National Energy Board has issued those certificates (nos. OC-060
and OC-061).
[6]
Nine of the ten applications have been brought
under subsection 55(1) of the National Energy Board Act, supra.
In them, the applicants seek leave to apply for judicial review of the Order in
Council. The nine applications are as follows:
•
14-A-39 (Forestethics Advocacy Association,
Living Oceans Society and Raincoast Conservation Foundation v. Attorney General
of Canada and Northern Gateway Pipelines Limited Partnership)
•
14-A-41 (Gitxaala Nation v. Attorney General
of Canada, Northern Gateway Pipelines Inc. and Northern Gateway Pipelines
Limited Partnership)
•
14-A-42 (Kitasoo Xai’Xais Band Council on
behalf of all members of the Kitasoo Xai’Xais Nation and Heiltsuk Tribal
Council on behalf of all members of the Heiltsuk Nation v. Her Majesty the
Queen and Northern Gateway Pipelines Limited Partnership)
•
14-A-43 (Federation of British Columbia
Naturalists carrying on business as B.C. Nature v. Attorney General of Canada
and Northern Gateway Pipelines Limited Partnership)
•
14-A-44 (Unifor v. Attorney General of Canada and Northern Gateway Pipelines Limited Partnership)
•
14-A-45 (Haisla Nation v. Attorney General of
Canada, Northern Gateway Pipelines Limited Partnership and Northern Gateway
Pipelines Inc.)
•
14-A-46 (Gitga’at First Nation v. Attorney
General of Canada and Northern Gateway Pipelines Limited Partnership)
•
14-A-47 (The Council of the Haida Nation and
Peter Lantin, suing on his own behalf and on behalf of all citizens of the
Haida Nation v. Attorney General of Canada, Northern Gateway Pipelines Limited
Partnership and Northern Gateway Pipelines Inc.)
•
14-A-48 (Martin Louie, on his own behalf and
on behalf of all Nadleh Whut’en, and Fred Sam, on his own behalf, on behalf of
all Nak’Azdli Whut’en, and on behalf of the Nak’Azdli Band v. Attorney General
of Canada and Northern Gateway Pipelines Inc. on behalf of Northern Gateway
Pipelines Limited Partnership)
[7]
The tenth application has been brought under
subsection 22(1) of the National Energy Board Act, supra. It
seeks leave to appeal the certificates of convenience and necessity issued by
the National Energy Board. The file is 14-A-38 (Forestethics Advocacy
Association, Living Oceans Society and Raincoast Conservation Foundation v.
Attorney General of Canada, National Energy Board and Northern Gateway
Pipelines Inc.).
B. Background
to this motion
[8]
Northern Gateway brought this motion informally
by way of letter dated July 15, 2014. The following letters have been filed in
response:
•
Letter dated July 15, 2014 of counsel for the
Attorney General of Canada and Her Majesty the Queen, a respondent in all ten
applications;
•
Letter dated July 15, 2014 of counsel for the
Gitxaala Nation, the applicant in 14‑A-41;
•
Letter dated July 16, 2014 of counsel for the
Kitasoo Xai’Xais Band Council and the Heiltsuk Tribal Council, applicants in
14-A-42;
•
Letter dated July 17, 2014 of counsel for the
Haida Nation, an applicant in 14‑A‑47.
All counsel involved in all applications
have been copied on all letters.
[9]
As is apparent, the parties have proceeded by
way of exchange of informal letters, rather than a formal motion record. In
this instance, this is acceptable to the Court. The facts underlying their
positions – largely evident from the Court files – are straightforward and not
in dispute, the relief sought is relatively simple, there is a large degree of
agreement among the parties, and speed is of the essence.
[10]
This Court issued a direction on July 3, 2014
and amended it on July 8, 2014. That direction specified, among other things,
certain procedures and deadlines. As mentioned at the outset of these reasons,
Northern Gateway seeks to adjust this direction somewhat, asking for
consolidation, revised filing deadlines and an increase in the page limit for
the respondents’ memoranda.
C. The
parties’ positions on the motion
[11]
The respondent Attorney General supports
Northern Gateway’s motion.
[12]
The Gitxaala Nation, Kitasoo Xai’Xais Band
Council, Heiltsuk Tribal Council and Haida Nation do not oppose Northern
Gateway’s consolidation request or the deadline for the respondents to file
their response. However, they seek slightly more time for their replies. The
letter from counsel for the Gitxaala Nation advises that the applicants in all
files except for 14-A-44 and 14-A-48 agree with this position. The position of
the applicants in those files is unknown.
D. Consolidation
[13]
An order will issue consolidating all ten
applications before the Court. They all arise from the same matter and they
have similar facts and law. Consolidating the files will allow the respondents
to prepare one record, rather than ten separate records. This achieves
significant cost savings and is convenient for the parties and the Court.
[14]
The Haida Nation, although not objecting to
consolidation, expresses concern that the plethora of issues raised by others
might drown out its more narrow submission or result in confusion.
[15]
That concern can be quickly dismissed. The
respondents are expected to respond to all the parties’ submissions that have
some force. If not, they do so at their own peril. And the Court will carefully
study and consider the submissions of the Haida Nation, as it will for all
parties.
E. Filing
deadlines
[16]
Northern Gateway asks that the respondents be
given until July 28, 2014 to respond to the applications.
[17]
This is a modest extension of the time set out
in the Court’s earlier direction, an extension made necessary by the large
volume of materials – several thousands of pages – to which it must respond.
[18]
July 28, 2014 is very soon upon us and the
parties’ submissions were sent to me only a couple of days ago. The respondents
may have to adjust as a result of this Court’s decision on the motion.
Therefore, the Court is prepared to give the respondents a little more time
after July 28 to file their records. The Court will set August 1, 2014 as the
deadline.
[19]
In its submissions in support of its motion,
Northern Gateway proposes that the applicants have only one week after
receiving the respondents’ records to reply. In response, various applicants
seek two weeks to file their replies. For the same reasons that justify extra
time for the respondents, some extra time is justified for the replies. This
Court shall set August 12, 2014 as the deadline for the replies.
F. Increasing
the page limit for the respondents’ memoranda
[20]
Northern Gateway requests that the respondents
be able to file 85 page memoranda. As mentioned at the outset of these reasons,
I reject this.
[21]
Rule 70 of the Federal Courts Rules, supra
specifies that the page limit is 30 pages. It repeats the word “concise” three
times. The 30 page limit and the thrice-repeated requirement of conciseness
apply to even the most complex, high-stakes appeals on the merits. Accordingly,
the presence of “important and complicated questions,” by
itself, does not justify an increase in the page limit: Canada v. General Electric Capital Canada Inc., 2010 FCA 92
at paragraph 5.
[22]
Rule 70 also uses the word “memorandum,” not
“encyclopaedia.” The aim of Rule 70 is to have counsel advance only central and
important points, not everything that can possibly be imagined. The best
memoranda target the controlling idea of the case – the particular part of the
legal test upon which the case will turn. Then, after a smattering of orienting
information, they deploy only the facts and authorities relevant to their
position on the controlling idea. And throughout, they supply accurate
citations so we can verify what we have been told and investigate the finer
details.
[23]
Sadly, that is not the norm. All too often, we
are dragged through blizzards of trivia, ponderous explanations of the
elementary or inconsequential, bald assertions without demonstration or
citation, repetitive submissions, block quotes of boggling length, and summary
after summary of case law with no selection, distillation or synthesis. These
bloat the page count and dissipate the force of the argument, sometimes to the
vanishing point. My former colleague, Justice John Evans, who read thousands of
memoranda during his exemplary career, put it well:
Conciseness is a virtue which is always in
demand but, in my experience, often conspicuous by its absence from memoranda
of fact and law filed in this Court. I do not recall an occasion when I thought
that the expansion of a memorandum by another 10 pages would have improved things.
Quite the contrary, in fact.
(Sawridge
Band v. Canada, 2006 FCA 52 at paragraph 20;
see also Justice John I. Laskin, “Forget
the Windup and Make the Pitch: Some Suggestions for Writing More Persuasive
Factums” (1999) 18 Adv. Soc. J. No. 2, at pages 3-12 and Justice Marvin A.
Catzman, “The Wrong Stuff: How to Lose Appeals in the Court of Appeal” (2000)
19 Adv. Soc. J. No. 1 at pages 1-5.)
[24]
For these reasons, requests to increase the 30
page limit in this Court are “granted sparingly” and are exceptional: General
Electric, supra at paragraph 5.
[25]
In this case, the threshold of exceptionality
has not been not met. I have reviewed the applicants’ memoranda and the
originating documents in the ten applications to investigate whether longer
responding memoranda are justified. I conclude they are not. Almost none of the
relevant factors supporting an increase in the page limit are present here: General
Electric, supra at paragraph 5.
[26]
The only factor that might justify an increase
is the large number of submissions to which the respondents must respond. However, several considerations offset this. First, while the
various applicants do have different perspectives and circumstances, many of
the issues and submissions they raise are similar if not identical. Second, the
respondents’ focus should not be the broad, overall, definitive merits of the
matter. Rather, their focus should be narrower: the absence of any issues that
are reasonably arguable and the presence of any other factors demonstrating
that leave is contrary to the interests of justice. Finally, there are two sets
of respondents: the Northern Gateway respondents and the government
respondents. If they work together, each respondent might be able to adopt
whole sections of submissions advanced by the other in just a single sentence.
[27]
For the foregoing reasons, I deny the request
for an increase in the page limit.
[28]
An order shall issue in accordance with these
reasons.
"David Stratas"
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