Docket: T-300-17
Citation: 2017 FC 1093
Ottawa, Ontario, December 4, 2017
PRESENT: The Honourable Mr. Justice Brown
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BETWEEN:
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GERALD BRAKE
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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and
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FEDERATION OF NEWFOUNDLAND AND INDIANS
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Respondent
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ORDER AND
REASONS
I.
Nature of the Matter
[1]
This purports to be an appeal brought by the
Applicant from a direction issued by Prothonotary Aylen [the Prothonotary] on
October 5, 2017, made in the context of an application for judicial review [the
Direction]. The Applicant has a motion set for argument in March 2018, to
convert the application for judicial review into an action, and to have the
action certified as a class action. The Direction dismissed the Applicant’s
request to set a timetable for determining the Applicant’s underlying application
for judicial review. The underlying judicial review challenges certain membership
decisions made in connection with the Qalipu Mi'kmaq First Nation Band.
The Qalipu Mi'kmaq Band is a relatively recently created Indigenous
Band in Newfoundland and Labrador established under the Indian Act, RSC
1985, c I-5. The purpose of converting the application into a certified class
action would be to permit the Applicant and others to claim damages and other
relief not available in an application for judicial review.
[2]
After hearing argument on whether I should
entertain an appeal of the Direction, I dismissed the motion with reasons to
follow. My decision is in light of several decisions of the Federal Court of
Appeal that establish that motions judges of the Federal Court should not
entertain appeals from directions – as opposed to orders – issued by
Prothonotaries of this Court. The following are my reasons.
II.
Background Facts
[3]
In addition to the Applicant’s application for
judicial review, there were, at one time, three other related proceedings
before the Court, namely, David Robert Wells v Canada (Attorney General and
Federation of Newfoundland Indians (Court File Number: T-638-17) and Sandra
Frances Wells v Canada (Attorney General) and Federation of Newfoundland
Indians (Court File Number: T-644-17) [collectively, the “Wells Proceedings”)], and Douglas Doucette
v The Federation of Newfoundland Indians, the Qalipu Mi'kmaq First Nations Band
and Her Majesty the Queen in Right of Canada (Court File Number: T-402-17)
[Doucette].
[4]
The Attorney General of Canada [the AG] appears
to have reached an agreement with the applicants in the Wells Proceedings
to move their cases forward as test cases. The Applicant was not party to that
agreement, nor was he asked for input.
[5]
Also by way of background, the Prothonotary
struck the Amended Statement of Claim in the Doucette action,
without leave to amend, on November 3, 2017.
[6]
On May 3, 2017, in my capacity as case
management judge with the assistance of the Prothonotary, I issued a direction requiring
the parties to provide “a status report and proposed
timetable for completion of the next steps” in this application. As a
consequence, the Prothonotary held a case conference on June 5, 2017.
[7]
Counsel for the parties in this matter and
counsel in the Wells Proceedings and Doucette were present. The
Applicant asked that his motion to convert and certify be heard before the AG’s
motion to stay this proceeding in favour of the Wells Proceedings.
[8]
On June 6, 2017, the Prothonotary issued an
order granting the Applicant’s request: “[T]he
Applicant’s motion to certify this proceeding as a class proceeding and to
convert the application to an action shall be heard prior to the Respondent’s
stay motion.” The Prothonotary requested submissions respecting the
proposed timetable which were submitted thereafter.
[9]
The Prothonotary held another case conference on
June 14, 2017, this time to finalize the timetable in this proceeding. On June
15, 2017, Prothonotary Aylen issued a direction setting out the timetable for
the Applicant’s certification and conversion motion including dates to serve
affidavits (June 16, 2017 and October 16, 2017), complete cross-examinations
(November 16, 2017), and dates to serve and file motion records (November 30,
2017 and December 22, 2017). As already mentioned, I will hear the Applicant’s
conversion and certification motions in March 2018.
[10]
On July 18, 2017, the Applicant wrote to the AG
to propose that the Applicant’s judicial review application be determined on
the merits together with the Wells Proceedings, and that this determination
take place at the same time or shortly after the motion to convert his
application to an action and his motion to certify the action as a class
proceeding. This was opposed by the AG.
[11]
On July 27, 2017, the Applicant wrote to the
Prothonotary requesting a case management conference “to
address a proposal by the Applicant for a timetable for a determination of the
judicial review component of this proceeding”. The AG replied, noting
that the Applicant was aware that the Wells Proceedings and Doucette
were continuing along set timetables, and that the June 6, 2017 order of the
Prothonotary determined that the merits of the Applicant’s application were to
be determined after the Applicant’s conversion and certification motions and
the AG’s motion to stay (depending on the outcome of the certification motion).
[12]
On August 3, 2017, the Prothonotary requested
further details on the Applicant’s proposal, noting that, to date, the
Applicant had provided the Court with minimal details, particularly with
respect to the “judicial review issues” he was
seeking to have determined and on whose behalf those issues would be determined:
Oral directions received from the Court:
Mandy Aylen, Prothonotary dated 03-AUG-2017 directing that the Court is in
receipt of a request by the Applicant for an in-person case management
conference involving the parties in this proceeding and in T-638-17 and
T-644-17, to discuss a proposal being made by the Applicant that the judicial
review issues in this matter be determined at the same time as the judicial
review proceedings T-638-17 and T-644-17. The Respondent opposes the request
for an in person case management conference, as well as the proposal. The Court
is prepared to convene a case management conference to address the Applicant's
proposal, but not an in-person conference given the cost required for the
Attorney General to travel to Toronto. There is no reason why the issues related
to the Applicant's proposal cannot be canvassed by teleconference or
video-conference. Moreover, the Court is not prepared to compel counsel in the
Wells matters to attend the case management conference. They may attend
voluntarily to observe if they so choose. The Applicant has provided the Court with
minimal details regarding his proposal, particularly as it relates to what
"judicial review issues' he is seeking to have determined under his
proposed class (notwithstanding that there has been no certification of a
class) or on his personal behalf. Accordingly, the Applicant shall provide the
Court with a complete explanation of the exact proposal being put forward by no
later than August 9, 2017. The Applicant shall canvass the availability of
counsel for a case management conference during the month of August to address
his proposal and advise the Court by no later than August 9, 2017 of the
available dates and the parties' preference regarding video-conferencing or
teleconferencing. If there are no jointly convenient dates in August, the
Applicant shall provide the parties' availability for the period of September
19-29, 2017 placed on file on 03-AUG-2017. Confirmed in writing to the
party(ies).
[13]
The Applicant responded in correspondence dated
August 4, 2017, in which he requested that the merits be determined at the same
time as the conversion and certification motions.
[14]
After further correspondence, the Prothonotary
convened another case conference on October 5, 2017, to discuss the Applicant’s
proposal. The Applicant’s proposal was opposed by the applicants in the Wells
Proceedings, and by the Federation of Newfoundland Indians [FNI] (who
received status as a Respondent on August 9, 2017).
[15]
The Prothonotary issued the Direction on October 5, 2017, rejecting
the Applicant’s proposal to revise her previous direction, and confirmed that
the current timetable for the certification and conversion motions remained in
place. The Direction stated:
A case management conference was held on
October 5, 2017 to address the proposal raised by the Applicant in his letters
dated July 18, July 27 and August 4, 2017 to have the judicial review issues
raised in the proposed class proceeding determined on their merits at the same
time or immediately after the certification and conversion motions, and
together with the merits of the Wells applications. The Applicant’s proposal
was resisted by all other parties in the Brake proceedings and by all parties
in the Wells applications.
Having considered the submissions of the
parties, I decline to exercise my discretion to make the exceptional order
requested by the Applicant. The Applicant has chosen to bring forward his
issues by way of a proposed class proceeding and a timetable has been
established for the certification and conversion motions. The Applicant has
been aware of the Wells applications for many months and has chosen to continue
with his certification and conversion motions, rather than abandoning them and
seeking to have his application heard together with, or immediately after, the
Wells applications.
I find that it would not result in the most just and least expensive
determination of the Brake matter for the Court to compel the parties in the
Brake matter to prepare evidence on the merits of the judicial review for a
proposed class that has not yet been certified and in relation to questions of
law that have not yet been recognized as common to the proposed class.
Accordingly, the Applicant’s proposal is
rejected. The current timetable for the certification and conversion motion
remains in place.
[16]
The matter before the Court is what purports to
be an appeal from the Direction.
III.
Issue
[17]
The only issue is whether the Court should
entertain the Applicant’s purported appeal from the Direction.
IV.
Analysis
[18]
The law in connection with appeals from
directions has, in my view, been settled by the Federal Court of Appeal in two
decisions concerning purported appeals to this Court from directions issued by
a Prothonotary.
[19]
First, in Peak Innovations Inc. v Simpson
Strong-Tie Company, Inc., 2011 FCA 81 [Peak Innovations] per
Layden-Stevenson JA at paras 2 and 4, the Federal Court of Appeal ruled that an
appeal from a prothonotary’s direction ought not to be entertained in the first
instance:
[2] We are of the view that the appeal ought
not to have been entertained in the first instance. The jurisprudence of
this Court is well settled. No appeal lies from a direction: Froom v. The
Queen 2003 FCA 141. It follows that, in the circumstances of this matter,
no costs ought to have been awarded against the appellant.
[…]
[4] We would add that, in circumstances
where counsel is uncertain regarding, or wishes to challenge, the nature of a
direction arising from a case management conference, counsel is at liberty to
request, on motion, a formal order which sets out the substance of the
direction.
[Emphasis added]
[20]
I added the 4th paragraph of Peak
Innovations for completeness; it is not applicable because there is neither
uncertainty nor any issue with the nature of the Direction: the parties do not
take issue with the nature of the Direction which is clear.
[21]
The second decision of the Federal Court of
Appeal is to the same effect. In Tajdin v His Highness Prince Karim Aga Khan,
2012 FCA 238 [Tajdin], Dawson JA determined that the motions judge erred
by entertaining the appeal from the direction of a Prothonotary at para 4:
[4] We are of the view that the Motions
Judge erred by entertaining the appeal from the direction of the prothonotary.
The jurisprudence is well-established that no appeal lies from a direction (Peak
Innovations Inc. v. Simpson Strong-Tie Co., 2011 FCA 81, [2011] F.C.J. No.
330; Froom v. Canada (Minister of Justice), 2003 FCA 141, [2003] F.C.J.
No. 448).
[Emphasis added.]
[22]
These decisions are binding on me and I am not
persuaded they should be disregarded. Nor are they distinguishable from the
matter presently before me. They are based on the proposition that no appeal
lies from a direction; a proposition that neither party disputed, and which is
clear from Rule 51(1) of the Federal Courts Rules, SOR/98-106
[the Rules], which creates an appeal right to this Court in respect of “an order” of a Prothonotary, but not with respect to
directions. While the Rules, in particular, paragraph 385(1)(a)
authorize prothonotaries to make both orders and directions, the only appeal created
is in respect of orders. I take it as elementary that appeal rights must be
created by statute or regulation, or Rules in the case of prothonotaries.
[23]
The Federal Court of Appeal has consistently
concluded that there is no appeal from a direction: Peak Innovations at
para 2, Tajdin at para 4, and also see Froom v Canada (Minister of
Justice), 2003 FCA 141 [Froom] at para 3 per Evans JA to exactly the
same effect: “[n]o right of appeal lies from a
direction of the Court: Pellikaan v Canada, 2001 FCT 1415.”
[24]
In opposition, the Applicant points to cases
which he says have modified this established legal principle. However, and with
respect, I do not find his argument persuasive. While I agree the Federal Court
of Appeal entertained an appeal from a direction in Mazhero v Fox, 2014
FCA 200 [Mazhero] per Sharlow JA at paras 12 and 19, the direction at
issue put the Appellant in an impossible position:
[12] That leaves Mr. Mazhero in an
impossible position. He cannot pursue the two appeals that he was entitled to
commence, because the other parties have not taken the steps required to permit
him to file documents. At the same time Mr. Mazhero is left with no means by
which he can seek an order requiring them to perfect their claims or formally
abandon them.
…
[19] Mr. Mazhero is concerned that many of
the steps taken in this matter have been done by means of a direction rather
than an order. I share his concern. In my view, where a party or the Registry
is being compelled to take certain action or to refrain from taking a certain
action, an order should be made unless the Federal Courts Rules specifically
contemplate a direction (for example, Rule 72 dealing with the right of the
Registry to seek a direction as to the filing of irregular documents). By
exception, a direction is appropriate where it is required to guide the parties
or the Registry in matters of procedure, or to deal with a matter to which the
parties have consented or that for other reasons may reasonably be considered not
to be controversial. A direction should never be used in place of an order
where it is reasonable to consider that a party may wish to appeal.
[25]
In my respectful view, the situation for the
Applicant is distinguishable. First of all, the Direction does not put the
Applicant in an impossible position. His judicial review may still be
determined, albeit on a timetable with which he disagrees. In addition, in
these circumstances, the direction was appropriate to guide the parties on the
procedure to follow in this matter. Scheduling timetables should not normally be
seen as controversial, but rather, as routine matters for prothonotaries.
[26]
The Applicant also relies on para 19 of Mazhero
to say, in effect, that the Prothonotary should have issued an order instead of
the Direction and if he is right, he must therefore have a right of appeal. But
to accept that submission, it seems, to me, would be to permit the same
argument to be made in respect of any direction, thereby creating a
non-statutory right of appeal under the guise of reviewing the characterization
of the Prothonotary’s decision - i.e., is it an order or a direction? I am
not persuaded the Federal Court of Appeal intended its decisions in Mazhero
to create an appeal where none is created by the Rules particularly in
the face of its direct conclusion in Peak Innovations and Tajdin that
there is no such right of appeal in the first place.
[27]
The Applicant also relies upon Ewonde v
Canada, 2017 FCA 112 [Ewonde] per Trudel JA at paras 21 and 23.
There, the Federal Court of Appeal entertained an appeal from a direction. However,
as with Mazhero, it does not appear that the Federal Court of Appeal’s decisions
in Peak Innovation and Tajdin were considered. In fact, Ewonde
involved a direction that denied the Applicant’s fundamental language rights. In
my respectful view, one cannot compare the Court’s denial of fundamental
language rights, to the rejection of one timeline in favour of another in the
circumstances of a given case.
[28]
In Mazhero, the Federal Court of Appeal
intervened to prevent the Applicant from being put in an impossible position,
and again intervened in Ewonde to protect fundamental language rights. I
note no such fundamental rights are at issue in the matter at hand; the only
issue is the timetable for hearing the Applicant’s judicial review arguments. The
Applicant argues that this is not simply a timetable issue, but that the issue
is whether he can proceed with a separate motion. That is not correct. The
issue is when, not whether, he will be able to proceed.
[29]
In this connection, I note Tajdin
concerned a direction issued in respect of a timetable, as indeed did the
Federal Court of Appeal’s earlier decision in Froom upon which both Peak
Innovations and Tajdin rely.
[30]
In my respectful view, not only the Rules,
but binding decisions of the Federal Court of Appeal preclude me from
entertaining this purported appeal.
[31]
As a consequence, the appeal is dismissed. Both
Respondents requested costs in that they were successful. The Applicant opposed
because the matter arose in the context of a proposed certified class action in
respect of which Rule 334.39 generally says there shall be no costs. In the
circumstances, the parties shall bear their own costs.
ORDER
THIS COURT’S
JUDGMENT IS that the Applicant’s appeal from the Direction of Prothonotary Aylen
dated October 5, 2006 is dismissed without costs.
“Henry S. Brown”
FEDERAL
COURT
SOLICITORS
OF RECORD
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