Chicot v. Canada (Minister of Indian Affairs and Northern Development), 2006 FC 1425

Date: 20061124

Docket: T-1996-05

Citation: 2006 FC 1425

BETWEEN:

LLOYD CHICOT suing on his own behalf and

on behalf of all Members of the Ka’a’Gee Tu First Nation

and the KA’A’GEE TU FIRST NATION

Applicants

and

MINISTER OF INDIAN AND

NORTHERN AFFAIRS CANADA and

PARAMOUNT RESOURCES LTD.

Respondents

REASONS FOR ORDER

PHELAN J.

[1]               The Applicants appeal a decision of Prothonotary Lafrenière denying their motion that the Mackenzie Valley Land and Water Board produce all the records in its possession:

(a)                pertaining to the appointment of Mr. Burlingame to the Mackenzie Valley Land and Water Board, including the original list of nominees provided by the Board to the Minister, all records evidencing communication between the Minister, the Board and Mr. Burlingame regarding the list of nominees and/or his appointment, and all internal records of the Board on the subject of the appointment of the Chair of the Board (sometimes called the “Appointment Records”); and

(b)               of (sic) communications between Mr. Burlingame and the Minister and his Department, INAC, since the date of Mr. Burlingame’s appointment as Chair of the Board (sometimes referred to as “Interest Records”).

[2]               On this appeal, the Applicants did not request an order for production of those records described in item (b).

[3]               The original motion before Prothonotary Lafrenière was dealt with in writing under Rule 369 of the Federal Courts Rules. Prior to the motion for these records, there had been an amendment of the Notice of Application. The amendment and the circumstances surrounding it appear to be the source of misunderstanding as to the Applicants’ grounds for judicial review and the relevance of the requested documents.

[4]               This misunderstanding is evident from the comment by Prothonotary Lafrenière that the Applicants had withdrawn their allegation that the Minister acted illegally and ultra vires his powers in appointing Todd Burlingame as Chair of the Board. From this, Prothonotary Lafrenière drew the conclusion that these Appointment Records were no longer relevant and that the Applicants were engaged in a collateral attack on the Minister’s decision to appoint Mr. Burlingame.

[5]               Both the Board and the Minister (Paramount Resources Ltd. did not appear) confirmed at the hearing of this appeal that they too understood that the Applicants had withdrawn their challenge to the appointment.

[6]               The original Notice of Application had named Mr. Burlingame as a party and had sought a declaration that the Minister had acted illegally and ultra vires his powers in appointing Mr. Burlingame.

[7]               However, before me the Applicants confirmed that the appointment of Mr. Burlingame is a live issue and while there was a change to the parties (Mr. Burlingame having been deleted) and to the relief requested, the grounds for relief, particularly paragraph 54, raises the illegality of the decision in which Mr. Burlingame participated due to the illegality of his appointment.

[8]               Therefore, both the Respondent and Prothonotary Lafrenière were proceeding on a misapprehension of the matters in issue. This justifies a review of Prothonotary Lafrenière’s decision. (Merck & Co.  v. Apotex Inc. 2003 FCA 488, [2003] F.C.J. No. 1925 (QL))

[9]               As to the issue of relevance, the Applicants were not in a position to challenge the Minister’s appointment when it was made because they were not involved in any process before the Board or otherwise affected by the appointment. A judicial review of the Minister’s decision could not have been raised sooner. The attack now is that Mr. Burlingame is disqualified to sit on the Board’s proceeding under judicial review because of flaws in his appointment process. As that plea has not been struck, those records which were requested relating to Mr. Burlingame’s appointment become relevant to the litigation.

[10]           Therefore, this appeal will be allowed without costs and the Appointment Records will be ordered produced on an expedited basis to accommodate the schedule for the judicial review hearing.

“Michael L. Phelan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          T-1996-05

STYLE OF CAUSE:                          LLOYD CHICOT suing on his own behalf and on behalf of all Members of the Ka’a’Gee Tu First Nation and the KA’A’GEE TU FIRST NATION

                                                            and

                                                            MINISTER OF INDIAN AND NORTHERN AFFAIRS CANADA and PARAMOUNT RESOURCES LTD.

PLACE OF HEARING:                    Vancouver, British Columbia

DATE OF HEARING:                      November 20, 2006

REASONS FOR ORDER:               Phelan J.

DATED:                                             November 24, 2006

APPEARANCES:

SOLICITORS OF RECORD: