Pauktuutit, Inuit Women's Assn. v. Canada, 2003 FCT 139

Date: 20030210

Docket: T-1520-01

T-1521-01

T-1522-01

T-1523-01

Neutral citation: 2003 FCT 139

Docket: T-1520-01

BETWEEN:

                                            PAUKTUUTIT, INUIT WOMEN'S ASSOCIATION

                                                              AND VERONICA DEWAR

                                                                                                                                                     Applicants

                                                                                 and

                                                           HER MAJESTY THE QUEEN

                                                                                                                                                  Respondent

Docket: T-1521-01

BETWEEN:

                                            PAUKTUUTIT, INUIT WOMEN'S ASSOCIATION

                                                              AND VERONICA DEWAR

                                                                                                                                                     Applicants

                                                                                 and

                                                           HER MAJESTY THE QUEEN

                                                                                                                                                  Respondent

Docket: T-1522-01

BETWEEN:

                                            PAUKTUUTIT, INUIT WOMEN'S ASSOCIATION

                                                              AND VERONICA DEWAR

                                                                                                                                                     Applicants

                                                                                 and

                                                           HER MAJESTY THE QUEEN

                                                                                                                                                  Respondent

Docket: T-1523-01

BETWEEN:

                                            PAUKTUUTIT, INUIT WOMEN'S ASSOCIATION

                                                              AND VERONICA DEWAR

                                                                                                                                                     Applicants

                                                                                 and

                                                           HER MAJESTY THE QUEEN

                                                                                                                                                  Respondent

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  The Crown moved to strike out this judicial review proceeding, T-1520-01 and three others, T-1521-01, T-1522-01 and T-1523-01, which all involve the same parties. These reasons apply to all four proceedings. The principal ground for striking out, in the case of the first three proceedings, is mootness. In the fourth proceeding, T-1523-01, the grounds are that there is no factual foundation for judicial review. In each instance the Crown also contends that the 30-day limitation period provided for by section 18.1(2) of the Federal Court Act has been breached.

[2]                  The proceedings seek to review the Crown's decisions, first, that of excluding or failing to consult the Applicants during constitutional talks leading to the Meech Lake Accord (T-1520-01); second, failure to consult the Applicants leading up to the Charlottetown Accord (T-1521-01); third, while national aboriginal organizations and to consult with them pursuant to section 35.1 of the Constitution Act, 1988, excluding the Applicants both as to funding and consultation (T-1522-01); and finally, excluding the Applicants from the founding board of directors of the Federal Aboriginal Health Institute (T-1523-01). The Aboriginal Health Institute is now called the Organization for the Advancement of Aboriginal People's Health.

[3]                  At the conclusion of the hearing I struck out proceedings T-1520-01, T-1521-01 and T-1522-01, but allowed T-1523-01 to proceed. These are the reasons for that decision, beginning with some relevant background.

BACKGROUND

[4]                  The Pauktuutit Inuit Women's Association ("Pauktuutit") reflects, in its mandate, the concern of Inuit women at local, regional and national levels. Part of its mandate is to foster awareness of the needs of Inuit women and to encourage their participation, at all levels, in matters social, cultural and economic.

[5]                  Leading up to the 1987 Meech Lake Accord the Crown consulted with and funded four aboriginal organizations, which it recognised as national aboriginal representative organizations, but failed to consult any aboriginal women's group and specifically, Pauktuutit says, decided not to fund Pauktuutit, thus discriminating against Inuit women contrary to the Charter. Moreover, Pauktuutit was denied a seat at the discussions, again said to amount to discrimination.

[6]                  In the case of the 1992 Charlottetown Accord, Pauktuutit was again not designated by the Crown as a national aboriginal representative organization, the result being that aboriginal women had no representation, funding, or right to take part in the constitutional talks leading to the Charlottetown Accord.

[7]                  Pauktuutit also points out that section 35.1 of the Constitution Act of 1982 being the 1983 Constitutional Amendment Proclamation, requires "the Prime Minister of Canada to invite representatives of the Aboriginal peoples of Canada to participate in constitutional discussions" on any proposed amendment to section 91(24) of the Constitution Act, 1867, to section 25 of the Constitution Act, 1982 and to section 35 of the Constitution Act, 1982", but that Pauktuutit was left out.

[8]                  In each of the first three cases, when discussions were held, not only was Pauktuutit not invited to take part, but also aboriginal women were not represented. However, in the case of section 35.1 constitutional discussions to amend the Constitution, there is no evidence of either active constitutional amendment proposals or active or proposed discussions of such amendments.

[9]                  Proceeding T-1523-01 stands on somewhat different set of facts. While Pauktuutit has always had, as part of its mandate, the promotion of health concerns of Inuit women, families and communities, it was not invited to take part in the establishment of the Aboriginal Health Institute, funded by the Crown in 1998, including funding for various national aboriginal representative organizations, but with no funding to any organization representing aboriginal women. Pauktuutit therefore seeks representation on the Aboriginal Health Institute Board, or as it is now called the Organization for the Advancement of Aboriginal People's Health, and financial support such as provided to other national aboriginal representative organizations.

CONSIDERATION

Some Initial Procedural Issues

(i)          Striking Out Judicial Review Proceedings

[10]            The first hurdle to overcome the striking out of a judicial review proceeding is the concept that preliminary motions, including motions to strike out, ought to be discouraged, thus preserving the summary nature of judicial review proceedings. This is a general proposition set out in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995], 1 F.C. 588. However, the Court of Appeal in David Bull did acknowledge that in very exceptional circumstances, where an application "is so clearly improper as to bereft of any possibility of success", the court had the jurisdiction "either inherent or through Rule 5 by analogy to other Rules, to dismiss in a summary manner" such an application. This concept of dismissal of an application which is bereft of any possibility of success has been applied in many instances, including in Al-Mhamad v. Canadian Radio-Television and Telecommunications Commission, an unreported 30 January 2003 decision in file A-711-01, 2003 FCA 45, approving the decision of the trial judge to strike out a judicial review application. See also Labbé v. Canada (Somalia Inquiry Commission) (1997), 128 F.T.R. 291 (F.C.T.D.) at 300, Narvey v. McNamara (1997), 140 F.T.R. 1 (F.C.T.D.) at 2, Canada (AG) v. Canada (Information Commissioner), [1998]1 F.C. 337 and 362 and Lee v. Canada (MCI) (1997), 126 F.T.R. 229.

(ii)         Striking Out By Reason of Mootness

[11]            An application for judicial review may also be struck out by reason of mootness: see Narvey (supra) at pages 2 and 3, Canada (AG) v. Canada (Information Commissioner) at pages 364 and 365, Lee (supra) at 231 and following and Fogal v. Canada (1999), 167 F.T.R. 266 (F.C.T.D.)at 269 and following, upheld by the Federal Court of Appeal (2000), 258 N.R. 97 at 98 and following.

(iii)        Striking Out On a Time Bar

[12]            Initially at issue was whether all four applications ought to be struck out by reason of a time bar, the Crown contending that in each instance Pauktuutit had missed the 30-day time limitation period set out in section 18.1(2) of the Federal Court Act. In that I struck out three of the proceedings for mootness the time bar argument might apply only to proceeding T-1523-01, that proceeding dealing with the Aboriginal Health Institution Board. As I pointed out, referring to appropriate authority, in Jawanda v. Canada (MCI) (2001), 14 Imm. L.R. (3d) 151, striking out on a time bar is not normally allowed unless there are no arguable issues concerning the timing of a decision or its communication to an applicant. Further, as I said in Jawanda:

In this instance I am not prepared to strike out the proceeding on the basis of a time bar, for Pauktuutit may have an answer: the case for striking out on a time bar is not so certain as to be plain, obvious and beyond doubt.

ANALYSIS

Striking Out By Reason of Mootness

[13]            I have already set out authorities for the proposition that an application may be struck out for mootness. The doctrine for mootness has been explained in many cases by referring to a passage from Borowski v. Canada (AG) (1989), 1 S.C.R. 342 at 353:

This passage from Borowski goes on to deal with events which occurred after the initiation of action, which still may render a case moot. Here, the events in two of the proceedings, T-1520-01 and T-1521-01, took place and indeed concluded well before a judicial review proceeding was initiated. The event in the third proceeding, T-1522-01, has not taken place and is not in the offing.

[14]            The general policy or practice of declining to decide a case which raise hypothetical or abstract questions, referred to by the Supreme Court in Borowski, has its counterpart in judicial review with the concept that declaratory relief will not be granted where the dispute is academic in the sense of being of no present practical relevance. Here counsel for the Crown refers to various authorities, including Operation Dismantle Ltd. v. The Queen (1985), 18 D.L.R. 441 at 492 (F.C.A.), [1980] 1 S.C.R. 821">Solosky v. The Queen,[1980] 1 S.C.R. 821 at 832, Montana Band of Indians v. Canada, [1991] 2 F.C. 30 at 39 - 40 (F.C.A.) and Administration de Pilotage de Laurentides v. Pilotages du Saint-Laurent Central Inc. (1993), 74 F.T.R. 185 at 191 - 192. All of the cases stand for the general proposition that declaratory relief is not available when a controversy is academic, in one way or another. In some of the cases the declaratory relief would have been forward looking in the sense of the hypothetical and was denied on that basis. However, in [1980] 1 S.C.R. 821">Solosky Mr Justice Dickson makes the point that "... a declaration will not normally be granted when the dispute is over and become academic ..." (page 832). In the Saint-Laurent Pilotage case (supra) Mr Justice Joyal denied declaratory relief in that it would be of no practical effect since the decision at issue had already been made and acted upon. To these cases I will add Canadian Union of Postal Workers v. Attorney-General of Canada (1979), 93 D.L.R. (3^rd) 148 (F.C.), a decision of Mr Justice Walsh in which the declaration sought involved a past matter which, at the time of the decision, was only of academic interest. In the Postal Workers proceeding and one must keep in mind that in 1978 judicial review and declaratory relief were by way of an action in the Federal Court, was struck out as disclosing no reasonable cause of action. The relief, striking out, was granted notwithstanding that a declaratory judgment might have been of interest in future actions, even though it was at the time of the decision purely academic, in the sense of being a past matter of no practical present relevance.

[15]            Returning to [1980] 1 S.C.R. 821">Solosky, at page 832, the Supreme Court set out there two factors to be considered in determining whether a controversy was sufficiently alive that declaratory relief might issue:

This is, in essence, a re-phrasing of a paper, referred to by Mr Justice Dickson, Hudson on Declaratory Judgments and Theoretical Cases: The Reality of the Dispute, (1977) 3 Dal. L. J. 706 in which the author states that:

[16]            This leads to the concept that when a dispute is either over and done with and has become academic, or will not occur in the foreseeable future and is thus academic, a court ought not to make constitutional rulings, such as are sought in the present case and here I have been referred to Phillips v. Nova Scotia (The Westray Mine Inquiry), [1995] 2 S.C.R. 97 in which Mr Justice Sopinka observed that:

There is sound reason for not deciding issues which have ceased to exist or which may not come into existence in the foreseeable future: a policy which dictates restraint in constitutional cases is sound. It is based on the realisation that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen. Early in the century, Viscount Haldane in John Deere Plow Co. v. Wharton, [1915] A.C. 330 at p. 39, stated that the abstract logical definition of the scope of constitutional provisions is not only "impracticable, but is certain, if attempted, to cause embarrassment and possible injustice in future cases.". In a final passage in the Westray case (supra) Mr Justice Sopinka comes full circle to where I began this discussion on mootness by referring to Borowski:

[17]            In the present instance both the Meech Lake Accord of 1987 and the Charlottetown Accord of 1992, which were unsuccessful, are in the past. The negotiations of the times were terminated. No negotiation has occurred since then. Indeed, the Federal Court of Appeal has pointed out in Native Women's Assn. of Canada v. Canada (1992), 97 D.L.R. (4^th) 548 at 549, that the Accords are a dead letter:

Here I would observe that included in the Charlottetown Accord were all of the Meech Lake Accord elements as well as other matters. That did not assist the Charlottetown Accord which, as with the Meech Lake Accord, failed: here see Hogg on Constitutional Law of Canada, Carswell looseleaf edition, 1997 which deals with the history of amendment in chapter 4 and with the Charlottetown and Meech Lake Accords at pages 4-7 to 4-11 of the 1997 looseleaf pages.

[18]            In the case of applications, T-1520-01 and T-1521-01, they deal with matters which do not presently exist, for as I pointed out the Meech Lake and Charlottetown Accords are a dead letter. As to application T-1522-01, I accept the submission of counsel for the Crown on three points:

         there is no evidence of active constitutional amendment proposals which could frame the right sort of interests of the Applicants;

        there is no evidence of proposed discussions of such amendments which would give rise to rights for funding, consultation or participation; and

       there is no evidence of requests for funding, consultation or participation in such non-existence constitutional processes.

Here I turn to concepts used by the Supreme Court in [1980] 1 S.C.R. 821">Solosky (supra) that there be both the reality of the dispute and utility of remedy. There can be no dispute without active constitutional proposals and negotiations, which do not exist in the present instance. Without an active constitutional process, to give a basis to the Applicant's alleged rights, any ruling the court might make would have little or no practical utility. It would not resolve future disputes over funding and consultation: that would depend upon the circumstances at any given time. For a court to make a determination now could well hamper a court in the future: here I refer back to John Deere Plow Co. (supra). Also relevant is the Federal Court of Appeal decision in Native Women's Assn. of Canada (supra). There Chief Justice Isaac applied Borowski and in considering in the exercise of the Court's discretion to deny a hearing, there upholding Mr Justice Strayer, as he then was, in Native Women's Assn. of Canada, [1993] 1 F.C. 171, considered the criteria laid down for the exercise of the Court's discretion in Borowski (supra) by the Supreme Court of Canada, commented that:

[19]            In Borowski (supra) the Supreme Court of Canada pointed out that the Court must use its discretion to decide whether to hear an application despite mootness. The considerations underlying this discretion are set out in Borowski at pages 358 through 362. The three factors are first, whether there is still an adversarial context; second, a consideration of judicial economy; and third, a consideration of the danger that by pronouncing judgment, in the absence of a dispute affecting rights of the parties, the Court may in fact, or in perception, be viewed as intruding into the role of the legislative branch of the government. In applying these factors I have kept in mind, as Mr Justice Sopinka pointed out in Borowski at 363, that the process ought not to be mechanical, for these principles "... may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.". In the present instance, as we shall see, the application of all three principles clearly and absolutely mitigated against exercising discretion in favour of allowing application T-1522-01 to proceed: it is an application which plainly and clearly would neither succeed nor lead to any useful result.

[20]            In considering the conclusion of I have just reached in a little more detail, I would observe first that, in some instances, there may be an adversarial relationship, even though there is no live controversy. In the present instance, I do not see that the Applicants have either a direct or collateral interest in the outcome of proceeding T-1522-01, other than, perhaps, to try to preempt some future yet unknown adverse finding by a court: this would be completely at odds with a concept from John Deere Plow Co. (supra) that courts ought not define a scope of constitutional provisions where, to attempt such, would "cause embarrassment and possible injustice in future cases". This is not a ground for establishing a true adversarial relationship. From the point of view of the Respondent, while the Crown may have some interest in not being prejudiced in some as yet unknown future proceeding, the Crown has no direct and immediate interest in closing out Pauktuutit from participation in discussions under section 35.1 of the Constitution Act of 1982, should those discussions ever occurred. All is clearly establishes that there ought not to be a precedent at this point when there is no true adversarial relationship.

[21]            I now turn to the second aspect, that of judicial economy. The issue is whether it is worthwhile to apply scarce resources in order to resolve a moot point. The Federal Court is, for all practical purposes, fully booked for at least a year in advance. There is no realistic reason to expect that, when proceeding T-1522-01 is ready for hearing, the waiting list will be shorten. This observation as to the capacity of the Court to deal with additional matters, together with the fact that a decision will have no practical effect on the rights of the parties, constitutes strong reason why the Court should not hear this moot application. This is all the more so given that the application raises no issue of either public importance or public interest at this time.

[22]            Third, as I pointed out, there are, in some instances, dangers in pronouncing a judgment, in the absence of a dispute affecting the rights of the parties, that the Court may in fact, or in perception, be viewed as intruding into the ambit of the legislative branch of the government. In effect, the test here is that of the appropriateness of judicial intervention. Here I would refer to Native Women's Assn. of Canada v. Canada, and the trial level decision of Justice Strayer, as he then was, reported (1993) 1 F.C. 171, to which I have already referred in the Federal Court of Appeal. Mr Justice Strayer dealt with an application by the Native Women's Association to be involved in first ministers' meetings or conferences to discuss constitutional renewal, in the context of what is now known as the Charlottetown Accord. Mr Justice Strayer dealt mainly with a motion to strike out the proceeding. There he recognized that Charlottetown Accord process had gone beyond the point of judicial review, a legislative process having already begun. Acknowledging that it was not easy to determine when a process has become legislative, he did point out that some issues were not justiciable, including as to whom governments ought to meet and consult with during the development of constitutional amendments. Thus he concluded that injunctive relief and by extension I believe, in the present instance, the declaratory relief which Pauktuutit seeks, plainly and obviously could not succeed. With this background I now proceed to the point made on appeal, that the appropriateness of judicial intervention had not been met:

To exercise discretion, so that these three proceedings be heard despite their mootness, would be an intrusion to the role of the legislative branch of the government.

[23]            This leads to a conclusion that proceedings T-1520-01, T-1521-01 and T-1522-01 ought to be struck out by reason of mootness, notwithstanding the general observation in the David Bull case (supra) that applications ought not to be struck out. These three proceedings fall into the exception in that case, at page 600, that application might be dealt with and dismissed in a summary manner for the application "is so clearly improper as to be bereft of any possibility of success.". Thus applications T-1520-01, T-1521-01 and T-1522-01 are struck out and dismissed. I now turn to the fourth proceedings, T-1523-01, involving participation in the Aboriginal Health Institution.

Striking Out for Lack of a Factual Foundation

[24]            Initially at issue was whether all four applications ought to be struck out by reason of a time bar, the Crown contending that in each instance Pauktuutit had missed the 30-day time limitation period set out in section 18.1(2) of the Federal Court Act. In that I struck out three of the proceedings for mootness the time bar argument might apply only to proceeding T-1523-01, that proceeding dealing with the Aboriginal Health Institution Board. As I pointed out, referring to appropriate authority, in Jawanda v. Canada (MCI) (2001), 14 Imm. L.R. (3d) 151, striking out on a time bar is not normally allowed unless there are no arguable issues concerning the timing of a decision or its communication to an applicant. Further, as I said in Jawanda:

In this instance I am not prepared to strike out the proceeding T-1523-01on the basis of a time bar, for Pauktuutit may have an answer: the case for striking out on a time bar is not so certain as to be plain, obvious and beyond doubt.

[25]            I have so far, in dealing with striking out applications, dealt specifically with striking out three applications by reason of mootness. In the case of the fourth application, T-1523-01, the ground that Respondent refers to, as a reason for striking it out, is that the affidavit, taken at face value, does not support the proceeding at issue. The Crown here refers to Moldevenau v. Canada (MCI) (1999), 235 N.R. 192 (F.C.A.). There the affidavit did not comply with Rule 342(1) of the pre-1998 Federal Court Rules, requiring an affidavit be confined to the facts that the witness is able to prove using his or her own knowledge. In that instance at issue was the affidavit itself, which was struck out. This differs from the present instance in which it is not the affidavit in support of the application which is at stake, but rather the application itself which the Crown wishes to strike out, on the basis that its supporting affidavit provides no factual foundation for judicial review.

[26]            There was some initial discussion as to the use of affidavit material to strike out application T-1523-01, the Aboriginal Health Institute application. That would not be appropriate in that at issue is whether the judicial review application itself might be struck out as having no factual foundation.

[27]            In that an application, unlike a statement of claim, contains little or no factual material to test for a cause of action, I must look the affidavits in support of the application. However, I would make the point that it is not the affidavit which the Crown states to strike out and thus case authority, such as Lominadze v. Canada (MCI) (1998), 143 F.T.R. 310, in which Madam Justice Reed refused to strike out the supporting affidavit, do not apply.

[28]            I reject the submissions on behalf of Pauktuutit that if the Crown were to produce the documents requested by the Applicants, which may or may not exist, they would clearly disclose a basis for judicial review. Speculation and fishing expeditions as a foundation for judicial review are to be disregarded.

[29]            The affidavit of Pauktuutit, sworn by Ms Dewar, in support of the application involving the Aboriginal Health Institution, is substantial. It is accompanied by eight volumes of exhibits. Much of it appears irrelevant. It certainly shows discrimination against and solicits a good deal of sympathy in favour of the Applicants and Indian women, but it is material which is largely for the political arena. Lack of reasonable editing and guidance, task of diligent counsel, in itself, does not get the application itself into the territory of the David Bull exception of being so clearly improper as to be bereft of any possibility of success.

[30]            The section of the affidavit deals with health issues, paragraphs 122 through 157, may have some relevance and bearing upon this application, or at least form the background to this application. Such material could have or perhaps should have been considered before deciding not to invite Pauktuutit to the founding of the Aboriginal Health Institute. The material does lack a direct connection with any move by Pauktuutit to obtain a place at the table of the founding of the Aboriginal Health Institute, but tends to establish that a women's group, such as Pauktuutit, would not have been either sought out or welcomed. It is unfortunate that the deponent of the affidavit, Ms Dewar, displays no first-hand information in the affidavit, but depends upon testimony and writing of others. However the courts have allowed deponents of affidavits to introduce background information into judicial review. Here I have in mind Chopra v. Canada (Treasury Board) (1999), 168 F.T.R. 273 (T.D.). There Mr Justice Dubé allowed an affidavit containing evidence that was not before the Associate Deputy Minister when he made the decision under attack. He expressed the view that "The ultimate adequacy of the allegations and evidence must be addressed by judge hearing the application on its merits ...", there referring to the David Bull case (supra). While the Chopra case involved a striking out of an affidavit, the concept that the adequacy of allegations and evidence ought to be addressed by the hearing the application, is a sound one.

[31]            I have some real doubts as to the success of application T-1523-01and all the more so in that there is not material bearing on any direct approach by Pauktuutit to be a part of the actual discussion leading to the founding of the Aboriginal Health Institute. However I am unable to say that the application comes within the very exceptional circumstances referred to in David Bull to the extent that it "is so clearly improper as to bereft of any possibility of success". Thus, application T-1523-01 may proceed. The Respondent may have 45 days within which to file responding affidavits.

[32]            Success being mixed, costs shall be in the cause.

(Sgd.) "John A. Hargrave"

                                                                                               Prothonotary

Vancouver, British Columbia

10 February 2003

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            T-1520-01, T-1521-01, T-1522-01 and T-1523-01

STYLE OF CAUSE:                        Pauktuutit, Inuit Women's Association et al. v. Her Majesty the Queen

PLACE OF HEARING:                   Vancouver, British Columbia

DATE OF HEARING:                      18 December 2001

REASONS FOR ORDER:            Hargrave P.

DATED:                                              10 February 2003

APPEARANCES:                          

Teressa Nahanee                                                                       FOR PLAINTIFFS

John S Tyhurst                                                                             FOR DEFENDANT

SOLICITORS OF RECORD:

Teressa Nahanee                                                                       FOR PLAINTIFFS

Barrister & Solicitor

McIvor Nahanee Law Corporation

Merritt, British Columbia

Morris A Rosenberg                                                                  FOR DEFENDANT

Deputy Attorney General of Canada

Department of Justice

Ottawa, Ontario