Date: 20041119
Docket: T-1837-04
Citation: 2004 FC 1625
BETWEEN:
ALBERT VOLLANT
Applicant
and
KONRAD SIOUI
and
ROSARIO PINETTE, CÉLINE BELLEFLEUR,
GEORGES-ERNEST GRÉGOIRE, MARCELLE ST-ONGE,
GILLES JOURDAIN, RONALD FONTAINE AND
MAURICE VOLLANT, in their capacity as
members or former members of the band council
Respondents
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the respondents Konrad Sioui et al. under subsection 18.4(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended (the Act), asking that the Court order that the application for judicial review in this case be proceeded with as an action.
Context
[2] Although the parties, and more particularly the respondents, have referred to a broad factual context pertaining to an atmosphere of animosity surrounding, inter alia, the election of July 8, 2004 of the band council of Innu Takuaikan Uashat Mak Mani-Utenam (hereinafter the Council), the applicant's application for judicial review is intended essentially as a simple attack on the procedure surrounding the adoption by the then Council, on June 23, 2004, of resolution 04-05-64 (resolution 64). This resolution covers the payment of all the sums that were apparently owing to Mr. Sioui under the employment contract with the Council and the possibility for Mr. Sioui to terminate the contract should there be a significant change in the composition of the Council following the election of July 8, 2004. It turns out that Mr. Sioui was seen as a close associate of the then chief Rosario Pinette and that the chief who was ultimately elected on July 8, 2004, Élie-Jacques Jourdain, had in the past alluded to the fact that if elected he would terminate this employment of Mr. Sioui.
[3] Resolution 64 is said to have been adopted through the circulation of the resolution and the obtaining of signatures of most of the members of the then Council. What this means is that there was no physical meeting of the Council as such in a single location.
[4] It seems that the circulation of resolutions is a well-established custom in the Council and that a resolution thus adopted is referred to as a "flying resolution".
[5] The applicant is not seeking through his application for judicial review to question the existence and past use of this custom concerning the adoption of resolutions. He is simply trying, however, to establish that in the case of resolution 64 no attempt was made to contact him to get him to sign this resolution (he was then and is still a member of the Council). According to the applicant, this omission is fatal to the applicable procedural guarantees. That is the real question that the applicant brings to the Court's attention.
Analysis
[6] I can only subscribe to the following comments of the applicant (paragraphs 4 to 9 of the applicant's written representations, contained in his reply record) concerning the state of the law in this matter:
[translation]
4. In enacting subsection 18.4(1) of the Federal Court Act, R.S. 1985, c. F-7, Parliament intended that applications for judicial review should proceed rapidly, as is demonstrated by the language employed in that subsection, which reads as follows:
18.4 (1) Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
5. The purpose of the Act is clearly set out in Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (C.A.), at page 7, paragraph 9 of the judgment:
... One should not lose sight of the clear intention of Parliament to have applications for judicial review determined whenever possible with as much speed and as little encumbrances and delays of the kind associated with trials as are possible.
6. In the same vein, Mr. Justice Muldoon held, in Prince Edward Island Potato Board v. Canada (Minister of Agriculture), [1992] F.C.J. No. 636, p. 2, that the appropriate standpoint when one wishes to implement subsection 18.4(2) is the following:
Section 18.4 of the Federal Court Act makes it clear that, as a general rule, an application for judicial review or a reference to the Trial Division shall be proceeded with as a motion. The section dictates that such matters be heard and determined "without delay and in a summary way". As an exception to the general rule, provision is made in subsection 18.4(2) for an application for judicial review to be proceeded with as an action. The new and preferred course of procedure, however, is by way of motion and that course should not be departed from except in the clearest of circumstances.
7. In short, according to Stone, Décary and Robertson JJ.A. in Macinnis, supra, the true test that the judge should apply when exercising his discretion pursuant to subsection 18.4(2) of the Federal Court Act is to see whether "affidavit evidence will be inadequate, not that trial evidence might be superior";
8. Furthermore, the courts have also held that in determining whether it is appropriate in a particular case to proceed by way of an action instead of by a motion, "the clearest of circumstances" for doing so must be established. This expression was clearly defined in the Macinnis case, supra, at page 7 of the judgment:
It is, in general, only where facts of whatever nature cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using subsection 18.4(2) of the Act.
...
The "clearest of circumstances", to use the words of Muldoon J., where that subsection may be used, is where there is a need for viva voce evidence, either to assess demeanour and credibility of witnesses or to allow the Court to have a full grasp of the whole of the evidence whenever it feels the case cries out for the full panoply of a trial.
9. Moreover, Hugessen, Stone and Chevalier JJ.A., in Drapeau v. Canada (Minister of National Defence), [1995] F.C.J. No. 536, teach us that the conveniences of access to justice and the prevention of unnecessary costs and delays are among the criteria that must be considered by the judge when exercising his discretion pursuant to subsection 18.4(2) of the Federal Court Act.
[7] In Macinnis, at page 471, the Court further states, relying on some past decisions, that it is important to remember
... the true nature of the questions to be answered by the Court in judicial review proceedings and to consider the adequacy of affidavit evidence for answering those questions.
[8] Finally, in McLeod Lake Indian Band v. Chingee (a decision dated December 5, 1997, in docket T-2327-97), relied on heavily by the respondents, my colleague Prothonotary Hargrave stated as follows:
That the affidavit material filed and the further substantial material sought to be filed is contradictory is not a factor, in itself, in the decision to convert this application into an action. Affidavit material produced by opposing parties is usually, but its very nature, contradictory. In most instances, contradictions can be reduced to. manageable proportions to cross-examination on affidavits. But I seriously question whether this usual approach, evidence by affidavit and cross-examination could, in this instance, give a judge an adequate knowledge of the practice and customs of the McLeod Lake Indian Band as to the choosing of its Chief and Councillors.
[Emphasis added]
[9] In the case at bar, I think the questions surrounding the collection of the council members' signatures on resolution 64 and the possible contradictions in this at large situation may very well, with the willingness of counsel and the parties, be presented to the Court through a limited number of affidavits coupled with cross-examinations on affidavits as needed.
[10] The real issues at stake here are simple and do not have the requisite complexity to warrant the instrumentation of a trial. Any other conclusion on this point would, in my humble opinion, mean that a very great number of applications for judicial review on aboriginal and other matters could not be brought as applications for judicial review, that is, on the basis of affidavits and cross-examinations on those affidavits as needed. In this case, I am of the opinion that such evidence will be sufficient to enable the Court to reach an enlightened conclusion on the true issues at stake.
[11] This motion of the respondents Konrad Sioui et al. will therefore be dismissed, with costs. An order shall issue accordingly.
Richard Morneau
Prothonotary
Montréal, Quebec
November 19, 2004
Certified true translation
Jacques Deschênes, LL.B.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1837-04
STYLE: ALBERT VOLLANT
Applicant
and
KONRAD SIOUI
and
ROSARIO PINETTE, CÉLINE BELLEFLEUR, GEORGES-ERNEST GRÉGOIRE, MARCELLE ST-ONGE, GILLES JOURDAIN, RONALD FONTAINE AND MAURICE VOLLANT, in their capacity as members or former members of the band council
Respondents
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 8, 2004
REASONS FOR ORDER: Mr. Richard Morneau, Prothonotary
DATED: November 19, 2004
APPEARANCES:
Caroline Biron FOR THE APPLICANT
Claudine Lagacé
Claude Dallaire FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Woods & Associés FOR THE APPLICANT
Montréal, Quebec
Fasken Martineau DuMoulin FOR THE RESPONDENTS
Montréal, Quebec
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