[2] The Applicants run a time-sensitive tourist operation in the Queen Charlotte Islands. They seek an expedited review based on their operating licence for the year 2004.

[3] Judicial review is a summary procedure designed to provide review of decisions within a reasonable time. What is a reasonable time depends upon the circumstances surrounding any given matter. Often the time line set up in the Rule is appropriate; but in particular circumstances the usual time line may be too short to permit proper participation, or may not provide a resolution within a reasonable time, or as is also the case here, give no meaningful relief if the review is not timely. This is particularly so in the case of a yearly licence which, were that judicial application left to be dealt with within the time specified in the Rules and the time required to obtain a hearing date, the licence and the opportunity represented by the licence, will have long since expired, leaving an applicant with the same thankless task next year. Indeed this has happened in the present instance.

[4] Several years ago the Applicants brought a judicial review proceeding in this Court involving their 1999 licence. That application, which was not as to a continuing decision, was thus late and no extension being granted also became moot and the Federal Court refused to hear it, but the Court did direct that if times set out in the Rules were too short, a request for an expedited hearing could be made. The Applicants tried again, as to the 2001 licence; were denied an expedited hearing; and the favourable decision received from the Federal Court was too late in the summer to be of any value.

[5] The Applicants now wish an expedited hearing of the present application based on a 2004 licencing decision, on a new quota allocation and on a Charter argument. Here I note that counsel has already produced a notice of constitutional question. Counsel for the Applicants advises that the administrative procedure having been settled in the last successful, but too late litigation, the present application could be heard within one day.

[6] Mr Justice O'Keefe dealt with an application for expedited hearing in the unreported 23 February 2000 decision of Edwin Pearson v. The Queen, T-290-99. There he looked for "some sense of urgency or other reasons justifying such an order", referring to Prince Edward Island (Potato Bd) v. Canada (Minister of Agriculture), (1992) 56 F.T.R. 150 (F.C.T.D.).

[7] In Aptoex Inc. and Novopharm Ltd. v. Wellcome Foundation Ltd., (1998) 228 N.R. 355, the Federal Court of Appeal was more explicit. The Court looked upon the issue of an expedited hearing from two different aspects, considering whether there was a serious issue focusing on irreparable harm and, second, whether the party opposing an expedited hearing will be prejudiced.

[8] While counsel for the Respondent submits that the case does not raise simple and straightforward administrative law questions that can be disposed of by the Court in a cursory manner, that stopped short of an all out plea of prejudice. Here I also give some weight to the assertion by counsel, through the affidavit of the Applicant Gouglas Gould, that administrative matters were resolved in the earlier proceedings and thus the matter can be dealt with in a day: counsel is experienced. I turn to the urgency aspect.

[9] The first point dealing with urgency, made by counsel for the Respondent, is to the effect that the business licence for 2004 was provided about 8 December 2003, yet the present Notice of Application was not issued and served until 7 January 2004, a month later. This concerns me to some degree, however one must keep in mind that it is often difficult to organise and get litigation underway during the Christmas season: here I note that Mr Gould, president of the corporate Applicant, resides in Queen Charlotte Islands. To this initial delay factor I give little weight.

[10] Certainly the issue raised by the Applicants is a serious one.

[11] There is conflicting evidence as to the urgency of the need for some form of licence adjustment to reflect a projected increase in business capacity. On balance, even though projected loss of custom would be a loss of revenue that could never be recovered, the Applicants' evidence does not establish enough degree of certainty to in turn establish irreparable harm on that aspect.

[12] Where there would be irreparable harm is the denial of a timely date in Court. The Applicants' first approach to this Court in 2000 was ill-fated in part because the issue had become moot, a point upon which Mr Pelletier wrote at length. The second application was a Pyrrhic victory with costs, effort and success being of no real value by reason of the time it took to obtain the decision.

[13] To require the Applicants to proceed at the pace required by the Rules and then require them to wait for a hearing date would, in all reasonable likelihood, deprive the Applicants of a meaningful day in Court on this year's licence. This would be irreparable harm, a harm which can only be prevented through an expedited hearing.

[14] This judicial review application shall now be conducted on a timetable leading to an expedited hearing.

(Sgd.) "John A. Hargrave"

Prothonotary

Vancouver, British Columbia

16 February 2004

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET: T-23-04

STYLE OF CAUSE: The Moresby Explorers Ltd. et al. v. The Attorney General of Canada

REASONS FOR ORDER BY: Hargrave P.

DATED: 16 February 2004

WRITTEN REPRESENTATIONS BY:

Christopher Harvey, QC FOR APPLICANTS

Sean Gaudet FOR RESPONDENT

SOLICITORS ON THE RECORD:

MacKenzie Fujisawa FOR APPLICANTS

Barristers & Solicitors

Vancouver, British Columbia

Morris A. Rosenberg FOR RESPONDENT

Deputy Attorney General of Canada

Department of Justice

Vancouver, British Columbia

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The Moresby Explorers Ltd. v. Canada (Attorney General), 2004 FC 240

Citations2004 FC 240

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2004 FC 240