Date: 20040303
Docket: T-123-04
Citation: 2004 FC 317
Ottawa, Ontario, this 3rd day of March, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
NEIL MCFADYEN
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, by way of a written motion, is seeking an Order to have his application for judicial review in Court file number T-123-04 and T-77-04 heard together, one immediately after the other. At the hearing, the Respondent consented to this part of the motion.
[2] In his motion, the Applicant is also requesting an Order converting his applications for judicial review into an action pursuant to subsection 18.4(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, 2002, c. 8, s. 14. This is being contested by the Respondent.
[3] Subsection 18.4(2) reads as follows:
| (2) The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
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(2) Elle peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action.
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[4] In Prince Edward Island Potato Board v. Canada (Minister of Agriculture), [1992] F.C.J. No. 636 (T.D.) (QL), Muldoon J. states 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. (emphasis added)
[5] In Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (C.A.), Décary J.A. cites Reed J. in Derrickson v. Canada (Minister of Indian Affairs and Northern Development) (1993), 63 F.T.R. 292 (F.C.T.D.), at page 298 :
. . . on judicial review the role of the court is to review the decision made by the decision-maker but not to supplant that decision-making process. (emphasis added)
[6] Décary J.A. confirms the following in Macinnis, supra, at paragraphs 10 and 11 :
Strayer J. in Vancouver Island Peace Society, and Reed J. in Derrickson have indicated 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. Thus, a judge would err in accepting that a party could only introduce the evidence it wants by way of a trial if that evidence was not related to the narrow issues to be answered by the Court. The complexity of the factual issues would be, taken by itself, an irrelevant consideration if the conflicting expert affidavits on which they are based are related to the issues before the tribunal rather than issues before the Court. In the same vein, speculation that hidden evidence will come to light is not a basis for ordering a trial. [See Note 10 below] A judge might be justified in holding otherwise if there were good grounds for believing that such evidence would only come to light in a trial, but the key test is whether the judge can see that affidavit evidence will be inadequate, not that trial evidence might be superior.
[...] The proposition that Charter issues can be properly decided only following a trial flies in the face of the innumerable decisions of this Court, the Supreme Court of Canada and other courts that have been made on application or following other summary process, or by appeal from such decisions. There is absolutely no reason to grant Charter cases a special status.(emphasis added)
[7] The Applicant argues that the Court should allow the motion for three reasons : the first, being a question of credibility; the second, being a question of comparison data evidence not provided by the Ministry of Finance; and the third, being Charter issues. He contends that without an examination for discovery, or a cross-examination of the witnesses, he will not be able to meet the burden of proof to succeed on his applications for judicial review.
[8] On the credibility issue, I agree with the Applicant that viva voce evidence would be better than affidavit evidence but I consider that affidavit evidence is not inadequate and that is the test mentioned in Macinnis.
[9] With respect to the missing comparison data evidence, the Applicant contends that with a proper examination of the witnesses, he may be able to file new evidence that would help his case. I find this argument speculative. As to Charter issues, they can be properly decided by way of an application for judicial review (Macinnis).
[10] I therefore do not consider appropriate that the applications for judicial review be treated and proceeded with as an action.
[11] For these reasons, the second part of the applicant's motion is denied, without costs.
ORDER
THIS COURT ORDERS that :
1. The first part of the motion is granted. The applications for judicial review in Court file number T-123-04 and T-77-04 will be heard together, one immediately after the other.
2. The second part of the motion is denied, without costs. The applications for judicial review will not be converted into an action.
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-123-04
STYLE OF CAUSE: NEIL MCFADYEN
v.
THE ATTORNEY GENERAL
OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 2, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Beaudry
DATED: March 3, 2004
APPEARANCES:
Neil McFadyen FOR THE APPLICANT
(on his own behalf)
Richard Casanova FOR THE RESPONDENT
SOLICITORS OF RECORD:
Neil McFadyen FOR THE APPLICANT
(on his own behalf)
Ottawa, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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