Métis National Council of Women v. Canada, 2001 FCT 23

Date: 20010205

Dockets: 01-T-2

T-18-01

Citation: 2001 FCT 23

Ottawa, Ontario, this 5^th day of February 2001

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

MÉTIS NATIONAL COUNCIL OF WOMEN,

SHEILA D. GENAILLE, JOYCE GUS, AND DOREEN FLEURY

Applicants

- and -

HER MAJESTY THE QUEEN, THE ATTORNEY GENERAL OF CANADA, THE SECRETARY OF STATE FOR TRAINING AND YOUTH, INTERLOCUTOR FOR MÉTIS AND NON-STATUS INDIANS, ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT, MINISTER OF HUMAN RESOURCES DEVELOPMENT, THE PRIME MINISTER JEAN CHRÉTIEN, MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT, MINISTER OF CANADIAN HERITAGE, AND THE MINISTER OF HEALTH

Respondents

REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]      Sometimes attempts to simplify matters make them more complicated. I fear that is the case here. The Métis National Council of Women, Sheila D. Genaille, Joyce Gus and Doreen Fleury commenced an action against the Crown seeking to rectify what they saw as their systematic exclusion from discussions involving training for Métis women which they claim to represent. The remedies they sought in the action, declaration, injunction, and a novel remedy, the reading of certain documents as if they said things which they do not, led the Associate Senior Prothonotary to conclude that the action was in substance an application for judicial review. He therefore ordered it struck on the basis of subsection 18(3) of the Federal Court Act which provides that declaration and injunction, in the context of judicial review, can only be obtained in an application for judicial review.

[2]      I heard the appeal from that order and concluded that the Associate Senior Prothonotary had correctly characterized the thrust of the action but that he had overlooked Rule 57 of the Federal Court Rules, 1998 (the "Rules") which provides that no originating document shall be set aside solely on the ground that another originating document should have been used. So, I varied the order dismissing the action by granting leave to file a Notice of Application seeking the same relief as was sought in the original action. Given that the events in question largely took place in 1997-1998 and that my order was made in November 2000, I did not wish to see the Notice of Application set aside on the issue of timeliness so I also granted leave to bring a motion for an extension of time to file the Notice of Application. Finally, in a belt and suspenders way, I specificed that the Notice of Application was to be treated as having been filed on the same date as the Statement of Claim.

[3]      The plaintiffs in the action, now applicants in the motion, sought to comply with my order by filing a Notice of Application which names nine additional respondents in addition to the original defendant. Furthermore, the Notice of Application now seeks damages while the Statement of Claim did not. Damages are not available in an application for judicial review. Had they been sought in the action, it is very likely that the Statement of Claim would not have been struck. With respect, I am unable to see how this Notice of Application could have been thought to be seeking the same relief as was sought in the action. It does not seem unreasonable to suggest that counsel learned in the law should have paused to inquire, before adding nine respondents including the Prime Minister of Canada, whether the scope of the order was being exceeded.

[4]      The respondents have responded to these proceedings by asking that this matter not be disposed of in writing pursuant to Rule 369 of the Rules, as proposed by the applicants. In addition, the respondents say that the issue is moot since the programs in question have been discontinued for some time. The latter argument is raised for the first time in these proceedings when the material filed discloses that the programs had ended prior to the argument of the appeal. Counsel for the respondents stipulated at that time that the sole basis of the objection to the proceeding was the issue of the proper originating document. The applicants are annoyed to see the argument of mootness raised at this stage. I must say that if I were looking for a word to describe my reaction to this turn of events, "impressed" would not be a candidate.

[5]      The Notice of Application, as it currently stands, does not comply with my order and, to the extent that it claims damages, is subject to being struck, at least to that extent. The addition of the new respondents will raise issues not contemplated by the original Statement of Claim, which remains dismissed. Instead of the issues being narrowed, they are being broadened. Presumably, I could strike those parts of the Notice of Application which do not comply with my order but there is a limit to the extent to which the Court should cast a party's case, particularly when they are represented by counsel.

[6]      In the end result, it is my view that the objective of narrowing the issues remains valid. In view of the fact that the Notice of Application does not comply with my order, I decline to grant an extension of time for filing. And for the same reason, I set aside the filing of the Notice of Application and order that File No. T-18-01 is to be closed.

[7]      In a final attempt to give the applicants the opportunity to be heard, I will extend the deadline for complying with my order to March 1, 2001 and grant the applicants leave to file a further motion to extend the time for filing a Notice of Application. The respondents will have their costs of the motion which I fix at $1,000 in any event of the cause.

ORDER

     For the reasons set out above, it is hereby ordered that:

"J.D. Denis Pelletier"

Judge