Kalke v. Canada, 2001 FCT 251

Date: 20010327

Docket: T-1948-99

Neutral Citation: 2001 FCT 251

Halifax Nova Scotia, this 27th day of March, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

TRUDY KALKE

Applicant

- and -

HER MAJESTY THE QUEEN IN RIGHT OF CANADA,

THE MINISTER OF TRANSPORT, MOHAMMED AKHTAR, and

WILLIAM J. NASH

Respondents

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is a motion by the respondents for an order pursuant to subsection 18.4(2) of the Federal Court Act, R.S.C. 1985, c. F-7 ("Act") that the application for judicial review be treated and proceeded with as an action.

[2]                 The applicant's vessel, the EL PRIMERO, was detained by the respondents (one or more of them) pursuant to a detention order dated May 14, 1999. The vessel was detained on the grounds she was "unsafe" for any purpose as that term is used in subsection 310(1) of the Canada Shipping Act, R.S.C. 1985, c. S-9, as amended by R.S. c. 6 (3rd Suppl.), s. 87(F). There was also an earlier detention order dated May 26, 1996 which had not been lifted. Apparently, the only outstanding issue with respect to the earlier detention order is the condition of the vessel's hull and the repairs, if any, that are necessary to make the hull safe.

[3]                 The judicial review application, according to the respondents seeks to review the detention order and attachment MA502-41 dated May 14, 1999.

[4]                 Affidavits have been filed and cross-examination has taken place on the affidavits.

[5]                 A Notice of Status Review was issued on July 11, 2000 and after reviewing representations, certain time limits were set for the completion of cross-examination. As well, the Court appointed a Case Management Judge on December 12, 2000.

Issue

[6]                 Should an order issue pursuant to subsection 18.4(2) of the Act ordering that the application for judicial review be treated and proceeded with as an action?

[7]                 The Respondents submit that the judicial review application "raises issues which cannot satisfactorily be established or weighed through affidavit evidence and instead requires the Court to be given the opportunity to observe the demeanor and credibility of the witnesses with respect to:

(a)        Expert testimony

(b)        The factual basis underlying the decision process;

(c)        The interaction of the petitioner with the respondents; and

(d)        An overview of how the decision was reached.

[8]                 As well, the respondents submit that since the applicant is seeking relief under sections 8 and 9 of the Canadian Charter of Rights and Freedoms, an order pursuant to subsection 18.4(2) of the Act should be granted.

[9]                 The applicant submits that the proceeding deals only with a very simple and narrow question of procedure. The only issue is whether the respondents lawfully detained the EL PRIMERO on the grounds that she is unsafe.

Statutory Provision

[10]            Sections 18.4(1) and (2) of the Federal Court Act, supra state:

[11]            Section 310(1) of the Canada Shipping Act, supra states:

Relevant Case Law

[12]            In MacInnis v. Canada (Attorney General), [1994] 2 F.C. 464 (F.C.A.), Décary J.A. stated for the Court at pages 469-472 as follows:

Any attempt to interpret subsection 18.4(2) has to begin with the following statement by Muldoon J. with respect to the approach to be taken when applying it:

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 s. 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.

Of interest, also, is the reminder by Reed J. that:

. . . 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.

and the following comments by Strayer J.:

For these reasons I am unsympathetic to the arguments of the respondents that there are difficult technical factual determinations to be made which will require pleadings and a trial and the cross-examination viva voce of experts and others. It is not the role of the Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which ones should be respected. Whether society would be well served by the Court performing either of these roles, which I gravely doubt, they are not the roles conferred upon it in the exercise of judicial review under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7].

I am therefore not going to direct that this matter be tried by way of an action. I think many of the concerns of the respondents can be met if the parties focus on the real issues.

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. 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. 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. The decision of this Court in Bayer AG and Miles Canada Inc. v. Minister of National Health and Welfare and Apotex Inc. where Mahoney J.A. to some extent commented adversely on a decision made by Rouleau J. in the same file,9*ftnote9 [Bayer AG et al. v. Canada (Minister of National Health and Welfare) et al.] (1993), 66 F.T.R. 137 (F.C.T.D.). is a recent illustration of the reluctance of the Court to proceed by way of an action rather than by way of an application.

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. 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.

We do not think a better factual basis is necessary for determining Charter issues in comparison with other issues. It is true that constitutional facts are unusual in that they are often about social trends, but before a judge concludes that Charter issues require a trial, there must be some reason to believe in the inadequacy of affidavits to establish a factual basis. To proceed by way of motion is not to be equated with proceeding in a "factual vacuum", since affidavit evidence is fully available. 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.

The complexity of legal issues is not, in itself, a relevant consideration. These issues would be complex whether they were argued in the course of an application or in the course of an action.

Time is also not in itself a relevant consideration for transforming an application into an action. The volume of the affidavit evidence to be filed, the time needed by counsel to submit their case are not related to the way the proceedings are held. We appreciate that applications have taken more and more of the time of the Trial Division and that what used to be for a judge a motions' day has become more often than not a motions' week. The system obviously needs to be adapted to these new requirements of the post-Charter era, but the solution cannot be, because it flies in the face of Parliament's will, to alleviate the burden of a motions judge by converting an application to an action.

A party's subjective reason for desiring viva voce evidence would also be an irrelevant consideration. A party's desire to have his day in court is not a good reason for allowing a trial.

Analysis and Decision

[13]            The respondents have submitted that the credibility of witnesses is an important issue and, therefore, the application for judicial review should be treated and proceeded with as an action. The only basis for the argument is the statement of William J. Nash in his affidavit that he has been "...informed by K. Joseph Spears and verily believe that the true issue in this case will be the credibility of witnesses ...". However, this does not tell the Court which witness' credibility is in question, or what portion of their testimony is cause for concern. I am not satisfied that on the material before me that an issue of credibility has been raised so as to require a conversion of the application into an action. The Judge hearing the judicial review application will have before him or her the material used by the decision-maker and any other relevant evidence, and will be able to make a decision on the judicial review application.

[14]            I do not believe that the facts or the legal issues are complex in this application. The simple issue is whether the respondents detained the EL PRIMERO on the grounds that she is "unsafe" for any purpose as that word is used in subsection 310(1) of the Canada Shipping Act. In any event, the complexity of legal issues is not, by itself, a relevant consideration as the legal issues, if complex, would be so whether on application or on action.

[15]            The respondents have stated that 18 affidavits have been filed in this application. While that is the case, it should be noted that the applicant has sworn four of these affidavits and William John Nash has sworn five of those affidavits.

[16]            The respondents also argued that an order should issue pursuant to subsection 18.4(2) of the Act because the applicant has raised Charter issues. The Federal Court of Appeal in MacInnis, supra, stated that Charter issues do not require a trial where the factual basis can be established by affidavits. I have no reason to believe that the factual basis for the sections 8 and 9 Charter arguments cannot be established by affidavit evidence. For these reasons, there is no necessity to convert the application into an action.

[17]            Therefore, I am satisfied that the facts necessary to make a determination of the issue in this application can be established and weighed through affidavit evidence. The affidavit evidence is not inadequate. There is no need for viva voce evidence in this case and, therefore, the matter should not be unnecessarily delayed by converting the application for judicial review into an action.

                                                  ORDER

[18]            IT IS HEREBY ORDERED THAT:

1.         The motion pursuant to subsection 18.4(2) of the Act for an order directing that the application for judicial review be treated and proceeded with as an action is dismissed.

2.         The parties shall have 10 days from the date of this decision to make submissions as to costs. Any reply will be filed within 5 days of the initial filing.

"John A. O'Keefe"

                                                                                                      J.F.C.C.                        

Halifax, Nova Scotia

March 27, 2001

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   T-1948-99

STYLE OF CAUSE:TRUDY KALKE

- and -

HER MAJESTY THE QUEEN ET AL

PLACE OF HEARING:                                   VANCOUVER, BRITISH COLUMBIA

DATE OF HEARING:                                     MONDAY, FEBRUARY 26, 2001

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      MARCH 27, 2001

APPEARANCES:

Mr. Roger Watts

FOR APPLICANT

Mr. Joseph Spears

FOR RESPONDENTS

SOLICITORS OF RECORD:

McEwen Schmitt & Co.

Box 11174, Royal Centre

1615 - 1055 Georgia Street West

Vancouver, BC V6E 3R5

FOR APPLICANT

Spears & Company

6438 Bay Street

West Vancouver, BC    V7W 2H1

FOR RESPONDENTS

                    FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

Date: 20010327

Docket: T-1948-99

Neutral Citation: 2001 FCT 251

BETWEEN:

TRUDY KALKE

Applicant

- and -

HER MAJESTY THE QUEEN IN RIGHT OF

CANADA, THE MINISTER OF TRANSPORT,

MOHAMMED AKHTAR, and WILLIAM J. NASH

Respondents

             REASONS FOR ORDER AND ORDER