Date: 20000620
Docket: T-131-00
Between :
JACK RIGBY
Applicant
(Respondent)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by THE MINISTER OF INDIAN AFFAIRS
and NORTHERN DEVELOPMENT, THE DEPARTMENT
OF INDIAN AFFAIRS and NORTHERN DEVELOPMENT
Respondent
(Appellant)
REASONS FOR ORDER
PINARD, J. :
[1] The Minister of Indian Affairs and Northern Development (the Minister) is appealing two orders of Prothonotary Lafrenière (the Prothonotary), dated March 10, 2000. The two appeals were heard together.
[2] The Municipality of Chatham-Kent (the Municipality) and Mr. Rigby seek judicial review of the Minister's alleged decision on December 23, 1999 to execute a Settlement Agreement and a Trust Agreement with the Caldwell First Nation. The order of mandamus sought with respect to a legal opinion of the Department of Justice is merely accessory. Their Notices of Application are virtually identical in terms of the relief sought and the grounds argued.
[3] In two identical decisions, the Prothonotary dismissed the Minister's motions to strike the Municipality and Mr. Rigby's Notices of Application. The relevant paragraph reads as follows:
| I have carefully considered arguments advanced by the parties. In my view, the application is fraught with difficulties. It is not obvious to me after hearing lengthy submissions what decision the Applicants seek to challenge. Nor has it been established that the application is timely. In fact, there is a suggestion that it may be premature. However, notwithstanding the Respondent's compelling arguments, I cannot conclude that the originating notice of motion is "bereft of any possibility of success" and that this is an exceptional case in which the originating notice should be struck. I completely concur with the concluding words of Nadon, J. in Assn. of Canadian Distillers v. Canada (Minister of Health) [[1998] F.C.J. No. 753 at pp. 3-4.] where he states: |
| In my view, the respondent should have simply filed its application record and then argued before a Trial Judge why the originating notice of motion should be denied. |
[4] In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, the Federal Court of Appeal held that while the judges of the Federal Court retain the power to exercise their discretion de novo on an appeal from a prothonotary's decision, this power should only be exercised in limited circumstances. Mr. Justice MacGuigan, writing for the majority, articulated the following standard of review to be applied by a motions judge when deciding whether to disturb the discretionary orders of prothonotaries:
| I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: |
| a) they are clearly wrong, in the sense that the exercise of disretion by the prothonotary was based uopn a wrong principle or upon a misapprehension of the facts, or |
| b) they raise questions vital to the final issue of the case. [. . .] |
| Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo. |
[5] This matter must be disposed of by the Court exercising its own discretion de novo on the material that was before the Prothonotary. Indeed, the Minister's motion before the Prothonotary in both instances was vital to the final issue of the case. Had the Prothonotary struck the applications of the Municipality and Mr. Rigby, as he was invited to do by the Minister, his orders would have had the effect of finally disposing of the matter. That is, the issue before the Prothonotary was interlocutory only because he dismissed the Minister's motions. In the words of MacGuigan, J.A. in Aqua-Gem, supra, at pages 464 and 465:
| . . . It seems to me that a decision which can thus be either interlocutory or final depending on how it is decided, even if interlocutory because of the result, must nevertheless be considered vital to the final resolution of the case. Another way of putting the matter would be to say that for the test as to relevance to the final issue of the case, the issue to be decided should be looked to before the question is answered by the prothonotary, whereas that as to whether it is interlocutory or final (which is purely a pro forma matter) should be put after the prothonotary's decision. Any other approach, it seems to me, would reduce the more substantial question of "vital to the issue of the case" to the merely procedural issue of interlocutory or final, and preserve all interlocutory rulings from attack (except in relation to errors of law). |
[6] In Symbol Yatchs Ltd. v. Pearson et al., [1996] 2 F.C. 391, at page 399, Justice Nadon refused to consider evidence which was not before the Prothonotary whose decision was being challenged:
| In the present instance, there is no doubt in my mind that the Prothonotary's order raises a question vital to the final issue of the case since the effect of the Prothonotary's order is to terminate the plaintiffs' action. However, I can only examine the Prothonotary's order in the light of the evidence which was before him when he made his order. Consequently, I cannot, and so advised the parties at the hearing, consider the affidavits which the plaintiffs seek to introduce into the record. I do not know why these affidavits were not filed by the plaintiffs in support of their September 22, 1995 application but, in my view, that evidence, if available, should have been placed before the Prothonotary. |
| This is an appeal of the Prothonotary's decision and it is now too late to present evidence which should have been made earlier. . . . |
[7] As for the principles applicable to a motion to strike out an originating notice of motion, the leading case, as noted by the Prothonotary, is David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588. In the words of Strayer, J.A., at pages 596 to 597 and 600:
| . . . In fact, the disposition of an originating notice proceeds in much the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the Court. Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. . . . |
| . . . This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. (Footnote omitted.) |
[8] Here, in my view, the Minister's motions to strike are predicated on two arguments: that the Minister's decision is not susceptible to judicial review and, alternatively, that there was no decision.
[9] At the outset, I must point out that the relevant actual Settlement Agreement which was filed before me by the Minister in support of his appeals was not part of the evidence before the Prothonotary and, therefore, cannot be taken into account in disposing of the appeals.
[10] In order to determine that the Minister's decision is not susceptible to review, this Court would have to reject the Municipality's argument, relied upon by Mr. Rigby, that discretionary decisions are reviewable. The Court would also have to reject the argument that the applications are not premature. According to Tab 2 (Fact Sheet Regarding the Caldwell First Nation Land Claim Settlement) of the Caldwell Technical Briefing1:
| The Caldwell First Nation and the Government of Canada have arrived at an Agreement in Principle to settle the Caldwells' claim to land south of the Thames River in Ontario. |
| The Agreement in Principle becomes a final agreement once it has been ratified through a vote of the members of the Caldwell First Nation and is signed by the Chief and Council of the First Nation and by the Minister of Indian Affairs & Northern Development of Canada. |
[11] Likewise, to determine that there was no decision, this Court would have to reject the argument that the Minister's comments to the media can be characterized as the communication of a binding decision. This argument appears to be based on several newspaper articles in the Municipality's Motion Record, filed March 7, 2000, including the following extracts:
| - Canadian Press, "Report won't scuttle native land deal", The London Free Press (December 23, 1999), page A6: |
| A controversial native land claim will move ahead despite a recent report disputing the historical validity of the claim, Indian Affairs Minister Robert Nault has announced. |
| "My opinion is that this (report) doesn't change our legal obligation . . . We're going to finalize the agreement," Nault said. |
| - K. McCrindle, "Nault green lights Caldwell deal", The Chatham Daily News (December 23, 1999), page 1: |
| Indian Affairs Minister Robert Nault will give the controversial Caldwell First National land claim a "green light" despite a recent report disputing the historical validity of the claim. |
| "My opinion is this (report) doesn't change our legal obligation. We're going to finalize the agreement," Nault said during a conference call with media Tuesday. |
| - D. Schmidt, "Caldwell deal not negotiable, minister says", Windsor Star (January 26, 1999), page A1: |
| Canada's legal obligation to the Caldwell First Nation is land, not cash, and it's non-negotiable, Indian Affairs Minister Jane Stewart told opponents of a federal deal in a series of meetings in Chatham Monday. |
[12] In light of all the above, I am not convinced that the Municipality and Mr. Rigby's position is "so clearly improper as to be bereft of any possibility of success".
[13] Consequently, the appeal is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
June 20, 2000
__________________
1 Exhibit "B" to the affidavit of Brian Knott, sworn December 15, 1999, Document #4.
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