Date: 19990831
Docket: T-1009-99
MONTREAL, QUEBEC, THIS 31st DAY OF AUGUST 1999
PRESENT: THE HONOURABLE MR. JUSTICE DENAULT
BETWEEN: THE ESTATE OF YUAN VERCINGETORIX WOO
(AXA JEAN-PAUL MARTINEAU)
-and-
GRACE LI XIU WOO
Applicants
AND
THE MINISTER OF VETERANS AFFAIRS,
CANADA
Respondent
REASONS FOR ORDER AND ORDER
DENAULT, J.:
[1] By their original Notice of Application filed on June 9, 1999, the Applicants are seeking a series of eight reliefs including the judicial review of a decision of the Veterans Review and Appeal Board Canada, pursuant to Section 18.1 of the Federal Court Act, punitive damages against Dr. Deziel in the preparation of his medical opinion of the now deceased Yuan Vercingetorix Woo, " ...damages in tort for unauthorized medical experimentation tantamount to torture ...", and " ...the reorganization of the Department of Veterans Affairs and the procedure for awarding tort compensation for injured veterans ...".
[2] On August 10, 1999, Prothonotary Morneau granted a motion by the Respondent seeking the removal of the Veterans Review and Appeal Board Canada and of Dr. Deziel as Respondents. He also denied a request by the Applicants for the production of several documents including Dr. Deziel's curriculum vitae.
[3] The Applicants now appeal that decision of Prothonotary Morneau, seeking that Dr. Deziel remains as a Respondent and provides a copy of his curriculum vitae.
[4] The original Notice of Application seems to be affected of procedural defects in that damages that are normally claimed by way of an action1 are now claimed by way of an application2.
[5] But the Court is not actually asked to decide these procedural defects nor to direct
that an application for judicial review proceed as an action (Section 18.4(2)).
[6] Insofar as the proceeding before the Court is an appeal of a prothonotary's decision, the standard of review established by the Court of Appeal in Canada v. Aqua-Gem Investments Ltd. [1993] 2 F.C. 425, is still applicable: a discretionary order of a prothonotary ought not to be disturbed on appeal unless it is clearly wrong, in the sense that the exercise of the discretion was based upon a wrong principle or a misapprehension of the facts, or it raises questions vital to the final issue of the case.
[7] In the instant case, the Applicants have chosen to first seek a judgment setting aside the decision of the Veterans Review and Appeal Board Canada by way of an application (Rule 61(4)). In that respect, it was open to the Prothonotary to decide that Dr. Deziel was not a person, pursuant to Rule 303(1), directly affected by the order sought in the application, other than the tribunal in respect of which the application is brought. Furthermore, the Applicants have not shown that the Prothonotary erred by denying that Dr. Deziel's curriculum vitae be communicated to them: that conclusion was open to him and he properly exercised it in accordance with Rules 317 and 318.
O R D E R
This motion by the Applicants appealing the Order of Prothonotary Morneau dated August 10, 1999 is dismissed. Costs in the cause.
Pierre Denault
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990831
Docket: T-1009-99
BETWEEN:
THE ESTATE OF YUAN VERCINGETORIX WOO
(AXA JEAN-PAUL MARTINEAU)
and
GRACE LI XIU WOO
Applicants
AND
THE MINISTER OF VETERANS AFFAIRS, CANADA
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1009-99
STYLE OF CAUSE: THE ESTATE OF YUAN VERCINGETORIX WOO
| (AXA JEAN-PAUL MARTINEAU) |
Applicants
| THE MINISTER OF VETERANS AFFAIRS, CANADA |
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: August 30, 1999
REASONS FOR ORDER AND ORDER OF DENAULT, J.
DATED: August 31, 1999
APPEARANCES:
Ms. Grace Li Xiu Woo for the Applicants
Mr. Éric Lafrenière for the Respondent
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent
__________________
1 Part 4 of the Federal Court Rules, 1998 , Rule 169, Rules 61(1), 62(1), 63(1)a);
2 Part 5 of the Federal Court Rules, 1998 , Rule 300(a), Rules 61(2), 63(1)d).
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