Date: 20100512
Docket: T-135-10
Citation: 2010
FC 520
Ottawa, Ontario, May 12, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
R.
MAXINE COLLINS
Applicant
and
HONOURABLE PETER VAN LOAN
MINISTER OF PUBLIC SAFETY
Respondents
Docket: T-136-10
AND
BETWEEN:
R. MAXINE COLLINS
Applicant
And
HONOURABLE JEAN-PIERRE BLACKBURN
MINISTER OF NATIONAL REVENUE
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a
motion appealing a Prothonotary’s direction pursuant to Rule 51 of the Federal
Courts Rules, SOR/2004-283.
[2]
The
direction reads as follows:
The Applicant in these matters has
endeavoured to e-file the Application Records. These are lengthy documents and
the index in each refers to five affidavits. Two of the five affidavits are
contained in the Application Records as e-filed, while three of the affidavits
are referred to as having been filed in the Applicant’s preliminary file being
File No. 08-T-60. As the Applicant notes in correspondence to Registry, the
three affidavits in the latter file were previously served and filed and the
Respondent has not taken issue with the filing of these Application Records in
this fashion. It is laudable that the Applicant refers to Rule 3 as the basis
for not including the three affidavits from the preliminary file in these
Application Records. While the Court compels parties to pursue litigation in
accordance with Rule 3, the policies of Rule 3 give way to ensuring that the
materials to be used at a hearing before the Court are properly organized in
application records. It is not for the Registry or the Court to ferret through
motion records in other proceedings to locate affidavits or materials that an
applicant wishes to rely upon at a hearing. The onus is on the Applicant to
prepare proper application Records as mandated by the Rules and to include the
materials they wish to have before the Court on the hearing. Thus, as the
Application Records as e-filed do not conform to Rule 309(2) they are not
acceptable for filing.
[3]
Rules 306
and 309 of the Federal Courts Rules state:
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306. Within 30 days after issuance of a
notice of application, an applicant shall serve and file its supporting
affidavits and documentary exhibits.
. . .
309.(1) An applicant shall, within 20 days
after completion of all parties' cross-examinations or the expiration of the
time for doing so, whichever is earlier,
(a) serve the
applicant's record; and
(b) file
(i) where the
application is brought in the Federal Court, three copies of the applicant's
record, and
(ii) where the
application is brought in the Federal Court of Appeal, five copies of the
applicant's record.
(2) An
applicant's record shall contain, on consecutively numbered pages and in the
following order,
(a) a table of
contents giving the nature and date of each document in the record;
(b) the notice
of application;
(c) any order
in respect of which the application is made and any reasons, including
dissenting reasons, given in respect of that order;
(d) each
supporting affidavit and documentary exhibit;
(e) the transcript
of any cross-examination on affidavits that the applicant has conducted;
(f) the
portions of any transcript of oral evidence before a tribunal that are to be
used by the applicant at the hearing;
(g) a
description of any physical exhibits to be used by the applicant at the
hearing; and
(h) the
applicant's memorandum of fact and law.
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306.
Dans les 30 jours suivant la délivrance de l’avis de demande, le demandeur
signifie et dépose les affidavits et les pièces documentaires qu’il entend
utiliser à l’appui de la demande.
. . .
309.(1)
Dans les 20 jours suivant le contre-interrogatoire des auteurs des affidavits
déposés par les parties ou dans les 20 jours suivant l’expiration du délai
prévu pour sa tenue, selon celui de ces délais qui est antérieur à l’autre,
le demandeur :
a) signifie
son dossier;
b) dépose :
(i) dans le
cas d’une demande présentée à la Cour fédérale, trois copies de son dossier,
(ii)
dans le cas d’une demande présentée à la Cour d’appel fédérale, cinq copies
de son dossier.
(2)
Le dossier du demandeur contient, sur des pages numérotées consécutivement,
les documents suivants dans l’ordre indiqué ci-après :
a) une table
des matières indiquant la nature et la date de chaque document versé au
dossier;
b) l’avis de
demande;
c)
le cas échéant, l’ordonnance qui fait l’objet de la demande ainsi que les
motifs, y compris toute dissidence;
d) les
affidavits et les pièces documentaires à l’appui de la demande;
e) les
transcriptions des contre-interrogatoires qu’il a fait subir aux auteurs
d’affidavit;
f) les
extraits de toute transcription des témoignages oraux recueillis par l’office
fédéral qu’il entend utiliser à l’audition de la demande;
g)
une description des objets déposés comme pièces qu’il entend utiliser à
l’audition;
h)
un mémoire des faits et du droit.
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[4]
The Federal Court of Appeal in Merck &
Co., Inc. v. Apotex Inc., [2004] 2 F.C.R. 459 stated as follows, concerning
the standard of review to be applied to discretionary orders of prothonotaries
at paragraphs 17 to 19:
17 This
Court, in Canada v. Aqua-Gem Investments Ltd.,
[1993] 2 F.C. 425 (C.A.), set out the standard of review to be applied to
discretionary orders of prothonotaries in the following terms (MacGuigan J.A.,
at pages 462-463):
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 discretion by the
prothonotary was based upon 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.
18 MacGuigan
J.A. went on, at pages 464-465, to explain that whether a question was vital to
the final issue of the case was to be determined without regard to the actual
answer given by the prothonotary:
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, is 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).
This is
why, I suspect, he uses the words "they (being the orders) raise questions vital to the final issue of the
case", rather than "they (being the orders) are
vital to the final issue of the case". The emphasis is put on the subject
of the orders, not on their effect. In a case such as the present one, the
question to be asked is whether the proposed amendments are vital in
themselves, whether they be allowed or not. If they are vital, the judge must
exercise his or her discretion de novo.
19 To avoid the confusion which we
have seen from time to time arising from the wording used by MacGuigan J.A., I
think it is appropriate to slightly reformulate the test for the standard of
review. I will use the occasion to reverse the sequence of the propositions as
originally set out, for the practical reason that a judge should logically
determine first whether the questions are vital to the final issue: it is only
when they are not that the judge effectively needs to engage in the process of
determining whether the orders are clearly wrong. The test would now read: "Discretionary
orders of prothonotaries ought not be disturbed on appeal to a judge unless:
(a) the questions raised in the motion are vital to the final issue of the
case, or (b) the orders are clearly wrong, in the sense that the exercise of
discretion by the prothonotary was based upon a wrong principle or upon a
misapprehension of the facts."
[5]
It would
appear from a review of the Prothonotary’s decision that he was under the
impression, after reviewing the information provided to him, three of the
affidavits were not contained in the application record. However, a review of
the records shows that all the affidavits were contained in the application
record.
[6]
In
reality, what happened was the applicant neglected to file the other affidavits
in the present applications as required by Federal Courts Rule 306. The
applicant wanted to use the three affidavits filed in Court file 08-T-60. She
placed all the affidavits in the application records for Court files T-135-10
and T-136-10 but did not refile the affidavits contained in Court file 08-T-60
in the present applications.
[7]
I am of
the view that the Prothonotary’s direction was not vital to the final issue of
the case. It deals with a procedural matter with respect to filing.
[8]
I would
note that the respondent did not take part in or take any position on this
appeal. The respondent has not taken any objection to the applicant filing her
application records in this manner. The applicant informed the respondent that
she was placing these affidavits from the other file in her application
records.
[9]
I am of
the view that the direction was clearly wrong in that it was based on a
misapprehension of the facts, namely, that all of the affidavits were not in
the applicant’s application records.
[10]
Although
it is not before me, I must add that it is up to the Prothonotary or the Court
to allow affidavits from another file (Court file 08-T-60) to be used in the
present applications. As the respondents do not appear to be objecting, a Rule
369 motion could be made to include the affidavits in question, with the
consent of the respondents. If no consent is obtained from the respondents, a
Rule 369 motion to include the affidavits from Court file 08-T-60 could still
be made.
[11]
Accordingly,
the motion (appeal) is allowed and the direction is set aside.
[12]
Based on
the facts of this case, I am not prepared to make an award of costs.
ORDER
[13]
IT IS
ORDERED that the
motion (appeal) is allowed and the direction of April 23, 2010 is set aside and
there shall be no order as to costs.
“John
A. O’Keefe”
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