Date: 20070524
Docket:
T-1890-05
Citation: 2007 FC 550
Ottawa,
Ontario, Thursday, this 24th day of May 2007
PRESENT: MADAM
PROTHONOTARY MIREILLE TABIB
BETWEEN:
GARRY REECE, on his own behalf and
on behalf of the LAX KW’ALAAMS INDIAN
BAND, and
HAROLD LEIGHTON on his own behalf and
on behalf of the METLAKATLA INDIAN BAND
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
As represented by
the MINISTER OF WESTERN ECONOMIC
DIVERSIFICATION, and the
MINISTER OF THE ENVIRONMENT; and
the PRINCE RUPERT PORT AUTHORITY
Respondents
REASONS FOR
ORDER AND ORDER
[1] I
am, in the context of this application for judicial review, seized of several
motions brought by various parties, all relating to the evidence that can or
should be adduced on the merits of this application. The motions were heard in
the course of a three-day special sitting. In addition, I have, as case
management Prothonotary and on my own motion, sought the representations of the
parties as to whether an order pursuant to Rule 107 of the Federal Courts
Rules should be made, whereby certain issues in the application be
determined separately, and if so, which issues should be severed.
The Application
[2] This
application was commenced on October 25, 2005. The Applicants are acting on
their own behalf and on behalf of the Lax Kw’alaams Indian Band and the
Metlakatla Indian Band. For ease of reference, the Applicants will be
collectively referred to in these reasons as the “Bands”. Named as Respondents
are the Minister of Western Economic Diversification and the Minister of the
Environment (hereinafter, the “Ministers”), both represented by counsel from
the Department of Justice, and the Prince Rupert Port Authority (hereinafter,
the “Port”), represented separately by independent counsel. The decision which
is the subject of this application for judicial review is identified as being
the decision of the Minister of Western Economic Diversification, dated
September 26, 2005, “to enter into a grant agreement with the Prince Rupert
Port Authority […] for the sum of $30,000,000.00 for the purpose of enabling Phase
I of the proposed Fairview Terminal Conversion and Expansion Project […] to be
carried out”.
[3] However,
beyond simply a review of that particular decision, the notice of application
specifically lists as follows the relief sought:
“(a) An
order in the nature of certiorari setting aside the decision of the
Minister of Westerns Economic Diversification to enter into a grant agreement
with the PRPA for the sum of $30,000,000.00 pursuant to the Western Economic
Diversification Act, R.S.C., 1985, (4th Suppl.) c.11;
(b)
A
declaration that the Minister of Western Economic Diversification is in
violation of his obligations under the Canadian Environmental Assessment Act,
S.C., 1992, c. 37 (“CEAA”) to ensure that an environmental assessment is
completed before granting financial assistance to the PRPA;
(c)
A
declaration that the Minister of Western Economic Diversification and the
Minister of the Environment are in violation of their obligations under CEAA to
ensure that an environmental assessment is completed before irrevocable
decisions are made;
(d)
A
declaration that the environmental assessment of the Project must proceed by
comprehensive study;
(e)
A declaration
that the environmental assessment of Phase 1 of the Project must include an
assessment of the cumulative environmental effects of the Fairview Terminal
Expansion, commonly referred to as Phase 2 of the Project;
(f)
A
declaration that the decommissioning of the Fairview Terminal by the PRPA is
unlawful and in violation of the obligations of the Minister of Western
Economic Diversification and the Minister of the Environment under CEAA;
(g)
A
declaration that the award of a contract (or contracts) for the decommissioning
of the Fairview Terminal by the PRPA was unlawful and in violation of the
obligations of the Minister of Western Economic Diversification and the
Minister of the Environment under CEAA;
(h)
A
declaration that the award of a contract for project management services for
Phase 1 of the Project by the PRPA was unlawful and in violation of the
obligations of the Minister of Western Economic Diversification and the
Minister of the Environment under CEAA;
(i)
A
declaration that the award of a contract for steel pipe supply for the Project
by the PRPA was unlawful and in violation of the obligations of the Minister of
Western Economic diversification and the Minister of the Environment under
CEAA;
(j)
An order
for mandamus compelling the Minister of Western Economic Diversification
and the Minister of the Environment to prohibit, by order, the PRPA from doing
any act or thing that carries out the Project in whole or in part and that
would alter the environment until the responsible authorities take a course of
action under paragraph 20(1)(a) or (b) or subsection 37(1) of CEAA;
(k)
An order
restraining the PRPA from doing anything that commits the PRPA to carrying out
the Project in whole or in part until an environmental assessment has been
completed and a course of action taken pursuant to s. 20(1)(a) or 37(1);
(l)
An order
for mandamus compelling the Minister of Western Economic Diversification
and the Minister of the Environment to solicit the participation of and consult
with the Lax Kw’alaams Indian Band and the Metlakatla Indian Band in the
environmental assessment of the Project;
(m)
A
declaration that the Minister of Western Economic Diversification has a
constitutional duty to consult with, and if appropriate accommodate, the Lax
Kw’alaams and the Metlakatla before any irrevocable decisions are made that
would enable the Project to be carried out in whole or in part;
(n)
Such other
order as this Honourable Court may deem appropriate; and
(o)
Costs.”
[4] As
can be seen from this recitation, while the notice of application targets the
decision of the Minister of Western Economic Diversification dated September
26, 2005 specifically, it also appears to seek a variety of declarations and
restraining orders as to other contracts and actions taken or to be taken by
the Port, and orders compelling both Ministers to do certain things in the
future.
[5] How
the wording of this notice of application and the relief sought therein are to
be understood and the exact scope of this application are, in many ways, the
crux of the motions before me.
[6] On
one possible interpretation, the outcome of the application and availability of
any relief sought thereunder are subsumed in, or hinge and depend upon a
determination as to the validity of the decision of September 26, 2005. In
other words, the declarations of unlawfulness, as sought in subparagraphs (b),
(c), and (f) to (i), might of themselves be grounds for the invalidity of the
decision; a finding as to the existence of a duty, as sought in subparagraphs
(d), (e) or (m), might of itself be necessary for a finding that violation of
that duty caused the unlawfulness of the decision; and some of the findings and
orders sought in subparagraphs (j) to (l) might be needed to provide directions
as to how a further determination is to be made or be a necessary consequence
of the invalidity of the decision. Also, on that interpretation, if the
decision of September 26, 2005 is held to be valid, or for any reason, not
subject to judicial review, that could very well be the end of the matter, with
no need or grounds for the Court to make any of the determinations or orders
sought in paragraphs (b) to (n).
[7] On
another possible interpretation, each request for relief is independent of the
others and, more to the point, of the grounds for review of the September 26,
2005 decision. Under that interpretation the Court could, for example, hold
that the decision of September 26, 2005 is lawful and valid, or that judicial
review thereof is premature or unavailable, yet at the same time declare that
the Ministers have duties to carry out in the future relating to environmental
assessments, prohibit any actions until these duties are fulfilled or review
and invalidate contracts and actions taken by the Port in parallel or pursuant
to the decision.
[8] A review
of the evidence filed by the parties pursuant to Rules 306 and 307 as of
January 16, 2006 indicates that the parties appear to have proceeded,
until then, on the basis that the former, more restrictive interpretation of
the scope of this application was the correct one. Indeed that evidence
concerns primarily the events that occurred prior to the date of the decision,
and the only references to events having taken place afterwards relate to the
actual date where the agreement contemplated in the decision of September 26
was executed, to the date the Bands were informed of the decision, to the date
on which documents supporting the Bands’ land claims were delivered and to the introduction
of these documents, and to the fact, in very general terms, that consultations
with the Bands are “ongoing”. Certainly, none of the evidence filed as of the
end of January 2006 appears to be aimed at or relevant to any determination as
to the lawfulness, adequacy or requirements of any process, decision or actions
made pursuant or subsequent to the decision under review, as would be the case
if the true scope of the application extended beyond the immediate cause and
effect of the September 26 decision.
[9] It
is further noteworthy that the Bands did institute independent proceedings in
relation to matters which could, on the wider interpretation of the scope of
this application, have been deemed to be covered by this application: On
January 17, 2006 the Bands instituted a judicial review application, in Court
file T-89-06, in relation to “the pending decision of the Minister of Transport
to authorize the Fairview Terminal Conversion” and to the Crown’s duties of
consultation and accommodation in that regard; on October 16, 2006, in Court
file 06-T-79, the Bands filed a motion for an extension of the time within
which they could bring a judicial review application in respect of a decision
of October 27, 2005 by the Minister of Transport regarding consultation and in
respect of the environmental screening decision made in January 2006 relating
to the terminal conversion project.
[10] It is
clear to me that the only conclusion that can be reached as to the scope of
this judicial review application, both as intended by the Bands themselves and
as permitted by the Rules of this Court, is that it is strictly limited to the
lawfulness and validity of the decision of September 26, 2005. It does not
extend to an inquiry into or a determination of the validity of any decision or
act made in parallel or subsequent to the decision, or to the determination of
any duty or standard of conduct required for decisions or actions made
subsequent to the decision in question, save insofar as the relief that may be
granted by the Court pursuant to section 18.1(3) of the Federal Courts Act
in relation to the specific decision at issue affects those other issues.
[11] Any
evidence filed, or proposed to be filed, which does not assist in determining
these limited questions is therefore irrelevant. Furthermore, in view of the
level of animosity and antagonism displayed by the parties as to the issues
raised in the new proposed evidence, allowing the introduction of any such
evidence unless it is strictly relevant or necessary to the determination of
this application would only serve to feed the animosity, detract from the real
questions at issue and generally not be in the interest of justice.
[12] With
these broad parameters established, I proceed to consider the motions before
me.
The Bands’ motion to replace Exhibit “J”
to the affidavit of Garry Reece
[13] The
Respondents do not contest this part of the Bands’ motion. It will be granted.
The Bands’ motion to strike parts of the affidavit
of Lorne Keller
[14] The
Port filed the affidavit of Mr. Keller on January 13, 2006, but the Applicants
did not move to strike its allegedly offending paragraphs until after they had
completed their cross-examination of Mr. Keller.
[15] The
impugned paragraphs read as follows:
“6. As indicated by Exhibit “A” to
Reece Affidavit #1, on or about August 30, 2004, the PRPA began consulting with
the Lax Kw’alaams and Metlakatla Bands, regarding the Project. Such
consultations have involved numerous meetings, telephone conversations and
exchanges of correspondence between myself, other representatives of and legal
counsel for the PRPA, and Chiefs Reece, Leighton, other representatives of and
legal counsel (Ratcliff & Company) for the Bands, as well as the
negotiation of agreements between the PRPA and the Bands, and funding provided
to the Bands by the PRPA, all during the latter part of 2004 and continuing
through 2005.”
[only the second sentence is
at issue]
“7. Some of such communications,
negotiations, agreements and funding are referred to in Exhibits “G”, “J”, “O”
and “P”, of Reece Affidavit #1. For example, the ‘Impacts and Opportunities’
document attached as Exhibit “R”, which Chief Reece says in paragraph 24 that
he was instructed by the Bands’ counsel to present to Canada, was prepared with
funding by the PRPA, pursuant to the Fairview Agreement referred to in Exhibit
“P”.”
“8. The consultations generally
described above, and by Chief Reece, have resulted in mitigation measures such
as those indicated in Exhibit “W” of Reece Affidavit #1.”
[16] The
Bands’ objection to these paragraphs is based on the terms of an agreement
referred to as the “Fairview Agreement” entered into between the Bands and the
Port on August 23, 2005.
[17] The
portions of the Fairview Agreement which are relevant to this motion are the
following:
“2(a) All discussions
leading to the formation of this Agreement, this Agreement, as well as all
discussions, negotiations, information acquired, documents prepared and
agreements made by the Parties under this Agreement (“Confidential
Information”), will be confidential and the disclosure of Confidential
Information under this Agreement will not in any way constitute a waiver of
solicitor-client privilege, lawyer’s brief/work product privilege or Crown
privilege, if such privilege is otherwise applicable. Confidential Information
will not be disclosed to any non-party or in litigation, except:
(i) as Parties might
otherwise unanimously agree in writing;
(ii) as may be required by
law;
(iii) as may be permitted
pursuant to the exercise of statutory or regulatory discretion;
(iv) for greater certainty,
Lax Kw’alaams and Metlakatla will be entitled to disclose Confidential
Information to the members of the Bands, and PRPA will be entitled to disclose
Confidential Information to their respective boards of directors, principals,
agents, contractors, lenders and ministers, departments and other governmental
entities of Canada, on the understanding that those persons will be bound by
this confidentiality agreement;
(v) that Confidential
Information is admissible only in litigation dealing with a breach or alleged
breach of this Agreement.
(…)
(c) The parties agree
that the negotiations pursuant to this Agreement and the discussions leading up
to this Agreement have been and will be conducted on a without prejudice basis,
and no Party will put in evidence any reference to the content of, the
existence of or any statements made or positions taken in these discussions and
negotiations in any action or petition before the court other than litigation
dealing with an alleged breach of this Agreement. For greater certainty, no
Party will reference the existence of or the content of these discussions and
negotiations in any action or petition relating to consultation or
accommodation of aboriginal rights and title.”
[18] The
Bands consider that the impugned portions of the Keller affidavit refer to
discussions leading up to and held pursuant to the Fairview Agreement and to
the Fairview Agreement itself and as such, that they constitute a breach of the
confidentiality agreement and of the agreement not to refer to such discussions
in litigation.
[19] In
considering this motion, it is important to distinguish between confidentiality
and admissibility. That which is confidential between the parties is not
necessarily inadmissible, and that which is inadmissible is not necessarily
confidential.
[20] Rules
151 and 152 of the Federal Courts Rules, as well as confidentiality
orders regularly issued by this Court to apply to information exchanged between
the parties in discovery, exist specifically to protect the confidentiality of
information which is prima facie admissible. On the other hand,
discussions which may not be strictly confidential may nonetheless be
inadmissible in the context of any given proceeding; such is the case of
discussions made for the purpose of attempting a settlement, which, even where
they lose or do not attract confidential status, remain inadmissible in
litigation should settlement fail, either as a form of privilege or on the
basis of lack of relevance.
[21] It is
clear that despite the language used in their motion, the Bands’ objection to
the impugned paragraphs is not premised on confidentiality but on
inadmissibility arising from a form of privilege created by the terms of the
Fairview Agreement. Indeed, confidentiality in the existence of the
discussions and in the existence and terms of the Fairview Agreement has long
been lost and the Bands did not contest this at the hearing. Confidentiality
was lost when the Bands mistakenly filed on the public record the wrong document
as Exhibit “J” to the affidavit of Garry Reece and did not move to withdraw it
for several months. Its loss was confirmed when the Bands filed their motion
record herein without seeking a confidentiality order. It appears from the
record before me that even the content of the discussions may have been
disseminated publicly.
[22] The
question before me then is whether the evidence of Mr. Keller relating to the
existence of the Fairview Agreement and of the discussions leading up to or
held pursuant to it should be struck as inadmissible.
[23] It is
settled law that a motion to strike evidence ought to be left to the
determination of the judge who will be hearing the merits of the application,
unless the evidence is obviously inadmissible and that leaving the
determination to the hearing judge would cause prejudice to the moving party
(see for example, Canadian Tire Corp. v. P.S. Partsource, [2001] F.C.J.
No. 181; 2001 FCA 8, Mayne Pharma (Canada) Inc. v. Aventis Pharma Inc.,
[2005] F.C.J. No. 215; 2005 FCA 50, and Bojangles International, LLC v.
Bojangles Café Ltd., 2005 FC 272; [2005] F.C.J. No. 383).
[24] I am
not satisfied that the impugned evidence is obviously inadmissible, nor that
the Bands would be prejudiced by allowing that issue to be determined by the
hearing judge.
[25] Although
the Port has made much of the many ways in which the Bands are alleged to have
breached the terms of the Fairview Agreement and therefore lost the right to
rely on its terms, breaches of confidentiality are not relevant to the issue of
whether the privilege alleged to attach to the discussions applies or has been
lost. It seems to me that the crucial questions are, first, whether the
“inadmissibility” provision of the Fairview Agreement is, or was ever, enforceable
in relation to any litigation where the fulfillment of the Crown or the Port’s
duty to consult and accommodate is at issue; second, whether it applies to any
discussions or only those relating to aboriginal claims and title; and third,
whether the Bands’ conduct in this litigation constitutes a waiver of any
privilege having attached to the discussions. The answer to any of these
questions is far from obvious.
[26] While
it is not my purpose to determine the questions either way, it seems to me that
there is an arguable issue as to whether discussions relating solely to
environmental issues, as opposed to treaty rights and accommodation, are in
fact covered by the confidentiality provisions of the Fairview Agreement.
Further, it is arguable that to the extent the Fairview Agreement strictly
requires that “no Party will reference the existence of […] these discussions
and negotiations in any action or petition relating to consultation or
accommodation […]”, this requirement would apply as much to any statement
denying the existence of the discussions as to statements asserting that they
took place; if so, then by filing evidence unequivocally stating that they
“have never been consulted regarding nor participated in any environmental
assessment” of the project, the Bands could be said to have put the existence
of these discussions in issue and waived any privilege attaching thereto. It
also appears that several of the exhibits attached to the affidavit of Mr.
Reece, and specifically referred to in the impugned portions of the affidavit
of Mr. Keller, do refer to confidential information and discussions, as defined
in the Fairview Agreement. Finally, I note that even though the impugned
paragraphs on their face appear to relate to the allegedly privileged
discussions, the Bands did not immediately move to strike them, but chose to
cross-examine Mr. Keller on these statements. Extensive cross-examination was
made on these very statements without any prior mention of the privilege or any
objection as to admissibility, and without ensuring that the questions and
answers relating to these issues be segregated in a separate transcript so that
they could be easily severed should the paragraphs be struck. In fact, it is
only at page 27 of the transcript, after substantive examination has been
conducted on all three impugned paragraphs, that counsel for the Bands first
mentioned the confidentiality provisions of the Fairview Agreement. It is
arguable that the Bands waived the privilege or the right to object to admissibility
by failing to raise it earlier.
[27] As to
any prejudice that may be suffered by the Bands if the issue of the
admissibility is deferred to the hearing judge, I fail to find any. It is quite
apparent from the evidence as a whole, including the affidavits filed by the
Bands themselves, that some discussions between the Bands and the Port had
taken place in the summer or early fall of 2005 (see paragraph 9 of the
affidavit of Mr. Keller, Exhibits “O” and “P” to the affidavit of Garry
Reece, and paragraph 5 of the affidavit of Robert Prud’homme); the impugned
parts of the affidavit do not reveal the contents of any such discussions nor
the position taken by any party in the course of these discussions. To the
extent more specific information was adduced on cross-examination which might
somehow be prejudicial to the Bands, same was introduced into the record by the
Applicants themselves. I fail to see how, in the circumstances, evidence simply
asserting the existence of these discussions could prejudice the Bands if it
remains on the record pending determination of its admissibility by the hearing
judge.
[28] The
Applicants’ motion to strike parts of the affidavit of Lorne Keller will be
dismissed, under reserve of the Applicants’ right to raise the same objection in
their application record, for determination at the hearing of the application
on its merits.
Respondents’ motions to adduce additional
evidence
[29] Both
the Ministers’ and the Port’s motions to adduce additional evidence are said to
be premised on the fact that certain events have occurred since the initial
affidavits were filed which are relevant to the application and should be
brought to the attention of the Court and on a “change in the focus” of the
application.
[30] Although
one would have expected that the proposed new evidence would relate exclusively
to matters that occurred after mid-January 2006, the proposed affidavits in
fact extensively revisit events that took place prior to the filing of the
initial affidavits, going into much detail as to the substance of discussions
held between the Bands, the Port and the Ministers’ representatives. These,
clearly, are not new events.
[31] As I
understand it, the portions of the proposed additional evidence going to events
that occurred prior to mid-January 2006 are deemed necessary by the Respondents
because of the alleged “change in the focus” of this application. What
precipitated the Respondents’ view that a change of focus has occurred appears
to have been the decision of Justice Von Finckenstein rendered September 21,
2006 in Court file T-89-06, reported as Leighton v. Canada (Ministry of
Transport), [2006] F.C.J. No. 1417; 2006 FC 1129; [2007] 1 C.N.L.R. 195, in
which the Bands were seeking judicial review of “the pending decision of the
Minister of Transport to authorize the conversion of the Fairview Terminal”,
together with the manner in which the Bands have treated the decision.
[32] In that
application, the Bands were seeking various declarations as to the existence
and extent of the Crown’s duty to consult and accommodate them in respect of
the Fairview Terminal conversion project, together with an injunction
prohibiting the Minister of Transport from authorizing the project until that
duty had been discharged. Justice Von Finckenstein dismissed the application
as a whole, on the basis that there had been no “decision” or “matter”
conferring jurisdiction on the Court to review any aspect of the consultation
process. However, the Reasons for Order contain statements to the effect that
the Crown’s assessment of the Bands’ claim and of the scope of the Crown’s duty
to consult, as limited to the water component of the project, was unreasonable.
[33] It
appears that the Bands have taken the position, in public statements and in
other litigation before this Court (namely, in their motion to extend time in
Court file 06-T-79), that Justice Von Finckenstein’s Reasons for Order
constitute a binding determination as to the adequacy of the consultation
process. The Respondents of course disagree, but fear that because of the
paucity of the existing record before the Court on this application as to the
substance of the consultations between them and the Bands, and of the
potentially very wide scope of this application, a decision on this application
could turn on the adequacy of the consultations and of environmental reviews
and assessments, not merely prior to the decision of September 26, 2005, but
subsequent thereto. They fear that such determination, if made, would be made
without substantial evidence as to what in fact occurred.
[34] For
the reasons set out above as to the true and correct scope of this application,
I find that the Respondents’ fears regarding a potential review of the adequacy
of consultations, reviews and assessments conducted after the date of the
decision under review are unfounded. There is accordingly no justification for
introducing any new evidence at all as to the consultation and accommodation
process, or the environmental review, assessment or screening process, that may
have taken place after September 26, 2005.
[35] It may
be that the adequacy of the consultation as to aboriginal rights and
environmental impacts which occurred prior to the September 26 decision
will be subject to determination in this application. However, that surely
would have been within the reasonable contemplation of the Respondents at the
outset of this application, and they had the duty to put their best foot
forward at the earliest opportunity. They have not satisfactorily explained
why they could not have foreseen the relevance of such evidence, and they cannot
now supplement their case.
[36] The
proposed supplementary affidavits contain substantial evidence as to how the
Bands allegedly breached the provisions of the Fairview Agreement after January
16, 2006, and how these breaches now allow the Respondents to introduce
evidence of the Fairview Agreement discussions, which previously had to be
suppressed.
[37] However,
the breaches in question go to the confidentiality of the information, not its
admissibility. As mentioned before, confidentiality is a separate and distinct
issue from admissibility, and I cannot see how a breach of confidentiality by
the Bands should be relevant to the admissibility of the evidence. As also mentioned
earlier, most of the grounds upon which it could be argued that the privilege claimed
as to these discussions never attached or was lost existed before the
Respondents filed their initial evidence and already appear from the record. The
proposed evidence as to the Bands’ breach of the confidentiality provisions of
the Fairview Agreement is therefore neither a justification for the late
introduction of the additional evidence nor relevant to the determination of
the admissibility of the evidence of Mr. Keller.
[38] The
proposed supplementary affidavits also include evidence of certain events which
occurred after January 16, 2006 and which may be relevant and of assistance to
the Court in determining whether any or all parts of the application is moot,
and in determining the appropriate relief, if any. These events are:
- The fact
that a Screening Decision was made pursuant to the Canada Environmental
Assessment Act, on January 22, 2006;
- The fact
that construction of the Project began in late March 2005 and is scheduled to
be completed in about August 2007;
- The fact
that Transport Canada advised the Bands by letter dated May 17, 2005, that it
considered the consultation process regarding the Project to be complete and
that the Ministry of Western Economic Diversification would proceed to disburse
monies under the Grant Agreement.
- The fact
that the Ministry of Western Economic Diversification made the following
payments to the Port pursuant to the Grant Agreement:
- $5,000,000
on June 5, 2006.
- $5,000,000
on July 26, 2006.
- $6,000,000
on December 7, 2006.
[39] There
is no evidence before me, or reason for me to believe, that introducing
evidence as to the existence of these facts (and not as to any discussions or
processes leading up to them) would cause prejudice to the Bands. Evidence of
these events, as bare facts, will not lead to and cannot form the basis of any
attempt to expand the scope of this application to a judicial review of theses
acts and decisions. Leave will therefore be granted to the Respondents to file
further affidavits going strictly to establishing those facts. The
Respondents’ motions to file additional affidavits are otherwise dismissed.
The Bands’ motion to strike the
affidavits filed as part of the Respondents’ motions to adduce supplementary
affidavits
[40] In
view of the conclusions I have come to on these motions, and of the basis for
these conclusions, I find it unnecessary to rule on this motion and it will be
dismissed as moot. I have mentioned earlier the climate of antagonism and
animosity that exists between the parties. That climate seems to have affected
counsel; the cross-examinations on affidavits clearly reflect this and I cannot
say that it was the finest hour of either counsel for the Bands or for the
Port. It is just as well that I need say no more on the subject.
Severance
[41] The
possibility or necessity of ordering a separate determination of any issue in
this application was raised by the Court for consideration in the event I had
come to the determination that the application indeed raised issues going
beyond the strict cause and effect of the September 26, 2005 decision, and
that the supplementary evidence tendered by the Respondents should be filed.
Such a determination would have introduced in this application a very
substantial body of new evidence, on highly controversial issues, and the
interest of justice and proper management of this application might have
required that severance be considered. In view of my determination as to the
scope of this application, I do not propose to further consider the possible
severance of any issue in this application.
ORDER
IT IS ORDERED THAT:
1.
The
Applicants have leave to remove from the record and replace with the document
appearing at page 7 of their motion record, the document currently filed as
Exhibit “J” to the affidavit of Garry Reece, sworn on November 23, 2005.
2.
The
Applicants’ motion to strike portions of the affidavit of Lorne Keller is
dismissed.
3.
The
Applicants’ motion to strike affidavits pursuant to Rule 97 is dismissed.
4.
The
Respondents have leave to serve and file, no later than 20 days from the date
of this order, supplementary affidavits and documentary evidence for the strict
and exclusive purpose of establishing the following facts:
- The fact
that a Screening Decision was made pursuant to the Canada Environmental
Assessment Act, on or about January 22, 2006;
- The fact
that construction of the Project began in late March 2005 and is scheduled to
be completed in or about August 2007;
- The fact
that Transport Canada advised the Bands by letter dated May 17, 2005, that it
considered the consultation process regarding the Project to be complete and
that the Ministry of Western Economic Diversification would proceed to disburse
monies under the Grant Agreement.
- The fact
that the Ministry of Western Economic Diversification made the following
payments to the Port pursuant to the Grant Agreement:
- $5,000,000
on or about June 5, 2006.
- $5,000,000
on or about July 26, 2006.
- $6,000,000
on or about December 7, 2006.
5.
Cross-examinations
on the supplementary affidavits shall be completed no later than 15 days from
the date they are served.
6.
The
Applicants’ record shall be served and filed no later than 30 days following
the expiration of the time provided in this order for cross-examinations.
7.
The
Respondents’ respective records shall be served and filed no later than 30 days
from the date of service of the Applicants’ record.
8.
The
Applicants may serve and file a requisition for hearing at any time following
filing of their record and in any event, no later than 10 days following the
expiration of the time provided in this order for the filing of the
Respondents’ records.
9.
Cost of all motions shall be in the cause.
“Mireille Tabib”
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