Date: 20080917
Docket: T-1305-07
Citation: 2008
FC 1041
Toronto, Ontario, September
17, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
MUSHKEGOWUK COUNCIL and
STAN LOUTTIT
Applicants
and
THE ATTORNEY GENERAL OF CANADA,
THE MINISTER OF NATURAL RESOURCES
(THE HON. GARY LUNN P.C., M.P.), and
THE NUCLEAR WASTE MANAGEMENT ORGANIZATION
Respondents
REASONS FOR ORDER AND ORDER
[1]
This is an
appeal by the Applicants under Rule 51 of the Federal Courts Rules of
the Order of Prothonotary Milczynski dated July 8, 2008 dismissing a motion to
add paragraphs 3 and 45-54 (the “Alternative Relief”) as part of the
Consolidated and Revised Application. The Applicants also seek an Order
granting them leave to amend the now consolidated application without being required
to underline these amendments, an Order extending the time to serve this Notice
of Motion appealing the Order of Prothonotary Milczynski; and its costs of this
motion. The request to extend the time, is granted, on consent.
Background
[2]
Two
Notices of Application were issued on July 16, 2007 by the Applicants regarding
separate but related decisions made by the Minister of Natural Resources and
the Governor in Council under section 15 of the Nuclear Fuel Waste Act,
S.C. 2002, c. 23. These applications sought writs of certiorari and general
declaratory relief.
[3]
Both
applications were proceeding in parallel. They are based on similar facts and
legal issues and given the nature of the applications the Applicants brought a
motion for various procedural relief including the consolidation of these
applications which was granted by the Prothonotary on consent. The Applicants
also requested an amendment to plead the claim for declaratory relief with some
specificity as well as to plead the material facts in support of that claim for
relief. This is the only portion of the motion that was contested when it came
on for hearing. Specifically, the amendment to the relief being sought was to
add the following on paragraph 3 of the application:
In the alternative, the Applicants
make application for:
a. an order declaring
that the Minister’s Decision cannot be implemented in areas of Ordovician sedimentary
rock (including the areas that Mushkegowuk First Nations occupy around James Bay);
b. an order declaring
that the Cabinet Decision cannot be implemented in areas of Ordovician
sedimentary rock (including the areas that Mushkegowuk First Nations occupy
around James Bay);
c. an order declaring
that the Minister’s Decision only permits the disposal of 3.6 to 4.4 million
bundles of nuclear fuel waste;
d. an order declaring
that the Cabinet Decision only permits the disposal of 3.6 to 4.4 million
bundles of nuclear fuel waste;
e. an order declaring
that the Minister’s Decision only permits the disposal of nuclear fuel waste
from existing nuclear facilities that use natural uranium fuel;
f. an order declaring
that the Minister’s Decision only permits the disposal of nuclear fuel waste
from existing nuclear facilities that use natural uranium fuel;
[4]
The
relevant portion of the Prothonotary’s reasons for dismissing the motion for
the Alternative Relief requested is as follows:
The general principles on a motion to
amend are fairly well settled. Rule 75 of the Federal Courts Rules
provides that the Court may, at any time, allow a party to amend its pleadings
on such terms as will protect the rights of the parties, does not give rise to
prejudice that is not compensable by an award of costs and relates to or will
assist in determining the real questions and controversy between the parties.
On a motion to amend a pleading, a party
is not expected or required to prove its case to the required standard of
proof, and the Court must assume that the facts pleaded in the amendments are
true. It is also proper on such motion (sic) to subject the proposed
amendment to the same test as applies on a motion to strike, having regard in
particular to the enumerated grounds in Rule 221, including consideration of
whether the proposed amendments disclose no reasonable cause of action, are
immaterial, frivolous, vexatious or are such as to prejudice a delayed a fair
hearing of the proceeding on its merits.
…
I agree with the Responding Parties, that
this alternate relief is not available. It would have the Court making
specific policy decisions regarding the disposal of nuclear fuel waste – the
location of its disposal, amounts of fuel to be disposed of, and the type or
source of nuclear fuel waste. Such decisions require consideration of a
variety of scientific, social, economic and political factors come as well as
the requirements of the Nuclear Fuel Waste Act.
While the Court can inquire into whether a
decision-maker, who make such a policy decision, has the authority to make that
decision and has done so in compliance with the requirements of statutory and
administrative decision-making, the Court cannot inquire or make determinations
on the merits of the decision, (MacMillan Bloedel Ltd. v. British Columbia,
[1984] B.C.J. No. 1472 (B.C.C.A.)).
Issues
[5]
The
Applicants submit that the Court in this appeal ought to consider its motion to
amend de novo because the declaratory relief it wishes to claim is vital
to the final issues in this application or alternatively, because the
Prothonotary clearly erred in applying the test for a motion to strike, as set
out in Rule 221, to motions to amend applications when Rule 221 applies only to
actions.
Analysis
Is the amendment vital to the final issue
of the case?
[6]
In Merck
& Co., Inc. v. Apotex Inc., [2004] 2 F.C.R. 459 (C.A.), the Federal Court of Appeal set out
the standard of review of discretionary orders made by a Prothonotary. It
directed that the first question to be addressed is whether the question is
vital to the final issue.
... [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."
In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C.
425 (C.A.), at para. 97, MacGuigan J.A. described questions that are vital as
“questions vital to the final issue of the case, i.e. to its final resolution”.
[5]
The
Applicants submit that the proposed amendment is vital to its application. In
this regard its position is that in dismissing the proposed amendment, the
Prothonotary has closed off the Applicants’ ability to obtain specific declaratory
relief in the proceeding. First, that is not the case. It remains open to the
hearing Judge to issue a declaration that the Respondents failed to comply with
the legislation in regards to the consultations that the Applicants claim were
not properly done.
[6]
More
importantly, as was conceded by counsel for the Respondents, if the Applicants
can establish that the Respondents breached the Act, then it would be expected
that the Court will issue an Order quashing the decisions and sending them
back, perhaps with direction, to make the required decisions in accordance with
the Act.
[7]
Accordingly,
as the question determined by the Prothonotary was not vital to the final issue
of the case, a review de novo is warranted only if the Prothonotary’s Order was clearly wrong, in the sense
that it was based upon a wrong principle or upon a misapprehension of the
facts.
Was the Prothonotary’s Exercise of
Discretion based on a wrong principle?
[8]
As noted,
the Applicants allege that the Prothonotary erred in applying the test for a
motion to strike, as set out in Rule 221, to the motion to amendment an
Application for Judicial Review, to which Rule 221 does not apply.
[9]
There is
no question that Rule 221 does not apply to applications; however, this was not
a motion to strike and the Prothonotary makes it clear that in exercising her
discretion to amend she is considering, as one of the factors, whether the
relief claimed discloses something that the Court could award if the Applicants
were successful. In my view, that is not an improper consideration when
considering whether or not to exercise one’s discretion to permit an amendment
to an application, even at an early stage in the litigation.
[10]
Amendments
are always within the discretion of the Court as the party pleading is expected
to define the issues and specify the relief requested in the first instance.
Occasionally facts are discovered or the characterization of the lis
between the parties changes such that an amendment is in the interests of
justice. I would be hard pressed to be convinced that permitting an amendment
to raise a claim for relief that cannot reasonably be awarded by the Court is
ever in the interest of justice.
[11]
Even if Rule 221 does not apply directly to applications
the “plain and obvious" test developed in relation to motions to strike in
an action can be relevant to whether or not a motion to amend under Rule 75
should be granted. In Songhees Indian Band v. Canada
(Minister of Indian Affairs and Northern Development), 2005 FC 1464, an application not an action, Justice Harrington at
paragraph 14 wrote as follows:
I am satisfied the Prothonotary
was correct in saying that "the general principle is that amendments to
proceedings ought to be allowed if it will serve the interests of justice,
unless doing so would cause injury or prejudice to other parties that cannot be
compensated by costs. An amendment will not serve the interests of justice and
will be refused if it is plain and obvious that the Applicants could not
succeed on the proposed amendments." See Canderel Ltd. v. Canada, [1994] 1 F.C. 3 (C.A.). Although the
"plain and obvious test" as set out in such cases as Hunt v. Carey
Canada Inc., [1990] 2 S.C.R. 959 is used to strike out pleadings in
accordance with rule 221, it is equally applicable to proposed amendments. The Merck
case, supra, dealt with the proposed withdrawals of admissions and a
dramatic departure from previous pleadings. Nothing of that sort applies here.
[12]
I share
his view.
[13]
I also
share the view expressed by Prothonotary Milczynski that what the Applicants
are seeking with this amendment would require the Court to issue a declaration
that, in effect, would replace the Minister and elected officials as the
decision makers with this Court. That is not our role. While the Court can review
the decisions that they make, our role is not to rule on the merits of the
decisions made fairly and by way a process that follows the principles of
natural justice.
[14]
Accordingly,
this motion must be dismissed.
ORDER
THIS COURT ORDERS that:
1.
The time
for serving the Notice of Motion to appeal the Order of Prothonotary Milczynski
is extended as required; and
2.
This
motion is otherwise dismissed with costs.
“Russel W. Zinn”
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