Date: 20081014
Docket: T-215-08
T-1358-08
Citation: 2008
FC 1159
Ottawa, Ontario, October 14, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
HALIFAX
REGIONAL MUNICIPALITY
Applicant
and
HER MAJESTY THE QUEEN, as
represented by
Public Works and Government
Services Canada
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Applicant (Halifax) applied for consolidation of two judicial reviews pursuant
to Rule 105 and for directions pursuant to Rule 54. This motion has been
opposed by the Respondent (Minister).
[2]
In the
first proceeding, T-215-08, Halifax challenges the recommendation
by the Payment in Lieu of Taxes Dispute Advisory Panel (Panel) to the Minister
regarding the land value at the Halifax Citadel. In the second proceeding,
T-1358-08, Halifax contests the Minister’s
decision which accepted the Panel’s recommendation to the Minister.
[3]
The
Respondent’s position can be fairly summarized as one of principle – that the
first proceeding is moot because it is subsumed in the second and that
consolidation under these circumstances is an unhelpful precedent which would
favour multiple proceedings.
[4]
The
Applicant, while accepting that the Panel’s recommendation forms a core aspect
of the second proceeding, claims that the recommendations stand on their own
legal footing as a decision which is open to challenge.
[5]
There is
no question that the two proceedings are substantially connected and are close
to the same stage of readiness for hearing subject to the filing of memoranda
of argument in respect of the second proceeding. The parties are ready to
proceed on November 19, 2008 in respect of both.
[6]
The
Respondent’s reliance on Jada Fishing Co. v. Canada (Minister of Fisheries and Oceans), 2002 FCA 103, is premature.
While that decision held that advice to the Minister of Fisheries and Oceans
was not amenable to judicial review, the application of that decision in the
context of the present motion would require this Court to determine a critical
point in the first proceeding, whether there is a decision to be reviewed,
without a full hearing on the issue.
[7]
The effect
of the Respondent’s position would be akin to striking a judicial review on a
preliminary motion. While the Applicant may face difficulties with respect to
the legal effect of the Panel’s recommendation, it is entitled to make those
arguments.
[8]
The
Respondent’s reliance on John E. Canning Ltd. v. Tripap Inc., [1999]
F.C.J. No. 715 (QL), is likewise misplaced as that case dealt with an action
and third parties’ claims where there was no commonality of legal and factual
issues in those two actions.
[9]
The
Respondent may be correct that the second proceeding may dispose of the first
but that merely shows the commonality of facts and law.
[10]
The
guiding principles of avoiding multiplicity of proceedings and the promotion of
expeditious and inexpensive determination of proceedings govern consolidation
motions.
The policy objectives underlying
consolidation are the avoidance of a multiplicity of proceedings and the
promotion of expeditious and inexpensive determination of those proceedings. John
E. Canning Ltd. v. Tripap Inc., [1999] F.C.J. No. 715 at paragraph 27. In
deciding whether to consolidate proceedings the Court will consider whether
there are common parties, common legal and factual issues, similar causes of
action, parallel evidence and the likelihood that the outcome of one case will
resolve the other case. Eli Lilly and Co. v. Apotex Inc. (1994), 55
C.P.R. (3d) 429 and Canning, supra. In addition, proceedings
should not be consolidated if one of the parties would be prejudiced. Eli
Lilly, supra.
Global Restaurant Operations of Ireland
Ltd. v. Boston Pizza Royalties Limited Partnership, 2005 FC 317 at para. 11
[11]
As
indicated earlier, the two proceedings are close to the same stage of
preparation.
[12]
While
there are some differences in the legal issues in the two proceedings
potentially as to the standard of review, the commonality of facts and core
issues as to the basis of whichever decision is under attack are sufficient for
these purposes.
[13]
There is
little, if any, real prejudice to the parties by some form of consolidation.
However, the Court is concerned that the two “decisions” be kept separate for
purposes of analysis. There is little or no precedential value in any
consolidation order as each case turns to such a degree on its own facts.
[14]
The fact
that the second proceeding (which the Respondent describes as allowing for
review of the Panel’s recommendations indirectly and the Minister’s decision
directly) may effectively dispose of the first proceeding, speaks to some form
of consolidation.
[15]
In order
to preserve the distinctiveness of the two “decisions” to be reviewed, I will
not order a common record or common argument but will hear the cases one after
the other. The second proceeding will be heard first and if there are any
issues left to discuss in the first proceeding, they can be dealt with at that
time.
[16]
To
postpone the first proceeding, as suggested by the Respondent, complicates
having the matter heard by the same judge or is wasteful of judicial resources
if heard by another judge at a later date.
[17]
Therefore,
it is ordered that:
(1) T-1358-08
will be heard in Halifax commencing at 0930 on
November 19, 2008 to be followed by T-215-08. By setting the date in this
Order, there is no need to requisition a hearing date or to pay a separate fee.
(2) The
parties may in respect of T-1358-08 refer to the materials in the Record of T‑215-08,
both in memoranda and oral argument.
(3) The
Applicant shall file its Record in T-1358-08 by October 31, 2008 and the
Respondent by November 14, 2008.
(4) The
parties may seek on an informal basis any further directions as may be
necessary.
(5) Costs
of this motion shall be in the cause.
ORDER
THIS COURT ORDERS that:
(1)
T-1358-08
will be heard in Halifax commencing at 0930 on
November 19, 2008 to be followed by T-215-08. By setting the date in this
Order, there is no need to requisition a hearing date or to pay a separate fee.
(2)
The
parties may in respect of T-1358-08 refer to the materials in the Record of T‑215-08,
both in memoranda and oral argument.
(3)
The
Applicant shall file its Record in T-1358-08 by October 31, 2008 and the
Respondent by November 14, 2008.
(4)
The
parties may seek on an informal basis any further directions as may be
necessary.
(5)
Costs of
this motion shall be in the cause.
“Michael
L. Phelan”
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