Date: 20110413
Docket: A-367-10
Citation: 2011 FCA 133
CORAM: EVANS J.A.
DAWSON J.A.
STRATAS J.A.
BETWEEN:
MUSHKEGOWUK COUNCIL and
STAN LOUTTIT
Appellants
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
Heard at Toronto,
Ontario, on April 13,
2011.
Judgment delivered
from the Bench at Toronto, Ontario, on April 13, 2011.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS
J.A.
Date: 20110413
Docket: A-367-10
Citation: 2011 FCA 133
CORAM: EVANS
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
MUSHKEGOWUK COUNCIL and
STAN LOUTTIT
Appellants
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 JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on April 13, 2011)
EVANS J.A.
[1]
We
are not persuaded that in her decision, dated September 24, 2010 (2010 FC 959),
the Federal Court Judge erred when she deferred to the exercise of discretion
by the case management Prothonotary to refuse leave to the Appellants to file
and serve a supplementary affidavit containing eight additional documents.
[2]
In
a decision dated April 15, 2010, the Prothonotary had refused leave to the Appellants
to adduce two of the documents because they had been available earlier, and they
had given no reasonable explanation for not having included them with their
original affidavit material. The other six, which were published after the date
of the report that is the subject of the Appellants’ underlying application for
judicial review, the Prothonotary found to be not relevant to the issues in the
underlying application for judicial review, to be of little or no assistance to
the Court, and likely only to confuse the issues.
[3]
The
Prothonotary identified and applied the correct, multi-factor, legal test for
granting leave to file and serve a supplementary affidavit under rule 312 of
the Federal Courts Rules. An appellate court will only interfere with a Prothonotary’s
application of the factors relevant to the exercise of discretion if satisfied
that the Prothonotary had committed an error of principle or misapprehended the
facts.
[4]
We
are not satisfied that either kind of error occurred here. We note that
“relevance” is not in itself a factor that must be considered independently for
the purpose of rule 312. Rather, it is included as part of the broader factor,
“assistance to the Court”. Whether, in this context, the documents were
relevant was a question of mixed fact and law on which the Prothonotary was
entitled to deference.
[5]
We
would also emphasize that this Court is particularly reluctant to interfere
with discretionary decisions made on non-vital issues, such as those raised
here, by Prothonotaries or Federal Court Judges in the course of case managing
a matter.
[6]
For
these reasons, the appeal will be dismissed with costs payable by the
Appellants to the Respondents.
“John
M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-367-10
(APPEAL FROM A DECISION OF THE HONOURABLE
JUSTICE ELIZABETH HENEGHAN, DATED APRIL 15, 2010, DOCKET NO. T-1305-07)
STYLE OF CAUSE: Mushkegowuk
Council and Stan Louttit v. The Attorney General of Canada, The Minister of Natural Resources (The Hon. Gary Lunn P.C., M.P.),
and The Nuclear Waste Management Organization
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 13, 2011
REASONS FOR JUDGMENT OF THE COURT BY: EVANS, DAWSON AND STRATAS JJ.A.
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Murray Klippenstein
Kent Elson
|
FOR THE APPELLANTS
|
|
Liz Tinker
Patrick Moran
|
FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
Klippensteins
Toronto, Ontario
|
FOR THE
APPELLANTS
|
|
Myles J.
Kirvan
Deputy Attorney General of Canada
Patrick Moran
Toronto, Ontario
|
FOR THE
RESPONDENTS
FOR THE RESPONDENTS – NUCLEAR WASTE
MANAGEMENT ORGANIZATION
|
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