Docket: A-149-14
Citation: 2014 FCA 145
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CORAM:
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TRUDEL J.A.
STRATAS J.A.
WEBB J.A.
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BETWEEN:
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ONTARIO FEDERATION OF ANGLERS AND HUNTERS
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Appellant
- and -
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ALDERVILLE INDIAN BAND now known as Mississaugas
of Alderville First Nation, GIMAA JIM BOB MARSDEN suing on his own behalf and
on behalf of the members of the Mississaugas of Alderville First Nation,
BEAUSOLEIL INDIAN BAND now known as Beausoleil First Nation, GIMAA RODNEY
MONAGUE suing on his own behalf and on behalf of the members of the
Beausoleil First Nation, CHIPPEWAS OF GEORGINA ISLAND INDIAN BAND now known
as Chippewas of Georgina Island First Nation, GIMAANINIIKWE DONNA BIG CANOE
suing on her own behalf and on behalf of the members of the Chippewas of
Georgina Island First Nation, CHIPPEWAS OF RAMA INDIAN BAND now known as
Mnjikaning First Nation, GIMAANINIIKWE SHARON STINSON-HENRY suing on her own
behalf and on behalf of the members of the Mnjikaning First Nation, CURVE
LAKE INDIAN BAND now known as Curve Lake First Nation, GIMAA KEITH KNOTT
suing on his own behalf and on behalf of the members of the Curve Lake First
Nation, HIAWATHA INDIAN BAND now known as Hiawatha First Nation,
GIMAANINIIKWE LAURIE CARR suing on her own behalf and on
behalf of the members of the Hiawatha First
Nation, MISSISSAUGAS OF SCUGOG INDIAN BAND now known as Mississaugas of
Scugog Island First Nation, GIMAANINIIKWE TRACY GAUTHIER suing on her own
behalf and on behalf of the members of the
Mississaugas of Scugog Island First Nation,
HER MAJESTY THE QUEEN and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
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Respondents
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REASONS FOR ORDER
STRATAS J.A.
[1]
The appellant appeals from
the order of the Federal Court (per Justice Mandamin) dated February 18,
2014: 2014 FC 155. The Federal Court dismissed the appellant’s motion for leave
to intervene in Alderville First Nations et al. v. Canada et al. (court
file T-195-92).
[2]
Three motions are before me:
● The timeliness motion.
The respondents other than the federal Crown and Ontario Crown (the “respondent
Indian Bands”) move for an order striking the notice of appeal on the ground
that it was filed late.
● The motion attacking various
grounds of appeal. Both the respondent Indian Bands and the Ontario Crown
move against various portions of the notice of appeal primarily on the ground
that they are scandalous, frivolous, vexatious and irrelevant to the issues
before the Court.
● The motion to determine
contents of the appeal book. The appellant seeks an order allowing it to
include various materials into the appeal book.
[3]
I would strike the notice of
appeal on the ground that it has been filed late and the appellant is not
entitled to an extension of time. Accordingly, it is not necessary to consider
the motions concerning the propriety of the grounds of appeal or the contents
of the appeal book.
A.
Background facts
[4]
The Federal Court pronounced
its judgment on the appellant’s motion to intervene on February 18, 2014. The
appellant presented its notice of appeal for filing 22 days later, on March 12,
2014.
[5]
Whether or not the notice of
appeal was in time depends on whether the Federal Court’s judgment is final or
interlocutory. The deadline for the former is 30 days (excluding July and
August): paragraph 27(2)(b) of the Federal Courts Act. The
deadline for the latter is 10 days: paragraph 27(2)(a) of the Federal
Courts Act.
[6]
The Registry recognized that
if the notice of appeal concerns an interlocutory matter, it was late. However,
if it concerns a final matter, it was in time. The Registry was unsure whether
the Federal Court’s judgment is final or interlocutory. So it referred the
notice of appeal to a judge of this Court for direction.
[7]
On March 19, 2014, this
Court (per Justice Webb) directed that the notice of appeal be
accepted provisionally for filing. However, this Court preserved the right of
any party to move against the notice of appeal on the ground that it concerns
an interlocutory matter and was filed late. The respondent Indian Bands have
brought that motion.
B.
The composition of this
Court for the purposes of this motion
[8]
Had the notice of appeal not
been filed, a single judge could have ruled on the propriety of its filing
under Rule 72 or Rule 74. However, once a notice of appeal is filed, there is
an appeal before the Court. An order quashing the notice of appeal and ordering
its removal from the court file terminates the appeal. To terminate an appeal,
a panel of three judges is required. See Rock-St Laurent v. Canada (Citizenship and Immigration), 2012 FCA 192 at paragraph 30.
[9]
Accordingly, a panel of
judges has been constituted to determine the motion to strike the notice of
appeal.
C.
The parties’ positions on
the motion to strike the notice of appeal
[10]
The respondent Indian Bands
say that the notice of appeal, presented for filing, concerns an interlocutory
matter and, thus, was filed late.
[11]
Both the appellant and the
federal Crown say that the notice of appeal concerns a final matter and, thus,
was filed in time. However, if it concerns an interlocutory matter, the appellant
asks this Court to exercise its discretion nunc pro tunc
in favour of granting an extension of time for filing. The appellant, the
respondent Indian Bands and the federal Crown agree that this Court has the
power to grant such an extension of time under subsection 27(2) of the Federal
Courts Act. The Ontario Crown takes no position on this motion.
D.
Is the Federal Court’s order
interlocutory or final?
[12]
The appellant and the
federal Crown both cite Hollinger Inc. v. Ravelston Corp., 2008 ONCA
207, [2008] O.J. No. 1126 (C.A.) on the issue whether the Federal Court’s order
is interlocutory or final.
[13]
Hollinger deals with Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (as amended). The case at
bar arises under the Federal Courts Act, R.S.C. 1985, c. F-7 (as
amended) and the Federal Courts Rules, SOR/98-106 (as amended)
(collectively, the “federal procedural rules”). Cases interpreting Ontario’s rules are often of little assistance when we interpret federal procedural
rules.
[14]
Our task in interpreting
federal procedural rules is to look at the exact words used in those rules –
not Ontario’s rules – and interpret them in light of related provisions,
especially definition provisions. We must also examine the function served by
those words in the wider context of the rules, and the purposes behind the
particular text and the rules as a whole. See Bell ExpressVu Limited
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559.
[15]
Ontario’s rules and the federal procedural rules do
draw distinctions between final and interlocutory matters. But that is where
the similarity ends.
[16]
In the two sets of rules,
the final and interlocutory concepts play different roles and further different
purposes. Under Ontario’s rules, the interlocutory-final distinction can affect
which Court one proceeds to and whether one must seek leave to appeal; under
the federal procedural rules, the interlocutory-final distinction affects only
the deadline for filing a notice of appeal.
[17]
Hollinger, supra, decided under Ontario’s rules,
is in part based on the role the interlocutory-final distinction plays in those
rules.
[18]
In Hollinger, a
newspaper unsuccessfully moved for access to a court file in the face of a
previously-imposed protective order. The Court of Appeal ruled that the order dismissing
the newspaper’s motion was final. It founded its decision on the fact that if
the order were interlocutory, there would be real problems for the newspaper in
exercising its right to appeal, such as having to bring multiple appeals in
different courts because of the operation of provisions of the Courts of
Justice Act: Hollinger at paragraphs 48-51. This problem does not
exist under our federal procedural rules.
[19]
Hollinger is part of a line of jurisprudence in Ontario to the effect that in determining whether an order is final or interlocutory one
must look at the effect of the order on the party to whom it applies. In Hollinger,
the effect of the dismissal of the motion was final on the newspaper.
[20]
That proposition – that one
must look at the effect of the order on the party to whom it applies – is
foreclosed by the specific wording in the federal procedural rules,
specifically sections 2 and 27 of the Federal Courts Act, supra.
The relevant portions of these sections are as follows:
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2. (1) In this Act,
“final
judgment” means any judgment or other
decision that determines in whole or in part any substantive right of any of
the parties in controversy in any judicial proceeding;
…
27. (1) An appeal lies to the Federal Court of Appeal
from any of the following decisions of the Federal Court:
(a) a final judgment;
(b) a judgment on a question of law
determined before trial;
(c) an interlocutory judgment; or
(d) a determination on a reference made by
a federal board, commission or other tribunal or the Attorney General of
Canada.
…
(2) An appeal under this section
shall be brought by filing a notice of appeal in the Registry of the Federal
Court of Appeal
(a) in the case of an interlocutory
judgment, within 10 days after the pronouncement of the judgment or within
any further time that a judge of the Federal Court of Appeal may fix or allow
before or after the end of those 10 days; and
(b) in any other case, within 30 days, not
including any days in July and August, after the pronouncement of the
judgment or determination appealed from or within any further time that a
judge of the Federal Court of Appeal may fix or allow before or after the end
of those 30 days.
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2. (1) Les définitions qui suivent s’appliquent à la
présente loi.
« jugement définitif » Jugement ou autre décision qui statue au
fond, en tout ou en partie, sur un droit d’une ou plusieurs des parties à une
instance.
…
27. (1) Il peut être interjeté appel, devant
la Cour d’appel fédérale, des décisions suivantes de la Cour fédérale :
a) jugement définitif;
b) jugement sur une question de droit
rendu avant l’instruction;
c) jugement interlocutoire;
d) jugement sur un renvoi d’un office
fédéral ou du procureur général du Canada.
…
(2) L’appel interjeté dans le cadre du présent
article est formé par le dépôt d’un avis au greffe de la Cour d’appel
fédérale, dans le délai imparti à compter du prononcé du jugement en cause ou
dans le délai supplémentaire qu’un juge de la Cour d’appel fédérale peut,
soit avant soit après l’expiration de celui-ci, accorder. Le délai imparti
est de :
a) dix jours, dans le cas d’un jugement
interlocutoire;
b) trente jours, compte non tenu de
juillet et août, dans le cas des autres jugements.
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[21]
To be a “final judgment,” the Federal
Court’s order would have to determine “in whole or in part any substantive right of any of the parties” in “any
judicial proceeding”: section 2 of the Federal Courts Act. The word
“proceeding” is consistently used in the Federal Courts Act to mean the
matter before the Court – such as an action or application – and not a
component of the matter, such as a motion: see, e.g., subsections 17(4)
and 17(5), section 23, and subsections 36(1), 36(5) and 39(1) of the Federal
Courts Act.
[22]
In this case, the
“proceeding” is the action. The appellant is not a party to the action. The
parties to the action are the respondent Indian Bands, the federal Crown and
the Ontario Crown.
[23]
Further, the appellant’s
substantive rights are not in issue. Intervention is not a substantive right.
It is a procedural right to make submissions granted to a party for reasons
quite independent of whether the party itself is asserting a substantive right.
Interveners do not need to have, and often do not have, a substantive right in
order to intervene. See Canada (Attorney General) v. Pictou Landing
First Nation, 2014 FCA 21.
[24]
In this case, the dismissal
of the appellant’s motion to intervene did not determine any of the appellant’s
substantive rights. Instead, it denied the appellant the procedural right to
have a say in a proceeding where others’ substantive rights are being
determined.
[25]
Put another way, the Federal
Court’s order determines the appellant’s participatory claim, not a right to
its own remedy under a cause of action under the Constitution, legislation or
the common law.
[26]
My conclusions in this regard are supported by earlier decisions
in this Court, all to the effect that an order being appealed which does not
determine substantive rights is interlocutory: Reebok Canada v. Canada
(Minister of National Revenue) (1995), 179 N.R. 300 (F.C.A.) (an order
granting leave to appeal); Simpson Strong-Tie Co. v. Peak Innovations Inc.,
2008 FCA 235 and 2008 FCA 236 (an order refusing to amend a statement of
opposition); Canada (Attorney General) v. Hennelly (1995), 185 N.R. 389 (F.C.A.) (an
order refusing an extension of time to file an application record). In
particular, Simpson Strong-Tie Co. and Hennelly are rather
analogous on their facts to the case at bar.
[27]
Therefore, I conclude that the Federal Court’s order was not a “final judgment.”
Instead, it was interlocutory. The appellant had to file its notice of appeal
ten days from the pronouncement of the Federal Court’s order. It failed to meet
that deadline. Unless the appellant is entitled to an extension of time, the
notice of appeal should be removed from the court file.
E.
Is the appellant entitled to
an extension of time?
[28]
Paragraph 27(2)(a)
provides that a judge of this Court may allow an appellant an extension of time
to file its notice of appeal.
[29]
The following factors bear
upon the question whether this Court should grant the extension of time:
(1) a continuing
intention to pursue the appeal;
(2) potential merit to
the appeal;
(3) the absence of
prejudice to any party to the appeal; and
(4) a reasonable explanation
for the delay.
See Grewal v. Canada (Minister of Employment & Immigration), [1985] 2 F.C. 263 (C.A.); Canada (Attorney General) v. Larkman, 2012 FCA 204 at paragraph 62. The importance of each factor depends upon the particular circumstances
of the case.
[30]
Further, not all of these
four factors have to be resolved in the appellant’s favour. For example, “a
compelling explanation for the delay may lead to a positive response even if
the case against the judgment appears weak, and equally a strong case may
counterbalance a less satisfactory justification for the delay”: Grewal,
supra at page 282. In certain cases, particularly in unusual cases,
other questions may be relevant. The overriding consideration is that the
interests of justice be served. See generally Grewal, at pages 278-279.
[31]
Whether the appellant had a
continuing intention to appeal and whether the appellant has a reasonable
explanation calls for the submission of evidence. The appellant’s mere say-so
in its written representations is not evidence. Here, the appellant has not
filed an affidavit in support of granting an extension of time. The Court has
no evidence on these points.
[32]
Further, in my view, the
appellant has failed to establish that the appeal has potential merit.
[33]
The appellant takes no issue
with the legal test the Federal Court applied. Instead, fairly characterized,
the appellant contests vigorously the Federal Court’s exercise of discretion.
[34]
The Federal Court’s exercise
of discretion was suffused by factual appreciation. Thus, in this appeal, the
standard of review will be palpable and overriding error: Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Palpable and overriding error
is a high test:
Palpable and overriding error is a
highly deferential standard of review: H.L.
v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Peart v.
Peel Regional Police Services (2006), 217 O.A.C. 269 (C.A.) at paragraphs 158-59; [Waxman v. Waxman (2004), 186 O.A.C.
201 at paragraphs 278-84]. “Palpable” means an error that is obvious.
“Overriding” means an error that goes to the very core of the outcome of the
case. When arguing palpable and overriding error, it is not enough to pull at
leaves and branches and leave the tree standing. The entire tree must fall.
(Canada v. South Yukon Forest Corporation, 2012 FCA 165.)
[35]
The Federal Court offered
many findings in support of its order, including the following:
● the issue on which the appellant sought to
intervene is not present in the action;
● the appellant is trying to introduce a new
issue in the action;
● the Federal Court does not need the
appellant’s assistance in determining whether R. v. Howard, [1994] 2
S.C.R. 299 is binding upon it;
● the appellant knew of the action before
trial but delayed bringing its motion until well after the trial started;
● the other parties will suffer prejudice
arising from added complexity and cost; and
● the appellant’s assistance is not needed
in light of the large, sophisticated parties already before the Court.
[36]
The appellant does not
address many of these findings, let alone explain how they are vitiated by
palpable and overriding error. Instead, it seeks to reargue the merits of its
motion – and indeed the merits of its position in the action if it were allowed
to intervene.
[37]
The appellant also submits
that the Federal Court was biased because it failed to intervene in response to
the aggressive rhetoric of counsel against the motion. The test for bias is a
high one and the allegation is a serious one that should not be made idly: R. v. S.(R.D.), [1997] 3 S.C.R. 484 at paragraph 113; Es-Sayyid v. Canada (Public Safety and Emergency Preparedness), 2012 FCA 59 at paragraph 50. Courts
are accustomed to overstated, sometimes vitriolic submissions of
overly-enthusiastic counsel. Their minds are not poisoned by such submissions.
Indeed, the opposite is true – such submissions often repel. The appellant’s
submissions on bias have no potential merit.
[38]
For the foregoing reasons,
the appellant is not entitled to an extension of time.
F.
Proposed disposition
[39]
The notice of appeal was
filed late and the appellant is not entitled to an extension of time.
Accordingly, I would order that the notice of appeal be removed from the court
file and the court file (A-149-14) be closed, with costs to the respondent
Indian Bands.
“David Stratas”
“I agree
Johanne Trudel J.A.”
“I agree
Wyman W. Webb J.A.”
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