Date: 20000303
Docket: T-1876-99
BETWEEN:
KEN BARLOW AND THE UNION OF
NEW BRUNSWICK INDIANS,
| Applicants, |
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
THE ATTORNEY GENERAL OF CANADA AND
THE MINISTER OF FISHERIES AND OCEANS
Respondents.
REASONS FOR ORDER
TEITELBAUM, J:
[1] The Minister of Fisheries and Oceans seeks an order striking out the judicial review application filed by Ken Barlow and the Union of New Brunswick Indians. This motion is brought pursuant to rules 4, 81 and 221 of the Federal Court Rules, 1998 for an order striking out:
| (1) the Notice of Application; |
| (2) the affidavits of Ken Barlow, sworn on the 27th day of October, 1999; |
| (3) the affidavits of Gerard Hare, sworn on the 30th day of November, 1999; |
| (4) the second affidavit of Ken Barlow sworn on the 29th day of November, 1999; |
| (5) the affidavit of Joey Francis sworn on the 29th day of November, 1999; and |
| (6) an Order dismissing this proceeding. |
[2] In the alternative, pursuant to rules 4, 53, 54, 107, and 316 of the Federal Court Rules, 1998 the respondents seek an Order that the factual issue of whether or not the respondents seized 60 lobster traps purportedly belonging to the applicant be determined in advance of the constitutional and treaty issues raised on this judicial review application, namely, whether or not the respondents breached the applicants" treaty and constitutional right to fish lobster and to trade the produce of that fishing, and an Order giving directions concerning the procedure to be followed.
[3] Pursuant to rules 8, 35, and 36 of the Federal Court Rules, 1998 the respondents seek an Order that the Orders of the Honourable Justice MacKay dated November 24, 1999 and November 30, 1999 be varied so as to adjourn generally the following matters:
| (1) the time for serving and filing the respondents" affidavits; |
| (2) the time for completing cross-examinations on the affidavits of the applicants and the respondents; |
| (3) the time for serving and filing the applicants" record; |
| (4) the time for serving and filing the respondents" record; |
| (5) the hearing of this application for judicial review. |
[4] In the alternative, pursuant to subsection 18.4(2) of the Federal Court Act, R.S.C. 1985, c. F-7, the respondents seek to convert the within application into an action.
[5] In the further alternative, the respondents seek an order pursuant to rules 8, 35 and 36 that the Orders of the Honourable Justice MacKay dated November 24, 1999 and November 30, 1999 be varied as follows:
| (1) the time for serving and filing the respondents" affidavits be extended until April 10, 2000; |
| (2) the time for completing cross-examinations on the affidavits of the applicants and the respondents be extended until May 10, 2000; |
| (3) the time for serving and filing the applicants" record be extended until May 27, 2000; |
| (4) the time for serving and filing the respondents" record be extended until June 7, 2000; |
| (5) the hearing of the application be heard from June 26 to 30, 2000. |
FACTUAL BACKGROUND TO THIS MOTION
[6] The applicant, Union of New Brunswick Indians, is an incorporated association of elected chiefs, or so it is alleged as no evidence of this was produced, representing Mi"kmaq and Maliseet First Nations in New Brunswick.
[7] The applicant, Ken Barlow, is a Mi"kmaq Indian living at Indian Island Indian Reserve in Kent County in the Province of New Brunswick. He provides the necessaries of life for himself and his two children by fishing lobster and selling the product of that fishing.
[8] The Indian Island Indian Reserve is an offshoot of the Big Cove Indian Reserve. The Mi"kmaq of Indian Island and Big Cove are the descendants of the Richibucto Mi"kmaq who signed the "Richibucto" treaty of March 10, 1760. This treaty was recently interpreted by the Supreme Court of Canada in R. v. Marshall (S.C.C. unreported) File No. 26014, decision issued on September 17, 1999.
[9] The "Richibucto" treaty applies to the Mi"Kmaq living at Indian Island and Big Cove as descendants of the Richibucto Mi"kmaq.
[10] The applicants allege that on or about October 22, 1999 at Miramichi Bay, officers of the respondent Minister of Fisheries and Oceans seized approximately 60 lobster traps belonging to the applicant Ken Barlow.
[11] By Notice of Application dated October 27, 1999 the applicants, Ken Barlow and the Union of New Brunswick Indians seek a declaration that the respondents breached Mr. Barlow"s treaty rights under the 1760 Treaty of Peace and Friendship with the Mi"kmaq people. This treaty was not filed into the Court Record.
[12] It is alleged this treaty is protected by section 35 of the Constitution Act 1982 and has been recently interpreted in Supreme Court decision in R. v. Marshall (#1) dated September 17, 1999 (S.C.C. unreported).
[13] The applicant Ken Barlow alleges that the lobster traps have not been returned to him and he has thereby been deprived of his ability to provide the necessities of life and earn a moderate livelihood for himself and his two children.
[14] On November 10th, 1999, the applicants served a Notice of Motion for an interlocutory injunction and a writ of mandamus directing the respondents to return all lobster traps seized from the applicant Ken Barlow.
[15] On November 24th, 1999, the Honourable Mr. Justice MacKay dismissed the motion for interlocutory relief. In addition, it was ordered by Mr. Justice MacKay that the hearing of this matter be set down for April 11, 2000 in Fredericton, New Brunswick for one day.
[16] Upon review of the Order issued on November 24th, 1999 and realizing that it contained a clerical error, the Honourable Justice MacKay made a subsequent order on November 30th, 1999 substituting the following therefor:
| Hearing of this matter is set down for April 11, 2000 in Fredericton, New Brunswick, commencing at 10:00 a.m. at the Federal Court, for one day. If more than a day is anticipated to be required by counsel for the hearing, they shall advise the Court on or before March 31, 2000 and the hearing will then commence at 2:00 p.m. on April 10 and continue on the following day. |
[17] On December 24, 1999, the respondents filed a Notice of Motion to bring this motion to this Court on January 10, 2000.
THE GROUNDS FOR THE MOTION
[18] The respondents submit the following grounds for this motion:
| (a) The proceedings are a nullity in that the necessary facts to support the declarations sought by the applicants have not been made out in that the affidavits filed by the applicants are defective and fail to comply with rule 81 of the Federal Court Rules, 1998. Furthermore, expert evidence is not admissible on judicial review application. Accordingly, there is no basis upon which the court can grant the relief sought. |
| (b) The essential factual underpinnings of the matter from which the applicants seek relief pursuant to section 18.1(1) of the Federal Court Act are based on the validity of the applicants" claim that the lobster traps of the applicant Ken Barlow were seized by the respondents, which the respondents deny. Accordingly, if the applicants are unable to establish that the respondents seized their lobster traps the declarations that the applicants seek in relation to the complex constitutional and treaty right issues become moot and need not be considered by this Court. |
| (c) The time deadlines for filing materials should be adjourned generally on the ground that the issues raised in this proceeding will be rendered moot if the applicants are unable to establish that their lobster traps were seized by the respondents. |
| (d) This proceeding is far too complex from an evidentiary perspective to permit it to proceed by judicial review. This is because this proceeding raises issues which cannot be satisfactorily established or weighed through affidavit evidence, and instead requires the adducing of oral history relating to aboriginal traditions, expert historical evidence, expert biological evidence respecting conservation issues and public policy issues relating to the historical participation of non natives in the lobster fishery as well as issues relating to the Burnt Church crisis. This, therefore, necessitates that this judicial review proceeding be converted into a trial of an action. |
STATUTORY PROVISIONS
Federal Court Act, R.S.C. 1985, c. I-2
Hearings in summary way
18.4 (1) Subject to subsection (2), an application or reference to the Trial Division under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.
18.4(2) Exception
(2) The Trial Division may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
Procédure sommaire d'audition
18.4 (1) Sous réserve du paragraphe (2), la Section de première instance statue à bref délai et selon une procédure sommaire sur les demandes et les renvois qui lui sont présentés dans le cadre des articles 18.1 à 18.3.
18.4(2) Exception
(2) La Section de première instance peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action.
Federal Court Rules, 1998
Rule 8. Extension or abridgement
(1) On motion, the Court may extend or abridge a period provided by these Rules or fixed by an order.
(2) When motion may be brought"A motion for an extension of time may be brought before or after the end of the period sought to be extended.
(3) Motions for extension in Court of Appeal"Unless the Court directs otherwise, a motion to the Court of Appeal for an extension of time shall be brought in accordance with rule 369.
Règle 8. Délai prorogé ou abrégé
(1) La Cour peut, sur requête, proroger ou abréger tout délai prévu par les présentes règles ou fixé par ordonnance.
(2) Moment de la présentation de la requête"La requête visant la prorogation d"un délai peut être présentée avant ou après l"expiration du délai.
(3) Requête présentée à la Cour d"appel"Sauf directives contraires de la Cour, la requête visant la prorogation d"un délai qui est présentée à la Cour d"appel doit l"être selon la règle 369.
| Rule 35. Hearing dates (1) Subject to rule 298 and paragraph 385(1)(b), motions that can conveniently be heard at the General Sittings of the Trial Division may be made returnable accordingly. (2) Special hearing dates"A request may be made informally to the Judicial Administrator for an appointment of a special time and place (a) for sittings of the Court of Appeal or of a judge of the Court of Appeal to hear a motion; or (b) for sittings of a judge of the Trial Division or of a prothonotary to hear a motion that is likely to be lengthy or a motion to be heard other than at General Sittings. |
Règle 35. Présentation des requêtes (1) Sous réserve de la règle 298 et de l"alinéa 385(1)b), les requêtes qui peuvent être commodément entendues à une séance générale de la Section de première instance peuvent être présentées à une telle séance. (2) Requêtes non présentées à une séance générale"Une demande d"audience peut être faite, sans formalité, à l"administrateur judiciaire pour fixer les date, heure et lieu : a) de l"audition d"une requête par la Cour d"appel ou l"un de ses juges; b) de l"audition, par un juge de la Section de première instance ou un protonotaire, d"une requête qui sera vraisemblablement de longue durée ou qu"il est indiqué d"entendre à un autre moment que pendant une séance générale. |
Rule 36. Adjournment
(1) A hearing may be adjourned by the Court from time to time on such terms as the Court considers just.
(2) Adjournment to fixed day"Where a hearing is adjourned to a fixed day, a party who appeared at the hearing is deemed to have had notice of the adjournment.
(3) Notice dispensed with"Where a party has failed to appear at a hearing, that party need not be served with notice of an adjournment of the hearing.
Règle 36. Ajournement
(1) La Cour peut ajourner une audience selon les modalités qu"elle juge équitables.
(2) Date déterminée"Lorsqu"une audience est ajournée pour reprendre à une date déterminée, toutes les parties qui ont comparu à l"audience sont réputées en avoir été avisées.
(3) Dispense de signification"Nul n"est tenu de donner avis de l"ajournement d"une audience à une partie qui n"a pas comparu à celle-ci.
Rule 81. Content of affidavits
(1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent"s belief, with the grounds therefor, may be included.
(2) Affidavits on belief"Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts.
Règle 81. Contenu
(1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s"ils sont présentés à l"appui d"une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l"appui.
(2) Poids de l"affidavit"Lorsqu"un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables.
| Rule 114. Representative proceedings (1) Where two or more persons have the same interest in a proceeding, the proceeding may be brought by or against any one or more of them as representing some or all of them. (2) Motion to appoint representative"At any time, the Court may, on motion, appoint a person to represent some or all of the parties in a proceeding referred to in subsection (1). (3) Where representative not a party"Where under subsection (2) the Court appoints a person not named as a party to the proceeding, it shall make an order adding that person as a party. (4) Order binding on represented persons"An order in a proceeding referred to in subsection (1) is binding on all represented parties, but shall not be enforced against them without leave of the Court. |
Règle 114. Recours collectif (1) Lorsque des personnes ont un intérêt commun dans une instance, celle-ci peut être engagée par ou contre l"une ou plusieurs de ces personnes au nom de toutes celles-ci ou de certaines d"entre elles. (2) Représentant désigné sur requête"Dans une instance visée au paragraphe (1), la Cour peut, à tout moment, sur requête, désigner une personne en tant que représentant de toutes les parties ou de certaines d"entre elles. (3) Constitution en partie"Si la personne désignée aux termes du paragraphe (2) n"est pas une partie, la Cour rend une ordonnance constituant cette personne partie à l"instance. (4) Effet de l"ordonnance"L"ordonnance rendue dans une instance visée au paragraphe (1) lie toutes les personnes représentées, mais ne peut être exécutée contre celles-ci sans la permission de la Cour.
|
| Rule 303. Respondents (1) Subject to subsection (2), an applicant shall name as a respondent every person (a) directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought; or |
Règle 303. Défendeurs (1) Sous réserve du paragraphe (2), le demandeur désigne à titre de défendeur: a) toute personne directement touchée par l"ordonnance recherchée, autre que l"office fédéral visé par la demande; |
SUBMISSIONS OF THE PARTIES
Respondents"Submissions
(1) Striking Out Application
[19] At the outset, the respondents seek an order striking out the application for judicial review on the basis that the affidavits filed do not comply with rule 81 as they fail to establish the factual underpinnings upon which the declaratory relief is sought.
[20] In addition, the respondents argue that the Union of New Brunswick Indians lacks standing to bring this application.
(2) Bifurcation of the Two Issues Raised by this Application
[21] There are two issues to be determined in this application: (1) whether officers of the Department of Fisheries and Oceans (DFO) seized the lobster traps of the applicant Ken Barlow on or about October 22, 1999, and (2) whether the seizure of the applicant Ken Barlow"s lobster traps breached his constitutional or treaty rights.
[22] It is submitted by the respondents that the applicants are not entitled to the complex constitutional and treaty right relief that they seek unless they can satisfy the Court that officers of the DFO actually seized Ken Barlow"s lobster traps.
[23] The respondents argue that the portion of the judicial review application relating to the applicants" constitutional and treaty rights should be adjourned pending a determination on the preliminary issue of whether Ken Barlow "s lobster traps were seized by the respondents.
(3) Failure to Name as a Respondent Persons Directly Affected by the Order Sought
[24] The respondents submit that the applicants failed to comply with rule 303(1)(a) in that they did not name as respondents at least four persons who are directly affected by the order sought in the notice of application, namely:
| (1) the Burnt Church Indian Band who are Mi"kmaq people but are not members of the Union of New Brunswick Indians; |
| (2) the Big Cove Indian Band who are Mi"kmaq people but are also not members of the Union of New Brunswick Indians; |
| (3) the MAWIW Council of First Nations, a not-for-profit company under the New Brunswick"s Companies Act R.S.N.B. 1973, c. c-13 incorporated in February, 1992. In 1996, MAWIW became the political and provincial representative for the Tobique, Big Cove and Burnt Church First Nations following the withdrawal of those communities from the Union of New Brunswick Indians. |
[25] The respondents submit that the remainder of the judicial review application should be adjourned in order to permit all persons directly affected by the order sought by the applicants to file materials and ensure their interests are before the Court.
(4) Conversion of the Application into a Trial of an Action
[26] It is the submission of the respondents that this Court should grant an order pursuant to subsection 18.4(2) of the Federal Court Act that this application be converted into an action on the basis that the issues raised cannot be satisfactorily established or weighed through affidavit evidence, but rather, the Court should have the opportunity to observe the demeanor and credibility of witnesses.
[27] Furthermore, the respondents argue that evidence adduced through witnesses is necessary on the following matters:
| (a) oral history relating to treaties, aboriginal traditions and territories; |
| (b) expert historical evidence; |
| (c) expert biological evidence respecting conservation issues and evidence relating to the historical participation of non-natives in the lobster fishery in Miramichi Bay; |
| (d) regional and economic fairness issues; and |
| (e) evidence relating to the need to avoid the type of civil unrest that took place in New Brunswick between September 17 and October 22, 1999. |
(5) Extension of Time
[28] In the alternative, the respondents seek an order pursuant to rules 8, 35 and 36 of the Federal Court Rules that the terms of the Orders of Mr. Justice MacKay dated November 24, 1999 and November 30, 1999 be varied as follows:
| (1) the time for serving and filing the respondents" affidavits be extended until April 13, 2000; |
| (2) the time for completing cross-examinations on the affidavits of the applicants and the respondents be extended until May 10, 2000; |
| (3) the time for serving and filing the applicants" record be extended until May 27, 2000; |
| (4) the time for serving and filing the respondents" record be extended until June 7, 2000; |
| (5) the hearing of this application be heard from June 26 to 30, 2000. |
[29] The respondents submit that these extensions of time are required if they are to meet the evidence proffered by the applicants in this proceeding.
| Applicants"Submissions |
(1) Striking out the Application
[30] The applicants submit that the proper way to contest an originating notice of motion is to appear and argue at the hearing of the motion itself: David Bull Laboratories v. Pharmacia Inc., [1995] 1 F.C. 588.
[31] The applicants argue that this is not a casewhere the notice of application is so bereft of any possibility of success which would warrant summary dismissal by this Court.
[32] With respect to the argument by the respondents that the notice of application should be struck by striking the supporting affidavits for non-compliance, the applicants argue that the reference by Ken Barlow to legal counsel in his affidavit simply provides context and does not usurp the Court"s jurisdiction to determine the issue as the respondents suggest in their written submissions.
[33] Further, the applicants submit that if this Court deems it appropriate to strike this reference to advice received by counsel, then this could be done without striking the entire affidavit.
[34] The applicants submit that the respondents incorrectly interpret the Supreme Court decision in Marshall, supra (#2) as stating that treaty rights do not belong to the individual but are exercised by the community. It is submitted that the Court indicated that the rights are community based but exercised by individuals.
Issue II: Standing
[35] In reply to the respondents" submission that the Union of New Brunswick Indians lacks standing, the applicants state that the Union has a lengthy history of litigation in which they have tried to protect the rights of natives in New Brunswick and Prince Edward Island. More specifically, the Union intervened in Marshall, supra.
[36] With respect to the argument that all parties directly affected must be named, the applicants argue that "parties directly affected" by an application for judicial review has previously been interpreted by this Court to refer to parties who were participants in the proceedings before the tribunal or decision maker with respect to the decision at issue. It is submitted that none of the parties that the respondents indicated participated in the proceedings before the decision maker.
[37] Further, the applicants submit that "directly affected by" refers to being directly affected legally not commercially. In the present case, it is the applicants" position that the current respondents represent the public interest in these proceedings.
Issue III: Bifurcation of Issues
[38] The applicants submit that there is no rule which would permit this Court to bifurcate the proceedings as proposed by the respondents. Furthermore, the applicants argue that the issue of the seizure of the traps relates to the merits of the case and therefore should not be separated from the second issue raised by the application.
[39] The applicants argue that the respondents have failed to produce any direct evidence by DFO officers who were at Miramichi Bay on October 22, 1999 which would serve to rebut the evidence of Ken Barlow and Joey Francis. It is submitted that the only evidence offered by the respondents in this regard is that eleven days after the raid on October 22, 1999 in Miramichi Bay, DFO officers were unable to find traps with Ken Barlow"s tags on them.
[40] In addition, the applicants emphasize that no specific evidence has been provided about what types of control or accounting procedures were in place on October 22, 1999, nor is there any evidence offered by the respondents as to what security measures were in place where the traps were stored between October 22, 1999 and November 2, 1999.
[41] The applicants request that this Court dismiss with costs the application to bifurcate the proceedings.
Issue IV: Conversion of the Application into an Action
[42] The applicants submit that the respondents refer to an "alleged" treaty right to fish lobster in Miramichi Bay, and in doing so, ignore their own affidavit evidence and written representations that the Big Cove Mi"kmaq traditionally fished for lobster in Miramichi Bay and that the Indian Island Mi"kmaq of which Ken Barlow is a member, are an offshoot of the Big Cove band.
[43] In addition, the applicants argue that the respondents ignore their own evidence from Steven Patterson, which is supported by the Supreme Court decision in Marshall, supra (#1), that the Big Cove and Indian Island Mi"kmaq, "the Richibucto Mi"kmaq", are covered by the March 10, 1760 treaty. It is this treaty which the applicants argue was breached by DFO officers in seizing Ken Barlow"s lobster traps.
[44] The applicants submit that the request for conversion be dismissed with costs.
Issue V: Extension of Time
[45] The applicants submit that the respondents have been aware of the issues raised by this application since they were served with the Notice of Application on October 27, 1999. Secondly, there has already been one hearing on November 18, 1999 and a resulting order. Thirdly, the applicants argue that no information is provided by the respondents to explain when or why Dr. Patterson was retained or why he simply cannot his affidavit until two days after the scheduled hearing date in this matter.
[46] The applicants request that the respondents" motion be dismissed with costs.
ANALYSIS
Issue I : Striking the Application
[47] The issue of whether an application to strike an originating notice of motion could be brought under former rule 419, now rule 221 was considered by the Federal Court of Appeal in David Bull Laboratories v. Pharmacia Inc., [1995] 1 F.C. 588. The motions judge, Noël J., dismissed the application to strike on the basis that rule 419 was not applicable to originating notices of motion. The Court of Appeal affirmed this decision, stating the following at page 596 and 597 of their reasons:
| The basic explanation for the lack of a provision in the Federal Court Rules for striking out notices of motion can be found in the differences between actions and other proceedings. An action involves, once the pleadings are filed, discovery of documents, examinations for discovery, and then trials with viva voce evidence. It is obviously important that parties not be put to the delay and expense involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action. Even though it is important both to the parties and the Court that futile claims or defences not be carried forward to trial, it is still the rare case where a judge is prepared to strike out a pleading under rule 419. Further, the process of striking out is much more feasible in the case of actions because there are numerous rules which require precise pleadings as to the nature of the claim or the defence and the facts upon which it is based. There are no comparable rules with respect to notices of motion. Both Rule 319(1) [as am. By SOR/88-221, s. 4], the general provision with respect to applications to the Court, and Rule 1602(2) [as enacted by SOR/92-43, s. 19], the relevant rule in the present case which involves an application for judicial review, merely require that the notice of motion identify "the precise relief" being sought, and "the grounds intended to be argued." The lack of requirements for precise allegations of fact in notices of motion would make it far more risky for a Court to strike such documents. Further, the disposition of an application commenced by originating notice of motion does not involve discovery and trial, matters which can be avoided in actions by a decision to strike. In fact, the disposition of an originating notice of motion proceeds in the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the Court. Thus the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. |
[48] Strayer J. then went on to state at page 600:
| This is not to say that there is no jurisdiction in the Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motions. |
[49] This approach was applied by Nadon J. in the 1998 case of Assn. of Canadian Distillers v. Canada (Minister of Health) [1998] F.C.J. No. 753 where he reasoned at paragraph 8 of his decision that the notice of motion was not so improper as to be bereft of any possibility of success and therefore should not be struck. The Court noted that the motion itself could have been heard in the time that it took to hear the motion to strike.
[50] Applying these principles, I am of the view that while the applicants may not establish the facts which are at the core of this proceeding in their notice of motion, the application is not bereft of any possibility of success. This is not to say that the applicants have a strong case but merely that it is not completely void of any possibility of success.
[51] For these reasons, I find that this is not an exceptional case which would warrant this Court to strike the originating notice of motion.
Issue II: Standing
[52] As a preliminary matter, it appears that the issue of standing and the fourth issue raised by the respondents, the failure of the plaintiffs to name all persons directly affected in the originating notice of motion, are closely related and therefore I shall deal with them together.
[53] The respondents claim that the Union of New Brunswick Indians lacks standing to bring this application by virtue of the fact that this applicant cannot in law hold the treaty right that it claims by reason that it has not alleged or established that it held a treaty right.
[54] Further, the respondents refer to the decision of the Supreme Court in Marshall, supra where they articulated that treaty rights do not belong to the individual but rather are exercised by authority of the local community. It is submitted that at no time does Ken Barlow or the Union of New Brunswick Indians allege that the Union has a treaty right which was breached. The respondents argue that the Union is not a community and thus cannot hold a treaty right.
[55] Lastly, the respondents state that Rule 114 requires that a representative claim cannot be made by the Union on behalf of Ken Barlow and the Mi"kmaq people unless the Union has the same interest in the proceeding as the person whom it represents. It is argued that the Union cannot have the same interest as Ken Barlow as it does not have a treaty right. Thus, the Union cannot bring such a representative proceeding.
[56] Rule 114 states:
| Rule 114. Representative proceedings (1) Where two or more persons have the same interest in a proceeding, the proceeding may be brought by or against any one or more of them as representing some or all of them. (2) Motion to appoint representative"At any time, the Court may, on motion, appoint a person to represent some or all of the parties in a proceeding referred to in subsection (1). (3) Where representative not a party"Where under subsection (2) the Court appoints a person not named as a party to the proceeding, it shall make an order adding that person as a party. (4) Order binding on represented persons"An order in a proceeding referred to in subsection (1) is binding on all represented parties, but shall not be enforced against them without leave of the Court. |
| Règle 114. Recours collectif (1) Lorsque des personnes ont un intérêt commun dans une instance, celle-ci peut être engagée par ou contre l"une ou plusieurs de ces personnes au nom de toutes celles-ci ou de certaines d"entre elles. (2) Représentant désigné sur requête"Dans une instance visée au paragraphe (1), la Cour peut, à tout moment, sur requête, désigner une personne en tant que représentant de toutes les parties ou de certaines d"entre elles. (3) Constitution en partie"Si la personne désignée aux termes du paragraphe (2) n"est pas une partie, la Cour rend une ordonnance constituant cette personne partie à l"instance. (4) Effet de l"ordonnance"L"ordonnance rendue dans une instance visée au paragraphe (1) lie toutes les personnes représentées, mais ne peut être exécutée contre celles-ci sans la permission de la Cour. |
[57] The necessary elements for a representative proceeding were originally articulated in The Duke of Bedford v. Ellis, [1901] A.C. 1 as follows: (1) the parties must have the same interest, (2) the grievance must be common, and (3) the relief must be beneficial to all. Lord McNaughton stated at page 8 of his reasons:
| Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. |
[58] These requirements were considered by the Supreme Court in the 1983 case of General Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72 as they interpreted rule 75 of the Supreme Court of Ontario Rules of Practice. The Court held that the respondent"s action could not properly be conducted within rule 75 on the grounds that rule 75 required plaintiffs and those they represent to have the same interest and it was not enough that the group share a similar interest.
[59] In that case, the plaintiffs had varying contractual arrangements giving rise to similar but different claims in contract although they all related to the same model of car. The action was commenced by four individuals suing for themselves and for others for damages suffered due to the purchase of automobiles.
[60] The respondent refers to this case as support for their assertion that the Union of New Brunswick Indians does not have the same interest in this proceeding as Ken Barlow and lacks standing to bring the application.
[61] After a careful consideration of the principles governing class and representative proceedings, I find I am in agreement with the submissions of the respondents. The applicants have failed to make evidence that the Union of New Brunswick Indians is an incorporated body representing the first nation peoples and clearly does not have the same rights as Ken Barlow.
[62] With respect to the question of whether the plaintiffs failed to name all persons directly affected in the notice of motion, the respondents submit that all persons directly affected by the order must be before the Court when the application is heard.
[63] I am in agreement that it is incumbent upon the plaintiff to name every person directly affected by the order in the notice of motion. This is not in dispute. However, the first issue raised by this application does not directly affect any other party than those named in the notice of application.
[64] The respondents now submit that the remainder of the judicial review application should be adjourned in order to permit all persons affected to file materials and present their interests to the Court.
[65] In my view, given the complexity of the second issue and the fact that any consideration of this issue is dependent on an affirmative response to the first question, it is not necessary at this stage of the proceeding to decide whether other respondents must be named.
[66] Upon hearing the submissions of the parties on the first issue and determining whether a seizure did in fact occur, the judge hearing the application will then ascertain whether an amendment is required to add other respondents who are directly affected by the order. At that time, whether an adjournment of the proceedings is necessary shall be determined by the judge hearing the application.
Issue III: Bifurcation of the Factual Issue from the Constitutional and Treaty Issues
[67] The respondent submits that the first issue raised by this application, namely the factual question of whether officers of the Minister of Fisheries and Oceans seized the applicant"s, Ken Barlow"s, lobster traps, should be dealt with in advance of the broader constitutional and treaty issues. This submission is based on the assumption that if the first question is answered in the negative then it will not be necessary for the Court to address the second question.
[68] Before embarking on a consideration of this point, it is important to note that there is no rule of this Court which would permit me to bifurcate the first issue from the second. The respondents point to the fact that this Court has inherent jurisdiction to control is own proceedings, and in the interest of judicial resources, the factual issue ought to be heard separately from the constitutional and treaty issues.
[69] With all due respect to the respondent, I am unable to see why it is necessary to bifurcate the two issues before the hearing of the application. Judicial review is intended to be a speedy remedy and to separate issues can only delay the proceedings.
[70] Should the first question be answered affirmatively, the judge will move on to the second issue. The hearing may be adjourned to allow for other persons directly affected to be served with the notice of application and the supporting affidavits relied on by the applicants. Therefore, the two issues may necessarily be separated if it is determined that they affect different parties.
Issue IV: Conversion of the Application into a Trial of an Action
[71] The respondents submit that this application for judicial review should be converted into an action on the grounds that there are many complex legal and factual issues which cannot be satisfactorily determined through affidavit evidence.
[72] Section 18.4(2) of the Federal Court Act reads as follows:
18.4(2) Exception
(2) The Trial Division may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.
18.4(2) Exception
(2) La Section de première instance peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action.
[73] This provision of the Act was considered shortly after its coming into force in 1992 by Mr. Justice Strayer, as he then was, in Vancouver Island Peace Society v. Canada (1992), 53 F.T.R. 300 and subsequently by Mr. Justice Muldoon in the 1993 decision in Prince Edward Island Potato Board v. Minister of Agriculture for Canada (1993), 56 F.T.R. 150.
[74] In the Prince Edward Island Potato Board case, Mr. Justice Muldoon considered an application by the Minister of Agriculture to convert the application into an action by reason of the complexity of the scientific considerations involved. It is clear from the judgment that it was the view of Mr. Justice Muldoon that the judicial review provisions in the Act be applied so as to allow the matter to proceed as expeditiously as possible. He stated at page 152 of his reasons:
| Section 18.4(2) of the Federal Court Act makes it clear that, as a general rule, an application for judicial review or a reference to the Trial Division shall be proceeded with as a motion. The section dictates that such matters be heard and determined "without delay and in a summary way". As an exception to the general rule, provision is made in s. 18.4(2) for an application for judicial review to be proceeded with as an action. The new and preferred course of procedure, however, is by way of motion and that course should not be departed from except in the clearest of circumstances. |
[75] This reasoning was affirmed by the Federal Court of Appeal in the 1994 case of McGinnis v. Canada (1994), 166 N.R. 57 where it was noted that Parliament intended judicial review to be a rapid remedy, stating the following at page 60:
| It is, in general, only where facts or whatever cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using s. 18.4(2) of the Act. One should not lose sight of the clear intention of Parliament to have applications for judicial review determined whenever possible with as much speed and as little encumbrances and delays of the kind associated with trials as are possible. The "clearest of circumstances", to use the words of Muldoon J., where that subsection may be used, is where there is a need for viva voce evidence, either to assess demeanour and credibility of witnesses or to allow the court to have a full grasp of the whole of the evidence whenever it feels the case cries out for the full panoply of a trial... |
[76] The test to be applied in assessing whether an application should be converted into an action was articulated by the Court of Appeal at page 6 of their reasons as follows:
| ...the key test is whether the judge can see that affidavit evidence will be inadequate, not that trial evidence might be superior. |
[77] This test was articulated in the context of expert affidavit material and is therefore highly relevant to the facts of this case. The respondents submit that the oral history evidence of the Mi"kmaq people living in Atlantic Canada and of the persons who signed the treaty on behalf of the Mi"kmaq communities in question cannot be adequately conveyed through affidavit evidence.
[78] I am in agreement that the second issue raised by this application is a highly complex and historical one which would be difficult to present in affidavit form. However, as I have stated earlier, this evidence only becomes relevant if the first question is answered in the affirmative but, nevertheless, I am satisfied the entire matter should be heard at the same time and the constitutional issue cannot be dealt with on affidavit evidence, especially as it relates to oral history.
[79] In terms of the evidence required to determine whether or not there was a seizure by officers of the DFO of the applicant Ken Barlow"s lobster traps, I am also convinced that affidavit evidence would be inadequate.
[80] It appears to me, at this time, that from my reading of the affidavit evidence, the lobster traps belonging to the applicant Barlow were seized by DFO representatives.
[81] This matter should be determined after an oral hearing.
[82] Clearly, it is in the best interests of all parties involved to have these questions fully answered particularly where there would be no prejudice to the applicant Barlow. I am told he will be permitted to fish for lobster in the next lobster season.
[83] Thus, I hereby order that the application for judicial review be converted into a trial of an action.
Issue V: Extension of Time
[84] In that the present application is converted into a trial of an action, I need not discuss the issue of extension of time.
[85] The application of the respondents is allowed, in that the application for judicial review is converted into an action so as to allow a Court to determine the issue of whether or not Barlow"s lobster traps were seized and the constitutional issue involved in allowing Mi"kmaq and Maliseet First Nations in New Brunswick to fish for lobster.
[86] Another reason for my conclusion to convert the judicial review application into a trial is that the affidavit evidence of the applicants does not make it clear as to which treaty they refer to. Do they refer only to a treaty of March10, 1760 or a treaty of 1760-61 or a 1761 treaty.
[87] I am satisfied that the applicants have the obligation to be precise. It is not sufficient for the applicants to say "we are speaking of the treaty or treaties mentioned in R. v. Marshall (S.C.C. unreported file 26014 decision issued on September 17, 1999) without producing the treaty or treaties relied upon or if not, at least by stating, in writing, what are the treaties relied upon.
CONCLUSION
[88] For all of the above reasons, I only allow the respondents" request that the judicial review application be converted into an action.
[89] Costs in the cause.
| "Max M. Teitelbaum" |
J.F.C.C.
Ottawa, Ontario
March 3, 2000