Federal Court Decisions

     Date: 19971222

     Docket: T-2327-97

Between :

     ALEC CHINGEE, SHARON SOLONAS,

     TANIA SOLONAS, ELIZABETH SOLONAS,

     and PATRICK PRINCE in their capacity as Chief

     and Councillors of the McLeod Lake Indian Band

     Applicants

     - and -

     HARRY CHINGEE, VICTOR CHINGEE, GILBERT CHINGEE,

     THE MINISTER OF INDIAN AND NORTHERN AFFAIRS,

     and THE ATTORNEY GENERAL OF CANADA

     Respondents

     REASONS FOR ORDER

PINARD, J. :

[1]      This is a motion on behalf of the Applicants for an Order allowing the appeal from the decision of the Prothonotary on December 1, 1997, allowing the Respondents' application for an Order that the application for judicial review be treated and proceeded with as an action pursuant to section 18.4(2) of the Federal Court Act, and for an Order reversing the said decision. The Applicants further ask for an Order permitting them to file some 16 additional affidavits notwithstanding that they were not filed concurrently with the Originating Notice of Motion. The Applicants also ask for an Order abridging the time limits for the steps to be taken in this proceeding. Finally, the Applicants are seeking an Order granting them the authority to conduct the business of the Chief and the Band Council of the McLeod Lake Indian Band in the normal course until the application for judicial review is resolved or until further Order.

[2]      Rule 336(5) of the Federal Court Rules (hereinafter the Rules), gives a person affected by an order or decision of a Prothonotary a right to appeal that order or decision to this Court. Rule 336(5) reads as follows:

Rule 336. (5) Any person affected by an order or decision of a prothonotary, other than a judgment under Rules 432 to 437, may appeal therefrom to the Court and such appeal shall be made by an application of which a notice shall be given to all interested parties setting forth the grounds of objection and served within 14 days after the order or decision complained of, and four clear days before the day fixed for hearing the same, or served within such other time as may be allowed by the Court or a prothonotary on ex parte application. The appeal shall be filed not later than two days before the date named for hearing. (In this paragraph, "Court" means "Trial Division", if the matter is in the Trial Division, and "Court of Appeal", if the matter is in the Court of Appeal.)

[3]      There has been some debate in recent years as to the standard of review applicable on an appeal pursuant to subsection 336(5) of the Rules, as there is no standard given therein. The tension in the jurisprudence has been between the view that an appeal from a Prothonotary's decision always requires the judge hearing the appeal to exercise his or her discretion de novo, and the more deferential view that the discretionary orders of Prothonotaries ought only to be disturbed on appeal if they are either clearly wrong or they raise questions vital to the final issue in the case. The trend in the recent jurisprudence of this honourable Court is to adopt this more deferential approach.

[4]      In Canada v. "Jala Godavari" (The) Ship (1991), 135 N.R. 316 (F.C.A.) (hereinafter Jala Godavari), Hugessen J.A. expressed the view that parties appearing before a judge on an appeal from an order or decision of a Prothonotary, were always entitled to have their case considered de novo. He wrote:

In this latter connection we would add that, contrary to a view that has sometimes been expressed in the Trial Division [. . .], a judge who hears an appeal from a prothonotary on a matter involving the exercise of discretion is called upon to exercise his own discretion and is not bound by the prothonotary's opinion. He may, of course, choose to give great weight to the views expressed by the prothonotary, but the parties are, in the final analysis, entitled to the discretion of a judge and not that of a subordinate officer. The situation is, of course, different where a referee (who may be a prothonotary) has heard witnesses and made findings of fact based on his assessment of credibility.

[5]      In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (hereinafter Aqua-Gem), the Federal Court of Appeal resiled from its interventionist stance in Jala Godavari. The Court of Appeal held that, while the judges of the Federal Court retain the power to exercise their discretion de novo on an appeal from a Prothonotary's decision, this power should only be exercised under certain circumstances. MacGuigan J.A., writing for the majority, articulated the following standard of review to be applied by a motions judge when deciding whether to disturb the discretionary orders of Prothonotaries, at pages 462 and 463:

I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:

(a) they 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, or

(b) they raise questions vital to the final issue of the case. [. . .]

Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise question vital to the final issue of the case, a judge ought to exercise his own discretion de novo.

In Canada v. "Jala Godavari" (The) (1991), 40 C.P.R. (3d) 127 (F.C.A.), this Court in an obiter dictum stated the rule the other way around, seeking to emphasize the necessity for the exercise of the Judge's discretion de novo, in contradistinction to the view that was at that time gaining acceptance in the Trial Division that the prothonotary's discretion should be followed unless he had committed error of law. Jala Godavari should not, I think, be read as meaning that the prothonotary's discretion should never be respected, but rather that it is subject to the overriding discretion by a judge where the question involved is vital to the final issue in the case. (Error of law is, of course, always a reason for intervention by a judge, and is not in any way in controversy).

(My emphasis.)

[6]      Justice MacGuigan then went on to elaborate upon the meaning of "questions vital to the final issue of the case". After stating that such questions are ones that have the effect of providing a final resolution to the case, Justice MacGuigan made the following remarks, at pages 464 and 465:

The question before the prothonotary in the case at bar can be considered interlocutory only because the prothonotary decided it in favour of the appellant. If he had decided it for the respondent, it would itself have been a final decision of the case: [...] It seems to me that a decision which can thus be either interlocutory or final depending on how it is decided, even if interlocutory because of the result, must nevertheless be considered vital to the final resolution of the case. Another way of putting the matter would be to say that for the test as to relevance to the final issue, the issue to be decided should be looked to before the question is answered by the prothonotary, whereas that as to whether it is interlocutory or final (which is purely a pro forma matter) should be put after the prothonotary's decision. Any other approach, it seems to me, would reduce the more substantial question of "vital to the issue of the case" to the merely procedural issue of interlocutory or final, and preserve all interlocutory rulings from attack (except in relation to errors of law).

(My emphasis.)

[7]      Since the Court of Appeal decision in Aqua-Gem, there have been several Trial Division decisions adopting the standard of review set out therein. The general view in the jurisprudence is that a Prothonotary's exercise of discretion is entitled to significant deference, and that a motions judge should not interfere except in either of the two situations described in Aqua-Gem (see for example Cornerstone Securities Canada Inc. v. North American Trust Co. (1994), 86 F.T.R. 53, and Cardinal et al. v. Canada (1996), 118 F.T.R. 114).

[8]      Notwithstanding the high degree of deference owed to decisions of Prothonotaries, in appropriate circumstances such decisions can clearly be quashed and the motions judge's own discretion substituted therefor (see for example Source Services Corp. v. Source Personnel Inc. (1995), 105 F.T.R. 42).

[9]      In the case at bar, the Prothonotary concluded as follows:

CONCLUSION

[20]      As a result of considering the pleadings to date, the affidavit material filed and sought to be filed and of having the benefit of the submissions of both counsel, I have concluded that a proper review of the issues surrounding the election and the non-acceptance by the Minister of Indian Affairs and Northern Development of the purportedly elected Chief of the McLeod Lake Indian Band, Chief Alec Chingee and his Council, on the one hand, or of the failure of the electoral process to supplant Chief Harry Chingee and his Council on the other hand, cannot be accomplished merely on affidavit evidence supplemented by cross-examination on affidavits. The issues at the core of this proceeding ought to be explored on examination for discovery, a procedure which may well save time for all concerned. Witnesses should give their testimony in their own words. Witnesses, particularly those showing a tendency to give evidence exhibiting irrelevant animosities, should give their evidence and be properly cross-examined in a trial setting.

[21]      As to any delay, this matter was commenced 29 October 1997. The affairs of the McLeod Lake Indian Band are to some extent being looked after by outside auditors, albeit at a cost. The parties have been offered a four day block of time at Vancouver, or a five day block of time in Prince George, in May of 1998. Heard as judicial review, the matter would take less time than as an action, however baring cancellations of trials already set, it is doubtful that this matter would be heard much earlier as judicial review. Delay is not a substantial factor.

[22]      A proper review in this instance will require the giving of evidence in a setting in which the judge can view demeanour, substance and credibility of witnesses, particularly of those giving evidence as to Band custom, weigh the evidence and determine the facts to be satisfactorily established. Thus I have concluded that affidavit evidence would, in this instance be inadequate.

[23]      As a result of this outcome it is appropriate to give directions. The style of cause will now style the parties as Plaintiffs and Defendants. The Plaintiffs are allowed 15 days, from the date of these reasons, to file and serve a Statement of Claim on the solicitors for the Defendants. The Defendants shall file their defences within 21 days of service of the Statement of Claim. Any replies to the defences shall be filed within 7 days of service of each of the defences. Production of documents shall take place in not less than 30 days after filing of defences. Further directions may be obtained from the Court in view of the accelerated nature of the proceedings. Costs shall be in the cause.

[10]      Upon reading the affidavits and the material filed, and upon hearing learned counsel for the parties, I am unable to conclude that the Prothonotary was clearly wrong. On the contrary, I find that in exercising my own discretion, I would reach the same conclusion as he did. As it is also clear that the Prothonotary's decision could not raise questions vital to the final issue of the case, it being merely interlocutory, the intervention of this Court is therefore unwarranted.

[11]      Accordingly, the Applicants' application for leave to file further affidavits and for an Order abridging the time limits for the steps to be taken in the judicial review proceeding must be dismissed.

[12]      Finally, with respect to the request for an Order granting the Applicants the authority to conduct the business of the Chief and the Band Council of the McLeod Lake Indian Band in the normal course until the application for judicial review is resolved or until further Order, this interlocutory relief is denied on the following grounds:

1.      a receiver-manager of all the properties, rights, works, assets (other than the chose in action represented by the Band's current lawsuit arising out of Treaty #8), businesses and undertakings of the McLeod Lake Indian Band and Duz Cho Logging Ltd. and Duz Cho Logging (Unincorporated), has been appointed by Order of Joyal J. of this Court on November 7, 1997;

2.      the matter could be tried as early as May of 1998; and

3.      there is no clear evidence of irreparable harm to the Applicants if the relief sought is not granted.

---

[13]      For the above reasons, the Applicants' motion is dismissed. As a consequence of the time required for the disposal of this motion, the period of 15 days allowed to the Plaintiffs, in the Prothonotary's order, to file and serve a Statement of Claim shall start running from the date of the Order which is supported by these Reasons.

                            

                                     JUDGE

OTTAWA, ONTARIO

December 22, 1997