Date: 20010717
Docket: T-2243-95
Neutral citation: 2001 FCT 802
BETWEEN:
EDWARD NOEL NOADE
Plaintiff
- and -
BLOOD TRIBE CHIEF AND COUNCIL
Defendant
[1] The sole issue raised in this appeal from the order of Prothonotary Hargrave is whether the learned Prothonotary erred in dismissing the plaintiff's motion for an order compelling the production of the legal opinion of Eugene Creighton dated June 14, 1994 ("legal opinion").
[2] At issue in the underlying action, originally commenced as an application for judicial review, is the propriety of a decision made on June 19, 1995 by the Blood Tribe Membership Tribunal. That decision upheld a previous decision of the Blood Tribe Chief and Council denying membership in the Blood Tribe to Mr. Noade. The legal opinion was requested by the Blood Tribe Membership Department as a result of Mr. Noade's application for membership.
PROCEDURAL HISTORY
[3] Very relevant, in my view, to the disposition of this appeal is the procedural history of Mr. Noade's efforts to obtain production of the legal opinion.
[4] On August 19, 1997, Mr. Noade filed a notice of motion seeking, as the first enumerated item in the notice of motion, an "order compelling production of the legal opinion of EUGENE CREIGHTON and entire file relating to the Plaintiff's application for membership in the Blood Tribe". That motion was heard by a judge by way of a conference call on September 26, 1997. While an Abstract of Hearing and the Registrar's Minutes of Hearing were prepared as a result of the hearing, through apparent oversight no order was issued embodying the result of the September 26, 1997 hearing.
[5] Neither party appears to have drawn this to the Court's attention until Mr. Noade, then self-represented, indicated his intent to move again to compel the production of certain records, including the legal opinion. As a result, on April 26, 2000, the defendant's counsel wrote to the Court requesting a copy of the order which, it was said, "appears not to have been prepared by the Court".
[6] The Registry of the Court responded confirming the direction of the Judge who had presided at the September 1997 hearing. That direction was as follows:
"Further to the Defendant's request dated 26 April 2000, I am of the opinion that it would be inappropriate at this late date to issue the Order that should have been issued on or shortly after 26 September 1997. The Court Abstract of Hearing and the Registrar's Minutes of Hearing should be sufficient to indicate the disposition of the motion made and decided on 26 September 1997. The Abstract and the Minutes are consistent with the notes in my trial book. The Registry is authorized to release to the parties copies of both the Abstract and Minutes of Hearing. The parties are referred to Rule 392(2) of the Federal Court Rules, 1998."
[7] The Abstract of Hearing recorded that, "Matter dismissed with costs in the cause". The Registrar's Minutes of Hearing describe in some detail the exchange between counsel and the Court on the first issue set out in the notice of motion. The exchange concludes with the notation "[t]he Court announces that the portion of point number 1 dealing with the legal opinion is dismissed". After further exchanges are noted, the Minutes record "[t]he Court addresses Mr. Turner [counsel for the plaintiff] and announces that the second portion of point number 1 is dismissed".
[8] At the return of the plaintiff's second motion seeking production of the legal opinion Mr. Noade was self-represented.
[9] The learned Prothonotary dealt as follows with the fact that there had been a previous hearing seeking production of the legal opinion:
[4] Rule 392(2) deals with the time at which an order becomes effective:
Unless it provides otherwise, an Order is effective from the time that it is endorsed in writing and signed by the presiding judge or prothonotary or, in the case of an order given orally from the bench in circumstances that render it impractical to endorse a written copy of the order, at the time it is made.
In the present instance it appears that the second branch of Rule 392(2) does not apply, for it was through oversight, not impracticability, that the order was not reduced to writing.
[5] The Federal Court of Appeal and indeed the Supreme Court of Canada have dealt with the question of when a judgment becomes effective. In Liberty Ornamental Iron Ltd. v. B. Fertleman Ltd. (1977), 13 N.R. 552 (F.C.A.), Chief Justice Jackett pointed out, at page 556, there referring to a similar predecessor rule, that there is no judgment until a judgment has been signed by the presiding judge and further, it does not take effect until it has been signed.
[6] Liberty Ornamental was followed by Mr. Justice Cattanach in Baxter Travenol Laboratories of Canda Ltd. v. Cutter (Canada) Ltd. (1981), 20 C.P.C. 263. Mr. Justice Cattanach's decision was upheld by the Federal Court of Appeal (1982), 41 N.E. 476, a decision of Chief Justice Thurlow. When Baxter Travenol reached the Supreme Court of Canada, Mr. Justice Dickson, as he was then, referred to a number of decisions and, in effect, endorsed the Liberty Ornamental case, agreeing with the Federal Court of Appeal that:
There is no judgment until a document in form 14 is executed. I agree with Cutter and the Federal Court of Appeal that, by virtue of Rule 337, a judgment in that court only takes effect on the date a document in Form 14 is executed
[Baxter Travenol Laboratories v. Cutter (Canada) Ltd.
[1983] 2 S.C.R. 388 at pages 395-396]
While the Supreme Court did send the matter back to the Federal Court, it was on a different aspect of the case.
[7] Applying all of this to the present situation, there is thus no order arising out of the hearing of the 1997 motion. The only appropriate course is therefore to rehear the motion as now presented, as I say, in slightly different form from the 1997 motion. Here I would note that while I examined the two motions, the 1997 abstract of hearing and the 1997 minutes, I did not look at the notes in the trial book kept by the judge who heard the 1997 motion.
[10] The Prothonotary then proceeded to deal with each head of relief sought by the plaintiff. With respect to the legal opinion, the Prothonotary wrote, "I am satisfied that it is privileged. It need not be produced". The plaintiff's motion was dismissed in its entirety by the Prothonotary. This appeal only puts in issue the propriety of the Prothonotary's order as it related to the legal opinion.
PROCEDURAL ISSUES
[11] Before me certain procedural points were taken.
[12] First, by the time this appeal was to be heard Mr. Noade had again retained counsel. Prior to the hearing of the appeal that counsel sought leave to file additional written submissions. After hearing counsel by teleconference, an order was granted giving leave to the plaintiff to file a supplementary motion record, without prejudice to the right of the defendant to argue at the hearing of the appeal that any additional evidence or argument contained in the supplementary motion record was not properly before the Court. The defendant was also given leave to file material responsive to the supplementary motion record.
[13] A supplementary motion record was filed on the plaintiff's behalf and the defendant filed supplementary written representations.
[14] At the oral hearing of the appeal the defendant objected that the plaintiff was precluded by Rule 364(a) of the Federal Court Rules, 1998, SOR/98-106, from filing any additional supplementary motion record without leave and further objected that the plaintiff raised new grounds of appeal. The plaintiff in turn objected that the defendant could not raise the issue of res judicata because the defendant had not cross-appealed from the order of Mr. Hargrave. The plaintiff also objected that the defendant's supplementary written submissions ought to have been limited to responding to the plaintiff's new arguments.
[15] I allowed the parties to argue all of the points raised in their written materials.
[16] With respect to the defendant's objections, leave had been given for the filing of a supplementary motion record. I was satisfied that no matter of fact or legal argument contained in the supplementary motion record took the defendant by surprise or otherwise prejudiced the defendant.
[17] With respect to the plaintiff's objections, I saw no need for the defendant to have filed a cross-appeal from the order of the Prothonotary. The defendant was wholly successful before the Prothonotary. Appeals are taken from orders, and not from the reasons which lead to an order.
[18] As to the scope of the defendant's submissions, the defendant in the original motion record had recited the procedural history of the matter and had argued that continued applications for the production of documents were an abuse of process. The plaintiff was therefore not prejudiced by the expansion of the defendant's argument on this point in its supplementary written submissions.
ANALYSIS
[19] I am satisfied that the plaintiff's appeal must be dismissed. I have, however, reached this conclusion by a route other than that followed by the Prothonotary because I have concluded that the plaintiff's request for the production of the legal opinion must fail by application of principles relevant to res judicata and abuse of process.
[20] In concluding that there was no order arising out of the hearing of the 1997 motion, the Prothonotary relied upon case law which dealt with the question of when a judgment becomes effective. Other, in my respectful view, more apt authority was not cited to the Prothonotary.
[21] In Montreal Fast Print (1975) Ltd. v. Polylok Corporation (1982), 63 C.P.R. (2d) 205 (F.C.T.D.), Cattanach J. was required to consider what constituted a prior order for the purpose of a plea of res judicata in circumstances where one party to the action sought an order excluding a certain individual from the examination for discovery of an officer of the opposite party. An informal application to the same effect had previously been made to the Associate Chief Justice. The earlier application had been brought before the Associate Chief Justice on an oral basis with no written notice. The Associate Chief Justice had not granted any exclusion order and had simply expressed the view orally that the matter was one that should be resolved between counsel. In those circumstances, Justice Cattanach declined to make any exclusion order because, in his view, the matter was res judicata. Justice Cattanach concluded that notwithstanding the informality which surrounded the prior request to the Associate Chief Justice, the matter had been decided when the Associate Chief Justice declined to make any exclusion order.
[22] In Carlile v. Canada (Minister of National Revenue) (1993), 161 N.R. 139 (F.C.A.) on an application for directions Mahoney J.A. was required to consider the effect of a decision and reasons given orally from the bench but not filed in written form. Subsequent to the delivery of the oral decision and reasons, a motion for reconsideration was made to the trial judge who then prepared written reasons for judgment. Those reasons and a judgment were filed, the written judgment said to be in accordance with the oral reasons for judgment and also the written reasons.
[23] Justice Mahoney concluded that the date of the judgment was that of the oral decision and that the subsequent written judgment was a redundant nullity. Judgment had not been reserved at the conclusion of the first hearing and had been delivered from the bench, notwithstanding the failure of the Court to file a copy of the reasons in the Registry of the Court as required by section 51 of the Federal Court Act, R.S.C. 1985, c. F-7.
[24] From these cases I extract the principle that the failure to reduce a decision to writing in the form of an order or judgment does not render the decision a nullity, and the principle that the plea of res judicata can be asserted in a proceeding where the Court has considered the submissions of the parties on an issue and expressed its view to the parties even if the expression of that view lacks the requisite formality.
[25] Obviously, any failure to observe the normal requirements of the Court's Rules is undesirable because such failure is likely to give rise to difficulties of the sort encountered in the present case. Notwithstanding, the greater evil, in my view, would be to allow a party to make successive efforts to relitigate an issue not resolved to the party's liking. The principle of finality of decisions is central to the proper administration of justice. This precludes proceeding on the basis "if at first you don't succeed, try, try again".
[26] Applying those principles to the present case, the Abstract of Hearing and the Minutes of Hearing leave no doubt that on September 26, 1997 the Court dealt with the plaintiff's motion for production of the legal opinion and dismissed the motion. The failure to reduce the decision to writing in the form of an order did not render the decision a nullity and does not preclude operation of the principle of res judicata.
[27] I therefore respectfully conclude that the Prothonotary erred in law in finding that there was no order arising out of the hearing of the 1997 motion such that the only appropriate course was to rehear the motion. The two decisions relied upon by the Prothonotary dealt not with the issue of res judicata but rather with the question as to when orders granting injunctive relief would take effect from. While it is true that in Baxter Travenol, supra, the Federal Court of Appeal noted that a judgment only takes effect on the date a document is signed, the Court also noted that once a judge has rendered a decision by giving reasons it is not open to any person to flout that disposition on the ground that there is no judgment yet in effect. Thus, even in the absence of a written judgment, contempt proceedings could, as a matter of law, lie if the disposition was ignored.
[28] Similarly, in my view, the absence of a written order does not permit a party to relitigate the identical interlocutory issue before a different hearing officer.
[29] I have also considered that Rule 392(1) provides that the Court "may" dispose of any matter that is the subject-matter of a hearing by signing an order. The wording used is permissive, not mandatory. Even if the Rule is to be construed as requiring the signing of a written order, Rule 56 makes it clear that non-compliance with any rule does not render a step in a proceeding or an order void.
[30] Having concluded that the plea of res judicata can be asserted on the basis of the Court's prior and unequivocal oral pronouncement, I have considered and am satisfied that in the absence of a material change in circumstances the doctrine of res judicata applies in an interlocutory context. (see: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) at paragraph 19.58 and the cases there cited at footnote 156). I am further satisfied that all of the requirements of res judicata in the form of issue estoppel have been met: the same question has already been decided; the judicial decision which is said to create the estoppel was final (in that it could have been but was not appealed); the parties to the decision are the same; and, the question out of which the estoppel is said to arise was fundamental to the decision arrived at. See: Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248.
[31] Further, or in the alternative, I am also satisfied that to permit the plaintiff to relitigate the issue of the producibility of the legal opinion would be an abuse of process. In the words of the majority of the Manitoba Court of Appeal in Solomon v. Smith (1987), 45 D.L.R. (4th) 266 (Man. C.A.) at page 275."To allow the plaintiff to retry the issue ... would be a classic example of abuse of process - a waste of the time and resources of the litigants and the court and an erosion of the principle of finality so crucial to the proper administration of justice".
[32] For these reasons, the plaintiff's motion for an order setting aside, in part, the order of the Prothonotary will be dismissed. The plaintiff is not entitled to production of the legal opinion.
[33] Counsel requested the opportunity to file submissions as to costs on receipt of my decision.
[34] Counsel for the defendant may serve and file submissions on the issue of costs within 10 days of receipt of these reasons. Thereafter, counsel for the plaintiff may serve and file a responsive submission within 10 days of service of the defendant's submissions upon counsel for the plaintiff. Counsel for the defendant may serve and file any reply submission within 5 days of service of the plaintiff's submissions upon counsel for the defendant.
[35] Following consideration of those submissions, an order will issue dismissing the appeal and dealing with the issue of costs.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
July 17, 2001