Date: 20020613
Docket: T-824-02
Neutral citation: 2002 FCT 659
BETWEEN:
LOUISE BONSPILLE AND
BRENDA ETIENNE
Applicants
and
MOHAWK COUNCIL OF KANESATAKE,
MAVIS KATSI'TSEN: HAWE ÉTIENNE, JOCELYN BONSPILLE,
KANERAHTENHA: WI HILDA NICHOLAS and
THE ATTORNEY GENERAL OF CANADA
for The Solicitor General of Canada
Respondents
[1] Upon Motion on behalf of the Respondent Mohawk Council of Kanesatake (MCK) for:
- An Order striking out paragraphs 4, 6 and 7 and all but the first line of paragraph 5 from the Notice of Application, dated May 27, 2002, without leave to amend;
- Order striking out the Affidavit of Terry Isaac sworn May 24, 2002 and the Exhibits filed in support thereof, without leave to amend;
- An Order striking out the Affidavit of Serge Simon sworn May 17, 2002 and the Exhibits filed in support thereof, without leave to amend;
- An Order striking out paragraphs 8 - 39 from the Affidavit of Brenda Étienne and Louise Bonspille sworn May 23, 2002 and Exhibits C-Z and DD-EE filed in support thereof, without leave to amend;
- An Order granting MCK the costs of this motion;
- Such further relief as counsel may advise and this Honourable Court may allow; and
[2] Upon hearing counsel for the parties, MCK, the applicants and the Solicitor General of Canada, upon reading their Motion Records and upon reading all the relevant affidavits and material filed;
[3] The motion is granted in part only.
[4] The words "and related decisions affecting the independence of the said Commission contravening Council Resolution #38/9798/00069", at the end of the first paragraph, on page 3 of the Notice of Application made on behalf of the applicants Louise Bonspille and Brenda Étienne, are deleted as being in breach of Rule 302 of the Federal Court Rules, 1998.
[5] The words "and related decisions to refuse to extend the contract of Terry Isaacs and subsequently engaging George Martin as Chief of Police or Acting Chief of Police", beginning at line 5 and ending at line 8 of paragraph 10(a) of the above Notice of Application, are deleted, as agreed to by the applicants.
[6] Paragraphs 35 through 38 of the Joint Affidavit of Brenda Étienne and Louise Bonspille, sworn on May 23, 2002, are struck, as agreed to by the applicants. In addition, the word "both" in the first line of paragraph 39 of the latter affidavit, the words "and the requirement that Mr. Isaac's contract be extended by the Council in accordance with the Commission's recommendation", beginning at line 2 and ending at line 3 of the latter paragraph, and the words "and Mr. Isaac", in the sixth line of the latter paragraph, are all deleted, as agreed to by the applicants.
[7] The affidavit of Serge Simon, sworn May 17, 2002, is removed from the record, as agreed to by the applicants.
[8] As for the rest, the Motion is dismissed for the following reasons:
1) Given the applicants' alleged grounds of breach of the 1997 Resolution, breach of the Rules of natural justice, breach of their legitimate expectations and bad faith, MCK has failed to satisfy me that the allegations and the factual situations contained in paragraphs 4, 6 and 7 and all but the first line of paragraph 5 of the Notice of Application for Judicial Review are clearly irrelevant to the decision dated May 6, 2002 which is being challenged in this case, and clearly immaterial to the applicants' own argument. Thus, MCK has failed to convince me that the Notice of Application is "so clearly improper as to be bereft of any possibility of success" or that it is doomed due to an incurable defect. (See David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. et al.,[1995] 1 F.C. 588.)
2) With respect to the affidavits, or portions of them, MCK objects to, I am not convinced that they are generally abusive or clearly irrelevant. It is well established that in general the discretion to strike out affidavits, or portions of them, ought to be exercised sparingly. (See for example Sierra Club of Canada v. Canada (Minister of Finance) et al. (1998), 159 F.T.R. 24 at 32.) Furthermore, absent any showing of serious prejudice, as in this case, notwithstanding that parts of an affidavit may be irregular, this Court has decided that the matter should not be struck. (See L'Hirondelle v. Canada, [2000] F.C.J. No. 192.)
3) Finally, in a proceeding such as the within application for judicial review, which is itself intended to be summary in nature, I adopt the respondent's (Attorney General of Canada) view that considering the importance of the issues raised in the present proceedings and considering the nature of the grounds of review put forward in the Application for Judicial Review, the Court should avail itself of all relevant material, the judge hearing the application on the merits being optimally placed to determine the weight and admissibility of the evidence.
[9] As success is divided between the parties, costs shall be in the cause.
"Yvon Pinard"
Judge
Montreal, Quebec
June 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020613
Docket: T-824-02
BETWEEN:
LOUISE BONSPILLE AND
BRENDA ETIENNE
Applicants
and
MOHAWK COUNCIL OF KANESATAKE,
MAVIS KATSI'TSEN: HAWE ÉTIENNE,
JOCELYN BONSPILLE, KANERAHTENHA:
WI HILDA NICHOLAS and
THE ATTORNEY GENERAL OF CANADA
for The Solicitor General of Canada
Respondents
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-824-02
STYLE OF CAUSE:
LOUISE BONSPILLE AND
BRENDA ETIENNE
Applicants
and
MOHAWK COUNCIL OF KANESATAKE,
MAVIS KATSI'TSEN: HAWE ÉTIENNE, JOCELYN BONSPILLE,
KANERAHTENHA: WI HILDA NICHOLAS and
THE ATTORNEY GENERAL OF CANADA
for The Solicitor General of Canada
Respondents
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 10, 2002
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE PINARD
DATED: June 13, 2002
APPEARANCES:
Mr. Peter Annis / Mr. Ian Houle FOR APPLICANTS
Mr. Richard Keswick FOR RESPONDENTS
MOHAWK COUNCIL OF
KANESATAKE ET AL.
Ms. Anick Pelletier FOR RESPONDENT
THE ATTORNEY GENERAL
OF CANADA
SOLICITORS OF RECORD:
Vincent Dagenais Gibson FOR APPLICANTS
Ottawa, Ontario
Langlois Gaudreau FOR RESPONDENTS
Montreal, Quebec MOHAWK COUNCIL OF KANESATAKE ET AL.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada THE ATTORNEY GENERAL
Ottawa, Ontario OF CANADA