Date: 19991210
Docket: A-260-98
CORAM: STONE J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
JOHN CORBIERE
Applicant
- and -
ROLAND HEWSON, CAROL NADJIWON
ALBERT SEWELL, DONALD SYRETTE, NOEL
SYRETTE, ANN TEGOSH and KEVIN TEGOSH
Respondents
Heard at Toronto, Ontario on Wednesday, November 17, 1999.
Judgment delivered at Ottawa, Ontario on Friday, December 10, 1999.
REASONS FOR JUDGMENT BY: ISAAC J.A.
CONCURRED IN BY: STONE J.A.
SEXTON J.A.
Date: 19991210
Docket: A-260-98
CORAM: STONE J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
JOHN CORBIERE
Applicant
- and -
ROLAND HEWSON, CAROL NADJIWON
ALBERT SEWELL, DONALD SYRETTE, NOEL
SYRETTE, ANN TEGOSH and KEVIN TEGOSH
Respondents
REASONS FOR JUDGMENT
ISAAC J.A.
I. This is an appeal from an order made on 12 May 1998. In this order, the Motions Judge stayed proceedings for judicial review and ordered that they be restored only with good lawful reason and after non-refundable payment of costs.
II. A recitation of the facts and procedural history will illuminate the analysis and the disposition.
III. The appellant is a professional politician. He is a member of the Batchewana First Nation Band ("the Band") and served as Chief of the Band from 1966 to 1980 and again from 12 December 1994 to 16 October 1996. The respondents were Councillors of the Band. Their term ended in December 1996 although several were re-elected to office1.
IV. In 1995, some of the Councillors complained to the Department of Indian Affairs and Northern Development ("the Department") that the appellant, as Chief, had not performed his duties in accordance with the Indian Act ("the Act")2. Specifically, they alleged that the appellant had been absent without authorization from three consecutive meetings of the council between January and April, 1995 and requested that the office of the Chief be declared vacant as a result. Acting on this complaint, the Minister of Indian Affairs and Northern Development ("the Minister") appointed the Honourable Mr. R.G. Conant Q.C. to investigate the matter on 27 May 1996. In his report to the Minister dated 20 September 1996, Mr. Conant concluded that the appellant had been absent from three consecutive meetings of the council without authorization and recommended that the office of Chief of the Batchewana First Nation be declared vacant.
V. Based upon Mr. Conant's review, the Deputy Minister of Indian Affairs and Northern Development ("the Deputy Minister") made a declaration pursuant to subparagraph 78(2)(b)(ii) of the Indian Act which reads:
| 78. .... |
| (2) The Office of chief or councillor of a band becomes vacant when |
| .... |
| (b) the Minister declares that in his opinion the person who holds that office |
| .... |
| (ii) has been absent from three consecutive meetings of the council without being authorized to do so, or |
| .... |
VI. The Deputy Minister declared that, in his opinion, the appellant had been absent from meetings of the council for three consecutive meetings without being authorized to do so. This declaration rendered the office of Chief vacant under subsection 78(2) of the Act. The appellant was therefore effectively removed from office before the expiration of his two-year term to which he had been duly elected and which would have expired by the effluxion of time in early December, 1996.
VII. On 30 October 1996, the appellant attempted to commence proceedings by way of a motion for interim relief. He sought an order to stay the effect of the Deputy Minister's declaration pending the outcome of his application for judicial review which he had not yet filed. In his written submissions for the present appeal, the appellant stated this motion was prompted by his concern that, unless the Deputy Minister's order was stayed, he would be prevented from presiding over a meeting of the general band membership scheduled for 6 November 1996. He feared that his absence from this meeting would adversely affect his chances for re-election as this was the last general meeting to be held prior to the election for Band Council and Chief, to be held in December 1996. He proceeded on the basis that the "gap rule"3 permitted him to move for interim relief even though there was no proceeding then pending in the Court in which interim relief could be granted. The motion was being heard in Ontario and the Ontario Rules appeared to allow him to proceed in this way.
VIII. On 4 November 1996, the appellant commenced an application for judicial review pursuant to section 18.1 of the Federal Court Act 4 by filing an originating notice of motion in the Trial Division. The motion sought an order quashing the declaration by the Deputy Minister, and such other relief as the Court deemed appropriate. On the same date, the appellant appears to have refiled his motion for interim relief.
IX. The motion for interim relief came on for hearing before the Associate Chief Justice on 6 November 1996. The Associate Chief Justice appears not to have accepted the appellant's submission respecting the applicability of the "gap rule". He disposed of the motion in the following way:
| As indicated in oral reasons this motion cannot proceed in the present form. It is therefore withdrawn. Without prejudices to a similar application upon proper notice5. |
X. The appellant did not take any steps to bring a fresh application for interim relief. Instead, he sought to perfect his application for judicial review by obtaining extensions of time to serve and file the supporting affidavits.
XI. The first motion for extension of time came on for hearing before Cullen J. It was opposed by the respondents on the basis that elections had been held for the position of Chief and Councillors of the Batchewana Band, that the appellant had run for office as Chief and had been defeated and, as a result, that the relief that the appellant sought was now moot. Notwithstanding the respondents' position, Cullen J. granted an extension to serve and file the application record for judicial review and the originating notice of motion on the respondents on or before 23 May 1997.
XII. The second extension to file two supporting affidavits was granted on 19 September 1997 by Lutfy J.
XIII. Subsequently, the appellant had discovered documents which indicated to him that the three meetings which he is alleged to have missed and on the basis of which he had been prematurely removed from office were not in fact meetings of the council within the meaning of section 78 of the Act. The appellant then brought a motion before Muldoon J. seeking leave to file these documents as new evidence in support of his application for judicial review. The respondents, for their part, brought a motion requesting a stay on the grounds of mootness and for costs fixed at $900.
XIV. Muldoon J. heard both motions on 12 May 1998. He dismissed the appellant's motion but granted that of the respondent in the following terms:
| It is ordered that, pursuant to paragraph 50(1)(b) of the Federal Court Act, these proceedings for judicial review of a Ministerial declaration dated October 16, 1996 be stayed as the issue has become moot, the application was never restored after it was withdrawn on November 4, 1996. |
| And it is ordered that Mr. John Corbière pay the costs of this motion to the other parties in an amount hereby fixed at $900.00 altogether , non-refundable, and this proceeding shall not be restored until paid, and costs are payable forthwith in any event. |
XV. The appellant now appeals, not from the order dismissing his motion for leave to file new evidence, but from the order granting the stay of his originating notice and costs. In his notice of appeal, he raises two issues: first, whether the Motions Judge erred in staying his originating notice of motion for mootness and, second, whether the Motions Judge erred in awarding costs in the amount and upon the terms that he did.
XVI. At the hearing of the appeal, the appellant was represented by counsel. No one appeared for the respondents although they were duly served with the notice of appeal, the appeal book and the appellant's memorandum of fact and law.
XVII. In argument, we suggested to counsel for the appellant that it appeared to us that the Minister of Indian Affairs and Northern Development or, at least, the Attorney General of Canada, should be added as a party since the originating notice of motion sought to quash a declaration made by the Deputy Minister. He initially disagreed with our suggestion but, in the end, accepted that we would make a direction to that effect. Adding either the Minister or the Attorney General as a party to the litigation would, of course, involve an application to a judge of the Trial Division for an extension of time pursuant to subsection 18.1(2) which reads:
| (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. [Emphasis added.] |
XVIII. Since the Minister had not been joined as a party to the litigation although it appears that the Minister had knowledge of the proceedings and had appeared by counsel at the hearing for interim relief before the Associate Chief Justice, it is my view, that the appellant should move promptly in the Trial Division for an order adding the Minister or the Attorney General of Canada as a party. The motion will, of course, be supported by affidavit evidence, as required by the Federal Court Rules 1998. This affidavit may exhibit a copy of these reasons.
ANALYSIS
XIX. As I have already indicated, the learned Motions Judge stayed the appellant's judicial review application under the mistaken notion that the originating notice of motion was the document which the Associate Chief Justice had ordered withdrawn on 4 November 1996. In fact, that is not the case. It was the motion for interim relief. To that extent, the learned Motions Judge was in error in exercising his authority under subsection 50(1) of the Federal Court Act. However, there is a second ground upon which the Motions Judge proceeded: he found the issue to be moot. His dispositive reasons read:
| It is apparent that the impugned decision did not terminate the applicant's continuity in office. The electorate did that. This proceeding should accordingly be put out of its foot-dragging misery. It ought to be and will be stayed with costs fixed at $900.00 altogether payable forthwith to the respondents; and the proceeding shall not be restored a) without good lawful reason, b) only after non-refundable payment forthwith of said costs, in any event 6. |
I am respectfully of the view that the learned Motions Judge erred in reaching the conclusion that the issue in the judicial review application was moot.
XX. In Borowski v. Canada (Attorney General)7, the Supreme Court of Canada laid down a two-step approach to the question of mootness. The first step is to determine whether a live controversy exists. If the tangible and concrete dispute no longer exists, leaving the issue merely an academic question, then the second step comes into play. This step requires the Court to decide whether it should exercise its discretion to hear the case despite the absence of a live controversy.8 In this second step, a court should be guided in the exercise of its discretion by considering the underlying rationale of the mootness doctrine.
XXI. Applying these principles to this case, it is clear to me that the issue is not moot. The underlying basis for the proceeding is a judicial review of the Deputy Minister's declaration pursuant to section 18.1 of the Federal Court Act. In his originating notice of motion, the appellant asked for an order quashing the declaration and any further appropriate relief. It is true that election for a new Chief has already taken place. Yet, in pursuing judicial review, the appellant seeks not to be returned to the office of Chief but rather to clear his reputation which he believes to be tarnished by an incorrect decision based on an inquiry process that he alleges to be flawed in several respects. The appellant has stated that he intends to run for elective office in his community in the future and he believes that the effect on his reputation may affect his chances of success in future elections. Unlike those cases in which mootness has been found to exist, a live controversy still exists in this case 9. As such, the appellant is entitled to put his case before a judge of the Trial Division to decide whether the declaration of the Deputy Minister should be quashed. In these circumstances, the second part of the two-step test in Borowski does not come into play.
XXII. I turn now to consider the order as to costs which the learned Motions Judge made. It is an unusual order. From the language which the Motions Judge used in his reasons, it appears to me that he was under the impression that the appellant was unduly dilatory or was abusing the processes of the Court. A consideration of the record does not disclose to me evidence of either. Counsel for the respondents did ask for an award of costs of $900.00 in his motion for an order to stay the proceeding, but the materials that the respondents filed in support of the relief requested do not, either expressly or by implication, suggest a basis for the request or indicate how the quantum was reached. I conclude, therefore, that the award of costs was unwarranted and I would set it aside in its entirety.
XXIII. In the result, I would allow the appeal with costs both here and below, set aside the order of the Motions Judge, including his award of costs, and direct that the respondent move
before the Trial Division, not later than 6 January 2000, for an order amending his originating notice of motion by adding the Minister or Attorney General of Canada, or both, as parties respondents in the motion.
"Julius A. Isaac"
Julius A. Isaac J.A.
"I agree.
A.J. Stone J.A."
"I agree.
J. Edgar Sexton J.A."
__________________3 Rule 5 of the Federal Court Rules C.R.C 1978, c. 663 as amended allows the Court to adopt provincial practice where the Federal Court Rules are deficient in an area of practice or procedure.
4 R.S.C. 1985 c. F-7 as amended.
6 Reasons for Order, May 12, 1998 at para. 6 [emphasis added].
7 [1989] 1 S.C.R. 342 [hereinafter Borowski].
8 See Borowski at 353 where Sopinka J. formulated the test as follows: First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.
9 Cases where the issue was determined to be moot at the first stage include Borowski where the legislative provisions challenged had already been struck down; K. F. Evans v. Canada (Minister of Foreign Affairs) (1998) 223 N.R. 212 (F.C.A.), where the logs at issue had already been sold and a new permit issued by the appellant for the same quantity of logs; and Canada (Minister of Citizenship and Immigration v. Nemsila (1997) 214 N.R. 383 (F.C.A.)where the death of the appellant rendered academic the question of whether he could be deported.