Sawridge Band v. Canada

Sawridge Band v. Canada
Court (s) Database
Federal Court Decisions
Date
2006-10-12
Neutral citation
2006 FC 1218
File numbers
T-66-86
Notes
Reported Decision
Decision Content
Date: 20061012
Docket: T-66-86
Citation: 2006 FC 1218
Ottawa, Ontario, this 12th day of October, 2006
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SAWRIDGE BAND
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN=S ASSOCIATION OF CANADA
Interveners
Docket: T-66-86-B
BETWEEN:
TSUU T=INA FIRST NATION
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN=S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER AND ORDER
THE MOTION
[1] The Plaintiffs are seeking an adjournment of the trial date in these proceedings (presently set at January 24, 2007) to March 12, 2007.
[2] The sole ground for this request is that the Plaintiffs have filed an application for leave to appeal the decision of the Federal Court of Appeal dated June 19, 2006, to the Supreme Court of Canada and they want the Court to await the outcome of that leave application. They say that, if leave is granted and the Supreme Court of Canada hears their appeal, the outcome could substantially re-define the issues before the Court in these actions.
[3] The Federal Court of Appeal decision of June 19, 2006 dismissed the Plaintiffs’ appeal from my decisions of November 7, 2005 and November 8, 2005.
BACKGROUND
[4] The full background to this motion is contentious and convoluted and I have recited it several times in previous pre-trial motions. The root of the problem is a fundamental difference of opinion between the Plaintiffs and the other participants as to what these actions involve concerning self-government. That difference of opinion came to light in 2004 on the eve of the trial which was originally due to commence on January 10, 2005.
[5] The Crown and the Interveners say that the only issue in the actions as pleaded is whether Bill C-31 infringes the Plaintiffs’ aboriginal rights to determine membership. They agree that, if such a right is established, it may be an incident of the Plaintiffs’ right of self-government.
[6] The Plaintiffs, on the other hand, take the view that in their pleadings they have asserted a right to control membership that can be proved not only directly (i.e. on the basis of evidence pertaining to the Plaintiffs’ laws, traditions, customs and practices) but also by establishing a broad right to self-government that is inherent, aboriginal, recognized by treaties, and protected by section 35(1) of the Constitution Act, 1982. The Plaintiffs also say that they have pleaded in the alternative that their right to control membership is parasitic upon their broad right to self-government.
[7] This turbulent disagreement over the extent to which self-government appears in the Plaintiffs’ pleadings as presently drafted came to a head before me when I was asked to make decisions in motions brought by the Crown in 2004 and 2005 concerning the adequacy and relevance of witness will-say statements and an expert report produced by the Plaintiffs in accordance with a pre-trial order made by Justice Hugessen of March 26, 2004. Justice Hugessen was the case management judge between 1997 (the year in which these actions were returned for re-trial by the Federal Court of Appeal) and 2004 (the year in which I was appointed trial judge). Notwithstanding his considerable experience in such matters, Justice Hugessen encountered significant resistance to his attempts to move these actions towards trial. The record reveals repeated warnings and castigations over needless delays and lack of cooperation, not all of which were directed at the Plaintiffs alone. All in all, as the passage of approximately nine years since the Federal Court of Appeal decision directing re-trial suggests, this has been a very difficult dispute to bring to trial. And notwithstanding that Justice Hugessen ordered a trial date of January 10, 2005, the wrangling and the resistance continued even after my appointment as trial judge in 2004 so that, for one reason or another, the trial commencement date had to be re-set at January 24, 2007.
[8] Since my appointment as trial judge, the principal focus of the dispute has been the scope of the pleadings and the extent to which the Plaintiffs have incorporated into their claims a broad right of self-government. In other words, after seven years of case management, discovery and trial preparation, the parties suddenly discovered that an enormous divide existed between them as to what they were actually litigating. And that issue came to the fore when I was asked to review and exclude some of the witnesses that the Plaintiffs revealed they intended to call at trial.
[9] As part of the exercise of examining the proposed will-says and the expert report of Dr. Martinez produced by the Plaintiffs, the participants asked me to examine the scope of the pleadings to see if the Plaintiffs had indeed asserted a broad claim to self-government that would justify the voluminous evidence they were proposing to call on that issue.
[10] My decisions of November 7, 2005 and November 8, 2005 dealt with these matters. I concluded for several reasons that the Plaintiffs should not be calling Dr. Martinez and certain of the other witnesses they wanted to call, and that some of the proposed evidence in will-say statements was not relevant to my reading of their pleadings. This was because, after reviewing the pleadings, the history of the dispute, representations made to the Court by the Plaintiffs’ former counsel, and the relevant jurisprudence, I could not accept that the pleadings contained the broader self-government claims that the Plaintiffs now wish to assert.
[11] The Plaintiffs took my decisions on these issues before the Federal Court of Appeal who concluded that I had made no reversible error in interpreting the pleadings or in excluding witnesses and testimony on the basis of the will-say statements or the expert opinion of Dr. Martinez. The Federal Court of Appeal decision was rendered June 19, 2006.
[12] The Plaintiffs have now applied for leave to the Supreme Court of Canada to appeal the Federal Court of Appeal decision. We do not know when that leave application will be heard but, based upon the experience of counsel, we likely will not have a leave decision before the trial begins on January 24, 2007. Also, of course, if leave is granted, the Plaintiffs will ask the Court for a further adjournment until the Supreme Court of Canada has heard their appeal and rendered judgment. So this could mean a significant delay of the proceedings in this Court.
[13] Another important factor is that the Plaintiffs have now notified the other participants and the Court that, if they don’t get leave to appeal to the Supreme Court of Canada, they are considering several options, one of which is to discontinue the existing actions and commence other actions either in the Federal Court or the Court of Queen’s Bench of Alberta.
[14] There have been previous hints that this might occur and, at a trial management conference on August 23, 2006, Plaintiffs’ counsel speculated openly on the various options available to the Plaintiffs. It also came up as part of an apprehension of bias motion brought before me by the Plaintiffs in 2005 that raised the possibility of transferring the action to Alberta. But this issue is now beyond speculation. The other participants and the Court, as of the date of the present motion, are now clearly on notice that withdrawal of the actions by the Plaintiffs is a possibility.
[15] In effect, then, the Plaintiffs want the Court to adjourn the trial until the leave application to the Supreme Court of Canada has been determined. If they are successful in being granted leave then they may continue their actions in the Federal Court. If they are not successful, then they may discontinue these actions. There are other options, of course, and the Plaintiffs have now been forthright in placing them before the Court and the other participants. But it is the possible discontinuance of the present actions that appears to me to have the most consequence for the motion to adjourn the trial that is presently before me. Needless to say, it also presents the other participants in these actions, as well as the Court, with enormous problems in preparing for a trial that, after some nine years of expenditure in terms of time and resources, may not take place if the Plaintiffs decide to withdraw.
[16] In their application for leave to the Supreme Court of Canada, the Plaintiffs have raised the following issues with respect to the Federal Court of Appeal decision of June 19, 2006:
1. How Must Pleadings Asserting Aboriginal and Treaty Rights of Self-Government be Interpreted?
2. Does s. 35(1) of the Constitution Act, 1982, Recognize and Affirm Aboriginal Rights of Self-Government?
3. Are Claims to Aboriginal Self-Government Justiciable Before the Courts of Canada?
4. Must All Jurisdictional Rights of Aboriginal Self-Government be Individually Proven on the Basis of the Van der Peet Criteria?
5. Are Aboriginal Rights of Self-Government “Aboriginal Rights”, “Treaty Rights” or Incidents of Aboriginal Title for the purposes of s. 35(1)?
6. How May Aboriginal Rights to Self-Government be Proven?
7. May Specific Rights, Such as the Right to Determine Membership, be Established as “Parasitic” or “Necessarily Incidental” to an Aboriginal Right of Self-Government?
8. Is a First Nation’s Right to Determine Their Own Membership an Incident of the Aboriginal Right of Self-Government Recognized and Affirmed by s. 35(1) of the Constitution Act, 1982?
[17] At this stage, of course, we do not know the grounds upon which leave might be granted; and the Plaintiffs’ assessment of what the Federal Court of Appeal decided is very much open to debate. Nor do we know how the Supreme Court of Canada will handle the other grounds that I gave in my decisions, and that were not reversed by the Court of Appeal, for excluding witnesses and evidence because of the Plaintiffs’ failure to comply with previous Court orders. So everything remains highly speculative at the time of the present motion for an adjournment.
[18] The Plaintiffs want to keep their options open, and they say they fear some detriment if the trial begins on January 24, 2007. Obviously, the Court can see that the Plaintiffs might gain strategically from an adjournment, but the issue is whether they satisfy the jurisprudence for postponing the commencement of a trial that has taken some nine years to arrange since the Federal Court of Appeal decided to return the actions for re-trial in 1997, and that has taken some twenty years since these actions originally began in 1986.
ANALYSIS
Adjournment or Stay?
[19] The Plaintiffs say they have brought this motion under Rule 36(1) of the Federal Courts Rules, 1998:
36(1) A hearing may be adjourned by the Court from time to time on such terms as the Court considers just.
36(1)La Cour peut ajourner une audience selon les modalités qu'elle juge équitables.
[20] This looks straightforward enough but the Crown says that, in truth, the Plaintiffs are asking me to vary my direction setting the trial date at January 24, 2007, so that the motion should be considered under Rule 399(2)(a) of the Federal Courts Rules, 1998:
399(2) On motion, the Court may set aside or vary an order
(a) by reason of a matter that arose or was discovered subsequent to the making of the order; or
(b) where the order was obtained by fraud.
399 (2) La Cour peut, sur requête, annuler ou modifier une ordonnance dans l'un ou l'autre des cas suivants :
a) des faits nouveaux sont survenus ou ont été découverts après que l'ordonnance a été rendue;
b) l'ordonnance a été obtenue par fraude.
[21] Even more interesting, NSIAA says that the Plaintiffs and the Crown are both misguided; the reality is that this motion is for a stay pending a leave application to the Supreme Court of Canada and so must be brought before the Federal Court of Appeal pursuant to section 65.1 of the Supreme Court Act:
65.1 (1) The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
65.1 (1) La Cour, la juridiction inférieure ou un de leurs juges peut, à la demande de la partie qui a signifié et déposé l’avis de la demande d’autorisation d’appel, ordonner, aux conditions jugées appropriées, le sursis d’exécution du jugement objet de la demande.
[22] This disagreement is not, of course, merely academic. If the reality is that this is a stay motion, then I may be prevented from considering the merits. The Plaintiffs may have to take the matter up with the Federal Court of Appeal. If I do have jurisdiction to hear it, then I have to decide whether the matter should be considered as a stay, or under Rule 36(1) or Rule 399(2)(a), each of which has its own criteria, standards and jurisprudence.
[23] So, first of all, is this really a stay motion that the Plaintiffs should have taken to the Federal Court of Appeal?
[24] In support of the stay characterization, NSIAA in particular relies upon D & B Companies of Canada Ltd. v. Canada (Director of Investigation and Research) (1994), 58 C.P.R. (3d) 342 (C.A.), as well as the more recent decisions of Justice Blais in Re: Zundel, 2004 FC 198 and Justice Nadon in Canadian Human Rights Commission v. Malo, 2003 FCA 466.
[25] In the D & B case, the Federal Court of Appeal was asked to consider a stay of proceedings before the Competition Tribunal pending the hearing in the Federal Court of Appeal of an appeal from an order of that tribunal.
[26] Chief Justice Isaac in his reasons addressed the situation as follows at paras. 15-18:
On September 28, the Appellant filed and served its appeal from that decision of the Tribunal.
The Appellant, not being able to obtain the consent of the Respondent and the Intervenor to its request for an adjournment of the hearing of the application before the Tribunal, brought an application before the Tribunal seeking an adjournment of the hearing pending the hearing and disposition of the Appellant’s appeal to this Court. The application was heard on October 5, 1994 and was dismissed. The reasons for decision were given by Rothstein J. as a judicial member of the Tribunal. After hearing argument, Rothstein J. concluded that in deciding the application he should apply the principles laid down in Attorney General for Manitoba v. Metropolitan Stores (MTS) Ltd., [1987] S.C.R. 110 and re-stated in RJR – MacDonald Inc. v. Attorney General of Canada, [1994] 1 S.C.R. 311. Applying those principles, Rothstein, J. concluded first that the Appellant had satisfied him that the application was not frivolous or vexatious. He then concluded that the Appellant had not shown that it would suffer irreparable harm if the application were not granted. In view of that conclusion, he found it unnecessary to decide whether the balance of convenience favoured the Appellant.
…
Following the decision the Appellant launched this motion and supported it with affidavits of Randall T. Hughes and Donald G. Easter, both of whom outlined, among other things, the harm and inconvenience that the Appellant would suffer if required to proceed with the hearing before the Tribunal before the hearing and disposition of the appeal in this Court. The Director filed no affidavits in opposition, but did make submissions opposing the motion. The Intervenor supported its opposition with the affidavit of Gian M. Fulgoni, the Chairman of the Board of the Intervenor and by the submissions of counsel.
…
Although based upon fresh materials, the submissions made by the parties were essentially the same as those made before the Tribunal on the motion to adjourn. I have read the reasons of Rothstein J. and am in substantive agreement with his analysis based upon Metropolitan Stores and R.J.R. MacDonald. I therefore adopt them and append a copy of his reasons herewith. I would only add that having regard to the materials filed and the submissions made, I find that the Appellant has not satisfied me that the balance of convenience is in its favour. In this respect I was influenced to a great extent by the mandatory provision in subsection (2) of the Competition Tribunal Act that the hearing of the application should be held informally and expeditiously as circumstances and conditions of fairness would allow.
[27] Chief Justice Isaac then dismissed the appeal. He attached to his reasons the reasons of Justice Rothstein, who was the presiding judicial member on the Competition Tribunal. In his reasons, Justice Rothstein made the following points at pages 4, 5 and 9-10:
The threshold question is the test to be employed by the Tribunal in considering whether to grant an adjournment of proceedings pending the outcome of an appeal of an interlocutory order made by it. Counsel for the respondent submits that the test is not the same as in the case of a stay of proceedings in which a court is asked to stay the proceedings of a tribunal or a lower court. While he concedes the applicable principles are similar to those in the case of a stay, he argues that the real issue is the power of the Tribunal to control its own proceedings.
…
Counsel for the Director and counsel for the intervenor submit that the test in the case of an adjournment pending appeal is the same as in the case of a stay of proceedings.
…
I agree with counsel for the Director and counsel for the intervenor. While not every request for an adjournment would be decided by application of the principles governing a stay of proceedings, certainly an adjournment pending appeal has exactly the same result as a stay pending appeal. Counsel for the respondent conceded that an alternative open to him is to seek a stay from the Federal Court of Appeal. I do not understand why the Tribunal, in considering this adjournment application, would apply different principles than the Federal Court of Appeal on the stay application, both relating to the same proceedings. I am of the view that the principles applicable to stays of proceedings, which themselves are the same as the principles applicable to interlocutory injunctions, are to be applied in the case of an application for an adjournment pending appeal.
…
In the present case, I indicated to counsel that if an adjournment were to be granted, the Tribunal could well be in a position to hear the merits of the case commencing on January 16, 1995. Such a delay is not lengthy and of itself might not be sufficient to constitute irreparable harm. However, as pointed out by counsel for the intervenor, there is no assurance that the matter could be heard commencing on that date. Perhaps the Federal Court of Appeal will not have rendered its decision by that date. Perhaps the losing party will seek to appeal to the Supreme Court of Canada. These eventualities are, of course, themselves speculative at this time. But they do give rise to the concern that the delay involved may well be longer than three months. If so, the more lengthy delay may result in irreparable harm to the public interest in the manner indicated in RJR – MacDonald Inc.
…
[28] The important point here for the jurisdictional issue that I have to decide is Justice Rothstein’s conclusion that “while not every request for an adjournment would be decided by application of the principles governing a stay of proceedings, certainly an adjournment pending appeal has exactly the same result as a stay pending appeal.”
[29] This would suggest that, if I do consider this motion, then I should keep in mind that “the principles applicable to stays of proceedings, which are themselves applicable to interlocutory injunctions, are to be applied in the case of an application for an adjournment pending appeal.” Those principles are well-known and were set out by the Supreme Court of Canada in A.G. Manitoba v. Metropolitan Stores (MTS) Ltd., Manitoba Food and Commercial Workers, Local 832 and Manitoba Labour Board. They were restated in RJR – MacDonald Inc. v. A.G. Canada, [1994] 1 S.C.R. 311 at 334.
[30] If I apply those principles in the present motion, then the Plaintiffs must fail because they have adduced no evidence on relevant points. In particular, there is no real evidence of irreparable harm or that the balance of convenience favours the Plaintiffs.
[31] The Plaintiffs say in answer to the characterization of this motion as a request for a stay that “there is no merit to this suggestion.” But obviously there is. The sole purpose for requesting an adjournment in this motion is to stay both actions until the Plaintiffs’ leave application to the Supreme Court of Canada is considered. This is not a request for an adjournment based, for example, upon readiness issues. In fact, the Plaintiffs have been careful to separate readiness issues from leave issues in their deliberations before the Court, and readiness issues may well form the basis of a future motion to adjourn the trial.
[32] So it looks to me as though the reality here is that the Court is being asked to consider a stay application. And the Plaintiffs, in their materials and in their argument, have not attempted to satisfy the criteria and the jurisprudence regarding a stay of proceedings.
[33] To get around this problem, and so that I can consider this motion as a simple adjournment application under Rule 36(1), the Plaintiffs have directed me to the decisions of Justice Rouleau in Schreiber v. Canada (Attorney General), [1997] F.C.J. No. 1301 (T.D.) at para. 9, aff’d 1998 CarswellNat 440 (C.A.), and Justice MacKay in Alberta v. Canada (Minister of Environment), [1991] F.C.J. No. 450 (T.D.) at para. 35.
[34] In the Schreiber case, Justice Rouleau was dealing with an adjournment motion in a situation where the Supreme Court of Canada had already granted leave in related proceedings. That is not the situation before me in this motion. No leave has yet been granted to the Plaintiffs, and leave may never be granted to the Plaintiffs. In Schreiber, an earlier motion to adjourn prior to leave being granted was brought, but that earlier motion was denied.
[35] In addition, there is nothing in the report of the Schreiber decision to suggest that Justice Rouleau was asked to consider whether he should be treating the motion before him as a stay application. The issue does not appear to have been argued, so I cannot treat the case for any authority as to what the Court should do when the jurisprudence regarding stay applications is raised and the Court is asked to make a decision on point.
[36] But I think the Plaintiffs are correct when they say that Schreiber shows that Justice Rouleau entertained and granted a simple adjournment request in the following situation:
10. If one looks to the issues that were determined by the Federal Court of Appeal and the grounds of appeal to the Supreme Court of Canada which will eventually be determined, I am satisfied that they are so related to this application that one could almost characterize this application as sub judice. I am persuaded that not to grant the adjournment would be an unwarranted imposition of the court's resources.
[37] At this point, I am not addressing whether such an adjournment would be justified on the evidence before me in this motion. But Justice Rouleau, in Schreiber, granted an adjournment on the grounds that “a decision on the issue presently before the Supreme Court of Canada will render this exercise academic.”
[38] The argument before me is not that an issue presently before the Supreme Court of Canada will render the actions in the present case academic. But this does not affect the Plaintiffs’ point that Justice Rouleau was willing to grant an adjournment in a situation where, according to the Interveners in the present motion, he should have applied the jurisprudence related to stay applications.
[39] This is somewhat perplexing because it was Justice Rouleau who, in AlliedSignal Inc. v. Du Pont Canada Inc. (1995), 64 C.P.R. (3d) 362 (Fed. T.D.) declined to hear an application to stay a reference as to damages resulting from a decision of the Federal Court of Appeal until such time as the Supreme Court of Canada decided whether or not it was prepared to entertain the appeal from the decision of the Federal Court of Appeal. In AlliedSignal, Justice Rouleau was clear that, on his review of the authorities, “this matter should have been brought before the Federal Court of Appeal.” (para. 3) Justice Rouleau declined to consider the motion for various reasons. One of them was that section 65.1 of the Supreme Court Act, “clearly supports the Respondent/Plaintiffs’ position …” (para. 9). But, perhaps most telling, is that Justice Rouleau, at para. 6, applied the “irreparable damage” language of stay applications to the request before him:
I accept that, here, the expense and inconvenience of the reference will be substantial and that that, by itself, is not a sufficient ground for the exercise of the Court's discretion to stay it. "Irreparable damage", in its ordinary sense, is damage that cannot be compensated by an award of money.
[40] AlliedSignal, as regards the jurisdictional point, is much closer on the facts to the situation before me in this motion in that Justice Rouleau was dealing with a situation where leave had not yet been granted by the Supreme Court of Canada. In that situation, he was clearly of the view that he was dealing with a stay application that should have been before the Federal Court of Appeal and his reasons also show that he felt the relevant jurisprudence was that related to stay applications.
[41] Perhaps the only difference is that, in AlliedSignal, the motion was framed as a stay, and the parties argued the matter as a stay, while in Schreiber the motion was characterized as an adjournment and the parties appear to have argued the matter in those terms. But this issue cannot be decided upon the language and concepts used by the parties; what is more, in AlliedSignal, when Justice Rouleau’s attention was directed to section 65.1 of the Supreme Court Act, he was clearly of the view that the motion should not have been brought before him, but should have been brought before the Federal Court of Appeal.
[42] This suggests to me that, when Justice Rouleau did hear full argument on point in AlliedSignal, the position he took clearly supports the arguments of NSIAA in the motion before me. The Plaintiffs’ motion is really a request for a stay that should have been brought before the Federal Court of Appeal.
[43] As regards Justice MacKay’s decision in the Alberta case, the Plaintiffs say this is authority for saying that “the tripartite test is not applicable where an adjournment is sought from the trial court on the basis of ongoing proceedings before the Supreme Court of Canada.” They say that Alberta shows Justice MacKay granting “an application to adjourn the proceedings before him on the basis of separate but related proceedings before the Supreme Court of Canada. This decision was made in light of all the facts and circumstances of the proceedings then before the Court.”
[44] But the Alberta case is a very difficult decision to equate with the facts before me in the present motion. The Plaintiffs place particular emphasis upon Justice MacKay’s reasons at para. 35:
Counsel for the Province urged that the Metropolitan Stores test was not applicable in this case. In oral reasons for my order at the time of the hearing I indicated I would further consider that submission. Having done so I am persuaded that that test is more apt in circumstances where the court is asked to stay or enjoin the proceedings of another body, for example, of the Panel as was sought by the Province in applying for interlocutory relief including an injunction restraining the work of the Panel, an application dismissed by Mr. Justice Rouleau. The same test, of Metropolitan Stores, is not so apt in considering a motion to stay or adjourn proceedings which has the effect of postponing access to the relief ordinarily available in this Court. In these latter circumstances the more appropriate test is that applied by the Associate Chief Justice in Association of Parents Support Groups in Ontario (Using Toughlove) Inc. v. York et al., that the applicant for a stay establish that the interest of justice clearly supports a stay and outweighs the respondent's right to proceed with its cause of action. The court is reluctant to interfere with any litigant's right of access.
[45] In Alberta, the Federal Minister of the Environment was seeking a stay or an adjournment of the Province of Alberta’s application to halt a review of the Oldman River dam project by an Environmental Assessment Review Panel appointed by the Minister. The stay or adjournment of the Province’s application was sought on the grounds that there was pending before the Supreme Court of Canada an appeal from the Federal Court of Appeal dealing with proceedings where certain relevant constitutional issues would be dealt with.
[46] So, in Alberta, the Minister wanted to stay the Province’s application to halt a review of the Project by the Panel until the Supreme Court of Canada had considered relevant issues in related proceedings.
[47] Alberta was not a situation where the Plaintiffs in an action wanted to halt that action until their own leave application to the Supreme Court from a decision of the Federal Court of Appeal was heard.
[48] Also, Alberta is not a case in which Justice MacKay was asked to consider the effect of section 65.1 of the Supreme Court Act. The Minister asked that the Province’s application be stayed, pursuant to subsection 50(1) of the Federal Court Act or, alternatively, that it be adjourned pursuant to Court Rule 323, pending a decision by the Supreme Court of Canada on an appeal that had already been heard, and for which a decision was expected within a matter of months.
[49] Justice MacKay rejected the Minister’s request for a stay under subsection 50(1) of the Federal Court Act on the grounds that the Province’s application was not “a claim … being proceeded with in another Court” within the terms of that subsection.” (para. 30).
[50] Justice MacKay also made it clear in Alberta that, whatever test he was applying, “the serious issue is surely the question raised by the Province concerning the validity of the Panel’s terms of reference.” He agreed that question was a serious issue and “the question before this Court is whether a stay or adjournment should be granted the effect of which would be to postpone resolution of the issue.” (para. 31).
[51] Once again, there is no analogy with the situation before me in this motion. The present actions have been brought by the Plaintiffs who are now asking that the trial of their own actions be adjourned. Leave to appeal to the Supreme Court of Canada has not been granted. The Supreme Court of Canada has not heard the matter and no decision is pending in the near future.
[52] In Alberta, both sides alleged that they would suffer “irreparable harm.” The Minister and the Panel alleged irreparable harm if the Province’s application was granted (para. 32) and the Province also alleged that its interests would suffer irreparable harm if the Panel’s review was allowed to continue. (para. 33). Justice MacKay concluded on this issue that while “either of the parties here is likely to suffer some harm whatever the outcome … I am not persuaded that in either case the harm that is feared would be irreparable.” (para. 34).
[53] Justice MacKay was urged by the Province not to apply the Metropolitan Stores test in Alberta. He agreed at para. 35, that Metropolitan Stores did not provide the appropriate test for the case before him.
[54] There is, of course, no analogous situation before me in this motion. The Court is not being asked to interfere with any litigants’ right of access in a particular application brought by the parties or the interveners. So it is difficult to see why, on the facts before me, I should proceed to use some kind of “interest of justice” test on that basis. In terms of Justice MacKay’s rationale in Alberta, there is no reason why I should move away from the Metropolitan Stores test in the present case on the grounds that that test is “not so apt in considering a motion to stay or adjourn proceedings which has the effect of postponing access to the relief ordinarily available in this Court,” to use the words of Justice MacKay.
[55] So the only way that Alberta appears to support the Plaintiffs position before me in the present case is the general import of Justice MacKay’s words that the Metropolitan Stores test is “more apt in circumstances where the Court is asked to stay or enjoin the proceedings of another body … .”
[56] As I understand the Plaintiffs’ position before me, they are saying that I should not apply the Metropolitan Stores test because I am not dealing with a situation where the Court is being asked to stay or enjoin the proceedings of another body. The Plaintiffs are simply asking the Court to adjourn its own proceedings and so, the Plaintiffs argue, Alberta supports their view that I should apply the “interest of justice” test referred to by Justice MacKay in Alberta.
[57] When I review the balance of Justice MacKay’s decision, it is clear to me that when, in para. 35, he discussed the aptness of the Metropolitan Stores test for the case before him, he was merely referring to the “irreparable harm” aspect of that test. I say this because, at para. 39 of his reasons, in deciding to grant the stay application in that case, he did not abandon Metropolitan Stores in its entirety:
While it is unusual to stay or adjourn a matter in circumstances which effectively postpones access to relief which a party otherwise has a right to pursue, I am persuaded that this is a case that warrants that unusual step. The application by the Minister to adjourn further consideration of the Province's application pending the decision anticipated from the Supreme Court of Canada, should here be granted, for the following reasons.
1) Insofar as the Metropolitan Stores test may provide standards in this matter, I agree that there is a serious issue to be tried, that issue being the one raised by the Province concerning constitutional validity of the terms of reference of the Panel, but postponing consideration of that issue at this stage is in the public interest. In my view, on the balance of convenience, there is a likelihood of greater inconvenience to the respondents in proceeding to consider the Province's motion while closely related issues are under consideration in the Supreme Court of Canada than there is to the Province from adjourning that consideration. Proceedings at this stage which question the Panel's process, and any order from this Court which might suspend or interrupt the review process of the Panel would be more disruptive and create greater harm to the process of public environmental review than continuing that process pending the decision of the Supreme Court. I take judicial notice that continuing with the review will involve the Province in further work and the costs will be at the public expense of the Province the longer the review continues. Yet the decision of the Supreme Court is likely to be released within a few months. We can all hope that the decision will be rendered, as the hearing was conducted, on an expedited basis, probably well before November 1991 when the majority of matters under consideration by the Panel may be ripe for public discussion and final consideration by the Panel.
2. For the general considerations outlined by the Associate Chief Justice in the transcript of proceedings concerning the applications referring to the Daishowa project, it seems to me just and appropriate to adjourn consideration of the Province's application pending the decision of the Supreme Court. Those considerations are more particularly applicable in this case than in the Daishowa applications for the matters now under consideration in the Supreme Court, although different from the issue here raised, are closely related to that issue and they arise from earlier proceedings concerning the project of interest in this matter, the Oldman River dam project. These considerations include the factors outlined below which tip the balance in favour of the general interests of justice when weighed against the Province's right to proceed.
3) In my view the interests of justice, and the efficacy of the judicial system, are best served by adjourning consideration of the Province's application because:
a) the constitutional validity of the Guidelines Order upon which the processes of the Panel depend, may be expected to be commented upon in the near future by the Supreme Court. Virtually any decision on the merits of the application for final relief now before this Court is likely to be affected by the Supreme Court decision, which can be expected to influence the determination here sought by the Province.
b) Even if the Supreme Court's decision does not deal directly with the issue raised here, I have no doubt that issue may be more readily resolved, and perhaps more definitively argued, in light of the decision of the Supreme Court, now awaited. In these circumstances any motions judge would be reluctant to render a decision on the Province's application in advance of the Supreme Court's ruling, for such a decision might be significantly affected by the ruling and this would create additional problems for the parties. If decision of a motions judge were reserved until after it is clear what effect the Supreme Court's decision may have, then the Province would be in the same position as if an adjournment were granted, no better but clearly no worse. As Associate Chief Justice Jerome indicated in the case of applications relating to the Daishowa project, it would be unreasonable to expect a motions judge to render decision on an issue closely related to questions already under consideration in the Supreme Court.
c) Counsel for the Province frankly acknowledged that, even though the Supreme Court of Canada declined to add a specific constitutional question concerning the terms of reference of the Panel, argument before the Court in February urged that the terms of reference were unconstitutional, that they encompass matters falling within provincial legislative jurisdiction. He expressed the hope that the constitutional validity of the terms of reference of the Panel would be dealt with by the Supreme Court, the very issue raised in this application. In my view, to proceed to consider the application at this stage in these circumstances would be an inappropriate process with closely related questions before courts at different levels in the judicial system. Moreover, it would be presumptuous of this motions judge at this stage to consider and determine an issue which the applicant has urged, and hopes, to have resolved by the Supreme Court.
[58] So Justice MacKay appears to have concluded that, in the unusual situation before him, the Minister’s application to adjourn should be granted because there was a serious issue (although it was the Province’s issue and not the Minister’s) and the balance of convenience favoured the Minister. However, instead of looking at irreparable harm (neither side persuaded him on this point) he felt that the circumstances before him req