Anglehart Sr. v. Canada

Anglehart Sr. v. Canada
Court (s) Database
Federal Court Decisions
Date
2012-10-18
Neutral citation
2012 FC 1205
File numbers
T-1271-07
Decision Content
Federal Court
Cour fédérale
Date: 20121018
Docket: T-1271-07
Citation: 2012 FC 1205
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 18, 2012
PRESENT: The Honourable Mr. Justice Michel Beaudry
BETWEEN:
ROLAND ANGLEHART SR. ET AL.
Plaintiffs/
Respondents
AND
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant/
Moving Party
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is a motion brought by Her Majesty the Queen in right of Canada [the moving party or defendant] pursuant to sections 213 to 219 of the Federal Courts Rules, SOR/98-106 [the Rules], to obtain a summary judgment regarding the plaintiffs’ statement of claim.
[2] In this case, Michel Turbide is representing himself. He made written submissions, but counsel for the plaintiffs informed the Court that he endorses their arguments. After a conference call with the parties, including Mr. Turbide, on September 17, 2012, an amended statement of claim (fifth) dated September 18, 2012, and amended defence (sixth) dated September 20, 2012, were filed in the Court record.
[3] For the reasons that follow, the defendant’s motion will be dismissed.
Factual background
[4] The plaintiffs are (or were during the relevant period) individuals that hold, or companies that directly or indirectly operate under, snow crab fishery licences in the area known as Area 12 in the southern Gulf of St. Lawrence. They are all members of the so-called “traditional” mid-shore fleet of snow crab fishers in Area 12.
[5] The snow crab fishery began in the 1960s. Until 1975, this fishery was open to all and subject to very few constraints. In 1975, the Minister of Fisheries and Oceans [MFO] announced that access to the snow crab fishery would from then on be limited, with the number of “permanent” fishing licences being limited to 130.
[6] For a period of 28 years, from 1975 to 2003, the plaintiffs were, along with the other fishers in the traditional fleet and subject to 30 licences granted to fishers from Prince Edward Island upon the integration of areas 25 and 26 in 1997, the sole licence holders with permanent access to the snow crab fishery in Area 12. This brought the total number of licence holders to 160.
[7] These licences were renewed from year to year under the same issuing numbers. To renew the licence, each holder had to fill out a form entitled [translation] “Fisheries and Oceans Registration and Commercial Fishing Licence Application”. The licence holder had to submit the application before a specific date and pay the associated fees; otherwise, the licence could be cancelled. Each licence was subject to certain conditions, such as the effective date, the opening and closing dates of the season, specific prohibited locations and the number of authorized traps.
[8] In 1989, the crabbing industry was hit by an unprecedented crisis that threatened its future. The MFO turned to the 130 traditional fishery licence holders for solutions. Specific measures were put in place in 1990:
(a) Funding from the MFO for a biomass assessment program, and a management measure prescribing the closure of the fishery when the proportion of white crabs detected in catches rises above 20%;
(b) dockside weighing of crab catches by independent weighmasters and deployment of independent at-sea observers, at the fishers’ expense;
(c) implementation of a fishery regime based on individual quotas, rather than a competitive regime; and
(d) distribution of the total allowable catch [TAC] in accordance with a sharing formula where 80% of the TAC is divided equally among the 130 fishers and 20% is divided in accordance with the historical catches of each fisher.
[9] Under the new individual quota regime, the same portion of the TAC is attached to each holder’s licence year after year, as opposed to an overall TAC under the terms of which fishers competed against each other to make the greatest number of catches possible. The value of the fishing rights associated with the licence is therefore now determined on the basis of the percentage of the TAC attached to each licence.
[10] Given that the number of licences has remained the same since 1975, third persons who want to fish crab have no choice but to acquire a licence from a traditional fisher, hence the creation of a market where licences are bought and sold for substantial amounts of money.
[11] The MFO is aware of these commercial transactions, since he is responsible for the administrative procedures related to any licence transfer. The MFO himself buys back some licences at their fair market value, according to the percentage of the TAC associated with each one.
[12] In 1997, the MFO adopted a “co-management” approach with the plaintiffs. A joint agreement was set up for a five-year term. This agreement provided that the number of permanent fishing licences in Area 12 would remain at 160, that the resource would be shared in times of abundance and that the plaintiffs would make annual financial contributions of $1.7 million for the MFO’s management, protection and research activities.
[13] In 1999, the Supreme Court of Canada rendered its judgment in R v Marshall, [1993] 3 SCR 456 [Marshall]. It confirmed the hunting and fishing rights of certain Aboriginal bands (the Mi’kmaq) under treaties entered into with the British Crown in 1760 and 1761. In terms of fishing, it is important to note that what is contemplated is “a right to trade for necessaries” to ensure a “moderate livelihood” (Marshall, at para 58), and not a right to trade for financial gain. The term “moderate livelihood” was defined later on in R v Gladstone, [1996] 2 SCR 723 at para 165, as being “such basics as food, clothing and housing, supplemented by a few amenities”.
[14] In response to Marshall, the MFO developed a program called the “Marshall Initiative” to integrate Aboriginal bands into the fishing industry. He then announced to the plaintiffs that Aboriginal fishers would be integrated into the snow crab fishery in Area 12 through voluntary licence buybacks. The Treasury Board made a special multi-million dollar fund available to the MFO for this purpose.
[15] The plaintiffs did not challenge the MFO’s decision to integrate Aboriginal people into the snow crab fishery in Area 12, as they believed that under the co-management agreement, the number of licences would not increase, and that everything would be resolved through the voluntary buyback program. The plaintiffs therefore did not expect the percentage of the TAC associated with their respective licences to be reduced.
[16] However, in the years 2000, 2001 and 2002, the MFO did not buy back enough licences to achieve its objectives with regard to Aboriginal fishers. Following negotiations, the plaintiffs agreed that a portion of the TAC allocated to them would be made available to the MFO so that it could be allocated to Aboriginal fishers, provided that the plaintiffs’ TAC would not be reduced below a certain level, and only until the MFO succeeded in buying back enough licences to fulfil the MFO’s commitments under the Marshall Initiative.
[17] The 1997 co-management agreement was extended for another year and finally ended on March 31, 2003.
[18] In late December 2002, negotiations for a new agreement began. During these negotiations, the plaintiffs were notified that the MFO wanted to add new so-called “permanent” fishers to the Area 12 snow crab fishery and divide the TAC among the various groups. The plaintiffs’ opposed this and advocated their point of view at the meetings.
[19] On May 2, 2003, and despite the plaintiffs’ objections, the MFO announced a new three-year management plan. The MFO reduced the TAC to 17,148 metric tonnes, thus ignoring the recommendations of the MFO’s own scientists, who set the TAC at 21,500 metric tonnes. This plan also changed the formula for sharing the TAC among the various groups of fishers and integrated Area 18 fishers into Area 12.
[20] Unhappy and unwilling to accept these conditions, the plaintiffs brought an application for judicial review before the Federal Court. That application never made it to the judgment stage, owing to a discontinuance (see docket T-891-03).
[21] Therefore, pursuant to the announced plan, the MFO increased the number of licences in Area 12 from 160 to almost 400.
[22] In June 2003, the MFO issued a licence to a fisher for certain scientific activities. This licence placed a limit of 50 metric tonnes on the amount of snow crab that the licence holder could catch and sell. From 2004 to 2006, the MFO set aside allocations of 400 to 1,000 metric tonnes for third parties who signed joint project agreements with the MFO. The Federal Court declared these financing practices ultra vires in Larocque v Canada (Minister of Fisheries and Oceans), 2006 FCA 237 [Larocque], and Association des crabiers acadiens v Canada (AG), 2006 FC 1241 [Assoc des crabiers acadiens]. In response to these decisions, the MFO immediately ended these practices, and the money collected was allocated to the programs for which they were originally intended, except the money collected in 2006, which is still being held by the MFO.
[23] On March 30, 2006, the MFO decided to provide $37.4 million in financial assistance to eligible members of the Area 12 traditional fleet. The purpose of this contribution was to mitigate the negative impact of integrating Aboriginal fishers into the crab fishery since 2003. The amount given to each member varied from approximately $200,000 to $350,000.
[24] On July 11, 2007, the plaintiffs filed an action in damages alleging that several acts committed by the MFO in managing the fishery in Area 12 since 2003 had harmed them. In their amended statement of claim (fifth) dated September 18, 2012, at paragraph 77, they state as follows:
[translation]
(a) By unilaterally reducing, without compensation, the portion of the TAC allocated to the plaintiffs to reallocate it to Aboriginal fishers, fishers of other species and Area 18 fishers, effective 2003, the MFO breached the legitimate expectations of the plaintiffs . . . and the 1999 agreement;
(b) In unilaterally reducing the TAC and allocating part of it to other groups, the MFO exercised his management powers in bad faith, and in an abusive and capricious manner, and the MFO knew that this would cause the plaintiffs a considerable loss of income;
(c) In thus reducing the portion of the TAC allocated to the plaintiffs, the MFO in fact used the fish resource to pay for obligations that the Crown believed to owe to other groups of fishers;
(d) This unilateral reduction of the portion of the TAC allocated to the plaintiffs constituted an expropriation without compensation for the share of the TAC to which each of them was entitled;
(e) This unilateral reduction of the portion of the TAC allocated to the plaintiffs constituted a taking without compensation by the MFO from the share of the TAC to which each of the plaintiffs was entitled;
(f) In arbitrarily deciding, in 2003, to reduce the TAC to 17,144 metric tonnes, the MFO exercised his management powers in bad faith, and in an abusive and capricious manner, and the MFO knew that this would cause the plaintiffs a considerable loss of income;
(g) In thus reducing the TAC in 2003 . . . [,] the MFO breached his obligations . . . towards the plaintiffs, thereby causing injury;
(h) . . . ;
(i) In arbitrarily depriving the plaintiffs of their share of the TAC and in using a portion of the TAC to fund his activities and the obligations he believed to owe to other groups of fishers, the MFO acted unlawfully and in bad faith when he knew that his conduct was unlawful and would cause injury to plaintiffs, thereby committing misfeasance in public office;
(j) In taking the portion of the TAC that should have been allocated to the plaintiffs and allocating it to other groups of fishers or using it to fund his activities or the obligations he believed to owe to other groups of fishers, the MFO in fact unjustly enriched himself, and the plaintiffs, who suffered a corresponding deprivation, are entitled to restitution of the value of this enrichment;
[25] On September 23, 2007, the defendant filed a motion to strike on the grounds that the Federal Court does not have jurisdiction to hear the plaintiffs’ action under section 17 of the Federal Courts Act, RSC, 1985, c F-7, and that their statement of claim discloses no reasonable cause of action. That motion was dismissed on November 28, 2008, by Justice Frenette (Anglehardt Sr et al v Canada, 2008 FC 1323). The Federal Court of Appeal upheld that judgment (Anglehardt Sr et al v Canada (AG), 2009 FCA 241). On January 13, 2011, the Supreme Court refused leave to appeal (Canada (AG) v Anglehardt Sr et al [2009] SCCA 414).
[26] In her motion for summary judgment, the defendant is asking the Court to dismiss the plaintiffs’ action on the ground that there are no genuine issues to be tried.
Issues
[27] The Court finds that the issues are the following:
(a) Is the motion for summary judgment an abuse of process on the part of the defendant?
(b) Should the Court strike certain paragraphs of the affidavit of Robert Haché?
(c) Is there a genuine issue requiring a trial?
a. Is the motion for summary judgment an abuse of process on the part of the defendant?
Arguments of the plaintiffs (respondents)
[28] The plaintiffs are of the opinion that this motion is an abuse of process, for several reasons: the defendant is trying to reopen the same debate that was pleaded in the motion to strike; the position pleaded by the defendant in this case is inconsistent with the position adopted in other, previous cases; the defendant is trying to skew the debate by invoking immunity; and the defendant’s motion does not cover all the claims of the plaintiffs.
Reopening the debate
[29] First, the plaintiffs allege that the defendant is essentially trying to repeat in this Court the same debate from the motion to strike in November 2008. Although these are two different motions, the same arguments regarding the MFO’s immunity are repeated, namely, that the plaintiffs have no property rights in the sea resource and that the MFO cannot be held liable for the impugned actions because they involve the development of a basic general policy. The defendant is trying to disturb the findings of the judgment in the motion to strike, particularly since there was no appeal in respect of the issues decided by Justice Frenette.
[30] Such an attempt is an abuse of process because this motion “is . . . in essence an attempt to relitigate a claim which the court has already determined” (Toronto (City) v. C.U.P.E., 2003 SCC 63 at para 37 [Toronto (City)]. This also “violate[s] such principles as judicial economy, consistency, finality and the integrity of the administration of justice” (Toronto (City) at para 37).
[31] Although the causes of action were amended over time, with some of them being abandoned, the defendant is challenging the remaining causes of action in this case in the same way as in the motion to strike.
[32] The prohibition against reopening the debate in such a case is based on solid policy grounds. As the Supreme Court wrote in Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at para 18:
The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. . . . Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.
[33] The plaintiffs cite Workers’ Compensation Board v Figliola, 2011 SCC 52 at para 34, where the Supreme Court refers to paragraphs 38 and 51 of Toronto (City):
Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings.
The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).
MFO’s position inconsistent with other cases
[34] The plaintiffs submit that the abusive nature of the motion for summary judgment is especially flagrant because it is based on an argument that is diametrically opposed to the position that the defendant adopted—successfully—in other disputes. The plaintiffs refer to Haché v Canada, 2010 TCC 10, in the Tax Court of Canada, and later, in the Federal Court of Appeal, Haché v Canada, 2011 FCA 104 [Haché], where the MFO had pleaded that fishing licences were “property”, whereas in this motion he argues that licences only give fishers the right to fish, subject to the conditions set out in these licences.
[35] They add that the MFO should not be allowed to change its position to suit the circumstances and his interests in the dispute (Angelini v Angelini, [2008] OJ 30; New Hampshire v Maine (2001), 5312 US 742 at p 749).
Immunity of the MFO and the “policy/operational” dichotomy
[36] The plaintiffs acknowledge that the courts are extremely reluctant to find a public authority liable in negligence or to engage its tort liability where it makes a policy decision. However, not all causes of action against the Crown (and certainly not all the causes of action alleged by the plaintiffs here) are affected by the dichotomy between a general policy decision and an operational decision.
[37] Neither the cause of action based on the expropriation of the plaintiffs’ rights, not the one based on the MFO’s unjust enrichment is affected by this dichotomy. These causes of action are based on equity and by no means require the Court to rule on the wisdom of the MFO’s decisions, thus avoiding the MFO’s so-called immunity. These causes of action simply require that the Court determine whether the nature of the fishing rights of which the plaintiffs were deprived is such that it warrants compensation.
[38] For the other causes of action, the plaintiffs note that the “policy or operational” dichotomy cannot immunize the Crown against actions in tort unless those actions are “neither irrational nor taken in bad faith” (R v Imperial Tobacco Canada Ltd, 2011 SCC 42 at para 72).
[39] Moreover, the plaintiffs submit that the MFO’s acts constitute misfeasance in public office.
Defendant’s arguments do not cover all the causes of action
[40] Finally, the plaintiffs argue that the motion in no way challenges the legal basis of part of their action, that is, the reduction of the TAC by 4,000 metric tonnes in 2003, an arbitrary decision made in bad faith. This means that there are genuine issues for trial in future.
Arguments of the defendant
Different principles and new circumstances
[41] The defendant is of the view that this motion is not an abuse of process because under the Rules, she is entitled to bring a motion in summary judgment despite the motion to strike, as the two proceedings do not involve the same legal tests or serve the same purposes.
[42] First, in the case of a motion to strike, no evidence is admissible, the facts are deemed to be proven, and the issue is whether there is a reasonable cause of action. By contrast, in a motion for summary judgment, each party must present their best evidence and arguments, as well as proof of the facts they are pleading, especially since the standard to be met is whether there is an issue to be tried. The motion to strike is not final in respect of the merits, whereas a motion for summary judgment is. For this reason, issue estoppel does not come into play (Pleau v Canada, 2008 NSSC 118 at paras 39-40).
[43] Second, the defendant submits that the circumstances have changed since the motion to strike. The plaintiffs admitted that no contract between them and the MFO was signed in 1990, so their action for breach of contract was withdrawn. According to the defendant, they added a new cause of action regarding legitimate expectations, and on November 25, 2011, they filed a lengthy statement of particulars regarding the bad faith argument pleaded in their statement of claim.
Inconsistency of MFO’s position with other cases
[44] Regarding the so-called inconsistency of the MFO’s position with other cases, the defendant notes that the plaintiffs are misinterpreting the Attorney General’s position in Haché. In that case, the issue was whether the proceeds from the disposition of two commercial fishing licences (one of which was for groundfish, while the other was for snow crabs) were “property” within the meaning of subsection 248(1) of the Income Tax Act, RSC 1985, c 1 (5th Supp), and was therefore taxable as a capital gain. That case did not determine any rights, but simply defined “property” for the purpose of applying the Income Tax Act.
[45] In Saulnier v Royal Bank of Canada, 2008 SCC 58 at para 16 [Saulnier], the Supreme Court recognized that “[f]or particular purposes Parliament can and does create its own lexicon”. Indeed,, the Court stated that the interpretation and meaning that it gave to property under the Bankruptcy and Insolvency Act, RSC 1985, c B-3, and the Personal Property Security Act, SNS 1995-96, c 13 (NS), did not expand the scope of licence holders’ interests. The Federal Court of Appeal, too, reiterated this principle in Kimoto et al v Canada (AG), 2011 FCA 291 at paras 12 and 13 [Kimoto], rendered six months after Haché.
Entire action
[46] Finally, the defendant alleges that the purpose of this motion is to obtain a summary judgment regarding the plaintiffs’ entire action. As regards the plaintiffs’ argument that the decision to reduce the TAC by 4,000 metric tonnes in 2003 was arbitrary and made in bad faith, the defendant pleads that private law does not permit an independent action in bad faith. The defendant even adduced factual evidence refuting the plaintiffs’ allegations. The defendant also states that the testimony of Mr. Vienneau in an application for judicial review in another case (T‑895-07) does not represent an admission of the facts in the case at bar, and that his testimony is not binding on the Crown (Merck Frosst Inc v Canada (Minister of Health) [1997] FCJ 1847, aff’d on appeal, [1999] FCJ 1536). All this counters the plaintiffs’ allegations of misfeasance in public office.
Analysis
[47] The Court cannot agree with the plaintiffs’ arguments, for the following reasons.
[48] The defendant is correct with regard to the fundamental differences between a motion for summary judgment and a motion to strike.
[49] As regards a motion to strike, according to subsection 221(1) of the Rules, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on various grounds. The Court may also order the action completely dismissed. I would add that according to subsection 221(2) of the Rules, no evidence shall be heard on a motion for an order under paragraph (1)(a).
[50] The motion to strike filed on September 28, 2007, dealt with the grounds set out in paragraphs 221(1)(a) and (f) of the Rules. The issues in that motion were whether the Federal Court had jurisdiction to hear the case, given that the plaintiffs had not brought an application for judicial review of the MFO’s decisions, and that the plaintiffs’ statement of claim disclosed no reasonable cause of action.
[51] Conversely, the conditions governing a motion for summary judgment are provided in sections 213 to 219 of the Rules. The purpose of these rules is to bar actions or defences that have no chance of making it to the trial stage (TPG Technology Consulting Ltd v Canada, 2011 FC 1054 [Technology] citing Canada (AG) v Lameman, 2008 SCC 14 at para 11 [Lameman]):
The summary judgment rule serves an important purpose in the civil litigation system . . . . Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage.
[52] The Supreme Court warned that “[c]onversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial” (Lameman at para 11). It went on to write that “[f]or this reason, the bar on a motion for summary judgment is high” (Lameman at para 12).
[53] Furthermore, subsection 213(1) of the Rules provides that a defendant may bring a motion for summary judgment on all or some of the issues raised in the pleadings at any time before the time and place for trial have been fixed. There is no particular restriction to this effect. The fact that a motion to strike has been filed does not prevent the defendant from filing a motion for summary judgment, so long as it meets the conditions of subsection 213(1) of the Rules. Ultimately, one does not bar the other.
[54] The Court also finds it helpful to reproduce the fundamental principles governing summary judgments, as stated by Justice Tremblay-Lamer in Granville Shipping Co v Pegasus Lines Ltd SA, [1996] 2 FC 853 at para 8 [Granville], and subsequently repeated countless times thereafter:
1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried (Old Fish market Restaurants v 1000357 Ontario Inc et al, (1994) 58 CPR (3d) 221);
2. there is no determinative test (Feoso Oil Ltd. v. Sarla (The), [1995] 3 F.C. 68 [Feoso]) but Stone J.A. seems to have adopted the reasons of Henry J. in Pizza Pizza Ltd. v. Gillespie, (1990) 75 OR (2d) 225. It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trials;
3. each case should be interpreted in reference to its own contextual framework (Marine Atlantic Inc v Blyth, (1994) 77 FTR 97; Feoso);
4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation (Feoso; Collie Woollen Mills Ltd v Canada, [1996] FCJ 193).
5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court (this is broader than Rule 20 of the Ontario Rules of Civil Procedure; Patrick v Canada, [1994] FCJ 1216);
6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so (Pallmann Maschinenfabrik GmbH Co KG v CAE Machinery Ltd, (1995) 62 CPR (3d) 26 [Pallmann Maschinenfabrik]; Homelife Realty Services Inc v Sears Canada Inc, [1996] FCJ 51 [Sears]);
7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge (Forde v Canada (Minister of National Revenue, Customs and Excise), [1995] FCJ 48; Sears). The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a “hard look” at the merits and decide if there are issues of credibility to be resolved (Shelburne Marine Ltd v Stokes, [1995] FCJ 1547).
[55] Regarding the burden of proof that the parties must meet, the Court adopts the view expressed by Justice Crampton (now Chief Justice) in Trevor Nicholas Construction Co v Canada (Minister of Public Works), 2011 FC 70 at para 44 [Trevor Nicholas]:
. . . (i) to succeed in its motion for summary judgment dismissing the plaintiff’s statement of claim, the defendant has the burden of establishing that all the relevant issues can properly be decided on the evidence before the Court; and (ii) the plaintiff must show that there is a genuine issue for trial. In this regard, the plaintiff is not required to prove all the facts in its case, but also cannot simply rely on bare “allegations or denials of the pleadings.” Each party is required to “put its best foot forward,” to enable the Court to determine whether there is an issue that should go to trial (Lameman, at para 11; F Von Langsdorff Licensing Ltd v SF Concrete Technology Inc (1999), 165 F.T.R. 74, at paras 9-12; AMR Technology, Inc v Novopharm Ltd, 2008 FC 970, at paras 6-8; Succession MacNeil v Canada (Department of Indian and Northern Affairs), 2004 FCA 50 at para 25). However, “the test is not whether the plaintiff cannot succeed at trial; rather, it is whether the court reaches the conclusion that the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial (emphasis added).
[56] The judge must “subject the evidence to a ‘hard look’ in order to determine whether there are factual issues that really do require the kind of assessment and weighing of evidence that should properly be done by the trier of fact” (F Von Langsdorff Licensing Ltd v SF Concrete Technology Inc, (1999) 165 FTR 74 at para 13. See also Lameman at paras 11-12). The motions judge may also “make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts” (Lameman at para 11; Trevor Nicholas, at para 44).
[57] It should be noted that “[i]t remains important for the motions judge to consider a motion for summary judgement with great care”, as “the effect of the granting of summary judgment will be to preclude a party from presenting any evidence at trial . . . [and from having] its ‘day in court’” (Canada (Minister of Citizenship and Immigration) v Laroche, 2008 FC 528 at para 18 citing Apotex Inc v Merck & Co, 248 FTR 82 at para 12, aff’d by 2004 FCA 298; Technology at para 22).
[58] In the case at bar, given that the motion to strike was dismissed by interlocutory judgment, the plaintiffs’ causes of action continue on in the amended statement of claim (Kealey v Canada, [1991] FCJ 909). There is no issue estoppel.
[59] It is true that certain arguments pleaded before Justice Frenette are similar to those raised in the motion for summary judgment. However, these same arguments are much more detailed here, and the record shows that examinations have since taken place.
b. Should the Court strike certain paragraphs of the affidavit of Robert Haché?
Arguments of the defendant (respondent)
[60] The defendant submits that certain paragraphs of the affidavit of Robert Haché should be struck. The defendant argues that allegations based on beliefs or information not within the deponent’s personal knowledge are inadmissible under subsection 81(1) of the Rules and cites Canadian Tire Corp Ltd v PS Partsource Inc 2001 FCA 8 at para 6 [Canadian Tire]. If the deponent has obtained information from others, that information is hearsay (Canadian Tire at para 6).
[61] There are several exceptions to the hearsay rule, for example, if it is demonstrated that the evidence is reliable and that its admission is necessary (Canadian Tire at para 11). In such a case, it is up to the party to submit facts or arguments showing that an exception to the hearsay rule applies (Canadian Tire at para 14). Any affidavit filed in support of a motion or an application for judicial review should be limited to adducing the facts without gloss or explanation (Gravel v Telus Communications Inc, 2010 FC 151 at para 6; Duyvenbode v Canada (Attorney General), 2009 FCA 120 at paras 2-3; Canada (AG) v Quadrini, 2010 FCA 47 at paras 18-19 [Quadrini]). Allegations containing opinion, argument or legal conclusions should be struck (Quadrini at paras 18-19).
[62] The defendant is of the opinion that paragraphs 6, 10, 11, 13, 14 and 36 of Robert Haché’s affidavit are hearsay, given that Mr. Haché has only been a fishery management adviser since 1990. He therefore cannot testify to having personal knowledge of facts and events that occurred before 1990, particularly those he presents at paragraphs 6, 10, 11, 13 and 14.
[63] In addition, the defendant submits that paragraphs 15, 17, 19, 20, 21, 23, 24, 25, 29, 30, 31, 32, 33, 34, 35 and 37 should be struck because they contain opinion, argument or legal conclusions, in both the allegations themselves and Mr. Haché’s comments on the attached exhibits.
[64] The defendant goes on to argue that the documents presented in evidence by the plaintiffs do not have the significance that they ascribe to them. The defendant is of the opinion that the documents attached to Robert Haché’s affidavit must be proven (Inhesion Industrial Co v Anglo Canadian Mercantile Co, [2000] FCJ 491 at para 22 [Inhension Industrial Co]). Simply alleging that the documents come from the MFO and were exchanged in the service of affidavits of documents is insufficient to justify the interpretation that the plaintiffs give to their contents. The defendant relies on section 231 of the Rules, according to which the disclosure of a document or its production does not constitute an admission of its authenticity or admissibility.
[65] Although the defendant does not deny that the documents in question come from the MFO and that she produced her documents in the course of the regular process for disclosing and producing documents in this case, she argues that the exhibits attached to Robert Haché’s affidavit do not have the significance that the plaintiffs ascribe to them.
Analysis
[66] For the reasons that follow, the Court dismisses the defendant’s motion.
[67] Sections 80 to 86 of the Rules deal with the conditions regarding affidavit evidence. More specifically, section 80 deals with the form of affidavits, specifying that they shall be drawn up in the first person (subsection 80(1)) and that when an affidavit refers to an exhibit, the exhibit shall be accurately identified by an endorsement on the exhibit or on a certificate attached to it, signed by the person before whom the affidavit is sworn. In the instant case, there is no problem with the form of the affidavits.
[68] In terms of the contents, in the case of a motion for summary judgment, subsection 81(1) provides that affidavits shall be confined to facts within the deponent’s personal knowledge. This is because the evidence contained in an affidavit must be able to be tested during a cross-examination of the affiant (Bressette v Kettle & Stony Point First Nations Band Council (1997), 137 FTR 18). To determine whether the deponent has personal knowledge of the facts, the Court may analyze the deponent’s function and office to determine whether it is likely that the deponent has personal knowledge of the alleged facts (Smith, Line & French Laboratories Ltd v Novopharm Ltd, (1984) 2 CIPR 205).
[69] Affidavits are therefore meant to adduce facts relevant to the dispute “without gloss or explanation” (Technology at para 26 citing Quadrini at para 18). Accordingly, the Court will strike out the parts that are abusive, argumentative or opinionated and contain legal conclusions (McNabb v Canada Post Corp, 2006 FC 1130; Technology at para 26).
[70] Regarding hearsay, the Supreme Court has recognized that it is now admissible if the criteria of reliability and necessity can be met, in addition to the recognized common law exceptions (Ethier v Canada, [1993] 2 FC 659; Inhesion Industrial).
[71] The plaintiffs correctly point out that the defendant should have filed a motion to strike instead of bringing this motion as part of a response. The normal procedure is to bring a motion to strike such that “the party who produced the affidavit can adequately respond by serving and filing a respondent record” (Burns Lake Native Development Corp v Canada (Commissioner of Competition), 2005 FCA 256 at para 13).
[72] The Court acknowledges that in some cases, not bringing a motion to strike was not found to be fatal, as the Court instead stressed the importance of there being significant harm. In Sawridge Band v Canada, [2000] FCJ 192 (reproduced in Armstrong v Canada (AG), 2005 FC 1013 [Armstrong]), Justice Hugessen explained as follows at paragraphs 5 and 6:
. . . I may say that upon examination of that affidavit, I have no doubt whatever that it is improper. It is replete with conclusory and argumentative allegations, almost all of them being on matters of law as to which the deponent is not apparently qualified . . . .
That said, I have not been persuaded that the affidavit should be struck. In my view, in a sane modern procedure, irregularities in proceedings should not be made the subject of motions and should not require the Court to give orders striking out or correcting such irregularities unless the party attacking the irregularity can show that it suffer some sort of prejudice as a result thereof. . . . Accordingly, absent any showing of prejudice and notwithstanding that almost all of the affidavit is irregular and should not be before the Court, I have no grounds that would justify me in striking it out . . . (emphasis added).
[73] In a similar vein, Justice Near, in Technology at para 29, relied on Armstrong at para 40 to explain as follows:
The caselaw of this Court emphasizes that the discretion to strike out affidavits ought to be exercised sparingly and only where it is in the interests to do so, for example where a party would be materially prejudiced or where not striking would impair the orderly hearing of the application.
[74] Here, the defendant has in no way shown how filing this affidavit would cause her prejudice, or how failing to strike out the impugned paragraphs would impair the orderly hearing of the case. Moreover, Mr. Haché’s affidavit is dated May 23, 2012, while the defendant’s response contesting virtually everything in this affidavit was filed on August 17, 2012. The motion for summary judgment was heard in Fredericton on September 24, 25 and 26, 2012. The defendant could have filed a motion to strike, thereby giving the plaintiffs an opportunity to respond.
[75] The Court adopts the conclusions of Justice Near in Technology at para 30 “that at this late stage, and on a motion for summary judgement it would be inappropriate to strike [certain parts of the plaintiffs’ affidavits]”.
[76] Finally, it is helpful to cite Justice Hugessen in Sawridge: “[T]he Crown need not worry that the Court is so gullible as to uncritically accept the evidence contained in the affidavits”. It will therefore be up to the judge who hears the case on the merits to assess the probative value of the evidence presented.
c. Is there a genuine issue requiring a trial?
Preliminary remarks
[77] The plaintiffs are seeking compensation for various acts committed by the MFO since 2003. More specifically, they focus on three actions: the approximately 35% reduction in their right to fish (May 2, 2003); the reduction of the TAC (May 2, 2003) to a TAC that was 4,000 metric tonnes less than what was proposed by scientists to integrate Aboriginal fishers and help fishers from Zone 18; and the unlawful use of a portion of the resource granted to other fishers to fund the MFO’s research.
[78] In terms of relief, they are claiming the following: compensation for profits lost during the fishing seasons from 2003 to 2008, compensation for the diminished value of their fishing businesses, damages for loss of future income, restitution of the value of the benefits that the MFO appropriated at their expense, compensation for their rights or interests that were expropriated, general and punitive damages, and interest. The total claimed is nearly $250 million (se