Arial v. Canada (Attorney General)

Arial v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2012-03-23
Neutral citation
2012 FC 353
File numbers
T-250-11
Decision Content
Federal Court
Cour fédérale
Date: 20120323
Docket: T-250-11
Citation: 2012 FC 353
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, March 23, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MAURICE ARIAL (veteran – deceased)
MADELEINE ARIAL (surviving spouse)
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
I. INTRODUCTION
[1] First, the Court must point out that the present motion is a further stage in a long legal saga between the respondent, Madeleine Arial, the widow of veteran Maurice Arial, and Veterans Affairs Canada (VAC). Sonia Arial, the couple’s daughter, who is not a lawyer, has represented her parents since 1999.
[2] It is also important to understand that the entire judicial system is bound by the legislative scheme.
II. LEGAL PROCEEDINGS
[3] Sonia Arial is filing a motion after judgment of the Federal Court pursuant to Rules 359 and 369 of the Federal Courts Rules (Rules) seeking the Court’s directions within the meaning of Rule 54 of the Rules.
III. FACTS
[4] The Court refers to the facts in Arial v Canada (Attorney General), 2011 FC 848 (Arial), rendered on July 8, 2011, in which the case was referred back to a differently constituted review panel for reconsideration.
[5] On November 1, 2011, a new hearing was held before the Veterans Review and Appeals Board (Board).
[6] The applicant received the Board’s decision on January 4, 2012.
IV. ANALYSIS
[7] Rule 54 of the Rules cited by Ms. Arial does not grant this Court jurisdiction to make a final determination on the matter. In fact, Rule 54 does not address the issues raised here, but is rather, simply a means of obtaining directions concerning the procedure to be followed (Nash v Sanjel Cementers Ltd., [1999] FCJ No 1580).
[8] Given that a new hearing was held following the judgment rendered by this same Court on July 8, 2011, it should be noted that the appropriate remedy, if any, would be judicial review and not a motion after judgment.
[9] The Board’s decision presents fundamentally different reasons than those on which this Court based the exercise of its power of judicial review on July 8, 2011.
[10] Consequently, the Court dismissed the present motion after judgment.
[11] Given the exceptional circumstances of this case, and keeping in mind, as was explained in Arial, that the respondent in this case was not acting with any intention of abusing the justice system, the Court will make no order as to costs.
ORDER
THE COURT ORDERS the dismissal of the motion, without costs.
“Michel M.J. Shore”
Judge
Certified true translation
Sebastian Desbarats, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-250-11
STYLE OF CAUSE: MAURICE ARIAL (veteran – deceased)
MADELEINE ARIAL (surviving spouse)
and
THE ATTORNEY GENERAL OF CANADA
MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO, PURSUANT TO RULE 369
REASONS FOR ORDER
AND ORDER: Shore J.
DATED: March 23, 2012
WRITTEN REPRESENTATIONS BY:
Sonia Arial
FOR THE APPLICANTS
Marieke Bouchard
FOR THE RESPONDENT
SOLICITORS OF RECORD:
SONIA ARIAL
Québec, Quebec
FOR THE APPLICANTS
MYLES J. KIRVAN
Deputy Attorney General of Canada
Ottawa, Ontario
FOR THE RESPONDENT