Docket: T-1301-98
BETWEEN:
FRANKLIN WILLIAM MILLER
AND VIKI CARROLL-MILLER
Applicants
- and -
SIX NATIONS COUNCIL OF THE
SIX NATIONS OF THE GRAND RIVER
BAND OF INDIANS
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] The Applicant, Franklin William Miller, made a motion to join his minor child, Matthew ("Watio") Tehawerenhton Miller by his litigation guardian Franklin ("Frank") William Miller, as an applicant in the within proceedings for judicial review. This motion arises from an application for judicial review concerning the decision made by the Six Nation Council on May 25, 1998 directing Mrs. Viki Carroll-Miller to remove herself from the Six Nations of the Grand River Territory. The decision was communicated to Mrs. Carroll-Miller by letter dated May 26, 1998.
[2] In support of this Notice of Motion, the Applicant, Franklin William Miller relied upon paragraphs 1 to 21 of his Affidavit sworn January 28, 2000 and the exhibits attached thereto. This affidavit provides the background information about the family unit consisting of Mr. and Mrs. Miller and their custodial son, Matthew ("Watio") Tehawerenhton Miller, including facts about the physical and mental history of this minor child. The affidavit also provides details as to the perceived effect of the eviction notice, which is the subject of a judicial review application, upon the physical, mental and social well being of this minor child.
[3] The Respondent contested the Notice of Motion to allow the joinder of Watio Miller by his litigation guardian on two main grounds. First, counsel for the Respondent argued that the Applicant was seeking to have a party added after the expiration of the thirty day period prescribed by section 18.1(2) of the Federal Court Act which states:
| 18.1(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. |
| 18.1(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l"office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu"un juge de la Section de première instance peut, avant ou après l"expiration de ces trente jours, fixer ou accorder. |
[4] The second argument advanced by counsel for the Respondent in opposition to this Notice of Motion was that the presence of the infant child as a formal party is not required for an adjudication of the application for judicial review and in any event, the circumstances of the minor child are already before the Court in the materials filed in support of the application for judicial review.
[5] Counsel for the Respondent submitted that the Applicants had not applied for leave to extend the limitation period and furthermore, had not submitted cogent evidence to explain the delay in seeking an extension to the time limited for commencement of the judicial review application.
[6] For her part, counsel for the Applicant argued that a limitation period may be extended where special circumstances exist and relied upon the decision in Basarsky v. Quilan, [1972] 1 W.W.R. 303, 24 D.L.R. (3d) 720 (S.C.C.). She submitted that special circumstances do exist to justify the addition of the infant child as a party in the judicial review application and argued that the addition of the child at this stage would not cause any prejudice to the Respondent.
[7] There are two questions to be determined in responding to the Applicant"s Notice of Motion. The first is whether the infant child should be permitted to bring his own application for judicial review after the time period has expired, having regard to the fact that no extension of time for commencement of an application for judicial review is sought in the Notice of Motion. The second question is whether this infant child should be a party to the application for judicial review which was commenced in the names of his parents.
[8] With respect to counsel for both the Applicant and the Respondent, I think that the arguments with respect to the expiration of the thirty day time period for the commencement of judicial review are misplaced. The judicial review application in this matter was properly commenced within the thirty day limitation period. The present motion derived simply from the question of whether a party should be added to existing proceedings.
[9] In my opinion, the present motion is governed by Rule 104(1)(b) of the Federal Court Rules 1998 which provides as follows:
| 104.(1) At any time, the Court may...(b) order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined be added as a party, but no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Court may order. |
| 104.(1)La Cour peut, à tout moment, ordonner:...(b) que soit constituée comme partie à l"instance toute personne qui aurait dû l"être ou don"t la présence devant la Cour est nécessaire pour assurer une instruction complète et le règlement des questions en litige dans l"instance; toutefois, nul ne peut être constitué condemandeur sans son consentement, lequel est notifié par écrit ou de telle autre manière que la Cour ordonne |
[10] This rule raises the question whether the minor child should be added as a party to "ensure that all matters in dispute in the proceeding may be effectively and completely determined".
[11] In deciding this question, I am mindful of the circumstances and interests of the infant child. By law, an infant child is a person under disability and the rules of the Federal Court specifically recognize this status; see Rules 115 and 121.
[12] It is my opinion that the child may have an interest which is not fully protected by the role of his father as the remaining applicant in the application for judicial review. It must not be forgotten that the main proceeding is a judicial review of a decision by which the Council purported to evict the mother of this child from living on the Six Nations Grand River Territory. In my view, it cannot be said that the child has no interest in that decision.
[13] In addition, I am also cognizant of the fact that this minor child suffers from a significant health problem, that is fetal alcohol syndrome. There is no prejudice to the Respondent resulting in the addition of this child as an Applicant, and in my opinion, the child should be joined as a party in order that all matters and disputes are effectually and completely determined, as mandated by Rule 104(1)(b) of the Federal Court Rules, 1998.
[14] Leave is granted for the joinder of Matthew ("Watio") Tehawerenhton Miller as an Applicant represented by his litigation guardian, Franklin William Miller.
[15] I set costs in the amount of $500.00 payable forthwith by the Respondent to the Applicants.
| "E. Heneghan" |
| Judge |
Ottawa, Ontario
April 12, 2000