Docket: T-764-98
OTTAWA, ONTARIO, Thursday, June 18, 1998
PRESENT: THE HONOURABLE MR. JUSTICE HUGESSEN
B E T W E E N :
PERCY AGAWA, ALAN BOYER, ANDY CLARKE, LIZETTE COLLINS
ADELENE V. CORBIÈRE, LLOYD HILL, RICHELE ROBINSON, IRENE STEVENS, VICTORIA SYRETTE and DONALD WABOOSE
Applicants
- and -
ROLAND HEWSON, CAROL NADJIWON, JAMES ROACH, VERNON SYRETTE, ANN TEGOSH and KEVIN TEGOSH in their representative capacity as councillors of the Batchewana Band and NOEL SYRETTE in his illegal capacity as councillor for the Batchewana Band.
Respondents
ORDER
The motion is dismissed with costs fixed in the amount of $750.00 payable to the applicants by the respondents forthwith and in any event of the cause.
"James K. Hugessen"
judge
Date: aajj8
Docket: T-764-98
B E T W E E N :
PERCY AGAWA, ALAN BOYER, ANDY CLARKE, LIZETTE COLLINS
ADELENE V. CORBIÈRE, LLOYD HILL, RICHELE ROBINSON, IRENE STEVENS, VICTORIA SYRETTE and DONALD WABOOSE
Applicants
- and -
ROLAND HEWSON, CAROL NADJIWON, JAMES ROACH, VERNON SYRETTE, ANN TEGOSH and KEVIN TEGOSH in their representative capacity as councillors of the Batchewana Band and NOEL SYRETTE in his illegal capacity as councillor for the Batchewana Band.
Respondents
REASONS FOR ORDER
HUGESSEN J.
[1] This is a motion in writing pursuant to Rule 369 brought by the respondents seeking a stay of the judicial review proceedings launched by the applicants.
[2] The grounds asserted by the respondent in support of their motion may be compendiously summarized as being that the judicial review proceeding is ill-founded in law, that it improperly seeks to attack more than one decision, that it improperly joins different forms of relief, and that it is frivolous and vexatious. Although the relief sought is stated to be a stay, both in substance and in form (other than the use of the word "stayed" instead of "struck") it is a motion to strike. It is also for several reasons utterly misconceived.
[3] In the first place, and at a purely technical level, the motion is brought by parties who are not before the Court at all. The application for judicial review was served on the respondents on April 27 and 28, 1998. In accordance with Rule 305, the respondents had ten days to produce a notice of appearance. It would appear that they have not done so even to this day.
[4] Second, and more fundamentally, the motion is, as I have said, essentially a motion to strike. Except in the rarest of circumstances, such a motion is not available on an application for judicial review[1]. Those circumstances do not exist in this case.
[5] Next, it is the respondents' assertion that the question of law raised by the application for judicial review has been definitively settled by a judgment of this Court. I am far from persuaded that that is indeed the case but even if it were that is something which should be raised on the merits of the application and not by way of a preliminary motion.
[6] Finally, as regards the respondents' assertion that there has been improper joinder of different forms of relief and that the proceedings attack more than one decision, even assuming that there was any merit to the point (a dubious assumption), it would, at best, in accordance with Rule 56 constitute non-compliance with the Rules and a simple irregularity. Rule 58(2) requires that a motion attacking such an irregularity be brought "as soon as practicable after the moving party obtains knowledge of the irregularity". The burden of proving compliance with that provision clearly falls upon the moving party. Nothing in the materials submitted indicates such compliance.
[7] For the foregoing reasons, the motion will be dismissed with costs fixed in the amount of $750.00 payable to the applicants by the respondents forthwith and in any event of the cause.
"James K. Hugessen"
judge
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-764-98
STYLE OF CAUSE: PERCY AGAWA, ALAN BOYER, ANDY CLARKE, LIZETTE COLLINS ADELENE V. CORBIÈRE, LLOYD HILL, RICHELLE ROBINSON, IRENE STEVENS, VICTORIA SYRETTE AND DONALD WABOOSE
-and
ROLAND HEWSON, CAROL NADJIWON, JAMES ROACH, VERNON SYRETTE, ANN TEGOSH AND KEVIN TEGOSH in their representative capacity as councillors of the Batchewana Band AND NOEL SYRETTE in his illegal capacity as councillor for the Batchewana Band
MOTION IN WRITING WITHOUT THE APPEARANCE OF THE PARTIES
ORDER AND REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN DATED: JUNE 18, 1998
WRITTEN REPRESENTATIONS BY:
Mr. Gary E. Corbière ON BEHALF OF THE APPLICANTS
Mr. William B. Henderson ON BEHALF OF THE RESPONDENTS
SOLICITORS ON THE RECORD:
Mr. Gary E. Corbière
Garden River, Ontario ON BEHALF OF THE APPLICANTS
Mr. William B. Henderson
Toronto, Ontario ON BEHALF OF THE RESPONDENTS