Montréal, Quebec, August 31, 2006
PRESENT: Richard Morneau, Esq., Prothonotary
BETWEEN:
and
SHELLEY ROBERTSON
WILLY ROBERTSON
CARLA ROBERTSON
TRACEY JACOBS
and
MOHAWK COUNCIL OF KAHNAWÁ:KE
and
MOHAWK BAND OF KAHNAWÁ:KE
Respondents
REASONS FOR ORDER AND ORDER
[1] CONSIDERING the motion by the Respondents the Mohawk Council of Kahnawá:ke (MCK) and the Mohawk Band of Kahnawá:ke under rule 416(1)(f) of the Federal Courts Rules (the Rules) for an order that the Applicant provide security for the Respondents’ costs in the judicial review application commenced by the Applicant;
[2] CONSIDERING that there is no doubt that the certificate of taxation in the amount of $154,004.03 that the Respondent MCK possesses against the Applicant further to the dismissal in 2003 in the Quebec Superior Court of an action launched by the Applicant against, inter alia, the Respondent MCK, and the taxation therein of the latter’s costs, brings the application of rule 416(1)(f) in favour of MCK;
[3] CONSIDERING that the impecuniosity of the Applicant was challenged by the Respondents in their motion record and consequently, in accordance with the teachings found in Fortyn v. Canada, [2000] 4 F.C.184, at 194, the Applicant in his evidence in response had the burden on a balance of probabilities to establish his impecuniosity within the meaning of rule 417;
[4] CONSIDERING that although the Applicant was not cross-examined on his affidavit in which at different occasions he alleges that a criminal accusation launched against him by the Respondents has destroyed his used car repair business, said allegation remains largely a bald allegation not supported by any financial documentation;
[5] CONSIDERING, therefore, that the Court is of the view when considering the Respondents’ evidence to the contrary that the Applicant has not met his burden of proof and is not impecunious, that putting a reasonable amount of security would not prevent the Applicant from pursuing his application, and that it is in the interest of justice to so order in the present circumstances;
[6] CONSIDERING, however, that at this stage of the proceedings costs must be evaluated in a conservative manner and considering that they could be increased upon demand later on in the process if circumstances warrant (Cranston Print Works Co. v. Les Industries Shasper Ltée, Justice Denault, April 26, 1995, Cout File No. T-2986-94);
[7] CONSIDERING, in addition, that pursuant to rule 416(2) it is advisable to consider the costs of the Respondent MCK up to but not including the pre-hearing stage;
[8] CONSIDERING in view of these principles that the Respondents’ projected bill of costs is not realistic;
ORDER
GIVEN THE ABOVE REASONS, IT IS HEREBY ORDERED THAT:
(a) The Applicant pay into Court $5,000 as security for the costs of the Respondent MCK in this judicial review application.
(b) Such security for costs be given by the Applicant within twenty (20) days from the date of this order.
(c) In accordance with rule 416(3) and subject to paragraph (e) hereunder when and if applicable, until such time as the security referred to in point (a) has been provided, the Applicant may not take any further step in this application other than appeal from this order.
(d) Costs on this motion are in the cause.
(e) As for the modification of the existing schedule found in the order dated June 29, 2006, it is sufficient to provide that the deadlines in paragraphs 3 to 6 are extended respectively as follows:
3. That the Respondent Mohawk Council of Kahnawá:ke is allowed to file a Motion to Object to the Jurisdiction of this Court, a Motion to Strike and/or a Motion for Summary Judgment on or before September 15, 2006;
4. That the Applicant is allowed to file a Motion to Amend his Notice of Application on or before September 29, 2006;
5. That if any or all of Respondent’s motions are dismissed, Respondent Mohawk Council of Kahnawá:ke is allowed to file a Motion for Joinder of the Attorney General of Canada on or before October 31, 2006;
6. That all the parties shall file supporting Affidavits and documentary exhibits on or before November 30, 2006.
Otherwise, the June 29, 2006 schedule remains as is.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1913-05
STYLE OF CAUSE: CHARLES ROBERTSON
and
SHELLEY ROBERTSON
WILLY ROBERTSON
CARLA ROBERTSON
TRACEY JACOBS
MOHAWK BAND OF KAHNAWÁ:KE
MOHAWK COUNCIL OF KAHNAWÁ:KE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 28, 2006
APPEARANCES:
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John Glazer
|
|
|
Moïra Létourneau
|
FOR THE RESPONDENTS MOHAWK BAND OF KAHNAWÁ:KE and MOHAWK COUNCIL OF KAHNAWÁ:KE |
SOLICITORS OF RECORD:
|
Leithman & Glazer Montréal, Quebec
|
|
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Mohawk Council of Kahnawá:ke Legal Services Mohawk Territory of Kahnawá:ke |
FOR THE RESPONDENTS MOHAWK BAND OF KAHNAWÁ:KE and MOHAWK COUNCIL OF KAHNAWÁ:KE |