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:

           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”

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:

SOLICITORS OF RECORD: