Federal Court of Appeal Decisions

Date: 20000121

Docket: A-699-99

CORAM:      ISAAC J.A.

BETWEEN:

     ATOMIC ENERGY OF CANADA LIMITED

     Appellant

     - and -

     SIERRA CLUB OF CANADA

     Respondent

     - and -

     THE MINISTER OF FINANCE OF CANADA

     THE MINISTER OF FOREIGN AFFAIRS OF CANADA

     THE MINISTER OF INTERNATIONAL TRADE OF CANADA

     - and -

     THE ATTORNEY GENERAL OF CANADA

     Respondents

     REASONS FOR ORDER

ISAAC J.A.

[1]      Atomic Energy of Canada Limited ("AECL") brought this motion for the following relief:

1.      an Order in the form attached as Schedule "A" hereto that certain materials in the Appeal Book be treated as confidential pursuant to Rule 151 and Rule 152 of the Federal Court Rules, 1998;

2.      an Order expediting the hearing of the appeal and cross-appeal in this matter to the earliest date available to this Honourable Court on or after February 7, 2000, excluding the dates from February 14, 2000 through March 10, 2000, inclusive, and the dates from March 18 to March 24, 2000, inclusive.

3.      an Order setting a schedule for the expediting of the appeal and cross-appeal as follows:

(a) AECL shall file their Memorandum of Fact and Law with respect to their appeal by January 14, 2000;

(b) the Respondents shall file their respective Memoranda of Fact and Law with respect to AECL's appeal by January 28, 2000;

(c) the Respondent Sierra Club of Canada ("Sierra Club") shall file their Memorandum of Fact and Law with respect to their cross-appeal by January 14, 2000; and

(d) AECL and the Respondents, other than Sierra Club, shall file their respective Memoranda of Fact and Law with respect to Sierra Club's cross-appeal by January 28, 2000.

4.      an order pursuant to rule 343(3) of the Federal Court Rules, 1998 determining the content of the Appeal Book for the appeal.

5.      such further or other relief as to this Honourable Court may seem just.

[2]      The motion was heard by conference calls on 23 December 1999 and 13 January 2000 on written submissions supplemented by oral arguments. At the conclusion of oral argument on 13 January, I advised counsel that I would reserve my decision and give my decision early in the week of 17 January, because I wished to give brief reasons for my decision. These are those reasons.

[3]      As is clear from the facts already recited, the motion is brought in the context of an appeal and cross-appeal from a procedural order made by a Motions Judge in the Trial Division on 26 October 1999, in the course of case management proceedings.

[4]      The order in appeal reads, in relevant parts:

It is hereby ordered that:

1) AECL has leave to serve and file the Supplementary Affidavit of Simon Pang and the Confidential documents referred to therein, either in their original form or edited to remove information which AECL deems to be confidential.

2) If AECL chooses not to file the Confidential Documents, it has leave to file additional material dealing with the nature and scope of the nuclear regulatory process in the People's Republic of China, both in general terms and as it applies to the project which is the subject of these proceedings, providing such material is served and filed within 60 days of the date of this order. Any objection to the content or relevance of this additional material shall be made to the judge hearing the application.

3) AECL's application for a confidentiality order pursuant to Rule 151 is dismissed.

4) There will be a telephone case management conference following the conclusion of the 60 day period referred to in paragraph 2.

[5]      This order was made in proceedings commenced by AECL by motion for leave to file an additional affidavit and exhibits and a confidentiality order.

[6]      For the reasons that he gave the learned Motions Judge granted leave to file supplementary affidavit; but he dismissed the motion for the confidentiality order.

[7]      AECL has appealed this order dismissing its motion for a confidentiality order. It now seeks an order setting aside paragraphs 1, 2, and 3, except that portion of paragraph 1 which grants leave to file the supplementary affidavits and exhibits. For its part, the respondent Sierra Club of Canada ("Sierra Club") has cross-appealed and asks for a variation of the order in appeal to set aside paragraphs 1, 2, and 4 thereof.

[8]      Counsel for the parties have agreed on all matters except those respecting the contents of the appeal book. And in respect of those, the issue turns on whether or not the affidavits of:

     - Elizabeth May, sworn 20 January 1997;

     - Lin Feng sworn 26 January 1999; and,

     - Reid Morden sworn 28 January 1999

should be included in the appeal book.

[9]      Counsel for AECL contends that they should not because they did not form part of the record before the Motions Judge who made the order in appeal and furthermore, they were not referred to in argument before him. With respect to the affidavits of Elizabeth May and Lin Feng, he is supported by counsel for the respondent Ministers and the Attorney General of Canada. As I read his memorandum of fact and law, counsel for the respondent Ministers and the Attorney General of Canada, took no position with respect to the affidavit of Reid Morden. They invoke Rules 343, 344, 364, and 365 of the Federal Court Rules, 1998 and related jurisprudence.

[10]      For his part, counsel for the respondent Sierra Club contended that they should be included because they are necessary to dispose of the issues in the appeal and cross-appeal. He contends further that the Case Management Judge knew of the existence of these affidavits and his reasons for the order in appeal were informed by his knowledge of their contents, even though they do not form part of the record of the motion which gave rise to his making the order in appeal.

[11]      For the reasons that follow, I am of the view that the three affidavits should be included in the contents of the appeal book in this appeal and the cross-appeal.

[12]      Firstly, I start with the proposition, codified in Rule 3 of the Federal Court Rules, 1998, that the rules are to be interpreted and applied so as to secure the just, most expeditious, and least expensive determination of every proceeding on its merits.

[13]      Secondly, although not unmindful of the provision of the Rules and jurisprudence which counsel for AECL and counsel for the respondent Ministers and the Attorney General of Canada have invoked, I must acknowledge the undisputed fact that the order in appeal was indeed made by the Case Management Judge who had certainly had cited to him the affidavits of Elizabeth May and of Reid Morden or portions of them. He was certainly aware of the contents of those affidavits and, on any realistic viewing of the adjudicative process, they formed part of the background or context against which he made his order and gave his reasons, both of which are now under attack.

[14]      Thirdly, in my opinion, these affidavits are necessary for the proper disposition of the issues in this appeal, because they provide the background against or the context in which those issues are to be decided.

[15]      Let me illustrate. These underlying proceedings were commenced on 20 January 1997 by originating notice of motion and were supported by the affidavit of Elizabeth May.

[16]      According to the abstract of entries in the Registry's file in these proceedings, the affidavit of Elizabeth May has been the subject of at least nine interlocutory motions of which three were before the Case Management Judge. In light of that circumstance, it seems idle to argue that the May affidavit did not form part of the record before the Motions Judge.

[17]      The abstract shows that AECL filed the affidavit of Reid Morden on 29 January 1999. It is common ground that AECL did read portions of the affidavit of Reid Morden in argument of its motion before the Case Management Judge. In these circumstances, and where AECL seeks to include those portions of the affidavit of Reid Morden in the appeal book, it seems to me right that the panel hearing the appeal should have before them the whole of Reid Morden's affidavit in order to appreciate the significance of those portions that AECL wishes to include.

[18]      Finally, in paragraph 21-23 of his written representations on the motion before me, counsel for Sierra Club states that the affidavit of Lin Feng as referred to in argument before the Case Management Judge although it was not included in the motion record filed before him. This assertion was not contradicted by counsel for AECL or for the respondent Ministers and the Attorney General of Canada. I therefore accept the assertions of counsel for the Sierra Club on this point.

[19]      It seems to me, then, that the just resolution of the appeal and the cross appeal requires that these affidavits be included in the appeal book, and I will so order.

[20]      As I indicated to counsel in argument, the draft consent order they filed was deficient in several respects. First, it provided that the hearing should be held in camera. From the observations I made to counsel in argument, it is clear that I was not persuaded that such an order ought to be made and I regretfully decline the invitation to make it. Secondly, I am not persuaded that the whole of the memoranda of fact and law should be sealed and marked confidential; but, instead only those portions that were necessarily confidential. Thirdly, the draft order made no provision for access by the Court to the sealed memoranda or other confidential materials. Accordingly, I will refuse the relief requested in paragraph 1 of the order and, in its place will grant an order that will accommodate the interests of all parties and the needs of the Court.

[21]      The relief claimed in paragraphs 2 and 3 is granted with the change in dates necessitated by the change in the date of my order and by my discussion with counsel.

[22]      I do not wish to leave these reasons without remarking on the fact that a proceeding commenced by judicial review on 20 January 1997 has not yet been resolved on 20 January 2000. And, according to the abstract of the proceedings, it will probably not be resolved until the period commencing on 30 October and ending on 8 November 2000, these being the dates fixed provisionally for the hearing of the application.

[23]      It is my respectful view that such a long delay is inconsistent with the injunction in subsection 18.4(1) of the Federal Court Act which reads:

18.4(1) Subject to subsection (2), an application or reference to the Trial Division under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.

[Emphasis added.]

[24]      This subsection imposes obligations upon counsel for the parties and upon the Court. It imposes upon counsel the obligation to move litigation along at a pace that is consistent with the true interests of their respective clients. The Court's obligation, on the other hand, is to ensure reasonable compliance by counsel with the injunction.

[25]      Whatever the reasons for the long delay here, it cannot reasonably be said that either the Court or counsel has heeded the injunction of the subsection. It seems to me exceedingly difficult to argue that a proceeding in which there have been more than 12 interlocutory motions before Prothonotaries and Motions Judges, and an appeal, is a proceeding that is being dealt with in a summary way or, that an interval of almost four years between commencement and final disposition at first instance can be characterized as one that is being dealt with "without delay".

[26]      Costs of the motion will be in the cause.

     "Julius A. Isaac"

     Isaac J.A.