Digests

Ominayak v. Venne

T-875-99

Hargrave P.

24/2/00

11 pp.

Application for judicial review of Chief Electoral Officer's refusal, during election of Chief, Council of Lubicon Lake Indian Nation, to allow anyone associated with action started in attempt to establish new band, to vote unless signed affidavit disassociating themselves from action--(1) Respondent seeking order to strike judicial review application because not containing precise statement of relief sought as required by Federal Court Rule, 1998, r. 301(d)--Court will allow failure to specifically identify remedy sought to be corrected pursuant to r. 59(b)--Never any doubt as to remedy sought; although defect existing since application filed, respondent replying to application without concern for defect until now; no prejudice to respondent, defect apparently clerical oversight--Whether practical consequences flowing from impugned decision matter for consideration by judge hearing application on merits--Focus in judicial review application on moving application to hearing stage as quickly as possible--Should discourage preliminary motions to dismiss judicial review applications--(2) Motion for order striking out as applicants those not filing affidavits in support of application without merit--Person filing application for judicial review not required to file affidavits--Judicial review application can proceed in absence of any affidavit--Focus on validity of decision--Interlocutory motions not encouraged in judicial review proceedings--(3) Motion for order allowing respondent to withdraw affidavit of Dwight Gladue, describing procedures used at election dismissed--Bhatnager v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 3 (T.D.) distinguished--Withdrawal of affidavit herein more analogous to party putting witness on stand, adducing evidence in chief, applying to have evidence struck from record, witness excused, rather than to decision not to call witness--Not only will withdrawal prevent cross-examination, but appears to be part of strategy to limit applicants' access to relevant information--That counsel now deciding not wishing to rely upon affidavit not acceptable reason to grant order permitting withdrawal--(4) Applicants seeking order requiring Chief Electoral Officer to produce band membership list as existed on date of election--While Chief Electoral Officer may not have had physical possession of such list, record disclosing relied on list in deciding eligibility to vote as indicated by questions asked membership clerk--Documents not confidential, privileged; request not vague, general; directly relevant to Chief Electoral Officer's affidavit--Documents should be produced--(5) Mr. Gladue ordered to attend for cross-examination for reasons above--Federal Court Rules, 1998, SOR/98-106, rr. 59(b), 301(d).