Judgments

[1994] 2 F.C. 464

A-616-93

Attorney General of Canada and National Parole Board (Appellants) (Respondents)

v.

James Ralph Macinnis (Respondent) (Applicant)

Indexed as: Macinnis v. Canada (Attorney General) (C.A.)

Court of Appeal, Stone, Décary and Robertson JJ.A.—Ottawa, February 3, 1994.

Judicial review — Appeal from direction application for judicial review proceed as action pursuant to Federal Court Act, s. 18.4(2) as involving complex legal issues, detailed factual information — Appeal allowed — S. 18.4(1), requiring application under s. 18.1 be heard, determined in summary way, general rule to be departed from only in “clearest of circumstances” — Recourse to s. 18.4(2) exception, permitting application for judicial review to proceed as action, only where affidavit evidence inadequate i.e. where viva voce evidence needed to assess demeanour, credibility of witnesses or to allow Court full appreciation of whole of evidence — Adequacy of affidavit evidence determined in light of Court’s role in judicial review proceedings — Charter issues treated same as other issues — Complexity of factual, legal issues, speculation trial evidence superior, time required to submit case, subjective desire for viva voce evidence, having day in court, irrelevant — Main consideration whether factual basis for deciding issues properly generated by affidavit evidence.

Practice — Pleadings — Motion to strike — Convict challenging legality of proceedings adopted at 1991 National Parole Board hearing and proposed for use at 1993 hearing — Under R. 1602(4) notice of originating motion can concern single decision only — Application concerning 1991 decision out-of-time — No need to challenge 1991 decision as whether procedure illegal in 1991 or when 1993 hearing resuming, proper procedures will be followed.

This was an appeal from the Motion Judge’s direction that an application for judicial review filed under Federal Court Act, section 18.1 be treated and proceeded with as an action pursuant to subsection 18.4(2). The respondent, an inmate at Kingston Penitentiary, brought an application for a series of declarations regarding the legality of the procedure followed by the National Parole Board at his 1991 hearing and which the Board proposed to follow at his 1993 hearing. The grounds of attack were excess of jurisdiction and violation of the respondent’s Charter, sections 7, 9 and 15 rights. After filing his application, the respondent applied for an order that his application be treated and proceeded with as an action. Federal Court Act, subsection 18.4(1) requires that an application under any of sections 18.1 to 18.3 be heard and determined in a summary way, but subsection 18.4(2) permits an application for judicial review to be treated and proceeded with as an action if the Trial Division considers it appropriate. The Motions Judge granted the motion because the case involved complex legal issues and detailed factual information.

Held, the appeal should be allowed.

Section 18.4 is the general rule and subsection 18.4(2) is the exception. Parliament intended that applications for judicial review be determined with as much speed and as little encumbrances and delays of the kind associated with trials as possible. Recourse should be had to subsection 18.4(2) only where facts cannot be satisfactorily established or weighed through affidavit evidence. Use of that subsection has been limited to the “clearest of circumstances” i.e. where viva voce evidence is required, either to assess the demeanour and credibility of witnesses, or to allow the Court to have a full grasp of the whole of the evidence when a case cries out for the full panoply of a trial. The adequacy of affidavit evidence must be considered in light of the true nature of the questions to be answered in judicial review proceedings (i.e. to review the decision made by the decision-maker). The complexity of the factual issues alone is irrelevant if the conflicting expert affidavits on which they are based are related to the issues before the tribunal rather than issues before the Court. Speculation that hidden evidence will come to light is not a basis for ordering a trial. The key test is whether the judge can see that affidavit evidence will be inadequate, not that trial evidence might be superior.

A trial is not necessary to properly decide Charter cases. Charter issues do not require a better factual basis than other issues. A judge can only conclude that Charter issues require a trial where there is some reason to believe in the inadequacy of affidavits to establish a factual basis. To proceed by motion upon affidavit evidence is not proceeding in a “factual vacuum”. There are innumerable cases where Charter issues have been decided on application or other summary process.

Neither the complexity of legal issues nor time alone is a relevant consideration for transforming an application into an action. The volume of the affidavit evidence to be filed, or the time needed to submit a case is not related to the way the proceedings are held. A party’s subjective reason for desiring viva voce evidence is also irrelevant. Nor is a party’s desire to have his day in court a good reason for allowing a trial.

The main consideration is whether the factual basis for deciding the issues could be properly generated by affidavit evidence. A summary hearing would not prevent the Court from dealing adequately with this application for judicial review. The matters complained of related to the procedure followed by the Board, a matter well within the Court’s expertise. The issues were not so complex as to require the full panoply of a trial.

The paragraphs of the originating notice of motion relating to the 1991 hearing should be struck out. Under Rule 1602(4) the respondent’s notice of originating motion could be in respect of a single decision only and the application concerning the 1991 decision was outside the 30-day time limit set out in subsection 18.1(2) which only a Trial Division Judge may extend. Also, there was no need to challenge the 1991 decision. The Board was purporting to adopt the same procedures in 1993 as it had in 1991. The issue was whether the Board may in 1993 use the same procedures it used in 1991. Whether the procedures are found to have been illegal in 1991 or to be illegal in 1993 when the hearing resumes, the respondent will get a hearing in which the proper procedures are adopted.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 9, 15(1).

Criminal Code, R.S.C., 1985, c. C-46, s. 761.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1 (as enacted by S.C. 1990, c. 8, s. 5), 18.4 (as enacted idem).

Federal Court Rules, C.R.C., c. 663, RR. 1602(4) (as enacted by SOR/92-43, s. 19), 1603(3) (as enacted idem), 1606(1) (as enacted idem), 1614(1) (as enacted idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

Potato Board (P.E.I.) v. Canada (Minister of Agriculture) (1992), 56 F.T.R. 150 (F.C.T.D.); Derrickson et al. v. Canada (Minister of Indian Affairs and Northern Development) (1993), 63 F.T.R. 292 (F.C.T.D.); Vancouver Island Peace Society v. Canada, [1992] 3 F.C. 42 (T.D.).

CONSIDERED:

Bayer AG and Miles Canada Inc. v. Minister of National Health and Welfare and Apotex Inc, A-389-93, Mahoney J.A., judgment dated 25/10/93, F.C.A., not yet reported; Bayer AG et al. v. Canada (Minister of National Health and Welfare) et al. (1993), 66 F.T.R. 137 (F.C.T.D.).

REFERRED TO:

Canadian Pacific Ltd. v. Matsqui Indian Band, [1993] 2 F.C. 641; (1993), 153 N.R. 307 (C.A.); Edwards v. Canada (Minister of Agriculture) (1992), 53 F.T.R. 265 (F.C.T.D.); Oduro v. Canada (Minister of Employment and Immigration), IMM-903-93, McKeown J., order dated 9/12/93, F.C.T.D., not yet reported.

APPEAL from Trial Judge’s direction (Macinnis v. Canada (Attorney General), T-1931-93, Cullen J., order dated 18/10/93, F.C.T.D., not yet reported) that the application for judicial review be proceeded with and treated as an action. Appeal allowed.

COUNSEL:

John B. Edmond for appellants.

Ronald R. Price, Q.C. for respondent.

SOLICITORS:

Deputy Attorney General of Canada for appellants.

Ronald R. Price, Q.C., Kingston, Ontario, for respondent.

The following are the reasons for judgment of the Court delivered orally in English by

Décary J.A.: This appeal gives this Court its first opportunity to look into the criteria that are to be used by a motions judge when exercising his or her discretion, pursuant to subsection 18.4(2) of the Federal Court Act [R.S.C., 1985, c. F-7] (the Act), in directing that an application for judicial review be treated and proceeded with as an action.[1]

The respondent, an inmate of the Kingston Penitentiary, brought an application before the Trial Division of this Court for a series of declarations regarding two hearings of the National Parole Board (the Board) held on November 20, 1991 (the 1991 hearing) and July 8, 1993 (the 1993 hearing). Twelve of these declarations relate to the 1991 hearing, which ended up in parole being denied to the respondent, and the other three relate to the 1993 hearing, which was adjourned sine die at the request of the respondent following procedural rulings by the Board denying requests made on his behalf.

As a person sentenced to an indeterminate period of detention the respondent was entitled, pursuant to section 761 of the Criminal Code [R.S.C., 1985, c. C-46], to have his “condition, history and circumstances” reviewed biennially by the Board “for the purpose of determining whether he should be granted parole … and, if so, on what conditions.” The respondent challenges the legality of the procedure followed by the Board at the 1991 hearing and renews his attack on that very same procedure which the Board was planning to follow at its 1993 hearing.

The grounds of attack are in two groups. The first group relates to an alleged excess of jurisdiction resulting from the Board’s failure to weigh the varying professional assessments before it, to allow the respondent to have present at the hearing for questioning the authors of clinical reports on which the Board intended to rely and, more generally, to render an assessment not founded on the evidence. The other group relates to alleged violations of the respondent’s rights under sections 7, 9 and subsection 15(1) of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter).

After the filing of his application, the respondent made a motion pursuant to subsection 18.4(2) of the Act for an order that his application filed under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] be treated and proceeded with as an action.

The learned Motions Judge [T-1931-93, Cullen J., order dated 18/10/93, F.C.T.D., not yet reported] granted the motion, essentially for the following reasons:

The case at bar is a complex and unique one, involving an individual with a very unusual illness. The applicant’s history in this Court is well-documented, as are his disputes with the Board and the Correction Services of Canada. The originating notice of motion raises many difficult issues, including several concerning the Charter. It is these issues that lead me to believe that the case may not be properly suited to the procedure for an application for judicial review.[2]

…

As stated, the case before me is a complex one with a complicated series of legal questions to be resolved. In addition to the Charter issues, there is the fact that the Board did not allow the applicant to have legal representation at his hearings. This fact alone would likely not withstand judicial review. However it is the combination of complex legal issues and detailed factual information required which make this case a proper candidate to be treated and proceeded with as an action pursuant to section 18.4(2) and Rule 1601(2). Accordingly, this motion is granted. In doing so, I wish to stress that not all applications which raise Charter arguments will necessarily be treated as an action. Each case must be evaluated on its own merits in accordance with the intent of section 18.4 and Mr. Justice Muldoon’s comments in P.E.I. Potato Board, supra.[3]

Any attempt to interpret subsection 18.4(2) has to begin with the following statement by Muldoon J. with respect to the approach to be taken when applying it:[4]

Section 18.4 of the Federal Court Act makes it clear that, as a general rule, an application for judicial review or a reference to the Trial Division shall be proceeded with as a motion. The section dictates that such matters be heard and determined “without delay and in a summary way”. As an exception to the general rule, provision is made in s. 18.4(2) for an application for judicial review to be proceeded with as an action. The new and preferred course of procedure, however, is by way of motion and that course should not be departed from except in the clearest of circumstances.

Of interest, also, is the reminder by Reed J. that:[5]

… on judicial review the role of the court is to review the decision made by the decision-maker but not to supplant that decision-making process.

and the following comments by Strayer J.:[6]

For these reasons I am unsympathetic to the arguments of the respondents that there are difficult technical factual determinations to be made which will require pleadings and a trial and the cross-examination viva voce of experts and others. It is not the role of the Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which ones should be respected. Whether society would be well served by the Court performing either of these roles, which I gravely doubt, they are not the roles conferred upon it in the exercise of judicial review under section 18 of the Federal Court Act [R.S.C., 1985, c. F-7].

I am therefore not going to direct that this matter be tried by way of an action. I think many of the concerns of the respondents can be met if the parties focus on the real issues.

It is, in general, only where facts of whatever nature cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using subsection 18.4(2) of the Act. One should not lose sight of the clear intention of Parliament to have applications for judicial review determined whenever possible with as much speed and as little encumbrances and delays of the kind associated with trials as are possible. The “clearest of circumstances”, to use the words of Muldoon J., where that subsection may be used, is where there is a need for viva voce evidence, either to assess demeanour and credibility of witnesses or to allow the Court to have a full grasp of the whole of the evidence whenever it feels the case cries out for the full panoply of a trial.[7] The decision of this Court in Bayer AG and Miles Canada Inc. v. Minister of National Health and Welfare and Apotex Inc.[8] where Mahoney J.A. to some extent commented adversely on a decision made by Rouleau J. in the same file,[9] is a recent illustration of the reluctance of the Court to proceed by way of an action rather than by way of an application.

Strayer J. in Vancouver Island Peace Society, and Reed J. in Derrickson have indicated that it is important to remember the true nature of the questions to be answered by the Court in judicial review proceedings and to consider the adequacy of affidavit evidence for answering those questions. Thus, a judge would err in accepting that a party could only introduce the evidence it wants by way of a trial if that evidence was not related to the narrow issues to be answered by the Court. The complexity of the factual issues would be, taken by itself, an irrelevant consideration if the conflicting expert affidavits on which they are based are related to the issues before the tribunal rather than issues before the Court. In the same vein, speculation that hidden evidence will come to light is not a basis for ordering a trial.[10] A judge might be justified in holding otherwise if there were good grounds for believing that such evidence would only come to light in a trial, but the key test is whether the judge can see that affidavit evidence will be inadequate, not that trial evidence might be superior.

We do not think a better factual basis is necessary for determining Charter issues in comparison with other issues. It is true that constitutional facts are unusual in that they are often about social trends, but before a judge concludes that Charter issues require a trial, there must be some reason to believe in the inadequacy of affidavits to establish a factual basis. To proceed by way of motion is not to be equated with proceeding in a “factual vacuum”, since affidavit evidence is fully available. The proposition that Charter issues can be properly decided only following a trial flies in the face of the innumerable decisions of this Court, the Supreme Court of Canada and other courts that have been made on application or following other summary process, or by appeal from such decisions. There is absolutely no reason to grant Charter cases a special status.

The complexity of legal issues is not, in itself, a relevant consideration. These issues would be complex whether they were argued in the course of an application or in the course of an action.

Time is also not in itself a relevant consideration for transforming an application into an action. The volume of the affidavit evidence to be filed, the time needed by counsel to submit their case are not related to the way the proceedings are held. We appreciate that applications have taken more and more of the time of the Trial Division and that what used to be for a judge a motions’ day has become more often than not a motions’ week. The system obviously needs to be adapted to these new requirements of the post-Charter era, but the solution cannot be, because it flies in the face of Parliament’s will, to alleviate the burden of a motions judge by converting an application to an action.

A party’s subjective reason for desiring viva voce evidence would also be an irrelevant consideration. A party’s desire to have his day in court is not a good reason for allowing a trial.

In the case at bar, with respect, the learned Motions Judge was too much concerned with the complexity of the issues raised and the fact that there were Charter issues, and not concerned enough with what should have been the main consideration, i.e. whether the factual basis for deciding those issues could be properly generated by affidavit evidence. This is clearly a ground for intervention by this Court.

We have examined the pleadings and the records in two earlier applications in the Trial Division on which the respondent has relied in the present application. There are, indeed, complex issues and facts, but we have not been persuaded that a hearing in a summary way would prevent the parties and the Court from dealing adequately with the application for judicial review. On the contrary, it seems to us that the matters complained of by the respondent are entirely related to the procedure followed by the Board. Procedure being a matter well within the expertise of the Court, the issues are not so complex as to require production of documents, discovery, viva voce evidence with cross-examination, and the full panoply of a trial.

The appellants have raised another issue with respect to the attack on the decision of the Board dated November 22, 1991. They argue that under Rule 1602(4) [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)], the respondent’s notice of originating motion could be in respect of a single decision only; they argue further that the application with respect to the November 22, 1991 decision could not be entertained as it was not made within the thirty-day time limit set out in subsection 18.1(2) of the Act and as only a Judge of the Trial Division may extend time. Both points are well taken.

That being said, there does not appear to be any need for the respondent to challenge the 1991 decision. The procedures adopted by the Board during the 1991 hearing were those purported to be adopted by it in the 1993 hearing. The issue before the Court is in reality whether the Board may use in 1993 the same procedures it used in 1991. Whether the procedures are found to have been illegal in 1991 or to be illegal when the hearing resumes, the respondent will get a hearing in which the proper procedures are adopted. We shall therefore order that paragraphs (a) to (l) of the originating notice of motion, which relate to the 1991 hearing, be struck out.

The appellants have suggested, should the appeal be allowed, that pursuant to Rule 1614(1) [as enacted idem], the time limit prescribed by Rule 1603(3) [as enacted idem] for the filing of their affidavit should be extended to thirty days from the date of the judgment herein, and the time limit prescribed by Rule 1606(1) [as enacted idem] for the filing and service by the respondent of his application record should be extended to sixty days from the date of the judgment herein. We shall so order.

The appeal shall be allowed, the order of the Trial Division shall be set aside, the motion brought pursuant to subsection 18.4(2) of the Federal Court Act shall be dismissed, the time limits prescribed by Rules 1603(3) and 1606(1) shall begin to run from the date of the judgment herein and paragraphs (a) to (l) of the originating notice of motion shall be struck out.

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