Mushkegowuk Council v. Canada (Attorney General)

Mushkegowuk Council v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2011-04-13 Neutral citation 2011 FCA 133 File numbers A-367-10 Decision Content Federal Court of Appeal Cour d'appel fédérale Date: 20110413 Docket: A-367-10 Citation: 2011 FCA 133 CORAM: EVANS J.A. DAWSON J.A. STRATAS J.A. BETWEEN: MUSHKEGOWUK COUNCIL and STAN LOUTTIT Appellants and THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF NATURAL RESOURCES (THE HON. GARY LUNN P.C., M.P.) and THE NUCLEAR WASTE MANAGEMENT ORGANIZATION Respondents Heard at Toronto, Ontario, on April 13, 2011. Judgment delivered from the Bench at Toronto, Ontario, on April 13, 2011. REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. Federal Court of Appeal Cour d'appel fédérale Date: 20110413 Docket: A-367-10 Citation: 2011 FCA 133 CORAM: EVANS J.A. DAWSON J.A. STRATAS J.A. BETWEEN: MUSHKEGOWUK COUNCIL and STAN LOUTTIT Appellants and THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF NATURAL RESOURCES (THE HON. GARY LUNN P.C., M.P.) and THE NUCLEAR WASTE MANAGEMENT ORGANIZATION Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on April 13, 2011) EVANS J.A. [1] We are not persuaded that in her decision, dated September 24, 2010 (2010 FC 959), the Federal Court Judge erred when she deferred to the exercise of discretion by the case management Prothonotary to refuse leave to the Appellants to file and serve a supplementary affidavit containing eight additional documents. [2] In a decision dated April 15, 2010, the Prothonotary had refused leave to the Appellants to adduce two of the documents because they had been available earlier, and they had given no reasonable explanation for not having included them with their original affidavit material. The other six, which were published after the date of the report that is the subject of the Appellants’ underlying application for judicial review, the Prothonotary found to be not relevant to the issues in the underlying application for judicial review, to be of little or no assistance to the Court, and likely only to confuse the issues. [3] The Prothonotary identified and applied the correct, multi-factor, legal test for granting leave to file and serve a supplementary affidavit under rule 312 of the Federal Courts Rules. An appellate court will only interfere with a Prothonotary’s application of the factors relevant to the exercise of discretion if satisfied that the Prothonotary had committed an error of principle or misapprehended the facts. [4] We are not satisfied that either kind of error occurred here. We note that “relevance” is not in itself a factor that must be considered independently for the purpose of rule 312. Rather, it is included as part of the broader factor, “assistance to the Court”. Whether, in this context, the documents were relevant was a question of mixed fact and law on which the Prothonotary was entitled to deference. [5] We would also emphasize that this Court is particularly reluctant to interfere with discretionary decisions made on non-vital issues, such as those raised here, by Prothonotaries or Federal Court Judges in the course of case managing a matter. [6] For these reasons, the appeal will be dismissed with costs payable by the Appellants to the Respondents. “John M. Evans” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-367-10 (APPEAL FROM A DECISION OF THE HONOURABLE JUSTICE ELIZABETH HENEGHAN, DATED APRIL 15, 2010, DOCKET NO. T-1305-07) STYLE OF CAUSE: Mushkegowuk Council and Stan Louttit v. The Attorney General of Canada, The Minister of Natural Resources (The Hon. Gary Lunn P.C., M.P.), and The Nuclear Waste Management Organization PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 13, 2011 REASONS FOR JUDGMENT OF THE COURT BY: EVANS, DAWSON AND STRATAS JJ.A. DELIVERED FROM THE BENCH BY: EVANS J.A. APPEARANCES: Murray Klippenstein Kent Elson FOR THE APPELLANTS Liz Tinker Patrick Moran FOR THE RESPONDENTS SOLICITORS OF RECORD: Klippensteins Toronto, Ontario FOR THE APPELLANTS Myles J. Kirvan Deputy Attorney General of Canada Patrick Moran Toronto, Ontario FOR THE RESPONDENTS FOR THE RESPONDENTS – NUCLEAR WASTE MANAGEMENT ORGANIZATION