Date: 20000315
Docket: T-2127-99
BETWEEN:
CANADIAN ARCTIC RESOURCES COMMITTEE INC.,
Applicant,
- and -
DIAVIK DIAMOND MINES INC. and
ABER DIAMOND MINES LTD.,
Respondents,
- and -
ATTORNEY GENERAL OF CANADA,
Intervenor.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This application for judicial review of development approvals arises out of the Diavik open-pit diamond mining operation to be mounted at Lac de Gras, 300 kilometres north-east of Yellowknife, by the Respondents, to be accomplished by dyking and pumping out an area of lake to get at diamond bearing kimberlite pipes beneath the lake. The reasons arise out of the Applicant"s motion for an extension of time within which to file its record, under Rule 309, until the hearing of a contemplated motion for production of allegedly undisclosed material used in making the decision to grant the necessary regulatory approvals. The Applicant does not in its material set out when its record ought to be, or should have been served and filed. I therefore accept the dates calculated by counsel for Diavik Diamond Mines Inc., of 6 March 2000 for service and filing of the record as required by the Federal Court Rules, 1998 . I will touch on some additional relevant facts during the course of analysis, however there is first some basic law to set out.
SOME APPLICABLE LAW
[2] The law applicable to a time extension is well known. An applicant for such an extension must deal with the reasons for the delay, with any prejudice to both sides and must show the case is an arguable one: see for example Grewal v. Canada [1985] 2 F.C. 263 (F.C.A.) and Nelson v. Canada (1997), 206 N.R. 180 (F.C.A.). In addition, a party seeking an extension must do so at the earliest possible time.
[3] The underlying principle in all of this is that justice must be done between the parties: see for example Grewal (supra) at 272 and 282, and Alcorn v. Canada (1998), 149 F.T.R. 314 at 316.
ANALYSIS
[4] The principle difficulty I have with the Applicant"s motion is a lack of supporting evidence. The motion and argument were filed without any supporting affidavit. Even were I to accept as evidence the grounds set out in the motion and the allegations referred to in written argument, that material does not satisfy the basic tests for a time extension.
[5] To elaborate on this basic deficiency, the Applicant"s argument refers to correspondence and documents, but only in the abstract. Paragraph 3 of the written representations sets out that the Applicant "... is in the process of completing a motion to compel the government to produce additional material.". In that paragraph the representations set out what appears to be an argument for production of documents. Paragraph 4 of the written representations sets out, as I say without any affidavit material in support, that the Applicant "... filed its supporting affidavit and exhibits with the reservation that CARC [the Applicant] might seek the Court"s leave to file a supplemental affidavit and exhibits, as necessary, following the government"s production of additional materials under Rules 317 and 318.".
[6] In paragraph 5 the Applicant sets out what it intends to do in the future, that is to adjourn its cross-examination on the affidavit of the Respondent Diavik Diamond Mines Inc. ("Diavik") pending the resolution of the production of documents issue.
[7] In paragraph 6 of the argument, the Applicant notes that the government "could well have to produce considerable additional material" and that the "... additional material could, in turn, warrant the filing - by CARC as well as by the Respondents/Intervenor - of supplemental supporting affidavits and exhibits....". This portion of the argument does touch upon the reason for the delay, albeit a rather speculative reason, in that there "could well" be additional material which "could" warrant supplementary affidavits and exhibits.
[8] The written argument ignores any possible prejudice to the Respondents. The written argument touches upon the effect of the record filing deadline and the possibility of there being further material which could warrant further affidavits and cross-examination. However this, assuming it were actual evidence, would merely be evidence of inconvenience to the Applicant, but by no stretch of the imagination is it prejudice. There is nothing in the Applicant"s written argument to demonstrate that the judicial review is, in itself, an arguable proposition.
[9] Notwithstanding that the Applicant has not made its case for an extension of time, the Respondents and the Intervenor raise a number of issues including as to prejudice and delay. Aber Diamond Mines Ltd. ("Aber"), in written representations, relying upon an earlier affidavit, establishes that it is a 40% joint venturer in a project costing $1.3 billion. Aber"s share is $520 million, of which they now have $210 million in equity, but need to raise a further $400 million, making it the largest to date financing by an independent Canadian explorer and developer. Aber"s position, as set out in the affidavit of one of its Directors, is that it must, in the spring and summer of 2000, make definitive presentations to investors, which they believe would be successful, but which would not be successful if delayed. Aber"s response to the Applicant"s motion is brief, concluding by adopting the position of Diavik.
[10] In its material, supported by affidavit material, Diavik points out that following a 7 January 2000 motion to have this matter expedited, the parties reached an agreement that there would be an early hearing application and case management. Diavik suggests that the Applicant"s actions are at odds with that written agreement to expedite matters. This may be so, and while it is not a critical factor which I need consider in order to dispose of the motion, it does indicate that all of the parties recognized the urgency of pressing this matter on to a conclusion. Diavik also points out the obvious, that the Applicant is in breach of the time limits set out in the Rules. Important here is the concept that a party should not depart from times in the Rules unless it will suffer prejudice greater than that which the other side will suffer: see for example Valyenegro v. Canada (1995), 88 F.T.R. 196 at page 201, a decision of Associate Senior Prothonotary Giles.
[11] Diavik points out what is also obvious, that the Applicant"s success on the document production motion yet to come and upon which the need for the requested extra time depends, rests upon possibilities and hypotheticals. Diavik also submits that the documents which, if they exist, were in fact not considered by the Minister in making the decision: such documents would be in addition to 42 volumes of documents in the public registry for the Diavik project. However this is getting a little far afield.
[12] Diavik does, however, make a further telling point. On 10 January 2000 the Department of Justice advised counsel for the Applicant that only material before the Minister, when the Minister made his decision, pursuant to the Canadian Environmental Assessment Act was, in the Crown"s view, relevant and producible. Relevant here is that extensions ought not to be granted when the requirement for an extension is the result of inaction or delay by the party seeking the extension: for exampel see Chin v. Minister of Employment and Immigration (1994), 69 F.T.R. 77, in which Madame Justice Reed, faced with a request for a time extension, said that she looked for a reason for the delay beyond the control of counsel or client (page 80) and to Moreno v. Canada (1996) 110 F.T.R. 57, a decision of Prothonotary Morneau, in which failure to file within the time set out in the Rules was a result of the conduct of counsel.
[13] In the present instance the Applicant delayed. The Applicant did not bring on the motion for the extension of time at the earliest possible time and here I refer to knowledge on 10 January 2000 that the Crown advised that it had nothing more which it would produce. The Applicant did not serve and file the present motion until some 5 weeks later. Moreover, the Applicant provides no explanation for the delay.
[14] As I pointed out, after summarizing the Applicant"s position, it has failed the Grewal test. All the more so given that the Respondents and the Intervenor have themselves provided evidence of their prejudice and the Applicant"s unexplained delay. However, from the point of view of the Applicant, matters do not end there.
[15] The Applicant served and file a reply, a document many times thicker than the original motion record, replete with a substantial affidavit. The result has been much correspondence directed to the Court, copies to the parties, to the effect that it is not a reply, but that the Applicant has split its case and now seeks to add what ought to have been included in the application the first time around.
[16] I have considered the reply affidavit, the exhibits and the argument thoroughly. Much of it is irrelevant, or an attempt to patch up the initial application with material which was available when the initial application was filed. There is some reply material, however that material does not materially assist the Applicant, for the Applicant"s initial material fell far short of what it needed to establish in order to satisfy the case law setting out the requirements for a time extension and particularly I have in mind Grewal (supra).
[17] Grewal does, however, assist the Applicant. There, Chief Justice Thurlow, wrote of the underlying consideration, that of doing justice between the parties (page 272). Mr. Justice Marceau wrote of evaluating and balancing various factors in a search for justice (page 282 of Grewal). To allow the Applicant a brief extension of time would be a just result: to banish a bona fide litigant from the game because of an error would, in this instance, be an unjust result. To allow the Applicant such a brief time extension for serving and filing the record, containing the material it presently has, would do no injustice to the Respondents. Moreover, there is no injustice to require the Applicant to proceed at this time, for if the Intervenors are wrong and there is relevant producible material, the Applicant not only can be compensated for in costs, but can also apply for leave to file supplemental affidavit material as was done in Fogal v. Canada (1999) 161 F.T.R. 121. In Fogal a supplementary affidavit was justified by the fact that the material could not have been obtained earlier.
[18] In summary, notwithstanding much material tendered, following the filing of the Applicant"s motion, the Applicant itself did not, on the basis of its own initiating material, meet the test for a time extension set out in Grewal . The motion for a time extension is denied. The Applicant shall have ten days within which to serve and file its application record.
(Sgd.) "John A. Hargrave"
Prothonotary
March 15, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-2127-99 |
| STYLE OF CAUSE: CANADIAN ARCTIC RESOURCES COMMITTEE INC. |
| v. |
| DIAVIK DIAMOND MINES INC., ABER DIAMOND MINES LTD. |
| and |
| ATTORNEY GENERAL OF CANADA |
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369 OF THE FEDERAL COURT RULES, 1998
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
REASONS DATED: March 15, 2000
SOLICITORS OF RECORD:
Law Office of Michael
M.Wenig
| Calgary, AB for the Applicant |
Lawson Lundell Lawson
& McIntosh
| Vancouver, BC for the Respondent Diavik Diamond Mines Inc. |
MacLeod Dixon
| Calgary, AB for the Respondent Aber Diamond Mines Inc. |
Morris Rosenberg
Deputy Attorney General
| of Canada for the Intervenor |