Date: 20070524
Docket: T-1890-05
Citation: 2007 FC 550
Ottawa, Ontario, Thursday, this 24th day of May 2007
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
BETWEEN:
GARRY REECE, on his own behalf and
on behalf of the LAX KW’ALAAMS INDIAN BAND, and
HAROLD LEIGHTON on his own behalf and
on behalf of the METLAKATLA INDIAN BAND
Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
As represented by
the MINISTER OF WESTERN ECONOMIC
DIVERSIFICATION, and the
MINISTER OF THE ENVIRONMENT; and
the PRINCE RUPERT PORT AUTHORITY
Respondents
REASONS FOR ORDER AND ORDER
[1] I am, in the context of this application for judicial review, seized of several motions brought by various parties, all relating to the evidence that can or should be adduced on the merits of this application. The motions were heard in the course of a three-day special sitting. In addition, I have, as case management Prothonotary and on my own motion, sought the representations of the parties as to whether an order pursuant to Rule 107 of the Federal Courts Rules should be made, whereby certain issues in the application be determined separately, and if so, which issues should be severed.
The Application
[2] This application was commenced on October 25, 2005. The Applicants are acting on their own behalf and on behalf of the Lax Kw’alaams Indian Band and the Metlakatla Indian Band. For ease of reference, the Applicants will be collectively referred to in these reasons as the “Bands”. Named as Respondents are the Minister of Western Economic Diversification and the Minister of the Environment (hereinafter, the “Ministers”), both represented by counsel from the Department of Justice, and the Prince Rupert Port Authority (hereinafter, the “Port”), represented separately by independent counsel. The decision which is the subject of this application for judicial review is identified as being the decision of the Minister of Western Economic Diversification, dated September 26, 2005, “to enter into a grant agreement with the Prince Rupert Port Authority […] for the sum of $30,000,000.00 for the purpose of enabling Phase I of the proposed Fairview Terminal Conversion and Expansion Project […] to be carried out”.
[3] However, beyond simply a review of that particular decision, the notice of application specifically lists as follows the relief sought:
“(a) An order in the nature of certiorari setting aside the decision of the Minister of Westerns Economic Diversification to enter into a grant agreement with the PRPA for the sum of $30,000,000.00 pursuant to the Western Economic Diversification Act, R.S.C., 1985, (4th Suppl.) c.11;
(b) A declaration that the Minister of Western Economic Diversification is in violation of his obligations under the Canadian Environmental Assessment Act, S.C., 1992, c. 37 (“CEAA”) to ensure that an environmental assessment is completed before granting financial assistance to the PRPA;
(c) A declaration that the Minister of Western Economic Diversification and the Minister of the Environment are in violation of their obligations under CEAA to ensure that an environmental assessment is completed before irrevocable decisions are made;
(d) A declaration that the environmental assessment of the Project must proceed by comprehensive study;
(e) A declaration that the environmental assessment of Phase 1 of the Project must include an assessment of the cumulative environmental effects of the Fairview Terminal Expansion, commonly referred to as Phase 2 of the Project;
(f) A declaration that the decommissioning of the Fairview Terminal by the PRPA is unlawful and in violation of the obligations of the Minister of Western Economic Diversification and the Minister of the Environment under CEAA;
(g) A declaration that the award of a contract (or contracts) for the decommissioning of the Fairview Terminal by the PRPA was unlawful and in violation of the obligations of the Minister of Western Economic Diversification and the Minister of the Environment under CEAA;
(h) A declaration that the award of a contract for project management services for Phase 1 of the Project by the PRPA was unlawful and in violation of the obligations of the Minister of Western Economic Diversification and the Minister of the Environment under CEAA;
(i) A declaration that the award of a contract for steel pipe supply for the Project by the PRPA was unlawful and in violation of the obligations of the Minister of Western Economic diversification and the Minister of the Environment under CEAA;
(j) An order for mandamus compelling the Minister of Western Economic Diversification and the Minister of the Environment to prohibit, by order, the PRPA from doing any act or thing that carries out the Project in whole or in part and that would alter the environment until the responsible authorities take a course of action under paragraph 20(1)(a) or (b) or subsection 37(1) of CEAA;
(k) An order restraining the PRPA from doing anything that commits the PRPA to carrying out the Project in whole or in part until an environmental assessment has been completed and a course of action taken pursuant to s. 20(1)(a) or 37(1);
(l) An order for mandamus compelling the Minister of Western Economic Diversification and the Minister of the Environment to solicit the participation of and consult with the Lax Kw’alaams Indian Band and the Metlakatla Indian Band in the environmental assessment of the Project;
(m) A declaration that the Minister of Western Economic Diversification has a constitutional duty to consult with, and if appropriate accommodate, the Lax Kw’alaams and the Metlakatla before any irrevocable decisions are made that would enable the Project to be carried out in whole or in part;
(n) Such other order as this Honourable Court may deem appropriate; and
(o) Costs.”
[4] As can be seen from this recitation, while the notice of application targets the decision of the Minister of Western Economic Diversification dated September 26, 2005 specifically, it also appears to seek a variety of declarations and restraining orders as to other contracts and actions taken or to be taken by the Port, and orders compelling both Ministers to do certain things in the future.
[5] How the wording of this notice of application and the relief sought therein are to be understood and the exact scope of this application are, in many ways, the crux of the motions before me.
[6] On one possible interpretation, the outcome of the application and availability of any relief sought thereunder are subsumed in, or hinge and depend upon a determination as to the validity of the decision of September 26, 2005. In other words, the declarations of unlawfulness, as sought in subparagraphs (b), (c), and (f) to (i), might of themselves be grounds for the invalidity of the decision; a finding as to the existence of a duty, as sought in subparagraphs (d), (e) or (m), might of itself be necessary for a finding that violation of that duty caused the unlawfulness of the decision; and some of the findings and orders sought in subparagraphs (j) to (l) might be needed to provide directions as to how a further determination is to be made or be a necessary consequence of the invalidity of the decision. Also, on that interpretation, if the decision of September 26, 2005 is held to be valid, or for any reason, not subject to judicial review, that could very well be the end of the matter, with no need or grounds for the Court to make any of the determinations or orders sought in paragraphs (b) to (n).
[7] On another possible interpretation, each request for relief is independent of the others and, more to the point, of the grounds for review of the September 26, 2005 decision. Under that interpretation the Court could, for example, hold that the decision of September 26, 2005 is lawful and valid, or that judicial review thereof is premature or unavailable, yet at the same time declare that the Ministers have duties to carry out in the future relating to environmental assessments, prohibit any actions until these duties are fulfilled or review and invalidate contracts and actions taken by the Port in parallel or pursuant to the decision.
[8] A review of the evidence filed by the parties pursuant to Rules 306 and 307 as of January 16, 2006 indicates that the parties appear to have proceeded, until then, on the basis that the former, more restrictive interpretation of the scope of this application was the correct one. Indeed that evidence concerns primarily the events that occurred prior to the date of the decision, and the only references to events having taken place afterwards relate to the actual date where the agreement contemplated in the decision of September 26 was executed, to the date the Bands were informed of the decision, to the date on which documents supporting the Bands’ land claims were delivered and to the introduction of these documents, and to the fact, in very general terms, that consultations with the Bands are “ongoing”. Certainly, none of the evidence filed as of the end of January 2006 appears to be aimed at or relevant to any determination as to the lawfulness, adequacy or requirements of any process, decision or actions made pursuant or subsequent to the decision under review, as would be the case if the true scope of the application extended beyond the immediate cause and effect of the September 26 decision.
[9] It is further noteworthy that the Bands did institute independent proceedings in relation to matters which could, on the wider interpretation of the scope of this application, have been deemed to be covered by this application: On January 17, 2006 the Bands instituted a judicial review application, in Court file T-89-06, in relation to “the pending decision of the Minister of Transport to authorize the Fairview Terminal Conversion” and to the Crown’s duties of consultation and accommodation in that regard; on October 16, 2006, in Court file 06-T-79, the Bands filed a motion for an extension of the time within which they could bring a judicial review application in respect of a decision of October 27, 2005 by the Minister of Transport regarding consultation and in respect of the environmental screening decision made in January 2006 relating to the terminal conversion project.
[10] It is clear to me that the only conclusion that can be reached as to the scope of this judicial review application, both as intended by the Bands themselves and as permitted by the Rules of this Court, is that it is strictly limited to the lawfulness and validity of the decision of September 26, 2005. It does not extend to an inquiry into or a determination of the validity of any decision or act made in parallel or subsequent to the decision, or to the determination of any duty or standard of conduct required for decisions or actions made subsequent to the decision in question, save insofar as the relief that may be granted by the Court pursuant to section 18.1(3) of the Federal Courts Act in relation to the specific decision at issue affects those other issues.
[11] Any evidence filed, or proposed to be filed, which does not assist in determining these limited questions is therefore irrelevant. Furthermore, in view of the level of animosity and antagonism displayed by the parties as to the issues raised in the new proposed evidence, allowing the introduction of any such evidence unless it is strictly relevant or necessary to the determination of this application would only serve to feed the animosity, detract from the real questions at issue and generally not be in the interest of justice.
[12] With these broad parameters established, I proceed to consider the motions before me.
The Bands’ motion to replace Exhibit “J” to the affidavit of Garry Reece
[13] The Respondents do not contest this part of the Bands’ motion. It will be granted.
The Bands’ motion to strike parts of the affidavit of Lorne Keller
[14] The Port filed the affidavit of Mr. Keller on January 13, 2006, but the Applicants did not move to strike its allegedly offending paragraphs until after they had completed their cross-examination of Mr. Keller.
[15] The impugned paragraphs read as follows:
“6. As indicated by Exhibit “A” to Reece Affidavit #1, on or about August 30, 2004, the PRPA began consulting with the Lax Kw’alaams and Metlakatla Bands, regarding the Project. Such consultations have involved numerous meetings, telephone conversations and exchanges of correspondence between myself, other representatives of and legal counsel for the PRPA, and Chiefs Reece, Leighton, other representatives of and legal counsel (Ratcliff & Company) for the Bands, as well as the negotiation of agreements between the PRPA and the Bands, and funding provided to the Bands by the PRPA, all during the latter part of 2004 and continuing through 2005.”
[only the second sentence is at issue]
“7. Some of such communications, negotiations, agreements and funding are referred to in Exhibits “G”, “J”, “O” and “P”, of Reece Affidavit #1. For example, the ‘Impacts and Opportunities’ document attached as Exhibit “R”, which Chief Reece says in paragraph 24 that he was instructed by the Bands’ counsel to present to Canada, was prepared with funding by the PRPA, pursuant to the Fairview Agreement referred to in Exhibit “P”.”
“8. The consultations generally described above, and by Chief Reece, have resulted in mitigation measures such as those indicated in Exhibit “W” of Reece Affidavit #1.”
[16] The Bands’ objection to these paragraphs is based on the terms of an agreement referred to as the “Fairview Agreement” entered into between the Bands and the Port on August 23, 2005.
[17] The portions of the Fairview Agreement which are relevant to this motion are the following:
“2(a) All discussions leading to the formation of this Agreement, this Agreement, as well as all discussions, negotiations, information acquired, documents prepared and agreements made by the Parties under this Agreement (“Confidential Information”), will be confidential and the disclosure of Confidential Information under this Agreement will not in any way constitute a waiver of solicitor-client privilege, lawyer’s brief/work product privilege or Crown privilege, if such privilege is otherwise applicable. Confidential Information will not be disclosed to any non-party or in litigation, except:
(i) as Parties might otherwise unanimously agree in writing;
(ii) as may be required by law;
(iii) as may be permitted pursuant to the exercise of statutory or regulatory discretion;
(iv) for greater certainty, Lax Kw’alaams and Metlakatla will be entitled to disclose Confidential Information to the members of the Bands, and PRPA will be entitled to disclose Confidential Information to their respective boards of directors, principals, agents, contractors, lenders and ministers, departments and other governmental entities of Canada, on the understanding that those persons will be bound by this confidentiality agreement;
(v) that Confidential Information is admissible only in litigation dealing with a breach or alleged breach of this Agreement.
(…)
(c) The parties agree that the negotiations pursuant to this Agreement and the discussions leading up to this Agreement have been and will be conducted on a without prejudice basis, and no Party will put in evidence any reference to the content of, the existence of or any statements made or positions taken in these discussions and negotiations in any action or petition before the court other than litigation dealing with an alleged breach of this Agreement. For greater certainty, no Party will reference the existence of or the content of these discussions and negotiations in any action or petition relating to consultation or accommodation of aboriginal rights and title.”
[18] The Bands consider that the impugned portions of the Keller affidavit refer to discussions leading up to and held pursuant to the Fairview Agreement and to the Fairview Agreement itself and as such, that they constitute a breach of the confidentiality agreement and of the agreement not to refer to such discussions in litigation.
[19] In considering this motion, it is important to distinguish between confidentiality and admissibility. That which is confidential between the parties is not necessarily inadmissible, and that which is inadmissible is not necessarily confidential.
[20] Rules 151 and 152 of the Federal Courts Rules, as well as confidentiality orders regularly issued by this Court to apply to information exchanged between the parties in discovery, exist specifically to protect the confidentiality of information which is prima facie admissible. On the other hand, discussions which may not be strictly confidential may nonetheless be inadmissible in the context of any given proceeding; such is the case of discussions made for the purpose of attempting a settlement, which, even where they lose or do not attract confidential status, remain inadmissible in litigation should settlement fail, either as a form of privilege or on the basis of lack of relevance.
[21] It is clear that despite the language used in their motion, the Bands’ objection to the impugned paragraphs is not premised on confidentiality but on inadmissibility arising from a form of privilege created by the terms of the Fairview Agreement. Indeed, confidentiality in the existence of the discussions and in the existence and terms of the Fairview Agreement has long been lost and the Bands did not contest this at the hearing. Confidentiality was lost when the Bands mistakenly filed on the public record the wrong document as Exhibit “J” to the affidavit of Garry Reece and did not move to withdraw it for several months. Its loss was confirmed when the Bands filed their motion record herein without seeking a confidentiality order. It appears from the record before me that even the content of the discussions may have been disseminated publicly.
[22] The question before me then is whether the evidence of Mr. Keller relating to the existence of the Fairview Agreement and of the discussions leading up to or held pursuant to it should be struck as inadmissible.
[23] It is settled law that a motion to strike evidence ought to be left to the determination of the judge who will be hearing the merits of the application, unless the evidence is obviously inadmissible and that leaving the determination to the hearing judge would cause prejudice to the moving party (see for example, Canadian Tire Corp. v. P.S. Partsource, [2001] F.C.J. No. 181; 2001 FCA 8, Mayne Pharma (Canada) Inc. v. Aventis Pharma Inc., [2005] F.C.J. No. 215; 2005 FCA 50, and Bojangles International, LLC v. Bojangles Café Ltd., 2005 FC 272; [2005] F.C.J. No. 383).
[24] I am not satisfied that the impugned evidence is obviously inadmissible, nor that the Bands would be prejudiced by allowing that issue to be determined by the hearing judge.
[25] Although the Port has made much of the many ways in which the Bands are alleged to have breached the terms of the Fairview Agreement and therefore lost the right to rely on its terms, breaches of confidentiality are not relevant to the issue of whether the privilege alleged to attach to the discussions applies or has been lost. It seems to me that the crucial questions are, first, whether the “inadmissibility” provision of the Fairview Agreement is, or was ever, enforceable in relation to any litigation where the fulfillment of the Crown or the Port’s duty to consult and accommodate is at issue; second, whether it applies to any discussions or only those relating to aboriginal claims and title; and third, whether the Bands’ conduct in this litigation constitutes a waiver of any privilege having attached to the discussions. The answer to any of these questions is far from obvious.
[26] While it is not my purpose to determine the questions either way, it seems to me that there is an arguable issue as to whether discussions relating solely to environmental issues, as opposed to treaty rights and accommodation, are in fact covered by the confidentiality provisions of the Fairview Agreement. Further, it is arguable that to the extent the Fairview Agreement strictly requires that “no Party will reference the existence of […] these discussions and negotiations in any action or petition relating to consultation or accommodation […]”, this requirement would apply as much to any statement denying the existence of the discussions as to statements asserting that they took place; if so, then by filing evidence unequivocally stating that they “have never been consulted regarding nor participated in any environmental assessment” of the project, the Bands could be said to have put the existence of these discussions in issue and waived any privilege attaching thereto. It also appears that several of the exhibits attached to the affidavit of Mr. Reece, and specifically referred to in the impugned portions of the affidavit of Mr. Keller, do refer to confidential information and discussions, as defined in the Fairview Agreement. Finally, I note that even though the impugned paragraphs on their face appear to relate to the allegedly privileged discussions, the Bands did not immediately move to strike them, but chose to cross-examine Mr. Keller on these statements. Extensive cross-examination was made on these very statements without any prior mention of the privilege or any objection as to admissibility, and without ensuring that the questions and answers relating to these issues be segregated in a separate transcript so that they could be easily severed should the paragraphs be struck. In fact, it is only at page 27 of the transcript, after substantive examination has been conducted on all three impugned paragraphs, that counsel for the Bands first mentioned the confidentiality provisions of the Fairview Agreement. It is arguable that the Bands waived the privilege or the right to object to admissibility by failing to raise it earlier.
[27] As to any prejudice that may be suffered by the Bands if the issue of the admissibility is deferred to the hearing judge, I fail to find any. It is quite apparent from the evidence as a whole, including the affidavits filed by the Bands themselves, that some discussions between the Bands and the Port had taken place in the summer or early fall of 2005 (see paragraph 9 of the affidavit of Mr. Keller, Exhibits “O” and “P” to the affidavit of Garry Reece, and paragraph 5 of the affidavit of Robert Prud’homme); the impugned parts of the affidavit do not reveal the contents of any such discussions nor the position taken by any party in the course of these discussions. To the extent more specific information was adduced on cross-examination which might somehow be prejudicial to the Bands, same was introduced into the record by the Applicants themselves. I fail to see how, in the circumstances, evidence simply asserting the existence of these discussions could prejudice the Bands if it remains on the record pending determination of its admissibility by the hearing judge.
[28] The Applicants’ motion to strike parts of the affidavit of Lorne Keller will be dismissed, under reserve of the Applicants’ right to raise the same objection in their application record, for determination at the hearing of the application on its merits.
Respondents’ motions to adduce additional evidence
[29] Both the Ministers’ and the Port’s motions to adduce additional evidence are said to be premised on the fact that certain events have occurred since the initial affidavits were filed which are relevant to the application and should be brought to the attention of the Court and on a “change in the focus” of the application.
[30] Although one would have expected that the proposed new evidence would relate exclusively to matters that occurred after mid-January 2006, the proposed affidavits in fact extensively revisit events that took place prior to the filing of the initial affidavits, going into much detail as to the substance of discussions held between the Bands, the Port and the Ministers’ representatives. These, clearly, are not new events.
[31] As I understand it, the portions of the proposed additional evidence going to events that occurred prior to mid-January 2006 are deemed necessary by the Respondents because of the alleged “change in the focus” of this application. What precipitated the Respondents’ view that a change of focus has occurred appears to have been the decision of Justice Von Finckenstein rendered September 21, 2006 in Court file T-89-06, reported as Leighton v. Canada (Ministry of Transport), [2006] F.C.J. No. 1417; 2006 FC 1129; [2007] 1 C.N.L.R. 195, in which the Bands were seeking judicial review of “the pending decision of the Minister of Transport to authorize the conversion of the Fairview Terminal”, together with the manner in which the Bands have treated the decision.
[32] In that application, the Bands were seeking various declarations as to the existence and extent of the Crown’s duty to consult and accommodate them in respect of the Fairview Terminal conversion project, together with an injunction prohibiting the Minister of Transport from authorizing the project until that duty had been discharged. Justice Von Finckenstein dismissed the application as a whole, on the basis that there had been no “decision” or “matter” conferring jurisdiction on the Court to review any aspect of the consultation process. However, the Reasons for Order contain statements to the effect that the Crown’s assessment of the Bands’ claim and of the scope of the Crown’s duty to consult, as limited to the water component of the project, was unreasonable.
[33] It appears that the Bands have taken the position, in public statements and in other litigation before this Court (namely, in their motion to extend time in Court file 06-T-79), that Justice Von Finckenstein’s Reasons for Order constitute a binding determination as to the adequacy of the consultation process. The Respondents of course disagree, but fear that because of the paucity of the existing record before the Court on this application as to the substance of the consultations between them and the Bands, and of the potentially very wide scope of this application, a decision on this application could turn on the adequacy of the consultations and of environmental reviews and assessments, not merely prior to the decision of September 26, 2005, but subsequent thereto. They fear that such determination, if made, would be made without substantial evidence as to what in fact occurred.
[34] For the reasons set out above as to the true and correct scope of this application, I find that the Respondents’ fears regarding a potential review of the adequacy of consultations, reviews and assessments conducted after the date of the decision under review are unfounded. There is accordingly no justification for introducing any new evidence at all as to the consultation and accommodation process, or the environmental review, assessment or screening process, that may have taken place after September 26, 2005.
[35] It may be that the adequacy of the consultation as to aboriginal rights and environmental impacts which occurred prior to the September 26 decision will be subject to determination in this application. However, that surely would have been within the reasonable contemplation of the Respondents at the outset of this application, and they had the duty to put their best foot forward at the earliest opportunity. They have not satisfactorily explained why they could not have foreseen the relevance of such evidence, and they cannot now supplement their case.
[36] The proposed supplementary affidavits contain substantial evidence as to how the Bands allegedly breached the provisions of the Fairview Agreement after January 16, 2006, and how these breaches now allow the Respondents to introduce evidence of the Fairview Agreement discussions, which previously had to be suppressed.
[37] However, the breaches in question go to the confidentiality of the information, not its admissibility. As mentioned before, confidentiality is a separate and distinct issue from admissibility, and I cannot see how a breach of confidentiality by the Bands should be relevant to the admissibility of the evidence. As also mentioned earlier, most of the grounds upon which it could be argued that the privilege claimed as to these discussions never attached or was lost existed before the Respondents filed their initial evidence and already appear from the record. The proposed evidence as to the Bands’ breach of the confidentiality provisions of the Fairview Agreement is therefore neither a justification for the late introduction of the additional evidence nor relevant to the determination of the admissibility of the evidence of Mr. Keller.
[38] The proposed supplementary affidavits also include evidence of certain events which occurred after January 16, 2006 and which may be relevant and of assistance to the Court in determining whether any or all parts of the application is moot, and in determining the appropriate relief, if any. These events are:
- The fact that a Screening Decision was made pursuant to the Canada Environmental Assessment Act, on January 22, 2006;
- The fact that construction of the Project began in late March 2005 and is scheduled to be completed in about August 2007;
- The fact that Transport Canada advised the Bands by letter dated May 17, 2005, that it considered the consultation process regarding the Project to be complete and that the Ministry of Western Economic Diversification would proceed to disburse monies under the Grant Agreement.
- The fact that the Ministry of Western Economic Diversification made the following payments to the Port pursuant to the Grant Agreement:
- $5,000,000 on June 5, 2006.
- $5,000,000 on July 26, 2006.
- $6,000,000 on December 7, 2006.
[39] There is no evidence before me, or reason for me to believe, that introducing evidence as to the existence of these facts (and not as to any discussions or processes leading up to them) would cause prejudice to the Bands. Evidence of these events, as bare facts, will not lead to and cannot form the basis of any attempt to expand the scope of this application to a judicial review of theses acts and decisions. Leave will therefore be granted to the Respondents to file further affidavits going strictly to establishing those facts. The Respondents’ motions to file additional affidavits are otherwise dismissed.
The Bands’ motion to strike the affidavits filed as part of the Respondents’ motions to adduce supplementary affidavits
[40] In view of the conclusions I have come to on these motions, and of the basis for these conclusions, I find it unnecessary to rule on this motion and it will be dismissed as moot. I have mentioned earlier the climate of antagonism and animosity that exists between the parties. That climate seems to have affected counsel; the cross-examinations on affidavits clearly reflect this and I cannot say that it was the finest hour of either counsel for the Bands or for the Port. It is just as well that I need say no more on the subject.
Severance
[41] The possibility or necessity of ordering a separate determination of any issue in this application was raised by the Court for consideration in the event I had come to the determination that the application indeed raised issues going beyond the strict cause and effect of the September 26, 2005 decision, and that the supplementary evidence tendered by the Respondents should be filed. Such a determination would have introduced in this application a very substantial body of new evidence, on highly controversial issues, and the interest of justice and proper management of this application might have required that severance be considered. In view of my determination as to the scope of this application, I do not propose to further consider the possible severance of any issue in this application.
ORDER
IT IS ORDERED THAT:
1. The Applicants have leave to remove from the record and replace with the document appearing at page 7 of their motion record, the document currently filed as Exhibit “J” to the affidavit of Garry Reece, sworn on November 23, 2005.
2. The Applicants’ motion to strike portions of the affidavit of Lorne Keller is dismissed.
3. The Applicants’ motion to strike affidavits pursuant to Rule 97 is dismissed.
4. The Respondents have leave to serve and file, no later than 20 days from the date of this order, supplementary affidavits and documentary evidence for the strict and exclusive purpose of establishing the following facts:
- The fact that a Screening Decision was made pursuant to the Canada Environmental Assessment Act, on or about January 22, 2006;
- The fact that construction of the Project began in late March 2005 and is scheduled to be completed in or about August 2007;
- The fact that Transport Canada advised the Bands by letter dated May 17, 2005, that it considered the consultation process regarding the Project to be complete and that the Ministry of Western Economic Diversification would proceed to disburse monies under the Grant Agreement.
- The fact that the Ministry of Western Economic Diversification made the following payments to the Port pursuant to the Grant Agreement:
- $5,000,000 on or about June 5, 2006.
- $5,000,000 on or about July 26, 2006.
- $6,000,000 on or about December 7, 2006.
5. Cross-examinations on the supplementary affidavits shall be completed no later than 15 days from the date they are served.
6. The Applicants’ record shall be served and filed no later than 30 days following the expiration of the time provided in this order for cross-examinations.
7. The Respondents’ respective records shall be served and filed no later than 30 days from the date of service of the Applicants’ record.
8. The Applicants may serve and file a requisition for hearing at any time following filing of their record and in any event, no later than 10 days following the expiration of the time provided in this order for the filing of the Respondents’ records.
9. Cost of all motions shall be in the cause.
“Mireille Tabib”
Prothonotary
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Garry Reece et al. v. Her Majesty the Queen et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 26, 27 and March 1, 2007
REASONS FOR ORDER: MADAM PROTHONOTARY MIREILLE TABIB
APPEARANCES:
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Mr. Gregory McDade |
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Ms. Judith Bowers, Mr. R. Denay, Ms. Chartier |
DEPARTMENT OF JUSTICE
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Mr. Neo Tuytel, Mr. Fogarassy |
FOR THE RESPONDENT PRINCE RUPERT PORT AUTHORITY
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SOLICITORS OF RECORD:
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Ratcliff & Company LLP Barristers & Solicitors North Vancouver, B.C.
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John H. Sims, Q.C. Deputy Attorney General of Canada
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DEPARTMENT OF JUSTICE
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Clark Wilson LLP Barristers & Solicitors Vancouver, B.C.
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FOR THE RESPONDENT PRINCE RUPERT PORT AUTHORITY |