PRACTICE |
Pleadings |
Edgar v. Kitasoo Band Council
T-2160-03
2003 FCT 815, Hargrave P.
30/6/03
11 pp.
Judicial review application involving challenge of in camera Band Council Resolution banning applicant from central coast British Columbia community of Klemtu-- Applicant wishing to convert application to action under Federal Court Act, s. 18.4(2)--Standard to apply, in determining whether judicial review proceeding ought to be converted into action under s. 18.4(2) whether evidence by affidavit will be inadequate, not that viva voce evidence at trial might be superior--Conversion should only be allowed in clearest of circumstances--At issue whether making of Resolution, in camera, both without notice to and without participation of applicant, breached principle of natural justice or infringed upon liberty, security of person in accordance with principles of fundamental justice--Major concern existence of two letters, both written after judicial review proceeding commenced--Absence of fairness, natural justice, alleged in notice of application, apparently ongoing--One of reasons why applicant wished to convert judicial review proceeding into action, to proceed through complete array of procedures leading to trial of matter as action--Present situation not one which embodies clearest of circumstances demonstrating affidavit evidence will be inadequate--Live evidence would in all likelihood be far superior, but affidavit evidence should be adequate, with proviso--Applicant has leave to file affidavit evidence exhibiting April 5, 2003 letter from Kitasoo-Xaixais Police Department, May 14, 2003 letter from Kitasoo Council, together with other evidence, including fresh facts, addressing ongoing effect of Band Council Resolution, nature of effect, since return to community following February 14, 2003 resolution--Affidavit evidence not inadequate--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.4 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 28).