CONSTITUTIONAL LAW |
Aboriginal and Treaty Rights |
Barlow v. Canada
T-1876-99
Teitelbaum J.
3/3/00
28 pp.
Motion to strike out judicial review application filed by applicants under rr. 4, 81, 221--Respondents also seeking order factual issue of whether respondents seized 60 lobster traps purportedly belonging to applicant be determined in advance of constitutional and treaty issues raised on judicial review application--Also seeking to convert within application into action under Federal Court Act, s. 18.4(2)--Applicants alleging officers of respondent Minister of Fisheries and Oceans seized approximately 60 lobster traps belonging to applicant Ken Barlow--Applicants also seeking declaration respondents breached Mr. Barlow's treaty rights under 1760 Treaty of Peace and Friendship with Mi'kmaq people--Notice of motion for interlocutory injunction, writ of mandamus directing respondents to return all lobster traps seized from applicant dismissed by MacKay J.--Issue of whether application to strike originating notice of motion could be brought under r. 221 considered by F.C.A. in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588--While applicants may not establish facts at core of proceeding in notice of motion, application not bereft of any possibility of success--Not exceptional case warranting Court to strike originating notice of motion--Respondents claiming Union of New Brunswick Indians lacks standing to bring application by reason applicant has not alleged, established treaty right--Applicants failing to make evidence Union of New Brunswick Indians incorporated body representing first nation peoples, not having same rights as Ken Barlow--Incumbent upon plaintiff to name every person directly affected by order in notice of motion--Respondent submitting first issue raised in application should be dealt with in advance of broader constitutional and treaty issues--No rule permitting Court to bifurcate first issue from second before hearing of application--Judicial review intended to be speedy remedy--To separate issues can only delay proceedings--Test to be applied in assessing whether application should be converted into action whether judge can see affidavit evidence will be inadequate, not that trial evidence might be superior--Second issue raised in application highly complex, historical one which would be difficult to present in affidavit form--Entire matter should be heard at same time--Constitutional issue cannot be dealt with on affidavit evidence, especially as it relates to oral history--Affidavit evidence would be inadequate--Matter should be determined after oral hearing--Questions should be fully answered in best interests of all parties involved particularly where no prejudice to applicant Barlow--Application for judicial review converted into trial of action--Federal Court Rules, 1998, SOR/98-106, rr. 4. 81, 221--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.4 (as enacted by S.C. 1990, c. 8, s. 5).