WALTER PATRICK TWINN, THE COUNCIL OF THE SAWRIDGE BAND v. THE SAWRIDGE BAND, 2011 FCA 310

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20111115 Docket: A-280-10 Citation: 2011 FCA 310 Present: STRATAS J.A. BETWEEN: WALTER PATRICK TWINN, THE COUNCIL OF THE SAWRIDGE BAND and THE SAWRIDGE BAND Appellants and ELIZABETH BERNADETTE POITRAS Respondent and HER MAJESTY THE QUEEN IN RIGHT OF CANADA As represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa , Ontario, on November 15, 2011. REASONS FOR ORDER BY: STRATAS J.A. Date: 20111115 Docket: A-280-10 Citation: 2011 FCA 310 Present: STRATAS J.A.

BETWEEN: WALTER PATRICK TWINN, THE COUNCIL OF THE SAWRIDGE BAND and THE SAWRIDGE BAND Appellants and ELIZABETH BERNADETTE POITRAS Respondent and HER MAJESTY THE QUEEN IN RIGHT OF CANADA As represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT Respondent REASONS FOR ORDER STRATAS J.A. [ 1 ] Before this Court are two motions in this matter. The first, brought by the appellants, seeks an extension of time for the filing of a requisition for hearing. The second, brought by the respondent Crown seeks an order dismissing the appeal for delay.

As the two motions raise substantially similar issues, they shall be considered together. [ 2 ] The appellants filed their notice of appeal on July 29, 2010. This appeal remains unperfected. [ 3 ] On February 2, 2011, this Court issued a notice of status review. The appellants filed detailed submissions explaining the delay and proposing a

schedule for the remaining steps of the appeal. This Court allowed the appeal to continue and set a schedule. This was over the objection of the Crown. [ 4 ] Under the

schedule set by this Court, the appellants were to have filed their requisition for hearing on June 20, 2011. They failed to do so. The appellants failed to do so because they attempted to file a reply memorandum of fact and law, something that is permitted only by way of motion establishing special circumstances. No such motion was brought. Accordingly, this Court ordered that the reply memorandum should not be accepted for filing. By the time this Court made its order, the June 20, 2011 deadline had passed. [ 5 ] It was not until August 9, 2011 that the appellants attempted to file the requisition for hearing.

This Court rejected the proposed filing as it was out of time. A week later, the appellants brought a motion for an extension of time to file the requisition for hearing. On September 2, 2011, this Court ordered that the appellants had until September 30, 2011 to file their requisition for hearing. [ 6 ] In the circumstances, this was a fairly generous deadline for the appellants to file a document that they had already prepared. But the appellants failed to meet even that deadline. So now the appellants have had to bring a motion for a further extension of time to file the requisition for hearing.

[7] In support of their motion, the appellants file an affidavit from the legal assistant of the appellants’ lawyer of record, who isalso acting on these motions. Portions of the legal assistant’s affidavit are based on “advice” from this lawyer. In effect, this lawyer isoffering evidence – acting as a witness – on a motion on which he is also acting as counsel. [8] The portions of the affidavit based on the lawyer’s “advice” are inadmissible. A person cannot act as a witness and a lawyerat the same time: Federal Court Rules, SOR/98-106, Rule 82.

The proper practice for a lawyer who has to give evidence is to haveanother lawyer act as counsel on the motion. Often it is acceptable for another lawyer in the firm to serve as counsel on the motion:Polaris Industries Inc. v. Victory Cycle Ltd., 2007 FCA 259, (2007), 60 C.P.R. (4th) 194. After the motion, it is usually the case that thelawyer who swore the affidavit for the motion can represent the client in future motions and the hearing on the merits: Viacom Ha!Holding Co. v.

Jane Doe, 2002 FCT 13 at paragraph 10. [9] Fortunately for the appellants, the explanation offered for the failure to file the requisition for hearing is based on the direct,first-hand, admissible evidence of the legal assistant. It is apparent that arrangements were made for the requisition for hearing to be filedby September 30, 2011, but this did not happen. The probable reason was confusion on the part of the person who was supposed to filethe requisition for hearing.

The confusion arose from the fact that another filing was to have been made by September 30, 2011 and thatfiling, mistakenly, was thought to have been the relevant filing in this Court. [10] Approximately two weeks later, the appellants’ lawyer learned that the requisition for hearing had not been filed in time. Onthe same day, he wrote the Crown explaining the situation. Shortly afterward, he caused the appellants to move for another extension oftime to file the requisition for hearing. [11] The Crown opposes the appellant’s motion.

It notes that this is the second time that the appellants have failed to serve theirrequisition for hearing in time. It contends that the explanation offered for the failure is unacceptable. In particular, the Crown citesauthority for the proposition that inadvertence is not an acceptable explanation for delay: Canada (Attorney General) v. Hennelly,(1995), 91 F.T.R. 317 (F.C.T.D.), aff’d (1999), (FCA), 167 F.T.R. 158 (F.C.A.). [12] In Hennelly, the Court of Appeal said that it would not interfere with the motions judge’s fact-based assessment that theexplanation offered was inadequate.

In my view, properly read, Hennelly does not abolish inadvertence as a possible reason to forgivedelay. [13] Inadvertence is never desirable. But inadvertence comes in all shapes and sizes, sometimes forgivable, sometimes not. Whenpresented with inadvertence as the reason for delay, the Court must consider it in light of the applicable legal tests and all of thesurrounding factual circumstances.

In this regard, I agree with the words of Prothonotary Tabib in Footlocker Group Canada Inc. v.Steinberg, 2003 FCT 602, (2003), 26 C.P.R. (4th) 572 at page 575: Inadvertence may take many forms and each must be considered on its own merits. As well, the circumstances of each case play animportant role in the Court's assessment of whether an inadvertent error can be excused. [14] In this case, one submission made by the Crown is particularly powerful.

The Crown observed that on September 2, 2011 thisCourt gave the appellants a generous period of time – 28 days – in which to file a requisition for hearing that had already been prepared.It could have been filed by fax or mail, or walked down the street to the Court’s office: Rule 71(1). Evidently, the filing was onlyattempted at the very end of this generous period. [15] The Crown also points to the history of delay in this matter.

That history includes a notice of status review, a court-orderedschedule resulting from the status review, a breach of that schedule, a contested motion over the breach, this Court’s willingness toforgive that breach, and the Crown’s willingness to contest every delay by the appellants.

In these circumstances, one would havethought that the filing of the requisition for hearing would have been carried out as soon as possible. [16] Against this are several factors in favour of the granting of an extension of time to file the notice of requisition: the absence ofevidence of real prejudice to the Crown, the consent of the respondent Poitras, the fact that the appeal has otherwise been perfected, thefact that the requisition for hearing had been served in time and only the filing was late, the plausibility of the evidence of confusion as areason why lateness happened, the evident good faith by the appellants’ counsel as shown by the prompt reporting of the mistake to theCrown, the acceptability of the explanations for delay presented to this Court on two prior occasions, the absence of any changedcircumstances that would render those explanations inadequate today, and the earlier findings by this Court that the appellants have a

case that is sufficiently arguable to warrant the granting of extensions of time. [ 17 ] On balance, I exercise my discretion in favour of the appellants. The appellants have until November 18, 2011 to serve and file the requisition for hearing with proof of service, failing which the appeal will be dismissed without further notice to the appellants. [ 18 ] The Crown’s motion for dismissal on account of delay was triggered by this most recent incident of delay.

Given my decision to grant the appellants an extension of time to file their requisition for hearing despite this most recent incident, I dismiss the Crown’s motion for dismissal for delay. [ 19 ] The appellants have been successful on both motions. However, this is a rare instance where costs should not follow the result. Under Rule 3, this Court is obligated to interpret and apply the Rules “so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.” The motions were prompted by mistakes and oversights that have delayed and driven up the costs of this appeal.

By dismissing these motions, this Court is vindicating the principle that it is desirable that, where permitted by our legal tests and where justified by the circumstances, appeals should be determined on their merits. But, in the unusual circumstances of this case, the principles of expedition and minimization of expense must also be vindicated. [ 20 ] In the circumstances, a sanction is warranted and shall be imposed. Costs for both motions shall be awarded to the Crown in any event of the cause.

The costs for each motion shall be calculated with reference to the top end of column IV of Tariff B. “ David Stratas ” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-280-10 STYLE OF CAUSE: Walter Patrick Twinn, The Council of The Sawridge Band and The Sawridge Band v. Elizabeth Bernadette Poitras and Her Majesty The Queen In Right of Canada as represented by The Minister of Indian Affairs and Northern Development MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: Stratas J.A. DATED: November 15, 2011

WRITTEN REPRESENTATIONS BY : Philip Healey FOR THE APPELLANTS Terence Glancy FOR THE RESPONDENT, ELIZABETH BERNADETTE POITRAS Kevin P. Kimmins FOR THE RESPONDENT, HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHER DEVELOPMENT SOLICITORS OF RECORD : Aird & Berlis Toronto , Ontario FOR THE APPELLANTS Terence Glancy Barrister and Solicitor Edmonton , Alberta FOR THE RESPONDENT, ELIZABETH BERNADETTE POITRAS Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT, HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHER DEVELOPMENT