Ominayak et al. v. Lubicon Lake Indian Nation, (2000) 185 F.T.R. 33 (TD)

• Judge: Reed, J.
• Court: Federal Court (Canada)
• Case Date: February 09, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 185 F.T.R. 33 (TD)

Ominayak v. Lubicon Lake Nation (2000), 185 F.T.R. 33 (TD)

MLB headnote and full text

Temp. Cite: [2000] F.T.R. TBEd. MR.065

Michael Ominayak, James Ominayak, Betsy Ominayak, Paul Ominayak, Kim Ominayak, Edna Ominayak, Denise Ominayak, Violet Ominayak, Trudy Whitehead, Veronica Whitehead, Marina Cardinal, Nora Laboucan, June Ominayak, Ida Christain, Harvey Rivard, Gloria Ominayak, Gladys Calliou, Martha Ominayak, Edith Rivard, Peter Calliou, Sonia Hamelin, Lorna Hamelin, Elsie Hamelin, Lori Auger, Lorna Verhage, Delma Supervault, Marlene Supernault, Dennis Laboucan, Helen Calliou, Marina Calliou (Gladue), Billy Joe Laboucan, Barb Ominayak, Juanita Laboucan, Kenny Laboucan, Yvonne Buc, Richard Supernault, Darcy Ominayak, Viola Supernault, Verna Supernault, Isabel Supernault, August Supernault, Brian Supernault, Melvin Ominayak, Lisa Ominayak, Gerald Laboucan, Brian Laboucan, Dale LaBoucan, Ramona Laboucan, Ralph Laboucan and Corrine Laboucan (plaintiffs/appellants) v. Sharon Venne, in her capacity as Returning Officer for the Lubicon Lake Indian Nation Election held on April 25, 1999 (defendant/respondent)

(T-875-99)

Indexed As: Ominayak et al. v. Lubicon Lake Indian Nation

Federal Court of Canada

Trial Division

Reed, J.

February 24, 2000.

Summary:

The applicants applied for judicial review of an electoral officer's decision when con­ducting the election of chief and council of an Indian nation. The electoral officer moved to: strike the applicants' judicial review application; strike out as parties those ap­plicants who had not filed affidavits; and withdraw an affidavit from the record. The applicants moved for, inter alia, the electoral officer to produce the band membership list.

The Federal Court of Canada, Trial Divi­sion, dismissed the electoral officer's motion and ordered the electoral officer to produce the band membership list.

Administrative Law - Topic 3345

Judicial review - General - Practice - Af­fidavit evidence - [See Practice - Topic 861 and Practice - Topic 3689 ].

Administrative Law - Topic 3357

Judicial review - General - Practice - Inter­locutory proceedings to strike judicial review application - [See Practice - Topic 861 and both Practice - Topic 2242 ].

Practice - Topic 861

Parties - Striking out parties - General - The applicants applied for judicial review of an electoral officer's decision when conducting the election of chief and coun­cil of an Indian nation - The electoral officer moved to strike those applicants who did not file affidavits in support of the judicial review application - The Federal Court of Canada, Trial Division, found this argument to be without merit - A person who filed an application for judicial review did not have to file affidavits - The focus in a judicial review application was on the validity of the decision that was the subject of the judicial review - See paragraph 7.

Practice - Topic 2242

Pleadings - Striking out pleadings - Ap­peals, applications, or originating motions -The applicants applied for judicial review of an electoral officer's decision when conducting the election of chief and coun­cil of an Indian nation - The electoral officer moved to strike the applicants' judicial review application because, inter alia, the application did not contain a precise statement of the relief sought as required by Federal Court rule 301(d) - The Federal Court of Canada, Trial Divi­sion, held that failing to identify the reme­dy sought in the application was a defect that the court would allow to be corrected under rule 49(b) - The remedy sought was never in doubt - The defect existed since the application was filed - The electoral officer responded to the application with­out concern for the defect - The elector officer was not prejudiced and the defect appeared to be a clerical oversight - See paragraph 4.

Practice - Topic 2242

Pleadings - Striking out pleadings - Ap­peals, applications, or originating motions -The applicants applied for judicial review of an electoral officer's decision when conducting the election of chief and coun­cil of an Indian nation - The electoral officer moved to strike the applicants' judicial review application because, inter alia, no practical consequences could flow from quashing the decision - The alleged five people not allowed to vote could not affect the election given the successful candidates were elected by more than five votes - The Federal Court of Canada, Trial Division, held that this was a matter for the trial judge hearing the application on the merits - The court stated "[t]here is authority that the proper way to contest an application is to appear and argue at the hearing of the application rather than bringing a motion to strike." - See para­graphs 5 and 6.

Practice - Topic 2494

Writ of summons, endorsements, originat­ing summons and originating notices - Originating notices - Striking out - [See Practice - Topic 861 and both Practice - Topic 2242 ].

Practice - Topic 3689

Evidence - Affidavits - Use of - With­drawal of - The applicants applied for judicial review of an electoral officer's decision when conducting the election of chief and council of an Indian nation - The electoral officer's counsel moved to with­draw an affidavit from the record because he did not intend to rely on it as part of his argument and he considered that it added nothing to his client's position - The Federal Court of Canada, Trial Division, refused to grant an order permitting with­drawal of the affidavit - The withdrawal was clearly sought to withdraw from the record relevant evidence that had been filed - Not only would withdrawal prevent cross-examination, the withdrawal appeared to be part of a strategy to limit the ap­plicants' access to relevant information - See paragraphs 9 to 14.

Practice - Topic 4572

Discovery - What documents must be produced - Documents in possession or power of a party - The applicants applied for judicial review of an electoral officer's decision when conducting the election of chief and council of an Indian nation - The applicants moved for the electoral officer to produce the band membership list as it existed on a certain date - The electoral officer asserted that she should not be required to produce a copy of the band membership list as it existed on the certain date because she never had it in her pos­session - The Federal Court of Canada, Trial Division, held that the electoral of­ficer must produce the band membership list as it existed on a certain date - The record disclosed that she relied on such a list in deciding who was eligible to vote and who was not, which was in issue in this application for judicial review - See paragraphs 15 to 25.

Practice - Topic 4573

Discovery - What documents must be produced - Documents relating to matters in issue - [See Practice - Topic 4572 ].

Cases Noticed:

Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588; 176 N.R. 48; 58 C.P.R.(3d) 209 (F.C.A.), refd to. [para. 5].

Pharmacia Inc. et al. v. Canada (Minister of National Health and Welfare) - see Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al.

Association of Canadian Distillers v. Can­ada (Minister of Health) (1998), 148 F.T.R. 215 (T.D.), refd to. [para. 6].

Lazar v. Canada (Attorney General) et al., [1998] F.T.R. Uned. 352 (T.D.), refd to. [para. 6].

Agawa v. Hewson - see Agawa v. Batche­wand Indian Band.

Agawa v. Batchewand Indian Band, [1998] F.T.R. Uned. 357 (T.D.), refd to. [para. 6].

Merck Frosst Canada Inc. et al. v. Apotex Inc. et al. (1997), 128 F.T.R. 222 (T.D.), refd to. [para. 6].

Nelson v. Commissioner of Corrections (Can.) et al. (1996), 206 N.R. 180 (F.C.A.), refd to. [para. 7].

Canada (Minister of Citizenship and Im­migration) v. Chak, [1999] F.T.R. Uned. 318 (T.D. Protho.), refd to. [para. 7].

Bhatnager v. Minister of Employment and Immigration et al., [1986] 2 F.C. 3; 2 F.T.R. 18 (T.D.), consd. [para. 9].

Syntex Inc. et al. v. Canada (Minister of National Health and Welfare) et al. (1995), 94 F.T.R. 215 (T.D.), consd. [para. 12].

R.O.M. Construction Ltd. v. Heeley et al. (1982), 46 A.R. 366 (Q.B.), refd to. [para. 12].

Canada (Attorney General) v. Information Commissioner (Can.) et al., [1998] 1 F.C. 337; 135 F.T.R. 254 (T.D.), refd to. [para. 17.].

Canada Post Corp. v. Public Service Al­liance of Canada et al. (1999), 164 F.T.R. 288 (T.D.), refd to. [para. 17].

Brychka v. Canada (Attorney General) (1998), 141 F.T.R. 258 (T.D.), refd to. [para. 17].

Beno v. Letourneau, J., et al. (1997), 130 F.T.R. 183 (T.D.), refd to. [para. 17].

Veale v. Minister of National Revenue (1998), 143 F.T.R. 33 (T.D.), refd to. [para. 17].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al. (1996), 90 F.T.R. 241; 67 C.P.R.(3d) 362 (T.D.), refd to. [para. 17].

Authors and Works Noticed:

Sgayias, Kinnear, Rennie, Saunder, Federal Court Practice 2000, pp. 153, 506, 507 [para. 5].

Counsel:

Richard Gariepy, for the applicant;

Ronald Johnson, for the respondent.

Solicitors of Record:

Richard Gariepy, Edmonton, Alberta, for the applicant;

Roddick & Johnson, Edmonton, Alberta, for the respondent.

This matter was heard at Edmonton, Alberta, on February 9, 2000, before Reed, J., of the Federal Court of Canada, Trial Division, who delivered the following judg­ment on February 24, 2000.