ADMINISTRATIVE LAW |
Judicial Review |
Kalke v. Canada
T-1948-99
2001 FCT 251, O'Keefe J.
27/3/01
9 pp.
Motion for order pursuant to Federal Court Act, s. 18.4(2) to treat, proceed with application for judicial review as action--Judicial review application seeking to review detention order dated May 14, 1999 pursuant to which applicant's vessel detained on ground unsafe--Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (C.A.) holding s. 18.4(2) should be used only where facts cannot be satisfactorily established, weighed through affidavit evidence; complexity of factual, legal issues alone irrelevant; key test whether affidavit evidence inadequate--Respondents submitting credibility of witnesses important issue, but not indicating which witness's credibility in question, or what portion of testimony cause for concern--Issue of credibility sufficient to require conversion of application to action not established--Neither facts nor legal issues complex--In any event complexity of legal issues alone not relevant consideration as, if complex, would be so whether application or action--Charter issues not requiring trial where factual basis can be established by affidavits: Macinnis--No reason to believe factual basis for Charter arguments cannot be established by affidavit evidence--Affidavit evidence not inadequate to establish facts necessary to determine issue--No need for viva voce evidence--Matter should not be unnecessarily delayed by converting application for judicial review into action--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.4(2) (as enacted by S.C. 1990, c. 8, s. 5)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].