A-823-77
AGIP S.p.A. (Applicant)
v.
Atomic Energy Control Board, Minister of
Energy, Mines and Resources, Minister of Indus
try, Trade and Commerce, Secretary of State for
External Affairs and Madawaska Mines Limited
(Respondents)
Court of Appeal, Jackett C.J.—Ottawa, February
15, 1978.
Practice — In a s. 28 application, motion in writing under
Rule 324 that the s. 28 application be consolidated with
another — Second order sought, under Rule 1402(2), to vary
the case upon which s. 28 application to be decided by direct
ing evidence on material facts be received viva voce or by
affidavit — Final order sought for leave to file additional
motion for further or better production within 10 days of
receipt of material in the case and extension of applicant's
period for filing memorandum of points to be argued —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1),(2)
— Federal Court Rules 324, 1402.
This is an application in writing under Rule 324 made by
way of a document seeking one order with reference to both
this section 28 application, and another. The first order sought
by the notice of motion that relates to this section 28 applica
tion is that the two section 28 applications be consolidated and
continued under one style of cause. The next order sought is an
order pursuant to Rule 1402(2) varying the case upon which
the section 28 application is to be decided, by directing that
evidence on the facts material to the issues be received by oral
examination of witnesses in Court, or alternatively, that such
evidence be received by affidavit. The final order sought is one
granting leave to file a further motion for directions as to
further or better production of materials by respondents within
10 days of receipt of the material in the case, and an extension
of the period within which the applicant is required to file a
memorandum of points to be argued.
Held, the application is dismissed. Section 28(1) and (2) of
the Federal Court Act contemplates a separate notice in respect
of each decision or order that is being attacked. Confusion and
delay are created by attempting to deal with several section 28
matters in one proceeding. Counsel and the Court are less likely
to fall into error or overlook some matter that requires to be
dealt with if each decision or order attacked is the subject of a
separate notice. This does not mean that (1) an order cannot be
made permitting all or part of the case book prepared for one
section 28 application to be used for the other, (2) a party
cannot, by his Rule 1404 memorandum in relation to one
section 28 application, adopt without repetition part or all of
his memorandum in relation to the other, (3) an order cannot
be made for the hearing of one of the applications immediately
after the other. The application for the second order constitutes
a proposal for an innovation in the practice in connection with
section 28 applications, which, if adopted, would largely destroy
their usefulness. Attacks on orders or decisions, generally
speaking, may be decided on material described in Rule 1402,
with attacks based on principles of natural justice or jurisdic
tion occasionally requiring additional evidence. A precisely
defined issue, arising in the event of a controversy concerning
some facts in respect of which a trial might be directed under
Rule 327, is conceivable. The final order sought is premature.
MOTION in writing under Rule 324.
COUNSEL:
W. L. N. Somerville, Q.C., for applicant.
G. W. Ainslie, Q.C., for Attorney General of
Canada.
C. E. Woollcombe, Q.C., for respondent
Madawaska Mines Ltd.
SOLICITORS:
Borden & Elliot, Toronto, for applicant.
Deputy Attorney General of Canada for
Attorney General of Canada.
Day, Wilson, Campbell, Toronto, for respond
ent Madawaska Mines Ltd.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is an application in writing
under Rule 324 (a copy of which is set out in the
appendix to these reasons) made by way of a
document which seeks one order with reference to
both this section 28 application and the section 28
application on Court file A-844-77 (hereinafter
referred to as the "other section 28 application").'
II know of no authority for making a single motion in two
section 28 matters. It is, in my view, confusing and should not
be permitted. I am treating this motion as a separate motion for
each file. I propose to deal with such motions in these reasons
in so far as the subject matter relates to this file.
This section 28 application, which was filed on
November 3, 1977, is for
(a) an order setting aside "the decision made by
the respondent Ministers and embodied in the
Direction given by the respondent Minister of
Energy, Mines and Resources to the respondent
Board ... to the effect that export licences not
be issued by the respondent Board to the appli
cant in respect of sales of uranium oxide to the
applicant by Madawaska Mines Limited in 1977
if such sales took place at a price less than
$42.00 per pound," and
(b) an order setting aside "the decision made by
the respondent Board . .. adding to the order or
decision of the Board communicated in its letter
of June 14, 1977 to Nels W. Stalheim, a further
term to the effect that the Board would not
permit a transfer of possession from Madawaska
Mines Limited to the applicant ... of uranium
oxide purchased by the applicant ... during
1977 unless ... the sum of $42.00 per pound
was paid ... for such uranium oxide as a condi
tion precedent to the issuance of an export
licence".
On November 14, 1977, the other section 28
application was filed (A-844-77) seeking an order
setting aside "the decision made by the Atomic
Energy Control Board contained in its letter dated
the 14th day of June, 1977, by which The ...
Board rejected the World Market Value set for
1977 deliveries of uranium to be sold to the appli
cant by Madawaska Mines Limited, pursuant to a
Purchase Agreement dated the 18th day of Janu-
ary, 1974 ...".
The first order sought by the notice of motion
that relates to this section 28 application is that
the two section 28 applications be consolidated and
continued under one style of cause. In relation to
this, the supporting letter says:
(b) Consolidation.
As we advised you in our letter of November 3, 1977, and as
Mr. Justice Urie noted in the endorsement on his order grant
ing an extension of the time for bringing the Section 28
application in respect of the June 14, 1977, decision, the issues
in these two Section 28 applications are closely related, the
October 31, 1977 decision being in effect an addition of further
terms to the earlier decision. An important issue common to
both is the effect of the letter of April 2, 1975. It is submitted
that, in fulfillment of the Court's duty under Section 28(5) of
The Federal Court Act to hear Section 28 applications "with-
out delay", and in the interests of achieving a speedy resolution
of the various issues raised in these two Section 28 applications,
they should be consolidated.
There is no express provision in the Court's Rules providing
for consolidation of Section 28 applications, comparable to the
former Rule 155A of the Exchequer Court Rules, which pro
vided for consolidation of actions. It is submitted, however, that
the Court has jurisdiction under Rule 5 to make such an order,
Rule 319 of the Rules of Practice of the Supreme Court of
Ontario providing an analogy.
Section 28 (1) of the Federal Court Act 2 pro
vides for an application to set aside "a decision or
order" and section 28(2) requires "Any such
application" to be made by filing "a notice". In my
view, this contemplates a separate notice in respect
of each decision or order that is being attacked. In
any event, I am of opinion that confusion and
delay are created by attempting to deal with sever
al section 28 matters in one proceeding. Counsel
and the Court are both less likely to fall into error
or overlook some matter that requires to be dealt
with if each decision or order attacked is the
subject of a separate notice. This does not mean
that
(1) an order cannot be made permitting all or
part of the case book prepared for one section 28
application to be used for the other,
(2) a party cannot, by his Rule 1404 memoran
dum in relation to one section 28 application,
adopt, without repetition, part or all of his
memorandum in relation to the other, or
(3) an order cannot be made for the hearing of
one of the applications immediately after the
other.
The next order sought is an order pursuant to
Rule 1402(2) varying the case upon which the
section 28 application is to be decided, by directing
that evidence on the facts material to the issues be
received by oral examination of witnesses in Court
or, in the alternative, that such evidence be
received by affidavit.
2 Section 28 is set out in part in the appendix.
Rule 1402 reads, in part, as follows:
Rule 1402. (1) A section 28 application shall be decided upon
a case that shall consist, subject to paragraph (2), of
(a) the order or decision that is the subject of the application
and any reasons given therefor,
(b) all papers relevant to the matter that are in the posses-
sion-or control of the tribunal,
(c) a transcript of any verbal testimony given during the
hearing, if any, giving rise to the order or decision that is the
subject of the application,
(d) any affidavits, documentary exhibits or other documents
filed during any such hearing, and
(e) any physical exhibits filed during any such hearing.
(2) Within 10 days of filing the section 28 originating notice,
in the case of the applicant, and within 10 days of being served
with that originating notice, in the case of any other person, an
application in writing, made in accordance with Rule 324, may
be made to vary the contents of the case as fixed by paragraph
(1).
(3) Unless the Court otherwise directs, of its own motion or
upon the application of an interested person, the Deputy Attor
ney General of Canada or counsel specially appointed to apply
on behalf of the tribunal, the tribunal shall, forthwith after
receipt of the section 28 originating notice, either
(a) send to the Registry of the Court all the material in the
case as defined by paragraph (1), or, if some part thereof is
not in its possession or control, the part thereof that is in its
possession or control together with a statement of the part of
the case not in its possession or control, or
(b) prepare copies of the material referred to in subpara-
graph (a) that is in its possession or control, except the
physical exhibits, duly arranged in sets and duly certified by
an appropriate officer to be correct, and send 4 copies of
each set to the Registry of the Court together with the
physical exhibits if any and a statement of the part of the
case not in its possession or control, and send one copy of the
copies and such statement to each of the interested persons.'
In relation to this part of the interlocutory
application, the supporting letter says:
(c) Application to vary case to permit oral testimony.
The representations filed by both the applicant and the
respondent on the application for an extension were directed
largely to the question whether there was an arguable case for
setting aside the June 14, 1977 decision. It is clear that one of
3 While a form letter was sent to the Board drawing its
attention to this provision on November 7 last, it would not
appear that Rule 1402(3) has been complied with as yet.
the principal questions to be determined on the Section 28
application in respect of that decision and, by extension, the
Section 28 application in respect of the October 31, 1977
decision, will be the nature and effect of the letter of April 2,
1975; the applicant has described it as being "a conditional
licence" (page 3 of the letter of representations dated October
13, 1977), while the respondent has described it as being
"nothing more than a qualified expression of a future inten
tion" (paragraph 7 of the representations on behalf of the
respondent). The applicant will argue that the contract review
which culminated in that letter was part of the process of
application for export licences in respect of uranium sales made
under the contract; the respondent has filed the affidavit of its
solicitor deposing, on the basis of his review of the respondent's
files, that no application under section 7(4) of the Atomic
Energy Control Regulations has been made by or on behalf of
the applicant prior to April 2, 1975. The applicant will argue in
the alternative that the process which culminated in the letter
of April 2, 1975 was represented by ministerial statements and
by direct representations to the applicant, both orally and in
writing, to be a lawful and necessary part of the process of
obtaining export licences, and that the respondent Board and
Ministers are therefore estopped from denying the binding legal
nature of that letter.
In support of those arguments, the applicant would seek to
introduce evidence as to the discussions and correspondence
during and after the contract approval process, and the
representations, both express and by conduct, made by the
respondent Board and Ministers with respect to the nature of
that process. It is submitted that such evidence should be
introduced by viva voce testimony, so that the somewhat com
plex course of events can be explicated by examination and
cross-examination, and so that any conflicts in testimony may
be resolved by the Court's own assessment of credibility of the
witnesses. Should the Court decline to permit such viva voce
testimony, we would ask that affidavit evidence be permitted as
an imperfect substitute.
The nature of the letter of April 2, 1975 is also a relevant
question in the Section 28 application in respect of the October
31, 1977 decision, since, if that letter has the binding effect
attributed to it by the applicant, the decision of the respondent
Ministers to intervene to fix a price under the contract, and the
Direction and Board decision implementing that decision, were
made unlawfully.
The applicant has advanced at pages 6 and 8 of its represen
tations dated October 13, 1977, and intends to advance on the
Section 28 application in respect of the June 14, 1977 decision,
the alternative argument that, even if the respondent Board had
power to review a price set under the contract, it exceeded its
jurisdiction and erred in law in conducting that review, by
conducting an enquiry de novo, by considering evidence not
communicated to the affected parties, and by basing its deci
sion on extraneous considerations. It is submitted that, given
the absence of comprehensive written reasons for the Board's
decision, and the obscurity of the description of the terms of
reference, evidence and procedure of the "review" on which
that decision was based, oral evidence as to the manner in
which the respondent Board arrived at its decision would assist
the Court in determining the validity of that decision.
In my experience, since 1971, this is a most
unusual application. It constitutes, moreover, in
my opinion, a proposal for an innovation in the
practice in connection with section 28 applications,
which, if adopted, would largely destroy their use
fulness. Generally speaking, attacks on orders or
decisions may be decided on the material described
in Rule 1402. Attacks based on the principles of
natural justice or jurisdiction occasionally require
additional evidence. Heretofore, it has been found
that such additional evidence may be added to the
case in the form of existing affidavits to which
have been attached as exhibits any documents or
transcripts that are pertinent. While I find the
concept of oral evidence before a three member
court quite unacceptable, I can conceive of an
"issue" arising in the event of a controversy con
cerning such facts in respect of which a trial might
be directed under Rule 327 but, in my view, it
would have to be a very precisely defined issue and
there would have to be careful consideration given
to the directions necessary to expedite the matter.
While I do not pretend to understand what the
issues are in respect of which the applicant seeks to
bring evidence, I must say the submissions in
support thereof raise a question in my mind as to
whether there is here any decision or order within
section 28 4 and I raise for the consideration of the
parties whether there should not be a motion to
quash so as to have that question settled before the
matter becomes any further involved in proceed
ings that may not be appropriate to section 28
matters. It may be that it is a matter for an action
for a declaration where the plaintiff is required to
set out the facts upon which he relies and is then
entitled to discovery.
The final order sought is one "granting leave to
the applicant to file, within ten days after receipt
by the applicant of a copy of the material in the
case as defined by paragraph (1) of Rule 1402, a
further motion for directions as to further or better
production of materials by the respondents, and
for extension of the period within which the appli
cant is required to file a Memorandum of Points to
be Argued, pursuant to Rule 1403 (1) and Rule
4 Compare Attorney General of Canada v. Cylien [1973]
F.C. 1166.
3(1)(c), and for such further or other incidental
directions varying the procedure for Section 28
applications as to this Court may seem necessary".
The application for this order would seem to be
premature.
In so far as the motion relates to this section 28
application, I am, for the above reasons, of the
view that it should be dismissed.
APPENDIX
Rule 324. (1) A motion on behalf of any party may, if the
party, by letter addressed to the Registry, so requests, and if
the Court or a prothonotary, as the case may be, considers it
expedient, be disposed of without personal appearance of that
party or an attorney or solicitor on his behalf and upon
consideration of such representations as are submitted in writ
ing on his behalf or of a consent executed by each other party.
(2) A copy of the request to have the motion considered
without personal appearance and a copy of the written
representations shall be served on each opposing party with the
copy of the notice of motion that is served on him.
(3) A party who opposes a motion under paragraph (1) may
send representations in writing to the Registry and to each
other party or he may file an application in writing for an oral
hearing and send a copy thereof to the other side.
(4) No motion under paragraph (1) shall be disposed of until
the Court is satisfied that all interested parties have had a
reasonable opportunity to make representations either in writ
ing or orally.
Section 28
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
(2) Any such application may be made by the Attorney
General of Canada or any party directly affected by the
decision or order by filing a notice of the application in the
Court within ten days of the time the decision or order was first
communicated to the office of the Deputy Attorney General of
Canada or to that party by the board, commission or other
tribunal, or within such further time as the Court of Appeal or
a judge thereof may, either before or after the expiry of those
ten days, fix or allow.
(5) An application or reference to the Court of Appeal made
under this section shall be heard and determined without delay
and in a summary way.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.