A-367-76
B. Keith Penner, Norman Cafik, Harry Assad and
the Northwestern Ontario Municipal Association
(Applicants)
v.
The Electoral Boundaries Commission for the
Province of Ontario and the Representation Com
missioner for Canada (Respondents)
Court of Appeal, Jackett C.J.—Ottawa, July 8,
1976.
Practice—Section 28 application to review and set aside
report of Electoral Boundaries Commission for Ontario—
Consent application to determine "record"—Federal Court
Rules 324, 1402.
A section 28 application was filed to review and set aside the
report of the Electoral Boundaries Commission for Ontario.
This was a consent application to determine, under Rule
1402(3) the "record".
Held, the application is dismissed with leave to reapply. It
appears that the Commission has ceased to exist; it cannot,
then, be the source of the "material in the case", as defined by
Rule 1402(1) or of the "copies" of the material, as contemplat
ed by Rule 1402(3). Ordinarily, a consent order will be made
without inquiry into the merits. Here, there were two aspects
concerning which the Court would require supporting material.
First, as the section 28 application concerns a "report" of
apparent public importance, the Court should be satisfied that
all persons entitled to be parties to the proceeding are parties to
the consent, or have been given an opportunity to be represent
ed in the proceeding and have not taken advantage of it.
Second, as the Commission is now apparently non-existent and
cannot provide the usual authentication, the Court should have
assurance that the "case" to be determined by the order will
consist of properly authenticated documents. Both matters call
for supporting affidavits under Rule 319(2). And, while the
filing of an explanatory letter by counsel may not have been
required by Rule 324 where there was an obviously adequate
consent, here, it would have been helpful.
APPLICATION in writing under Rule 324.
SOLICITORS:
Gowling & Henderson, Ottawa, for
applicants.
Hewitt, Hewitt, Nesbitt, Reid, McDonald &
Tierney, Ottawa, for respondents.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is a consent application in
writing (Rule 324) to determine, under Rule
1402(3), the "Record" in this section 28
application.
The section 28 application, which was filed on
May 21, 1976, is to review and set aside "a
decision or order entitled Report of the Electoral
Boundaries Commission for the Province of
Ontario, delivered on the 13th day of May 1976
under file number R670 (Ont.) by the Representa
tion Commissioner".
Rule 1402(1) provides that a section 28 applica
tion shall be decided on a "case" consisting, sub
ject to paragraph (2) thereof, 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.
Rule 1402(3) reads:
(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 (I), 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.
This application is made under Rule 1402(2),
which reads:
(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 ).
It would appear from a review of the Court's file
that the Commission whose "Report" is the sub
ject matter of the section 28 application has ceased
to exist. That Commission cannot, therefore, be
the source of the "material in the case" as defined
by Rule 1402(1), or of "copies" of that material,
as contemplated by Rule 1402(3).
By letter dated June 11, 1976, the solicitors for
the "Respondents" wrote a letter to the Adminis
trator of the Court reading as follows:
Further to your letter of May 25th, 1976 in the above-
referenced matter addressed to Mr. J. L. Roy, I am forwarding
to you four copies of the following documents pursuant to Rule
1402(1) and (3) of the Federal Court Rules:
1. The Canada Gazette Part 1, Extra No. 44 Volume 109
dated at Ottawa on Tuesday, August 19, 1975;
2. Transcripts of Testimony given during the hearings of the
Electoral Boundaries Commission for the Province of
Ontario;
3. Report of the Electoral Boundaries Commission for the
Province of Ontario, 1976, dated February 27, 1976;
4. Letter dated February 27, 1976 from the Representation
Commissioner to the Speaker of the House of Commons
forwarding to him a certified copy of the report of the
Electoral Boundaries Commission for the Province of
Ontario, 1976;
5. Letter dated April 12, 1976 from the Speaker of the
House of Commons referring back the report of the Electoral
Boundaries Commission for the Province of Ontario, 1976 to
the Representation Commissioner;
6. Amended report of the Electoral Boundaries Commission
for the Province of Ontario, dated May 12, 1976;
It is not evident how the "Commission" named as a
respondent can be represented by solicitors if, indeed, it has
ceased to exist.
7. Letter dated May 13, 1976 from the Representation
Commissioner to the Speaker of the House of Commons
returning to him a certified copy of the report of the Elector
al Boundaries Commission for the Province of Ontario and
amendments thereto.
We are also enclosing herewith a certification of the above-
mentioned copies from the administrator of the Representation
Commissioner. I trust this is all that you require. If we can be
of any further assistance, please let me know.
A letter dated June 22, 1976, addressed to the
Court on letterhead entitled "Office of the
Representation Commissioner" and signed by Mr.
J. L. Roy, as "Administrator", reads as follows:
Transmitted herewith are photocopies of the following docu
ments in sextuplicate:
1. The Canada Gazette Part 1, Extra No. 7, Volume 109
dated February 28, 1975, containing the appointment of
members to Federal Electoral Boundaries Commissions.
2. House of Commons Debates: March 26, 1976: Pages
12204 and 12205.
3. House of Commons Debates: April 1, 1976: Pages 12389,
90 and 91.
4. House of Commons Debates: April 2, 1976: Pages 12411
and 12.
5. House of Commons Debates: April 5, 1976: Pages 12446
to 12493 incl.
6. House of Commons Debates: April 6, 1976: Pages 12516
to 12533 incl.
I certify that the documents listed above are to the best of
my knowledge true and correct copies of the original
documents.
There is a further letter to the Administrator of
the Court from the solicitors for the "Respond-
ents", bearing date June 23, 1976, which reads:
Further to my letter of June 11, 1976 I am forwarding to you
four copies of the following documents which counsel for the
applicants and ourselves have agreed should also be included in
the record of the above-referenced proceeding:
1. The Canada Gazette Part 1, Extra No. 7, Volume 109
dated at Ottawa on February 28, 1975 containing the procla
mation establishing the Electoral Boundaries Commission for
the Province of Ontario;
2. House of Commons Debates for Friday, March 26, 1976,
pages 12204 and 12205;
3. House of Commons Debates for April 1, 1976, pages
12389 to 12391;
4. House of Commons Debates for April 2, 1976 pages
12411 and 12412;
5. House of Commons Debates for April 5, 1976, pages
12446 to 12493;
6. House of Commons Debates for April 6, 1976, pages
12516 to 12533.
We are also enclosing herewith a certification of the above-
mentioned copies from the Administrator of the Representation
Commissioner.
(There are on the Court file documents that
appear to correspond to the material referred to in
the aforesaid letters but there is nothing, as far as
I can see, to establish or indicate that such docu
ments are what they appear to be.)
The notice of motion now under consideration
was filed on June 30 last and reads, in part:
TAKE NOTICE THAT an application will be made by the
parties herein jointly, under the provisions of Rule 324, to have
the Record in this Motion comprise the material set out in the
Consent to Contents of Record filed herewith.
The notice of motion is signed by solicitors for the
applicant and the "Respondents" and is based on a
consent, also signed by them, the body of which
reads:
The parties, by their solicitors, hereby Consent to the follow
ing Contents of the Record for this action:
1. Proclamation dated February 28, 1975, establishing the
Electoral Boundaries Commission for the Province of
Ontario.
2. Document published as Canada Gazette Extra No. 44,
dated Tuesday, August 19, 1975, and as advertisement in
various newspapers.
3. Record of Submissions made to the Electoral Boundaries
Commission of the Province of Ontario at Public Sittings of
the Commission.
4. Document entitled "Report of the Electoral Boundaries
Commission for the Province of Ontario 1976", issued on or
about February 27, 1976.
5. Letter dated February 27, 1976 from the Representation
Commissioner to the Speaker of the House of Commons
forwarding to him a certified copy of the report of the
Electoral Boundaries Commission for the Province of
Ontario, 1976.
6. House of Commons Debates for Friday, March 26, 1976,
pages 12204 and 12205.
7. House of Commons Debates for April 1, 1976, pages
12389 to 12391.
8. House of Commons Debates for April 2, 1976, pages
12411 and 12412.
9. House of Commons Debates for April 5, 1976, pages
12446 to 12493.
10. House of Commons Debates for April 6, 1976, pages
12516 to 12533.
11. Letter dated April 12, 1976 from the Speaker of the
House of Commons to the Representation Commissioner.
12. Letter dated May 13, 1976 from the Representation
Commissioner to the Speaker of the House of Commons.
13. Document entitled "Electoral Boundaries Commission
for Ontario" dated May 12, 1976, and comprising a minority
report dated May 10, 1976.
Ordinarily, a consent order will be made by the
Court, as such, without inquiry into the merits. In
this case, however, there are two aspects of the
matter concerning which, as it seems to me, the
Court requires supporting material, viz:
(a) as the section 28 application concerns a
"Report" of apparent public importance, the
Court should be satisfied that all persons who
are entitled to be parties in the proceeding are
parties to the consent or have been given an
opportunity to be represented in the proceeding
and have not taken advantage of the
opportunity, 2 and
(b) as the Commission that made the "Report"
under attack is apparently non-existent, and
cannot, therefore, provide the usual authentica
tion for the material constituting the case, the
Court should have assurance that the "Case" to
be determined by the order will consist of docu
ments that have been properly authenticated.
Both of these matters, in my view, call for support
ing affidavits under Rule 319(2); and I should
have thought that the various items in the consent
should refer to material duly authenticated and
filed as exhibits to such an affidavit or otherwise
placed before the Court in some manner contem
plated by the Rules. (I do not know by what
authority the material referred to above was
placed on the Court file; and, if it is desired to
withdraw it so that it may be used as exhibits to
supporting affidavits, leave for such withdrawal is
hereby granted.)
I should also say that I am not familiar with the
statutory law underlying the "Report" that is the
subject of the section 28 application, and that
counsel, in presenting this application, have not
filed any explanatory letter with reference to what
2 This would ordinarily require a supporting affidavit as to
the nature of the proceedings giving rise to the Report attacked,
as to the persons who participated therein and as to service of
the section 28 application.
is involved. This may not be required by Rule 324
where there is a consent that is obviously ade
quate, but, in this instance, it would have been
helpful.
The application referred to in the beginning of
these reasons is dismissed with leave to re-apply.
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.