Various motions
Plaintiff's motions filed Dec 14, 2012
On December 14, 2012, the plaintiff filed a Notice of Motion seeking disclosure of four key documents, seeking the court's assistance in equalising somewhat the power and resource imbalance in the proceeding, and asking that the proceeding be dealt with under the simplified action rules of the Federal Court.
Defendant's motions filed Dec 27, 2013
The defendant filed a Notice of Motion seeking four things:
1. Dismissal of the action, on the grounds that the matter was something for Parliament to deal with;
2. Alternatively, stay (suspension) of the action to permit the Integrity Commissioner to deal with the matter;
3. In the further alternative, the striking out of major swatches of the statement of claim on the grounds that they disclosed solicitor-client privileged matters to which the defendant could not respond; and
4. Costs on a solicitor and own client basis.
On February 22, 2013, the defendant abandoned all his motions.
Plaintiff's further motions filed Nov 13, 2013
On November 13, 2013, the plaintiff filed a further notice of motion relating to discovery of documents and examination for discovery. The motions were originally scheduled to be argued on January 29, 2014, in Vancouver, BC, but the hearing was postponed. The motion was heard on Monday and Tuesday, October 20 and 21, 2104 at the Federal Court in Ottawa, ON. Here is the plaintiff's Notice of Motion:
Notice of Motion
What happened with regard to the plaintiff's and defendant's motions set for hearing October 20 and 21, 2014
Regarding discovery
Counsel for the parties reached agreement on a Statement of Agreed Facts that made it unnecessary to proceed with either the plaintiff's or defendant's motions relating to better discovery. This statement has been filed with the court and is a public document. Click on this link to see a copy.
Regarding the order that the AG pay for legal counsel for the plaintiff
This motion too was settled by agreement between the parties through their counsel. The court has made an order amending the order of Mr. Justice Noël. The essence of the order is that the AG will continue to pay for legal counsel for the plaintiff, but now a budget is in place for this legal representation (a budget that the court may vary on further application, if one is made).
The effect of the resolution of these motions is, as the plaintiff sees it, that the parties can move to trial so that the principal issue in this action can be resolved: a) what do the three provisions relating to examination of bills, proposed regulations and made regulations require?; and b) is the manner in which these provisions are performed by the Minister and Deputy Minister and by lawyers of the Department of Justice acting in their names or in their support consistent with what these provisions require?
Plaintiff's motions filed Dec 14, 2012
On December 14, 2012, the plaintiff filed a Notice of Motion seeking disclosure of four key documents, seeking the court's assistance in equalising somewhat the power and resource imbalance in the proceeding, and asking that the proceeding be dealt with under the simplified action rules of the Federal Court.
- Plaintiff's Motion Record: Notice of Motion, Affidavit, Representations, and case materials filed December 14, 2012
Further representations of plaintiff filed January 11, 2013, incl. arguments on the interpretation of the examination provisions
The defendant filed with the court and agreed to make public redacted versions of the four documents sought by the plaintiff on February 22, 2013. Here are those redacted documents:
Excerpts from Statutory Examination Responsibilities and Legal Risk Management in Drafting Services
Excerpts from Legal Risk Management in the Public Law Sector
Excerpts from In Our Opinion
Excerpts from Effective Communication of Legal Risk including the following passage setting out the categories to be used in describing the legal risk of a successful court challenge to a legislative measure:
Risk Levels:
1. Very Low (0-20%) – The likelihood of a successful challenge to the measure is remote. In other words, the likelihood of a successful challenge runs from non-existent to insignificant.
2. Low (21-40%) – Proceeding with the measure entails some likelihood of a successful challenge, but the measure is likely to be sustained in the event of a court challenge. The likelihood is beyond the minimal range but, in terms of probabilities, the measure is more likely than not to survive the challenge.
3. Medium (41-60%) – The likelihood falls in to the middle zone where the prospects of a successful vs. unsuccessful challenge are evenly balanced.This may be due to uncertainty in the law or missing facts. Alternatively, it may occur where it is difficult to determine the weight that a court would give to the evidence or where the strengths and weaknesses of the case appear relatively evenly balanced.
4. High (61-80%) – It is more likely than not that the challenge to the measure will be successful. Connotes a condition of probable invalidity of the measure.
5. Very High (81-100%) – The likelihood of a successful challenge is almost certain.
5(a) Minister's Statutory Obligation – This is engaged where the level of likelihood is at the far end of the fifth range and is due to manifest inconsistency between proposed legislation and the Charter. In such a case, the measure is manifestly unconstitutional, and no credible ( i.e.,reasonable and bona fide) argument exists in support of it, such that the Minister's statutory obligation to issue a report to the House of Commons is engaged. ... [emphasis added]
The court also ordered the defendant to pay for legal counsel for the plaintiff and with all parties' agreement ordered that the proceeding be dealt with as a simplified action.
Defendant's motions filed Dec 27, 2013
The defendant filed a Notice of Motion seeking four things:
1. Dismissal of the action, on the grounds that the matter was something for Parliament to deal with;
2. Alternatively, stay (suspension) of the action to permit the Integrity Commissioner to deal with the matter;
3. In the further alternative, the striking out of major swatches of the statement of claim on the grounds that they disclosed solicitor-client privileged matters to which the defendant could not respond; and
4. Costs on a solicitor and own client basis.
On February 22, 2013, the defendant abandoned all his motions.
Plaintiff's further motions filed Nov 13, 2013
On November 13, 2013, the plaintiff filed a further notice of motion relating to discovery of documents and examination for discovery. The motions were originally scheduled to be argued on January 29, 2014, in Vancouver, BC, but the hearing was postponed. The motion was heard on Monday and Tuesday, October 20 and 21, 2104 at the Federal Court in Ottawa, ON. Here is the plaintiff's Notice of Motion:
Notice of Motion
What happened with regard to the plaintiff's and defendant's motions set for hearing October 20 and 21, 2014
Regarding discovery
Counsel for the parties reached agreement on a Statement of Agreed Facts that made it unnecessary to proceed with either the plaintiff's or defendant's motions relating to better discovery. This statement has been filed with the court and is a public document. Click on this link to see a copy.
Regarding the order that the AG pay for legal counsel for the plaintiff
This motion too was settled by agreement between the parties through their counsel. The court has made an order amending the order of Mr. Justice Noël. The essence of the order is that the AG will continue to pay for legal counsel for the plaintiff, but now a budget is in place for this legal representation (a budget that the court may vary on further application, if one is made).
The effect of the resolution of these motions is, as the plaintiff sees it, that the parties can move to trial so that the principal issue in this action can be resolved: a) what do the three provisions relating to examination of bills, proposed regulations and made regulations require?; and b) is the manner in which these provisions are performed by the Minister and Deputy Minister and by lawyers of the Department of Justice acting in their names or in their support consistent with what these provisions require?