PRACTICE |
Crawshaw v. Canada (Attorney General)
T-2095-01
2002 FCT 732, Hargrave P.
28/6/02
5 pp.
Motion to have judicial review application dealt with in writing--Applicant, inmate at minimum security institution, having no funds to either retain lawyer or to pay for escort to, from Court for oral hearing--Fearing disadvantage in arguing in open court--Pointing out additional, needless cost to taxpayers of r. 45 order compelling Crown to bring him before Court--Motion allowed--Reasons of Muldoon J. in MacDonald v. National Parole Board, [1986] 3 F.C. 157 (T.D.) and of Gibson J. in Li v. Canada (Correctional Service) (1996), 119 F.T.R. 285 (F.C.T.D.) representing opposite ends of spectrum as to whether judicial review should be decided in writing--Muldoon J. regarded use of written submissions, in deciding judicial review matter, as akin to right, where alternative might be to either deprive prisoner of convenient access to Court or to handicap prisoner in making submissions --Gibson J. regarded dealing with judicial review in writing as exceptional procedure only to be countenanced where special circumstances--Both MacDonald, Li decided under pre-1998 Federal Court Rules, under which Court had clear discretion to determine whether nature of application such that expedient to dispose of it in writing--Federal Court Rules, 1998, r. 369(1) permitting party, in notice of motion, to request motion be decided on basis of written representations --Granting right, subject to implied ability of Court in exercising discretion to require oral hearing--R. 369(2) permitting Court to change motion in writing into oral motion, but requiring substantial evidence matter cannot be adequately disposed of in writing--Given more permissive approach in Federal Court Rules, 1998, Muldoon J.'s approach (that there should be special circumstances in order to deprive litigant of convenient access by way of applications in writing, particularly where expense, imprisonment clear factors and where ill-at-ease lay litigant may be unable to make apt, effectual oral submission) preferable--Must be compliance with procedural rules, normal requirements of decorum-- Moreover Court may require oral hearing where substantial evidence matter cannot be presented adequately in writing--Denial of written motion procedure would deprive applicant of not only convenient, meaningful access, but of any access--Federal Court Rules, 1998, SOR/98-106, rr. 45, 369.