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Date: 20260323 |
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Docket: T-1608-21 |
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Citation: 2026 FC 386 |
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Ottawa, Ontario, March 23, 2026 |
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PRESENT: The Honourable Mr. Justice Régimbald |
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BETWEEN: |
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REGROUPEMENT DES PÊCHEURS PROFESSIONNELS DU SUD
DE LA GASPÉSIE INC.
UNION DES PÊCHEURS DES MARITIMES INC. |
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Applicants |
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and |
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LISTUGUJ MI’GMAQ GOVERNMENT
LE PROCUREUR GÉNÉRAL DU CANADA
LE MINISTRE DES PÊCHES ET DES OCÉANS
LE MINISTRE DES RELATIONS COURONNE-AUTOCHTONES |
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Respondents |
ORDER AND REASONS
I. Overview
[1] The Attorney General of Canada, representing the Minister of Fisheries and Oceans Canada and the Minister of Crown-Indigenous Relations [Respondents] seek an order striking out paragraphs 98-103, 104-106, 110-113, 124, 125, 128-135, 136-140, 141-147, 148-156, 157-164, 171-174, 175-182 and exhibits OC-42, OC-44 to OC-47, OC-49, OC-50 to OC-52, OC-53, OC-54 to OC-61, OC-61.3 to OC-61.19, OC-62 to OC-64 of the Affidavit of O’Neil Cloutier [Cloutier Affidavit], exhibits CC-21, CC-23 to CC-25, CC-30, CC-35, CC-40, CC-46 to CC-54, CC-56 to CC-63, CC-67 to CC-69, CC-71 to CC-73, CC-77, CC-78, CC-81, CC-82, CC-87 to CC-89 of the Affidavit of Claire Canet [Canet Affidavit] and finally paragraphs 24, 25, 39-41, 49-78, and exhibits MM-2, MM-10, MM-11, MM-16 to MM-18, MM-20 to MM-29 of the Affidavit of Martin Mallet [Mallet Affidavit].
[2] The Respondent Listuguj Mi’gmaq Government [LMG], also respondent on the Application, supports the motion to strike of the Respondents, and also seeks the striking of paragraphs 114-115, 116-123, 126-127 and exhibits OC-12, OC-26, OC-33, OC-61.17 to OC-61.19 and OC-54 of the Cloutier Affidavit, exhibits CC-13 to CC-15, CC-17, CC-20, CC-26 to CC-29, CC-31, CC-34, CC-36, CC-39, CC-44, CC-65, CC-70, CC-74, CC-76, CC-79, CC-83 to CC-86 of the Canet Affidavit, paragraphs 34-38, 42-48 and exhibits MM-12, MM-14, MM-15, MM-19, MM-30 and MM-31 of the Mallet Affidavit.
[3] The Applicants have consented to remove paragraphs 136-140, 141-147, 148-154, 171-174 and exhibits OC-54, OC-61, OC-61.3 to OC-61.6, OC-61.8, and OC-61.17 to OC-61.19 of the Cloutier Affidavit, exhibits CC-21, CC-23-24, CC-35, CC-40, CC-46, CC-51, CC-56-58, CC-60-63, CC-68-69, CC-72-73, CC-77-78, CC-81, CC-88-89 of the Canet Affidavit, paragraphs 49-75 and exhibits MM-2, MM-17-18 and MM-20-29 of the Mallet Affidavit.
[4] For the reasons below, the motion to strike is granted in part.
II. Context
[5] The context of this Application is well explained in the reasons rendered by Justice Pentney on a previous motion related to this matter: Regroupement des pêcheurs professionnels du sud de la Gaspésie v Listuguj Mi’gmaq First Nations, 2023 FC 1206 [Regroupement des pêcheurs professionnels du sud de la Gaspésie].
[6] The Applicants are organizations representing non-Indigenous fishers in Québec and the Atlantic provinces.
[7] The Respondent LMG represents Listuguj, a Mi’gmaq community with over 4,000 members.
[8] The Attorney General of Canada appears on behalf of the two Ministers who signed the Rights Reconciliation Agreement on Fisheries [RRA] on April 16, 2021, an agreement between the LMG and the federal Crown (the Minister of Crown-Indigenous Relations (formerly known as “the Minister of Indian Affairs and Northern Development”
at the time of the agreement) and the Minister of Fisheries and Oceans). These Ministers signed the Agreement as representatives of the Crown.
[9] The RRA derives from litigation initiated by LMG and others seeking to clarify the scope of their treaty rights, the launch of a comprehensive claim by LMG asserting Aboriginal rights and title over the area, and policy efforts by the federal government to grant First Nations the right to fish for food, cultural, and ceremonial practices and integrate First Nations into the existing commercial fisheries.
[10] The RRA acknowledges that LMG has certain Aboriginal and Treaty rights concerning fisheries governance and fishing that are protected by section 35 of Part II of the Constitution Act, 1982, Schedule B, Canada Act 1982, c 11 (UK) [RSC 1985, Appendix II, No 44]. The RRA also provides a list of considerations that the Minister must consider in granting Aboriginal Communal Fishing License in respect of the LMG fishery, as well as the LMG’s obligation in relation to fisheries, compliance and enforcement.
[11] The Applicants filed a Notice of Application seeking declaratory relief to invalidate the RRA. The Applicants’ claim that the negotiation and ratification process of the RRA breached their right to procedural fairness, because the Respondents failed to include them in any consultation process prior to the ratification of the RRA.
[12] The issues relating to the Applicants’ Notice of Application and record have already been before this Court twice. On October 13, 2023, Justice Pentney struck multiple claims from the Applicants’ original Notice of Application. On June 17, 2024, Justice Lafrenière struck an amended Notice of Application that was not responsive to the Order issued by Justice Pentney and granted leave to issue another Notice of Application with some amendments.
[13] The present motion relates to the affidavits that were filed by the Applicants following the filing of the most recent amended Notice of Application. The Respondents are seeking an order of this Court striking several paragraphs of the Applicants’ affidavits as well as several exhibits.
III. Issue
[14] The only issue in this motion is whether the impugned paragraphs and/or exhibits of the Cloutier Affidavit, the Canet Affidavit and the Mallet Affidavit, should be struck prior to the hearing of the Application.
IV. Analysis
A. Principles Applicable to Motions to Strike All or Parts of Affidavits
[15] The Court has discretion to strike affidavits, or parts thereof, where they are abusive or clearly irrelevant, where they contain opinion, argument or legal conclusions, or where the Court is convinced that admissibility would be better resolved at an early stage so as to allow the hearing to proceed in a timely and orderly fashion (Canada (Attorney General) v Quadrini, 2010 FCA 47 at para 18 [Quadrini]; Canada (Board of Internal Economy) v Canada (Attorney General), 2017 FCA 43 at paras 8, 29-32 [BIE]; see also Tsleil-Waututh Nation v Canada (Attorney General), 2017 FCA 116 at para 31 [Tsleil-Waututh Nation]; Namgis First Nation v Canada (Fisheries and Oceans), 2019 FCA 149 at paras 33-36 [Namgis First Nation]).
[16] In BIE, the Federal Court of Appeal held at paragraph 29 that “the discretion to strike an affidavit or part of it should be exercised sparingly and only in exceptional circumstances”
and only “where it is in the interest of justice to do so, for example or in cases where a party would be materially prejudiced where not striking an affidavit or portions of an affidavit would impair the orderly hearing of the application”
(citing Armstrong v Canada (Attorney General), 2005 FC 1013, 141 ACWS (3d) 5 at para 40 [Armstrong]).
[17] The discretion to strike an affidavit or part thereof should be used sparingly because “applications for judicial review must quickly proceed on the merits, and the procedural impacts of the nature of a motion to strike are to delay unduly and, more often than not, needlessly, a decision on the merits.”
(BIE at para 29 citing Gravel v Telus Communications Inc., 2011 FCA 14 at para 5). Moreover, the Court must discourage motions to strike all or parts of affidavits from becoming routine (Canadian Tire Corp. Ltd. v P.S. Partsource Inc., 2001 FCA 8 (CanLII) [Canadian Tire Corp.]).
[18] A judge therefore has discretion to determine any motions brought before the hearing and is entitled to instead refer the motion to the hearing panel. That discretion is exercised under established principles including Rule 3 of the Federal Courts Rules, (SOR/98-106) [Rules], subsection 18.4(1) of the Federal Courts Act, RSC 1985, c. F-7 [Federal Courts Act] which requires that applications for judicial review be “heard and determined without delay and in a summary way”
. The Court’s exercise of discretion must also take into account judicial economy, previous court orders, the fact that an interlocutory order may allow the hearing to proceed in a more timely, orderly, organized and effective way and whether the result of the motion is relatively clear cut or obvious (“if reasonable minds might differ, the motion should be left to the panel”
) (Coldwater First Nation v Canada (Attorney General), 2019 FCA 292 at paras 9-10 [Coldwater]; McConnell v Canada (Canadian Human Rights Commission), 2004 FC 817, aff’d 2005 FCA 389; Canadian Tire Corp.; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 12 [Access Copyright]).
[19] As a result, “[t]hose embarking upon an interlocutory foray to this Court…will not often find a welcome mat when they arrive”
and the Court will only exercise its discretion to provide an advance admissibility ruling where it is clearly warranted (Access Copyright at para 11).
[20] The overarching consideration is whether it would be in the interest of justice to determine admissibility at an early stage (BIE at para 29).
[21] Nevertheless, the Court will strike an affidavit where it is “so clearly out of bounds and replete with legal opinion that it ought to be stopped in its tracks”
because it is essentially a legal opinion on the issue before the Court or when the other party is materially prejudiced and the hearing would be impaired if the affidavit is not struck (BIE at paras 30-32).
[22] In considering the validity of the evidence, the Court must be mindful that its role in judicial review is not to become a forum for fact-finding on the merits. The evidentiary record on judicial review is restricted to the evidentiary record that was before the decision maker. Evidence that was not before the decision maker and that goes to the merits of the decision is not admissible in an application for judicial review (Access Copyright at para 19).
[23] This Court “has long established that it is not proper for an applicant on judicial review to introduce evidence that was not before the decision maker in an effort to undermine a decision of the Minister”
(Citizen for My Sea to Sky v Canada (Environment and Climate Change), 2023 FC 1721 at para 54, citing Alberta Wilderness Association v Canada (Environment), 2009 FC 710 at paras 30, 34). Evidence to add, to correct, and to supplement the evidence before the Minister is simply not permissible on judicial review.
[24] There are a few exceptions to that rule. Evidence that was not before a decision maker is admissible when:
a) The evidence provides general background in circumstances where that information might assist in understanding the issues relevant to the judicial review;
b) The evidence brings to the attention of the Court procedural defects that cannot be found in the evidentiary record of the administrative decision maker, as they relate to an issue of natural justice, procedural fairness, improper purpose, or fraud; and
c) The evidence highlights the complete absence of evidence before the administrative decision maker on a particular finding.
(Access Copyright at para 20; see also Bernard v Canada Revenue Agency, 2015 FCA 263 at paras 20, 24-25, 28; Delios v Canada (Attorney General), 2015 FCA 117 at para 45; Coldwater First Nation v Canada (Attorney General), 2019 FCA 292 at paras 23-25)
[25] As stated, exceptions to the general rule apply when post-decision evidence is relevant for general context and to establish a breach of procedural fairness (Access Copyright at para 20; see also Coldwater at para 25 citing Namgis First Nation at para 10), when the nature and extent of procedural fairness owed is contingent on the importance of the decision, and its impact on the individuals affected is significant—the more important the impact, the more stringent the procedural protection is required (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 25; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 133). To the extent that post-decision evidence may establish a certain level of consequence that occurred as a result of a breach of procedural fairness, that evidence may be relevant on the issue of the level of procedural fairness owed, but also on remedial issues.
[26] In the end, as recently stated by Justice Ngo in Côté c Canada (Procureur général), 2025 CanLII 119793 (CF) at paragraph 11 [Côté] (citing Sawridge Band v Canada, 2000 CanLII 14927 (FC) [Sawridge Band]; see also Lukács v Canada (Transportation Agency), 2019 FC 1256 at para 29 [Lukács]), the fact that the vast majority of an affidavit and its exhibits are inadmissible or manifestly inappropriate does not necessarily lead to its dismissal. For example, in Sawridge Band, even if the affidavit was improper and should not have been presented to the Court because it contained allegations constituting conclusions and arguments, nearly all relating to questions of law on which the author was unqualified to comment, the Court refused to strike the affidavit because the other parties failed to adduce evidence of prejudice.
[27] In Lukács at paragraph 32 (see also Mosaic Forest Management Corporation v Canada (Attorney General), 2021 FC 1488 at para 46), Justice Kane aptly summarized the applicable principles:
a) As a general rule, an affidavit must contain relevant information that would assist the court in determining the application (Quadrini);
b) An affidavit should set out the relevant facts “without gloss or explanation”, which means without “controversial argumentation that steps over the line of permissibility” (Quadrini, Tsleil-Waututh Nation);
c) The Court may strike an affidavit, or parts thereof, where it is clearly irrelevant, abusive, contains opinion, argument or legal conclusions or where its admissibility is better resolved at an early stage to permit the application to proceed in an orderly and timely manner (Quadrini);
d) However, the discretion to strike an affidavit should be exercised sparingly and only in exceptional circumstances, i.e., where it is in the interest of justice to do so, where a party would be materially prejudiced, or where not striking an affidavit would impair the orderly hearing of the application. (BIE, Armstrong, Sawridge Band);
e) There is no requirement to cross-examine an affiant; the failure to cross-examine does not result in an admission of the truth of the allegations (Exeter v Canada (Attorney General), 2015 FCA 260, 260 ACWS (3d) 700 at para 9, Zheng v Canada (Minister of Citizenship and Immigration), 2007 FC 1311, [2007] F.C.J. No. 1686 at para 13).
[28] In this case, other than stating that they will have to invest additional effort and resources in defending the application, the Respondents did not adduce any cogent evidence of prejudice. Indeed, the Respondents will be able to file responding evidence and cross-examine the affiants. To the extent that the Respondents choose not to cross-examine the affiants, or not to cross-examine the affiants on the statements that they deem not relevant, or even provide responding evidence on these issues, the Respondents “will [not] be taken to agree with the content”
and the Court does not have to consider the paragraphs at issue as uncontroverted facts (Lukács at para 41-42). The panel hearing these consolidated applications will not be misled or swayed by argumentative statements or statements of opinion included in an affidavit (Tsleil-Waututh Nation at para 45). The application judge will be entitled to rule which parts of the affidavit or its exhibits are inadmissible or decide to give them no weight (Côté at para 15).
B. Affidavit of O’Neill Cloutier
[29] The Respondents argue that paragraphs 98-103, 104-106, 110-113, 124-125, 128-135, 155-164 and 175-182 as well as exhibits OC-42, OC-44, OC-45, OC-46, OC-47, OC-49, OC-50, OC-51, OC-52, OC-53, OC-55, OC-56, OC-57, OC-58, OC-59, OC-60, OC-62, OC-63, OC-64, OC 61.7, OC-61.9, OC-61.10, OC-61.11, OC-61.12, OC-61.13, OC-61.14, OC-61.15 of the Cloutier Affidavit should be struck because, inter alia, the statements and exhibits:
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a)are irrelevant;
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b)relate to events or documents that postdate the ratification of the RRA;
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c)constitute hearsay;
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d)bear no relation to the Crown’s procedural obligations towards the Applicants; or
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e)relate to causes of actions that were previously struck by this Court.
[30] LMG, on the related grounds, seek the striking of paragraphs 114-123, 126-127 and exhibits OC-12, OC-26 and OC-33.
[31] On a motion to strike certain evidence because it is irrelevant, the party must show that the evidence is “obviously irrelevant”
(Coldwater at para 14 citing Mayne Parma (Canada) Inc. v Aventis Pharma Inc., 2005 FCA 50, 331 N.R. 373 at para 18).
[32] As stated, the general rule is that only the evidence that was before the administrative decision maker is relevant and, thus, admissible. As a result, post-decision evidence is normally irrelevant and, thus, inadmissible (Coldwater at para 23; Access Copyright at para 19). However, an exception exists for evidence that is relevant to establish a breach of procedural fairness.
[33] While some paragraphs and some exhibits of the affidavits relate to events that occurred after the ratification of the RRA, other paragraphs are not “obviously irrelevant”
(Coldwater at para 14) and may be admissible under the exception of providing general contextual background, as well as to establish a breach of procedural fairness (Access Copyright at para 20).
[34] In my view, paragraphs 98-103 and exhibits OC-44, OC-45 and OC-46 are not “obviously irrelevant”
and ought not to be struck. Those paragraphs and exhibits pre-date the ratification of the RRA and relate to the appointment by the Respondents of a Federal Representative who consulted the parties and provided a report. The Applicants intend to rely on the evidence to establish that the RRA was signed in breach of their right to procedural fairness, including their right to be consulted prior to the ratification of the RRA. As such, those paragraphs fall within the exception of post-decision evidence to establish a deficiency in terms of procedural fairness.
[35] Indeed, post-decision evidence establishing that promises were made to the Applicants that consultation would be conducted, is admissible. That evidence may establish a reasonable expectation that consultation would be conducted and if such consultation did not occur, then a breach of procedural fairness could incur. Likewise, to the extent that post-decision evidence shows that breaches of the duty to consult were rectified, this evidence is also admissible (Coldwater at paras 27-28 citing Namgis First Nation at para 10 and Community Panel of the Adams Lake Indian Band v Adams Lake Band, 2011 FCA 37, 419 N.R. 38).
[36] On the issue of exhibits OC-44, OC-45 and OC-46, the Respondents argue that these exhibits are hearsay and bear no relationship with the Crown’s procedural obligations. I disagree. In some cases, the affidavit and exhibits set out background evidence and summarize evidence found elsewhere in order to orient the Court. This is not a hearsay use of the evidence. This use is permitted in an application for judicial review (Coldwater at para 38 citing Delios v Canada (Attorney General), 2015 FCA 117). Moreover, the Court may admit the evidence for the purpose of orienting the Court but not as evidence of the truth of any contents of which the deponent had no personal knowledge (Coldwater at para 40).
[37] In this case, the documents originate from the Government of Canada and are therefore reliable. Second, the exhibits are alleged to establish that the Government’s own Federal Special Representative recommended that consultations should be held with the Applicants prior to the ratification of the RRA. As such, the Applicants argue that the exhibits are relevant to establish a breach of procedural fairness because of the Crown’s failure to consult them.
[38] I agree with the Applicants on the relevance and reliability of the exhibits. The Federal Special Representative is in fact a government witness and nothing precludes the Crown from filing affidavit evidence of its own representative rebutting the Applicants’ statements. As in Coldwater, where a report was made to the government by Mr. Iacobucci, the evidence was admissible and not excluded on the basis that it was hearsay. It was admissible to illustrate a process of consultation that the Minister followed, and the report remitted to the Minister. In this case, as in Coldwater, the report of the Federal Special Representative is not being presented as an expert report admissible for the truth of its contents on the ultimate legal issue before the Court because if that was the case, then the report would not be admissible (Coldwater at para 33; BIE; Squamish Indian Band v Canada (1998), 144 FTR 106). Rather, the report is proposed as evidence to explain the process Canada undertook to consult and “help rebuild trust between commercial and Indigenous fishers […and] find ways to improve relationships and build understanding, common ground, trust and respect”
, and not for the specific opinion presented by the Federal Special Representative. On that basis, the application judge will be able to form their own legal opinion and determine what weight, if any, should be attributed to the report (Coldwater at paras 34-35).
[39] In any event, I decline to strike those paragraphs and related exhibits and prefer that the application judge form their own opinion based on the evidence as they see fit. As stated in BIE at paragraph 31 (and see also Coldwater at para 35): “judges are seasoned in the task of ignoring testimony and opinion that they have excluded in the course of a proceeding and at weighing evidence which, even if found to be admissible, is of little relevance, reliability or credibility”
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[40] For the same reasons, I decline to strike paragraphs 110-113, 124-125, 128-135, 155-156. Those paragraphs are examples of potential or alleged prejudice or impact suffered by the Applicants following the alleged breach of procedural fairness and in that context, may be relevant to the application. Specifically, and for example, paragraph 133 discusses alleged undertakings made by the Crown to the Applicants, prior to the ratification of the RRA, and for which the Applicants allege a breach of procedural fairness and consultation. I agree with the Respondents that some of the paragraphs, notably paragraphs 110-113 and 124-125, relate to other “decisions”
that ought to have been subject to distinct applications for judicial review. However, in this Application, the Applicants do not contest the validity of those decisions but rather cite them as illustrations of the impacts of the RRA for which they were seeking consultation prior to its ratification. Those paragraphs are therefore potentially relevant on this limited basis. The same conclusion applies to exhibits OC-49, OC-50, OC-51, OC-52, OC-53, OC-55, OC-56, OC-59, OC-60, OC-61.7, OC-63.
[41] However, exhibits OC-57 and OC-58 must be struck as they constitute inadmissible hearsay. Those documents are CBC news reports and that type of evidence is generally inadmissible as hearsay and lack the necessary reliability because the journalists are not made available for cross-examination to test the reliability of their reports (Democracy Watch v Canada (Attorney General), 2024 FCA 75 at paras 7, 10-11).
[42] As for paragraphs 104-106, 175-181, I find that the Respondents have not established that these paragraphs and accompanying exhibits are “obviously irrelevant”
. The evidence mostly pre-dates the ratification of the RRA and relates to issues relating to fisheries policy and context, as well as economic development. The evidence also attests that changes were made following the ratification of the RRA which have had a negative impact on the Applicants. The Applicants rely on that evidence to allege a breach of procedural fairness due to a lack of consultation on issues that have impacted them. Consequently, exhibits OC-42, OC-47 and OC-62 are also potentially relevant.
[43] The Respondents submit that paragraphs 124-125, 128-135, 155-156 relate to issues that were struck by Justice Pentney in Regroupement des pêcheurs professionnels du sud de la Gaspésie and/or by Justice Lafrenière in a second motion to strike (issued on June 17, 2024). While the paragraphs and exhibits in question partially relate to issues that were struck by Justice Pentney, the evidence may, to some extent, also be relevant to the issue of a breach of consultation or procedural fairness. They also provide general context on the fisheries industry which can be helpful to the Court. In that sense, the application judge will be better placed to determine the relevance of the evidence and the weight to attribute to it.
[44] On the other hand, I agree with the Respondents that paragraphs 157-164 and 182 ought to be struck. Paragraphs 157-164 relate to regulations relating to owner-operators. However, that issue was struck by Justice Lafrenière at paragraph 13 of his Order dated June 17, 2024 (striking paragraph 148.5 of the Applicants’ modified Notice of Application dated April 30, 2024). Moreover, the regulations relating to the owner-operators are not contested in the Application. Paragraph 182 clearly relates to a decision made in 2024 relating to new fishing permits. While certain previous decisions that were made soon after the ratification of the RRA may be important for context and to illustrate a potential impact on the Applicants, a decision made in 2024 is too remote and on that basis must be struck. Therefore, in my view, those paragraphs are not relevant in establishing a breach of procedural fairness prior to the ratification of the RRA. The same conclusion applies to exhibits OC-57, OC-61.9, OC-61.10, OC-61.11, OC-61.12, OC-61.13, OC-61.14, OC-61.15, OC-61.16, OC-64.
[45] Finally, I decline to strike the paragraphs 114-115, 116-123, 126-127 and exhibits OC-12, OC-26, OC-33 of the Cloutier Affidavit as sought by LMG, for the same reasons previously discussed in relation to paragraphs 98-103, 104-106, 110-113, 124-125, 128-135, 155-156 and 175-181 and their related exhibits. The LMG has not established that these paragraphs and accompanying exhibits are “obviously irrelevant”
, some pre-date the ratification of the RRA, and others demonstrate the alleged consequences of the ratification of the RRA for the Applicants. The evidence could provide context and be relevant to the issue of procedural fairness. The application judge will be better placed to determine the relevance of the evidence and the weight to attribute to it.
C. Exhibits to the Affidavit of Claire Canet
[46] The Respondents seeks the striking of exhibits CC-25, CC-30, CC-47, CC-48, CC-49, CC-50, CC-52, CC-53, CC-54, CC-59, CC-67, CC-71, CC-82 and CC-87 of the Canet Affidavit on the basis that, inter alia:
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a)they constitute inadmissible hearsay;
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b)the documents are not necessary to the application for judicial review;
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c)are not reliable;
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d)post-date the ratification of the RRA;
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e)bear no relation to the Crown’s duty towards the Applicants.
[47] LMG seeks the striking of exhibits CC-13 to CC-15, CC-17, CC-20, CC-26 to CC-29, CC-31, CC-34, CC-36, CC-39, CC-44, CC- 65, CC-70, CC-74, CC-76, CC-79 and CC-83 toCC-86 for similar motives.
[48] For the following reasons, the hearsay objections are dismissed. In reaching this conclusion, the Court substantially agrees with the Applicants’ written representations on the issue.
[49] This conclusion is consistent with and buttressed by the principled exception to hearsay. Under the principled exception to hearsay, the type of evidence adduced by the Applicants can be admitted because it satisfies threshold requirements of necessity and reliability. In this case, much of the impugned evidence is reliable, as they are internal documents made by the parties themselves and supported by other documents, all or some of which themselves may be admissible as business records (Coldwater at paras 48-49; R v Khelawon, 2006 SCC 57 at paras 61-63, 94-100; R v Bradshaw, 2017 SCC 35 at paras 27, 30).
[50] On the issue of necessity, that principle must be “given a flexible definition, capable of encompassing diverse situations”
in which “the relevant direct evidence is not, for a variety of reasons, available”
(R v Smith, [1992] 2 S.C.R. 915 at 933-934 [Smith]). The “necessity [may not be] so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated”
(Smith at 934, quoting J.H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, vol. III, 2d ed. (Boston: Little, Brown & Co., 1923) at §1420-22).
[51] This litigation concerns the adequacy of procedural fairness and sufficient consultation. A strict requirement of first-hand evidence from everyone involved would require all sides to prepare and file additional affidavits, with attendant cross-examinations. As a result, litigation concerning the duty to consult could be extraordinarily expensive.
[52] The nature and practical exigencies of a proceeding can affect the admissibility of evidence and, in particular, the Court’s evaluation of necessity (Coldwater at paras 52-55). Avoidance of an impracticably large number of affidavits, thereby promoting speed and efficiency, can fulfil the necessity requirement under the principled approach to the admission of hearsay (Lecoupe v Canada (1994), 81 F.T.R. 91 at para. 24).
[53] Moreover, section 18.4 of the Federal Courts Act provides that applications for judicial review “shall be heard and determined without delay and in a summary way”
(Coldwater at paras 53-55, 59-60, 62). The need for speed and efficiency affects the necessity analysis. Presenting documents as exhibits to a single affidavit, where the evidence is sufficiently reliable, is sometimes necessary to allow a hearing without delay. Most importantly, as the documents are those of other parties to the proceeding, there is no prejudice to them as they are able to cross-examine the evidence as well as adduced their own evidence in rebuttal.
[54] In this case, there is no suggestion that the Applicants are attempting to shield from scrutiny witnesses with first-hand information and there is nothing that suggests that the Respondents have tried but been unable to cross-examine the individuals (Coldwater at para 51). Indeed, the documents are mainly the Government’s own documents, or those of the co-Respondent LMG, and the potential witnesses are the Government’s own representatives. There is therefore no issue as to the reliability of most of the documents that are adduced while the relevance of most, but not all, appear to be sufficient to provide context to the Court, or to establish a level of procedural fairness owed, as to not be struck on a motion prior to the hearing.
[55] Therefore, the exhibits of the Canet Affidavit will not be struck because they are hearsay.
[56] However, not all the exhibits are relevant to the issues at hand.
[57] In my view, exhibits CC-25, CC-34, CC-48, CC-49, CC-52 and CC-87 are not “obviously irrelevant”
to the issues at hand. These exhibits are all documents that are either prior to the ratification of the RRA or within a short time thereafter and all relate to the Applicant’s alleged prejudice as a result of the Respondents’ breach of procedural fairness and failure to consult. That evidence can constitute “context”
to establish the negative consequences of the RRA suffered by the Applicants, which has an impact on the content of procedural fairness owed to them in relation to the negotiation of the RRA. The evidence is theoretically relevant to establish, along with the evidence as a whole, that the Crown promised to consult the Applicants before ratifying the RRA and allegedly failed to do so, leading to the consequences that are allegedly demonstrated in the documents that the Applicant wishes to adduce as evidence. I also decline to strike CC-30, which is a testimony of Mr. Cloutier before the Standing Committee on Fisheries and Oceans, for the same reason. However, for the reasons below, that exhibit is struck from the Canet Affidavit, with leave to the Applicants to include it in a future version of the Cloutier Affidavit.
[58] The Respondents submit that those paragraphs ought to be struck because they consist of issues that were struck by Justices Pentney and Lafrenière. I somewhat agree with the Respondents. However, viewed from a different angle, the same evidence may also relate to the negative impacts suffered by the Applicants as a result of the ratification of the RRA and their allegation of breach of procedural fairness due to the Respondents’ failure to consult them.
[59] As stated above, the application judge will be better placed to form their own opinion based on the entire evidence as they see fit (BIE at para 31; Coldwater at para 35) and the fact that the vast majority of an affidavit and its exhibits are inadmissible or manifestly inappropriate does not necessarily lead to its dismissal (Lukács at para 29, Côté at para 11; see also Sawridge Band).
[60] However, CC-47 must be struck. The document is not an original document as it is not signed and appears to be a draft containing track changes. It is therefore hearsay and not reliable.
[61] Likewise, CC-50, CC-53, CC-54, CC-59, CC-67, CC-71 and CC-82 must also be struck. CC-50 and CC-53 are not relevant to establish a prejudice as a result of a failure to consult prior to the ratification of the RRA. CC-54 relates to a decision the Minister is about to make in relation to the lobster season and does not provide relevant evidence of any adverse impact as a result of the RRA. That decision could also be subject to its own application for judicial review. CC-59 and CC-82 relate to letters dated September 2022, much after the ratification of the RRA in April 2021, regarding the 2022 fishing season in zone 21B. While the evidence could establish that the Applicants continue to suffer consequences from the breach of procedural fairness, that evidence is too distanced and not related to an actual decision of the Minister, for which the Applicants could seek an independent judicial review. As for CC-67, it relates to a decision during the fishing season of 2024 which ought to be the subject to its own application for judicial review. A decision made in 2024 is not related to the procedure owed to the Applicants by the Crown in 2021. Finally, CC-71 is a document of the Minister dated October 29, 2024, relating to the Fall 2024 lobster season in zone 21B. Again, the content of the letter is not relevant to any duty owed by the Crown to the Applicants in April 2021, before the ratification of the RRA. Any objection to that decision must be contested in a distinct application for judicial review.
[62] Finally, I decline to strike exhibits CC-13, CC-44, CC-65, CC-70, CC-74, CC-76, CC-83 and CC-86 of the Canet Affidavit as sought by LMG, for the same reasons as discussed above in relation to exhibits CC-25, CC-34, CC-48, CC-49, CC-52 and CC-87 including, inter alia, because they relate to events prior to or within a short time after the ratification of the RRA, and provide some general context on the fishing industry and management of fishing resources.
[63] I agree with LMG, however, the exhibits CC-14, CC-15, CC-17, CC-20, CC-26, CC-27, CC-28, CC-29, CC-30, CC-31, CC-36, CC-39, CC-79, CC-84 and CC-85 are all inadmissible because they are hearsay. While it is possible that the evidence could be admissible under an exception to the hearsay rule as a result of Ms. Canet’s employment and role, which has not been argued, these exhibits are about documents that relate to, or were sent or received by, Mr. Cloutier or Mr. Mallet. However, those exhibits may be relevant, for the same reasons as discussed for exhibits CC-13, CC-44, CC-65, CC-70, CC-74, CC-76, CC-79, CC-83 and CC-86. Those documents should therefore be adduced as evidence in the respective affidavits of Mr. Cloutier and Mr. Mallett. Those exhibits are therefore struck, with leave to the Applicants to include them in the affidavits of Mr. Cloutier and Mr. Mallet, should they choose to do so, once they are re-sworn and filed.
D. Affidavit of Martin Mallet
[64] The Respondents seek the striking of paragraphs 24-25, 39-41, 76-78, as well as exhibits MM-10, MM-11 and MM-16 of the Mallet Affidavit, on the basis that, inter alia, the statements are:
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a)hearsay;
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b)bear no relation to the Crown’s procedural obligation towards the Applicants;
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c)post-date the ratification of the RRA;
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d)are opinion evidence and argumentative.
[65] LMG seeks the striking of paragraphs 34-38 and 42-48 as well as exhibits MM-12, MM-14, MM-15, MM-19, MM-30 and MM-31, for similar reasons.
[66] It is trite law that affidavit evidence must be confined to facts within the personal knowledge of the affiant and must speak only to those factual matters, “without gloss or explanation”
(Rule 81(1) of the Rules; Quadrini at para 18; Coldwater at paras 18-19).
[67] There is a line between expositions of factual data on the one side and, on the other, “controversial argumentation that steps over the line of permissibility”
such as an affidavit that contains paragraphs that should appear in a memorandum of fact and law (Tsleil-Waututh Nation at para 37; Coldwater at para 19).
[68] However, as stated, even where argumentative paragraphs are not struck, the application judge “can be trusted to ignore any improper argumentation”
(Coldwater at para 22).
[69] On the issue of “lay opinion”
specifically, the Supreme Court of Canada in R v Graat, [1982] SCJ No 102 at paragraphs 51-53, 60 held that opinion evidence from lay witnesses is acceptable when the conclusions are relevant and are conclusions that a person of ordinary experience can make, and when witnesses have the experiential capacity to make such conclusions (see also R v MacKenzie, 2013 SCC 50 at paras 55-57).
[70] On this motion, most of the impugned paragraphs have been removed on consent by the Applicants.
[71] I find that paragraphs 24 and 25 should not be struck. For the reasons discussed above, these paragraphs discuss a report made by the Federal Special Representative of the Government and that evidence is relevant and reliable for the same reasons as discussed above in relation to paragraphs 98-103 as well as exhibits OC-44, OC-45 and OC-46 of the Affidavit of O’Neill Cloutier. Those paragraphs provide context and may provide relevant evidence on a potential breach of procedural fairness due to the Crown’s failure to consult the Applicants after having promised to do so previously. Exhibits MM-10 and MM-11 are also relevant for the same reasons as are OC-45 and OC-46.
[72] Paragraphs 39-41 must be struck for the same reasons as for paragraphs 157-164 of the Cloutier Affidavit. Those paragraphs also relate to regulations relating to owner-operators, which was struck by Justice Lafrenière at paragraph 13 of his Order dated June 17, 2024 (striking paragraph 148.5 of the Applicants’ modified Notice of Application dated April 30, 2024). The regulations relating to the owner-operators is distinct from the issues relating to the ratification of the RRA. Therefore, in my view, those paragraphs are not relevant in establishing a breach of procedural fairness prior to the ratification of the RRA. As a result, exhibit MM-16 must also be struck from the Mallet Affidavit.
[73] Paragraphs 76-78 must also be struck because they constitute opinion evidence relating to fisheries conservation policies that are not sufficiently linked to any Crown duty of procedural fairness owed to the Applicants in April 2021 prior to the ratification of the RRA, nor of any potential negative impact against the Applicants from a potential breach of. Paragraphs 76-78 speak to actual data and other decisions on which the Applicants could have sought judicial review. For those reasons, the paragraphs are not relevant and ought to be struck.
[74] Finally, I decline to strike the paragraphs 34-38, 42-48 and exhibits MM-12, MM-14, MM-15, MM-19, MM-30 and MM-31 of the Mallet Affidavit as sought by LMG. These paragraphs and exhibits may also provide context and be relevant to the issue of procedural fairness. Those paragraphs note that no consultations were held between the Respondents and the Applicants prior to the ratification of the RRA and that negative impacts were foreseen by the Applicants. The paragraphs also note the anticipated impacts on the sustainability of the fishing stocks which could be impacted by the RRA. While some of these issues were struck by Justice Pentney, the evidence may be relevant to the aspect of procedural fairness and the application judge will be better placed to determine its relevance and the weight to attribute to it.
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