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Court File No. T-2225-12

FEDERAL COURT

BETWEEN:

EDGAR SCHMIDT

Plaintiff

and

The ATTORNEY-GENERAL OF CANADA

Defendant

MOTION RECORD

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TABLE OF CONTENTS

Notice of Motion Pages 3 to 5

Affidavit of Edgar Schmidt Pages 6 to 11

Written Representations of the Plaintiff Pages 12 to 22

Relevant Authorities Cited

Attorney-General (NT) v Kearney Pages 23 to 47

Goldman, Sachs & Co. v. Sessions Pages 48 to 60

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Court File No. T-2225-12

FEDERAL COURT

BETWEEN:

EDGAR SCHMIDT

Plaintiff

and

The ATTORNEY-GENERAL OF CANADA

Defendant

NOTICE OF MOTION

TAKE NOTICE THAT the plaintiff, Edgar Schmidt, will make a motion to the Court on

Thursday, December 20, 2012, at 9:30 a.m. or as soon thereafter as the motion can

be heard, at Ottawa, Ontario.

THE MOTION IS FOR

1. An order that the following documents may be presented to the Court by

the plaintiff as evidence at the trial of this action and in any interlocutory

proceeding where they may be relevant, subject to any conditions relating to

confidentiality that to this Court seem just:

a. Statutory Examination and Legal Risk Management in Drafting

Services (available on December 13, 2012, on the Departmental

intranet site at http://jusnet.justice.gc.ca/lsb_e/tools-

outils/exam/exam1.htm)

b. Legal Risk Management in the Public Law Sector (available on

December 13, 2012, on the Departmental intranet site at

http://jusnet.justice.gc.ca/plca_e/docs/legal%20risk%20managemen

t%20in%20the%20public%20law%20sector%20-

%20november%202007_en.doc)

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c. Effective Communication of Legal Risk (available on December 13,

2012, on the Departmental intranet site at

http://jusnet.justice.gc.ca/lrm_e/special/toc.htm)

d. In Our Opinion (available on December 13, 2012, on the

Departmental intranet site at

http://jusnet.justice.gc.ca/lrm_e/publications/our_opinion/toc.htm)

2. Such order or orders as to this Court seem appropriate to protect the

confidentiality of the plaintiff’s records and communications relating to this

action and ensuring that the plaintiff is permitted to devote the time and

attention to this action that is required to bring it to completion.

3. Any other order that this Court considers appropriate to ensure the integrity

of this legal process, including, if the Court sees fit, an order appointing

counsel to represent the plaintiff in this proceeding.

4. An order that this action, after this motion has been heard and decided, be

conducted as a simplified action.

THE GROUNDS FOR THE MOTION ARE

With regard to the order described at number 1:

1. Rule 54, which permits a person to bring a motion for guidance from the

court with regard to proceedings before it.

2. The inherent jurisdiction of this Court with regard to proceedings before it

and evidentiary and procedural issues in those proceedings.

With regard to the orders described at numbers 2 and 3:

1. The inherent jurisdiction of this Court with regard to proceedings before it

and the conduct of the parties as legal officers and public officials in such

proceedings.

2. Paragraph 4(a) of the Department of Justice Act which gives to the Attorney

General the duty to “see that the administration of public affairs is in

accordance with law” and the power of this court to provide guidance to the

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Attorney General as to what that duty entails in the circumstances of this

case.

With regard to the order described at number 4:

1. Rule 292(d) which authorizes the Court to make such an order.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

motion:

1. The affidavit of the plaintiff, Edgar Schmidt; and

2. Any further materials that the plaintiff submits to this Honourable Court and

that the Court permits.

December 14, 2012

______”EHS”____________________________________

Signature of the plaintiff, Edgar Schmidt Edgar Schmidt 284 Wellington Street, SAT 7081 Ottawa, ON K1A0H8 Ph. 613.957.0012 / Fax 613.954.3189 email: edgar.schmidt@justice.gc.ca TO: The Defendant 284 Wellington Street, EMB 4121 Ottawa, ON K1A0H8

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Court File No. T-2225-12

FEDERAL COURT

BETWEEN:

EDGAR SCHMIDT

Plaintiff

and

The ATTORNEY-GENERAL OF CANADA

Defendant

AFFIDAVIT OF EDGAR SCHMIDT

I, Edgar Schmidt, the plaintiff in this proceeding, affirm and say:

1. I have personal knowledge of the matters I depose to in this affidavit.

2. I am employed as a public servant and as general counsel and special advisor

in the Drafting and Advisory Services Group of the Legislative Services Branch

of the Department of Justice (Canada).

3. In about 2002, the then Deputy Chief Legislative Counsel and head of the

Legislation Section of the Legislative Services Branch of the Department of

Justice, Don Maurais, assigned to me sole responsibility within the

Legislation Section of the Legislative Services Branch for the examination of

bills under section 3 of the Canadian Bill of Rights (the “Bill of Rights”) and

section 4.1 of the Department of Justice Act (the “DOJ Act”). I continued to

have sole responsibility for these examinations for about two years and then

continued as part of a team of about five counsel who began to share this

responsibility. Still later, every legislative counsel became responsible for

these examinations in relation to their own legislative files. I and other

legislative counsel with these responsibilities always had the support of our

colleagues in the Human Rights Law Section with regard to Charter and Bill of

Rights issues.

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4. In 2006, I joined the Advisory and Development Services Section of the

Legislative Services Branch as senior counsel and from 2007 to 2012 served

as general counsel and director of that section (on an indeterminate basis

from 2008).

5. One of the functions of the Advisory and Development Services Section was

to provide legal advisory opinions, including advisory opinions as to whether

there was legislative authority for proposed regulations — in effect,

participating in the examination of proposed regulations under paragraph

3(2)(a) of the Statutory Instruments Act (the “SI Act”).

6. Recently I have surrendered my position as director of that section and taken

on a position in which I work on various special projects including the

drafting of guidance documents for legislative counsel, the drafting of some

model legislation, the updating of some of our drafting tools and resources

as well as the drafting of some real (as opposed to model) bills and proposed

regulations. As of the date of this claim, my responsibilities include

participation in the examinations under section 3 of the Bill of Rights, section

4.1 of the DOJ Act and subsections 3(2) and (3) of the SI Act (the “statutory

examination provisions”).

7. When it became relevant to my work in 2002, I was personally directed by

departmental managers and departmental documents as to the standard of

review I was to employ under the statutory examination provisions and it

was essentially this: if any argument could reasonably be advanced in favour

of the consistency of a provision of a bill or regulation with the Bill of Rights

or the Canadian Charter of Rights and Freedoms (the “Charter”), that was to

be the end of my inquiry as it concerned the statutory examination. It was

expressly made clear to me that the review was not to concern itself with

whether a provision was more likely than not inconsistent with the Bill of

Rights or the Charter or even whether a provision was almost certainly

inconsistent with the Bill of Rights or the Charter — it was only when it was

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utterly certain that a provision was inconsistent with the Bill of Rights or the

Charter because no reasonable argument existed in its favour that the

Department considered that any issue arose under the statutory

examination provisions.

8. This has continued to the present to be the direction given to legal counsel

participating in examinations under the statutory examination provisions

relating to the Bill of Rights and the Charter.

9. Similarly with regard to the question of whether a regulation was authorized

by its enabling Act (as part of the examination under subsections 3(2) and (3)

of the SI Act), the direction I have been given by way of departmental

documents is that when conducting an examination under those subsections,

I am to ask myself only whether some argument can reasonably be made in

favour of it being authorized. An issue related to regulatory authority is

considered to arise under those subsections only when it is utterly certain

that a regulation or one of its provisions is not authorized by its enabling Act

because no reasonable argument exists in favour of its being authorized.

10. The documents referred to in the Notice of Motion are the principal

documents that are generally available to legal counsel in the Department of

Justice and that direct counsel with regard to the standard to be used and

the practice to be followed in examinations under the statutory examination

provisions.

11. These documents will confirm the evidence I am giving in this affidavit as to

the standard used and the practice followed in the examinations under the

statutory examination provisions and will assist the Court to understand the

situation more fully.

12. Some further information about these four documents follows:

a. Statutory Examination and Legal Risk Management in Drafting

Services – This document is accessible to the entire Department but

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the main link to it is to be found in the Our Tools > Directives, Policies

and Guidelines > page of the Legislative Services Branch section of

the Departmental intranet site. The Our Tools pages of the Legislative

Services Branch provide links to the principal guides, references,

directives, policies, guidelines and other working tools for legislative

counsel and other staff in the Branch.

b. Legal Risk Management in the Public Law Sector – This document is

accessible to the entire Department but the main link to it is to be

found on the page entitled “Products/Reference Tools and Links” in

the Public Law Sector section of the Departmental intranet site

(which Sector includes the Human Rights Law Section, the

Department’s centre of Charter and Bill of Rights expertise). The link

to it is located under the heading “Resources:” . Its companion

“resources” are entitled “Procedures”, “Templates”, “Professional

Development”, and “Business Continuity Plan”.

c. Effective Communication of Legal Risk – This document is available

on the Legal Risk Management section of the Departmental intranet

site. It is accompanied by a message from the Deputy ministerial

team dated 2007-06-19 that describes the document as the report of

a working group of senior staff and states that the document “will be

distributed to lawyers across the Department, [and] is meant to feed

into ongoing discussions and work on communicating about legal

risk. We [the Deputy Ministerial Team] hope it will stimulate

discussion and further ideas on this important area. “ Since it is now

many years after the date of the Deputy Minister’s message, I believe

that the time for discussions and feedback has long since ended. I

infer from the fact that this document is still, some 5 ½ years later,

available on the Legal Risk Management site and from its consistency

with the other documents mentioned that it now represents the

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directions of the Deputy Minister on the requirements of the

statutory examination provisions.

d. In Our Opinion – this document has a sub-title of “Best Practices for

Department of Justice Counsel in Providing Legal Advice”. It is

preceded by a foreword from the Deputy Minister and the then sole

Associate Deputy Minister that states that its purpose “is to assist

Department of Justice lawyers and notaries in providing high-quality

legal opinions”. It is described as the “April 2012 version” and is

linked to from various pages within the Departmental intranet site.

13. I have, since I first was assigned the responsibilities referred to in paragraph

2 of this affidavit, been uneasy with the interpretation being given to the

statutory examination provisions in the Department. I raised doubts about it

from the beginning, and have, over the years, raised the issue repeatedly as

occasion arose and have communicated the results of my researches into the

legislative history of these provisions and the Parliamentary record relating

to them.

14. Most recently, I have, by means of a lengthy and detailed memorandum,

brought the issue to the attention of Deputy Minister Myles Kirvan and met

personally with him and the Chief Legislative Counsel John Mark Keyes on

this issue in July of 2012. I also so brought the issue to the attention of

Associate Deputy Minister Lori Sterling after her appointment this past fall.

15. I know of no action by the Deputy Minister, the Associate Deputy Minister or

the Chief Legislative Counsel to change the interpretation, practice or

directions to counsel that I have earlier described in this affidavit.

16. I have concluded that I cannot persuade the Deputy Minister or other

officials to take action to bring the conduct of the examinations under the

statutory examination provisions into conformity with law and that therefore

I must ask this Court for its assistance to this end.

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17. I consider the bringing of this action to be in the public interest and

consistent with my duties as a public servant in the particular context of this

situation, where I believe the Minister and Deputy Minister are failing to

perform their lawful obligations and where I am unable to alter this situation

without the assistance of this Court.

18. A practical difficulty that arises from my employment within the Department

of Justice and my bringing of this action is this: the Minister and Deputy

Minister have the lawful authority, ordinarily, to direct me and other

employees in the Department in ways that could interfere with the due and

proper conduct of this action and the timely judicial resolution of the issue it

presents.

19. My office is located at Room 7081 of the Saint Andrews Tower, one of the

two principal buildings occupied by the Department of Justice for its national

headquarters.

20. The defendant has effective control of the entire infrastructure that supports

me in my work as a public servant, such as access to my office, the email

system, the filing cabinets, printers, and telephones.

21. For the due and proper conduct of this action so that the issue it presents

(one in which the public and the elected representatives of the public in

Parliament have a real interest) may be properly considered and decided by

this court, I need, at a minimum, access to my office, the confidentiality of

my records and communications relating to this action and the right to do

the work that this action requires, including the preparation of any related

documents and preparation for and attendance at any related court

proceedings, during my regular hours of work.

AFFIRMED before me this 14th day of December, 2012, ____”EHS”____________________________ at Ottawa, Ontario. Signature of deponent “Fatiha Khayou” Registry Officer

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Court File No. T-2225-12

FEDERAL COURT

BETWEEN:

EDGAR SCHMIDT

Plaintiff

and

The ATTORNEY-GENERAL OF CANADA

Defendant

WRITTEN REPRESENTATIONS OF THE PLAINTIFF

With regard to the order described at number 1:

1. The documents referred to at number 1 in the Notice of Motion are the

principal documents in the Department of Justice (the “Department”) that

set out the interpretation of the Minister and Deputy Minister of the

statutory examination provisions at issue in this action. They give directions

to legal counsel in the Department as to how they are to perform the duties

under the statutory examination provisions. Therefore, it is useful for the

Court to consider these documents to have a fuller understanding of the

facts relevant to this action.

2. Since all parties to this action already have access to these documents, the

only issue is whether the Court and the public may have access to them.

3. As for the public, the plaintiff wishes to have this court dispose of the central

issue in this action — what the statutory examination provisions mean and

require of the Minister of Justice and Deputy Minister of Justice — and

desires that this proceeding not be derailed in any way by issues of the public

accessibility of these documents. The plaintiff’s position is that the question

of the public’s access to the documents ought not to delay or interfere in any

way with the progress of this action and the determination of its central

issue. Therefore, the plaintiff does not object to the Court setting any

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conditions, interim or otherwise, that it considers appropriate relating to

their disclosure or non-disclosure to the public as a result of this litigation.

4. As for access by the Court, this action seeks the supervision of the Court over

the conduct of persons in the executive branch of the state and these

documents are themselves part and parcel of the conduct that is claimed to

be unlawful. They are, it is submitted, in essence directions that ought to

guide legal counsel in due execution of the statutory examination provisions

but in fact direct counsel to act in a way that does not carry out these

provisions, that fails to conform to the requirements of those provisions in a

very material way. Therefore, the documents themselves are integral to the

contravention of law to which the plaintiff seeks an end through this action.

Directions by state officials to act contrary to law are never shielded from the Court

5. It is submitted that there is no legal rule or principle, not even solicitor-client

privilege, that shields from consideration by this Court state documents that

direct state actors to act contrary to law.

6. This is most basically because, in order to be protected under any privilege or

exclusionary rule, the document in question must not itself constitute the

unlawful action. Consider a letter from any legal counsel to her or his client

that does not merely advise as to the legality or illegality of certain conduct

but directs the client to act illegally. No privilege or protection would shield

such a direction from consideration by a court.

7. The plaintiff wishes to be clear that he does not admit that solicitor-client

privilege or any other privilege or immunity is applicable with regard to these

documents. Rather, he submits that it is irrelevant whether any such

privilege or immunity might, in other circumstances, apply because they

cannot apply in this case so as to prevent the Court from considering the

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documents. Thus the issue of whether they might otherwise be subject to

any privilege or immunity need not be determined.

8. The plaintiff asserts that state actors have a duty to comply with law. The

jurisdiction of the superior courts to supervise the actions of state actors and

to review them for legality is the founded on the existence of this duty. Thus,

directions within the state apparatus to state officials ought to be subject to

examination by courts of superior jurisdiction as part of their supervisory

role.

9. This is particularly the case where the question does not involve any party

outside the state apparatus. These documents are fully known to both

parties. Thus it is only the court and the public whose knowledge is at issue.

The court can make an order limiting public access to the documents if that is

appropriate, but in relation to the parties to this action and the issues it

presents, these documents ought to be considered by the court.

The documents in question are, in any case, not legal advice

10. In the alternative that this Court considers it necessary to consider the

nature of the documents, the plaintiff submits that they are not subject to

solicitor-client privilege for at least the following reasons:

a. they are administrative directions and ought to be treated like any

other administrative direction within the federal public

administration. The fact that the primary readership is a legal one

does not convert an administrative guide on “how to do your work”

to legal advice protected by solicitor-client privilege;

b. to the extent that they deal with a legal subject, the documents set

out a legal position rather than give legal advice. A state actor

implementing a statutory provision must necessarily form a view of

what that provision requires. A statement of the position adopted by

the state actor as to the meaning of that provision is not legal advice

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but simply a statement of legal position, an articulation of the

administrative interpretation adopted by the state actor. The

documents do not present the arguments, reasoning and advice that

led to the adoption of the position, they merely set out the position

itself and thus are not legal advice.

Alternatively, even if the documents constitute legal advice, advice given in order to contravene the law is not protected from consideration by the courts

11. While the statutory examination provisions are not intended to operate

primarily as criminal law, subsection 126(1) of the Criminal Code is applicable

with regard to the obligations in them. This subsection reads as follows:

Disobeying a statute

126. (1) Every one who, without lawful excuse, contravenes an Act of Parliament by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

Désobéissance à une loi

126. (1) À moins qu’une peine ne soit expressément prévue par la loi, quiconque, sans excuse légitime, contrevient à une loi fédérale en accomplissant volontairement une chose qu’elle défend ou en omettant volontairement de faire une chose qu’elle prescrit, est coupable d’un acte criminel et passible d’un emprisonnement maximal de deux ans.

12. As a result of subsection 126(1), a wilful omission to do what the statutory

examination provisions require would constitute an offence. The plaintiff

makes no assertion with regard to the mens rea element of wilfulness, but

asserts that the actus reus of omission to do what the statutory review

provisions require be done exists, and that this is sufficient to permit the

Court to consider the documents referred to in the Notice of Motion.

13. In this connection, the plaintiff cites to the Court the following decisions

(provided in the annex to these written representations):

a. Attorney-General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500

b. Goldman, Sachs & Co. v. Sessions, 1999 CanLII 5317 (BCSC)

With regard to the orders described at numbers 2 and 3:

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14. I am bringing this action in part in my capacity as a public servant and

consider that the bringing of this action is not only consistent with my

solemn affirmation when I joined the public service but virtually required by

it1. I seek the assistance of the Court to bring the Minister and Deputy

Minister back to the due and proper performance of their obligations under

directions given by Parliament in the statutory examination provisions, after

having exhausted all reasonable means of doing so without the assistance of

the Court, in part so that I and my legal colleagues in the Department may

indeed faithfully and honestly fulfill the duties that devolve to us as the

examiners in the name of the Minister and Deputy Minister under the

statutory examination provisions.

15. It is my belief that at some point when the Minister and the Deputy Minister

do not act in accordance with law and, for whatever reason, will not be

persuaded to remedy such non-compliance voluntarily, it becomes the duty

and right of public servants who have knowledge of the situation to seek the

assistance of Her Majesty’s courts. It is my conviction that this is such a time.

I know of no one else in the Department or the federal public administration

who is aware of the issue and willing to bring it to a resolution; so I conclude

that it is my responsibility.

16. There is a clear public interest in the determination of this issue. The plaintiff

submits that there is a very significant difference between the interpretation

taken by the Minister and Deputy Minister, the practice adopted in the

Department as a result of the directions given by them or on their behalf and

what the statutory examination provisions actually require. This difference

has significant consequences.

1 The affirmation began “I, Edgar Harold Schmidt, solemnly and sincerely affirm that I will faithfully

and honestly fulfil the duties that devolve on me by reason of my employment in the Public Service …”

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17. The statutory examination provisions are intended to function as a kind of

pre-enactment legality check. The interpretation of the Minister and Deputy

Minister and the practices adopted under their direction have the result of

making this pre-enactment legality check virtually useless.

18. Sometimes analogy can be useful in thinking about a situation. Imagine a

pre-trip safety inspection of a vehicle. Imagine that the mechanic was asked

to do an inspection to ensure that the brakes would function and to let the

owner know of any issues he discovered. Now imagine that the mechanic

carried out that instruction by asking himself “Can I imagine the possibility,

even if only barely, that the brakes will not fail during the trip?” As a result of

turning the safety inspection into a question of whether the brakes might

just possibly not fail, rather than a question of whether they can be expected

to be safe, the inspection loses most of its value. With that as his inspection

standard, the mechanic will do or say nothing as long as he is able to imagine

that the brakes might survive the trip without failure, even if that possibility

is highly improbable.

19. This is a close analogy to the situation under the SI Act provision. Instead of

asking themselves the question that the SI Act provision intends — Do we

think that the proposed regulation is lawful with regard to its enabling

authority and consistent with the Charter and Bill of Rights? —, counsel in

the Department are directed to ask themselves essentially the following

question: Can we imagine, even if only remotely, the possibility that the

provisions might be lawful and constitutional?

20. This means that the pre-enactment legality check will be utterly ineffective in

situations where illegality is likely or even almost certain as long as it is not

absolutely certain. Nothing is communicated to the Clerk and through him to

the regulation-maker in accordance with the SI Act.

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21. If the Minister’s and Deputy Minister’s interpretation of the statutory

examination provisions and the directions they have given flowing from that

interpretation are allowed to continue to govern these examinations, each of

the following is undermined:

a. Parliament’s right to expect that its delegates will act within their

authority;

b. Parliament’s right to expect that legislation presented to it will either

i. be consistent with the Bill of Rights and the Charter; or

ii. be followed promptly by advice from the Minister of Justice

that certain of its provisions are not so consistent (allowing

Parliament to consider whether it wishes to amend the

provisions, enact them “notwithstanding” the Bill of Rights or

Charter, or let them stand or fall according to what the Courts

may decide);

c. Every citizen’s right to expect that the state will, as best as it is able

and in good faith, act and enact lawfully —

i. in a manner consistent with the Charter and the Bill of Rights

(which encompasses provisions that may be inconsistent with

the Charter or Bill of Rights but are expressly and

transparently enacted “notwithstanding” them) and,

ii. in the case of regulations, within the authority delegated by

Parliament.

22. Because there are significant interests at stake and because there is a strong

prima facie case that the directions given to legal counsel in the Department

of Justice on behalf of the Minister and Deputy Minister are in error and

contrary to law, it is in the public interest that the central issue in this action

be resolved.

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23. It is therefore appropriate that this Court give reasonable directions to the

Minister and Deputy Minister that will prevent any impediment to the

plaintiff’s conduct of this action.

24. It is submitted that this Court can also in the somewhat unique

circumstances of this case, appoint legal counsel to represent the plaintiff

and direct that this be at the cost of the state.

25. By what mechanism might the court do this? It is submitted that the

Attorney General of Canada has, under paragraph 4(a) of the DOJ Act, a duty

to “see that the administration of public affairs is in accordance with law”. It

is submitted that the court could find that in the circumstances of this case,

that duty requires the Attorney General to fund also the plaintiff’s side in this

litigation.

26. There are reasons to believe that appointment of counsel would be wise and

appropriate:

a. Legal counsel with some independence and distance can bring a

perspective to any particular litigation that is different from the

parties themselves and can be useful to move the litigation to

resolution.

b. This action is brought in the public interest and it presents a strong

prima facie case that the Minister and Deputy Minister are in breach

of their obligations under the statutory examination provisions. It is in

the interests of the state and of the public that the Minister and

Deputy Minister perform those obligations. Thus, it would be

appropriate for the state to pay the costs of the litigation toward that

end.

c. The plaintiff practices in the area of legislative drafting, not litigation,

so that legal counsel practicing litigation would be useful to support

the effective movement of this action to trial and the presentation to

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this court of the evidence and legal argument that would assist the

court in deciding the issues that the action raises.

d. There is a vast difference in the resources and circumstances of the

parties. The plaintiff is an ordinary lawyer — yes, at a senior level, and

with considerable experience, but still only an individual public

servant with no great wealth and therefore limited capacity to sustain

this litigation and with litigation skills that have not been much used

for some years.

e. In fact, the plaintiff would rather not have had to commence this

action at all and would not have had to do so if the issue had been

addressed by the Deputy Minister at least when it was specifically

brought to his attention.

f. By contrast to the circumstances of the plaintiff, the resources of the

state in litigation are virtually boundless. If these resources are used

only on behalf of the defence in this action, one has, it is submitted, a

somewhat odd situation in which the resources of the state will be

used to defend unlawful conduct but not to correct it.

With regard to the order described at number 4:

27. The issues in this proceeding are quite straightforward. The interpretation of

the Minister and Deputy Minister of the statutory examination provisions

and the directions they have given as to the manner in which counsel in the

department are to conduct themselves in performing — or, more accurately,

not performing — their duties under the statutory examination provisions

are established by the documents in question. If it should be necessary, they

could be supplemented by affidavit evidence or the answers given in the

written examination for discovery permitted under the rules.

28. In sum, the factual issue is very simple and apt for determination through

documentary and affidavit evidence — what is the interpretation in the

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Department (for which interpretation the Minister and Deputy Minister are

responsible) of the statutory examination provisions and what directions

have been given to legal counsel in the Department as to the manner in

which they are to conduct examinations under those provisions?

29. Apart from that relatively straightforward factual issue, all that remains for

the trial is the legal issue of what the statutory examination provisions

actually require. What is their meaning at law? This is a matter of statutory

interpretation to be decided on the basis of legal argument rather than

evidence.

30. Therefore, this action is well suited to be conducted as a simplified action.

31. The plaintiff submits that the vast difference in the resources and

circumstances of the parties also supports an order for a simplified action, as

proceeding in this way reduces somewhat the impact of the difference in

resources.

32. By ordering the action to proceed as a simplified action, this Court can

promote the efficient and appropriate resolution of the matter at issue and

help ensure that the result of this action is not dictated by who can out-last

and out-finance the other, but by its legal merits.

Generally with regard to the relief sought in the motion:

33. It is submitted that the Court should bear in mind that in this action the

plaintiff is not seeking anything of personal benefit to the plaintiff. This is an

action brought out of the plaintiff’s sense of duty in the face of what the

plaintiff perceives to be a clear case of non-compliance with law, a situation

the plaintiff has (unsuccessfully) attempted to have remedied through

communication to the Deputy Minister, and one that merits being remedied

by this court because it is continuing, systemic, and potentially has

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significant, negative consequences for the citizens of Canada and for their

representatives in Parliament.

Submitted by the plaintiff,

“EHS”

_____________________________________

Edgar Schmidt