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 Written Representations of the Plaintiff Relevant Authorities Cited Attorney-General (NT) v Kearney Goldman, Sachs & Co. v. Sessions

Pages 6 to 11 Pages 12 to 22

Pages 23 to 47 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/toolsoutils/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 -4-

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 -7-

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 -8-

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 - 12 -

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 - 14 -

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 Désobéissance à une loi

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.

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.

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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 - 20 -

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

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