Date: 19981127
Docket: IMM-3600-98
BETWEEN:
WING SUM CHOW,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Applicant wishes to serve and file an additional affidavit, that of James Norris, together with an amended record. The additional affidavit material, containing documents which were not in the possession of either Mr. Norris or the Applicant when the Applicant's record was served in September of 1998, are in response to an affidavit, filed by the Respondent, of Elisabeth Klak sworn 1 October 1998.
[2] While the Applicant was under the impression that the decision which is to be reviewed was made 2 June 1998, being the decision communicated to the Applicant, Ms. Klak deposes that she alone had decided the matter 7 October 1997, as set out in a document of that date called an "H & C Review (IE 9.07)". This concept of Ms. Klak alone making the decision (Klak affidavit of 1 October 1998 at paragraph 18) is necessary because in a 1 June 1998 document called "Subsection 27(2) Highlights" recently obtained on behalf of the Applicant, through an Access to Information Act application, Ms. Klak writes:
| It is recommended that subject's in-Canada application for permanent residence be denied, and that he be asked to leave Canada. |
The manager to whom the 1 June 1998 document was addressed, J.M. Redmond, endorsed concurrence on that document on 2 June 1998. Thus it seems that a decision was made at that point. It is of interest, notwithstanding the decision Ms. Klak deposes she made in October of 1997, that she continued to seek further material from Mr. Chow and from his immigration advisor until June 1998. Thus the issue of whether Ms. Klak fettered her discretion by predetermining a matter before all of the material which she required had been made available. There is also, as I have indicated, the question of who made the relevant decision, given the exchange between Ms. Klak and her manager.
[3] Leaving aside whether the Respondent's witness, Ms. Klak, mislead the Applicant and his immigration advisor, James Norris, it appears that the Respondent's witness has been hoist on a petard of her own making: namely the mindless use of the impersonal passive phrase "It is recommended" in the 1 June 1998 document which, to quote Sir Ernest Gowers (Editor, Second Edition of Fowler's Modern English Usage, Oxford University Press 1968), "... often amounts to a pusillanimous shrinking from responsibility..." and by the concurrence of her manager endorsed below that recommendation.
[4] The affidavit of Mr. Norris, which the Applicant, Wing Sum Chow, seeks to file, contains a number of documents obtained, as I have said, through an Access to Information application. The documents also point to material requested and received by Ms. Klak, from Hong Kong, but not included in the documents obtain by Mr. Chow and which comprise his immigration file, including an opting out declaration signed by the Applicant's mother, Moon Chun Chan, in 1993. It is clear that Ms. Klak relied upon the opting out declaration in her 7 October 1997 decision.
[5] The Applicant contends that all of the material which he wishes to file is in response to allegations made in the affidavit of Ms. Klak, sworn 1 October 1998.
[6] None of this material would be particularly relevant in the context of the 2 June 1998 decision under review, but may well be relevant by reason of the 7 October 1997 decision, which came as a surprise in Ms. Klak's affidavit, for it is clear that the Applicant, Wing Sum Chow, and his counsel, thought they were appealing a 2 June 1998 decision, forwarded to them by Ms. Klak under cover of a 3 June 1998 letter. Were it not for this confusion, indeed misleading confusion, including as to who made the decision, all of this material might well be irrelevant.
[7] Supplemental material is not usually allowed in judicial review, yet there is no specific bar to introducing such material. Here I would refer to Nguyen v. Canada (Minister of Employment and Immigration) (1994), 107 D.L.R. (4th) 186, a decision of Madame Justice Reed of the Federal Court Trial Division. At issue was an application to file, under cover of a supplementary affidavit, a transcript of proceedings before the board from whose decision the judicial review arose. Madame Justice Reed decided that Rule 6 of the then Federal Court Rules, now Rule 55, allowed the Court, in a special circumstance and subject to appropriate conditions, to dispense with compliance with any Rule in the interest of justice. In the result, she allowed the filing of a brief affidavit to which was attached a transcript.
[8] Rule 55 provides that:
| In special circumstances, on motion, the Court may dispense with the compliance with any of these Rules. |
The critical wording here is that special circumstances are required. But implicit, in special circumstances is, on the one hand, justice and, on the other hand, that there be no prejudice. Certainly the Federal Court has, from time to time, denied leave to file reply affidavit material. Particularly this has occurred where the subject matter of the reply has either been covered or could have been fully covered by an Applicant in his or her initial affidavit in support of the application for leave and judicial review. In such a situation a supplemental affidavit is clearly inappropriate: see for example the reasons of Mr. Justice Strayer, as he then was, in Lioubimenko v. MCI (1994), 79 F.T.R. 233 at 234, where, in rejecting supplemental affidavit material, he noted in part:
| "In the first place the materials now filed as a belated reply to the submission from the respondent on the original application for an extension of time are not, for the most part, the proper subject of reply. They purport to make arguments which the applicant should have made in the original application.". |
But that is not the situation here. The Norris affidavit and attached material, while forming a part of the Applicant's immigration file, was only turned over to him, through Mr. Norris, by way of a recent Access to Information application. It is not material which the Applicant had when the application was commenced. Indeed, it was not even material which was particulary relevant until Ms. Klak, at Immigration Canada, disclosed the existence, in her affidavit of 1 October 1998, of a secret decision made in October of 1997, far in advance of the decision that was actually communicated to the Applicant.
[9] In the present instance, given the surprising statement by Ms. Klak that she had made a secret decision of October of 1997, albeit the same decision that was rendered by Ms. Klak and her manager in June of 1998, there is a special circumstance. To do justice and indeed to prevent prejudice to the Applicant the material ought to be allowed in. To allow it in does no prejudice to the Respondent, so long as the Respondent has an appropriate opportunity to reply.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
27 November 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3600-98
STYLE OF CAUSE: Wing Sum Chow
v.
MCI
REASONS FOR ORDER OF JOHN A. HARGRAVE, PROTHONOTARY
dated November 27, 1998
APPEARANCES BY:
Mr. John R. McMillan for the Applicant
Ms. Lori Jane Turner for the Respondent
SOLICITORS OF RECORD:
Mr. John R. McMillan for the Applicant
Wood & McMillan
Victoria, BC
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada