Date: 20040727
Docket: T-2242-03
Citation: 2004 FC 1040
BETWEEN:
CHRIS HUGHES
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
[1] This judicial review application is that of a self-represented litigant, a government employee, who seeks review of a decision as to the availability of recourse rights, apparently as to possible promotion, after there has been corrective action.
[2] The decision at issue is said, by the Applicant, to have been made and communicated by letter of 5 November 2003. Counsel for the Respondent submits that the decision was in fact made in 2001 and that the 5 November 2003 letter was merely a courtesy letter, not a new decision. For the purposes of the present motion, to add a Rule 312 supplemental affidavit and 162 exhibited documents, I need not choose the date of the actual decision, for it would seem common ground that a number of the documents which Mr. Hughes now wishes to introduce were not before a relevant tribunal in any case. Other documents are irrelevant. The new evidence would neither serve the interests of justice nor assist the Court and if admitted at this late date would cause serious prejudice to the Respondent. The motion is denied. I now consider this in more detail.
Consideration
[3] The present judicial review proceeding, commenced 27 November 2003, is one of several pieces of litigation which Mr. Hughes is running, either for himself or in one case for a sister-in-law. It is apparent that Mr. Hughes has spread himself rather thin, at least on this particular project. The evidence is that it was not until 18 May 2004, well after Mr. Hughes had filed his affidavit material and his record and indeed well after the setting of the date, by the Chief Justice on 28 April 2004, for the judicial review hearing itself, to take place 3 and 4 August 2004 that Mr. Hughes realized, after sitting in on another judicial review hearing, that he ought to support all of the propositions which he intended to advance, on judicial review, with documents which should be submitted by way of affidavit.
[4] On 7 July 2004 Mr. Hughes sought to rectify the shortcoming he had perceived on 18 May 2004 by filing and serving a motion for leave to file supplemental judicial review material. Here I emphasize that the material was not to be by way of reply, but was true supplemental material. The motion which Mr. Hughes filed did not disclose the extent of the proposed supplemental affidavit and documents. Such disclosure is critical to a motion to file supplemental affidavit material pursuant to Rule 312. The disclosure not only allows opposing counsel to understand the content and nature of the proposed material, but also gives both opposing counsel and the Court some idea of the approach to take, including as to the applicable law.
[5] Clearly, leave to file additional affidavits by way of Rule 312, which application must be brought promptly, cannot be granted in a vacuum. Where the proposed new material is not complex, for example a late arriving transcript, an example suggested in Wright v. The Warden of Mission Institution (1998) 159 F.T.R. 104, it may be permissible to seek leave without submitting the proposed affidavit. However in Wright the leave to file the supplemental affidavit was denied, for the applicant had not even gone so far as to explain, in any specific way, what new material was to be included. I am aware that Madam Justice Reed observed, in Walker v. Randall (1998) 157 F.T.R. 113 at 114 that proposed affidavit material need not be in existence when leave is sought but that the affidavit, as in Eli Lilly & Co. v. Apotex Inc. (1998) 137 F.T.R. 226, might be produced later. However both the Walker and the Eli Lilly cases dealt with reply affidavits and not with supplemental affidavits, containing additional material, as in the present instance.
[6] Where, as in the present instance, a litigant wishes to include many additional documents, here 162 documents, in a supplemental affidavit and particularly after cross-examination and after the hearing date has been set, it would be counterproductive to have to describe the material quite specifically and then have the other side spend time and effort to obtain and verify that it had the right material. Much better to include a copy of the affidavit, or a draft of the affidavit, complete with exhibits, with the motion. Indeed, to take the descriptive approach to the intended content would not be sensible. And here we come to a procedural challenge faced by the Applicant, which was not of his own making: the Registry refused to allow the proposed affidavit to be filed with the motion material. The Court then turned down the motion material as being incomplete, forcing the Applicant to obtain a direction and then to jury rig additional handwritten material at the Registry counter. Fortunately, other than for additional work, the registry officer's misunderstanding of the procedure caused no prejudice, for the Registry, while it had not filed the proposed affidavit, had kept a copy of it and was directed and able to deliver that copy forthwith to the Department of Justice on 7 July 2004. The motion was then dealt with as expeditiously as the schedule of all concerned would allow, as an oral motion, on 26 July 2004. Here I would observe that, ideally, the Applicant should have moved to put his tackle in order in May or June of 2004, shortly after he realized that his material had shortcomings. However the delay in seeking leave, while awkward, was not determinative in denying leave: the case law, as set out in Mazhero v. Industrial Relations Board (Canada) (2002) 292 N.R. 187 (F.C.A.) at 188 and Atlantic Engraving Ltd. v. Lapointe Rosenstein (2002) 299 N.R. 244 at 246 is determinative.
[7] In Mazhero (supra) Mr. Justice of Appeal Evans observed that "... the discretion of the Court to permit the filing of additional material should be exercised with great circumspection.", going on to adopt a passage from Deigan v. Canada (1999) 168 F.T.R. 277 at page 278:
"The new Federal Court Rules allow the filing of a supplementary affidavit and of a supplementary record, however such should only be allowed in limited instances and special circumstances, for to do otherwise would not be in the spirit of judicial review proceedings, which are designed to obtain quick relief through a summary procedure. While the general test for such supplementary material is whether the additional material will serve the interests of justice, will assist the Court and will not seriously prejudice the other side, it is also important that any supplementary affidavit and supplementary record neither deal with material which could have been made available at an earlier date, nor unduly delay the proceedings."
Diegan was affirmed by the Trial Division (1999) 165 F.T.R. 12. These principles, on which the Court should exercise its discretion to allow in supplemental evidence, were more clearly set out by Mr. Justice of Appeal Nadon in Atlantic Engraving (supra) at page 246:
i) The evidence to be adduced will serve the interests of justice;
ii) The evidence will assist the Court;
iii) The evidence will not cause substantial or serious prejudice to the other side (see Eli Lilly and Co. v. Apotex Inc. (1997), 76 C.P.R. (3d) 15 (T.D.); Robert Mondavi Winery v. Spagnol's Wine & Beer Making Supplies Ltd. (2001), 10 C.P.R. (4th) 331(T.D.)).
The Court of Appeal in Atlantic Engraving then went on to add a further requirement, that an applicant, wishing to file additional material, must show that it was not available before cross-examination, for Rule 312 is not a means by which a party may split its case: the obligation on a party is to put forward its best case at the earliest opportunity:
Further, an applicant, in seeking leave to file additional material, must show that the evidence sought to be adduced was not available prior to the cross-examination of the opponent's affidavits. Rule 312 is not there to allow a party to split its case and a party must put its best case forward at the first opportunity (see Salton Appliances (1985) Corp. et al. v. Salton Inc. (2000), 181 F.T.R. 146, 4 C.P.R. (4th) 491 (T.D.); Inverhuron & District Ratepayers Association v. Canada (Minister of Environment) et al. (2000), 180 F.T.R. 314 (T.D.)).
[loc. cit.]
[8] I have gone through the affidavit material which Mr. Hughes wishes to file as supplemental to what is now on file in order to determine whether it would serve the interests of justice, would assist the Court, would not cause substantial serious prejudice to the Crown and is not material which was available before cross-examination, with a view to determining whether Rule 312 is, in this instance, being used as a vehicle to split the Applicant's case. Much of the proposed supplemental material was available well before cross-examinations: some of the proposed supplemental material is of much more current date and cannot be relevant.
[9] In the present instance the Applicant has not satisfied the onus of showing, as required by the test in Atlantic Engraving, that the material was not available at an earlier date. Here I do not propose to follow the analysis set out by the Respondent, being that the decision having been made in 2001, much of the supplemental material could not have been before the Board. However I would observe that there is substantial information and documents involving eight separate complaints of harassment which the Applicant made against eight other individuals at Canada Customs and Revenue Agency, which were subject to recent outside review and that these are completely irrelevant to the present judicial review proceeding.
[10] As a whole I am not satisfied that the supplemental material will serve the interests of justice, will assist the Court and will not cause substantial serious prejudice. This is all the more the situation given that rather than having a reasonable number of weeks to consider the material the Crown would have insufficient time within which to absorb the great mass of material, much of which seems of doubtful relevance, to organize and carry out cross-examination and to file responding affidavit material in time for the hearing on 3 and 4 August.
[11] Counsel for the Respondent also makes the point that the two-day hearing was granted on the basis that the Applicant would take a day and a half to present his case and the Crown might have half a day to respond. Crown counsel points out and I am in agreement, that to bring in 162 additional supplemental documents would extend the time required to hear the application beyond two days. Moreover, no motion has been made to adjourn the hearing date.
[12] All of the foregoing may seem a little severe when applied to a lay litigant. However I would make several observations. First, Mr. Hughes is running a number of litigation files for his own account at this point, as well as one for his sister-in-law. Further, while Mr. Hughes may be doing the best that he can with his busy schedule and under the circumstances, that is not an excuse and here I would refer to two decisions. In Saint-Jacques v. Pike (1989) 29 F.T.R. 256 Mr. Justice Denault observed, at page 258:
The absence of counsel to represent the applicant does not in any way relieve the latter from the duty to comply with the Federal Court Rules in order to protect his rights.
Mr. Hughes in fact makes the point that he is doing the best that he can. However there is a passage which perhaps adds something to what Mr. Denault said, in Saint-Jacques, in the case of Nelson v. Minister of National Revenue (1996) 111 F.T.R. 214 at 217:
Mr. Nelson gives as an excuse that he is doing the best that he can. Not only is this not an excuse, even for a lay litigant, but I would also note that Mr. Nelson has had considerable experience in litigating tax matters. When a lay litigant use[s] the court system he can expect reasonable assistance of the court registry staff on procedural matters. However, the litigant himself or herself must make a reasonable effort to understand some of the basic rules and procedures ...
Just as Mr. Nelson showed little or no understanding of the rules and procedures involved, here Mr. Hughes has apparently not had the time to absorb, understand and comply with the Federal Court Rules and the law bearing on those rules. That Mr. Hughes was, to a degree, misled by advice from the Federal Court Registry has no bearing on the outcome of this motion, which is denied.
[13] The Crown shall have its costs in the amount of $400.
(Sgd.) "John A. Hargrave"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2242-03
STYLE OF CAUSE: CHRIS HUGHES V.
CANADA CUSTOMS AND REVENUE AGENCY
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 26, 2004
REASONS FOR ORDER AND ORDER: HARGRAVE P. .
DATED: July 27, 2004
APPEARANCES:
Mr. Chris Hughes on his own behalf
Ms. Sarah Pearson for Respondent
SOLICITORS OF RECORD:
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
Ottawa, ON