Date: 20010206
Docket: IMM-2763-00
CITATION: 2001 FCT 25
BETWEEN:
DAVID ARTURO ESCUDERO GONZALEZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] The applicant seeks an order converting his application for judicial review into an action, pursuant to subsection 18.4(2) of the Federal Court Act, R.S.C. 1985, c. F-7, which reads as follows:
| 18.4 (2) The Trial Division may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action. |
18.4 (2) La Section de première instance peut, si elle l'estime indiqué, ordonner qu'une demande de contrôle judiciaire soit instruite comme s'il s'agissait d'une action. |
[2] In Potato Board (P.E.I.) v. Canada (Minister of Agriculture) (1993), 56 F.T.R. 150 (T.D.), Muldoon J., in addressing a motion similar to the one before me, made the following remarks at page 152:
| [2] Section 18.4 of the Federal Court Act makes it clear that, as a general rule, an application for judicial review or a reference to the Trial Division shall be proceeded with as a motion. The section dictates that such matters be heard and determined "without delay and in a summary way". As an exception to the general rule, provision is made in s. 18.4(2) for an application for judicial review to be proceeded with as an action. The new and preferred course of procedure, however, is by way of motion and that course should not be departed from except in the clearest of circumstances. |
In MacInnis v. Canada (Attorney General) et al. (1994), 166 N.R. 57(F.C.A.), Décarie J.A. stated at page 60:
| [9] It is, in general, only where facts of whatever nature cannot be satisfactorily established or weighed through affidavit evidence that consideration should be given to using s. 18.4(2) of the Act. One should not lose sight of the clear intention of Parliament to have applications for judicial review determined wherever possible with as much speed and as little encumbrances and delays of the kind associated with trials as are possible. The "clearest of circumstances", to use the words of Muldoon, J., where that subsection may be used, is where there is a need for viva voce evidence, either to assess demeanour and credibility of witnesses or to allow the court to have a full grasp of the whole of the evidence whenever it feels the case cries out for the full panoply of a trial (See Canadian Pacific Ltd. v. Matsqui Indian Band et al. (1993), 153 N.R. 307, at p. 311 (F.C.A.); Edwards v. Canada (Minister of Agriculture) (1992), 53 F.T.R. 265 (T.D.), at p. 267), Pinard, J.) The decision of this court in Bayer AG et al. v. Canada (Minister of National Health and Welfare) (1993), 163 N.R. 183 (F.C.A.) where Mahoney, J.A., to some extent commented adversely on a decision made by Rouleau, J., in the same file (1993), 66 F.T.R. 137 (T.D.), is a recent illustration of the reluctance of the court to proceed by way of an action rather than by way of an application. |
| [10] Strayer, J., in Vancouver Island Peace Society, and Reed, J., in Derrickson have indicated that it is important to remember the true nature of the questions to be answered by the court in judicial review proceedings and to consider the adequacy of affidavit evidence for answering those questions. Thus, a judge would err in accepting that a party could only introduce the evidence it wants by way of a trial if that evidence was not related to the narrow issues to be answered by the court. The complexity of the factual issues would be, taken by itself, would be an irrelevant consideration if the conflicting expert affidavits on which they are based are related to the issues before the tribunal rather than issues before the court. In the same vein, speculation that hidden evidence will come to light is not a basis for ordering a trial (Oduro v. Minister of Employment and Immigration (9 December 1993), IMM-903-93 (F.C.T.D.), McKeown, J., 71 F.T.R. 152.) A judge might be justified in holding otherwise if there were good grounds for believing that such evidence would only come to light in a trial, but the key test is whether the judge can see that affidavit evidence will be inadequate, not that trial evidence might be superior. [Emphasis is mine] |
[3] As appears clearly from the Court of Appeal's decision in MacInnis, supra, the key test is not whether viva voce evidence will be superior, but whether affidavit evidence will be inadequate, in all of the circumstances, to deal with the issues at hand. In this regard, Ms. Begg, for the applicant, puts forward two reasons why I should allow her client's application. Firstly, she submits that the issue of apprehension of bias is one of credibility, and that, consequently, the best way to determine that issue is for the judge to see and hear the witnesses.
[4] The second reason put forward by Ms. Begg is what she calls the evidentiary problem. Ms. Begg explains that the visa officer, Ms. Heal, has raised evidence of good character, both in her affidavit and during her cross-examination on that affidavit. Ms. Begg states that her client cannot rebut that evidence unless he is given the opportunity to call and, hence, to subpoena witnesses, i.e. employees of Citizenship and Immigration, who can speak to the visa officer's "character".
[5] With respect to Ms. Begg's second reason, I am of the view that evidence of good or bad character is irrelevant to the determination of this judicial review application. The issue is not whether Ms. Heal, as she states in paragraph 33 of her affidavit, is sensitive to cultural barriers, but rather, it is whether Ms. Heal made remarks during the interview which give rise to a reasonable apprehension of bias. Consequently, if Ms. Begg is unable to counter the visa officer's assertions of good character and, in particular, the assertion found at paragraph 33 of her affidavit, her client will not be prejudiced. It may well be that paragraph 33 of the visa officer's affidavit ought to be struck. However, there is no motion to that effect before me.
[6] With respect to the first reason put forward, Ms. Begg is correct that viva voce evidence would be better than affidavit evidence but, as Décarie J.A. states in MacInnis, supra, that is not the test. I am of the view that in all of the circumstances, affidavit evidence is not inadequate so as to allow a proper determination of the relevant issues.
[7] For these reasons, the applicant's motion will be denied. However, notwithstanding Ms. Park's forceful arguments that I should dismiss the motion with costs in favour of the respondent, no costs shall be allowed on the motion.
Marc Nadon
JUDGE
OTTAWA, Ontario
February 6, 2001