Date: 19981119
Docket: T-917-98
BETWEEN:
BLAKE RANDALL WRIGHT,
Applicant,
- and -
THE WARDEN OF MISSION
INSTITUTION, THE DEPUTY WARDEN
OF MISSION INSTITUTION, MIKE TRELOAR,
GREGORY ROBERTSON, THOMAS BRYANT,
THE NATIONAL PAROLE BOARD,
THE CORRECTIONAL SERVICE OF CANADA,
and HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY THE SOLICITOR GENERAL,
Respondents.
REASONS FOR ORDER
MR. JOHN A .HARGRAVE,
PROTHONOTARY
[1] By this motion in writing, the Applicant seeks leave to have this application go forward as a specially managed proceeding and to allow the filing of both an additional affidavit and a supplementary record, with the Administrator of the Court to prepare the supplementary record.
[2] In the present instance, the records of both parties have been served and, subject to any further affidavits and a supplementary record being allowed, the matter is ready to set down for a hearing.
SPECIAL CASE MANAGEMENT
[3] Dealing first with the request that this matter proceed as a specially managed case, the Applicant sets out that he is now acting for himself and therefore requires additional time to review material and documents and to prepare his case. His concern is that the usual time frame is something which he cannot achieve.
[4] In the present instance, for reasons which I will shortly set out, I have denied the application to file further affidavit material. The records, which have to date been filed, are workmanlike and while they are substantial they are not oppressivly so. Thus, on that score, no additional time ought to be required.
[5] There is, before the Court, another matter, involving objections to documents requested from the tribunal under Rule 317 and objected to under Rule 318. There is no reason why that procedure, or any material which might thereby be let into this judicial review proceeding, by reason of relevance, ought to require a specially managed proceeding. There being no convincing reason for special management, the first portion of the Applicant's motion for specially managed proceeding status is denied. I now turn to the second portion of the motion, leave to file further affidavits and a supplementary record.
FURTHER AFFIDAVITS AND SUPPLEMENTARY RECORD
[6] The Applicant submits that an additional affidavit will provide the Court with evidence relevant to the issues through providing material which the Applicant's former counsel failed to introduce. Beyond that the proposed material is not identified.
[7] A good starting point from which to consider a supplemental affidavit is Nguyen v. M.E.I., an unreported 10 September 1993 decision of Madame Justice Reed in IMM-2574-93. At issue there was an application to file, under cover of supplementary affidavit, a transcript of the relevant proceedings of the board. Madame Justice Reed concluded that while the Rules then in effect did not specifically provide for the filing of additional affidavit evidence, there was no specific barrier in the Immigration Rules and indeed, what was then Rule 6, of the Federal Court Rules, now Rule 55, allowed the Court, in special circumstances and subject to such conditions as it might consider appropriate, by order, to dispense with compliance with any Rule in the interest of justice. In the result a "very, very brief" supplemental affidavit, attaching a copy of the official transcript of the board's proceedings, was accepted for filing, for Madame Justice Reed felt that the transcipt of the hearing was exactly the sort of material, given the circumstances and the arguments being made by counsel, that the Court could, in any event, order filed pursuant to Federal Court Immigration Rule 14(2). It is clear from the Nguyen case that the circumstances in which supplemental affidavit material might be filed are limited.
[8] The Court has, from time to time, denied leave to file an affidavit in reply. This is particularly so where the subject matter of the reply affidavit has either been fully or could have been fully covered by the Applicant in his initial affidavits in support of the application for leave and judicial review. In such instances a supplemental affidavit is inappropriate. The principle on which this is based was set out by Mr. Justice Strayer, as he then was, in Lioubimenko v. M.C.I. (1994) 79 F.T.R. 233 at 234, where, in rejecting supplemental affidavit material, he said in part:
| In the first place the materials now filed as a belated reply to the submissions of the respondent on the origianl application for an extension of time are not, for the most part, the proper subject of a reply. They purport to make arguments which the applicants should have made in the original application. |
[9] In the present instance, the Applicant submits merely that the supplemental affidavit material is necessary by reason of a failure, on the part of previous counsel, to introduce the material in an initial affidavit and that it would provide the Court with material evidence relevant to the issues.
[10] For the most part, counsel and client are one. There is no evidence of any specific oversight or neglect by counsel. Counsel is an experienced person. The admission that the material might have been included with the affidavits initially filed is damaging. I am also bothered by the fact that the nature of the material is unspecified. I am not convinced that there are special circumstances which would justify a supplemental affidavit. The request is refused.
[11] As to a supplemental record, that is said to be necessary in order to provide additional case authority. The Rule which allows a supplemental record, Rule 312(c), is a new one. At the very least, a party seeking to file a supplemental record ought to explain quite specifically the material which should go into the supplemental record. That is not been done. I have no information upon which to exercise my discretion. Leave to file a supplemental record is denied.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
septembre 20, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-917-98
STYLE OF CAUSE: BLAKE RANDALL WRIGHT
v.
THE WARDEN OF MISSION INSTITUTION ET AL.
MOTION DEALT WITH IN WRITING WITHOUT
APPEARANCE OF COUNSEL.
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated November 19, 1998
WRITTEN SUBMISSIONS BY:
Mr. B.R. Wright on his own behalf
Ms. Donnaree Nygard for Respondents
SOLICITORS OF RECORD:
Morris Rosenberg for Respondents
Deputy Attorney General
of Canada