Date: 19991015
Docket: T-1491-99
BETWEEN:
PETER GINTER,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Respondent, by motion in writing, seeks to have two types of documentary evidence and related paragraphs removed from affidavits filed by and in support of the Applicant in this judicial review proceeding. Some of the material which the Respondent seeks to strike out was in all likelihood not before the decision maker and indeed, one document was not in existence when the decision was made: the Applicant acknowledges all of this but submits that the material is, at least for the most part, contextual background information.
[2] The Respondent points out that only evidence which was before the decision-maker ought to be considered on judicial review. A rationale for this is that judicial review is intended to consider errors made by the tribunal: see for example Franz v. M.E.I. (1995), 80 F.T.R. 79 at 80. For the general proposition I would refer to Lemiecha v. M.E.I. (1994), 72 F.T.R. 49 at 51:
| It is trite law that judicial review of a decision of a federal board, commission or other tribunal should proceed on the basis of the evidence that was before the decision-maker. |
However, I intend to leave the affidavits as they stand.
[3] The Court spends time and effort disproportionate to benefit in most instances in which it deals with preliminary jousting over the content of affidavits, content which any judge will, in all likelihood, deal with expeditiously and appropriately when the matter comes on for a full hearing. I commented on this issue in Yazdanian v. M.E.I. (1999) 150 F.T.R. 297 at 298:
| [2] For the sake of efficiency and, as a practical exercise of judicial discretion, parties ought not to be permitted to strike out each others affidavits. This generality is, of course, subject to special circumstances: for example, where an affidavit is abusive or clearly irrelevant; where a party has obtained leave to admit evidence which turns out to be obviously inadmissible; or where the court is convinced that the matter of admissibility should be resolved at an early date so that a hearing may proceed in an orderly manner. There is case law to this effect in a number of decisions including in Home Juice Company v. Orange Maison Ltd., [1968] 1 Ex.C.R. 163 at 166 (President Jackett) and in Unitel Communications Co. v. MCI Communications Corporation (1997), 119 F.T.R. 142 at 143. In the latter Mr. Justice Richard (as he then was) noted that the trial judge would be better placed to assess the weight and admissibility of such affidavit material (pages 143 and 145). Of course conjecture, speculation and legal opinion have no place in an affidavit. |
| [3] In the present instance, counsel for the Respondent submits the affidavits contain new evidence, . . . |
| [4] Counsel for the Applicants submits the material is collateral evidence . . . |
| [5] ... Among other things the impugned paragraphs in the affidavit of Shirin Drudian raise an issue of whether, on the one hand, pertinent documents, incorporated into material which was in fact before the visa officer, are new evidence and thus barred from the judicial review proceeding or, on the other hand, represent an attempt to put public information before the Court. It would be premature to deal with these issues, for the material can be looked at in several ways, a task for which the reviewing judge, once he assesses the application as a whole, will be better suited to perform. |
| [6] ... These are matters that should be determined by the Trial Judge for, as Associate Chief Justice Richard put it in Unitel Communications (supra), when faced with an application to strike out an affidavit: |
| "... I have concluded that it would not be appropriate to proceed with the plaintiffs' motion to strike. This is a matter that should be heard and determined, if necessary, by the trial judge both as to weight and admissibility, and in making this ruling I do not prejudice in any way the parties from making such submissions at the appropriate time to the trial judge who will be designated to hear the expedited issues." (page 145) |
See also, Walker v. Randall, an unreported 24 August 1999 decision of Mr. Justice Teitelbaum, in File No. T-1103-98, in which he also considers Prajapati v. Canada (1996), 103 F.T.R. 37.
[4] Key to successful moving to strike out affidavits, or to remove documents from affidavits, is the existence of special circumstances. Special circumstances may include speculative conjectural or abusive material, legal opinion, and clearly inadmissible or irrelevant material, the early removal of which will allow the eventual hearing to proceed in an orderly manner. No such special circumstances exist in the present instance. The judge who will hear this judicial review application, having a view of the proceedings as a whole, will be in a much better position to deal with weight and admissibility.
ORDER:
| 1. The motion is denied. The affidavits shall remain as they stand, without prejudice to the Respondent making similar representations to the Judge hearing this judicial review application. Taxable costs, set at $350.00, payable by the Respondent to the Applicant in any event at the end of the day. |
(Sgd.) "John A. Hargrave"
Prothonotary
October 15, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1491-99
STYLE OF CAUSE: PETER GINTER
v.
ATTORNEY GENERAL OF CANADA
MOTION DEALT WITH WITHOUT APPEARANCE OF COUNSEL PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: October 15, 1999
WRITTEN SUBMISSION BY:
Mr. Craig Paterson for the Applicant
| Ms. Nicole Gendron for the Respondent |
SOLICITORS OF RECORD:
Paterson & Associates
| Vancouver, BC for the Applicant |
Morris Rosenberg
Deputy Attorney General
| of Canada for the Respondent |