Date: 20000629
Docket: T-862-99
Ottawa, Ontario, this 29th day of June, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
ED TREVENA
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is a motion by Ed Trevena ("applicant") for an Order pursuant to Rule 312(a) of the Federal Court Rules, 1998 ("Rules") granting leave to the applicant to file supplementary affidavit material in addition to those provided for in Rules 306 and 307. The proposed supplementary affidavit material is to consist of:
| 1. Paragraphs 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 21, 22, 23, 24, 25, 26, 27, 29, 36, 49, 51, 53, 56 and 62 of the affidavit of Ed Trevena which was sworn on February 4, 1999; |
| 2. Paragraphs 4, 5, 6 and 7 of the affidavit of Blain Pilatzke; |
| 3. The affidavits of John Reid, Patton Maclean, Mike Cooper, Don Perala, Brenda Howard, Anna Pawliw, Jim Knoblauch, Keith Brock, Rose Gould and Tim Roberts; |
| 4. The affidavit of Mark Catterall; |
all of which have previously been filed during the conduct of this application, except for the affidavit of Mark Catterall.
| [2] The additional evidence is sought to be adduced in a judicial review application |
initiated by the applicant. The application involves a decision of arbitrator Ken Norman who ruled that the applicant"s employer, Revenue Canada, had just cause to dismiss the applicant.
| [3] The applicant had been terminated on June 6, 1997 and arbitrator Norman heard |
the applicant"s grievance on October 6 and 7, 1998 and rendered his decision on November 25, 1998.
| [4] This motion to file further evidence is opposed by the Attorney General of |
Canada, who is the respondent in the application for judicial review.
| [5] In an earlier motion made by the respondent to the application for judicial review, |
the additional affidavit evidence now sought to be filed by the applicant under paragraphs (1)(a), (b) and (c) of his notice of motion was ordered struck out. In the earlier motion, McDonald J.A. granted the motion to strike various paragraphs from the filed affidavits (listed at paragraph 1(a) and (b) of the current notice of motion) for the reason that, "each of these paragraphs either seeks to introduce new evidence without leave, or improperly contains opinion, speculation or argument". As well, McDonald J.A. granted a motion to strike the affidavit evidence referred to in paragraph (1)(c) of the current notice of motion because these affidavits sought "to introduce new evidence which was not before the adjudicator and are not admissible without leave of the court".
| [6] The Order of McDonald J.A. also set the terms for the filing of any supplemental |
or reply evidence:
| The Applicant shall file any replacement or supplemental Affidavit(s) for the purposes of Rule 306 on or before May 31, 1999. If the applicant wishes to file new evidence which was not before the adjudicator, he must seek leave from the Court to file additional affidavits pursuant to Rule 312(a) of the Federal Court Rules, 1998. |
| [7] The applicant did not bring a motion to file additional affidavits by May 31, 1999 |
and on June 30, 1999, the respondent filed its affidavit evidence. And as the applicant did not file his Motion Record as required by Rule 309, the application went to status review under Rule 380(1)(b).
| [8] On December 16, 1999, a status review hearing was held before Lutfy J. (as he |
then was) and the applicant raised the possibility of introducing the affidavit evidence of Mark Catterall and asked the respondent for its consent to file the affidavit. The respondent took no position as it had not yet seen the affidavit. Lutfy J. (as he then was) issued a direction which read, in part:
| The applicant shall serve and file on or before January 18, 2000, if necessary and if the consent of the respondent has not otherwise been obtained, a motion for leave to produce supplementary affidavit material. |
| [9] The applicant"s present motion requests leave not only to file the Mark Catterall |
affidavit, but leave as well to file the affidavit material which had earlier been struck by Mr. Justice McDonald.
Issues
| [10] 1. Should the applicant"s motion for leave to file additional affidavit |
evidence be granted?
| 2. If the applicant is allowed to introduce additional affidavit evidence, should the respondent be granted an extension of time to cross-examine on the affidavit evidence filed before the Court? |
| 3. If the applicant is allowed to introduce additional affidavit evidence, should the respondent be granted an extension of time to file affidavit evidence in response to the additional affidavit evidence filed by the applicant? |
Law
| [11] Rule 312(a) of the Federal Court Rules, 1998 states: |
| 312. With leave of the Court, a party may (a) file affidavits additional to those provided for in rules 306 and 307; |
312. Une partie peut, avec l'autorisation de la Cour: a) déposer des affidavits complémentaires en plus de ceux visés aux règles 306 et 307; |
| [12] Issue 1 |
Should the applicant"s motion for leave to file additional affidavit
evidence be granted?
I will deal first with the request for leave to file the affidavit evidence that was struck by the Order of McDonald J.A. on May 6, 1999. Justice McDonald struck the affidavit evidence and directed that should the applicant wish to file replacement or supplemental affidavits, such were required to be filed on or before May 31, 1999. The applicant did not meet this deadline nor did the applicant apply for an extension of time in which to file the replacement or supplemental affidavits. I also note that it appears that the affidavit evidence struck by McDonald J.A. was not addressed at the status hearing before Lutfy J. (as he then was).
| [13] There is no doubt that Rule 312(a) provides for the filing of additional affidavits |
with leave of the Court. But in this motion, the applicant seeks leave to file affidavit evidence that McDonald J.A. ordered to be filed by May 31, 1999. I am not prepared to grant leave to file this affidavit evidence as the Order of McDonald J.A. provided a time frame for filing this affidavit evidence and it was not complied with. The Court must give meaning to its own Orders. This disposes of the relief requested in paragraphs 1(a), (b) and (c) of the applicant"s motion.
| [14] Paragraph 1(d) of the applicant"s motion is a request for leave of the Court to file |
the affidavit of Mark Catterall. The law in this Court with respect to additional affidavits was stated by Prothonotary Hargrave in Fogal et al v. Canada et al (1999), 161 F.T.R. 121 (F.C.T.D.) at pages 124-25:
| Madame Justice Reed did not remain alone for long in allowing supplemental affidavit material to be filed in judicial review proceedings: see, for example, Unitel Communications Inc. v. Bell Canada (1994), 82 F.T.R. 298 (T.D.) and Adria Laboratories of Canada Ltd. et al. v. Canada (Minister of National Health and Welfare) et al. (1995), 182 N.R. 313 (F.C.A.). I take the general rule, for additional affidavits, to be that the main concerns ought to be whether the additional material will serve the interests of justice, will assist the court and will not seriously prejudice the other side: see for example Eli Lilly & Co. et al. v. Apotex Inc. et al. (1998), 137 F.T.R. 226 (T.D.), at p. 228, a decision of Mr. Justice Teitelbaum, decided under the old rules. |
| While it was clear from the Nguyen case that the circumstances in which supplemental affidavit material might be filed were limited, the new rule makes it clear that supplemental affidavits may be appropriate. However, in my view, supplemental affidavits should only be allowed in limited 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. |
| In the present instance there are circumstances by which to justify the filing of a supplemental affidavit, for the proposed affidavit, which is attached to the respondents" material, does not set out material which could have been made available at an earlier date. |
| [15] And by Rothstein J.A. in Gitxsan Treaty Society v. Hospital Empl. Union [2000] |
1 F.C. 135 (C.A.) at pages 144-45:
| In my respectful view, the same principle is applicable in this Court. The essential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were not adequately canvassed in evidence at the tribunal or trial court. The latter is what the applicant is inappropriately proposing for this judicial review. This is not the necessity to which Lord Sumner was referring in Nat Bell Liquors, supra. The Court will not entertain new evidence in these circumstances. |
| [16] Thus, it is apparent that although Rule 312(a) of the Rules allows new |
affidavit evidence to be filed on a judicial review application, leave ought not to be granted to file evidence which could have or should have been adduced (or made available) before the arbitrator, or other administrative tribunal, as the case may be.
| [17] I have reviewed the affidavit of Mark Catterall and I am of the view that the |
evidence could have been adduced before the arbitrator. I say this despite the applicant"s statement in his affidavit that the information disclosed in the Catterall affidavit was not disclosed to him until after the hearing. This evidence could have been obtained simply by speaking to Mark Catterall since Mr. Catterall was one of the taxpayers to whom the letter in question was sent. As well, at the hearing, the applicant would have known of Mr. Catterall"s involvement at that time as a memo of a May 2, 1997 meeting was admitted into evidence. The applicant was also present at the meeting in question. Therefore, bearing in mind that a judicial review application is not to be transformed into a trial de novo by the provision of evidence that could have been presented to the tribunal, I decline to grant leave to file the affidavit of Mark Catterall.
| [18] My disposition of the motion does not make it necessary for me to decide issues 2 |
and 3.
| [19] Costs shall be costs in the cause. |
ORDER
| [20] IT IS ORDERED that the motion for leave to submit additional affidavit |
evidence is dismissed.
| [21] IT IS FURTHER ORDERED that costs shall be costs in the cause. |
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
June 29, 2000