Date: 20030103
Docket: T-1209-02
Neutral citation: 2003 FCT 4
BETWEEN:
FRANÇOIS ALAIN MOUSSA
Applicant
and
THE PUBLIC SERVICE COMMISSION
and THE IMMIGRATION AND REFUGEE BOARD
Respondents
REASONS FOR ORDER
HARGRAVE P.
[1] The Applicant, a lay litigant, who now acts for himself, seeks a review of a 28 June 2002 decision by the Public Service Commission dismissing the Applicant's complaint of racial discrimination and harassment.
[2] The present motion in writing, on its face, seeks an extension of time for filing a supplementary affidavit, said to be pursuant to section 18.1(2) of the Federal Court Act. Properly a motion for the late filing of an affidavit, or an additional affidavit, as the case may be, falls not under the Federal Court Act, but rather under the Federal Court Rules, being either an extension of the 30-day time requirement, for the filing of affidavits, mandated by Rule 306, or an additional affidavit, under Rule 312.
CONSIDERATION
[3] The Respondents characterize the issue, in the introduction to their written argument, as leave to file a supplemental affidavit, but then go on to apply the test for leave to file a late affidavit. The situation is also ambiguous in that the Respondents' affidavits were due 24 November 2002, but have not yet been received by the Court for filing, although the Applicant, in a letter of 11 December 2002 a copy of which was received by the Court, discusses the deferment of cross-examination on affidavits, indicating that the Respondents' affidavits may have been served. Thus the present motion could be either for leave to file an affidavit late or for leave to file a supplemental affidavit in the sense of a reply affidavit. To avoid further paper work and delay I will deal with both possibilities. However, first, I would observe that the Applicant may not change the style of cause as he has done at various places in his 3 December 2002 material: the proper style of cause, unless the Court were to order otherwise, is that set out above.
Evidence Before the Tribunal
[4] Before dealing with the request for some form of a time extension I would note that the Applicant fails to clear an initial hurdle. Judicial review is to examine a decision of a tribunal in the light of the evidence which was before the tribunal. Any other evidence is irrelevant in determining whether or not there might be grounds for review and here I would refer to Asafov v. Canada (MCI), an unreported 18 May 1994 decision of Mr Justice Nadon, as he was then, in file IMM-7425-93. The point that a court, sitting on a judicial review matter, may consider only evidence that was before the original decision-maker, is one which was also emphasized by Mr Justice MacKay in Wood v. Canada (AG) (2001), 199 F.T.R. 133 (F.C.T.D.) at 140 - 141. However, none of this was dealt with in the written argument. Thus, I will also deal with the merits of the motion.
Late Filing of an Affidavit
[5] Leave to file an affidavit beyond the 30-day time limit is governed by weighing two elements, one against the other, the first being the reasons for the delay and the second being the intrinsic worth of the affidavit, the assessment of worth involving a consideration of relevance, admissibility and potential use to the Court. Here counsel for the Respondents refers to Prouvost S.A. v. Munsingwear Inc., [1992] 2 F.C. 541, a decision of the Federal Court of Appeal. I will refer to three additional cases, Canadian Parks and Wilderness Society v. The Banff National Park (1994), 77 F.T.R. 218 (F.C.T.D), a decision of Mr Justice MacKay, Maxim's Ltd. v. Maxim's Bakery Ltd. (1990), 37 F.T.R. 199 (F.C.T.D.), a decision of Mr Justice Strayer, as he then was and Strykiwsky v. Mills, an unreported 1 September 2000 decision of Mr Justice Muldoon in file T-389-00.
[6] In the Banff National Park case Mr Justice MacKay said:
| [13] In Munsingwear Inc. v. Prouvost S.A., [1992] 2 F.C. 541 (C.A.); 141 N.R. 241 (F.C.A.) Mr. Justice Décary for the Court of Appeal dealt with criteria for considering leave for late filing of affidavits pursuant to Rule 704(8) in an appeal from the decision of the Registrar of Trade Marks under section 56 of the Trade Marks Act, R.S.C. 1985, c. T-13, in which by Rule 704 a time is limited for filing additional evidence. While this is not such a case, in my view the criteria there relied upon are applicable in this case, where leave is sought to file materials later than the date fixed by Court order. Those requirements are that the court consider the reasons for the delay and the intrinsic worth of the affidavit, i.e. its relevance, admissibility and potential use to the court. |
In Maxim's case Mr Justice Strayer said:
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[3] The jurisprudence is clear that in an application for an extension of time under sub-rule 704(8) the Court should take into account both the reasons for the delay and the intrinsic worth of the affidavits (i.e., relevance, admissibility, and potential use to the Court). It has been said in some of the cases that both factors must be weighed together. [Footnote: See e.g. McDonald's Corp. et al. v. Silcorp Ltd./Silcorp Ltée (1987) 17 C.P.R. (3d) 478 at 479-80 (F.C.T.D.); Joseph E .Seagran & Sons v. Seagram Real Estate Ltd. et al. (1988) 23 C.P.R. (3d) 283 at 284] Accepting this to be the correct approach for present purposes, I understand it to mean that one must still weigh the seriousness of the delay against the potential value of the affidavits and that either may outweigh the other. Taking that approach, I believe that in this case the delay and the lack of excuse for it outweighs the potential value of these affidavits. |
While these two cases were decided under the old rules, the test is the same under the Federal Court Rules of 1998: for example see Strykiwsky v. Mills, supra, at paragraphs 7 through 9.
[7] In the present instance the Applicant has overlooked the convention of providing the affidavit which he wishes to file late. However, from the material it is apparent that he wishes to file, as exhibits to a new affidavit, three documents: first, his own letter of 2 August 2002, to Ms Bernier, Director of Human Resources at the Immigration and Refugee Board; second, a 26 November 2002 letter from the Executive Director of Immigration and Refugee Board; and third, a 3 December 2002 response from the Applicant to the Executive Director.
[8] The Applicant sets out no reason for the late filing of the material other than that he received conflicting advice. Conflicting advice, in the present context, is not a reason of substance, for when the Applicant filed his initial affidavit material, 24 October 2002, he was represented by counsel. The Applicant does not say that he was let down by the previous counsel, but merely that he received conflicting advice as to when material ought to have been filed. Nor does he explain the nature of the conflicting advice, or from whom it was received. However, more telling, is the absence of any intrinsic worth in the material.
[9] The three letters which the Applicant wishes to introduce are, in part, unrelated to the present issue, in part a reiteration of general argument which was apparently before the Board and in part general allegations which, if they were not made to the tribunal, could have been made. The material also apparently deals with a request that the Applicant procure narcotics for a government employee, includes argumentative material, on the part of the Applicant, as to whom he should deal with at the Refugee Board and, in the 3 December 2002 letter, among other things, requests that he be advised about some form of disciplinary action, the nature of which is unclear.
[10] None of the letters appear the least bit relevant or of any potential use to the Court in examining the 28 June 2002 decision of the Public Service Commission. Relevance is closely connected with admissibility. Facts that are irrelevant are not admissible.
[11] The Applicant has, as I say, given no satisfactory explanation as to the reason for the delay in seeking to file the material. Moreover, the material has no intrinsic worth. The request for time extension, to file the affidavit after the Rule 306 time limit of 30 days has expired, is without any foundation.
Filing of an Additional or Supplemental Affidavit
[12] Mr Justice of Appeal Nadon, in Lapointe Rosenstein v. Atlantic Engraving Ltd., an unreported 16 December 2002 decision in file A-682-01sets out, at paragraphs 8 and 9, the conditions which must be met, under Rule 312, in order to file additional affidavit material:
| [8] Pursuant to rule 306 of the Federal Court Rules, 1998, an applicant has thirty days from the filing of its notice of application to file its supporting affidavits and exhibits (appeals under section 56 of the Trade-marks Act fall within Part 5 of the Rules entitled "Applications" (rules 300 to 334) and therefore must be commenced by way of a notice of application). By exception, rule 312 allows a party, with leave of the Court, to file additional affidavits. Under that rule, the Court may allow the filing of additional affidavits if the following requirements are met: 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.)). |
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[9] 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. v. Salton Inc. (2000), 181 F.T.R. 146, 4 C.P.R. (4th) 491 (T.D.); Inverhuron & District Ratepayers Assn. v. Canada (Min. of Environment) (2000), 180 F.T.R. 314 (T.D.)). |
I must therefore consider whether the new material would serve the interest of justice; whether the evidence would assist the Court; and whether the evidence would cause substantial or serious prejudice to the other side, in the sense of prejudice which could not be compensated for in costs. Here I need not deal with the fourth test, that of whether the additional material was or was not available before cross-examination on affidavits, for cross-examination has not yet taken place.
[13] Given that I have already determined that the material is not relevant and has no potential use to the Court, the material which the applicant wishes to file will neither serve the interests of justice nor assist the Court.
[14] The new material, being completely unrelated to the application for judicial review, would in all likelihood cause substantial if not serious prejudice to the Respondents for I do not see that the Respondents can be in a position to deal with irrelevant and argumentative material, some of which is clearly not within the context of the present application. These sorts of difficulties constitute prejudice which cannot be compensated for by way of costs. Thus, in the context of Rule 312, leave to file an affidavit in addition to that provided for in Rule 306 is denied.
[15] The motion, to file an additional or supplemental affidavit, depending upon how one characterizes the issue, is denied.
[16] The Respondents, who seek costs, will have their costs at $400.00, payable forthwith.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
3 January 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-1209-02
STYLE OF CAUSE: François Alain Moussa v. The Public Service Commission and The Immigration and Refugee Board
REASONS FOR ORDER OF: Hargrave P.
DATED: 3 January 2003
WRITTEN REPRESENTATIONS BY:
François Alain Moussa APPLICANT on his own behalf
Keith J Richardson FOR RESPONDENTS
SOLICITORS ON THE RECORD:
François Alain Moussa APPLICANT on his own behalf
Vancouver, British Columbia
Morris A Rosenberg FOR RESPONDENTS
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia