Date: 20030805
Docket: IMM-5052-01
Citation: 2003 FC 951
Ottawa, Ontario, this 5th day of August, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ARTHUR FROOM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Froom has asked for the Court's permission to file an affidavit supplementing the materials he tendered in his application for judicial review. He had previously attempted to file a similar affidavit in December 2002, but he missed the deadline of December 2nd. On January 20, 2003, Justice Blanchard turned down Mr. Froom's request for an extension of time. Mr. Froom argues that the circumstances have changed and that he should now be allowed to file his affidavit. I disagree.
[2] Justice Campbell was scheduled to hear the judicial review application on January 29, 2003. However, he decided that the case required more than 2 hours of argument and adjourned the proceedings. He also ordered the respondent to submit an additional written argument in response to Mr. Froom's memorandum. The Court will hear the case on September 9, 2003.
[3] In Mr. Froom's judicial review application, he argues, in part, that the deportation proceedings against him amount to an abuse of process. In particular, he suggests that the deportation is a disguised extradition. Mr. Froom submits that Justice Campbell's order gave added emphasis to that argument. Accordingly, he says, he should be allowed to provide the Court with further evidence by way of his affidavit.
[4] But Justice Campbell said nothing about allowing further evidence to be tendered. In effect, he required the respondent to address the issue of abuse of process based on the materials already before the Court. The respondent has now filed its written argument and Mr. Froom has replied to it. Allowing further evidence to be tendered at this stage could involve the following further steps: a request from the respondent to file additional written arguments or a reply affidavit; cross-examination of Mr. Froom by the respondent; cross-examination on any affidavit filed by the respondent; a motion by the respondent to strike portions of Mr. Froom's affidavit; and, possibly, a request by Mr. Froom to file a further reply to the respondent's additional arguments. All of this would have to be completed before the hearing on September 9th.
[5] I have reviewed all of the materials filed on this judicial review application and note that Mr. Froom has advanced the argument about abuse of process throughout. I am satisfied that he will be able to argue the issue without his supplementary affidavit.
[6] I accept Mr. Froom's argument that I may receive a supplementary affidavit where it would assist the Court and advance the interests of justice, so long as the opposite party would not be prejudiced: Bayer AG v. Canada (Minister of National Health and Welfare), [1994] F.C.J. No. 1522 (QL) (T.D.); Eli Lilly & Co. v. Apotex Inc., [1997] F.C.J. No. 1240 (QL) (T.D.). This is true even if the affidavit contains evidence not before the adjudicator whose decision is being challenged - for example, if the affidavit contains helpful background information, disputes the adjudicator's grounds for refusing to deal with the merits of a claim, or relates to an issue of fairness or natural justice: Chopra v. Canada (Treasury Board), [1999] F.C.J. No. 835 (QL) (T.D.); Ou v. Canada (Minister of Citizenship & Immigration), [1999] F.C.J. No. 235 (QL) (T.D.); Liidlii. Kue First Nation v. Canada (Attorney General), [2000] F.C.J. No. 1176 (QL) (T.D.)
[7] However, given that the issue here can be addressed and decided without it, I do not believe Mr. Froom's affidavit would assist the Court or advance the interests of justice. Further, the respondent may well be prejudiced if I were to accept the affidavit at this point. Finally, Mr. Froom's affidavit does not raise an issue of fairness or natural justice relating to his hearing before the adjudicator. He makes a broader argument relating to the interaction of the immigration and extradition processes. Again, I believe he is able to advance this argument without relying on further evidence.
[8] Accordingly, this motion is dismissed, with costs.
ORDER
THIS COURT ORDERS that:
1. The motion is dismissed with costs.
"J.W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-5052-01
STYLE OF CAUSE:
ARTHUR FROOM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
APPLICANT'S MOTION HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO
DATE OF HEARING: August 5, 2003
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE
AND ORDER: JAMES O'REILLY
DATED: August 5, 2003
APPEARANCES:
Mr. Lorne Waldman FOR THE APPLICANT
Ms. Alexis Singer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates FOR THE APPLICANT
281 Eglinton Avenue
Toronto, Ontario M4P 1L3
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario