Date: 20030919
Docket: A-192-03
Citation: 2003 FCA 345
BETWEEN:
DANNY LESKIW
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
"Dealt with in writing without appearance of parties."
Order delivered at Ottawa, Ontario, on September 19, 2003
REASONS FOR ORDER BY: MALONE, J.A.
Date: 20030919
Docket: A-192-03
Citation: 2003 FCA 345
BETWEEN:
DANNY LESKIW
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
[1] The appellant has appealed the order of Snider J. dated the 9th day of May, 2003 which dismissed his application for judicial review.
[2] In support of his appeal, Mr. Leskiw filed a motion on July 18, 2003 requesting the following relief:
(a) an order to include the following documents in the appeal book in accordance with rule 343 (3):
- pages no. 000051 and 000052 of the "Observation" document;
- page 135 re: "General Enquiry Reply" dated 9/5/00;
- pages no. 000104 and 000105, re: Ms. Cameron's letter of February 27, 2001
(collectively "the Disputed Documents")
(b) an order granting leave to the appellant under Rule 351 to present the Disputed Documents as new evidence on a question of fact; such evidence being obtained under the authority of the Privacy Act, R.S. 1985, c. P-21.
(c) an order granting leave to the appellant under Rule 351 to present new evidence on a question of fact; such evidence being obtained from Ms. Principe of the Human Resources Development Commission, a few moments prior to the appellant's hearing before the Review Tribunal on April 17, 2001.
(the "Cameron Document")
[3] The respondent opposed the appellant's motion and by separate order, I dismissed the appellant's motion for the reasons which follow.
[4] During the course of the Federal Court proceedings, the appellant brought a motion seeking to have the Disputed Documents included as part of an Amended Application Record for the purposes of his judicial review application. This motion was denied by order of Roger R. Lafreniere, Prothonotary, on July 12th, 2002. The appellant did not appeal the Prothonotary decision and the documents did not form part of the record before Snider J.
[5] The appellant now seeks leave to have the Disputed Documents presented as new evidence on appeal. To be admitted, new evidence must not have been discoverable before the end of the hearing appealed from through the exercise of reasonable diligence, must be credible and must be practically conclusive of an issue on the appeal. (Frank Brunkhorst Co. v. Gainers Inc. (1993), 42 A.C.W.S. (3d) 773 (F.C.A.)) In this case, this test has not been met. The Disputed Documents were well-known to the appellant prior to the end of the hearing before Snider J. Further, no appeal of the Prothonotary decision of July 12, 2002 was launched by the appellant.
[6] As to the Cameron Document, it was not before Snider J. although it was in the appellant's possession as early as the April 17, 2001 Review Tribunal hearing. Again, the document was "discoverable" well prior to the judicial review hearing. I would also note that in any event, given the words of the statute dealing with the disputed benefit, the Cameron Document is far from conclusive of the main issue on appeal.
[7] No costs were sought and none will be awarded to the respondent.
"B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-192-03
STYLE OF CAUSE: DANNY LESKIW v. ATTORNEY GENERAL OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DATED: SEPTEMBER 19, 2003
REASONS FOR ORDER OF THE COURT: MALONE J.A.
WRITTEN REPRESENTATIONS BY:
Mr. Danny Leskiw FOR THE APPELLANT
Ms. Margaret Jarmoc FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT