Date: 20060704
Docket: T-170-06
Citation: 2006 FC 849
Montréal, Quebec, July 4, 2006
Present: Richard Morneau, Prothonotary
BETWEEN:
IBRAHIM
NJONKOU
Applicant
and
CANADA
REVENUE AGENCY
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is a motion by the applicant under sections 369 and 316 of the Federal
Courts Rules for an order authorizing witnesses to testify at the hearing
on the merits of his application for judicial review.
[2]
Section 316 reads:
|
316.
On motion, the Court may, in special circumstances, authorize a
witness to testify in court in relation to an issue of fact raised in an
application.
(Emphasis
added)
|
316. Dans des circonstances particulières,
la Cour peut, sur requête, autoriser un témoin à témoigner à l’audience quant
à une question de fait soulevée dans une demande.
|
[3]
In Cyanamid Canada Inc. v. The Minister of National Health and
Welfare (1992), 52 F.T.R. 22 (F.C.T.D.), the Associate Chief Justice
of this Court, as he then was, made the following comments with respect to the
exceptional nature of “special reason” in subsection 319(4) of the former
rules of the Court. The wording of subsection 319(4) was very similar to the
current section 316.
It is clear that motions are
to be conducted on the basis of documentary evidence and that it is exceptional
to depart from this practice. Rule 319 of the Federal Court Rules
provides that allegations of fact upon which a motion is based shall be by way
of affidavit although, by leave of the Court and for special reason, a witness
may be called to testify in open Court in relation to an issue of fact raised
by an application. In Glaxo Canada Inc. v. Canada (Minister of National
Health and Welfare) and Apotex Inc. et al. No. 4) (1987), 11 F.T.R. 132,
Glaxo’s application under rule 319(4) for leave to call a witness to give viva
voce evidence in relation to certain issues of fact raised in the application
was dismissed. Rouleau, J., commented (at p. 133):
Under Rule 319 all the
facts on which a motion is based must be supported by affidavit evidence. It is
only ‘by leave of the court’ and ‘for special reason’ that a witness can be
called to testify in relation to an issue. There were no cases presented to me
by counsel for the plaintiff nor am I aware of any case law which identifies
the test as to what constitutes ‘special reason’. In my opinion, this is a
question to be decided on the facts of a particular case with the onus being on
the applicant to prove the existence of ‘special reason’ to the satisfaction of
the court. What is clear from
the jurisprudence is that leave will be granted by the court only in
exceptional circumstances.
[4]
I am not persuaded that there are special circumstances in this case
that would allow the parties to avoid the general procedure of hearing an
application for judicial review on the basis of affidavits.
[5]
It is also interesting to refer to the following comments by the Federal
Court of Appeal when it dealt with a similar request as in this case, i.e. that
an application be treated and proceeded with as an action under subsection
18.4(2) of the Federal Courts Act (see Macinnis v. Canada (Attorney
General), [1994] 2 F.C. 464 (F.C.A.), page 473).
[6]
As Mr. Justice Décary stated in Macinnis, supra, at page
472 regarding subsection 18.4(2) of the Federal Courts Act, I
believe that in the circumstances:
. . . the key test is whether the judge can see that
affidavit evidence will be inadequate, not that trial evidence might be
superior.
[7]
In this case, I am of the view that affidavit evidence will be adequate
for all parties, and that “special circumstances” under section 316 have not
been established.
[8]
Therefore, the applicant’s motion is dismissed, without costs.
ORDER
The applicant’s motion is dismissed, without
costs.
“Richard
Morneau”
Certified true
translation
Mary Jo Egan,
LLB
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