Date: 20060925
Docket:
T-498-06
Citation:
2006 FC 1132
Ottawa, Ontario, the 25th day of September
2006
Present: Mr. Justice Blais
BETWEEN:
SKANDER
TOURKI
Applicant
and
THE
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion by the respondent
Minister of Public Safety and Emergency Preparedness to appeal the order of
Prothonotary Richard Morneau, dated June 28, 2006, allowing the applicant an
extension of time in which to file some documents in support of his affidavits.
[2] The respondent generally submits
that the documents requested to be filed are clearly inadmissible in a judicial
review since they were not before the administrative decision-maker.
[3] It is true that the documents in
question result from examinations that occurred subsequent to March 10, 2004, in another proceeding. However,
it must be conceded that this proceeding is directly related to the matter now
before this Court.
[4] In fact, Prothonotary Morneau did
not rule on whether or not the documents in question were admissible, but
instead deferred his decision to the judge on the merits, given the
circumstances. It is obvious from this case that the respondent preferred to
base his argument on the admissibility of the documents in question instead of reviewing
the decision of Prothonotary Morneau in light of the conditions that might
warrant setting aside a decision of a prothonotary on appeal.
[5] The reasons for setting aside a
prothonotary’s decision on appeal were clearly laid down in Canada v.
Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, paragraphs 94-95, (1993) 149
N.R. 273:
I also agree with
the Chief Justice in part as to the standard of review to be applied by a
motions judge to a discretionary decision of a prothonotary. Following in
particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at
page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R.
(2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be
disturbed on appeal to a judge unless:
(a) they are
clearly wrong, in the sense that the exercise of discretion by the prothonotary
was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise
questions vital to the final issue of the case. . . .
Where such
discretionary orders are clearly wrong in that the prothonotary has fallen into
error of law (a concept in which I include a discretion based upon a wrong
principle or upon a misapprehension of the facts), or where they raise
questions vital to the final issue of the case, a judge ought to exercise his
own discretion de novo.
[6] In my opinion, this case involves
an interlocutory decision by the Prothonotary that cannot be characterized as
clearly wrong, since the documents in question are fully relevant to this case
and relate to the same facts. The relevant question is whether they might
possibly be admissible in Court since they constitute testimony subsequent to
the decision that is the subject of the application for judicial review.
[7] It is also clear that the
statements of the persons who were examined are in relation to the facts that
occurred prior to the decision made by the decision-maker. Persons who were
examined could be examined de novo on the application for judicial
review, and might possibly be confronted with their prior statements on the
same matter, even after the decision that is being judicially reviewed. Such a
request is quite plausible for the purpose of verifying the credibility of the
persons involved.
[8] In my opinion, it was not
unreasonable or wrong on the part of the Prothonotary to find that the
relevance and admissibility of these documents, which are essentially the
transcript of examinations, will be determined by the judge in the course of
the hearing.
[9] As to whether the Prothonotary’s
decision bears on a question that is vital to the final issue of this case,
that is clearly not the case since deferring the final decision on the
admissibility of the documents to the judge who will hear the application for
judicial review clearly indicates that it will be the trial judge and not the
Prothonotary who will have to decide whether the documents are admissible
during the hearing on the application for judicial review.
[10] I conclude, therefore, that the
moving party has failed to provide sufficiently persuasive evidence that would warrant
this Court to intervene de novo in this case and set aside the decision
of the Prothonotary.
[11] Accordingly, the Court dismisses the
respondent’s motion, with costs.
ORDER
THE COURT ORDERS:
1. The respondent’s motion is
dismissed; and
2. Costs to the applicant.
Judge
Certified true
translation
Brian McCordick,
Translator
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