Date: 19980128
Docket: IMM-4616-97
BETWEEN:
ALBERT LOMINADZE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
SECRETARY OF STATE
Respondent
REASONS FOR ORDER
REED, J.:
[1] The respondent brings a motion to strike the affidavit filed in support of the applicant's application for judicial review and, concomitantly, to strike the originating notice of motion which initiated the application. It is first necessary to set out some of the background facts.
[2] The applicant was in Canada on a visitor's visa, from July 1993 to November 1994. He made an application through the Canadian Consulate General in Buffalo for permanent residence in Canada. He was called to the Consulate four times for interviews. On three of those occasions he travelled from Russia at his own expense. On October 1, 1997 the applicant was informed that his application had been refused.
[3] In order to obtain a positive decision he needed to be assessed by the visa officer as meriting 70 points under the point system that is used. He was awarded 67 points. The visa officer gave him "00" out of 10 points for his knowledge of English, and "02" out of 10 for "personal suitability". It is those assessments that the applicant challenges.
[4] The applicant did not, himself, file an affidavit in support of his application. The solicitor who represented the applicant with respect to his application for permanent residence filed an affidavit in his support. That affidavit asserts that while the applicant's English is not as fluent as a native born Canadian, he does not require an interpreter for general conversation. She asserts that, as his counsel, she always interviewed him in English without the assistance of an interpreter, in fact, that he had been interviewed by the R.C.M.P., in her presence, in English, with respect to unscrupulous immigration consultants by whom he had been victimized. She wrote "I have serviced the client for four years in English alone without difficulty". (emphasis added)
[5] The solicitor also attests to the applicant's reaction to the negative decision that he felt frustrated, was upset, thought the visa officer invented much of what was in the decision.
[6] The solicitor sets out in her affidavit some facts that are independently verifiable from the record, e.g. that the applicant is a national of Georgia, residing in Russia, that he made an application for permanent residence status in September, 1993, in Buffalo, the identity of his former counsel, that the applicant had held an employment authorization when he was in Canada.
[7] The solicitor attests to some conclusions of her own: that in her experience it is virtually unheard of for a visa officer to grant less than "05" points for personal suitability when the applicant has functioned in Canada for a period of time without problems. She also alleges that her observations lead her to conclude that applicants from Eastern Europe are treated with hostility and discriminating practice.
[8] With perhaps one or two exceptions, the statements the solicitor makes are matters within her personal knowledge. Certainly, this is true of her knowledge of the applicant's proficiency in English. Her position, as solicitor for the applicant, would also result in her having first hand knowledge of a number of matters, for example, the number of times he had been called for an interview, the identity of his former counsel. Also, given her broader experience, her assertion that hostile and discriminatory practices exist is probably more reliable than such an assertion by her client. I should not be taken as accepting that statement as accurate but merely that it is not inadmissible because of lack of personal knowledge by the affiant. It is a statement of opinion, by someone who appears to have the requisite experience to give that opinion - whether it is supportable by relevant facts is, of course, a matter for the judge weighing the evidence on the merits to decide.
[9] The affiant's comments about her client's reaction to the decision (frustrated, upset) are probably irrelevant but they are, nevertheless, matters about which, as his counsel, she would have personal knowledge.
[10] The assertions with respect to which it seemed to be particularly argued that she did not have personal knowledge are found in three sentences in paragraph 6 and in two sentences in paragraph 10 of the affidavit:
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6...The applicant advised me that at the third interview the officer advised him that she could understand him but that she would like him to return with an interpreter to ensure that she could understand him 100%. He further advised me that at the fourth interview no interview took place, that he was merely informed of possible refusal. The applicant advised me that he told the officer that this type of meeting did not justify his travel to the United States. |
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10...He is of the view that he has not accepted an engineering position in Eastern Europe due to his intention to immigrate to Canada, and advised the officer that he had additional investments that he could liquidate if his immigration was granted, investments not affected by the enormous travelling expenses incurred by him in travelling to four (4) interviews. |
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[11] With respect to the statements in paragraph 10, the solicitor had written a letter, on May 6, 1997, to the Buffalo office on her client's behalf, with respect to the position of the visa officer that her client had to prove that he held liquid assets of a certain amount before he could be issued a visa. She explained, on his behalf, that he had assets that were not liquid but which he planned to liquidate if approval of his application was given. In addition, the visa officer's notes of the interview of the applicant on May 16, 1997, show that the applicant did tell the visa officer that he had at least one asset (one-half of an apartment in Moscow) that he planned to liquidate (whether he could as a practical matter do so in another matter), and that he had not sought employment in Russia recently because he was hoping to immigrate to Canada.
[12] Counsel for the applicant argues that, in any event, the relevant rules for these cases do not require personal knowledge affidavits and, secondly, the Court has no jurisdiction to strike out either the affidavits or the originating notice of motion in a judicial review application.
[13] With respect to the first argument, the rule against hearsay evidence is, of course, no longer absolute: R. v. Smith (1992), 15 C.R. (4th) 133 (S.C.C.); R. v. Seaboyer (1991), 7 C.R. (4th) 177 (S.C.C.); R. v. Khan, [1990] 2 S.C.R. 531 at 540 (S.C.C.); R. v. Terry [1996] 2 S.C.R. 207 (S.C.C.) The tests of necessity and reliability now apply to hearsay evidence and, of course, it is evaluated in terms of weight.
[14] The Federal Court Immigration Rules, 1993, do not contain any absolute prohibition concerning hearsay. Rule 12(1) provides:
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Affidavits filed in connection with an application shall be confined to such evidence as the deponent could give if testifying as a witness before the Court. [emphasis added] |
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[15] Rule 12(1), however, does not apply to the visa officer's decision. Rules 3(2) and Rule 4(2) of the Federal Court Immigration Rules state:
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3.(2) Part V.1 of the Federal Court Rules and Rule 18 of these Rules apply to applications for judicial review of a decision of a visa officer. |
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4.(2) Except to the extent that they may be inconsistent with the Act, Part V.1 of the Federal Court Rules or Rule 18 of these Rules, Parts I, II, III and V1 of the Federal Court Rules apply to applications for judicial review of a decision of a visa officer. |
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[16] It is necessary then to turn to Part V.1 of the Federal Court Rules, and, particularly, Rule 1603(1) found therein:
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1603.(1) At the time of filing the notice of motion, the applicant shall also file one or more affidavits verifying the facts relied on by the applicant. |
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[17] And lastly, Rule 332(1) in Part III of the Federal Court Rules states:
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Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions on which statements as to his belief with the grounds thereof may be admitted |
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[18] Counsel for the applicant argues that Rule 332(1) does not apply because it is inconsistent with (is narrower than) Rule 1603(1). Counsel for the respondent argues that there is no inconsistency and Rule 332(1) merely describes the type of evidence that can be attested to in an affidavit. Rule 332(1) clearly contemplates affidavits of two types: one based solely on personal knowledge; one that contains evidence on information and belief as well as personal knowledge. The dichotomy set out in Rule 332(1), as to when each is admissible, does fit well in the judicial review procedure provided for in Part V.1 of the Rules. I would not interpret the Rules as requiring the application of Rule 332(1) to judicial review proceedings.
[19] I turn then, to the argument that motions to strike are not within the ambit of the judicial review procedure. The jurisprudence seems clear in this regard. The Federal Court of Appeal stated in Pharmacia Inc. v. Minister of National Health and Welfare (1994), 58 C.P.R. (3d) 209, that the remedy of striking out an originating notice of motion was not available in such proceedings:
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The basic explanation for the lack of a provision in the Federal Court Rules for striking out notices of motion can be found in the differences between actions and other proceedings. An action involves, once the pleadings are filed, discovery of documents, examinations for discovery, and then trials with viva voce evidence. It is obviously important that parties not be put to the delay and expense involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action. .... |
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...the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. |
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[20] At the same time, the Court of Appeal stated, in Pharmacia, that the Court had authority to dismiss a notice of motion in a summary manner if it was so clearly improper as to be bereft of any possibility of success. The Court of Appeal noted that such cases must be very exceptional.
[21] The decision in Pharmacia has been followed in Primetronics Inc. v. The Queen (T-1130-96, January 27, 1997) (F.C.T.D.) and had a precursor in Granville Shipping Co. v. Pegasus Lines Ltd. (1994), 86 F.T.R. 77.
[22] The decision in Moldoveanu v. Minister of Citizenship and Immigration (A-413-97, August 27, 1997) is of no assistance to the respondent. It only deals with whether or not the certification of a question was necessary in the circumstances of that case for the appeal to proceed. Equally, I do not find Wang v. Minister of Employment and Immigration (1991), 12 Imm. L.R. (2d) 178 (F.C.A.) useful. That decision predates the Pharmacia decision. More importantly, it did not deal with a preliminary or interlocutory motion to strike. The Wang decision dealt with a decision by the reviewing judge, when making a decision on the merits, to disregard (strike from the record) a memorandum written by the visa officer but filed under cover of an affidavit sworn by another officer. Indeed, it appears that the "striking from the record" did not formally occur until sometime after the decision on the merits was made (see footnote 1 on page 182). The issue before the Court of Appeal was not whether a motion to strike an affidavit was appropriate in the judicial review context, but the result that should follow when a judge has decided that a certain part of the evidence should not be relied upon and then the judge relies upon it. The Court of Appeal found that the judge's decision could only have been made by reference to the evidence that had been found to be inadmissible.
[23] In conclusion: (1) it is only minor and inconsequential aspects of the affidavit in question that are based on hearsay; (2) it is at least arguable that the content of the affidavits filed with respect to reviews of visa officer decisions are not governed by Federal Court Rule 332(1), but by Rule 1603, and that the latter is less restrictive than the former; (3) there is no jurisdiction to strike out affidavits or originating notices of motion in a judicial review proceeding; (4) the appropriate procedure, in general, is to leave the particular affidavit for evaluation by the judge that hears the application on the merits.
[24] There is jurisdiction to dismiss an originating notice of motion, in a summary manner, where the notice of motion is so clearly improper as to be bereft of any possibility of success. This is not one of those circumstances.
[25] Counsel for the applicant asked that I award costs to his client, in this case, on a solicitor/client basis. The usual rule is that costs are not awarded to either party in judicial review proceedings. Counsel for the applicant argues that the motion to strike has created unnecessary costs for his client, which the client should not have to bear. It is argued that the motion to strike was frivolous and completely unwarranted on the basis of the facts and the applicable jurisprudence.
[26] I agree that there is some uncertainty about which provision of the Federal Court Rules is applicable to supporting affidavits in these proceedings. I accept that there are two Trial Division decisions that appear to have taken a different approach from that set out in the Pharmacia decision. These are on appeal. They are Moldeveneau v. Minister of Citizenship and Immigration (A-413-97) and Romachkine v. Minister of Citizenship and Immigration (A-412-97). At the same time, so little of the impugned affidavit is of a type that, in any event, could be classified as inadmissible hearsay, that I must accede to the characterization of the motion as frivolous. The costs that are sought will therefore be awarded.
"B. Reed"
Judge
Toronto, Ontario
January 28, 1998
FEDERAL COURT OF CANADA
Date: 19980128
Docket: IMM-4616-97
BETWEEN:
ALBERT LOMINADZE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION, SECRETARY OF STATE
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4616-97
STYLE OF CAUSE: ALBERT LOMINADZE
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION, SECRETARY OF STATE |
DATE OF HEARING: JANUARY 26, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: JANUARY 28, 1998
APPEARANCES: Rocco Galati
For the Applicant
Jeremiah A. Eastman
For the Respondent
SOLICITORS OF RECORD:
Rocco Galati, B.A., LL.B., LL.M.
Barrister and Solicitor
637 College Street
Suite 203
Toronto, Ontario
M6G 1B5
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
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