Date: 20000925
Docket: IMM-2366-00
BETWEEN:
JIANPING ZHU,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] By this successful motion in writing, the Applicant has leave to file additional affidavits by which to complete his application, thus adding material which ought to have been a part of the tribunal record from the Canadian Embassy in Manila. The usual consequential time extensions flow to both parties.
[2] To begin, the facts are straight forward. I accept the evidence tendered on behalf of the Applicant that, while a full package of application documents for Mr. Zhu, as an investor immigrant, was forwarded to the Canadian Embassy in Manila, when it came time to cross-examine the visa officer, which was done by telephone, about half of the documents which ought to have formed a part of the tribunal record, before the visa officer, were missing.
[3] The Applicant, in bringing this successful motion, has brought himself within the usual considerations which govern Rule 312, which allows the filing of additional affidavits if such will serve the interests of justice and assist the Court in making a final determination. The Applicant must also satisfy Rule 84(2) by which a party requires leave in order to file additional affidavit material following cross-examination, an aspect considered in Ruggles v. Fording Coal Ltd. (unreported decision of 5 May 1999 in file number T-1948-95). The test applied in the case of Rule 84(2) requires a consideration of and a balancing of three elements:
| 1. Was the information in the affidavit available before the cross-examination? |
| 2. Are the facts to be established in the supplemental material relevant?; |
| 3. Might the supplementary material cause serious prejudice to other parties? |
[4] On balance, I accept that the material which the Applicant now seeks to have included, in order to complete the record which ought to have been before the tribunal and before the deponent of the Respondent's affidavit, if contained in an additional affidavit, would serve the interests of justice and would assist the Court in making a final determination. This, however, is only a portion of what I must consider and here I return to the balancing of the three elements set out in Ruggles, elements derived from the decision of Mr. Justice Dubé in Côté v. Canada (unreported decision of 27 May 1992 in action T-1206-89, ACF#469).
[5] Dealing with the first element of the test, whether the information in the affidavit was available before the cross-examination, so that the Respondent's deponent might be cross-examined on it, clearly there was no opportunity available for the Applicant's counsel, in Vancouver, to determine that half of the file, which ought to have been at the Manila Embassy, was missing. Moreover, the visa officer was unwilling to look for the balance of the documents which, as I have found, ought to have been in the Respondent's file. This is a complete answer to the first element of the test.
[6] Second, is the issue of the relevance of the supplemental material. The Respondent says that the supplemental affidavit would "... likely be only marginally relevant". Alternately, counsel for the Applicant makes a reasonable case for at least some relevance. I might go further by pointing out that the missing documents are documents requested by the Respondent in what amounts to a standard check list of material which an investor immigrant ought to provide and indeed, all the more so in the case of an investor immigrant represented by experienced counsel. On balance, the second test is met.
[7] I now turn to whether the supplemental affidavit might cause serious prejudice and here I have also considered delay, for in a situation such as this, a party is generally bound to put forward his or her best case at the first reasonable opportunity. In the present instance the cross-examination giving rise to this motion took place 27 July 2000. As a cross check on the missing documents the Applicant then conducted an access to information search, a search which turned up none of the missing material. The present motion was filed 23 August 2000. There is no pertinent delay.
[8] Finally, there is the aspect of prejudice. The Respondent submits that "the filing of the supplementary affidavit might cause serious prejudice to the Respondent." (paragraph 26 of Written Argument). This is said to be the case because the Respondent has crafted its case to meet that of the Applicant and that the result might be a need to file additional affidavit material and further cross-examination. This is not prejudice, but merely an additional expense which, if necessary, might be compensated for in costs. The Respondent goes on to say that the Applicant should not be permitted to split his case: if there has been a splitting of this case it has, in all likelihood, been brought about through file management by the Respondent's Manila office. This leads to the subject of costs.
[9] The Respondent requests costs in any event of the cause, forthwith, including those arising out of filing of any further affidavits and any further cross-examinations on affidavits, basically because, in the view of the Respondent, the motion would not have been necessary had the Applicant put forward his best case at the earliest opportunity.
[10] This approach overlooks several points. First, I am satisfied, both from evidence given on behalf of the Applicant and from the Respondent's internally contradictory evidence as displayed in the cross-examination transcript, that the Respondent, at least at one time, had a full set of documents. Second, the matter might have been rectified, cheaply and easily, by agreement between counsel. Third, the transcript of the cross-examination of the Respondent's witness indicates various possibilities including that the witness may have been, at best, confused, or at worst, stubborn, in refusing to look for the missing documents. The costs of the motion are therefore payable forthwith by the Respondent to the Applicant in a lump sum, taking into account the Court's Tariff and the circumstances, of $500.00. There will be no special order as to the costs of further filings or further cross-examinations, which shall follow the usual course of events.
(Sgd.) "John A. Hargrave"
Prothonotary
September 25, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2366-00
STYLE OF CAUSE: JIANPING ZHU
v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
MOTION DEALT WITH IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER OF HARGRAVE P.
DATED: September 25, 2000
WRITTEN SUBMISSIONS:
Mr. Lawrence Wong FOR PLAINTIFF
Mr. Mark Sheardown FOR DEFENDANT
SOLICITORS OF RECORD:
Lawrence Wong & Associates
Vancouver, BC FOR PLAINTIFF
Morris Rosenberg
Deputy Attorney General
of Canada FOR DEFENDANT
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