Date: 19990531
Docket: T-200-99
BETWEEN:
SHIV CHOPRA
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD and
HEALTH CANADA
Respondents
REASONS FOR ORDER
DUBÉ J:
[1] The applicant seeks an order striking the affidavit of Dr. André Paul Claude Joseph Lachance ("the Lachance affidavit") and the exhibits appended thereto, sworn on April 14, 1999, and filed with this Court in response to the applicant's application for judicial review.
1. The facts
[2] On July 24, 1998, the applicant submitted a grievance pursuant to the terms of the Public Service Staff Relations Act1 ("the Act") concerning a letter of reprimand given to the applicant by Dr. Lachance. The grievance was denied at second level by the Assistant Deputy Minister and denied at the final level by the Associate Deputy Minister.
[3] The applicant made a request pursuant to Rule 317 of the Federal Court Rules, 1998 for the full record of all documents which were before the Associate Deputy Minister. The Lachance affidavit was not part of the record which was certified as being the full record. The Lachance affidavit includes 54 paragraphs and 13 exhibits, a document of 374 pages.
2. The issue
[4] Should the Lachance affidavit be struck from the record on the ground that it was not before the Associate Deputy Minister when he made the decision under attack?
3. The law and jurisprudence
[5] There is considerable jurisprudence to the effect that only the evidence that was before the initial decision-maker should be considered by the Court on judicial review2. These decisions are premised on the notion that the purpose of judicial review is not to determine whether or not the decision of the Tribunal in question was correct in absolute terms but rather to determine whether or not the Tribunal was correct based on the record before it3. Where affidavit material is clearly improper, the Federal Court of Appeal ruled that the material be struck out on motion previous to the hearing of judicial review4.
[6] On the other hand, there is also jurisprudence to the effect that the Court has no jurisdiction to strike out affidavits by way of motion in anticipation of a judicial review proceedings. The appropriate procedure is to leave the affidavit for evaluation by the judge who hears the application on the merits5. Judicial review is a summary procedure, the focus of which is advancing the application along to the hearing stage as expeditiously as possible. The ultimate adequacy of the allegations and evidence must be addressed by the judge hearing the application on its merits6. There is an exceptional discretion to strike out affidavits but it ought to be exercised sparingly. To maintain the efficiency of judicial review proceedings, interlocutory contests as to affidavits should be discouraged and be left to be dealt with by the judge hearing the application7.
[7] This Court has struck out affidavits, or portions of them, which are abusive or clearly irrelevant, where a party has filed evidence which in fact is obviously inadmissible or where a court is convinced that admissibility would be better resolved at an early stage so as to allow the hearing to proceed in an orderly manner8. The courts have also struck affidavits which contain opinion, argument or legal conclusions9 or would cause undue delay.
4. Analysis
[8] In the instant application, the applicant does not claim that the Lachance affidavit is abusive or clearly irrelevant or contains opinions, legal arguments or conclusions that are obviously inadmissible. The sole ground advanced is that the affidavit contains evidence which was not before the decision-maker. In my view, the affidavit is so substantial and considerable that it would be unfair to the applicant to let it proceed for judicial review without dealing with it. Consequently, it would assist the orderly progress of the judicial review if this matter was disposed of in advance of the hearing.
[9] It would appear that this voluminous affidavit and exhibits attached thereto are produced as background information concerning the issues raised by the applicant's grievance. Most likely the Associate Deputy Minister is already familiar with much of this information. It does not appear to be new information that would prejudice the case of the applicant. In his affidavit, Dr. Lachance outlines the factual background leading to his decision and that of the Associate Deputy Minister. He describes the mandate and organization of the Bureau of Veterinary Drugs, the duties of the employees of that Bureau, the process whereby new veterinary drugs submissions are reviewed and current initiatives to improve the performance of the Bureau. The applicant being himself an employee of the Bureau would have knowledge of these matters. Obviously, that general background information could be of assistance to the judge presiding over the judicial review.
[10] The situation would have been different if the Lachance affidavit had been prepared in advance and forwarded to the Associate Deputy Minister before he made his decision and enclosed in the certified copy of the full record of the proceedings. In the present instance, the applicant could not have anticipated that the respondent would file such a substantial affidavit after having been informed that he had been given the full record.
[11] In my view, it is in the interest of justice that the Lachance affidavit not be struck out at this stage and to allow the applicant to file an affidavit in reply, with both parties allowed to cross-examine the affiants.
[12] Rule 312(a) of the Federal Court Rules, 1998 allows this Court to grant to a party leave to file affidavits additional to those authorized under Rules 306 and 307. The tests for determining whether leave should be granted is whether it would serve the interest of justice, will assist the Court and will not cause serious or substantial prejudice to other parties. This Court has granted leave to file a reply affidavit where the other party could not have anticipated that the opposing party would introduce fresh evidence10. In this case, the judicial review presiding judge, with the assistance of the reply affidavit and the cross-examinations, will be in a better position to determine whether or not the Associate Deputy Minister made the right decision.
5. Disposition
Consequently, the Lachance affidavit will not be struck out. The applicant is given leave to file an affidavit in reply within 30 days from this date. The parties will complete their cross-examinations of the affidavits within 20 days thereafter and the applicant will file his record within 30 days after completion of the cross-examinations. Costs, if any, will follow the event of the judicial review.
OTTAWA, ONTARIO
May 31, 1999
Judge
__________________
1 R.S.C. 1985, c. P-35.
2 Franz v. Canada (Min. of Employment & Immigration) (1994), 80 F.T.R. 79 (T.D.) at 80; LGS Group Inc. v. Canada (A.G.), [1995] 3 F.C. 474 (T.D.) at 495 and Via Rail Inc. v. Canada (Human Rights Commission), [1998] 1 F.C. 376 (T.D.) at 388-389.
3 Brychka v. Canada (A.G.) (1998), 141 F.T.R. 258 at 267.
4 Moldeveanu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 55 (F.C.A.) at para. 13; Deigan v. Canada (Attorney General) (1996), 206 N.R. 195 (F.C.A.) and McCormick v. Canada (Public Service Staff Relations Board), [1996] F.C.J. No. 1447 (T.D.).
5 Lominadze v. Canada (Minister of Citizenship and Immigration) (1998), 143 F.T.R. 310 (T.D.).
6 Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588 at 596-601 (C.A.).
7 Home Juice Company v. Orange Maison Limited, [1968] 1 Ex. C.R. 163 at 165; Kirkbi AG et al. v. Rivtik Holdings Inc. et al. (1998), 142 F.T.R. 308 (T.D.); Alcorn v. Canada (Commissioner of Corrections), [1998] F.C.J. No. 1463 (Proth.); Sierra Club of Canada v. Canada (Minister of Finance), [1998] F.C.J. No. 1673 (Proth.); Dupuis v. Canada, [1998] F.C.J. No. 1112 (Proth.) and Bank of Scotland v. Nel (The), [1998] F.C.J. No. 1499 (Proth.).
8 Home Juice Company v. Orange Maison Limited, ibid; Alcorn v. Canada (Commissioner of Corrections), ibid, and Sierra Club of Canada v. Canada (Minister of Finance), ibid .
9 Deigan v. Canada (Attorney General), [1999] F.C.J. No. 304 (Proth.); First Green Part Property Ltd. v. Canada (Attorney General) (1996), 70 C.P.R. (3d) 217 (Fed. T.D.) and Gingras v. Canadian Security & Intelligence Service et al. (1987), 19 C.P.R. (3d) 283.
10 Abbott Laboratories, Ltd. v. Nu-Pharm Inc., [1997] F.C.J. No. 1658 (T.D.); Eli Lilly & Co. v. Apotex Inc. (1997), 137 F.T.R. 226 and Abbott Laboratories, Ltd. v. Apotex Inc., [1997] F.C.J. No. 1659 (T.D.) at para. 7.
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