Date: 20101122
Docket: T-1073-09
Citation: 2010 FC 1173
Vancouver, British
Columbia,
November 22, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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CHRISTOPHER BENNETT
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Applicant
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and
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THE ATTORNEY GENERAL FOR CANADA
and
THE MINISTER OF HEALTH FOR CANADA
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Respondents
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REASONS FOR ORDER AND
ORDER
[1]
The
respondents appeal the Order of Prothonotary Lafrenière dated November 1, 2010,
wherein he allowed the applicant’s motion for leave to file additional evidence
and a supplementary record pursuant to Rule 312(a) and (c) of the Federal
Courts Rules, SOR/98-106.
[2]
It is well
established that the Court ought not to upset a discretionary order of a
Prothonotary on appeal unless the Order is clearly wrong in that it was based
upon a wrong principle or upon a misapprehension of the facts: Merck &
Co. v. Apotex Inc., 2003 FCA 488.
[3]
The
respondents submit that the Order under appeal was clearly wrong in that the
Prothonotary applied the wrong test when granting leave to file additional
evidence and because he misapprehended the “uncontroverted evidence before
the Court in finding that the documents were ‘clearly not available to the
Applicant at the time he filed his affidavit in support of the application’.”
[4]
The
Prothonotary correctly expressed the test for granting leave to file additional
evidence in his Order. However, I have concluded that the Prothonotary
either failed to properly apply the test to the facts before him or
misapprehended the facts. The Order made was clearly wrong.
[5]
On
February 12, 2009, the applicant’s counsel wrote to the Minister of Health
asking that she exercise her discretion under section 56 of the Controlled Drugs
and Substances Act, S.C. 1996, c. 19 (CDSA) to permit the applicant to
produce and possess sufficient marijuana so that he could continue to consume seven
grams of marijuana per day without fear of prosecution pursuant to the
prohibitions set out in the CDSA. It was submitted that it was in the public
interest for him to receive such an exemption because he required access to
marijuana for religious reasons. By letter dated May 29, 2009, the applicant
was informed that the Minister would not grant the exemption because it would
not be in the public interest.
[6]
The applicant
then filed this application on June 30, 2009 challenging both the
constitutionality of the Minister's decision to refuse the exemption request
and sections 4 and 7 of the CDSA.
[7]
Pursuant
to Rule 317 of the Federal Courts Rules, the Notice of Application
included a request for documents seeking, among other things, “[a]ny
document(s) outlining the criteria used by the Minster of Health (or her
delegate) in deciding applications for exemptions pursuant to section 56 of the
CDSA.”
[8]
In
response, the respondents provided the applicant with a certified tribunal
record pursuant to Rule 318 and, specifically with respect to the documents
requested stated:
There are no documents
outlining the criteria used by the Minister of Health (or her delegate) in
deciding on applications for exemptions in the public interest pursuant to
section 56 of the Controlled Drugs and Substances Act that are relevant
to the application made by the Applicant. For greatest clarity, the only
document outlining criteria used by the Minister of Health (or her delegate)
when deciding on applications for exemptions pursuant to section 56 of the Controlled
Drugs and Substances Act is a document referring to exemptions for
scientific purposes, which is not relevant to, and was not used in, the assessment
of the exemption requested by the applicant.
[9]
It appears
that this statement was in error. It is now conceded by the respondents that a
draft guidance document had been used in the assessment made by the Minister of
Health in responding to a 2001 request for an exemption pursuant to section 56
of the CDSA in the public interest on religious grounds by members of a Montréal
church that requested an exemption to consume a tea that contained three
controlled substances (the Tea Request). The Tea Request indicated that the
tea was traditionally consumed during their religious ceremonies. The Minister
ultimately gave this request conditional approval.
[10]
The
applicant in his materials filed on this motion submits that the failure to
produce the Tea Request documents was a deliberate attempt at concealment
by the respondents. I make no judgment on that submission; however, I would
note that if the respondents were attempting to conceal documents for their own
purposes, they were not alone. The applicant, in my view, for a time also
concealed documents in his possession that he considered relevant to his
application. Those are the documents he was granted leave by the Prothonotary
to file.
[11]
On
November 3, 2009 the applicant filed his affidavit evidence in support of his
application and on January 28, 2010 the respondents filed their evidence.
[12]
The
respondents’ witness was cross-examined on her affidavit on May 20, 2010,
during which she was presented with a bundle of some 395 pages that were
numbered and each was marked as "Document Released Under the Access to
Information Act” (the ATIP Release Package). The ATIP Release Package related
to the 2001 Tea Request for an exemption pursuant to section 56 of the CDSA. The
respondents objected to the admission of the ATIP Release Package into evidence
at the cross-examination and it was entered as an exhibit only for
identification purposes although the witness answered some questions relating
to the documents.
[13]
On August
9, 2010, the applicant filed his Application Record. It included the ATIP
Release Package; however, the Court issued directions that the applicant could
not adduce new evidence without leave of the Court. The record was accepted
for filing, excluding the ATIP Release Package which was at Tab R of the
Application Record.
[14]
On October
4, 2010, the applicant filed a motion seeking leave pursuant to Rule 312 to have
the ATIP Release Package included in the application record. This motion was
determined by the Prothonotary pursuant to Rule 369, based on the written
materials before him.
[15]
The Prothonotary
stated the test for the admission of new evidence as follows: “In deciding
whether leave to file additional evidence should be granted pursuant to Rule
312 of the Federal Courts Rules (FCR), the Court must take into account
the relevance of the proposed evidence, any prejudice to the opposing party,
whether the additional evidence would be of assistance to the Court, and the
overall interest of justice. ... The Court must also consider whether the evidence
in question was available, and could have been adduced, at an earlier
date."
[16]
The Prothonotary
in assessing whether the evidence was available and could have been adduced at
an earlier date stated: “The documents were clearly not available to the Applicant
at the time he filed his affidavit evidence in support of the
application." In my view, based on the record before him, the
Prothonotary misapprehended the facts when he concluded that the ATIP Release
Package was not available to the applicant when he filed his affidavit in
support of his application. Furthermore, the Prothonotary erred in considering
only whether the documents were available to the applicant on the date he filed
his affidavit, because the proper test is to consider whether the documents
were available and could have been adduced by the applicant at an earlier date.
[17]
The
applicant’s Notice of Motion for leave to file additional evidence indicated as
one of the grounds of the motion that “[t]hese documents were not in
Applicant’s possession at the time he filed his Application and supporting
Affidavits in this matter.” However, a statement of grounds in a Notice of Motion
is not evidence and there was no evidence filed by the applicant to support
that assertion. The affidavit of the applicant in support of his motion merely
stated that the documents he wished to file were “obtained from the government
of Canada, and specifically from Health
Canada, in response to an Access to
Information request.” He gave no indication when these documents came into his
possession, nor any explanation for his delay in seeking leave to file them.
[18]
In
contrast, the respondents filed an affidavit in response to the motion setting out
that Health Canada had received two requests under the Access to Information
Act for documents related to the Tea Request. Health Canada is not provided with the name
of a requester under that Act and therefore could not state with certainty whether
one or both of the requests came from the applicant or his counsel. The first
request was made on March 31, 2009 and the affiant states that the documents
Health Canada released “appears to be
identical to the ATIP release package that Mr. Bennett is now seeking to
have admitted into evidence.” The second release was made on December 21, 2009
and the affiant states that “while many of the documents are the same as the
ATIP release package that the Applicant is now seeking to admit into evidence,
the two packages are not identical.”
[19]
The
applicant in this matter filed his affidavits in support of this application on
November 3, 2009, long after the first package of documents was released by
Health Canada and shortly before the second
package was released. The finding of the Prothonotary that the “documents were
clearly not available to the Applicant at the time he filed his
affidavit evidence in support of the application” [emphasis added] can only be
correct if the package of documents in the possession of the applicant
were those released on December 21, 2009 and not those released earlier on
March 31, 2009. No such finding was expressly made by the Prothonotary
and, in my view, such a finding could not be made based on the
uncontroverted evidence that the only release package that appeared to be identical
to that which was in the possession of the applicant was the package released
on March 31, 2009. Accordingly, the Prothonotary reached his decision on a
misapprehension of the facts.
[20]
On this
appeal, the applicant attempted to file an affidavit attaching as an exhibit a
letter from Health Canada to his counsel dated December 21, 2009 enclosing
documents responding to an Access to Information Act request “made by my
counsel and that I sought to introduce as Tab R to my Record of Case [sic].”
These are the documents the applicant sought leave to file. If accepted, the
affidavit would appear to support the conclusion that these documents were in
the applicant’s possession only after December 21, 2009. It is noted that the
applicant in this subsequent affidavit does not attest that he did not have any
of the documents contained in the ATIP Release Package at an earlier date,
as one would have expected given the respondents’ evidence previously filed.
[21]
The
respondent objected to the applicant’s new affidavit being filed on the appeal
submitting that no new evidence ought to be admitted when considering an appeal
from an Order of a Prothonotary: Apotex Inc. v. Wellcome Foundation
Ltd., 2003 FC 1229 at para 10 citing James River Corp. of Virginia v.
Hallmark Cards, Inc., [1997] F.C.J. No. 152 at paras. 31-32.
[22]
The applicant
cited no authority where the Court on an appeal from an Order of the
Prothonotary has considered new evidence relating to facts that was not before
the Prothonotary. It makes no sense that the Court should consider new
evidence on such an appeal. First, the Court must decide whether the
Prothonotary misapprehended the facts. That determination must be based on
the record before the Prothonotary, not the record that might have been before
him. Second, the Court conducts a de novo hearing. Such a hearing
requires the judge to exercise his or her discretion based on the material
that was before the Prothonotary; in other words, to reach the decision
the Prothonotary would have reached had the decision not been based on a
misapprehension of the facts or on a wrong principle.
[23]
For these
reasons I give no consideration to the new affidavit the applicant attempted to
file. However, even if it had been accepted, the applicant still has offered
no explanation for his delay in seeking leave to file this material. The leave
motion was brought more than nine months after he admits to having the
documents he now wishes to rely upon.
[24]
Counsel
for the applicant conceded that it was evident to him upon receipt of the ATIP
Release Package that at least some of the documents would be relevant to the
application that had been launched. The affidavit the applicant sought to file
makes it clear that he was in possession of these documents well before
the respondents filed their affidavits and well before he conducted a cross-examination
of the respondents’ affiant. This is not a situation where a party needs to
deal with a matter that arose in cross-examination and could not have been
foreseen with reasonable diligence. Rather, this is a situation where the
applicant became aware of documents that he viewed as relevant to his
application but which he also considered might be used to establish that the
respondent’s affiant had not been frank and truthful in stating that there were
“no documents outlining the criteria used by the Minister of Health (or her
delegate) in deciding on applications for exemptions in the public interest
pursuant to section 56.” The applicant made a tactical decision to not seek
the consent of the respondents to file these documents or to seek leave of the
Court, absent that consent. He decided to hold them in abeyance and
spring them upon the affiant in cross-examination. I would remind him of
Matthew 26:52 – “He who
lives by the sword dies by the sword.”
[25]
The
applicant submits that the test is whether the documents were available to him
when he filed his affidavit in support of the application. I do not
agree. I agree with the observations made by Justice Teitelbaum in Pfizer
Canada Inc. v. Canada (Minister of Health), 2006 FC 984 at para. 20
that one must consider the rationale of the general rule that one cannot file
additional evidence, namely that a party must put his best case forward at the
first opportunity and cannot split his case.
Pfizer also attempts to limit
the reach of Atlantic Engraving by suggesting that
it only applies to situations where cross-examination has already taken place.
Although cross-examinations already occurred in Atlantic
Engraving, the Federal Court of Appeal's reasoning in paragraph 9 of its
decision suggests that a party must put its best case forward at the first
opportunity and must not be able to split its case. While this meant that in
Atlantic Engraving a party had to demonstrate that
the evidence it sought to adduce was not available prior to the
cross-examination stage, in other cases, a party seeking to adduce evidence may
need to show that its evidence was not available at some other earlier date
(such as at the time of filing its first affidavit evidence), in order to
satisfy the Court that it is not attempting to split its case or is otherwise
failing to put its best case forward at the first opportunity. I do not
read the Federal Court of Appeal's reasoning as being limited to cases where
cross-examination has already taken place. Rather, I extract from Atlantic Engraving the general concern that Rule 312
should not be used to allow a party to split its case or to delay putting its
best case forward. [Emphasis added]
[26]
In
this case the applicant did not put his best case forward without delay, he
delayed until after he had cross-examined the opposite parties’ affiant.
Further, as the only evidence properly before the Court establishes that the
only apparently identical package of documents to the ATIP Release Package was
provided by Health Canada to an unknown requester on March 31, 2009, well
before this application was launched, I must conclude that permitting this
applicant to file the documents at this late stage constitutes case-splitting.
[27]
The
Court must also consider whether the evidence will assist the Court. In Holy
Alpha and Omega Church of Toronto v. Canada (Attorney General), 2009
FCA 101 the Court of Appeal indicated that in considering that factor the Court
should ask “Is it relevant to an issue to be determined and sufficiently
probative that it could affect the result?”
[28]
The
applicant in his Notice of Application seeks:
1. An order in the
nature of mandamus compelling the Minister of Health to issue Applicant
an exemption, pursuant to section 56 of the Controlled Drugs and Substances
Act, from the application of sections 4 and 7 of the Controlled Drugs
and Substances Act as applied to cannabis (marijuana) as set out in
Schedule 2(1), so long as that cannabis is produced and possessed for
Applicant's personal use.
2. A declaration of
sections 4 and 7 of the Controlled Drugs and Substances Act as applied
to cannabis (as set out in Schedule 2(1) to that Act) are invalid and violate
the rights guaranteed by sections 2, 7 and 15 of the Canadian Charter of
Rights and Freedoms (the “Charter”).
[29]
The
ATIP Release Package which the applicant seeks to file may support a submission
that the applicant was treated differently than the applicant in the Tea Request.
The ATIP Release Package also indicates the criteria used by the Minister in
assessing that request; however, the respondent filed an affidavit on the
motion before the Prothonotary attesting that the draft criteria guidance
document used in the Tea Request was not used in assessing Mr. Bennett’s request
and was never adopted as a policy of Health Canada. Therefore, at best this
proposed new evidence may show that different criteria were used in assessing
the applicant’s request for an exemption than had been used in considering
a request for an exemption for different controlled substances by a
different applicant at an earlier date. While this evidence may be relevant to
an issue in the application, I am not satisfied that it is sufficiently
probative that it could affect the result.
[30]
The
respondent submits that admitting the evidence at this late date will cause
prejudice in that the application is almost ready for hearing. The
respondents have not filed their record and no date has been set for
hearing by the Court. However, admission of the material will entail a delay
of some months while the respondents file any additional materials in response,
and cross-examinations take place. The respondents further submit that they
will suffer prejudice because the new evidence is being submitted by way of an
affidavit from the applicant and that while many of the documents
contained in the ATIP Release Package are documents from persons within the
Ministry of Health, others are not, and there is no person who can be
cross-examined on them.
[31]
The
applicant submits that if there is any prejudice, it will be suffered by him as
the delay will mean that there is a delay to him being able to produce and use
marijuana for his religious purposes.
[32]
I
give little weight to the applicant’s assertion that he will suffer prejudice
from any delay as the delay is of his own making. Had he sought consent
or leave to file the ATIP Release Package when he first received it, no delay
would have resulted. Similarly, the delay that the respondents will experience
will be of short duration and would have been avoided had they filed an
accurate Rule 317 response. In short, if there is any prejudice, it is equal for
both parties.
[33]
For
these reasons, the respondents’ appeal is allowed and the applicant’s motion to
file additional evidence and a supplementary record pursuant to Rules 312(a)
and (c) is dismissed.
[34]
In
my discretion I have decided not to award the respondents their costs either
here or below. While the applicant must shoulder some blame for the necessity
of these late motions, so too must the respondents who failed to produce
the ATIP Release Package as a part of its Rule 317 production, or to object at
that time to its production.
THIS COURT ORDERS that
this appeal is allowed and the Order of Prothonotary Lafrenière dated
November 1, 2010 is set aside.
“Russel
W. Zinn”
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