Date: 20110117
Dockets:
A‑69‑10
A‑232‑10
A‑233‑10
Citation:
2011 FCA 14
CORAM: BLAIS C.J.
LÉTOURNEAU J.A.
NADON
J.A.
BETWEEN:
ROBERT GRAVEL
Appellant
and
TELUS COMMUNICATIONS INC.
Respondent
Hearing held at Québec, Quebec, on January 10, 2011.
Judgment delivered at Ottawa, Ontario, on January 17, 2011.
REASONS FOR
JUDGMENT BY: LÉTOURNEAU
J.A.
CONCURRED IN BY:
BLAIS C.J.
NADON
J.A.
Date: 20110117
Dockets:
A‑69‑10
A‑232‑10
A‑233‑10
Citation:
2011 FCA 14
CORAM: BLAIS C.J.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
ROBERT GRAVEL
Appellant
and
TELUS COMMUNICATIONS INC.
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
The appellant, who is self‑represented,
is challenging three decisions of the Federal Court. The first, in file T‑2087‑09, struck a certain
number of paragraphs from his affidavit and struck out, in their entirety, the
affidavits of two witnesses which he had submitted in support of an application
for judicial review of a labour arbitrator’s decision.
[2]
The two other decisions, in
files T‑2086‑09 and T‑2087‑09, allowed in part his
motion to have paragraphs struck from affidavits produced, this time, by the
respondent on judicial review. However,
those decisions also refused the filing of an amended affidavit of the
appellant and the additional affidavits of two of his witnesses whose
affidavits were struck out in full by the first decision.
[3]
The three decisions of the
Federal Court which are the subject of these appeals result from the exercise
of discretion. In the absence
of evidence establishing that this power was exercised unlawfully or in a
perverse or capricious manner, this Court cannot intervene to substitute its
discretion for that of the Federal Court.
[4]
Discretion is exercised
unlawfully or in a perverse or capricious manner when it is contrary to
statutory requirements, has regard to irrelevant considerations or fails to
have regard to relevant considerations, or does not place sufficient importance
or weight on relevant considerations. It goes without saying that these must be
considerations that would have influenced or did influence the decision if,
depending on the case, they had or had not been taken into account.
[5]
I have carefully considered
the paragraphs and affidavits that were stuck out or refused. In the first decision, the judge hearing
the case acknowledged that it has been established in the case law of this
Court that on judicial review, motions to strike all or part of an affidavit
should only be brought in exceptional circumstances, especially when the
element to be struck out is related to the relevancy of the evidence: see Canadian
Tire Corp. Ltd. v. P.S. Partsource Inc., 2001 FCA 8. The reason is quite simple: applications for judicial
review must quickly proceed on the merits, and the procedural impacts of the
nature of a motion to strike are to delay unduly and, more often than not,
needlessly, a decision on the merits.
[6]
However, in this case, the
judge was of the opinion that the motion to strike brought before her met the
criterion of exceptional circumstances.
[7]
I must note that the first
motion to strike submitted to the judge was brought on more than just a lack of
relevancy. Certain
allegations constituted arguments; others provided opinions or conclusions.
[8]
Last, to the extent that the
intent was to use the affidavit to establish the truth of the facts raised, a
certain number of allegations were hearsay, whose reliability and, more
specifically, necessity in relation to the issue could not be demonstrated. I am satisfied that the allegations
struck out cannot be used as evidence in support of an allegation of a denial
of natural justice or breach of procedural fairness, since they are irrelevant
with regard to either of those issues.
[9]
There is no doubt that the
appellant, as he himself pointed out at the hearing, is at a disadvantage because
of his lack of knowledge of and familiarity with the legal and judicial
process. Had they been
drafted differently, some of the allegations that were struck out would
certainly have survived. However, we must take
and consider them in the form they were in before the Federal Court and see if
that Court’s discretion was exercised in accordance with the above‑stated
legal principle.
[10]
I am satisfied that had the
affidavits in issue not been struck out or refused as they were by the three
decisions of the Federal Court, they would have caused prejudicial delays in
the judicial review process and needlessly bogged down the hearing on the
merits by initiating a debate that is quite peripheral to the issue in dispute.
[11]
In the three cases submitted
to this Court for review, I see no reason or justification to interfere with
the three decisions. For
these reasons, I would dismiss the appeal with costs, limited to a
single set for the hearing.
“Gilles Létourneau”
“I agree.
Pierre
Blais C.J.”
“I agree.
M. Nadon J.A.”
Certified true
translation
Sarah Burns
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A‑69‑10
STYLE OF
CAUSE: ROBERT
GRAVEL v. TELUS
COMMUNICATIONS INC.
PLACE OF HEARING: Québec,
Quebec
DATE OF HEARING: January 10,
2011
REASONS FOR JUDGMENT BY: LÉTOURNEAU
J.A.
CONCURRED IN BY: BLAIS
C.J.
NADON J.A.
DATED: January 17,
2011
APPEARANCES:
|
Robert Gravel
|
SELF‑REPRESENTED
|
|
Jean‑François Dolbec
Pierre‑Étienne Morand
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
HEENAN BLAIKIE AUBUT
Québec, Quebec
|
FOR THE
RESPONDENT
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A‑232‑10
STYLE OF
CAUSE: ROBERT
GRAVEL v. TELUS
COMMUNICATIONS INC.
PLACE OF HEARING: Québec,
Quebec
DATE OF HEARING: January 10,
2011
REASONS FOR JUDGMENT BY: LÉTOURNEAU
J.A.
CONCURRED IN BY: BLAIS
C.J.
NADON J.A.
DATED: January 17,
2011
APPEARANCES:
|
Robert Gravel
|
SELF‑REPRESENTED
|
|
Jean‑François Dolbec
Pierre‑Étienne Morand
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
HEENAN BLAIKIE AUBUT
Québec, Quebec
|
FOR THE RESPONDENT
|
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A‑233‑10
STYLE OF
CAUSE: ROBERT
GRAVEL v. TELUS
COMMUNICATIONS INC.
PLACE OF HEARING: Québec,
Quebec
DATE OF HEARING: January 10,
2011
REASONS FOR JUDGMENT BY: LÉTOURNEAU
J.A.
CONCURRED IN BY: BLAIS
C.J.
NADON J.A.
DATED: January 17,
2011
APPEARANCES:
|
Robert Gravel
|
SELF‑REPRESENTED
|
|
Jean‑François Dolbec
Pierre‑Étienne Morand
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
HEENAN BLAIKIE AUBUT
Québec, Quebec
|
FOR THE RESPONDENT
|
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