Date: 20090608
Docket: A-586-08
Citation: 2009 FCA 192
Present: LÉTOURNEAU
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
VOLD, JONES AND VOLD AUCTION
CO. LTD
Respondent
REASONS FOR ORDER
LÉTOURNEAU J.A.
Procedural History
[1]
Two
motions for an extension of time have been filed respectively in Files A-575-08
and A-586-08, both involving applications for judicial review. The motions
followed a Direction from a motions judge of this Court to file an affidavit in
accordance with the ruling in The Attorney General of Canada v. Lacey, 2008 FCA 242.
[2]
The facts
giving rise to the motions are as follows. Applications for judicial review
were made by the Attorney General of Canada to challenge two decisions of a
Review Tribunal (Tribunal) invested with the power to determine whether
violations pursuant to section 176 of the Health of Animal Regulations
have been committed.
[3]
Pursuant
to Rules 317 and 318 of the Federal Courts Rules (Rules), a request was
made to the Tribunal to obtain copy of its records and a certified copy of the
said records was transmitted to the Registry of this Court.
[4]
The
Attorney General of Canada filed a motion in each file to consolidate the two
files. The motion was dismissed on April 29, 2009. On the same occasion, the
motions judge issued the Direction previously mentioned which reads: “It is
noted that the applicant has not yet filed an affidavit. The parties are
referred to Attorney General of Canada v. Lacey, 2008 FCA 242.
The Lacey Direction
[5]
In the Lacey
case, the motions judge ruled that there were no provisions in the Rules
permitting the certified record of a Tribunal, as such, to be included in the
applicant’s record or the respondent’s record. In order to do so, a party must
file an affidavit providing the Court with sworn evidence authenticating the
documents upon which the applicant’s argument depends.
[6]
Paragraphs
5 to 7 of the Reasons for Order contain the essence of the decision. They read:
[5] In an application for judicial review, the
function of the applicant's affidavit is to provide the Court with sworn
evidence authenticating the documents upon which the applicant's argument
depends. The applicant in this case apparently believes that this function will
be served by the certified record transmitted to the Registry pursuant to Rule
318 of the Federal Courts Rules, SOR/98-106.
However, that belief is not well founded.
[6] There is no provision of the Federal Courts Rules that permits the certified record, as
such, to be included in the applicant's record or the respondent's record.
Rather, Rule 309(2)(d) requires the applicant's
record to include "each supporting affidavit and documentary
exhibit", a reference to the supporting affidavits and documentary
exhibits that the applicant is required by Rule 306 to file. (The corresponding
provisions applicable to the respondent are Rules 310(2)(b)
and Rule 307.)
[7] The correct way to include the certified
record in the applicant's record is to append it as an exhibit to an affidavit
filed under Rule 306. (Similarly, a respondent may include the certified record
as an exhibit to an affidavit filed under Rule 307.) Of course, in many cases
it will not be necessary to append the entire record, only the documents upon
which the applicant or the respondent, as the case may be, intends to rely.
[7]
Technically,
it is true that the Rules, especially Rule 309, do not specifically mention the
possibility of adding to the motion record excerpts from the Tribunal’s record.
However the Rules do not prohibit that. On the contrary.
[8]
First,
Rule 309(2) does not prohibit that possibility. The Rule is cast in mandatory
terms. It reads:
|
Respondent’s record
310.(1) A respondent to an application shall, within 20
days after service of the applicant's record,
(a) serve the
respondent's record; and
(b) file
(i) where the application
is brought in the Federal Court, three copies of the respondent's record, and
(ii) where the application
is brought in the Federal Court of Appeal, five copies of the respondent's
record.
Contents of respondent’s record
(2) The record of a respondent shall contain,
on consecutively numbered pages and in the following order,
(a) a table of
contents giving the nature and date of each document in the record;
(b) each supporting
affidavit and documentary exhibit;
(c) the transcript
of any cross-examination on affidavits that the respondent has conducted;
(d) the portions of
any transcript of oral evidence before a tribunal that are to be used by the
respondent at the hearing;
(e) a description of
any physical exhibits to be used by the respondent at the hearing; and
(f) the respondent's
memorandum of fact and law.
[my underlining]
|
Dossier du défendeur
310.(1) Dans les 20 jours après avoir reçu signification
du dossier du demandeur, le défendeur :
a) signifie son dossier;
b) dépose :
(i)
dans le cas d’une demande présentée à la Cour fédérale, trois copies de son
dossier,
(ii)
dans le cas d’une demande présentée à la Cour d’appel fédérale, cinq copies
de son dossier.
Contenu du dossier du défendeur
(2) Le dossier du défendeur contient, sur
des pages numérotées consécutivement, les documents suivants dans l’ordre
indiqué ci-après :
a) une table des matières indiquant la nature et la date de chaque
document versé au dossier;
b) les affidavits et les pièces documentaires à l’appui de sa position;
c) les transcriptions des contre-interrogatoires qu’il a fait subir aux
auteurs d’affidavit;
d) les extraits de toute transcription des témoignages oraux recueillis
par l’office fédéral qu’il entend utiliser à l’audition de la demande;
e) une description des objets déposés comme pièces qu’il entend utiliser
à l’audition;
f) un mémoire des faits et du droit.
|
[9]
The Rule describes
the basic material that must be in the application’s record. It does not
exclude the addition of relevant material for the benefit and convenience of
the Court and the parties. Indeed it is, for example, a common and much
appreciated practice for the parties to file compendiums which contain various
kinds of excerpts, including evidence or exhibits from a Tribunal’s record. It
contributes to expedite the hearing.
[10]
It has
certainly been the practice for the parties, as reflected in the authors’ Notes
under Rule 318, to include in their respective motion record the Tribunal’s
material upon which they intend to rely at the hearing: see Saunders et al.
Federal Courts Practice, Thomson/Carswell, 2009, at page 722 where the practice
is resumed as follows: “In order to rely on the material on the hearing of the
application, the requesting party must include the material in its
application record”.
[11]
From a
practical standpoint, only one certified copy of a Tribunal’s record is filed
with the Registry. Making three copies for the panel sitting would often be
costly and unnecessary, especially when only part of the record is being
referred to at the review hearing. Adding the needed material to the motion
record or inserting it in a compendium is a convenient and practical means of
facilitating the work of the Court and reducing the costs to the parties. It is
one which is envisaged and encouraged by Rule 3:
|
General principle
3. These Rules shall be
interpreted and applied so as to secure the just, most expeditious and least
expensive determination of every proceeding on its merits
|
Principe
général
3. Les
présentes règles sont interprétées et appliquées de façon à permettre
d’apporter une solution au litige qui soit juste et la plus expéditive et
économique possible.
|
[12]
As counsel
for the Attorney General submitted, the Tribunal’s record is already certified
as to its contents and is already before the Court. While it is possible to do
so, there is no requirement in the Rules that the record or parts of it be
filed again by way of an affidavit from a party who wants to refer to it.
[13]
In view of
the foregoing and the motions judge’s Direction, it is in the interest of
justice that an extension of time be granted to comply with that Direction.
[14]
Copy of
these reasons shall be filed in File A-575-08 in support of the Order issued
therein.
“Gilles
Létourneau”
Email this Content