Date: 20050915
Docket: 05-A-26
Citation: 2005 FCA 295
Present: SHARLOW J.A.
BETWEEN:
LUFTHANSA GERMAN AIRLINES
Moving Party
and
CANADIAN TRANSPORTATION AGENCY and
MOHAMMED OMAR SATARI
Respondents
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on September 15, 2005.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20050915
Docket: 05-A-26
Citation: 2005 FCA 295
Present: SHARLOW J.A.
BETWEEN:
LUFTHANSA GERMAN AIRLINES
Moving Party
and
CANADIAN TRANSPORTATION AGENCY and
MOHAMMED OMAR SATARI
Respondents
REASONS FOR ORDER
SHARLOW J.A.
[1] Lufthansa German Airlines has filed an application under section 41 of the Canada Transportation Act, S.C. 1996, c. 10, for leave to appeal a decision of the Canadian Transportation Agency dated June 22, 2005 (Decision No. 388-C-A-2005). Section 41 of the Canadian Transportation Act permits an appeal to this Court of any decision of the Agency, with leave, on a question of law or a question of jurisdiction. Lufthansa's leave application alleges an error on question of law.
[2] The decision sought to be appealed requires Lufthansa to refund to Mr. Satari the cost of nine unused airline tickets that he purchased from someone he believed was an authorized travel agent. Lufthansa's position was, and still is, that the refund should not be required because the party that sold the tickets to Mr. Satari was not an authorized travel agent, and had procured the tickets through the fraudulent use of credit cards. The decision of the Agency turns in part on its conclusion that the tickets were not invalid because, of the sixteen tickets purchased by Mr. Satari, seven of them were honoured by Lufthansa when they were presented for use on flights on January 31, 2003.
[3] In support of its application for leave to appeal, Lufthansa submitted the affidavit of Rainis Valiunas sworn July 21, 2005. That affidavit contains, in paragraphs 11 to 17, evidence about credit card transactions generally (including unauthorized credit card transactions), and in paragraphs 18 to 26 and exhibits 39 and 40, evidence about the specific credit card transactions relating to the tickets in issue in this case. That evidence was not presented to the Agency.
[4] Before me is a motion by the Agency to strike out paragraphs 11 to 26 of the Valiunas affidavit, and exhibits 39 and 40, on the basis that they comprise evidence that is not admissible on an application for leave to appeal unless leave is granted under Rule 351 of the Federal Courts Rules, SOR/98-106.
[5] Gerard A. Chouest, counsel for Lufthansa, offers the following explanation for including the challenged material in the Valiunas affidavit (paragraphs 8 and 9 of his affidavit sworn on August 25, 2005):
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8. I caused the Valiunas affidavit to be submitted with a view to ensuring that the court should not be left in any doubt around a surrounding circumstance referred to in the decision, namely the decision of Lufthansa to honour the seven tickets and at the same time refuse to refund the remaining nine tickets.
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9. When I caused the Valiunas affidavit to be submitted for that purpose I was of the opinion that I was entitled to do so under Rule 353(3)(c), although I did realize that I might be required to provide further justification and obtain leave before submitting the same information to the court at the hearing of the appeal, should leave be granted.
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[6] The Agency submits that Lufthansa had ample opportunity to present the challenged material to the Agency before it made the decision sought to be appealed. That submission is not contradicted by Lufthansa.
[7] It is a general principle that evidence cannot be presented on an appeal unless leave is granted under Rule 351. Generally, leave to present evidence on appeal is granted only if the evidence could not, with due diligence, have been presented in the court below, and if the evidence is credible and practically conclusive of an issue: Amchem Products Inc. v. British Columbia (Workers' Compensation Bd.) (1992), 192 N.R. 390 (S.C.C.). The Agency relies on Rule 351 as the basis for its motion to strike the challenged material from the Valiunas affidavit.
[8] There is no authority for the proposition that leave under Rule 351 is required to present evidence in support of an application for leave to appeal that was not presented in the court below. However, the Agency argues that if Rule 351 is not used as a screen for evidence at the leave to appeal stage, an arguable case for appeal may be established on the basis of material that may not become part of the case on appeal.
[9] In my view, the concern of the Agency is unfounded. Leave to appeal will not be granted under section 41 of the Canada Transportation Act unless the Court believes it is arguable that the Agency has erred on a question of law or a question of jurisdiction. In considering an application for leave to appeal, the Court is aware that, if leave is granted, the case on appeal will not include any evidence that was not before the Agency, unless the evidence is admitted with leave of the Court under Rule 351. If new evidence is submitted in the application for leave to appeal but the application does not establish the basis for a successful motion under Rule 351, the new evidence will be given little weight, and perhaps disregarded altogether, in considering the application for leave to appeal.
[10] The general test for the admissibility of evidence in a leave application is set out in Rule 353(2)(c) of the Federal Courts Rules, SOR/98-106, which says that in support of an application for leave to appeal, the applicant must submit, among other things, an affidavit that "sets out any facts relied on in the motion that do not appear on the Court file". It seems to me that the challenged material meets the test in Rule 353(2)(c). I see no compelling reason to add a further condition by analogy to Rule 351. For that reason, I will dismiss the motion to strike.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: 05-A-26
STYLE OF CAUSE: LUFTHANSA GERMAN AIRLINES and CANADIAN TRANSPORTATION AGENCY and MOHAMMED OMAR SATARI
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: September 15, 2005
WRITTEN REPRESENTATIONS BY:
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Gerard Chouest
Rinku Deswal
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FOR THE MOVING PARTY
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Shelley Appleby-Ostroff
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FOR THE RESPONDENT CANADIAN TRANSPORTATION AGENCY
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Mohammed Omar Satari
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RESPONDENT, ON HIS OWN BEHALF
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SOLICITORS OF RECORD:
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Bersenas Jacobsen Chouest Thomson Blackburn LLP
Toronto, Ontario
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FOR THE MOVING PARTY
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John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
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FOR THE RESPONDENT
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Mohammed Omar Satari
Burnaby, B.C.
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RESPONDENT, ON HIS OWN BEHALF
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