Date: 20050429
Docket: A-568-04
Citation: 2005 FCA 150
Present: PELLETIER J.A.
BETWEEN:
DR. ABDUR-RASHID BALOGUN
Appellant
and
HER MAJESTY THE QUEEN
MINISTER OF NATIONAL DEFENCE
Respondents
"Dealt with in writing without appearance of parties."
Order delivered at Ottawa, Ontario, on April 29, 2005.
REASONS FOR ORDER BY: PELLETIER J.A.
Date: 20050429
Docket: A-568-04
Citation: 2005 FCA 150
Present: PELLETIER J.A.
BETWEEN:
DR. ABDUR-RASHID BALOGUN
Appellant
and
HER MAJESTY THE QUEEN
MINISTER OF NATIONAL DEFENCE
Respondents
REASONS FOR ORDER
PELLETIER J.A.
[1] The appellant, Abdur-Rashid Balogun, brings this motion to adduce new evidence in his appeal from the dismissal of his application for judicial review of the respondent Minister of National Defence's refusal to enrol him as a Primary Reserve Officer.
[2] The respondent's refusal arose from concerns about the appellant's creditworthiness as a result of a credit report which showed that two small consumer debts had been referred for collection activity. The appellant maintained that the credit report was incorrect and that it ought not to be taken into account.
[3] The judge who heard the appellant's application for judicial review decided that the respondent had no obligation to prove that the information in the credit report was either correct or incorrect. The onus was on the appellant to show that he had taken reasonable steps to remedy the problem of his credit rating, and any errors which may have crept into his file. The judge concluded that the respondent's assessment that the appellant had not discharged the onus on him was not patently unreasonable.
[4] The appellant now seeks leave to introduce into evidence at the appeal a fresh version of his credit report in which the two small debts in question no longer appear. He says that this proves that the credit report on which the respondent made his decision was false and that therefore, the decision was made on false information and should be set aside.
[5] The respondent argues that the appellant has not met the three part test for the introduction of new evidence on appeal, namely:
a) that the evidence could not have been obtained by the exercise of due diligence in time for use in the first hearing;
b) that the evidence is credible; and
c) that the evidence is practically conclusive of an issue in the appeal.
Frank Brunckhorst Co. v. Gainers Inc. (F.C.A.), [1993] F.C.J. No. 874.
[6] The appellant sought to remedy any gaps in his case by tendering an affidavit with his reply in which he attempts to prove the date on which he received the new credit report. Such an affidavit is irregular in that, coming as it does by way of reply, the other party has no opportunity to respond to it. The appellant is proving his entitlement to the order he seeks by instalments.
[7] In my view, the most telling argument against the introduction of this new evidence is that it is irrelevant to the issues in the appeal. Even if one concedes that the credit report before the Minister was false, that does not prove that the respondent acted unreasonably in relying on it, or in taking the position that the onus was on the appellant to demonstrate the efforts he had taken to correct the information which he alleged was mistaken. To that extent, the introduction of the "correct" credit report does not change the argument which the appellant must meet in order to succeed in his appeal.
[8] Therefore, on the ground that the fresh evidence would not be practically conclusive of an issue in the appeal, the motion to adduce fresh evidence is dismissed. Costs to be costs in the cause.
"J.D. Denis Pelletier"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-568-04
STYLE OF CAUSE: DR. ABDUR-RASHID BALOGUN and HER MAJESTY THE QUEEN MINISTER OF NATIONAL DEFENCE
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: PELLETIER J.A.
DATED: April 29, 2005
WRITTEN REPRESENTATIONS BY:
Dr. Abdur-Rashid Balogun, CPA Appellant on her own behalf
Sonia Barrette For the respondent
SOLICITORS OF RECORD:
John H. Sims, Q.C. For the respondent
Deputy Attorney General of Canada
Ottawa, Ontario
Email this Content