West Central Air Ltd. v. Pest Management Regulatory Agency, 2004 FCA 281

Date: 20040902

Docket: A-309-04

Citation: 2004 FCA 281

Present:           HON. MR. JUSTICE SEXTON

BETWEEN:

                                                      WEST CENTRAL AIR LTD.

                                                                                                                                            Applicant

                                                                           and

                                   PEST MANAGEMENT REGULATORY AGENCY

                                                                                                                                        Respondent

                                        Dealt with in writing without appearance of parties.

                                   Order delivered at Ottawa, Ontario, September 9, 2004.

REASONS FOR ORDER BY:                                                                                       SEXTON J.A.

Date: 20040902

Docket: A-309-04

Citation: 2004 FCA 281

Present:           HON. MR. JUSTICE SEXTON

BETWEEN:

                                                      WEST CENTRAL AIR LTD.

                                                                                                                                            Applicant

                                                                           and

                                   PEST MANAGEMENT REGULATORY AGENCY

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

SEXTON J.A.

[1]                The respondent has brought a motion to strike out certain paragraphs of the Affidavit of Lloyd Good filed by the applicant in support of its application for judicial review of a decision of the Pest Management Regulatory Agency which had ordered the applicant to pay a penalty in the amount of $4000 to the respondent for violating subsection 45(1) of the Pest Control Products Regulation by improperly spraying a property in Saskatchewan.

[2]                The paragraphs are sought to be struck on several grounds. The grounds relied upon include

(a) that the applicant has adduced evidence which was not before the Tribunal;

(b) that the evidence is not within the personal knowledge of the affiant and

(c) that the affidavit contains legal arguments.

[3]                The grounds for the applicant's judicial review application include inter alia the allegation that the applicant was deprived of natural justice because the Review Tribunal of the Agency refused to conduct an oral hearing thus depriving the applicant of the ability to call witnesses in its defence. It seems clear that the applicant expected that there would be a hearing. Indeed the Tribunal itself conceded that the parties may have been mislead as to whether there would be an oral hearing.

[4]                The applicant admits that the impugned paragraphs contain evidence which was not before the Tribunal and also hearsay evidence, but states that the purpose of this evidence is not to prove the truth thereof, but rather to show the nature of the evidence that it would have presented at a hearing. This might provide a basis for the applicant's argument that it was deprived of natural justice.

[5]                I am in agreement with the applicant's submissions in this respect and find that the evidence is admissible for this limited purpose.

[6]                As to the respondent's argument that the paragraph contains legal argument, the applicant similarly says that this is included for the limited purpose of explaining how there has been a breach of natural justice. I agree with the applicant that these paragraphs can remain for that limited purpose.

[7]                The application of the respondent will therefore be dismissed with costs.

                                                                                                                        "J. EDGAR SEXTON"                      

                                                                                                                                                      J.A.

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                               A-309-04

STYLE OF CAUSE:                          WEST CENTRAL AIR LTD. v. PEST MANAGEMENT REGULATORY AGENCY

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:                                              HON. MR. JUSTICE SEXTON

DATED:                                                                                  September 2, 2004

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD: