Docket: A-21-16
Citation:
2016 FCA 221
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CORAM:
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TRUDEL J.A.
NEAR J.A.
RENNIE J.A.
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BETWEEN:
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KELLY O'GRADY
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
September 6, 2016)
RENNIE J.A.
[1]
The appellant appeals from the Order of the
Federal Court, dated January 5, 2016 (2016 FC 9). In that decision, the Judge
dismissed the appellant’s motion to have an adverse inference drawn from affidavit
evidence filed by the respondent in the underlying judicial review application.
The Judge also refused to consider the appellant’s reply affidavit on the
motion, declined to hear her allegation of bias and dismissed her request under
Rule 371 that the respondent’s affiant testify.
[2]
The admissibility of affidavit evidence is a
question of law, and therefore is reviewed on a standard of correctness. The
remaining issues, being discretionary decisions of a motions judge, are
reviewable only if a palpable and overriding error is established: Hospira
Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215.
[3]
This appeal arises in the context of an
application for judicial review of the decision of the Privacy Commissioner of
Canada to dismiss the appellant’s complaint under the Privacy Act,
R.S.C. 1985, c. P-21. Her complaint related to a Statistics Canada study which
linked birth records to census data during a prescribed period of time. The appellant
gave birth in Ontario during one of the prescribed periods, and her specific
complaint is that information from her birth records was intentionally used
without her consent. The respondent argues that the appellant`s records were
not used in the study, and filed two affidavits by the responsible Director
General at Statistics Canada in support of its position.
[4]
The appellant appeals on the basis that she was
owed procedural fairness on the motion, which was breached when the Judge
disregarded her reply affidavit and allegation of bias. She argues that
disregarding her reply affidavit caused her prejudice, and that the Judge could
not come to a proper determination on whether to draw an adverse inference
thereafter. Further to the adverse inference issue, the appellant alleges that
the Judge erred in law by applying the wrong legal test by introducing a
requirement on admissibility into his analysis, improperly merged the adverse
inference analysis with the test for a motion to strike and, among other
things, misapprehended and misapplied relevant legal principles and case law.
[5]
Three of these grounds of appeal may be readily
disposed of.
[6]
The Judge found that the appellant raised no
special circumstances, as would be required, to compel the affiant to testify
under Rule 371. This was a motion in writing to be decided without an oral
hearing and the appellant previously cross-examined the affiant. The appellant
has not demonstrated any reviewable error in this decision.
[7]
Similarly, the decision of the Judge to
disregard the appellant’s affidavit filed in reply under Rule 369(3) is
unassailable. Rule 369(3) is clear that the moving party is only permitted to
file written representations in reply, and leave would be required to depart
from this Rule. Leave was not sought. There is no error in the Judge’s exercise
of discretion.
[8]
Finally, with respect to the appellant`s allegation
of bias, the Judge correctly recognized that the issue of bias was a
substantive one, to be determined by the application judge.
[9]
The appellant’s motion requested the Judge draw
an adverse inference from the fact that the affidavits filed by the respondent
were based on information and belief, as permitted by Rule 81(2).
[10]
While the appellant in the present case brought
a motion for an adverse inference to be drawn, the Judge, in effect, conducted
an admissibility analysis based on the personal knowledge of the affiant. In
our view, there is no error in his decision that the affidavits were
admissible. The judge correctly determined that the affiant, by virtue of her
responsibilities in the Government of Canada, was in a position to depose to
the matters in question without necessarily having personal knowledge: Twentieth
Century Fox Home Entertainment Canada Limited v Canada (Attorney General),
2012 FC 823.
[11]
Whether or not evidence is within an affiant’s
personal knowledge under Rule 81(1) bears on the admissibility of the affidavit.
However, whether an adverse inference should be drawn from otherwise admissible
evidence is a matter better left for the application judge, who has the benefit
of the complete record and the arguments of counsel. To this extent, we would
clarify the reasons given by the Judge. The question of what inference, adverse
or otherwise, is to be drawn remains open to the application judge hearing this
matter on the merits.
[12]
The appeal will be dismissed.
[13]
In light of the appellant’s partial success, we
would make no order as to costs.
"Donald J. Rennie"
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