Date: 20060120
Docket: T-611-04
Citation: 2006 FC 55
BETWEEN:
MICHEL
VENNAT
APPLICANT
- and -
ATTORNEY
GENERAL FOR CANADA
RESPONDENT
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1]
The
Attorney General of Canada filed a motion under section 369 of the Federal Courts
Rules to first of all obtain directions from the Court concerning section
302 of the Rules and, secondly, to have struck from the record numerous
paragraphs of the affidavit of Michel Vennat (“the applicant”), as well as
several exhibits filed in support of this affidavit, and to have struck from
the record the affidavit of Denis Desautels, the former Auditor General of
Canada.
[2]
As far as
section 302 is concerned, it is true that Mr. Vennat has applied for the
judicial review of two orders of the Governor General in Council. Under the
first Order, dated February 24, 2004, P.C. 2004-147 (the “Suspension Order”),
the applicant was suspended without pay for an indefinite period from his
position as President of the Business Development Bank of Canada (BDC). The
second Order, dated March 12, 2004, P.C. 2005-225 (the “Dismissal Order”),
cancelled the nomination of the applicant as President of the BDC. Under
section 302, unless the Court orders otherwise, an application for judicial
review shall be limited to a single order in respect of which relief is sought.
[3]
Mr. Vennat
alleged that the orders constituted a single decision, and the case law
relating to section 302 of the Rules does not apply in such a situation (Khadr
v. Canada (Minister of Foreign Affairs), [2004] F.C.J. No. 1391; Truehope
Nutritional Support Ltd. v. Canada (Attorney General), [2004] F.C.J. No.
806 [“Truehope”]).
[4]
In my
opinion, the Court should authorize Mr. Vennat to contest the two orders in a
single application for judicial review. In my view, it is obvious that the
orders constitute one continuous decision. These two orders were published by
only one decision-making organization, that is, the Governor General in
Council. The Suspension Order and the Dismissal Order concern the same facts,
and Mr. Vennat is seeking the same relief. It is obvious that the two orders
concern one situation, that is, the role played by Mr. Vennat in the dismissal
of François Beaudoin. In addition, it would be a waste of time and resources to
require two distinct applications for judicial review in this case. In short,
the Court shall order that this application for judicial review concern both
orders of the Governor General in Council.
[5]
As far as
the second aspect of the motion is concerned, it is clear that there is a
serious issue between the parties concerning the jurisdiction of the Governor
General in Council and procedural fairness. In addition, considering the
special nature of this application for judicial review, it is premature to
strike from the record any paragraphs concerning allegations of law or opinion.
In my opinion, it would be preferable to leave the affidavits and exhibits in
question for evaluation by the judge that hears the application for judicial
review on the merits (Lominadze v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 115, paragraph 23; Council of the
Ontario Association of Architects v. Assn. of Architectural Technologists of
Ontario (C.A.), [2003] 1 F.C. 331 (F.C.A.)).
[6]
In fact,
case law suggests that this Court does not have the power to strike out
affidavits in an application for judicial review (Lominadze v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 115, paragraph
23; Ye v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1461, paragraph 6). Paragraph 21 of the judgement rendered in
Pfizer Canada Inc. v. Canada (Minister of Health), [2004] F.C.J. No.
1833, 2004 F.C. 1526, contains an excellent summary of the case law concerning
the striking out of affidavits:
Insofar as the Prothonotary found that
the prevailing jurisprudence directs that a decision to strike affidavits in an
application for judicial review should be left to the trial judge, he correctly
interpreted and applied the law. I refer to Lominadze v. Canada (Minister of
Citizenship and Immigration) (1998), 143 F.T.R. 310, Sawridge Band v.
Canada [2000] 3 F.C. D-11 and Dupuis v. Canada (1998), 152 F.T.R. 82
(Proth.). The Prothonotary committed no reviewable error in his decision in
this regard.
[7]
This rule
is in agreement with the reasons in David Bull Laboratories (Canada) Inc. v.
Pharmacia Inc. (C.A.), [1998] 1 F.C. 588, which explained at paragraph 12
that “the focus in judicial review is on moving the application along to the
hearing stage as quickly as possible”.
[8]
Finally, I
am of the opinion that it would be unfair and inexpedient to strike out the
affidavits at this time. The judge hearing the application for judicial review
may examine the matter of the admissibility of the affidavits and the attached
exhibits. There is no order as to costs for either party.
ORDER
THE COURT ORDERS that:
1. Notwithstanding
section 302 of the Rules, the applicant is authorized to institute this
proceeding.
2. The judge hearing the
application for judicial review will rule on any issue concerning the
admissibility of evidence.
3. There is no order as to costs.
“James
K. Hugessen”
Ottawa,
Ontario
Signed
on January 20, 2006
Certified
true translation
Michael
Palles
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