Date: 20031120
Docket: T-1329-03
Citation: 2003 FC 1368
Montréal, Quebec, November 20, 2003
PRESENT: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
DANESH KHODAVERDI AFAGHI
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Motion by the respondent to strike certain allegations from the affidavit of Danesh Khodaverdi-Afaghi and delete from that affidavit certain exhibits filed in support thereof; further, to amend the style of cause so that the reference to the Attorney General of Canada will be replaced by the Minister of Citizenship and Immigration.
REASONS FOR ORDER AND ORDER
[1] As the applicant yielded to the views of the Attorney General of Canada on the following points, it will be possible to dispose of the motion by the Attorney General of Canada forthwith as follows and accordingly to allow it in part without costs.
[2] Thus, the Court orders that paragraphs 18 to 33 and 36 to 40 be struck from the applicant's affidavit and orders that Exhibits E to H and J to M filed in support of that affidavit be deleted.
[3] The Court further orders that the style of cause be amended so that henceforth the reference to the Attorney General of Canada will be replaced by the Minister of Citizenship and Immigration.
[4] Further, though they were not submitted in this regard, it appears to the Court that the remainder of the motion at issue must be addressed in accordance with this Court's inherent jurisdiction as applied by Strayer J. in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, at pages 54-5 (Pharmacia). I think the principles that emerge from that case apply to this analysis, although here the Attorney General of Canada is seeking only a partial deletion of an affidavit, not to have an application for review struck out in its entirety. I would even say that Pharmacia is especially applicable here, and hence a fortiori, since only some passages are to be struck.
[5] In Pharmacia Strayer J. acknowledged that a motion to strike in judicial review should be sought in exceptional cases. This is what the Court had to say at pages 54-5:
This is not to say that there is no jurisdiction in this court either inherent or through rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. (See e.g. Cyanamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegation in the notice of motion.
(My emphasis.)
[6] This is the same reasoning followed by Nadon J. in a judgment of August 13, 1996 (Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc., file T-1238-96, at page 5).
[7] In the instant case the remaining aspects which the Attorney General of Canada seeks to correct by this motion are not in the circumstances aspects which, if the Attorney General of Canada was successful, could be seen as so incorrect and improper as to warrant intervention in the process of an appeal brought by an application for judicial review (see the comments by Strayer J. in Pharmacia, supra, at pages 54-5). Any application to strike in connection with an application for judicial review must be exceptional, so as to promote one of the primary purposes of such an application, namely to bring the application forward to the merits as quickly as possible.
[8] As Strayer J. said in Pharmacia:
... [T]he focus in judicial review is on moving the application along to the hearing stage as quickly as possible. This ensures that objections to the originating notice can be dealt with promptly in the context of consideration of the merits of the case.
(See also Merck Frosst Canada Inc. et al. v. Minister of National Health and Welfare et al. (1994), 58 C.P.R. (3d) 245, at 248, and Glaxo Wellcome Inc. et al. v. Minister of National Health and Welfare et al., an unreported judgment of this Court on September 6, 1996, file T-793-96.)
[9] Accordingly, the remainder of the motion at bar is dismissed.
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"Richard Morneau"
Prothonotary
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1329-03
STYLE OF CAUSE: DANESH KHODAVERDI AFAGHI
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
WRITTEN MOTION HEARD IN MONTRÉAL WITHOUT APPEARANCE BY PARTIES
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
DATED: November 20, 2003
WRITTEN SUBMISSIONS:
Michelle Langelier for the applicant
Ian Demers for the respondent
SOLICITORS OF RECORD:
Michelle Langelier for the applicant
Montréal, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
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