SDate: 20031113
Docket: T-1097-03
Citation: 2003 FC 1336
Montréal, Quebec, November 13, 2003
Present: RICHARD MORNEAU, PROTHONOTARY
BETWEEN:
AMRAM ELKAYAM
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
1. The applicant is now representing himself in this case as well as in docket T-1513-03. Given this state of affairs and given that the essence of these reasons and this order is the same in both of these files - following the motions to strike brought by the Attorney General of Canada in said files - these reasons as well as the order herein will also apply to docket T-1513-03.
The facts
2. On June 27, 2003, in this file, docket T-1097-03, the applicant filed an application for judicial review of a decision by the Canadian Human Rights Commission dated May 26, 2003.
3. On July 11, 2003, the applicant served on the Attorney General of Canada the affidavit and documentary exhibits that he intended to use in support of his application.
4. On July 18, 2003, the Canadian Human Rights Commission sent a certified copy of all of the documents that were before it when the impugned decision was made to the applicant, to the Attorney General of Canada and to the Registry of this Court.
5. The Attorney General of Canada then observed that many of the documents in support of the applicant's affidavit had not been in evidence before the Canadian Human Rights Commission when the decision covered by this application for judicial review was made.
6. On August 19, 2003, in docket T-1513-03, the applicant filed an application for judicial review of the decision by the Public Service Commission of Canada dated June 13, 2003.
7. On September 19, 2003, the applicant served on the Attorney General of Canada the affidavit and the documentary evidence that he intended to use in support of his application.
8. On October 16, 2003, the Attorney General of Canada served a written request for production of documents (rule 317 of the Federal Court Rules,1998) on the Public Service Commission in order to obtain a certified copy of all of the documents that it had before it when the impugned decision was made.
9. Upon receipt of the documents, the Attorney General of Canada observed that many of the documents in support of the applicant's affidavit had not been in evidence before the Canadian Human Rights Commission when it made the decision covered by this application for judicial review.
Analysis
10. As the Attorney General of Canada argues, it is clear that in matters involving the judicial review of a decision this Court must rely on the documentation that was available to the decision-maker at the time the impugned decision was made.
11. Although the Attorney General of Canada is correct on this point, and the applicant should bear this in mind, the Court does not intend to grant the motions to strike on that basis. They are therefore dismissed without costs for the following reasons.
12. Even though the motions were not submitted as such, it appears to me that these motions to strike should be considered in terms of the inherent jurisdiction of this Court as Strayer J.A. did in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1994), 176 N.R. 48, at pages 54-5 (Pharmacia). I believe that the principles of that case apply to our analysis even though the Attorney General of Canada is concerned only with striking out a portion of an affidavit and the exhibits and not with striking the application for review in its entirety. I would even say that Pharmacia is even more applicable - thereforea fortiori - because only a few elements are contemplated by the motion to strike.
13. In Pharmacia, Strayer J.A. acknowledges that striking out should only be sought in exceptional cases in matters of judicial review. This is what the Court had to say about it 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.)
14. This is the same reasoning that Nadon J. of this Court followed in a decision dated August 13, 1996 (Tom Pac Inc. v. Kem-A-Trix (Lubricants) Inc., docket T-1238-96, at page 5).
15. In the case at bar, the elements that the Attorney General of Canada is trying to correct through this motion are not, under the circumstances, elements that - even if the Attorney General is correct - could be perceived as so incorrect and so unacceptable that they should interrupt the process of an application for judicial review (see the opinion of Strayer J.A. in Pharmacia, supra, at pages 54-5). Any application to strike in the context of an application for judicial review must be exceptional in order to promote one of the primary objectives of such an application i.e. to have this application heard on the merits as quickly as possible.
16. As stated by Strayer J.A. 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 page 248, and Glaxo Wellcome Inc. et al. v. Minister of National Health and Welfare et al., unreported judgment of this Court, September 6, 1996, docket T-793-96.)
17.
Under the circumstances, I believe that the respondent should raise the points referred to in the motion in the context of the supporting affidavits as well as in the context of the memorandum of fact and law of rule 310. In this respect, the respondent has until January 9, 2004, in each of the files discussed herein, to serve and file his affidavits under rule 307.
18. On another note, the applicant must carefully heed the following two points.
19. First, in docket T-1097-03, the applicant's exhibit 12, a recording, should be properly transcribed and this transcript should be served upon the Attorney General of Canada within 45 (forty-five) days of this order failing which the applicant will be precluded from referring to it in the future.
20. Secondly, the applicant must be very careful not to use language that is inappropriate under the circumstances in the two files under review.
"Richard Morneau"
PROTHONOTARY
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
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