Fogal v. Canada, docket T-790-98

Date: 19990106

Docket: T-790-98

BETWEEN:

     CONSTANCE CLARA FOGAL and

     THE DEFENCE OF CANADIAN LIBERTY COMMITTEE/

     LE COMITE DE LA LIBERTE CANADIENNE,

     Applicants,

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     and OTHERS,

     Respondents.

     REASONS FOR ORDER

JOHN A. HARGRAVE,

PROTHONOTARY

[1]      These reasons arise out of the Respondents rather late motion, in writing, to allow the Respondents to file a supplemental affidavit on a judicial review matter which is to be heard on 19 and 20 January 1999. It is a motion which the Applicants say ought to be dealt with orally at the judicial review hearing itself.

[2]      The judicial application is a challenge of the jurisdiction of the Respondents to sign a treaty, in the form of a Multilateral Agreement on Investment, on behalf of Canada. While the relief sought is extensive it is sufficient to say it was the view of the Applicants, in April of 1998 when this proceeding was commenced, that to sign such a treaty would be outside of the power granted by and ultra vires of the Constitution Acts of 1867 and 1982 and that, generally, such a treaty would not be in the best interests of Canadian citizens.

[3]      To deal with this motion at the opening of the judicial review hearing could well result in delay. As to an oral hearing, as I pointed out in Sterritt v. Canada (1996), 98 F.T.R. 68, affirmed on appeal, 98 F.T.R. 72, an oral hearing of a motion that is intended to be dealt with in writing must "... be supported by some substantial reason for concluding that, in the circumstances of the particular case, the applicant cannot adequately present his application in writing.": Gordon v. Matsqui Institution, [1973] F.C. 723 at 724 (F.C.A.). In Karlsson v. Minister of National Revenue (1996), 97 F.T.R. 75, I noted that there were a number of instances in which the court might agree to an oral hearing of a written motion:

[4]      In the present instance, as I read the written representations, the reason that counsel for the Applicants wish an oral hearing is that there is a second outstanding motion, for disclosure of documents, which is to be heard at the commencement of the 19 and 20 January 1999 hearing. Counsel go on to set out that they do not anticipate the judicial review application being argued on the merits on 19 and 20 January and that, in any event, they would need time to cross-examine the deponent of the affidavit which the Respondents wish to file. These reasons for an oral hearing are to some degree speculative and are not substantial reasons by which I can conclude that the present application cannot adequately be dealt with in writing.

[5]      Turning now to the motion itself, the Respondents refer to rule 312, a new rule, which allows the filing of additional affidavit material, with the leave of the court.

[6]      A good starting point from which to look at a supplemental affidavit is Nguyen v. MEI, a September 1993 decision reported (1994), 107 D.L.R. (4th) 186, a decision of Madame Justice Reed. In that instance there was an application to file, through a supplemental affidavit, a transcript of the relevant proceedings of the Board. Madame Justice Reed felt that while the rules in effect did not specifically provide for the filing of additional affidavit material, there was no specific barrier in the Immigration Rules and further that what was then rule 6 of the Federal Court Rules, now rule 55, allowed the court, in special circumstances subject to such conditions as might be considered appropriate, by order, to dispense with the compliance of any rule in the interests of justice. The result was a "very, very brief" supplemental affidavit attaching, as an exhibit, the official transcript of the Board's proceedings.

[7]      Madame Justice Reed did not remain alone for long in allowing supplemental affidavit material to be filed in judicial review proceedings: see, for example, Unitel Communications Inc. v. Bell Canada (1995), 82 F.T.R. 298 (F.C.T.D.) and Adria Laboratories of Canada Ltd. v. Canada (1995) 182 N.R. 313 (F.C.A.). I take the general rule, for additional affidavits, to be that the main concerns ought to be whether the additional material will serve the interests of justice, will assist the court and will not seriously prejudice the other side: see for example Eli Lily and Company v. Apotex Inc. (1998), 137 F.T.R. 226 at 228, a decision of Mr. Justice Teitelbaum, decided under the old rules.

[8]      While it was clear from the Nguyen case that the circumstances in which supplemental affidavit material might be filed were limited, the new rule makes it clear that supplemental affidavits may be appropriate. However, in my view, supplemental affidavits should only be allowed in limited circumstances, for to do otherwise would not be in the spirit of judicial review proceedings, which are designed to obtain quick relief through a summary procedure.

[9]      In the present instance there are circumstances by which to justify the filing of a supplemental affidavit, for the proposed affidavit, which is attached to the Respondents' material, does not set out material which could have been made available at an earlier date. The proposed affidavit of Denyse Mackenzie sets out material by which to show the current state of the negotiations which were to lead to a Multilateral Agreement on Investment and particularly material dealing with a 20 October 1998 meeting of the negotiating states, a 23 October 1998 letter of the Honourable Sergio Marchi, Minister of International Trade, a 5 November 1998 Response to a Petition made by the Minister of International Trade and tabled in the House of Commons and an Organization for Economic Cooperation and Development ("OECD") news release of 3 December 1998. This material is said to indicate that the OECD sponsored negotiations, toward a Multilateral Agreement on Investment, have ceased, so far as Canada is concerned. Counsel for the Respondents says that it is in the interests of justice that the Court know that negotiations have ceased and that the Court should not proceed with the judicial review on the mistaken assumption that Canada is continuing negotiations toward the Multilateral Agreement. This is fairly straightforward and is sufficient grounds to allow in the new affidavit. However there is the matter of cross-examination and prejudice to the Applicants.

[10]      The Applicants' material in response to the motion sets out that, in their view, the negotiations toward a Multilateral Agreement on Investment have not ceased, but that the forum has merely moved from the Organization for Economic Cooperation and Development to the World Trade Organization "or to some other global forum" (16 December 1998 affidavit of Constance Fogal).

[11]      If such a supplemental affidavit is allowed in, as I have decided it will be in the present instance, it must be on conditions that will protect the Applicants. Here I have in mind that the 19 and 20 January 1999 judicial review proceedings may well, contrary to the wishes of counsel for the Applicants, proceed. Thus the affidavit may be filed on condition that:

[12]      If required counsel may have a special hearing, before me, on short leave, to deal with the propriety of any questions asked or material requested.

[13]      Costs shall be payable by the Respondents to the Applicants forthwith in the amount of $500.00. The reason for the award of costs, which award does not follow the event, is the late date of this motion, given the Christmas vacation and the January hearing date. Here I acknowledge that one of the exhibits to the proposed Mackenzie affidavit, the OECD news release, is dated 3 December 1998. That news release is boiler plate which adds little or nothing to the exhibits of 20 and 23 October and 5 November 1998. This is a motion which should have been brought at an earlier date, in which case there would have been far less inconvenience to the Applicants and indeed to all concerned.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

Vancouver, British Columbia

6 Janaury 1999

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-790-98

STYLE OF CAUSE:          Constance Clara Fogal and others

PLACE OF HEARING:          Vancouver, BC

REASONS FOR ORDER OF THE COURT BY:

JOHN A. HARGRAVE, PROTHONOTARY

DATED:                  January 6, 1999

SOLICITORS OF RECORD:

Mr. Rocco Galati              for the Applicants

Azevedo & Peeling

Barristers and Solicitors

148 Alexander Street

Vancouver, BC

V6A 1B5

Deputy Attorney General

of Canada