Copello v. Canada (Minister of Foreign Affairs), docket T-1770-98

     Date: 19991029

     Docket: T-1770-98

Ottawa, Ontario this 29^th day of October, 1999

PRESENT: Madam Prothonotary Roza Aronovitch

BETWEEN:

DR. GIORGIO COPELLO

     Applicant

     - and -

THE MINISTER OF FOREIGN AFFAIRS and

THE ATTORNEY GENERAL OF CANADA

Respondents

REASONS FOR ORDER and ORDER

[1]      This is an application in writing under Rules 369 and 312 of the Federal Court Rules, 1998, for leave to file an additional affidavit of the applicant, Dr. Giorgo Copello, sworn August 25, 1999.

[1]      The application in question, commenced on September 10, 1998, is in relation to a decision, by way of a diplomatic note, of the Minister of Foreign Affairs and International Trade, requesting that the applicant, a diplomatic representative of the Government of Italy, leave Canada as of September 1998. The Minister"s decision has been stayed by Order of this Court pending the disposition of the application.

[2]      Following status review, the applicant"s record was filed on June 4, 1999. The applicant has sworn three affidavits in this proceeding all of which are included in the applicant"s record. The application was perfected on July 9, 1999, upon the applicant"s requisition for hearing.

[3]      Subsequently, on August 5, 1999, the applicant swore a fourth affidavit apparently in the context of a motion brought before the Court pursuant to Rule 316 of the Federal Court Rules, 1998 for leave to examine the Chief of the Office of Protocol of the Department of Foreign Affairs on the basis that Mr. Bowden, the respondents" affiant, had neglected to satisfactorily answer questions during the cross-examination on his affidavit in January 1999. The motion was denied on September 10, 1999.

[4]      The applicant now brings the within motion for leave to file an additional affidavit of the applicant, Dr. Giorio Capello, sworn on August 25, 1999, for the stated purpose of summarizing for the Court, the information in his previously sworn affidavits namely; the three already incorporated in the applicant"s motion record, as well as the fourth sworn on August 5, 1999, following the perfection of the application.

[5]      While Rule 312 of the Federal Court Rules, 1998, authorizes parties to file additional affidavits with leave of the Court, such supplemental affidavits must be allowed only in limited circumstances given that judicial review is meant to be a summary process. Prothonotary Hargrave in Fogal v. Canada (1999) F.C.J. 39, sets out the criteria that have to be considered in such cases. The Court has to be satisfied that the additional material will serve the interests of justice, will be of assistance to the Court and will not seriously prejudice the other party. It is also important that any supplementary affidavit neither deal with material which could have been made available at an earlier date nor unduly delay the proceedings.

[6]      The proposed affidavit does not satisfy any of the above tests. In the circumstances of this application, it is not evident that a summary is either necessary or helpful. The applicant submits that no new facts are alleged, it is therefore, not clear why the summary was not produced at the time of the submission of the applicant"s record. As to the application, it deals with issues that are not factually complex, and the affidavits, already on the record, are straight forward and intelligible, thereby obviating any need for a summary.

[7]      There is reference here to material which post-dates the filing of the applicant"s record, namely; the fourth affidavit, sworn in the context of the motion for leave to examine. Upon review, it is apparent that it does not relate fresh facts. Its substance, are questions not answered on cross-examination by Mr. William Bowden and argument in support of the motion. Both Mr. Bowden"s sworn affidavit and the transcript of the cross-examinations, are already part of the Court"s record by virtue of their inclusion in the applicant"s record and thus while the affidavit does not advance new facts, it certainly advances further argument.

[8]      In fact, the applicant"s proposed supplementary affidavit is replete with argument which in any case, ought not to be made by way of affidavit or supplementary affidavit and in the circumstances of this case, where all the facts were known at the time the application was perfected, could easily have been incorporated in the applicant"s record.

[9]      The respondents objects to the supplementary affidavit inter alia on the basis that it introduces a new claim namely; a claim pursuant to the Charter of Rights and Freedoms not made in the application. Indeed, the stated grounds of the application are the Minister"s failure to observe the principles of natural justice and procedural fairness. While the Vienna Convention is invoked, no breach of the Charter is alleged, nor is any claim for relief made in that connection.

[10]      The proposed affidavit, in addition to summarizing is also proposed to "assist the Court in dealing with the Minister"s failure to observe and respect the relevant rules of international law, internal human rights, the most basis principles of natural justice, the Canadian Charter of Rights and Freedom , the rules of procedural fairness and certain articles of the Vienna Convention".

[11]      The applicant argues that the proposed affidavit does not make a claim under the Charter and that the Charter is already referred to at various paragraphs of the applicant"s memorandum of fact and law filed on June 4, 1999.

[12]      I find the references to the breach of the Charter in the proposed affidavit unclear and potentially problematic. To the extent that the applicant"s affidavit purports to assert a fresh claim pursuant to the Charter , it may not be introduced at this time, is clearly prejudicial to the ability of the respondents to defend the application at this late date, and would further delay the proceeding. If however, the references to the Charter merely echo statements already found in the applicant"s record, the applicant should be content to rely on the arguments already made thus rendering any further references superfluous.

[13]      The onus is on the party seeking leave to submit supplementary affidavits to satisfy the Court of the necessity and appropriateness of the supplementary affidavit in light of the above-stated criteria. No case has been made out by the applicant as to the necessity for this additional affidavit which, alleges no new facts, is not what it purports to be namely; simply a summary and has the potential to confuse rather than clarify. The applicant in this case, has not demonstrated how the supplementary affidavit, especially at this late stage and without prejudice to the respondents, would either assist the Court or serve the interests of justice.

ORDER

"Roza Aronovitch"

Prothonotary