Docket: T-1853-15
Citation: 2016 FC 412
|
BETWEEN:
|
|
PRIVATE (RET'D)
CORY D. WAGNER
|
|
Applicant
|
|
and
|
|
THE ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
REASONS
FOR ORDER
LAFRENIÈRE P.
[1]
This is a motion on behalf of the Respondent
pursuant to Rule 369 of the Federal Courts Rules for an order to strike
the Affidavit of Michel W. Drapeau in its entirety, or in the alternative,
striking such parts as seems just to the Court.
[2]
By way of brief background, the Applicant filed
a Notice of Application on
November 3, 2015, seeking judicial review of a decision dated September 25,
2015 of the Chief of Defence Staff, as the Final Authority in the Canadian
Forces Grievance System (Final Authority). The decision dismissed the
Applicant’s grievance with respect to his compulsory release from the Canadian
Armed Forces (CAF) pursuant to article 15.01 of the Queen’s Regulations and
Orders [QR&Os] under Item 2 – Unsatisfactory Conduct. The Applicant seeks
an order quashing the decision and directing the Final Authority to grant him
an “honourable release” pursuant to article 15.01 of the QR&Os.
[3]
On January 29, 2016, the Applicant filed proof
of service of the Applicant’s
two affidavits served in support of the application - the Applicant’s affidavit
sworn on January 28, 2016 and the affidavit of Michel W. Drapeau sworn on
January 26, 2016 (Drapeau Affidavit). The Respondent filed proof of service of
the Respondent’s Rule 307 affidavit on February 26, 2016. The Respondent
subsequently brought the present motion to strike the Drapeau Affidavit in its
entirety or, alternatively, portions thereof.
[4]
A preliminary issue to be determined is whether
the motion to strike the affidavit should be dealt with in advance of the
hearing. Part 5 of the Federal Courts Rules, which governs proceedings
brought by way of application, does not contain any provision authorizing the
striking out of affidavits filed in applications by way of interlocutory
motion. Although the Court has a discretionary power to strike affidavits, that
power must be exercised sparingly. It is only in exceptional circumstances,
where prejudice is demonstrated and the evidence is obviously irrelevant, that
this type of motion may be justified: Canadian Tire Corp v PS Part Source
Inc, 2001 FCA 8 (CanLII).
[5]
I conclude that an advance ruling on the issue
of admissibility of the Drapeau Affidavit is warranted as the matter is fairly
clear-cut and obvious.
[6]
The Applicant submits that the Drapeau Affidavit
addresses the adverse practical consequences of a dishonourable discharge of a
Canadian Forces member, and addresses the arcane workings of military law and
policy with respect to compulsory release from service of a member as a
dishonourable discharge. According to the Applicant, the primary purpose of the
affidavit is to assist the Court in assessing the truth and reliability of the
reasons given by the Final Authority for rejecting the Applicant’s argument
that assigning him a 2(a) release item (dishonourable discharge) fatally
compromises his future, including his employability.
[7]
Assuming for the purpose of this motion that Mr.
Drapeau is an expert in military law, it remains that his interpretation of
legislation is not the proper subject of expert evidence. On its face, the
first purpose of the Drapeau Affidavit is to set out and interpret certain
provisions of the Code of Service Discipline, the National Defence
Act and the QR&Os. The second purpose is to opine about the legal and
practical effect of release from the military “that is not honourable.” In Eco-Zone
Engineering Ltd. v. Grand Falls - Windsor (Town), 2000 NFCA 21 (CanLII),
2000 NFCA 21 (Eco-Zone), the Newfoundland Court of Appeal held that it
was “the long accepted view that courts do not accept
opinion evidence on questions of domestic law (as opposed to foreign law).”
[8]
Mr. Drapeau’s opinion of the practical
consequences of legislation is also inadmissible for two reasons. First, the
general rule is that evidence that could have been placed before the
administrative decision-maker, here the Final Authority, is not admissible
before the reviewing court: Connolly v Canada (Attorney General),
2014 FCA 294 (CanLII), 466 NR 44 at paragraph 7. I note that the Applicant
filed an affidavit setting out difficulties he experienced in securing
employment after he was released on September 18, 2013. Presumably the impact
of a dishonourable discharge personally on the Applicant was presented to the
Final Authority before he reached his decision. There is no indication that the
Final Authority had the benefit of any expert evidence.
[9]
Second, and more importantly, the Federal Court
of Appeal in Brandon (City) v Canada, 2010 FCA 244 (CanLII), citing with
approval the Eco-Zone decision, confirmed at par. 27 that “the legal effect of domestic legislation is not a matter of
evidence: it is the Court’s role to interpret the legislation.” Both decisions stand for the principle that courts
do not accept expert evidence on the ultimate issue which is for the court to
decide.
[10]
The statements made by Mr. Drapeau consist of
inadmissible legal opinion and argument that ought properly be the subject of
legal argument, not evidence. Being substantially in agreement with the written
representations filed on behalf of the Respondent, I conclude that striking the
affidavit in advance of the hearing would serve the interests of justice and
judicial economy. The parties should not be wasting time and resources in
cross-examination that will ultimately prove ineffective and in preparing
memoranda of fact and law based on plainly inadmissible evidence.
[11]
The Drapeau Affidavit shall accordingly be
struck in its entirety.
[12]
As for the costs of the motion, I note that the
Respondent delayed in bringing the present motion to strike the Drapeau
Affidavit and only did so after complying with Rule 307 of the Federal Courts Rules. Although costs
should generally follow the event, I agree with the Applicant that the
underlying application raises important issues of disenfranchisement and
poverty law. In the circumstances, I conclude that each party should bear their
own costs of the motion.
THIS COURT ORDERS that:
1.
The motion is granted.
2.
The affidavit of Michel W. Drapeau sworn on
January 26, 2016 is struck out in its entirety.
3.
The parties are granted an extension of time to
April 29, 2016 to complete cross-examinations, if any.
4.
The Applicant shall serve and file the
Applicant’s Record within 20 days of completion of cross-examinations, or the
expiration of the time for doing so, whichever is earlier.
5.
There shall be no order as to costs of this
motion.
“Roger R. Lafrenière”
Vancouver, British
Columbia
April 13, 2016
Email this Content