Date: 20021121
Docket: IMM-3389-02
Neutral citation: 2002 FCT 1209
BETWEEN:
ASHOT TUNIAN,
NATALIA YEFIMOVNA TUNIAN,
TIGRAN ASHOTOVICH TUNIAN,
VARDAN ASHOTOVICH TUNIAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
BACKGROUND
[1] By a motion in writing of 14 October 2002 the Applicants seek an extension of time for the filing of a supplementary affidavit and exhibit and further written arguments until the Privacy Commissioner renders a decision on the release of Immigration and Refugee Board member's draft reasons, those draft reasons pre-dating the entry of some of the evidence.
CONSIDERATION
[2] At issue here is an extension within which to file a supplementary affidavit, together with further argument. The extension sought is an indefinite one, running until the Privacy Commissioner decides on the release of an early draft of the decision now under review.
[3] That the matter has gone beyond an earlier September time extension granted the Applicants is a problem which the Crown has at least in part, brought upon itself. In the face of evidence to the contrary, the Immigration and Refugee Board advised, 22 August 2002, that no additional material, that is no earlier draft reasons, existed. The Immigration and Refugee Board did not come clean until 12 September 2002, when it admitted that there were in fact draft reasons, but refused to release them.
[4] Counsel for the Applicants has made a request for the material to the Privacy Commissioner, which had earlier said that the material did not exist. The Office of the Privacy Commissioner of Canada advised, 20 September 2002, that it had assigned an investigator, who would be making every effort to complete the investigations as soon as possible.
[5] The Applicants make a substantial argument that the material that they are waiting, a draft of a decision, was prepared far in advance of all of the evidence being in and say that the Applicants had no opportunity to meet that additional evidence.
[6] The Respondent's first line of defence is Bertold v. MCI, an unreported 31 July 1996 decision in file IMM-901-96. In Bertold I dealt with a request to file a supplemental affidavit
which contained material which was always available to the applicant. I looked for both special circumstances and material to indicate that it was in the interest of justice to allow such material to be filed, material which, in fact, seemed only to elaborate upon an issue which had already been raised and responded to. Moreover, when Bertold was decided, there was no Federal Court Rule providing for the filing of a supplemental affidavit. While the test of the interests of justice will always be current, Bertold had been overtaken by 1998 Federal Court Rules and specifically Rule 312(a) which allows the filing of supplemental affidavits.
[7] The current test for supplemental affidavit is that contained in Eli Lily & Co. v. Apotex Inc. (1997), 76 C.P.R. (3d) 15, as amended (1997), 77 C.P.R. (3d) 154 and as added to in Wayzhushk Onigum Nation v. Kakeway (2000), 182 F.T.R. 100. It is for the applicant who wishes to file a supplemental affidavit to demonstrate that:
(viii) the material will serve the interest of justice;
the material will assist the Court;
there be no substantial or serious prejudice to the other side;
the material was not available at an earlier date;
allowing in the material will not unduly delay the proceedings.
[8] Neither the Respondent nor the Applicants deal with all of these elements. The import of the motion is not such that either side ought to be given the opportunity to file further material, which would merely take up everyone's time. Further, while the points are not all dealt with in written argument, there is sufficient factual material and well-established law by which to consider and decide each of the five points.
[9] It would certainly be in the interest of justice to flush out the existence of a decision written before all of the evidence was in. In examining the Applicants' record filed 16 September 2002, it is apparent that the material would assist the Court. I do not see that allowing in a supplemental affidavit, containing that decision and a supplemental record containing relevant comment would cause either substantial or serious prejudice to the other side: any inconvenience could be dealt with by way of costs. Certainly the material was not available to the Applicants at an earlier date. Finally, while waiting for the material may result in some delay, I do not see it as undue delay for, as I already pointed out, the authorities at the Immigration and Refugee Board have brought this delay about through their own prevarication and an inability to come clean until caught.
[10] The Respondent goes on to refer to Weerasinge v. Canada (M.E.I.) (1994), 22 Imm L.R. (2d) 1, decision of the Federal Court of Appeal, in which the Court dealt with, among other things, an unpublished draft decision of the Refugee Division which was identical to the final decision, except for a comment as to one of the members of the Board ceasing to hold office. However, in that instance the draft decision was dated many months after the tribunal completed their hearing. There the Court of Appeal pointed to Rule 17 of the Federal Court Immigration Rules of 1993. Rule 17 was quite specific in setting out what the tribunal was required to provide. Present Federal Court Rule 317 is more general, requiring the production of all relevant material. Surely a draft decision, pre-dating the completion of the assembly and entering of evidence, being evidence which the Applicants were refused permission to meet, is relevant. Weerasinge is thus easily distinguishable.
[11] The Respondent goes on to submit the proposition that regardless of the content of draft reasons or of template reasons prepared by or for a tribunal, that does not raise reasonable apprehension of bias or give rise to a reason for the production of the draft reasons. Here counsel refers to Komanov v. Canada (1992), 7 Admin. L.R. (2d) 135. Mr Justice of Appeal Hugessen dealt with standardized pattern negative decisions referring to refugee claimants from Bulgaria, which was the applicant's country of origin. He noted that such a pattern negative decision aimed at a specific nationality was not to be recommended. Of course, a pattern decision was not in fact a decision of a tribunal, let alone a decision made in the absence of all of the evidence. Certainly such a pattern decision would not, as Mr Justice Hugessen pointed out, raised a presumption of bias. However, what happened in Komanov was very different from the present situation.
[12] Respondent also refers to Henderson v. Sarnia (City) Commissioners of Police, an appellate decision out of Ontario reported (1984), 7 D.L.R. (4th) 355 (Ont. H.C.). There a Chief of Police wrote up a penalty in his reasons for conviction. Seven days later, after submissions had been made as to penalty, the report was released. The Court of Appeal noted it was an unwise move, but that the accused had been given an opportunity to make representations before the sentence was in fact imposed. Henderson may be distinguished in that the Applicants in the present instance did not have that opportunity to make submissions either after the draft submission had been written, or after all of the evidence had been collected by the tribunal.
[13] I have already dealt with delay by pointing out that the Crown itself is in fact responsible for at least some of the delay. This leaves only the concept that waiting for a remedy under the Privacy Act is not a ground for delaying determination of an application for leave under the Immigration Act, the Crown referring to Muthulingam v. Canada (M.E.I.) (1991), 14 Imm L. R. (2d) 36, a decision of Mr Justice Strayer, as he then was. There the applicant sought an extension of time, during which he intended to submit and have processed an application under the Privacy Act and then, also within that time extension, to file that material. Mr Justice Strayer referred to the procedure under the Federal Court Immigration Rules, a procedure analogous to that under present Federal Court Rules 317 and 318, requiring a tribunal, on request, to forward its material to the Court at the requesting party, with a mechanism to resolve disputes as to whether certain documents ought to be produced. Given that a specific procedure that been prescribed, Mr Justice Strayer did not feel it appropriate to hold matters in abeyance until a remedy had been pursued under the Privacy Act. However, he went on to make two observations. First, it concerned him that there had been no notification in writing rejecting the applicant's request for documents; and second, he pointedly reached no conclusion as to the degree of disclosure from Minister's file which might be required. Mr Justice Strayer did not have to deal with an outright untruth, with the tribunal advising that certain material did not exist, when in fact it clearly did. In the present instance it would appear that the only means to get at the material, which the Immigration and Refugee Board initially said did not exist, was by obtaining and focusing the Board's attention by means of a Privacy Act application.
[14] As the Court of Appeal pointed out in Eli Lily, an important aspect in considering additional material is whether it will serve the interest of justice. Indeed, this was a part of the old test for additional material, relied upon by the Respondent in the reference to Bertold (supra), that supplemental material must be in the interest of justice. That is not a concept that is new, or indeed ought ever to go out-of-date, for nothing should be done which creates even a suspicion that there has been any improper interference with the course of justice. Indeed, one is reminded of the concept that "justice must be done and be seen to be done". While the concept is doubtless ancient, a classic source of this concept, for lawyers and judges in the twentieth century, was the decision of Lord Hewart, Chief Justice in The King v. Sussex Justices [1924] 1 K.B. 256 at 259:
| ... A long line of cases show that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done ... Nothing is to be done which creates even a suspicion that there had been an improper interference with the course of justice. |
[15] In this instance the draft reasons which pre-dated the conclusion of the gathering and admission of evidence by the Board, evidence which the Applicants were not allowed to answer, ought, for the sake of justice being seen to be done, to be before the Court.
[16] The Applicants may have extension of time within which to file a supplementary affidavit and exhibit, being the draft reasons and to file further written argument, the extension running until 14 days after either the draft reasons have been produced, or the Privacy Commissioner delivers a decision, whichever comes first. Here I do not see the delay will be oppressive, for the investigating officer assigned by the Privacy Commission of Canada has written to say that he will "make every effort to complete the investigation as soon as possible.".
[17] Costs to the Applicants, payable at the end of the day.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
21 November 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: IMM-3389-02
STYLE OF CAUSE: Tunian et al. v. The Minister of Citizenship and Immigration
REASONS FOR ORDER OF: Hargrave P.
DATED: 21 November 2002
WRITTEN REPRESENTATIONS BY:
Phil Rankin FOR APPLICANTS
Banafsheh Sokhansanj FOR RESPONDENT
SOLICITORS ON THE RECORD:
Rankin & Bond FOR APPLICANTS
Barristers & Solicitors
Vancouver, British Columbia
Morris A Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia