Date: 20010718
Docket: T-264-01
Citation: 2001 FCT 808
Vancouver, British Columbia, Wednesday, the 18th day of July, 2001
BETWEEN:
KARL RICHARD TOFT
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HARGAVE, P.
[1] At issue is leave to include the 31 May, 2001 affidavit of Beverley Williams, with four exhibits, in the Applicant's Record. The judicial review application itself deals with the review of a decision made 8 January, 2001, by which the Appeal Division of the National Parole Board reviewed and found reasonable the 2 August 2000 decision of the National Parole Board
THE DOCUMENTS AT ISSUE
[2] The four documents exhibited to the Williams affidavit all post date the decision of the Appeal Division. Here I would note that while exhibit "A" bears the typed heading date "2001/01/06", that is by all indications an incorrect date, for the body of the memo, which is an ongoing or running memo, refers to events which took place on the 5th, 6th and 7th of February, 2001, a month after the typed date on the memo. Moreover, an automatic dating system, on the bottom of the memo, bears out the 6th February 2001 date as the date of the initial entry on the running memo. Thus the issue becomes the propriety of including, in a motion record as part of the case to be judicially reviewed by this Court, documents which were not and could not have been before the Appeal Division of the National Parole Board.
CONSIDERATION
[3] The Applicant's argument for inclusion of the documents is that it would be in the interests of justice for the Court to have before it material relating to the issue to be argued, namely material relating to conditions of release which may or may not have been in effect when the National Parole Board and the Appeal Division considered a variation of the Applicant's parole. The conditions, according to the Applicant, constituted the justification provided by the Parole Board and by the Appeal Division, for their decisions.
[4] In support of this motion the Applicant refers to Eli Lily Co. v. Apotex Inc. (1998) 144 F.T.R. 189, a decision of Mr. Justice Teitelbaum. That pharmaceuticals case involved an application to quash a notice of compliance. The Court allowed the Respondent to file reply evidence because the Applicant had file material which the Respondent had never seen before. It was thus in the interest of justice that the Respondent be given an opportunity to reply.
[5] In the present instance the situation is very different from that in Eli Lily. Leaving aside that the proceedings are considerably different, there remain three telling facts. First, the material which the Applicant, Mr. Toft, seeks to file, is not in reply to anything, but merely seeks to introduce documents which have recently come to hand. Second, it appears, without contradiction, that the conditions of release, referred to in the documents attached to the Applicant's parole, have been in existence for some time and that on or about 13 May 1999 and 6 July 2000 had been communicated to the Applicant. Third, the documents which the Applicant seeks to introduce post date the decision of the Appeal Division made 8 January 2001.
[6] Most critical of these three facts is that of the documents post dating the decision which is presently being reviewed and thus could not have been before the tribunal. Here I would first refer to Asafov v. Canada, a brief unreported 18 May 1994 decision of Mr. Justice Nadon in action IMM-7425-93. There the Applicants sought to introduce into the record evidence which had not been before the tribunal when it rendered its decision. In denying leave to introduce further and fresh evidence Mr. Justice Nadon succinctly summed up the underlying reasons for the denial:
2 The purpose of the judicial review process is to examine the tribunal's decision in the light of the evidence adduced before it at the hearing and to decide whether or not there are grounds for review. From that perspective, the evidence which the Applicants now seek to introduce is irrelevant. By granting this application I would be transforming the judicial review process into that of an appeal.
In essence, judicial review is just that, a review of a tribunal's decision which is based on the evidence which the tribunal had before it: to allow in additional material would not only be irrelevant, but also would transform a judicial review process into an appeal process.
[7] In Abdullahi v. Minister of Employment and Immigration (1995) 91 F.T.R. 309 Mr. Justice Gibson considered two views as to allowing in material which was not before the tribunal. One view was that because of the continuously prospective nature of a refugee claim it behooved the Court, in special circumstances, to permit the introduction of new and genuinely relevant material on a judicial review. Mr. Justice Gibson preferred the view taken by Mr. Justice Nadon in the Asafov case (supra):
Mr. Justice Nadon could, I conclude, have gone further. He could have described the transformation as one from a judicial review process into that of an appeal by way of trial de novo. I agree with the position of Mr. Justice Muldoon as to the relevance of the material in question before him and before me as to the well-foundedness of the claim in question. However, I am satisfied that is not here the issue. The issue here is the relevance of the material in the context of a judicial review application. In the context so stated, I prefer the view of Mr. Justice Nadon. The documentary material covered by counsel's affidavit post-dating the date of the hearing before the CRDD and therefore clearly not before the CRDD, is irrelevant to this judicial review application. I will therefore not take it into account in the decision that I reach.
Thus, in Abdullahi, material post-dating the decision under review was held irrelevant in the judicial review application.
[8] Much the same ground, as in this present application, is dealt with in a brief decision, Sardar v. Canada (1999) 153 F.T.R. 140. Also relevant, by analogy, is the production of documents under Rule 317, as to the general bar to production of documents which were not before the tribunal, various relevant cases being referred to in Canadian Arctic Resources Committee Inc. v. Diavik Diamond Mines Inc., an unreported 6 June 2000 decision in file T-2127-99. The cases referred to in Diavik include the Court of Appeal decision in 1185740 Ontario Ltd. v. Minister of National Revenue (2000) 247 N.R. 287 which, in upholding the Trial Division decision, reported (1999) 150 F.T.R. 60, makes it clear that documents not before a tribunal are irrelevant when it comes to judicial review of that tribunal's decision.
CONCLUSION
[9] In the present instance the material which the Applicant now seeks to introduce, as just having come to hand, contains nothing new and indeed deals with facts of which the Applicant was already aware. However, most telling, is that the material post dates the decision under judicial review. The material is irrelevant. Thus leave to file the affidavit containing that material is denied.
(Sgd.) "John A. Hargrave"
Vancouver, British Columbia
July 18, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-264-01
STYLE OF CAUSE:Karl Richard Toft v. Attorney General of Canada
PLACE OF HEARING: Motion in Writing
REASONS FOR ORDER OF: Mr. John A. Hargrave, Prothonotary
APPEARANCES:
Peter J. Royal, Q.C. and
Deborah R. Hatch Motion in Writing
W. Brad Hardstaff
Department of Justice Motion in Writing
SOLICITORS OF RECORD:
Royal McCrum Duckett & Glancy for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent