Date: 20000417
Docket: T-411-00
BETWEEN:
MIRANDA LARSON-RADOK and
MONTANA LARSON RADOK,
Applicants,
- and -
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] The Applicants wish to amend or withdraw an affidavit. This comes about because the instructions of the Applicants, which were with regard to two sets of tax certificates filed in the Vancouver Land Registry Office and which were filed on the titles of two pieces of land, appear not to have been successfully carried out. The judicial review application refers to removal of tax certificate filed against property owned by the Applicants, as does the affidavit of Mr. Clearwater in support. However, documents making up exhibit C to the Clearwater affidavit refer both to the property owned by the Applicants and to property mortgaged to the Applicants. Correctly at issue are both the real property interests and the mortgage interests of the Applicants, all of which have tax certificates filed against them.
[2] The Applicants wish to make clear that two distinct interests, are involved. This was always clear to the Respondent, who brought the oversight to the attention of the Applicants" counsel. However, the Respondent urged that the amendment or withdrawal of the affidavit not be allowed for various reasons.
[3] The difficulty all of this presents is that if the judicial review application were to proceed to a hearing, on the basis of the faulty affidavit and if no remedy could be granted at the hearing because the affidavit was deficient and confusing, that would merely add to the expense for all concerned, for the underlying issue would not have gone away. The parties, although invited, were not able to reach a compromise. Thus I have imposed a resolution.
[4] The Applicants" motion is one to perhaps withdraw the affidavit or to amend it pursuant to Rule 75, dealing with the amendment of documents. The withdrawal of an affidavit is often not possible: see for example Ominayak v. Lubicon Lake Indian Nation , an unreported 9 February 2000 Judgment of Madame Justice Reed in Action T-875-99. In The Bill Crosbie [1981] 1 F.C 611 Mr. Justice Dubé had no particular problem with the concept of amending an affidavit under Rule 303, the predecessor to present Rule 75, although in The Bill Crosbie the concept was not applicable. In the present instance I do not think that the concept of an amendment of the affidavit is the best approach, for the Respondent believes that the present affidavit is germaine for what it does or does not set out.
[5] Thus I believe the best approach is to leave the present affidavit in place to illustrate the initial confusion, in case anything hinges upon the affidavit as originally filed and rather than amendment under Rule 75, to allow a supplemental affidavit under Rule 312. Bringing a motion under the wrong rule is not fatal.
[6] To file a supplemental affidavit under Rule 312 requires special circumstances, the general test being whether the supplemental material will serve the interests of justice, assist the Court and not seriously prejudice the other side: see for example Deigan v. Canada (2000) 168 F.T.R. 277, appeal dismissed 14 April 1999. The supplemental affidavit which the Applicants wish to file in this proceeding meets these requirements. Further it would not unduly delay the proceedings.
[7] The difficulty is that a supplementary affidavit ought not to deal with material which could have been made available at an earlier date. Yet I do not believe that this concept ought to be slavishly applied, where innocent confusion on the part of counsel, confusion not shared by the other side, confusion which would prejudice the applicants, is involved. Counsel and client are not always, for all purposes, one entity, with the oversight of counsel an inescapable consequence for client: see for example Vega v. Canada (1999) 48 Imm. L.R. (2d) 127. As I noted there the concept of natural justice is involved, including that justice should be seen to be done (page 129). In the present instance, for justice to be done, a supplemental affidavit is in order.
ORDER
| The Applicants may have until close of Registry on 25 April 2000 within which to serve and file a supplemental affidavit. Costs of the motion to the Respondent in any event. |
(Sgd.) "John A. Hargrave"
Prothonotary
April 17, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
| COURT FILE NO.: T-411-00 |
| STYLE OF CAUSE: MIRANDA LARSON-RADOK AND MONTANA LARSON-RADOK |
v.
THE MINISTER OF NATIONAL REVENUE
| PLACE OF HEARING: VANCOUVER, BC |
| DATE OF HEARING: APRIL 17, 2000 |
| REASONS FOR ORDER AND ORDER OF |
MR. JOHN A. HARGRAVE, PROTHONOTARY
| DATED: APRIL 17, 2000 |
APPEARANCES:
| Mr. David Christian for the Applicants |
| Ms. Scarlett McGladery for the Respondent |
SOLICITORS OF RECORD:
Thorsteinssons
| Vancouver, BC for the Applicant |
Boughton, Peterson,
Yang & Anderson
| Vancouver, BC for the Respondent |