Date: 20060120

Docket: T-611-04

Citation: 2006 FC 55

BETWEEN:

MICHEL VENNAT

APPLICANT

- and -

ATTORNEY GENERAL FOR CANADA

RESPONDENT

REASONS FOR ORDER AND ORDER

HUGESSEN J.

[1]               The Attorney General of Canada filed a motion under section 369 of the Federal Courts Rules to first of all obtain directions from the Court concerning section 302 of the Rules and, secondly, to have struck from the record numerous paragraphs of the affidavit of Michel Vennat (“the applicant”), as well as several exhibits filed in support of this affidavit, and to have struck from the record the affidavit of Denis Desautels, the former Auditor General of Canada.

[2]               As far as section 302 is concerned, it is true that Mr. Vennat has applied for the judicial review of two orders of the Governor General in Council. Under the first Order, dated February 24, 2004, P.C. 2004-147 (the “Suspension Order”), the applicant was suspended without pay for an indefinite period from his position as President of the Business Development Bank of Canada (BDC). The second Order, dated March 12, 2004, P.C. 2005-225 (the “Dismissal Order”), cancelled the nomination of the applicant as President of the BDC. Under section 302, unless the Court orders otherwise, an application for judicial review shall be limited to a single order in respect of which relief is sought.

[3]               Mr. Vennat alleged that the orders constituted a single decision, and the case law relating to section 302 of the Rules does not apply in such a situation (Khadr v. Canada (Minister of Foreign Affairs), [2004] F.C.J. No. 1391; Truehope Nutritional Support Ltd. v. Canada (Attorney General), [2004] F.C.J. No. 806 [“Truehope”]).

[4]               In my opinion, the Court should authorize Mr. Vennat to contest the two orders in a single application for judicial review. In my view, it is obvious that the orders constitute one continuous decision. These two orders were published by only one decision-making organization, that is, the Governor General in Council. The Suspension Order and the Dismissal Order concern the same facts, and Mr. Vennat is seeking the same relief. It is obvious that the two orders concern one situation, that is, the role played by Mr. Vennat in the dismissal of François Beaudoin. In addition, it would be a waste of time and resources to require two distinct applications for judicial review in this case. In short, the Court shall order that this application for judicial review concern both orders of the Governor General in Council.

[5]               As far as the second aspect of the motion is concerned, it is clear that there is a serious issue between the parties concerning the jurisdiction of the Governor General in Council and procedural fairness. In addition, considering the special nature of this application for judicial review, it is premature to strike from the record any paragraphs concerning allegations of law or opinion. In my opinion, it would be preferable to leave the affidavits and exhibits in question for evaluation by the judge that hears the application for judicial review on the merits (Lominadze v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 115, paragraph 23; Council of the Ontario Association of Architects v. Assn. of Architectural Technologists of Ontario (C.A.), [2003] 1 F.C. 331 (F.C.A.)).

[6]               In fact, case law suggests that this Court does not have the power to strike out affidavits in an application for judicial review (Lominadze v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 115, paragraph 23; Ye v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1461, paragraph 6). Paragraph 21 of the judgement rendered in Pfizer Canada Inc. v. Canada (Minister of Health), [2004] F.C.J. No. 1833, 2004 F.C. 1526, contains an excellent summary of the case law concerning the striking out of affidavits:

Insofar as the Prothonotary found that the prevailing jurisprudence directs that a decision to strike affidavits in an application for judicial review should be left to the trial judge, he correctly interpreted and applied the law. I refer to Lominadze v. Canada (Minister of Citizenship and Immigration) (1998), 143 F.T.R. 310, Sawridge Band v. Canada [2000] 3 F.C. D-11 and Dupuis v. Canada (1998), 152 F.T.R. 82 (Proth.). The Prothonotary committed no reviewable error in his decision in this regard.

[7]               This rule is in agreement with the reasons in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. (C.A.), [1998] 1 F.C. 588, which explained at paragraph 12 that “the focus in judicial review is on moving the application along to the hearing stage as quickly as possible”.

[8]               Finally, I am of the opinion that it would be unfair and inexpedient to strike out the affidavits at this time. The judge hearing the application for judicial review may examine the matter of the admissibility of the affidavits and the attached exhibits. There is no order as to costs for either party.

ORDER

THE COURT ORDERS that:

1.         Notwithstanding section 302 of the Rules, the applicant is authorized to institute this proceeding.

2.         The judge hearing the application for judicial review will rule on any issue concerning the admissibility of evidence.

3.         There is no order as to costs.

“James K. Hugessen”

Ottawa, Ontario

Signed on January 20, 2006

Certified true translation

Michael Palles

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                                T-611-04

STYLE OF CAUSE:                                 MICHEL VENNAT v. ATTORNEY GENERAL OF CANADA

MOTION IN WRITING UNDER SECTION 369 OF THE RULES       

REASONS FOR ORDER

AND ORDER BY:                                   THE HONOURABLE MR. JUSTICE HUGESSEN

DATED:                                                   January 20, 2006

WRITTEN REPRESENTATIONS:

SOLICITORS OF RECORD: