Citation: 2006 FC 1042
Vancouver, British Columbia, August 29, 2006
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION,
THE CANADIAN SOCIETY OF IMMIGRATION CONSULTANTS
AND THE ATTORNEY GENERAL OF CANADA
Respondents
and
THE FEDERATION OF CANADIAN LAW SOCIETIES
Intervener
REASONS FOR ORDER AND ORDER
[1] Rule 12(2) of the Federal Courts Immigration and Refugee Protection Rules, SOR/2002-232 (FCIRPR), provides that cross-examination on affidavits filed in connection with an application for leave and for judicial review may be conducted only after leave to proceed with the application for judicial review is granted, absent special reasons. Having been granted leave, the Applicant, the Law Society of Upper Canada (LSUC), now seeks to cross-examine Mr. Benjamin Trister, the former Chairperson of the Respondent, the Canadian Society of Immigration Consultants (CSIC), on his affidavit sworn March 3, 2005 and filed in response to LSUC’s request for leave to commence an application for judicial review (Trister Affidavit).
[2] CSIC opposes LSUC’s attempt to cross-examine Mr. Trister on the grounds that the Trister Affidavit was filed for the sole purpose of the leave application and will not be relied on in the judicial review application. CSIC submits, in the alternative, that cross-examination should not be permitted because Mr. Trister has since resigned his position as Chairperson of CSIC and now publicly opposes the regulation of immigration consultants by CSIC. In light of Mr. Trister’s apparent change of allegiance, CSIC elected to serve an affidavit by another deponent that is substantially identical to the Trister Affidavit. CSIC submits that, in the circumstances, LSUC should not be entitled to cross-examine on the Trister Affidavit.
[3] LSUC responds that the Trister Affidavit remains part of the record for consideration by the judge hearing the application for judicial review. It submits that it would be seriously prejudiced if prevented from conducting a cross-examination since the Trister Affidavit would be left unchallenged.
[4] The issue to be determined on this motion, as characterized by CSIC, is whether the Direction to Attend issued by LSUC to Mr. Trister should be struck.
Facts
[5] On January 5, 2005, LSUC brought an application for leave and for judicial review, seeking leave of the Court to commence an application for judicial review of the Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004-59 (Regulations). The Regulations provide that only lawyers, students-at-law, members of the Chambre des notaires du Québec and immigration consultants who are members of CSIC, would be recognized as “authorized representatives” who may, for a fee, represent, advise or consult persons subject to an immigration proceeding. LSUC also sought an extension of time to commence its application.
[6] CSIC took the position that LSUC should be denied an extension of time and that the application for leave should be dismissed. In support of its position, CSIC relied on the affidavit of Mr. Trister, its Chairperson at the time. The Trister Affidavit contains evidence on numerous issues, including: (a) the need for self-regulation; (b) the recommendations for the current regulatory scheme; (c) the establishment of CSIC as the self-regulatory body; (d) CSIC's operations; and (e) CSIC's regulation of immigration consultants. The last paragraph of the Trister Affidavit states that it is sworn in response to LSUC’s application for an extension of time and for leave for judicial review.
[7] On October 14, 2005, LSUC’s request for leave to commence an application for judicial review was granted by Justice Richard Mosley. Justice Mosley ordered that the hearing of the application be held on January 12, 2006 and also fixed a schedule for service and filing of further affidavits and completion of cross-examinations.
[8] On October 28, 2005, Mr. Trister resigned as the Chairperson of CSIC, apparently after growing disillusioned and frustrated by CSIC’s failure to efficiently regulate immigration consultants. Mr. Trister’s misgivings are revealed in a public declaration he made on April 26, 2006 before the Ontario Legislative Assembly Standing Committee (OLASC) on Justice Policy regarding Bill 14, Access to Justice Act, 2006, a bill which, among other things, proposes the regulation of paralegals by the LSUC. In the following extract, Mr. Trister is openly critical of the CSIC regulatory model:
The reason I decided to request to impose on your time is because I think the experience has been an important example of what you can expect if Bill 14 doesn't go through. If we don't get a consistent overriding regulator of legal services in Ontario, one alternative is to have many regulators. Some of the professions may be ready to regulate themselves. Others, like immigration consultants, are not.
This doesn't give me pleasure to say because, of course, I was the person who was most in charge of regulating that profession, and for me to come to you and say I think it's been a failure and should be replaced by a different model perhaps doesn't speak well of my abilities as chair of the advisory committee or of the society. But I met with significant problems in dealing with the consulting community and their so-called leadership. The result of that, and I will give you specific examples, is that what has transpired has not been in the consumer's interest, nor has it been in the interests of the consultants who are regulated.
[9]
By Order dated December 1, 2005,
the timetable set out in the Order of Justice Mosley
was varied by Prothonotary Lafrenière, who had been assigned by the Chief
Justice to assist in the case management of the proceeding. On consent of the
parties, the hearing was rescheduled to proceed on March 21 and 22, 2006, and
an extension of time was granted for service of further affidavits by the
Respondents and for completion of cross-examinations.
[10] CSIC subsequently served the Affidavit of Patrice Brunet sworn December 9, 2005 (Brunet Affidavit). Mr. Brunet was Vice Chairperson of CSIC at the time Mr. Trister served as Chairperson and served on the same Advisory Committee that recommended the current Regulations. The parties agree that other than odd updates and differences attributable to the affiants’ different backgrounds, the Brunet Affidavit is substantially identical in scope and in content to the Trister Affidavit.
[11] Following a case management conference held on February 20, 2006, the hearing of the application for judicial review was further adjourned at the joint request of the parties to allow for settlement discussions. The parties were also dispensed from taking any further steps pending further order of the Court.
[12] On April 28, 2006, LSUC advised that the settlement could not be reached and that the parties now wanted to proceed with the application and to schedule cross-examinations and to fix a hearing date. During a case management conference held on June 7, 2006, CSIC gave notice of its intention to bring an interlocutory motion prior to the commencement of cross-examination.
[13] On July 12, 2006, LSUC served a Direction to Attend to Mr. Trister to be cross-examined on his affidavit sworn on March 3, 2005. LSUC has not served a Direction to Attend to Mr. Brunet; however, the parties have agreed that his cross-examination would take place on October 4, 2006.
[14] On August 8, 2006, CISC brought the present motion for an order to strike the Direction to Attend of Mr. Trister for cross-examination.
Analysis
[15] CSIC raises two arguments in resisting LSUC’s attempt to cross-examine on the Trister Affidavit. The first is a procedural argument based on CSIC’s interpretation of certain provisions of the Federal Courts Rules (FCR) and the FCIRPR. The second one, made in the alternative, is based on issues of fairness and equity. I will deal with each argument in turn.
(1) Right to cross-examine on affidavits filed in leave applications
[16] CSIC submits that there is no basis to examine an affiant on a leave application whose affidavit is not being relied upon for the judicial review application. It argues that Rule 83 of the FCR makes a distinction between an affidavit filed for the purpose of a motion and one filed with respect to the main proceeding.
[17] Rule 83 reads as follows:
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Cross-examination on affidavits 83. A party to a motion or application may cross-examine the deponent of an affidavit served by an adverse party to the motion or application. |
Droit au contre-interrogatoire
83. Une partie peut contre-interroger l’auteur d’un affidavit qui a été signifié par une partie adverse dans le cadre d’une requête ou d’une demande. |
[18] CSIC contends that the Trister Affidavit was explicitly filed for the leave application and for no other purpose, and that the Brunet Affidavit was filed in response to the judicial review application. It maintains that an affidavit filed on a leave application need not be the same affidavit as that filed on the judicial review application, and that there is no provision for the cross-examination of persons other than those affiants relied upon for the application for judicial review.
[19] CSIC’s interpretation does not accord, however, with the intent of the FCIRPR, which govern the procedure for seeking judicial review in immigration matters. The basic approach of the FCIRPR is to adopt a seamless procedural route to obtain judicial review, consisting of one application for both the leave request and the judicial review itself. With respect to any documents filed in connection with an application for leave, Rule 16 of the FCIRPR specifically provides that they will form part of the record for consideration by the judge hearing the application for judicial review. Rule 16 reads as follows:
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16. Where leave is granted, all documents filed in connection with the application for leave shall be retained by the Registry for consideration by the judge hearing the application for judicial review. |
16. Lorsque la demande d’autorisation est accueillie, le greffe garde les documents déposés à l’occasion de la demande, pour que le juge puisse en tenir compte à l’audition de la demande de contrôle judiciaire. |
[20] CSIC argues that Rule 16 is simply intended to relieve a party from the cost and burden of unnecessarily filing duplicative documents in the event leave is granted, and the same material is filed on the judicial review application. I disagree. The purpose of Rule 16 is to ensure that all documents filed in connection with the leave application, including affidavits, form part of the judicial review record. In Li v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1398 (T.D.) (QL), Justice Barbara Reed reached the same conclusion by rejecting a preliminary motion by the respondent that the applicant’s affidavit filed in support of the application for leave should be declared inadmissible for the purpose of the judicial review application. At paragraph 7 of her decision, she wrote:
It seemed to me it was too late for the respondent to take that position. The affidavit was part of the record when the respondent chose not to make submissions on the leave application the previous November. It was part of the record that formed the basis of Mr. Justice Denault’s Order granting leave. It is too late now to suggest that it should not be part of the record.
[21] CSIC’s position that an application for leave is a discrete proceeding from the application for judicial review is also inconsistent with Rule 15 which provides that an order granting an application for leave must specify the time limits within which “further materials… including affidavits…are to be served and filed”. Rule 15 contemplates that the parties may decide not to file additional affidavits after an application for leave is granted. The use of the word "further" suggests that any evidence filed after the application for leave is granted is in addition to, and not in substitution of, the evidence filed in connection with the application for leave.
[22] Moreover, if CSIC’s interpretation was to be accepted, it would mean that a party applying for leave could file a different affidavit once leave is granted with impunity, leaving the original affidavit unchallenged and immune from cross-examination. This result could easily lead to abuse and does not comport with common sense.
[23] In the circumstances, I conclude that the Trister Affidavit forms part of the record for the application for judicial review and that LSUC has a prima facie right to cross-examine the deponent.
(2) Discretion to strike the Direction to Attend
[24] CSIC submits, in the alternative, that if the Trister Affidavit is properly subject to cross-examination, the Direction to Attend should be struck on the grounds that it would be unfair and unjust for a party to be bound by the evidence of an affiant who has since become adverse to the party on whose behalf the affidavit was originally filed.
[25] LSUC counters that when CSIC filed the Brunet Affidavit back in December 2005, it did not bring a motion to withdraw the Trister Affidavit. Similarly, in this motion, CSIC is not seeking to withdraw the Trister Affidavit, but is only seeking to prevent the cross-examination of Mr. Trister. LSUC submits that it would be seriously prejudiced if it were denied the right to test through cross-examination evidence that is part of the record and that is before the Court in opposition to the relief it seeks.
[26] LSUC also submits that, having filed the Trister Affidavit, CSIC cannot, when threatened with cross-examination, withdraw the affidavit and escape cross-examination. While Mr. Trister is no longer with CSIC, his affidavit remains the affidavit filed on behalf of CSIC and, as for any witness, his answers in cross-examination will become the evidence of those who may want to rely on them.
[27] A party filing a motion has the burden of proof to show that it is entitled to the relief sought in the notice of motion. No basis has been provided for striking a Direction to Attend issued to a deponent whose affidavit forms part of the record. The proper procedure would have been to seek leave back in December 2005 to withdraw the Trister Affidavit and to file an affidavit to replace it.
[28] Granted, CSIC can be criticized for failing to move promptly for leave to withdraw the Trister Affidavit. In addition, CSIC can be faulted for not specifically requesting such relief in the notice of motion. It remains, however, that CSIC’s motion was premised (albeit incorrectly) on the fact that the Trister Affidavit did not form part of the judicial review record. CSIC has also consistently stated that it will not be relying on the Trister Affidavit in responding to the judicial review application. In the circumstances, I consider it in the interests of justice to deem CSIC’s motion as including a request to withdraw the Trister Affidavit as alternative relief.
[29] The parties agree that an order permitting the withdrawal of an affidavit is in the discretion of the Court. The key determining factor when a request for withdrawal is made is the clear existence of prejudice to the party seeking to withdraw if leave is not given. The Court should not permit the withdrawal of an affidavit merely to prevent cross-examination (see Canadian Motion Picture Distributors Assn. v. Partners of Viewer's Choice Canada, [1996] F.C.J. No. 498 (C.A.) (QL); Boehringer Ingelheim (Canada) Ltd. v. Canada (Minister of National Health, Health Protection Branch), 2003 FCA 151 (C.A.); Syntex Inc. v. Canada (Minister of National Health and Welfare) (1995), 60 C.P.R. (3d) 518 (F.C.T.D.), and R.O.M. Construction Ltd. v. Heeley (1982), 136 D.L.R. (3d) 717 (Alta. Q.B.).
[30] CISC is not seeking to withdraw from the record relevant evidence that has been filed, nor is it proposing to withdraw the Trister Affidavit solely for the purpose of preventing cross-examination. Instead, CSIC has volunteered Mr. Brunet as a substitute witness for cross-examination because of concerns regarding Mr. Trister’s partiality.
[31] Since his affidavit was sworn in response to the leave request, Mr. Trister resigned his position as Chairperson of CSIC and now publicly opposes CSIC regulating immigration consultants. LSUC submits that the fact that an affiant's opinion on certain issues changes because of acquired knowledge and additional experience is not a ground sufficient to withdraw relevant evidence from the parties and the Court. However, taking into account that Mr. Trister’s current views appear to be diametrically opposed to CSIC’s position and supportive of LSUC’s attempt to regulate paralegals, I conclude that it would be unfair and prejudicial to CSIC should CSIC be bound by Mr. Trister’s answers in cross-examination.
[32] In contrast, there is no harm or prejudice to the LSUC should the Trister Affidavit be allowed to be withdrawn. CSIC has filed the Brunet Affidavit that is in all material respects identical to the Trister Affidavit. Although Mr. Trister had more personal interactions with government officials and a greater involvement in the matters in issue in this application, Mr. Brunet appears to be as knowledgeable and well-versed regarding the issues, and a proper substitute.
Conclusion
[33] In the particular circumstances of this case, I conclude that it is in the interests of justice to allow CSIC to withdraw the Trister Affidavit, thereby rendering moot CSIC’s request to strike the Direction to Attend issued to Mr. Trister. Since there was divided success on the motion, I decline to award costs to either party.
ORDER
THIS COURT ORDERS that:
1. The Respondent, Canadian Society of Immigration Consultants, is granted leave to withdraw the affidavit of Benjamin Trister sworn March 3, 2005.
2. The Affidavit of Benjamin Trister sworn March 3, 2005 shall not be disclosed to the judge hearing the application for judicial review.
3. There shall be no order as to costs of the motion.
“Roger R. Lafrenière”
Prothonotary
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-63-05
STYLE OF CAUSE: The Law Society of Upper Canada v. Minister of Citizenship and Immigration et al.
PLACE OF HEARING: By teleconferencing between Vancouver and Toronto
DATE OF HEARING: August 18, 2006
REASONS FOR ORDER: LAFRENIÈRE P.
APPEARANCES:
SOLICITORS OF RECORD:
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WeirFoulds LLP Barristers & Solicitors Toronto, Ontario
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Gowling Lafleur Henderson LLP Barristers & Solicitors Toronto, Ontario
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FOR THE RESPONDENT, Canadian Society of Immigration Consultants |
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John H. Sims, QC Deputy Attorney General of Canada Toronto, Ontario
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FOR THE RESPONDENT, Minister of Citizenship and Immigration
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Paliare Roland Rosenberg Rothstein LLP Barristers Toronto, Ontario |
FOR THE INTERVENER
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