Federal Court Decisions

     IMM-901-96

Between:

     EBERHARD BERTOLD,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     By this motion in writing, pursuant to Rule 324, the Applicant seeks leave to file affidavit material to supplement that filed as a part of his Record. The motion sets out the grounds:

. . . the Applicant's Supplementary Affidavit is necessary to be placed before the Court to fully answer the Respondent's Memorandum of Argument and to clarify certain facts contained in the Applicant's Affidavit of 26 April 1996 and filed herein . . .

The Applicant relies upon various Rules including Immigration Rule 21(2) and Federal Court Rule 3(1)(c), which provide for the variance of time limits and on Rule 5, the Gap Rule, which allows the Court, where Rules and procedure are not otherwise provided for, to work by analogy to other provisions found in our Rules or found in the Rules of the Courts of the Province. Rule 6 might also be relevant.

     In support of the motion counsel refers to affidavit material, the Applicant's Memorandum of Argument filed as part of the Record and to the Respondent's Memorandum of Points of Argument filed in answer.

     Counsel for the Respondent Minister filed written submissions in answer to this application. Subsequently counsel for the Applicant filed submissions in reply.

     In Azat Azatian v. The Minister of Citizenship and Immigration, IMM-1610-96, unreported reasons of July 5, 1996, Mr. Giles, Associate Senior Prothonotary, reminded counsel of long-standing law that Rule 324 procedure does not provide for a reply. Mr. Giles referred to Vlahou v. MM & I, [1977] 2 F.C. 225 at 227 (F.C.A.), Kurniewicz v. MM & I (1974), 6 N.R. 225 at 231 (F.C.A.) and, more recently, to Lioubimenko v. MCI (1994), 79 F.T.R. 233, a decision of Mr. Justice Strayer, as he then was. The gist of these decisions is that an applicant must submit his representations in writing at the time of requesting a motion be disposed of without personal appearance and that a reply, in Rule 324 proceedings, requires leave of the Court.

     In Lioubimenko Mr. Justice Strayer dealt with an application to set aside his earlier decision because it was rendered before the applicant had an opportunity to reply to the submissions of the respondent. However, he did look at the reply: he observed that there were arguments which the applicant should have made in the original application, but those arguments did not convince him that the original application ought to have succeeded. In this instance I have taken the same approach.

     Counsel for the Respondent Minister refers to Nguyen v. MEI, IMM-2574-93, in which Madame Justice Reed issued unreported reasons and directions on September 10, 1993. Judge Reed dealt with an application to file, under cover of a supplementary affidavit, a transcript of the relevant proceedings of the Board. She concluded that while the Rules do not specifically provide for the filing of affidavit evidence in reply, there is no specific barrier in the Immigration Rules and indeed Rule 6, of the Federal Court Rules, allows the Court, in special circumstances and subject to such conditions as it considers appropriate, by order, to dispense with compliance to any Rule in the interests of justice. In the result the "very very brief" supplemental affidavit, attaching a copy of the official transcript of the Board's proceedings, was accepted for filing.

     The present affidavit which Mr. Bertold seeks to file is quite different from that which Madame Justice Reed allowed to be filed in Nguyen. Mr. Bertold now seeks to add substantial evidence, which was available to him at all relevant earlier times.

     Counsel for the Respondent Minister also refers to Adeniji v. MCI, IMM-3891-94, an Order of December 29, 1994, of Mr. Justice Denault, for the proposition that where the subject matter of a reply affidavit has either been fully or could have been fully covered by the applicant in his initial affidavits in support of his application for leave and judicial review, a supplemental affidavit is inappropriate. This is a sound principle on which such an order might be based, although Mr. Justice Denault did not embody it in reasons. However, in the Lioubimenko case [supra] at p. 234, Mr. Justice Strayer, in rejecting supplemental material said in part:

. . . In the first place the materials now filed as a belated reply to the submissions of the respondent on the original application for an extension of time are not, for the most part, the proper subject of a reply. They purport to make arguments which the applicant should have made in the original application. [emphasis added]

This is a reasonably clear enunciation of the principle which counsel for the Respondent Minister says underlies Mr. Justice Denault's Order in Adeniji.

     In the present instance, in reply to the Crown's answer, counsel for the Applicant Bertold submits that the supplemental affidavit material is necessary in order to explain or clear up a characterization by the Respondent Minister of a November 15, 1995, meeting with an Immigration Official. The subject of the meeting is raised by the Applicant Bertold in his April 25, 1996, affidavit in support of his application for judicial review. Counsel for the Respondent Minister comments on that portion of the affidavit in her points of argument in response to the judicial review application. Counsel for Mr. Bertold submits the characterization given to the meeting is incorrect and that further clarification is necessary. I am not convinced there are special circumstances which would allow the filing of Mr. Bertold's supplemental affidavit. If there has been a mischaracterization of the meeting by counsel for the Respondent Minister, it will be for the judge hearing the matter to characterize it properly.

     Counsel for the Applicant Bertold also submits that if the Respondent Minister is prejudiced by the supplemental material, such prejudice may be overcome by allowing the Respondent Minister a further response, as was the case in Nguyen [supra]. Again, the situation here is very different than it was in Nguyen. The supplemental affidavit there was extremely brief, setting out only that an official transcript of the Board hearing was attached. Here, there would be a substantial addition of evidence bearing on the issue of a particular meeting, an issue raised by the Applicant, which he now seeks to elaborate upon. That is too far removed from the analysis which Madame Justice Reed used in reaching her decision in Nguyen.

     The application to file supplemental affidavit material is denied.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

July 31, 1996

Vancouver, British Columbia