Date: 20000417
Docket: T-34-99
BETWEEN:
GABRIEL AZOUZ
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] The respondent is presenting this motion, in the wake of the order by Lemieux J. rendered on December 22, 1999, for leave to file four supplementary affidavits. The respondent asks that the order in this matter be included as well in docket T-35-99.
THE FACTS
[2] On December 2, 1999, Mr. Joe Khoury, a consultant representing the applicant Mr. Gabriel Azouz, met with a representative of the respondent, Mr. Jean-Paul Dufour, to discuss a resolution of this case.
[3] This meeting took place in the absence of counsel for both parties.
RESPONDENT'S SUBMISSIONS
[4] The respondent argues that new information surfaced during the meeting of December 2, 1999, and that it is relevant to file some supplementary affidavits. This information is relevant to determining the merit of the application for judicial review, because the case was referred from the Audit Division to the applicant's [sic] Investigations Section on the suspicion that the applicant's version given to the responsible examiner was not true.
[5] The respondent further submits that this information goes to the credibility of the evidence presented by the applicant.
[6] The respondent argues that the Court should apply the same reasoning to Mr. Dufour's affidavit as was accepted for filing Mr. Sweibel's affidavit, since the information was not obtained until December 2, 1999.
[7] The respondent is asking the Court to accept the affidavits of Mr. Maheu and Mr. Choquette, since they corroborate Mr. Dufour's affidavit.
[8] Finally, since dockets T-34-99 and T-35-99 are to be heard consecutively, the respondent is asking the Court, if leave is granted, to file the affidavits in docket T-35-99 as well.
APPLICANT'S SUBMISSIONS
[9] The applicant argues that the four affidavits are not admissible since Mr. Khoury disclosed some information in a confidential context.
[10] The applicant submits that this Court should examine the admissibility of the documents on the motion, since the respondent is trying to file some affidavits out of time. The applicant argues that it would be hard to rule on admissibility without the benefit of cross-examination.
ISSUE
[11] Should the Court allow the filing of the respondent's four supplementary affidavits?
ANALYSIS
[12] In Home Juice Co. v. Orange Maison Ltée, [1968] 1 Ex. C.R. 163, the Court stated:
Where the affidavits are filed in time, questions of relevancy or admissibility, like questions of cogency, should ordinarily be left to be dealt with on the hearing of the application. On this view, I dismiss the present application.
I am not to be taken as saying that there might not be such an abusive filing of irrelevant affidavits or other filing of material before the hearing as would call for an application in advance of the hearing to have the Court exercise a proper judicial discretion to put the matter in proper shape for the hearing.
As a practical matter, the most efficient and economical way of deciding such questions is by having them so raised and decided at the hearing and as a practical exercise of judicial discretion the parties should not be permitted to raise them before the hearing. The two exceptions of that general rule that I contemplate at the moment are:
(a) where a party has to obtain leave to admit evidence and it is obvious in the view of the court that it is inadmissible; and
(b) where the court can be convinced that as a practical matter the admissibility of the affidavits filed by one of the parties should be considered some time before the hearing so that the hearing can proceed in an orderly manner.
[13] In Andres Wines Ltd. v. Canadian Marketing International Ltd. (1986), 2 F.T.R. 292, the Federal Court held:
Furthermore, whenever leave is sought to file evidence in an untimely manner, a court is invited not only to deal with its admissibility but to scrutinize it in its entirety. This seems to be the position taken by Jackett J. in Home Juice Co. v. Orange Maison Ltée (op. cit.) And it appears to me to make eminent sense. A court's discretion should not be exercised in a void as it were. The scrutiny, in my view, would involve the materiality of the evidence, its probative or persuasive weight and indeed, its inherent pertinence and relevancy of a nature to indicate at this stage of the proceedings that the Court might very well require the evidence at the hearing of the appeal in order to arrive at the best and wisest disposition of it.
[14] I have reviewed the reasons in support of the decision rendered by Mr. Justice Teitelbaum in relation to the filing of Mr. Sweibel's affidavit.
[15] In my view, it is hard to apply the same arguments to the documents the respondent is attempting to introduce in this case.
[16] In the first place, in support of his re-amended motion, the respondent's counsel writes:
In addition, on December 2, 1999, a tax consultant representing Mr. Gabriel Azouz, called a meeting with a representative of the Respondent in the Investigations Section of the Agency, to discuss the possibility that the Agency withdraws its Request for Information to the Internal Revenue Service of the United States in exchange of a possible guilty plea from the Applicant for not having declared income received from the sale of auto parts to Jubail Motors;
[17] It is clear to me, from this document, that the meeting between Messrs. Khoury and Dufour was held in good faith on both sides and I therefore have every reason to believe that Mr. Khoury could be under the impression that this meeting was confidential, having himself worked for more than thirty years for the respondent, and thus could understand and know precisely how to proceed in such circumstances.
[18] Clearly, there is a difference in perception in relation to this meeting, judging by the various affidavits. However, I was referred to The Law of Evidence in Canada (1992), where Mr. Justice Sopinka refers, at pages 719-34, to information exchanged in a settlement process. At page 19 [sic], he writes:
Policy and General Rule.
It has long been recognized as a policy interest worth fostering that parties be encouraged to resolve their private disputes without recourse to litigation, or if an action has been commenced, encouraged to effect a compromise without a resort to trial. In furthering these objectives, the courts have protected from disclosure communications, whether written or oral, made with a view to reconciliation or settlement. In the absence of such protection, few parties would initiate settlement negotiations for fear that any concession that they would be prepared to offer could be used to their detriment if no settlement agreement was forthcoming.
Conditions for Recognition of the Privilege
There are number of conditions that must be present for the privilege to be recognized:
a litigious dispute must be in existence or within contemplation;
the communication must be made with the express or implied intention that it would not be disclosed to the Court in the event negotiations failed; and
the purpose of the communication must be to attempt to effect a settlement.
[19] I have no hesitation in considering that the meeting of December 2, 1999, while it was not monitored by counsel for the two parties, was a meeting in good faith, and that Mr. Khoury could reasonably believe that the information conveyed, and in particular the settlement offer, would be considered confidential, having regard to the circumstances.
[20] It appears that the respondent's representative submitted a written report and that several other persons prepared affidavits in relation to this meeting, and that the respondent intends to use certain statements that might be considered admissions against the applicant.
[21] The second point that must be examined by the Court is that this event of December 2, 1999 occurred subsequent to the filing of the application for judicial review and the Court must therefore examine whether it is justified in the circumstances to allow supplementary affidavits to be filed.
[22] Counsel for the respondent told the Court that Mr. Justice Teitelbaum had decided to allow the filing of a document - not in relation to the events of December 2, 1999 but in relation to other events that had occurred on September 14, 1999. I think it is useful to adopt the comments made by Prothonotary Morneau in his decision, filed September 27, 1999, at paragraph 12:
[Translation] The courts have consistently held that facts subsequent to the decision or act impugned on judicial review are irrelevant and ought not to be admitted:
"There is no provision in the governing legislation or rules which provides for the introduction of fresh evidence on the merits on Judicial Review. This is not surprising, because it is clear from the powers of review set out in section 18.1(4) of the Federal Court Act that judicial review is intended to address errors made during the Board's proceedings." (Extract from Franz v. M.E.I., 80 F.T.R. 79, at p. 80).
"By this motion, the court is being asked to add material to the case that was not before the adjudicator when he made his decision and couldn't have been before him because it did not exist at that time. This court has declined to make such an order in such circumstances. (Compare Garland Wilson v. Canada Employment and Immigration Commission, [1990] F.C.J. No. 961, File A - 445-89, August 16, 1990, per Hugessen, J.A. See also Optical Recording Corp. v. Minister of National Revenue (1987), 79 N.R. 23 (F.C.A.), at pp. 26 and 27.)" Extract from Pacific Press v. Canada, (1990) 127 N.R. 323 (F.C.A.) at p. 324.
[23] In the circumstances, I am of the opinion that it is unnecessary to depart from the principle established by the cases. For the reasons given, the respondent's motion is dismissed.
[24] This order will apply equally in both dockets T-34-99 and T-35-99.
Pierre Blais
J.
VANCOUVER, BRITISH COLUMBIA
April 17, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-34-99
STYLE: Gabriel Azouz v. Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 6, 2000
REASONS FOR ORDER OF BLAIS J.
DATED: April 17, 2000
APPEARANCES:
Michel Matthieu FOR THE APPLICANT
Maria Grazia Bittichesu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sweibel Novek
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT