Date: 19991202
Docket: T-908-98
BETWEEN:
| BARRY PAUL HOLLAND |
Applicant
| - and - |
| THE ATTORNEY GENERAL OF CANADA |
Respondent
REASONS FOR ORDER
MacKAY, J.:
[1] These are brief reasons for my dismissal of the applicant's application pursuant to Rule 316 of the Federal Court Rules, 1998, to allow a witness to testify at the hearing of this application for judicial review, scheduled for January, 1999. At the conclusion of the hearing of this motion in Edmonton, on November 24, 1999, I dismissed the application, a determination confirmed by written Order following the hearing.
[2] The applicant acknowledges that to succeed in the application it is essential to demonstrate a "special circumstance" that would warrant the necessity of viva voce evidence proposed to be heard from a witness.
[3] Rule 316 of the Court's Rules reads as follows:
| On motion, the Court may, in special circumstances, authorize a witness to testify in court in relation to an issue of fact raised in an application. |
This Rule (formerly Rule 319(4)) was considered by my colleague, Mr. Justice Rouleau, in Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) and Apotex Inc. et al. (1987), 11 F.T.R. 132 at 133, where he commented in part:
| Under Rule 319 all the facts on which a motion is based must be supported by affidavit evidence. It is only "by leave of the Court" and "for special reason" that a witness can be called to testify in relation to an issue. There were no cases presented to me by counsel for the plaintiff nor am I aware of any case law which identifies the test as to what constitutes "special reason". In my opinion, this is a question to be decided on the facts of a particular case with the onus being on the applicant to prove the existence of "special reason" to the satisfaction of the Court. What is clear from the jurisprudence is that leave will be granted by the Court only in exceptional circumstances. |
[4] In this case the applicant contends that a portion of the record of the respondent includes a report with a statement describing the services which are provided by the Edmonton Police Service that may be relevant for this matter. That report is said to be in contradiction to correspondence subsequently filed from the Edmonton Police Service. It is proposed that a member of the Edmonton Police Service be called to give evidence to clarify the contradiction.
[5] For the respondent it is urged that the contradiction referred to by the applicant is acknowledged in the report to which the applicant takes exception in the record of the respondent. In short, it is urged that the evidence sought to be adduced from the witness is already in the record and would not present new information for the Court.
[6] I am persuaded by the respondent's argument in this matter.
[7] Further, while it is alleged for the applicant that "this area of evidence was critical in the determination of whether or not the permit ought to have been granted", the refusal of which is now questioned on judicial review, I am not persuaded that the testimony proposed to be adduced will resolve any issue of significance for determination of the application for judicial review on its merits.
[8] In sum, since I was not persuaded that there were special circumstances that would warrant authorization for a witness to testify in Court at the hearing of the applicant's application for judicial review, the motion was dismissed.
JUDGE
OTTAWA, Ontario
December 2, 1999.