Date: 19980629
Docket: IMM-4894-97
BETWEEN:
JAFAR AGHA YAZDANIAN,
GHODSI KHANOUM YAZDANIAN,
AND HOSSEIN YAZDANIAN,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] These reasons and the resulting order arise out of a motion brought by the Respondent, for an Order to strike both the affidavit of Soheil Javid, sworn May 11, 1998 and paragraphs 5, 6, 7 and 8 of the supplementary affidavit of Shirin Drudian, sworn May 11, 1998 together with exhibits "A", "B", "C" and "D" thereto.
[2] For the sake of efficiency and, as a practical exercise of judicial discretion, parties ought not to be permitted to strike out each others affidavits. This generality is, of course, subject to special circumstances: for example, where an affidavit is abusive or clearly irrelevant; where a party has obtained leave to admit evidence which turns out to be obviously inadmissible; or where the court is convinced that the matter of admissibility should be resolved at an early date so that a hearing may proceed in an orderly manner. There is case law to this effect in a number of decisions including in Home Juice Company v. Orange Maison Ltd., [1968] 1 Ex.C.R. 163 at 166 (President Jackett) and in Unitel Communications Co. v. MCI Communications Corporation (1997), 119 F.T.R. 142 at 143. In the latter Mr. Justice Richard (as he then was) noted that the trial judge would be better placed to assess the weight and admissibility of such affidavit material (pages 143 and 145). Of course conjecture, speculation and legal opinion have no place in an affidavit.
[3] In the present instance, counsel for the Respondent submits the affidavits contain new evidence, being material which was not before the visa officer from whose decision this judicial review arises. As new evidence is not admissible on judicial review it should follow that the affidavits be struck out.
[4] Counsel for the Applicants submits the material is collateral evidence to show that had the visa officer, who made the decision, given opportunity to the Applicants to provide evidence to allay her concerns, that specific evidence, including public documents, was in fact available.
[5] While some of the material in the affidavit of Soheil Javid may border on conjecture and speculation there is more to the affidavit than that. Among other things the impugned paragraphs in the affidavit of Shirin Drudian raise an issue of whether, on the one hand, pertinent documents, incorporated into material which was in fact before the visa officer, are new evidence and thus barred from the judicial review proceeding or, on the other hand, represent an attempt to put public information before the Court. It would be premature to deal with these issues, for the material can be looked at in several ways, a task for which the reviewing judge, once he assesses the application as a whole, will be better suited to perform.
[6] At this stage, before even cross-examination, it is inappropriate to strike out the whole of one affidavit and the meat of the second affidavit. These are matters that should be determined by the Trial Judge for, as Associate Chief Justice Richard put it in Unitel Communications (supra), when faced with an application to strike out an affidavit:
| "... I have concluded that it would not be appropriate to proceed with the plaintiffs' motion to strike. This is a matter that should be heard and determined, if necessary, by the trial judge both as to weight and admissibility, and in making this ruling I do not prejudice in any way the parties from making such submissions at the appropriate time to the trial judge who will be designated to hear the expedited issues." (page 145) |
That the hearing in Unitel Communications was to be on an expedited basis is not a reason by which to distinguish the present situation, for the reasons in Unitel Communications are based on the general propositions set out in Home Juice Company (supra).
ORDER
[7] In the present instance, the application is dismissed, however both counsel have agreed that exhibit "D" to the affidavit of Shirin Drudian will be withdrawn. The dismissal is without prejudice to counsel making similar submissions to the judge who, in due course, hears this judicial review application.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
June 29, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: June 29, 1998
COURT NO.: IMM-4894-97
STYLE OF CAUSE: Jafar Agha Yazdanian and others
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated June 29, 1998, 1998
APPEARANCES:
Mr. Zool K. Suleman for Applicants
Ms. Larissa Easson for Respondent
SOLICITORS OF RECORD:
Larson Suleman Sohn Boulton
Vancouver, BC for Applicants
Morris Rosenberg for Respondent
Deputy Attorney General
of Canada