Date: 20000908
Docket: IMM-2693-00
OTTAWA, ONTARIO, THIS 8th DAY OF SEPTEMBER 2000
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
MA YE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] By notice of application filed on May 25, 2000, the applicant seeks judicial review of a decision of a visa officer, Pamela Currie, rendered at the Canadian Embassy in Beijing, China. The applicant now moves in writing pursuant to Rule 369(1) of the Federal Court Rules, 1998, for an order striking out, with costs to the applicant, paragraph 4 of the affidavit of Pamela Currie filed in opposition to the application.
[2] The applicant bases such motion on the ground that the affidavit is not based upon the deponent's personal knowledge and is hearsay evidence.
[3] The impugned paragraph provides:
| 4. I am informed by a representative at the Canadian Embassy in Beijing, and verily believe, that Mr. Ma would have received the standard "kit" that is sent to applicants as a matter of course. This "kit" provided to applicants at that time requested, inter alia, the following financial documents from all applicants: |
| Original letters of employment from your parents' present employers. Letters should be on official company letterhead stating: your parents' positions with their respective companies, how long they have been employed there, and their annual salaries for the last two years (including bonuses if applicable). |
| Recently dated original bank certificate(s) stating the current balance of each account and/or deposit currently held by the respective bank(s) for you and/or your family. Each certificate should be accompanied by corresponding deposit receipt(s) and/or photocopies of complete bankbook(s). |
| Note: Please note that deposit certificates should represent your and/or your family's banking activity for at least the past 18 months. Large deposits made within the past 6 months should be accompanied by a written explanation of the source of their money. |
[4] It is settled law that there is a general reluctance on the part of the Court to determine questions relating to the admissibility of evidence prior to the hearing of the merits of the matter. See, for example, the decision of Muldoon, J. in Kirkbi AG et al. v. Rivtik Holdings Inc. et al. (1998), 142 F.T.R. 308 (T.D.).
[5] Additionally, in the context of a proceeding for judicial review commenced by notice of application, the Court has recognized the summary nature of the proceeding. The Federal Court of Appeal in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al. (1995), 176 N.R. 48, in the context of a motion to strike out what was then an originating notice of motion, commented that:
| ... the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. |
[6] Thus, in Lominadze v. Canada (Minister of Citizenship and Immigration) (1998), 143 F.T.R. 310 (T.D.), Reed, J., while noting the jurisdiction in an exceptional case to dismiss an originating notice of motion, stated that there was no jurisdiction in the Court to strike out affidavits or originating notices of motion in a judicial review proceeding.
[7] On the motion before me the applicant seeks to distinguish the Kirkbi decision on the ground that it was not decided in the context of a judicial review proceeding, and seeks to distinguish the Lominadze decision on the ground that it does not expressly preclude a party from moving to have a portion of an affidavit struck.
[8] Those attempts to distinguish settled case law totally ignore the underlying principle that proceedings brought by notice of application for judicial review are summary in nature. Only in an exceptional case are they to be encumbered by interlocutory motions.
[9] There can be no suggestion that this is in any way an exceptional case. To the extent that the impugned paragraph puts in evidence the nature of advice sent to the applicant, those facts are well within the knowledge of the applicant who would be well situated to refute them.
[10] The issue of the admissibility or weight to be given to the impugned evidence should be left to the discretion of the judge who hears the application for judicial review.
[11] The respondent seeks the costs of this motion on the ground that the applicant ought to have been aware that this matter should properly have been brought at the hearing of the judicial review application, and on the ground that the applicant must be presumed to have the best knowledge available of the facts in the impugned paragraph.
[12] On those grounds, it is submitted that the motion was frivolous, vexatious, and a waste of the Court's time and resources.
[13] I agree. The inappropriate nature of the motion constitutes "special reasons" justifying an award of costs. Therefore, it is ordered that:
ORDER
| 1. The applicant's motion for an order striking out paragraph 4 of the affidavit of Pamela Currie is dismissed. The admissibility of the impugned evidence is reserved to the discretion of the judge who will hear the application for judicial review. |
| 2. The applicant shall pay the costs of this motion to the respondent, fixed in the amount of $250.00, inclusive of disbursements. |
"Eleanor R. Dawson"
Judge