Montréal, Quebec, July 4, 2006
Present: Richard Morneau, Prothonotary
BETWEEN:
Applicant
and
REASONS FOR ORDER AND ORDER
[1] This is a motion by the applicant under sections 369 and 316 of the Federal Courts Rules for an order authorizing witnesses to testify at the hearing on the merits of his application for judicial review.
[2] Section 316 reads:
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316. 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. (Emphasis added) |
316. Dans des circonstances particulières, la Cour peut, sur requête, autoriser un témoin à témoigner à l’audience quant à une question de fait soulevée dans une demande.
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[3] In Cyanamid Canada Inc. v. The Minister of National Health and Welfare (1992), 52 F.T.R. 22 (F.C.T.D.), the Associate Chief Justice of this Court, as he then was, made the following comments with respect to the exceptional nature of “special reason” in subsection 319(4) of the former rules of the Court. The wording of subsection 319(4) was very similar to the current section 316.
It is clear that motions are to be conducted on the basis of documentary evidence and that it is exceptional to depart from this practice. Rule 319 of the Federal Court Rules provides that allegations of fact upon which a motion is based shall be by way of affidavit although, by leave of the Court and for special reason, a witness may be called to testify in open Court in relation to an issue of fact raised by an application. In Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) and Apotex Inc. et al. No. 4) (1987), 11 F.T.R. 132, Glaxo’s application under rule 319(4) for leave to call a witness to give viva voce evidence in relation to certain issues of fact raised in the application was dismissed. Rouleau, J., commented (at p. 133):
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] I am not persuaded that there are special circumstances in this case that would allow the parties to avoid the general procedure of hearing an application for judicial review on the basis of affidavits.
[5] It is also interesting to refer to the following comments by the Federal Court of Appeal when it dealt with a similar request as in this case, i.e. that an application be treated and proceeded with as an action under subsection 18.4(2) of the Federal Courts Act (see Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (F.C.A.), page 473).
[6] As Mr. Justice Décary stated in Macinnis, supra, at page 472 regarding subsection 18.4(2) of the Federal Courts Act, I believe that in the circumstances:
. . . the key test is whether the judge can see that affidavit evidence will be inadequate, not that trial evidence might be superior.
[7] In this case, I am of the view that affidavit evidence will be adequate for all parties, and that “special circumstances” under section 316 have not been established.
[8] Therefore, the applicant’s motion is dismissed, without costs.
ORDER
The applicant’s motion is dismissed, without costs.
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-170-06
STYLE OF CAUSE: IBRAHIM NJONKOU
and
CANADA REVENUE AGENCY
MOTION IN WRITING REVIEWED IN MONTRÉAL WITHOUT APPEARANCE BY THE PARTIES
REASONS FOR ORDER: PROTHONOTARY MORNEAU
WRITTEN SUBMISSIONS BY:
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Ibrahim Njonkou
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FOR THE APPLICANT |
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Dominique Guimond
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |
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