[1994] 1 F.C. 96
IMM-2574-93
Van Hoa Nguyen (Applicant)
v.
The Minister of Employment and Immigration (Respondent)
Indexed as: Nguyen v. Canada (Minister of Employment and Immigration) (T.D.)
Trial Division, Reed J.—Vancouver, September 10, 1993.
Citizenship and Immigration — Immigration practice — Application for directions — Application for leave to commence s. 82.1 proceeding to challenge CRDD decision on applicant’s refugee status — Reasons quoting testimony in detail although no transcript prepared by official court reporter until ordered by applicant after application commenced — Application record including memorandum of fact and law stating quotations of Board’s own notes inaccurate reflection of what happened — Response asserting no evidence inaccurately quoted — Reply memorandum including, under cover of affidavit, transcript of Board proceedings — While Federal Court Immigration Rules not specifically providing for filing of affidavit evidence in reply, applicant not precluded from seeking leave to file such material — Relying on Federal Court Rules 5, 6, Court having authority to grant leave to file copy of official transcript under cover of affidavit — Given nature of arguments, Court could also order transcript to be filed pursuant to Federal Court Immigration Rule 14(2) — Filing of transcript directed.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Immigration Rules, SOR/89-26.
Federal Court Immigration Rules, 1993, SOR/93-22, RR. 4(1), 13, 14(2).
Federal Court Rules, C.R.C., c. 663, RR. 5, 6 (as enacted by SOR/90-846, s. 2).
Immigration Act, R.S.C., 1985, c. I-2, s. 82.1 (as am. by S.C. 1992, c. 49, s. 73).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Fawaz v. Canada (Minister of Employment and Immigration), 92-T-36, Pinard J., order dated 30/4/92, F.C.T.D., not reported).
APPLICATION for directions as to whether the official transcript of the CRDD hearing to determine applicant’s refugee status could be filed in reply to the allegation that there was no evidence that quotations of testimony in the decision were inaccurate. Directions given that transcript be filed.
COUNSEL:
Dr. Gary Botting for applicant.
Wayne D. Garnons-Williams for respondent.
SOLICITORS:
Gary Botting & Associates, Victoria, B.C. for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for directions rendered in English by
Reed J.: This is an interlocutory matter with respect to which I consider it important to file reasons. The applicant filed an application for leave to commence a section 82.1 [Immigration Act, R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 73)] proceeding to challenge a decision of the CRDD. That application was filed on May 25, 1993. In the course of preparing to perfect that application, counsel for the applicant obtained a copy of a letter which had been sent by the official reporter of the Board proceedings to one of the Board members:
Dear Sirs;
I have today perused a copy of your reasons for determination of refugee status of Van Hoa Nguyen from the hearing of March 19, 1993. You will remember that I was an official court reporter retained by the board to report the proceedings.
Frankly I’m surprised that you have quoted in such detail from the hearing when in fact a transcript was never prepared by me in this matter. I do not challenge your right to prepare your own transcript, but if this is the case, it does raise a question about the purpose for which the board retained me.
Finally, since I don’t recall any transcribing equipment or audio recording devices used by counsel or members, I’m left to wonder about the accuracy of such “verbatim” quotations which might be perceived by board officials or any other party to be my work.
I ask you respond to me on this matter.
On June 24, 1993 the applicant was granted an extension of time, to July 15, 1993, within which to file his application record. The letter from the official reporter was included under cover of an affidavit in the material filed in the applicant’s record. Paragraph 12 of the applicant’s memorandum of fact and law which was filed as part of that record states:
The Board relied on its own notes rather than on an official reporting of the proceedings. The copious quotations of notes are not an accurate reflection of what happened in the hearing.
The respondent’s response to this allegation is set out at paragraph 5 of its memorandum, filed August 13, 1993; it asserts:
… there is no evidence that the portions of testimony quoted by the board in its Reasons are in any way inaccurate and do not reflect what happened at the hearing.
The applicant accordingly filed a reply memorandum to which was attached, under cover of an affidavit, a transcript of the Board proceedings.
The respondent, by letter dated August 24, 1993, then wrote to the Registrar of the Federal Court. That letter reads in part:
I am writing to seek the Court’s direction and to respectfully request that the Court be advised that the Respondent objects to the materials filed by the Applicant’s counsel in reply to the Respondent’s Memorandum of Argument.
The Respondent submits that the affidavit of Gary Botting sworn August 17, 1993 and the Applicant’s Reply Memorandum of Argument, which relies extensively on that affidavit, are improper.
First, the Respondent submits that these materials have been filed in breach of the Federal Court Immigration Rules. Rule 9 of those Rules permits affidavits to be filed in support of an application for leave and sets out the time limits which apply. Rule 18 of those Rules makes provision for the filing of further written representations in reply to the documents filed by the respondent. No provision is made for the filing of new evidence in reply:
Satnam Singh Bainwait v. Minister of Employment & Immigration (90-T-611, May 7, 1990, Order of the Honourable Mr. Justice Muldoon)
Second, the Respondent submits that these materials are highly prejudicial to the Respondent. The Applicant has deprived the Respondent of an opportunity to fully respond to the Applicant’s case. The Applicant has introduced a new line of argument and new evidence without affording the Respondent an opportunity to respond thereto. The Federal Court Immigration Rules do not permit the respondent to file material and submissions in rebuttal.
In Fawaz v. Minister of Employment & Immigration April 30, 1992 92-T-36 (F.C.T.D.) Mr. Justice Pinard held that the affidavit of an applicant filed along with the applicant’s reply to the submissions of the respondent were filed in violation of 9(3) of the Federal Court Immigration Rules, and that the applicant’s written reply, could not be considered to the extent that it relied on the improperly filed affidavit.
Counsel for the applicant replied:
In response to Mr. Brindle’s letter to the Registrar of 24 August 1993, it is respectfully submitted that the official court reporter’s transcript of proceedings which was filed as part of the disputed affidavit can hardly be regarded as “highly prejudicial to the Respondent”, unless the Respondent is seeking remedy by obfuscation. The transcripts simply were not available prior to the deadline for filing leave.
It was our understanding that the Respondent would supply us with a copy of official transcripts of the hearing, and we were astonished that the transcripts had not even been ordered. We therefore eventually ordered them ourselves, but unfortunately did not receive them before the filing deadline had passed. It begs the question as to why the Respondent did not order them, after arranging for an official court reporter to be present.
The principles of procedural fairness and natural justice require that the best possible information be before the Court. For the Court to refuse to give countenance to an official transcript of a proceeding, on the grounds that the obviously accurate information it contains might be prejudicial to the Respondent (in this case a government department with all its vast resources) would prima facie bring the administration of justice into disrepute and quite possibly would result in elevating this matter to a Charter case.
We do not object to the Respondent being given leave to respond to the Reply Memorandum of Argument, and in particular the Transcript, if the Court finds that this might be an appropriate remedy.
The respondent has now responded:
It is to be noted that this Honourable Court has in the past not permitted the filing of supplementary affidavits in reply. The case of Omar Sheikh Hussain v. M.E.I., Federal Court file number 92-T-2090, provided a direction on April 14, 1993, wherein Madam Justice McGillis directed as follows:
“The rules do not permit the filing of a supplementary affidavit in reply. The document shall not form part of the record of this application.”
In accordance with this direction and in keeping with the central issue, it is apparent that not only the transcript of proceedings as found in Exhibit “A” but the entire affidavit of Gary Botting sworn the 17th day of August, 1993, should not form part of the record of this application as it is attached to the Applicant’s Reply Memorandum of Argument.
I note that the affidavit of Gary Botting which was filed with the reply memorandum is very, very brief and says no more than that he has attached a copy of the official transcript of the Board hearing.
In so far as the Fawaz [Fawaz v. Canada (Minister of Employment and Immigration), 92-T-36, Pinard J., order dated 30/4/92, F.C.T.D., not reported] decision is concerned it relates to an earlier version [SOR/89-26] of the Federal Court Immigration Rules, 1993 [SOR/93-22], a version that is no longer in force. While I agree with my colleagues that the Rules do not specifically provide for the filing of affidavit evidence in reply, I do not think an applicant is precluded from seeking leave to file such material. While Federal Court Immigration Rule 13 states that an applicant may file a memorandum of argument in reply, it does not specifically state that no other material may be filed. Federal Court Immigration Rule 4(1) provides that Part I, and other parts of the Federal Court Rules [C.R.C., c. 663] apply to immigration applications except to the extent that such are inconsistent with the Federal Court Immigration Rules, 1993. Federal Court Rule 5 provides that where any matter arises that is not otherwise provided for, the practice or procedure shall be determined by the Court either by analogy to other provisions of the Rules or to the practice and procedure followed in the relevant province. Rule 6 [as enacted by SOR/90-846, s. 2] provides that the Court may, in special circumstances and subject to such conditions as it considers appropriate, by order, dispense with compliance with any Rule where it is necessary in the interests of justice. Relying on those rules, I think that I have authority in this case to grant leave to the applicant to file a copy of the official transcript under cover of Mr. Botting’s affidavit.
I note, in addition, that the transcript of the hearing is exactly the kind of material, given the nature of the arguments being made by the applicant and the respondent, that the Court could in any event order to be filed pursuant to Federal Court Immigration Rule 14(2). If I am in error with respect to the application of Federal Court Rules 5 and 6, then I hereby exercise my authority pursuant to Federal Court Immigration Rule 14(2) and direct the filing of the transcript.
The respondent shall have two weeks from the date of these directions to file any further representations which he wishes to make.