Date: 19990414
Docket: T-1056-98
BETWEEN:
RUSSELL DEIGAN,
Applicant,
- and -
ATTORNEY GENERAL OF CANADA
(INDUSTRY CANADA),
Respondent.
REASONS FOR ORDER
MACKAY J.
[1] The applicant appeals, pursuant to Rule 51, from a decision of Prothonotary Hargrave, rendered on March 2, 1999, whereby he ordered that the application of Mr. Deigan for leave to file a supplementary record in this matter was dismissed. After hearing the applicant, representing himself, at the Court in Vancouver, and counsel for the respondent by telephone conference line from Halifax and from Ottawa, on April 12, 1999, the applicant's motion, and his appeal, was dismissed for reasons orally rendered, which are now confirmed as follows.
[2] The standard of review in considering an appeal, as this is, from a discretionary decision of a prothonotary is summarized by MacGuigan J.A. in Canada v. Aqua-Gem Investment Ltd., [1993] F.C.J. No. 103 at p. 22 (C.A.), (QL online), after referring to authorities:
| ... discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: |
| (a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or |
| (b) they raise questions vital to the final issue of the case, [i.e., as explained by footnote of MacGuigan J.A., in the sense of vital to the result of the case]. |
[3] The applicant seeks leave to file a supplementary record that would concern only material already filed so that it could not be said to prejudice the respondent. It is urged that filing the supplementary record, now exhibited to an affidavit of the applicant, which was not available when the motion was considered by Prothonotary Hargrave, will in the long run save time at the hearing of this matter, and it is in the interests of justice that it be filed.
[4] Those interests are said to arise in this case because the applicant perceives that the respondent, by the record of the respondent now filed, has demonstrated impropriety. Though I note there is not evidence of this, other than by statements of belief, it is alleged the respondent is seeking to continue obstructing opportunities for the applicant's employment, and continues malice towards the applicant. Further, it is urged that the respondent's record includes allegations of fact that are inaccurate, by combining factually inaccurate statements, by failing to fully explain the context of other factual circumstances, such as the agreement between the parties that the issue of bias would not be raised at the adjudication which gives rise ultimately to this proceeding, and by descriptions that are less than full and fair to the applicant, or to the previous proceedings, including the quotation of portions of decisions earlier rendered in this matter.
[5] In my opinion all of these examples of alleged "improprieties" in the respondent's record concern comments made in summary of facts or argument on behalf of the respondent to deal succinctly with the issues raised by the application for judicial review. The applicant may elect to deal with those matters orally, so long as they are relevant in the view of the hearing judge, but it is not helpful in judicial review proceedings, which are intended to be reasonably expeditious, to continue filing, in advance of the hearing, written submissions about the differences in the perceptions of the parties. None of the examples referred to, and not all of them together, warrant filing of a supplementary record that would in essence be more argument.
[6] It may assist in understanding the context of these proceedings to briefly review the background. After the applicant was released from his public service employment, he grieved the matter alleging wrongful dismissal, a grievance that ultimately was heard by an adjudicator. The adjudicator's decision was the subject of an earlier application for judicial review by the applicant, which application was allowed by my colleague Madame Justice Tremblay-Lamer, who referred the matter back for reconsideration as directed. That decision is the subject of an appeal not yet heard by the Court of Appeal, and while the reconsideration by the adjudicator is now completed, with a new decision rendered, that decision, rendered after reconsideration, is the subject of this application by Mr. Deigan for judicial review.
[7] In addition to perceived improprieties, or inaccuracies said to be found in the respondent's record, the applicant also urges that that record raises new issues which warrant the filing of a supplemental record, in the interests of justice for the applicant. Those new issues are said to be the characterization of the principal issue before the adjudicator, the proper standard for review of an adjudicator's decision, and the significance of the decision of Madame Justice Tremblay-Lamer, portions of which the respondent quotes in her record. Finally, it is urged that the respondent inaccurately describes the argument of the applicant's counsel before the adjudicator.
[8] In my opinion none of these examples raise new issues in the sense that they concern matters not already found in the record of this application and its forebears. The first three are clearly questions of law to be determined, if they need be, in light of the record. The last example, the comments of counsel, is a factual matter that should be apparent from the record if the comments need be determined. Ordinarily, comments of counsel are submissions to be considered by the decision-maker and they do not constitute a formal part of the record except as they may be recorded in a transcript, in minutes or in the ultimate decision. None of the examples warrant a determination that a supplemental record is necessary at this stage in the interests of justice.
[9] Finally I turn to the applicant's list of errors allegedly made by the Prothonotary. It is said he applied the wrong test, i.e. whether a supplemental record was in the interests of justice, whether it would prejudice the respondent, whether it would be of assistance to the Court. Rather than apply this test it is said the Prothonotary neglected it, that in his description of the applicant's submissions, without a draft of the proposed supplemental record, he misapprehended what the applicant intended and erroneously considered such a record would be conducive to delay in these proceedings. It is urged that he refused to apply new principles of law suggested by the applicant, and he ignored Rule 3 of the Federal Court Rules, 1998 which directs application of the Rules "so as to secure the just, most expeditious and least expensive determination" of this matter on the merits. If the supplemental record is not permitted it is urged the applicant will be denied a full and fair opportunity to have his case heard, and that the hearing Court will be deprived of a full understanding of the matters at issue. Finally it is urged the Prothonotary neglected to assign proper weight to a number of the factors raised by the applicant.
[10] It is, of course, the Order of the Prothonotary and not the Reasons stated for it that is here in issue. I am not persuaded any of the alleged errors of the Prothonotary meet the standard set by Canada v. Aqua-Gem, supra, required for this Court to intervene and allow the appeal from his discretionary decision. I am not persuaded that the Order appealed from is clearly wrong, or based on a wrong principle, or on a misapprehension of facts, or that it raises any question vital to the result of this proceeding.
[11] The applicant seeks opportunity to include in his proposed supplemental record his perceptions about numerous matters included, in a manner he considers inappropriate, in the respondent's record, its summary of facts and argument. In judicial review proceedings the normal opportunity for that is when the matter is heard, and by oral submissions. That opportunity for a full hearing of the applicant's case within the limits considered relevant by the presiding judge is open to the applicant without filing a supplemental record.
[12] For these reasons the application to appeal the decision of the Prothonotary is dismissed. An Order goes so providing in writing, confirming the oral Order rendered at the hearing and the direction then given that the applicant file a requisition for hearing within three weeks of the hearing date, i.e. on or before May 3, 1999.
[13] Following the hearing the applicant raised with the registrar, the matter of costs, which the respondent requested in written and brief oral submissions. I did not invite comment on costs from the applicant during the hearing, and in the circumstances, it seems appropriate that I consider any representations the applicant may wish to submit in writing on or before April 26, 1999, and any written submissions in response to those by the respondent, filed within 10 days of service of any written submissions from the applicant. If no written submissions are made by the applicant, I direct that costs be in the cause, to be determined by the judge who hears the application for judicial review.
(Sgd.) "W. Andrew MacKay"
Judge
Vancouver, British Columbia
14 April 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-1056-98
STYLE OF CAUSE: RUSSELL DEIGAN
- and -
ATTORNEY GENERAL OF CANADA (INDUSTRY CANADA)
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER AND ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated March 2, 1999
APPEARANCES:
| Ms. Russell Deigan for the Applicant |
| Mr. Ronald Snyder for the Respondent |
SOLICITORS OF RECORD:
| Mr. Russell Deigan for the Applicant |
| Public Service Staff Relations Board |
| Ottawa, ON |
| Mr. Morris Rosenberg for the Respondent |
Deputy Attorney General of Canada