Date: 20000128
Docket: A-835-97
IN THE MATTER OF an application to review and set
aside, pursuant to s. 18.1 of the Federal Court Act,
R.S.C. 1985, c.F-7, as amended;
AND IN THE MATTER OF a decision of the Public
Service Staff Relations Board, Board Members
Rosemary Vondette Simpson, rendered May 19, 1995,
respecting a grievance referred to adjudication
pursuant to the Public Service Staff Relations Act,
R.S.C. 1985, c.P-35 (PSSRB File Nos. 166-2-25992,
166-2-25993, 161-2-743)
BETWEEN:
RUSSELL DEIGAN
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Vancouver
on January 28, 2000)
STRAYER, J.A.,
[1] The appellant in his notice of motion filed on September 24, 1999 seeks to have several additional items added to the Court record for the hearing of the appeal in this matter.
[2] With respect to the Supplementary Memorandum he wishes to file, I am satisfied that this must be rejected. I can find no reason for making an exception to the normal rules of the Court of Appeal that no written reply is allowed for an appellant in respect of the memorandum of fact and law of the respondent. It is for the appellant to state his position in his original memorandum of fact and law and if he then disagrees with the position asserted in the respondent's memorandum he can express that disagreement orally at the hearing of the appeal. Much of the appellant's proposed supplementary memorandum takes exception to the respondent's interpretation of the letters from the appellant to various officials about Ms. A., the letter dismissing him, the adjudicator's findings, and the transcripts of cross-examinations of deponents of affidavits. All of these documents will be before the Court of Appeal which can reach its own conclusion as to the correctness of the respondent's descriptions.
[3] The appellant essentially argues that the filing of this supplementary memorandum is desirable in order to save the time of the Court. I am unable to foresee how it would save the Court any time at the hearing of the appeal. Instead, it would impose on the Court another lengthy and complex document to read. It will therefore not be added to the record.
[4] The proposed Supplementary Affidavit could only be received if it met the test for the reception of new evidence on an appeal. It does not. The facts it alleges were available to the appellant before the judicial review hearing and were not the subject of an affidavit filed there. Further, the evidence in question is hearsay and not determinative of any issue before the Court. It will not be received.
[5] I am of the view, however, that out of an abundance of caution, the memorandum of fact and law filed by the appellant on the judicial review should be made part of the record, to assist the Court in understanding what issues were before the Trial Division. If parts of the written arguments were not in fact pursued orally, or were withdrawn, and this is deemed to be of importance to either party, affidavits to that effect may be filed on the appeal provided this is done by no later than February 29, 2000.
[6] As I understand it the respondent's memorandum of fact and law in Court file no. A-823-98, dated June 4, 1996, contained the following statement:
At the Adjudication, the Respondent presented evidence to substantiate the grounds outlined in the letter of discharge. The truthfulness of the contents of the aforementioned letters was not a ground for the Appellant's discharge and was not raised by the Employer during the presentation of it's [sic] evidence at the Adjudication.
The respondent confirms that it took this position and has no objection to this being considered, for what it is worth, in the present appeal.
(Sgd.) "B. L. Strayer"
J. A.
January 28, 2000
Vancouver, British Columbia
Date: 20000128
Docket: A-835-97
IN THE MATTER OF an application to review and set
aside, pursuant to s. 18.1 of the Federal Court Act,
R.S.C. 1985, c.F-7, as amended;
AND IN THE MATTER OF a decision of the Public
Service Staff Relations Board, Board Members
Rosemary Vondette Simpson, rendered May 19, 1995,
respecting a grievance referred to adjudication
pursuant to the Public Service Staff Relations Act,
R.S.C. 1985, c.P-35 (PSSRB File Nos. 166-2-25992,
166-2-25993, 161-2-743)
BETWEEN:
RUSSELL DEIGAN
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Vancouver, British Columbia
Reasons for Order delivered at Vancouver, British Columbia
REASONS FOR ORDER BY: STRAYER, J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-835-97
STYLE OF CAUSE: Russel Deigan
v.
AGC
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 28, 2000
REASONS FOR ORDER OF Strayer, J.A.
DATED: January 28, 2000
APPEARANCES:
Mr. Russel DeiganFor the Applicant
Mr. André GarneauFor the Respondent
SOLICITORS OF RECORD:
Russel Deigan
Vancouver, BCFor the Applicant
Treasury Board
Legal Service
Ottawa, OntarioFor the Respondent