PRACTICE |
Variation of Time |
Tunian v. Canada (Minister of Citizenship and Immigration)
IMM-3389-02
2002 FCT 1209, Hargrave P.
21/11/02
8 pp.
Motion by applicants seeking extension of time for filing supplementary affidavit and exhibit, further written arguments until Privacy Commissioner (PC) renders decision concerning release of Immigration and Refugee Board (IRB) member's draft reasons--Extension sought indefinite--IRB admitted existence of draft reasons but refused to release reasons-- Applicants argued draft of decision prepared far in advance of all of evidence available, thus applicants had no opportunity to meet additional evidence--Current test for supplemental affidavit contained in Eli Lilly & Co. v. Apotex Inc. (1997), 76 C.P.R. (3d) 15 (F.C.T.D.), as amended (1997), 77 C.P.R. (3d) 154 (F.C.T.D.) and as added to in Wayzhushk Onigum Nation v. Kakeway (2000), 182 F.T.R. 100 (F.C.T.D.)-- Applicants must demonstrate: (i) material will serve interest of justice; (ii) material will assist Court; (iii) no substantial or serious prejudice to other side; (iv) material not available earlier; (v) allowing in material will not unduly delay proceedings--Flushing out existence of decision written before all evidence considered certainly in interest of justice--Material would assist Court--Court does not see substantial or serious prejudice to other side and any inconvenience could be dealt with by way of costs--Certainly material not made available to applicants at earlier date-- Finally, waiting for material may result in some delay but not undue delay for authorities at IRB--Federal Court Rules, 1998, r. 317 requiring production of all relevant material-- Surely, draft decision considered relevant--In this instance, draft reasons, pre-dating conclusion, gathering, admission of evidence by IRB, ought to exist before Court for sake of justice--Motion allowed--Federal Court Rules, 1998, SOR/98-106, r. 317 (as am. by SOR/2002-417, s. 19).