PRACTICE
Appeals and New Trials
Application under Canada Transportation Act, s. 41 for leave to appeal Canadian Transportation Agency decision for error of law—Impugned decision required Lufthansa German Airlines to refund cost of 9 unused airline tickets purchased from travel agent believed to be authorized—Airline denying refund on basis ticket vendor not authorized agent, secured tickets by credit card fraud—Agency concluded tickets not invalid, Lufthansa having honoured 7 out of 16 purchased—In support of application for leave to appeal, Lufthansa submitted affidavit containing evidence about credit card transactions at issue—Such evidence not presented to Agency—Agency moving to strike affidavit as inadmissible unless leave granted under Federal Courts Rules, r. 351—Purpose of affidavit to explain why 7 tickets honoured, refunds for 9 denied— Believed permitted by Rules, r. 353(3)(c)—Agency argued Lufthansa had chance to adduce this evidence before it; Lufthansa not challenging such submission—General principle: evidence not to be adduced upon appeal unless leave granted under Rules, r. 351—Such leave granted only if evidence could not have, with due diligence, been presented below, is credible, practically conclusive of an issue—While no authority for proposition leave under Rules, r. 351 required to tender evidence not adduced below upon application for leave to appeal, Agency arguing if Rules, r. 351 not used as screen at this stage, arguable case for appeal may be established based on material that may not become part of case on appeal—Agency’s concern unfounded—If new evidence submitted in application for leave but application fails to establish basis for successful Rules, r. 351 motion, new evidence will be accorded little weight, perhaps entirely disregarded in considering leave application—General test for admissibility in leave application found in Rules, r. 353(2)(c), applicant must submit affidavit that “sets out any facts relied on in the motion that do not appear on the Court file”— Challenge material seems to meet that test—No compelling reason to add further condition by analogy to Rules, r. 351— Motion to strike denied—Canada Transportation Act, R.C. 1996, c. 10, s. 41—Federal Courts Rules, SOR/98-106, rr. 1 (as am by SOR/2004-283, s. 2), 351, 353(2)(c).
Lufthansa German Airlines v. Canada (Transportation Agency) (05-A-26, 2005 FCA 295, Sharlow J.A., order dated 15/9/05, 4 pp.)