Alcorn v. Canada ( Commissioner of Corrections )
T-1945-97
Hargrave P.
11/9/98
16 pp.
Motion by respondents to strike out application for judicial review by reason of late filing of originating notice of motion, or for order striking out paragraphs of affidavits of Beth Parkinson, Chrisanna Sampson, Roy Lee-Motion by applicants to strike out two affidavits of Richard Montminy sworn December 20, 1995, September 10, 1997-Judicial review relating to new telephone system, installed for use by inmates in federal correctional centres, called Millennium Telephone System-Application for judicial review might be struck out where so clearly improper as to be without possibility of success-Counsel for applicants arguing installation of Millennium Telephone System not static written decision, rather decision made over time, fluid decision, within concept discussed by Lutfy J. in Hunter v. Canada (Commissioner of Corrections), [1997] 3 F.C. 936 (T.D.)-Directive under review in Hunter amended from time to time, last amended version being produced after judicial review application filed-Plea of limitation not sufficient ground to strike out statement of claim-In case of action, correct procedure to plead limitation, then set matter down as question of law before trial-Same principle applicable to striking out of originating notice of motion, notice of application-To move to strike out judicial review proceeding, procedure designed to be summary in nature, in effect motion upon motion, waste of time, resources for all concerned-In alternative, respondents seeking to have portions of various affidavits struck out on basis that, except on interlocutory matters, affidavits must be confined to facts of which witness has personal knowledge-Whether parties ought, for sake of efficiency and as practical exercise of judicial discretion, to be permitted to strike out each other's affidavits at all-Affidavits, portions of them may be struck out in special circumstances where affidavit abusive, clearly irrelevant, or where party obtained leave to admit evidence in fact inadmissible, or where court convinced admissibility should be resolved at early date to allow hearing to proceed in orderly manner-Affidavits containing conjecture, speculation, legal opinions improper, but hearsay evidence now admissible depending upon reliability, necessity-Impugned paragraphs, for most part, hearsay but that in itself not ground for striking them out-Little of any relevance, substance struck from Montminy's affidavits-To allow filing of further material would delay matters to no benefit-Judicial discretion to strike out affidavits, portions of affidavits to be exercised cautiously, only in clear circumstances-Best to leave trial judge to assess weight, admissibility of rest of affidavit material.