Nguesso v. Canada (Citizenship and Immigration)

Nguesso v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2015-01-26
Neutral citation
2015 FC 102
File numbers
IMM-1144-14
Decision Content
Date: 20150202
Docket: IMM-1144-14
Citation: 2015 FC 102
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 2, 2015
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
WILFRID NGUESSO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED ORDER AND REASONS
[1] The current proceeding deals with an application for judicial review of a decision dated December 20, 2013, by Constance Terrier (the officer or Ms. Terrier), immigration officer in the Immigration Section at the Canadian Embassy in Paris. In her decision, the officer declared the applicant inadmissible on grounds of organized criminality and rejected his application for permanent residence in the family class.
[2] Before the Court are three motions that were heard in the case management of this proceeding.[1] These motions were filed following numerous disagreements between the parties with respect to which documents should be included in the certified tribunal record (CTR) filed under Rule 17 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [Immigration Rules] and the scope of the right to cross-examine Ms. Terrier on her affidavits.
I. The context of the application for judicial review A. The processing of the permanent residence application [3] The applicant is a citizen of the Republic of the Congo but lives in France and holds a residence card there that is valid until December 31, 2022. He is married to a Canadian citizen and is the father of six children, all of whom are Canadian citizens. On December 20, 2006, he filed an application for permanent residence as a member of the family class at the Canadian Embassy in Paris.
[4] The processing of the application became long and drawn-out, and on May 22, 2012, the applicant applied for a mandamus order from this Court (Docket IMM-4924-12) to require the Embassy to render a decision. That dispute was settled out of court on July 3, 2012, on the basis of a timetable proposed by the respondent.
[5] Thus, in July 2012, the applicant received a letter inviting him to attend an interview scheduled for September 19, 2012. Following a request by counsel representing the applicant at the time, a new invitation letter was sent with the interview date having been amended to September 25, 2012.
[6] On September 5, 2012, the applicant received a “procedural fairness letter” from the Embassy’s Immigration Section notifying him that there existed a number concerns regarding his admissibility under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[7] The interview was held on September 25, 2012, and was conducted by the officer. On September 28, 2012, the Embassy’s Immigration Section sent the applicant a letter containing a detailed list of additional documents and information to be provided, requesting that this be submitted within 90 days.
[8] The applicant’s current counsel, Johanne Doyon, began working on this case in January 2013. On February 1, 2013, she asked for additional time to provide the documents requested in the letter dated September 28, 2012. She further requested disclosure of the “open, convergent and consistent documentation” referred to in the procedural fairness letter of September 5, 2012. The officer granted the applicant additional time to submit the requested documentation, but she refused the disclosure request on the grounds that [translation] “at this stage of the process, there is no requirement to provide all of the sources or copies of the documents consulted, given that your client has been provided with a reasonable opportunity to review the information which we intend to use as a basis for our decision”. In addition, on February 27, 2013, the officer provided her interview notes to the applicant’s counsel.
[9] On April 30, 2013, the applicant, by way of Ms. Doyon, filed a complaint with the Director of the Embassy’s Immigration Section alleging a breach of procedural fairness by reason of the officer’s refusal to disclose the documents and information requested by him. The applicant also invoked bad faith on the part of the officer in the way she had conducted her examination. In the same letter, Ms. Doyon provided some of the information and documentation that had been requested in letter of September 28, 2012. The complaint was dismissed by the Immigration Program Manager in a letter dated December 6, 2013, and Ms. Terrier remained the immigration officer assigned to applicant’s file.
B. The decision under review [10] In her decision, the officer declared the applicant inadmissible to Canada on grounds of organized criminality pursuant to paragraph 37(1)(a) of the IRPA. She found that she had reasonable grounds to believe that the applicant was a member of a criminal group through his family connections (the applicant is the nephew and adopted son of the President of the Republic of the Congo), that he had been involved in organized criminal activity that included embezzlement and misappropriation of funds, misappropriation of company property and money laundering, and that he had participated in opaque financial arrangements for his own personal enrichment at the expense of corporate entities.
[11] In her decision, the officer also noted that she had consulted information provided by the applicant, publicly accessible information, and information provided by the Canada Border Services Agency (CBSA) and by the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), and that this information had raised doubts about the applicant’s advancement in the professional world and the origins of his personal enrichment. She indicated that the documents provided by the applicant in response to her request were incomplete and did not dispel her doubts; on the contrary, certain documents had actually confirmed those doubts. She then set out the factors underlying her decision.
C. The application for leave and judicial review [12] On February 25, 2014, the applicant filed an application for leave and judicial review of that decision. The application was allowed on August 14, 2014, by Justice Mosley.
[13] In support of his judicial review application, the applicant raises a number of grounds. He argues, among other things, that the decision issued by the officer is tainted by errors in law, that it is unreasonable and that the process leading to the decision was marred by breaches of the rules of procedural fairness. In his allegation with respect to procedural fairness, the applicant argues in his memorandum that the officer failed to first disclose her real allegations against him and refused to disclose the documents and sources of information on which she based her allegations, which hindered his ability to prepare for and respond adequately to the questions at the interview and to the inadmissibility allegations. He further submits that the officer conducted the interview in an improper and unfair manner and that she based her decision on inadmissibility grounds that were different than those that were cited in the fairness letter of September 5, 2012.
[14] In the affidavit he submitted in support of his application for leave and judicial review, the applicant placed much emphasis on the manner in which the officer conducted the interview. More specifically, he claims that during the interview the officer repeatedly used or made reference to documents or information that had not been previously disclosed to him and that she had conducted the interview in an inappropriate manner. The applicant contends that the questions the officer asked him and the manner in which they were asked evince prejudice, insinuations and negative comments for which there was no basis in the evidence. The applicant further alleges that the officer’s interview notes reveal multiple braches of procedural fairness and cast doubt upon the impartiality of the process.
D. The order granting leave and timetable [15] On August 14, 2014, Justice Mosley allowed the application for leave and established a timetable which was later amended at the request of the parties.
E. First motion for the complete disclosure of CTR [16] On August 25, 2014, the Immigration Section of the Embassy in Paris sent the CTR to the applicant. On September 15, 2014, the applicant filed a first motion pursuant to Rule 17 of the Immigration Rules for the complete disclosure of the CTR. The applicant first argued that numerous documents contained in the CTR had not been disclosed to him in the process of reviewing his application. He further argued that the CTR was incomplete and that the following specific documents of which he sought disclosure were missing:
Communications between the Immigration Section at the Embassy in Paris and CBSA regarding the applicant and the processing of his file; Communications between the Immigration Section at the Embassy in Paris and/or Citizenship and Immigration (CIC) and/or CBSA (including its Organized Crime Section) with FINTRAC and any requests received by it regarding the applicant; Communications and requests between the Immigration Section at the Embassy in Paris and/or CIC and/or CBSA (including its Organized Crime Section) with Interpol regarding the applicant; Communications and requests between the Immigration Section at the Embassy in Paris and/or CIC and/or CBSA (including its Organized Crime Section) with the ICES regarding the applicant; All of the requests made to courts in France regarding the investigation in France of a complaint against the applicant’s family and the responses received; Handwritten notes, summaries, memoranda and/or exchanges related to and following the CBSA recommendation dated November 1, 2012, to the effect that there were no reasonable grounds on which to declare inadmissibility under section 37 of the IRPA, if applicable.
[17] In his arguments, the applicant maintained that these documents must exist and that these were among the documents and materials considered in the decision-making process that led up to the decision under review. The applicant further argued that if some of these documents were not used by the officer in rendering her decision, they were nonetheless relevant as they were necessary for him to be able to fully exercise his right to judicial review. More specifically, the applicant maintained that the documents in question were necessary in order for him to be able to prove his allegations of breaches of procedural fairness and bias.
[18] In response to the motion, the respondent submitted an affidavit sworn by Ms. Terrier on September 19, 2014. In her affidavit, Ms. Terrier stated that she had supervised the preparation of the CTR. She further stated that the CTR contained all of the relevant documents she had consulted when making her decision and that were in the possession or control of the Embassy’s Immigration Section at the time she made her decision. At paragraph 7 of her affidavit, Ms. Terrier declared in a more specific manner that the following documents were contained in the CTR:
All of her communications with CBSA and CIC, including those related to information received from FINTRAC and Interpol; All communications between her colleagues from the Immigration Section of the Canadian Embassy in Paris and CBSA and CIC that had been communicated to her, including those related to information received from FINTRAC and Interpol; All of her documentary sources; All of her notes.
[19] Ms. Terrier’s affidavit also describes communications she claims to have had with investigating judges. She stated that on April 8, 2011, she contacted the senior investigative judge in Paris regarding an investigation into the ill-gotten gains acquired by certain African presidents and their families. She added that the senior investigative judge told her that the judge in charge of the matter was bound by professional privilege, but that the investigation was progressing and that he was hoping to see it concluded in early 2012. Ms. Terrier indicated that the senior investigative judge had authorized her to contact him again about the matter. She further indicated that on May 15, 2013, she contacted the investigative judge tasked with investigating the case, but that no information was disclosed to her due to the fact that investigations of this nature were protected by professional privilege.
[20] Furthermore, she stated, at paragraph 12 of her affidavit, that there were no documents missing from the CTR that had been determinative of her decision.
[21] The motion was heard by Justice Martineau on September 23, 2014. I listened to a recording of the hearing. During the hearing, counsel for the applicant waived cross-examination of Ms. Terrier about her affidavit. The parties subsequently presented their respective positions with regard to the notion of relevance within the meaning of Rule 17 of the Immigration Rules and more specifically the documents of which the applicant sought disclosure. The respondent argued that the documents in question were either non-existent or were not relevant. Justice Martineau dismissed the applicant’s motion in an order dated September 24, 2014. The relevant excerpt from his order reads as follows:
[translation]
CONSIDERING that “all papers relevant to the matter that are in the possession or control of the tribunal” were included in the Tribunal Record (TR), as stated in the September 19, 2014, affidavit of immigration officer Constance Terrier, who issued the impugned decision in this case;
CONSIDERING that it remains open to the applicant to submit in his supplementary memorandum or to argue at the hearing that the immigration officer’s failure to disclose, before the impugned decision was issued, any document or information mentioned at paragraph 3 of the notice of motion or in Ms. Terrier’s affidavit raises a reasonable apprehension of bias or resulted in the applicant being denied the opportunity to a hearing or to make representations or to produce helpful evidence with a direct link to the impugned decision;
[22] The matter subsequently pursued its course and the respondent filed a second affidavit sworn by Ms. Terrier on September 24, 2014, in support of its position on the merits of the application for judicial review. In that affidavit, Ms. Terrier recounts the various steps in the processing of the applicant’s permanent residence application. Ms. Terrier was examined about her affidavit dated October 7 and 8, 2014.
[23] During this examination, the respondent objected to Ms. Terrier being examined about her affidavit from September 19, 2014. The respondent also objected to a number of questions directed at Ms. Terrier and to several of the undertakings that were asked of her.
II. The October 14, 2014, motion subsequently amended on October 16, 2014 [24] On October 16, 2014, the applicant filed a motion to amend the timetable on the ground that the objections raised by the respondent during the examination of Ms. Terrier and the delays caused by the need to dispose of those objections, required that the timetable ordered by Justice Mosley be amended. The motion also identified a disagreement between the parties as to the length of the supplementary memoranda.
[25] The timetable is no longer at issue due to the fact that at the hearing the parties and I agreed that a new timetable would be established after the issuance of this order.
[26] Accordingly, the sole remaining issue arising from this motion is that relating to the length of the supplementary memoranda.
[27] The respondent is seeking leave to file a supplementary memorandum not to exceed 60 pages in length that would completely replace the memorandum filed by it at the application for leave stage.
[28] Rule 70(4) of the Federal Courts Rules, SOR/98-106 [Rules] applies to immigration proceedings by way of Rule 4(1) of the Immigration Rules. Rule 70(4) of the Rules provides that a memorandum cannot exceed thirty pages unless otherwise ordered by the Court.
[29] In Canada v General Electric Capital Canada Inc, 2010 FCA 92 at para 5, [2010] FCJ No 461, Justice Stratas insisted on the importance of concision in the preparation of memoranda while recognizing that in certain circumstances, leave should be granted to the parties to file memoranda in excess of thirty pages and that the need for procedural fairness is a paramount principle to be applied by the Court.
[30] In this case, I am of the view that it is appropriate to grant leave to each party to file a supplementary memorandum that would replace the memorandum each of them filed at the application for leave stage and which would not be in excess of 60 pages. This matter raises a number of issues, some of which involve an allegation of bias and several aspects of procedural fairness. In addition, the processing of this file has extended over a long period and entailed the analysis of a large volume of documents. In short, the factual background is lengthy and the judicial review application raises a number of issues.
[31] Therefore, I find that, given the specific circumstances of this case, the respondent’s application is reasonable and it would be difficult for the parties to provide effective explanations of their respective arguments in a thirty-page memorandum. I am also of the view that the Court would benefit from the parties being provided with an opportunity to develop their arguments more fully in their respective memoranda.
III. The October 29, 2014, and November 20, 2014, motions [32] Following Ms. Terrier’s examination, the applicant filed a motion dated October 29, 2014. That motion was followed by a second motion dated November 20, 2014. Some of the issues raised in each of the motions are connected and/or overlap.
A. Applicant’s position (1) The October 29, 2014 motion [33] The applicant filed a motion in which he sought five different findings. First, the motion sought a ruling on the objections raised by the respondent during the cross-examination of Ms. Terrier about her affidavit of September 24, 2014. At the time the motion was heard, 37 objections remained unresolved.
[34] Second, the applicant sought leave to cross-examine Ms. Terrier about her affidavit of September 19, 2014.
[35] Third, the applicant sought leave to cross-examine Susan Bradley about two affidavits sworn by her on April 25, and 28, 2014, in support of the memorandum filed by the respondent at the application for leave stage.
[36] Fourth, the motion sought an order requiring the respondent to add documents to the CTR. The documents in question are in the possession of the applicant but were not included in the CTR and differ from the documents whose disclosure was sought in the motion presented before Justice Martineau.
[37] Fifth, the motion sought an order requiring the respondent to add other documents to the CTR. Those documents were identified in the requests for undertaking made during Ms. Terrier’s examination.
[38] The applicant submits that he is entitled to cross-examine Ms. Terrier about the affidavit sworn by her on September 19, 2014, and that the Court should grant leave to re-examine her to that end. The applicant further submits that a number of the questions to which the respondent objected were in regard to the affidavit sworn by Ms. Terrier on September 24, 2014, and were relevant.
[39] With respect to principles, both parties recognize that the fundamental principles that govern the right to cross-examine the deponent of an affidavit were set out by Justice Hugessen in Merck Frosst Canada Inc v Canada (Minister of Health), [1997] FCJ No 1847 at para 7, 146 FTR 249 [Merck Frosst].
[40] However, their positions differ with respect to the actual scope of those principles and others that have been recognized in certain decisions.
[41] The applicant begins by arguing that in Merck Frosst, the Court acknowledged that the cross-examination of the deponent of an affidavit may centre on the facts sworn by the deponent in that affidavit or in any other affidavit filed in the proceeding. In support of his argument, the applicant also cites Sam Levy & Associés v Lafontaine (sub nom Sam Lévy & Associés Inc. v Canada (Superintendent of Bankruptcy)), 2005 FC 621 at para 10, [2005] FCJ No 768 [Sam Levy] and Eli Lilly and Co v Novopharm Ltd, [1996] FCJ No 465 at para 2, 67 CPR (3d) 362 [Eli Lilly], in which the Court quoted Justice Hugessen in Merck Frosst.
[42] The applicant submits that in Merck Frosst, the Court also recognized the legal relevance of a question where it concerns a fact whose existence or non‑existence can assist in determining whether or not the remedy sought by an applicant in an application for judicial review can be granted. Accordingly, the applicant views this as an opportunity to question Ms. Terrier about facts that he feels were omitted in her affidavit of September 24, 2014, but that are relevant to disposing of the grounds for his judicial review application.
[43] The applicant further submits that the case law recognizes that the cross-examination on an affidavit may extend beyond the facts set forth by the deponent so long as the questions relate to subjects contained in the affidavit (Maheu v IMS Health Canada, 2003 FCT 647 at para 5, [2003] FCJ No 902 [Maheu]), to relevant matters arising from the affidavit itself (Sivak v Canada (Citizenship and Immigration), 2011 FC 402 at para 13, [2011] FCJ No 513 [Sivak], or where they constitute corollary questions that arise from answers provided by the affiant (Royal Bank of Scotland PLC v Golden Trinity (The), [2000] FCJ No 896, [2000] 4 FC 211). The applicant also relied on Stella Jones Inc. v Mariana Maritime SA, [2000] FCJ No 2033, (sub nom Stella-Jones Inc. v Hawknet Ltd) 2000 CarswellNat 3006 (FCA) [Stella Jones], Stanfield v Canada (Minister of National Revenue), 2004 FC 584 at para 28, [2004] FCJ No 719 and AgustaWestland International Ltd. v Canada (Minister of Public Works and Government Services), 2005 FC 627 at para 12, [2005] FCJ No 805 [AgustaWestland International Ltd].
[44] The applicant further contends that questions that exceed the scope of the facts set out in the affidavit may be asked where they involve the affiant’s credibility or where they concern an allegation of bias on the part of the decision-maker when such issues are raised in the judicial review application (Sivak, at paras 15-16).
[45] A final element relied upon by the applicant is the contention that where the deponent is an agent or representative of the respondent, he or she may be required to inform themselves in order to respond to questions raised on examination, based on Maheu, at para 9. The applicant argues that in his permanent residence application file, Ms. Terrier acted as an agent for the Embassy’s Immigration Section.
[46] The applicant further suggests that the scope of Justice Martineau’s order does not preclude him from cross-examining Ms. Terrier about her affidavit of September 19, 2014, for a number of reasons. First, he argues that Justice Martineau’s order is an interim order that did not dispose of the CTR definitively. Second, he contends that Justice Mosley’s order provides him with the right to cross-examine the affiants, with respect to all affidavits filed in the record. He further cites, as I noted earlier, his right to examine the deponent of any other affidavit produced in the proceeding.
[47] The applicant further submits that all of the objections raised by the respondent to the questions posed to Ms. Terrier should be dismissed in their entirety because the questions were relevant to the two affidavits sworn by Ms. Terrier. In his view, all of the questions were within the parameters developed in the case law. The applicant argues that the questions to which the respondent objected were all admissible and relevant questions as they dealt with:
the September 19 affidavit with respect to the composition of the CTR; or the affidavit of September 24, 2014, which dealt with the history of the applicant’s permanent residence application; or Ms. Terrier’s credibility; or Facts she had omitted from her affidavit of September 24, 2014, and which are relevant to the grounds of the judicial review application and more specifically those related to breaches of procedural fairness and to reasonable apprehension of bias; or information or documents that pertain to Ms. Terrier’s obligation to inform herself.
[48] I will address each of the objections in detail later in my analysis.
[49] The applicant is also asking the Court for leave to cross-examine Ms. Bradley about the affidavits sworn by her on April 25 and 28, 2014. Ms. Bradley is a legal assistant at the Department of Justice and her affidavit was filed by the respondent in support of its memorandum filed at the application for leave stage. In her affidavit of April 25, 2014, Ms. Bradley stated that Kathleen Knox-Dauthuile of the Immigration Section at the Canadian Embassy in Paris had consulted the applicant’s file and assured the respondent that Ms. Terrier had at her disposal a certain number of documents that she listed when she issued the decision under judicial review. Ms. Bradley attached the documents in question to her affidavit. The purpose of the second affidavit sworn by Ms. Bradley on April 28, 2014, was to add two documents to those listed in her initial affidavit.
[50] The applicant submits that Ms. Bradley’s affidavit was filed by the respondent in support of its memorandum on the merits of the judicial review application and that it clearly fell within the scope of Justice Mosley’s order.
[51] The applicant further submits that a number of documents were missing from the CTR, some of which had been addressed during the cross-examination of Ms. Terrier. He is asking that the Court require the respondent to add these documents to the CTR. The missing documents are listed in the affidavit sworn by Ms. Doyon’s assistant.
[52] The applicant argues that the criterion that must be considered for determining which documents should be included in the CTR under Rule 17 of the Immigration Rules is that of relevance.
[53] The applicant argues at the outset that the principles that have been developed with respect to the concept of relevance within the meaning of Rules 317 and 318 of the Rules also apply to the meaning to be assigned to the concept of relevance set out in paragraph 17(b) of the Immigration Rules (Douze v Canada (Minister of Citizenship and Immigration), 2010 FC 1086 at para 19, [2010] FCJ No 1383 [Douze]. The applicant submits that the tribunal has an obligation to produce a complete record that must include all documents relevant to the proceeding that are in its possession or control.
[54] The applicant contends that all documentation that was available to the decision-maker at the time the decision was made is presumed to be relevant and must be included in the CTR (Jolivet v Canada (Minister of Justice), 2011 FC 806 at para 27, [2011] FCJ No 1094 [Jolivet]; Kamel v Canada (Attorney General), 2006 FC 676 at para 13, [2006] FCJ No 876 [Kamel]).
[55] Further, the applicant contends that documentation that was not before the decision-maker but which ought to have been should be included in the CTR (Kamel, para 12). The applicant further submits that the CTR is not limited to the documents on which the decision-maker based his or her decision. It should also include documentation that is relevant in making a determination on the grounds related to procedural fairness and bias he raised in the judicial review application. In this regard, he relies on Canada (Human Rights Commission) v Pathak, [1995] 2 FC 455 at para 10, [1995] FCJ No 555 [Pathak], in which the Federal Court of Appeal indicated that a document is relevant and must be transmitted by the tribunal if it may affect the decision that the Court will make on the judicial review application. The applicant also relies on the decision of the Federal Court of Appeal in Maax Bath Inc v Almag Aluminium Inc, 2009 FCA 204 at para 9, [2009] FCJ No 725 [Maax Bath]. The applicant submits that it is recognized that documents in the possession of a tribunal may be relevant and should be communicated, even if such documentation is not part of the tribunal record, if it tends to demonstrate bias on the part of a decision-maker or institution (Majeed v Canada (Minister of Employment and Immigration), [1993] FCJ No 908 (QL) at para 3, 68 FTR 75).
(2) The November 20, 2014, motion [56] In addition to the proceedings initiated here, the applicant filed access requests under the Access to Information Act, RSC 1985, c A-1, with CBSA and CIC. The applicant received the documents sent to him by CBSA on or about October 20, 2014, which was after the cross-examination of Ms. Terrier. The applicant argues that a number of the documents sent by CBSA had not been included in the CTR when they should have been. The applicant further argues that some of these documents contradict answers given by Ms. Terrier during her cross-examination.
[57] The applicant also submits that this realization led him to review the documents that CIC had sent him on November 15, 2013, and June 5, 2014, upon which he noticed that some of the documentation sent to him by CIC should have been included in the CTR.
[58] In his motion, the applicant first seeks a declaration by the Court noting the incomplete nature of the CTR and the respondent’s failure to include documents of critical importance therein. In addition, the applicant is asking the Court to issue an order requiring the respondent to supplement the CTR by adding the documents in question.
[59] Second, the applicant is seeking leave to re-examine Ms. Terrier about her two affidavits from September 19 and 24, 2014. In addition, the applicant seeks an order that would allow him to file additional documents and a supplementary affidavit.
[60] The applicant filed, by means of the affidavit of Ms. Doyon’s assistant, the documents that, in his view, ought to have been filed in the CTR. The documents in issue that were sent to him by CBSA are as follows:
Constance Terrier’s e-mail to Michelle Sinuita (CBSA), August 30, 2012; E-mails from Michelle Sinuita (CBSA) and Ms. Terrier, August 10, 2012; Email from Michelle Sinuita (CBSA) to Constance Terrier, July 16, 2012; Constance Terrier’s e-mail to Marie-Claude Beaumier, Me Joubert and Sean McNair (CBSA), July 13, 2012; Constance Terrier’s e-mail to Marc Gauthier (CBSA), June 14, 2012; E-mails between Constance Terrier and Michelle Sinuita (CBSA), July 16, 2012; E-mails between Constance Terrier and Marc Gauthier (CBSA), June 22, 2012; E-mail from Marc Gauthier (CBSA) to Constance Terrier, June 22, 2012; Message sent by Kathleen Knox-Dauthuile from the Canadian Embassy Canada – Paris to CBSA, February 7, 2008; E-mails between Connie Reynolds (CBSA) and Luc Piché (Embassy), June 5, 2012; E-mails between CBSA employees, August 26 and 27, 2010, and April 13 and 14, 2011; Computerized notes from CBSA; FINTRAC report from April 5, 2011, regarding the applicant; “Case Log Sheet – OCS” signed by Michelle Sinuita (CBSA) November 1, 2012; Handwritten notes; E-mail from Sean Curran (CBSA) to Marie-Eve Proulx (War Crimes Section), April 6, 2009.
[61] The documents from CIC are the following:
Constance Terrier’s e-mail to Vladislav Mijic (Embassy), June 1, 2012; Complaint of April 30, 2013, with handwritten annotations.
[62] The applicant maintains that these documents are clearly relevant and that they should have been included in the CTR. He adds that these documents show that others were omitted from the CTR, documentation that relates to:
All of Ms. Terrier’s communications with CBSA and/or Section B of the Embassy’s Immigration Section; The existence of a second, non-disclosed report prepared by FINTRAC about the applicant; All of Ms. Terrier’s communications with the investigative judge in France and/or those with Section B of the Embassy’s Immigration Section and/or CBSA, where applicable; The existence of Ms. Terrier’s handwritten notes about the complaint of April 30, 2013, filed by the applicant.
[63] The applicant contends that the missing documents show that the CTR was clearly incomplete and that some of these documents contradict a number of the answers given by Ms. Terrier during her cross-examination. The applicant suggests that these circumstances alone are reason enough for the Court to allow him to examine Ms. Terrier about her September 19 affidavit, no matter the scope of Justice Martineau’s order. The applicant submits that the discovery of these documents constitutes a new development that calls for the issue of the completeness of the CTR to be re-examined and for the Court to allow Ms. Terrier to be re-examined about her affidavit of September 19, 2014. The applicant further submits that a number of the documents discovered are linked to the objections raised by the respondent during the examination of Ms. Terrier and should have an impact on the fate of those objections.
[64] The applicant argues that in light of the grounds raised in the application for judicial review, and in particular his allegations of breach of procedural fairness and reasonable apprehension of bias, the documents that were not included in the CTR are of critical importance to the application for judicial review. The applicant alleges that the discovery of the documents after Ms. Terrier’s examination shows that the respondent misled both him and the Court by falsely claiming that the CTR was complete.
B. Respondent’s position (1) The October 29, 2014, motion [65] The respondent objects to Ms. Terrier being cross-examined about her affidavit of September 19, 2014. In this regard, the respondent begins by arguing that the affidavit of September 19, 2014, was not filed in support of its position on the merits of the application for judicial review and that in no way does it fall within the scope of Justice Mosley’s order.
[66] The respondent points out that Ms. Terrier’s affidavit of September 19, 2014, was filed in response to applicant’s motion in which he claimed that the CTR was incomplete. The respondent argues that during the hearing of the motion before Justice Martineau, the applicant expressly waived cross-examination of Ms. Terrier about her affidavit of September 19, 2014. The respondent submits that the applicant is bound by that waiver and that he cannot suddenly change his mind in mid-proceeding. In support of its position the respondent relies on Imperial Oil Limited v Lubrizol Corp, [1998] FCJ No 1089, 1998 CanLII 8152 [Imperial Oil]. The respondent further submits that Justice Martineau’s order definitively settled the issue as to the completeness of the CTR. There is therefore res judicata on this question (Canada (Attorney General) v Central Cartage Co, [1987] FCJ No 345, 10 FTR 225, aff’d by [1990] FCJ No 409).
[67] The respondent also dismissed the applicant’s argument to the effect that he has a right, notwithstanding Justice Martineau’s order, to examine Ms. Terrier about all of the affidavits sworn by her during this proceeding. In this regard, the respondent also argues that the authorities on which the applicant relied, in particular Merck Frosst and Sam Levy, are not relevant because in both cases, there was no issue as to the right to cross-examine the deponent of an affidavit on another affidavit sworn by the same deponent produced in an interlocutory motion of which the Court has disposed.
[68] As to the parameters of the applicant’s right to cross-examine Ms. Terrier about her affidavit of September 24, 2014, the respondent advocates for a more restrictive view than that of the applicant.
[69] The respondent submits that cross-examination on an affidavit in the context of an application for judicial review is much more limited than an examination for discovery in an action. The respondent contends that questions posed to deponents of an affidavit must be limited to questions that involve the credibility of the affiant or facts set out in the affidavit that have a connection to the purposes for which the affidavit was sworn. The respondent relies on Merck Frosst, Lépine v Bank of Nova Scotia, 2006 FC 1455 at paras 9, 18, [2006] FCJ No 1839, Autodata Ltd v Autodata Solutions Co, 2004 FC 1361 at paras 2, 19, [2004] FCJ No 1653 [Autodata] and Imperial Chemical Industries PLC v Apotex, 1988 CarswellNat 642 (WL) at para 9, 22 CIPR 226 (FCTD) [Imperial Chemical] ). In this case, the respondent argues that the sole purpose of the affidavit sworn by Ms. Terrier on September 24, 2014, was to address the issue of procedural fairness and set out the steps that were taken to ensure such fairness. The respondent points out that on the merits, the Court should determine whether the applicant had an opportunity to fully participate in the decision-making process by having been apprised of the information that cast him in an unfavourable light and by having had an opportunity to present his point of view (El Maghraoui v Canada (Minister of Citizenship and Immigration), 2013 FC 883 at para 27, [2013] FCJ No 916).
[70] The respondent also insisted on the fact that the affidavit of a decision-maker cannot be used to complete or bolster the reasons for the decision that is the subject of the application for judicial review (Leahy v Canada (Citizenship and Immigration), 2012 FCA 227 at para 145, [2012] FCJ No 1158; Sellathurai v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255 at paras 45-47, [2008] FCJ No 1267; Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299 at paras 40-42, [2013] FCJ No 553). Accordingly, the respondent argues that questions posed during cross-examination on an affidavit cannot be used to get an affiant to testify about the reasons for his or her decision, relying on Pinto v Canada (Minister of Citizenship and Immigration), 2013 FC 349 at paras 8, 10, [2013] FCJ No 368.
[71] The respondent further submits that the deponent of an affidavit is not obliged to answer questions of law or to set out the respondent’s position on legal questions in issue. Moreover, deponents of an affidavit are not required to inform themselves in order to answer questions to which they do not know the answers (Ward v Samson Cree Nation, 2001 FCT 990 at para 3, [2001] FCJ No 1383). The respondent submits that in this case, Ms. Terrier is the officer who handled the applicant’s permanent residence application, but that she is not the respondent’s agent or representative. As a result, she is under no obligation to answer relevant questions to which she does not know the answers nor is she required to inform herself.
[72] The respondent further submits that there is no obligation to give an undertaking on an affidavit and the deponent of an affidavit is under no obligation to produce documents. The respondent relies on Autodata, at paras 2, 19.
[73] As for the questions to which objections were raised, the respondent submits that they were either:
related to the affidavit of September 19, 2014; or outside the scope of the affidavit of September 24, 2014; or not relevant; or questions to which Ms. Terrier did not know the answers and about which she had no obligation to inform herself; or questions posed to Ms. Terrier dealing with questions of law.
[74] As to the undertakings sought, the respondent argues that Ms. Terrier was under no obligation to inform herself or to look for or produce documents that were not in her possession.
[75] The respondent also disagrees with the position of the applicant regarding which documents ought to have been included in the CTR. The respondent subscribes to the theory that the CTR need not contain a