The role of Applicant’s Affidavit in an Application for Judicial review
The role of Applicant’s Affidavit in an Application for Judicial review:
Subrule 12(1) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules provides that an affidavit “shall be confined to such evidence as the deponent could give if testifying as a witness before the Court”. Thus, hearsay is not permitted. Subrule 12(2) provides that no cross examination is permitted on an affidavit filed in support of an application for leave unless a judge of the Federal Court allows it for special reasons. In most cases, cross examination would not be necessary. However, if an affidavit filed contains facts that are in dispute, or if there are other special reasons to seek to cross examine on an affidavit filed, counsel can apply for leave pursuant to r. 369 of the Federal Courts Rules.
Failure of the Applicant to File His or Her Own Affidavit:
In some cases, the applicant will not file his or her own affidavit. The Federal Courts Citizenship, Immigration and Refugee Protection Rules, although they do require an affidavit in support of the application for leave and judicial review, do not specify that the affidavit must be from the applicant. There had been some jurisprudence which appeared to suggest that the failure to file an affidavit from the applicant was fatal to the application for judicial review. Given that there is, however, no express requirement that the applicant file an affidavit, there is no basis to conclude that the failure of the applicant to file an affidavit will automatically be fatal to the application for leave. However, given that the facts in the affidavit must be facts that are within the knowledge of the affiant, it is essential that the affiant possess sufficient knowledge of the facts to be able to file an affidavit that is not based on information and belief.
In Sarmis v. Canada (Minister of Citizenship & Immigration), the court dismissed a preliminary objection that the applicant had not filed an affidavit in the following terms:
I will first deal with a preliminary objection raised by the respondent. The respondent submits that as the applicants have failed to file their own affidavits based on personal knowledge in support of their application for leave, and have just filed the affidavit of Rizni Faruk, paralegal, the lack of a personal affidavit in support of their application for leave is a fatal flaw and a third party affidavit cannot serve to remedy this failure (Jia Cheng Ye v. Canada (Minister of Citizenship and Immigration), (January 12, 2000) IMM-4877-99 (F.C.T.D.).
In addressing this issue, I refer to the decision of Turcinovica v. Canada (Minister of Citizenship and Immigration), 2002 FCT 104, [2002] F.C.J. No. 216 (F.C.T.D.) (QL), where Dawson J. stated at paragraphs 11, 12 and 13:
At the commencement of oral argument counsel for the Minister submitted that the application for judicial review should be dismissed because it was not supported by a proper affidavit. Ms. Turcinovica had filed no affidavit and the application was supported by the affidavit of Ms. Turcinovica’s lawyer’s assistant. This was said to fall short of the obligation on an applicant to produce an affidavit based on personal knowledge. In consequence, it was urged on the Minister’s behalf that the application should be dismissed because it was not supported by a proper affidavit.
The failure of an application to be supported by affidavits based on personal knowledge has been held not to result automatically in dismissal of an application for judicial review
In the present case, I am satisfied that the affidavit before the court is sufficient to establish the fact of the application and its rejection. I am not, therefore, prepared to dismiss the application on this basis.
It is well-established that the use of third-party affidavits is not fatal to an application for judicial review. Though I do not applaud the use of Third person affidavit, I am not prepared to dismiss the application for judicial review on this basis.
Accordingly, while an applicant’s affidavit provides the factual basis for a judicial review, its absence is not automatically fatal. Courts have held that third-party affidavits may suffice if they establish the necessary facts, and cross-examination is only allowed in special circumstances.
