Mugesera v. Canada (Minister of Citizenship and Immigration)

Deschamps J. — The respondents have included documents in their record that the appellant contends should be struck out. Also, the appellant submits that the respondents’ written argument contains passages that should be struck out. The contested documents are the factums from the courts below, directions of the Federal Court of Appeal, a motion to file fresh evidence, the written representations on costs in the Court of Appeal, correspondence between the parties regarding the establishment of the record in this Court and a table of concordance.

Rule 39(1)(b) of the Rules of the Supreme Court of Canada, SOR/2002‑156, requires that Part II of the respondent’s record include, inter alia, “pleadings” and “orders”. In the French version, the terms used are actes de procédure and ordonnances. These expressions are general enough to include the factums from the courts below, the directions of the Court of Appeal, the motion to file fresh evidence and the written representations on costs. In fact, the Court established in Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [1999] 3 S.C.R. 845, that factums from the courts below are part of the record to which the parties may refer.

The correspondence and the table of concordance have been included by the respondents in Parts III and IV of their record. Rules 39(1)(c) and 39(1)(d) of the Rules of the Supreme Court of Canada require that these parts include:

(c) Part III: evidence, including transcripts and affidavits; and

(d) Part IV: exhibits, in the order in which they were filed at trial.

The correspondence and the table of concordance are neither evidence nor exhibits included in the record at trial. Nor may these documents be included in Part II of the respondents’ record.

These documents constitute fresh evidence. They should be considered to have been struck out. Likewise, the passages of the respondents’ factum referring to them should be considered not to have been written.

Rather than ordering the filing of a new factum and a new record, I order the respondents to refrain from referring to these documents and these passages from the factum in their oral argument.

For these reasons, the motion is granted in part, without costs in light of its mixed result. The correspondence and the table of concordance shall be considered to have been struck out and the respondents are ordered not to refer to them.