Federal Appeal




Affidavit did not properly fall within exception afforded to experts

Applicant Members of Parliament (MPs) applied to challenge decisions by Board of Internal Economy about their large-volume mailings and use of Parliamentary resources for expenses. Respondent Board and Speaker of House of Commons brought motion to strike out applications on basis that matters were within exclusive purview of House of Commons protected by doctrine of parliamentary privilege. MPs served affidavit of law professor, opining on international global trend of construing parliamentary privilege narrowly. Respondents’ motion to strike out affidavit was dismissed, and their appeal dismissed. Respondents appealed. Appeal allowed. Law professor’s affidavit did not provide evidence that was necessary to enable judge to appreciate matters in issue due to their technical nature as foreign laws and authorities referred to were not factual issues requiring proof. Courts routinely relied on foreign case law and doctrine without need for their introduction by way of affidavit. Affidavit’s essential character was not to offer historical perspective into concept of parliamentary privilege but to suggest restrictive interpretation on basis of legal analysis of foreign constitutional provisions and authorities. Affidavit advocated for more restrictive interpretation of that privilege in light of recent developments in foreign law and practice. Affidavit was inadmissible and did not properly fall within exception afforded to experts. While discretion to strike out affidavits should be exercised sparingly, affidavit was not properly accepted for filing. Affidavit was so clearly inadmissible there was no need to have full record before coming to final assessment of its merits. It was in interests of justice to intervene at this early stage. Respondents would be materially prejudiced and orderly hearing of application would be impaired if affidavit was not struck immediately. Delay in bringing motion to strike out affidavit was not fatal as court should not decline to strike out affidavit that was clearly inadmissible merely because motion to that effect was not brought as quickly as it should have been.

Canada (Board of Internal Economy) v. Canada (Attorney General) (2017), 2017 CarswellNat 660, 2017 FCA 43, A.F. Scott J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 2996, 2016 FC 745, George R. Locke J. (F.C.).

cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

Law Times reports that there is the highest number of lawyer candidates in the upcoming Law Society of Ontario Bencher election since 1995, but turn-out is declining. Do you think voting should be mandatory for all lawyers and paralegals in this election?