Desjardins v. Lavallée
Where an affidavit demonstrates that statements were made and there is no evidence to the contrary or opportunity to cross-examine, a motion judge errs in dismissing it as merely hearsay; on those facts a serious question was established and an extension of time should be granted.
Source-derived case information.
- Citation
- 2001 FCA 359
- Parties
- Appellant: Raynald Desjardins; Respondent: Serge Lavallée; Respondent: National Parole Board (Appeal Division); Respondent: Lise Bouthiller; Respondent: The Attorney General of Canada
- Court
- Federal Court of Appeal
- Jurisdiction
- Canada
- Judgment Date
- 21 November 2001
- Procedural Posture
- Appeal From Trial Division Order Concerning Extension of Time to File Application for Judicial Review / Decision on Appeal (motion for Extension of Time)
- Outcome
- Appeal allowed; trial judgment reversed; motion for extension of time granted.
- Legal Topics
- Extension of Time, Judicial Review, Hearsay, Affidavit Evidence, Delay, Standard of Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Raynald Desjardins
Appellant
Serge Lavallée
Respondent
National Parole Board (Appeal Division)
Respondent
Lise Bouthiller
Respondent
The Attorney General of Canada
Respondent
Procedural Posture
Appeal From Trial Division Order Concerning Extension of Time to File Application for Judicial Review / Decision on Appeal (motion for Extension of Time)
Legal Issues
- 1 Whether an affidavit containing hearsay can establish the existence of a serious question for purposes of granting an extension of time
- 2 Whether the motion judge erred in dismissing the affidavit as essentially hearsay
- 3 Whether the appellant justified the delay such that an extension of time should be granted
Ratio Decidendi
Where an affidavit demonstrates that statements were made and there is no evidence to the contrary or opportunity to cross-examine, a motion judge errs in dismissing it as merely hearsay; on those facts a serious question was established and an extension of time should be granted.
Court Disposition
Appeal allowed; trial judgment reversed; motion for extension of time granted.
Orders
- Appeal allowed
- Trial judgment reversed
Full Case Text
Judgment text and source record
1 paragraphs
Desjardins v. Lavallée Court (s) Database Federal Court of Appeal Decisions Date 2001-11-21 Neutral citation 2001 FCA 359 File numbers A-458-99 Decision Content Date: 20011121 Docket: A-458-99 Neutral citation: 2001 FCA 359 CORAM: RICHARD C.J. DÉCARY J.A. NOËL J.A. BETWEEN: RAYNALD DESJARDINS Appellant and SERGE LAVALLÉE and NATIONAL PAROLE BOARD (APPEAL DIVISION) and LISE BOUTHILLER and THE ATTORNEY GENERAL OF CANADA Respondents Hearing held at Montréal, Quebec on November 21, 2001 Judgment from the bench at Montréal, Quebec on November 21, 2001 REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Date: 20011121 Docket: A-458-99 Neutral citation: 2001 FCA 359 CORAM: RICHARD C.J. DÉCARY J.A. NOËL J.A. BETWEEN: RAYNALD DESJARDINS Appellant and SERGE LAVALLÉE and NATIONAL PAROLE BOARD (APPEAL DIVISION) and LISE BOUTHILLER and THE ATTORNEY GENERAL OF CANADA Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the bench at Montréal, Quebec on November 21, 2001) NOËL J.A. [1] In our opinion, the motion judge was wrong to conclude that Jean Dugré's affidavit did not establish the existence of a serious question because it was based essentially on hearsay. [2] It is true that that affidavit did not establish the truth of the statements attributed by the deponent to Mr. Dutil but, in the absence of evidence to the contrary, it was proof of the fact that Mr. Dutil made those statements. No evidence to the contrary was presented and the respondents did not see fit to cross-examine the deponent. [3] In these circumstances, the affidavit in question establishes the existence of a serious question and the trial judge had no choice but to recognize this. [4] As to the delay, the motion judge did not hold it as a reason for dismissal and, based on the evidence before us, it seems clear that the appellant was able to justify it. [5] For these reasons the appeal will be allowed, the trial judgment reversed and, rendering the judgment which the trial judge ought to have rendered, the motion for an extension of time will be granted. The application for judicial review must be filed within ten days of the judgment to be rendered. Marc Noël J.A. Certified true translation Suzanne M. Gauthier, C. Tr., LL.L FEDERAL COURT OF CANADA APPEAL DIVISION Date: 20011121 Docket : A-458-99 Between: RAYNALD DESJARDINS Appellant and SERGE LAVALLÉE and NATIONAL PAROLE BOARD (APPEAL DIVISION) and LISE BOUTHILLER and THE ATTORNEY GENERAL OF CANADA Respondents REASONS FOR JUDGMENT OF THE COURT FEDERAL COURT OF CANADA APPEAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD FILE: A-458-99 Appeal from order made by Trial Division in case T-18-99 on June 24, 1999 CORAM: RICHARD C.J. DÉCARY J.A. NOËL J.A. STYLE OF CAUSE: RAYNALD DESJARDINS Appellant and SERGE LAVALLÉE and NATIONAL PAROLE BOARD (APPEAL DIVISION) and LISE BOUTHILLER and THE ATTORNEY GENERAL OF CANADA Respondents PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: November 21, 2001 REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. DATED: November 21, 2001 APPEARANCES: Julius Grey FOR THE APPELLANT Nadia Hudon FOR THE RESPONDENT ATTORNEY GENERAL OF CANADA SOLICITORS OF RECORD: Grey, Casgrain FOR THE APPELLANT Montréal, Quebec Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada ATTORNEY GENERAL OF CANADA Montréal, Quebec