ANTON OLEYNIK Applicant v. ATTORNEY GENERAL OF CANADA, 2023 FC 674

Date: 20230512 Docket: T-2361-22 Citation: 2023 FC 674 Montréal, Québec, May 12, 2023 PRESENT: The Honourable Madam Justice Furlanetto BETWEEN:ANTON OLEYNIKApplicantandATTORNEY GENERAL OF CANADARespondent ORDER AND REASONS [1] UPON MOTION by the Applicant for an Order pursuant to Rules 397(1)(

b) and 399(2)(

a) of the Federal Courts Rules, SOR/98-106[Federal Courts Rules], to reconsider and/or vary the Reasons for Order and Order of this Court dated March 3, 2023 [Order], in whichthe herein application was struck in response to a motion by the Respondent; [2] AND UPON considering the motion records filed by the parties and the additional correspondence and jurisprudence filed by theApplicant; [3] AND UPON hearing the submissions of the Applicant and counsel for the Respondent at the hearing convened on April 24, 2023; [4] Rules 397(1) and 399(2) of the Federal Courts Rules set out the narrow circumstances in which a party may request that an order bereconsidered and/or varied.

As relevant to this motion, rules 397(1)(

b) and 399(2)(

a) provide that: "Motion to reconsider " "Réexamen ""397

(1) Within 10 days after the making ofan order, or within such other time as theCourt may allow, a party may serve and file anotice of motion to request that the Court, asconstituted at the time the order was made,reconsider its terms on the ground that " "397

(1) Dans les 10 jours après qu’uneordonnance a été rendue ou dans tout autredélai accordé par la Cour, une

partie peutsignifier et déposer un avis de requêtedemandant à la Cour qui a rendul’ordonnance, telle qu’elle était constituée àce moment, d’en examiner de nouveau lestermes, mais seulement pour l’une ou l’autredes raisons suivantes :""[…] " "[…] ""(

b) a matter that should have been dealt withhas been overlooked or accidentally omitted." "

b) une question qui aurait dû être traitée aété oubliée ou omise involontairement. " "Setting aside or variance " Annulation"399

(2) On motion, the Court may set asideor vary an order " "399

(2) La Cour peut, sur requête, annulerou modifier une ordonnance dans l’un oul’autre des cas suivants : ""(

a) by reason of a matter that arose or wasdiscovered subsequent to the making of theorder; " ". . . " "

a) des faits nouveaux sont survenus ou ontété découverts après que l’ordonnance a étérendue; … " [5] Rule 397 is not meant to be an appeal in disguise, allowing a litigant to re-argue an issue a second time in the hope that the Court willchange its mind: Sharma v Canada (Revenue Agency), 2020 FCA 203 at para 3; Bell Helicopters Textron Canada Limitée v Eurocopter,2013 FCA 261 at para 15.

Rather, it is intended to correct inadvertent slips and omissions in the preparation of the Court’s judgment:Dan v Canada (Minister of Citizenship and Immigration), at para 15. [6] For an order to be varied under rule 399(2)(a), the alleged new matter must not have been known to the Court and must be somethingthat would have had a determining influence on the decision in question: Ayangma v Canada, 2003 FCA 382 at para 3. [7] The Applicant asserts that the Order should be reconsidered and/or varied in this case because it allegedly was made without theCourt considering the answers given to the written cross-examination of the Respondent’s affiant, Ms.

Lowden. The Applicant arguesthat based on the answers given to the cross-examination, the Lowden affidavit should have been struck and should not have beenconsidered by the Court. [8] Ms. Lowden’s affidavit attached two pages from the Applicant’s rule 306 evidence. However, the whole of the Applicant’s rule 306evidence was also filed by the Applicant in his own responding motion record. [9] The Applicant assumes that the Court must have relied on the Lowden affidavit when it agreed that the application should be struck

as a collateral attack on Memorial University of Newfoundland and Labrador [MUN]’s decision not to support the Applicant’s grantapplication because the Respondent referenced the Lowden affidavit in support of this argument in its submissions. However, that is notthe case.

Rather, in line with the jurisprudence cited by the Court, it focussed on the facts, assertions and relief claimed within the noticeof application itself to discern the essence of the application: JP Morgan Asset Management (Canada) Inc v Minister of NationalRevenue, 2013 FCA 250 [JP Morgan] at para 50; Canada (Attorney General) v Iris Technologies Inc, 2022 FCA 101 at para 2; Wenhamv Canada (Attorney General), 2018 FCA 199 at para 34. [10] Thus, it was not necessary for the Court to refer to the cross-examination on the Lowden affidavit in its reasons as the Lowdenaffidavit was not material to the reasons given.

While these documents as part of the Court record were before the Court when making itsOrder, it did not rely on these documents in reaching its decision. [11] In any event, even if the Court had expressly struck the Lowden affidavit because of the cross-examination answers as the Applicantasserts it should have done, it would not have altered the evidentiary record as the Applicant filed his full rule 306 affidavit within hisown responding motion record. The same excerpts attached to the Lowden affidavit were also included within the Applicant’s ownmotion record.

Thus, there was also no need to expressly discuss the cross-examination answers and any impact on the Lowden affidavitfrom an evidentiary stand-point. [12] While the Applicant seeks to draw a distinction between summarily dismissing the application and striking the application, this is adistinction without a difference in this context. The application process is

summary by nature. Only where it is so clearly improper as tobe bereft of any possibility of success can it be dismissed or struck at a preliminary stage: McCarthy v Canada (Attorney General), 2020FC 930 [McCarthy] at para 8; David Bull Laboratories (Canada) Inc v Pharmacia Inc, (FCA), [1995] 1 FC 588 (CA);JP Morgan at para 48. The Respondent’s motion, which sought to dismiss the application in advance of the hearing on its merits, by itsnature was essentially a motion to strike. This is distinct from a motion to strike under rule 221(1), which governs actions.

While notexpressly provided for in the Federal Courts Rules, the Court has plenary jurisdiction to strike an application: McCarthy at para 7. [13] There was no inadvertent omission in disposing of this motion. Rather, as the Lowden affidavit was not material to the Court’sdecision and the evidence included in the Lowden affidavit was otherwise part of the evidentiary record, the Lowden affidavit and itscross-examination answers were not expressly mentioned in the Court’s reasons.

There is no basis to reconsider or vary the Orderbecause of the cross-examination answers. [14] As a separate ground for varying the Order, the Applicant raises concern with the statement made by the Court in paragraph 2 of itsOrder, which characterizes the Applicant’s status at MUN.

The Applicant asserts that this characterization is irrelevant and prejudicial asit relates to subject-matter that "“went into arbitration”" and is required to be confidential. [15] The characterization was referred to in the background of the Respondent’s motion and was referenced in an email exchangeinvolving MUN that was attached to the Lowden affidavit and was included in the Applicant’s rule 306 evidence, which as mentionedearlier was also filed within the Applicant’s responding motion record.

There was no request made under rule 151 when the evidenceand motion materials were filed to maintain this correspondence as confidential. The Applicant provides no meaningful explanation forthis. [16] The Court confirms that the impugned characterization in the Order serves as background only.

The Court has made no independentfinding as to the Applicant’s status at MUN. [17] On the basis of this confirmation and in view of the correspondence on the public file, the Applicant’s request that the Order beamended is dismissed. [18] With respect to the Applicant’s request for confirmation of the relevant appeal periods, the Court notes subsection 27(2) of theFederal Courts Act, RSC, 1985, c F-7. The authority to address compliance with this subsection will rest with the Federal Court ofAppeal. ORDER IN T-2361-22 THIS COURT ORDERS that: 1. The motion is dismissed. 2. There shall be no award as to costs.

"Angela Furlanetto" Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: T-2361-22 STYLE OF CAUSE: ANTON OLEYNIK v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: HEARD BY VIDEOCONFERENCE DATE OF HEARING: April 24, 2023 ORDER AND REASONS: FURLANETTO J. DATED: May 12, 2023 APPEARANCES : Anton Oleynik For The Applicant (ON HIS OWN BEHALF) Mary Anne Macdonald For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Halifax, Nova Scotia For The Respondent