Date: 19981110
Docket: T-85-97
BETWEEN:
SIERRA CLUB OF CANADA, a national organization concerned
with environmental protection and restoration and a non-profit
corporation duly constituted on April 27, 1992 by Letters Patent
under the Canadian Corporation Act, having its head office at
1 Nicholas Street, Suite 412, Ottawa, Ontario, K1N 7B7,
Applicant,
- and -
THE MINISTER OF FINANCE OF CANADA,
having his principal office at the House of Commons,
Room 515-S, Centre Block, Ottawa, Ontario, K1A 0A6,
- and -
THE MINISTER OF FOREIGN AFFAIRS OF CANADA,
having his principal office at the House of Commons,
Room 418-N, Centre Block, Ottawa, Ontario, K1A 0A6,
- and -
THE MINISTER OF INTERNATIONAL TRADE OF CANADA,
having his principal office at the House of Commons,
Room 365, West Block, Ottawa, Ontario, K1A 0A6,
- and -
THE ATTORNEY GENERAL OF CANADA,
having his principal office at 239 Wellington Street,
Ottawa, Ontario, K1A 0H8 and his Montréal office at
Guy Favreau Complex, 200 Rene-Levesque Blvd. West,
East Tower, 9th Floor, Montréal, Quebec, H2Z 1X4,
Respondents,
- and -
ATOMIC ENERGY OF CANADA LIMITED,
Intervenor.
REASONS FOR ORDER
JOHN A. HARGRAVE,
PROTHONOTARY
[1] The present motions, those of the Applicant, Sierra Club of Canada ("Sierra Club"), and of the intervenor, Atomic Energy of Canada Limited ("AECL"), the former to require the reattendance, at his own expense, of John Mundy for further cross-examination on his affidavit and the latter to strike out various affidavits, arise out of the sale of two CANDU nuclear reactors to China, financed through a branch of the Department of Foreign Affairs and International Trade. Regrettably these reasons are late. I will deal with each motion in turn, beginning with some relevant facts forming the basis for the Sierra Club motion.
FACTS - SIERRA CLUB MOTION
[2] The Sierra Club's application, commenced 20 January 1997, sets out, among other things, that ministers of the federal government were in breach of their duties when they failed to ensure a Canadian Environmental Assessment Act (the "Environmental Assessment Act") environmental assessment was done in respect of the construction in China of two CANDU reactors. The Sierra Club alleges that the environmental assessment is required by reason of the financing of the project from public money of Canada in the Consolidated Revenue Fund.
[3] In May of 1998 AECL was added as an intervenor, with all the rights of the party, save that it might not duplicate questions in cross-examination or the submissions of the Respondents, but might supplement such.
[4] The Sierra Club initially examined Mr. Mundy on his affidavit on 15 June 1998. It now seeks further cross-examination. John Mundy was a director of the Export Financing Division of International Business and Communications Branch of the Department of Foreign Affairs and International Trade ("DFAIT") who had, among other responsibilities, that of liaison between the Export Development Corporation and DFAIT. Mr. Mundy's affidavit sets out some of the involvement of DFAIT and the Minister for International Trade in the sale of the reactors by AECL. It touches on the role of the Export Development Corporation in financing the CANDU reactors, some 1.5 billion dollars, through an Export Development Corporation account referred to as the Canada Account. While the affidavit is of modest length, it contains a great deal of information and shows substantial knowledge on the part of Mr. Mundy. The transcript of the initial cross-examination confirms that Mr. Mundy has a substantial fund of knowledge.
[5] Page 29 of the transcript of the cross-examination indicates counsel for the Sierra Club put to Mr. Mundy a June 1992 report, prepared by External Affairs and International Trade Canada, Financial Business Services Division, a report on a study of the Canada Account. Counsel for AECL objected to the document and instructed Mr. Mundy not to answer questions on it, giving a number of reasons for the objection, the relevant ones being first that the examination process was not discovery, but rather cross-examination on an affidavit. Second, counsel for AECL objected to Mr. Mundy's cross-examination on a document which was prepared at a time when Mr. Mundy was not with the Division in question. Counsel for the Sierra Club justified putting the document to Mr. Mundy on the basis of direct relevancy, submitting both that the Sierra Club is entitled to put documents to Mr. Mundy, on cross-examination, that bear directly on his evidence, and that on cross-examination counsel is entitled to use whatever documents and materials that the witness is willing to authenticate. This document was, in due course, identified as exhibit "A" for identification.
[6] In proceedings transcribed at page 76 of the transcript counsel for the Sierra Club sought to question Mr. Mundy on an agenda, "CANDU Initiative for China", prepared for a meeting of 20 January 1994, Mr. Mundy being one of the parties to whom the agenda was distributed. Counsel for the Sierra Club sought to use the document in what he referred to as a
| "relatively detailed examination of the extent of the involvement of ministerial officials and the development, review and monitoring of the sale and financing of the CANDU reactor transaction.". |
Counsel for AECL objected on the basis first, that being a document obtained by Sierra Club it ought to be in a Sierra Club affidavit, second as to relevance and third that the agenda was a cabinet confidence: the only real objection here is that of relevance. In any event counsel for AECL refused to let Mr. Mundy answer questions on the document, which was then marked as exhibit "B", for identification.
[7] Page 79 of the Mundy transcript indicates counsel for the Sierra Club sought to introduce a letter of 24 January 1995 dealing with Canadian financing of the Quinshan CANDU project. Counsel for AECL objected to the document on the basis of relevancy, at which point it was marked as exhibit "C" for identification.
[8] At pages 82 and 83 the transcript sets out that counsel for the Sierra Club and for AECL agreed to mark five additional documents as exhibits "C" through "G", for identification, on the basis that all of the exhibits, "A" through "G" would be subject to a motion as to relevancy. The balance of the exhibits are:
| "D". 17 January 1995 letter from Mr. Chang of AECL to Mr. Mundy; |
| "E". 29 February 1996 facsimile from Mr. Mundy to Mr. Godden of AECL; |
| "F". Memorandum of 28 September 1995 from Mr. Martel of Industry Canada, to various recipients including Mr. Mundy on the subject of financing of candu export sales; and |
| "G" A 3 July 1996 facsimile from Mr. Mundy to Mr. Smith of the International Finance Division. |
This leads to the present motion that Mr. Mundy reattend, for further cross-examination on exhibits "A" through "G" at his own expense.
CONSIDERATION OF THE SIERRA CLUB MOTION
[9] The law as to the scope of cross-examination on affidavits is well developed. I touch on some relevant aspects. To begin, it is not confined by the four corners of an affidavit, but includes matters relevant to the determination of the issue in respect of which the affidavit is filed: Weight Watchers International Inc. v. Weight Watchers of Ontario Ltd. (No. 2) (1972), 6 C.P.R. (2d) 169 at 171 and 172, a decision of Mr. Justice Heald as he then was. A deponent of an affidavit, who is being cross-examined, has a duty to inform himself or herself on matters within knowledge or within means of knowledge: Merck & Co. Inc. v. Apotex Inc. (1996), 67 C.P.R. (3d) 147 at 148 and 149.
[10] Under the pre-April 1998 Federal Court Rules it is clear that cross-examination upon an affidavit ought not to be as free ranging as examination for discovery: see for example Bally-Midway Manufacturing Co. v. M.J.Z. Electronics Ltd. (1984), 75 C.P.R. (2d) 160 at 161:
| In my view, the cross-examination upon an affidavit in support of a motion for an interlocutory injunction ought not to be as wide-ranging as an examination for discovery. In the latter proceeding the witness must inform himself, provide answers and produce documents relevant to all the issues raised in the pleadings. The cross-examination upon an affidavit, however, must be confined to the issues relevant to the interlocutory injunction and/or all the allegations contained in the affidavit. In other words, the affiant must answer questions and produce documents relating to all the issues relevant to the interlocutory motion, plus questions on all the other statements he may have volunteered within the four corners of his affidavit. The cross-examiner cannot use the affidavit as a vehicle to obtain all the information and all the documents that might be useful at trial.". |
I do not see that the new Federal Court Rules have broadened the scope of cross examination on an affidavit.
[11] In applying these concepts, that the deponent must answer questions relating to all of the issues, both those within the four corners of an affidavit and also those relevant to determination of the issue in respect of which the affidavit is filed, but stopping well short of examination for discovery, there is a fundamental principle, as to the condition for the receipt of evidence, which I must keep in mind. The principle is that evidence, if relevant, ought to be admitted unless there is some applicable exclusionary rule. Here a motions judge and a prothonotary have some discretion to reject evidence, but that discretion ought to be exercised cautiously, for often a proper determination can only be arrived at once all the relevant law and fact have been thoroughly canvassed, a task which, in many instances, is best left to the trial judge. Mr. Justice Gibson dealt with this concept, albeit in the context of hearsay, reliability and necessity, in Eli Lilly and Co. v. Apotex Inc. (1998), 75 C.P.R. (3d) 312 at 315:
| "I am satisfied that there is merit in leaving the determination of reliability and necessity of proposed evidence on information and belief to the 'trial judge', in this matter, the judge hearing the Originating Notice of Motion who, if he or she determines the evidence to be reliable and necessary, is in a position to make the further determination as to the appropriate weight to be given to such evidence, once admitted.". |
Of course, one must keep in mind the balance between, on the one hand, undue delay by reason of a multiplicity of documents and lengthy cross-examination on affidavits and documents, and on the other hand, the desirability that the judge, hearing the eventual application on the merits ought to have all of the information which is relevant and material to enable him or her to make a proper decision, as touched upon in Ethicon Inc. v. Cyanamid of Canada Ltd. (1978), 35 C.P.R. (2d) 126 at 132 - 133:
| "The Court must strike a fine balance between on the one hand the desirability of dealing with proceedings of this nature in a summary manner without unduly extending and delaying them by permitting a multiplicity of affidavits, lengthy cross-examination on each and an extensive production of documents, and on the other hand, the desirability of making sure that the Judge called upon to hear the matter on the merits of the originating notice shall have before him all information which is relevant and material to enable him to make a proper decision. The resolution of the problem may be somewhat academic in the present case in that applicants ask in what is really an alternative request that an officer of respondent be produced for examination for discovery and that production of documents be ordered in accordance with the general Rules of the Court. I am of the view that despite the adversary system the Rules of Court should never be so applied, when the Court has discretion in connection with their application, as to prevent the Court from having full access to all information which is relevant and pertinent to enable it to arrive at a just decision." (emphasis added). |
The last caution, which I have emphasized, is that I should not, on a procedural motion, deprive a judge of relevant and pertinent facts needed to reach a substantive conclusion.
[12] Counsel for the Sierra Club submits that the evidentiary issue at the very heart of this proceeding is the nature, extent, scope and purpose of the involvement of the ministers who are Respondents and the officials within their departments in the provision of funding to support the sale of the CANDU reactors. Certainly the issue is one of the basic issues and indeed this is borne out by the evidence in Mr. Mundy's affidavit. Counsel for the Sierra Club submits that this evidence is carefully crafted in order to create a perception that the Export Development Corporation was independent of any direction or guidance from any government agency or government official: here I will turn to a passage from the written representations of the Sierra Club on the issue of the extent to which financial assistance to support the sale of the CANDU reactors came from the federal government as opposed to the Export Development Corporation:
| "23. The accuracy of this picture painted by Mr. Mundy in his Affidavit is an important issue, as this proceeding turns, in part, upon the extent to which financial assistance to support the sale flowed from the federal government, as distinct from the EDC. The Sierra Club is therefore entitled to test Mr. Mundy's evidence in that regards.". |
Certainly some of the documents in question, exhibits "B" through "G", are relevant to this issue. They are documents either prepared by or received by Mr. Mundy. Here I would turn to Rule 91(2) which requires the deponent of an affidavit, upon cross-examination, to produce all documents that are relevant to the application or motion. This concept is reiterated in Rule 94(1), subject to such relief from production as the Court, on motion, might grant, a relief granted by Rule 94(2). Again, I would caution that this is not examination for discovery, however it is broad within the context of the application or motion.
[13] Counsel for AECL submits that documents put to Mr. Mundy ought to have their source, if not in Mr. Mundy's affidavit, in affidavits filed by the Sierra Club: counsel notes this would prevent the witness being surprised. But I do not think there is any exclusionary rule preventing the putting of an apparently relevant document to a witness in order to see if the witness knows of the document or recognizes it and if the answer is affirmative, cross-examination ought to follow and in that way the material might, subject to the final discretion of the trial judge, become evidence in the case. This concept has its counterpart in the cross-examination of an expert, on an affidavit, which was the situation in Schering Canada Inc. v. Apotex Inc. (1998), 80 C.P.R. (3d) 429 at 434. There Mr. Justice Gibson referred to R. v. Marquard, [1993] 4 S.C.R. 223 at 251, as to the proper procedure for putting documents to a deponent of an affidavit, on cross-examination, so that they might become evidence:
| "The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is 'no', or if the witness denies the work's authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is 'yes', and the witness acknowledges the work's authority, then the witness has confirmed it by the witnesses' own testimony. Parts of it may be read to the witness, and to the extent they are confirmed, they become evidence in the case.". |
[14] So far I have dealt with relevance of and have rejected the argument that exhibits "B" through "G" are irrelevant. I have touched on procedure and approved the approach by counsel for the Sierra Club, that of putting documents to Mr. Mundy, a witness who would appear able to authenticate them by reason of his either writing them or receiving them. Certainly there is no element of surprise.
[15] Counsel for AECL raised another objection, which did not appear in the transcript of the cross-examination, but which he argued in opposition to the motion. It is that to let these documents in, at this point, would be an abuse of process, in that they are documents within the overall groups of types of documents the production of which Mr. Justice Rouleau refused, under Rule 1612, by Order and Reasons of 23 May 1997. In those reasons, Mr. Justice Rouleau wrote that he felt the classes of documents which the Sierra Club wished produced, under the then applicable Rule 1612, as documents within the possession of a Federal Board, Commission or Tribunal, were not relevant in that they were described in terms which were too broad. Yet Mr. Justice Rouleau's decision may be distinguished so far as most of the present documents are concerned. At page four of his reasons, Mr. Justice Rouleau criticizes the broad wording of the request for documents and notes that the documents in question include those relating to "... general matters of export sales and financing, or environmental or financial decision making, and not just the sale and financing of the two CANDU reactors in question.". He concluded by allowing the Sierra Club 30 days within which to submit a revised request for material which complied with his Reasons and with the Rules of the Court. It would seem that the Sierra Club did take the suggested route, that of submitting a revised request for materials, but upon a refusal from opposing counsel obtained material under access to information legislation. The seven documents now at issue were obtained in that way.
[16] I have examined each of the seven documents in order to determine if they might be among the type of documents which Mr. Justice Rouleau felt were irrelevant. Exhibits "B" through "G" are clearly relevant in the context of the sale and financing of the two CANDU reactors in question. I have difficulty with document "A", a report on the Canada accounts study, dated June 1992, a general study covering the fiscal years 1988-1989 and 1989-1990, some five years before the negotiations to sell the reactors began. I do not see the relevance of this document, for it does not relate, directly or indirectly, to the sale or financing of the two CANDU reactors or to the environmental study which the Sierra Club says ought to have been undertaken. This is a point which bothered Mr. Justice Rouleau when he dealt generally with the documents requested by the Sierra Club. Nor does the Canada Account Study relate to matters set out in Mr. Mundy's affidavit. The document does not go to testing the credibility of Mr. Mundy as a witness. Mr. Mundy need not answer further questions on the report on the Canada Account Study.
[17] As I have indicated the balance of the documents, exhibits "B" through "G", may form the basis for cross-examination of Mr. Mundy. The documents are relevant to the determination of issues, both in respect to which the Mundy affidavit was filed, and to the case that is outlined in the application for judicial review. The documents are such that reasonable cross-examination on them will not unduly delay this proceeding. The documents may well be required by the judge hearing this judicial review application in order that he or she may have all of the information needed to reach a proper decision. My view, of course, is not as to the weight of the documents, but merely that exhibits "B" through "G" ought to be allowed in at this point.
[18] Mr. Mundy must reattend in order to be cross-examined on exhibits "B" through "G". Mr. Mundy shall bear his own cost of transportation, food and lodging, however the additional taxable costs of the further cross-examination shall be costs in the cause.
AECL MOTION
[19] The motion of AECL is to strike out the affidavits of Elizabeth May, Jennifer Barnes and Kenneth Rubin, or alternatively portions of them, in that they are said to contain material that is irrelevant, opinion, argument, legal conclusions and hearsay. In addition the Barnes and Rubin affidavits are said to be improper as they contain material determined by Mr. Justice Rouleau to be irrelevant and are thus an abuse of process.
[20] It was of great assistance that, during the course of the hearing, counsel were able to reach agreement on various paragraphs of the Elizabeth May affidavit.
CONSIDERATION OF AECL MOTION
[21] Counsel for AECL submits that under the former Federal Court Rules "... the Court routinely struck out affidavits or portions of affidavits containing improper material on preliminary motion.". While there are many cases in which affidavits have been struck out, including those to which counsel for AECL has referred, the law on striking out of affidavits is well settled: in general the discretion to strike out affidavits, or portions of them, ought to be exercised sparingly.
[22] To maintain the efficiency of judicial review proceedings and indeed of any proceeding, parties ought not to be, for the most part, permitted to strike out each other's affidavits. There are clearly defined exceptions to this generalization: if an affidavit is abusive or clearly irrelevant, or if a party has obtained leave to admit evidence which proves to be obviously inadmissible, or if the Court is convinced that admissibility should be considered at an early date so that the eventual hearing may proceed in an orderly manner, an affidavit, or portions of it, may be struck out. For this proposition I refer to two cases, Home Juice Co. v. Orange Maison Ltée. [1968], 1 Ex. C.R. 163 at 166, and Unitel Communications Co. et al. v. MCI Communications Corp. et al. (1997), 119 F.T.R. 142, a decision of Mr. Justice Richard, as he then was. In the latter case Mr. Justice Richard observed that the trial judge would be in a better position to assess the weight and admissibility of affidavit material (pp. 143 and 145). Of course, pure conjecture, speculation and legal opinion, which have no redeeming value, have no place in an affidavit and ought to be struck out at an early date so that the hearing of the application may proceed in a reasonable way.
[23] As to striking out a part of an affidavit, that is appropriate if it is possible to separate the admissible from the non-admissible portions of the affidavit: see for example FoodCorp Ltd. v. Hardee Food Systems Inc. (1982), 61 C.P.R. (2d) 37 at 40 (F.C.A.).
[24] Substantial portions of the three impugned affidavits are hearsay, not a limiting factor by itself so long as certain criteria are met, according to current thought. However, counsel for AECL submits that since Rule 81(1) of the 1998 Federal Court Rules now requires that affidavits be confined to facts within the knowledge of the deponent, except on motions, various portions of the present affidavits ought to be struck out. For this proposition counsel refers to Haney Ranching Ltd. et al. v. Canada (Minister of Agriculture) (1995), 106 F.T.R. 81 at 88, the issue being the reliability of hearsay evidence where cross-examination of the deponent would be fruitless. Similarly counsel refers to Cantwell v. Minister of the Environment, an unreported 30 November 1990 decision involving hearsay, in action T-2975-90. Critical in the Cantwell decision was the hearsay component of affidavit material and particularly exhibits which were newspaper clippings. Now this decision, having been made at about the same time as that of the Supreme Court of Canada in R. v. Khan [1990], 2 S.C.R. 531, does not refer to Khan. R. v. Smith (1992), 2 S.C.R. 915 had not yet been decided. In this instance counsel for AECL also properly referred to and made submissions on Ethier v. Royal Canadian Mounted Police (Commissioner) (1993), 151 N.R. 374, a decision of the Federal Court of Appeal. There, Mr. Justice Hugessen, delivering the judgment of the Court, dealt with exhibits to an affidavit, the exhibits consisting of a material which had been obtained from the Public Service Commission under the Access to Information Act. The Court looked at the documents first from the view of reliability and then from the point of view of necessity, as required by the Khan and Smith decisions. In dealing with the first test the Court pointed out that the documents belonged to a government body, indeed one of the respondents and thus met the criteria of reliability. Dealing next with necessity, Mr. Justice Hugessen had this to say:
| "There can equally be no serious question as to the criterion of necessity in the circumstances. Respondents, by their counsel, had blocked any normal means of access to the material. Even once it was obtained through Access to Information Act proceedings it was hardly realistic to expect appellant's solicitor to approach the various declarants and seek affidavits from them, assuming that he could have done so without committing a serious breach of professional ethics. Their production, by means of the Supplementary Affidavit, was clearly the most practical and convenient way to bring them forward without putting in jeopardy any of the respondent's rights to reply or explain if they wished to do so." (p. 376). |
All of this might be said in the present instance.
[25] Counsel for AECL acknowledges that Ethier was consistent with former Rule 332(1), by which affidavits were "... confined to such facts as the witness is able of his own knowledge to prove. The new equivalent Rule, 81(1), takes a slightly different approach, confining affidavits to "... facts within the personal knowledge of the deponent, ...". The position of counsel for AECL is that by confining an affidavit to personal knowledge automatically know excludes hearsay evidence, which was admissible under Rule 332(1) after the decisions in Khan, Smith, and Ethier.
[26] My initial reaction to this argument was that Rule 81(1) has, for all intents and purposes, the same meaning as the former rule, Rule 332(1). However this point perhaps deserves a little further consideration. Certainly there would appear to be no substantial material difference between the wording of the past and present rules. There are shades of meaning between proving a fact through one's own knowledge and confining testimony to facts within one's own personal knowledge, but not enough difference to oust Ethier as good law under Rule 8.1(1), It is instructive, on this point, to go back and look at the approach of the Supreme Court of Canada in its cases dealing with the admission of evidence, which, although hearsay, is both reliable and necessary. This, as pointed out by the editors of Sgayias in their 1998 Transitional Supplement at page 30, is a principled approach for, as Chief Justice Lamer noted in Smith (supra) at page 933,
| This Court's decision in Khan, therefore, signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, governing principles being the reliability of the evidence and its necessity. |
To say that a shading of meaning, largely an illusory difference, between the old Rule 332(1) and the present Federal Court Rule 81(1), is all that is necessary to put the law of evidence, in the Federal Court, back into the old categorical approach to bar the admission of hearsay evidence is unreasonable. It will take more than a shading of meaning to displace the admissibility of hearsay evidence on the principles of reliability and necessity. Having disposed of the general hearsay point it is appropriate to look more particularly at the contents of the three impugned affidavits.
The Impugned Affidavit
May Affidavit of 20 January 1997
[27] Ms. Elizabeth May is the executive director of the Sierra Club of Canada. She has a legal background, but she also has personal experience involving not only the relevant environmental legislation, but also the nuclear reactors in question. As such she a person with a relevant background. Moreover she has done her homework thoroughly. Many of the exhibits consist of material from the media, together with AECL and Canadian government press releases. The judge hearing the judicial review application should have the opportunity to assess the weight and admissibility, of the material that is properly in Ms. May's affidavit.
[28] There may be some portions of the May affidavit which have less relevance than others. There is no reason to strike out the affidavit or some portions of it on this basis, for such discretion should be exercised with restraint.
[29] Some of the May affidavit may border on interpretation of statutes. Some of the material is in the nature of submissions which might better be made in argument. However, with some clear exceptions, the May affidavit is not, for the most part, pure opinion or pure interpretation of law. Indeed, given Ms. May's background the affidavit provides a useful and informative framework which the judge hearing this application might find helpful in putting a fairly complex application into perspective, without having to give some portions of the affidavit much weight.
[30] Some of the affidavit touches on relevant personal experience and direct involvement with the nuclear industry. I think it is by reason of this background that this Ms. May does express opinions. Some of these are irrelevant. However a number of paragraphs cross over the boundary to unacceptable opinion, legal conclusion, conjecture and speculation. Those are paragraphs 14, 16, 17, 18, 19, 28, 29, 43, 44 and 45, being opinion and legal conclusion; that portion of paragraph 55 from "apparently" to the end of the paragraph, a speculation on the reason for speedy passage of a regulation; paragraphs 58, 60, 75, 76 and 83, speculation and opinion; paragraphs 79, 80, 81 and 82, but related exhibits to remain; paragraph 84, an opinion as to what might be repugnant to the principles of public participation, access to information and responsible environmental decision making; and paragraph 86, being opinion. These paragraphs are struck out, in part or entirely, as I have indicated.
Barnes Affidavit of 3 April 1998
[31] The Jennifer Barnes affidavit deals with the application of the Sierra Club under the Access to Information Act. A substantial portion of the exhibited material is made up of documents supplied by the Department of Finance as documents relevant to the Sierra Club's search request. The request was for
| All documentation (including but not limited to: memoranda, letters, faxes, forms), dated from January, 1992 to present, containing information (including but not limited to information about financing methods and sources - eg, Export Development Corporation and Consolidated Revenue Fund) relating to the export of CANDU nuclear reactors to China. |
As such the material appears relevant. It is material similar to that which the Court of Appeal accepted as reliable and necessary in the Ethier case.
Rubin Affidavit of 3 April 1998
[32] The Kenneth Rubin affidavit sets out the procedure and the material disclosed pursuant to a January 1997 application under the Access to Information Act. The request, which was forwarded to the Department of Natural Resources Canada, sought "... records relating to, among other things, the financing of the sale of CANDU reactors to China, and the assessment of the environmental impacts thereof." (paragraph 3 of the Rubin affidavit). This material also clearly parallels the material obtained under the Access to Information Act and allowed in by the Court of Appeal in Ethier.
[33] Generally, as to both the Barnes and Rubin affidavits, counsel for AECL again raises the bar of Mr. Justice Rouleau's decision of 23 May 1997. However, as I have already pointed out, there is a difference between documents that are indiscriminately caught by a broadly worded and general request, a request which bothered Mr. Justice Rouleau, as opposed to documents selected through the Access to Information legislation as dealing specifically with the sale and financing of the two CANDU reactors in question. As such the specific documents to which AECL objects, those contained in Exhibit "I" to the Barnes affidavit and Exhibit "D" to the Rubin affidavit, are not barred by Mr. Justice Rouleau's decision.
[34] I would also note that after receiving Mr. Justice Rouleau's dismissal of 23 May 1997, of the Sierra Club's broad request for documents, the Sierra Club did make a further revised request for material on 20 June 1997 which, on 14 October 1997, was refused. The Sierra Club did not bring the refusal to the Court, but made the access to information applications of December 1997 and February 1998, the subject of the Barnes and Rubin affidavits. Subsequently the Court ordered that the Barnes and Rubin affidavits be filed, subject to the right of the ministers and AECL to challenge their admissibility at a later date. At this point the Sierra Club makes a reasonable prima facie case that the Barnes and Rubin affidavits challenge the views of John Mundy and Peter Cameron, expressed in their 7 March 1997 affidavits filed on behalf of the Respondents. Certainly the documents attached to the Barnes and Rubin affidavits bear on the issues raised by Messrs. Mundy and Cameron. There is no reason to depart, at this point, from the general rule that parties ought not to be permitted to strike out each other's affidavits, except in clearly defined circumstances, which circumstances do not apply in this instance.
METHOD OF OBTAINING DOCUMENTS
[35] Counsel for AECL questions whether the Sierra Club ought to be able to take the access to information approach, rather than be limited merely to applying under the procedural mechanism set out in former Rules 1612 and 1613, which were in effect at the relevant time. (1998 Rules 317 and 318 are the current equivalent). The argument here is that the current hearsay rule, which requires that documents be both reliable and necessary, precludes obtaining documents under the Access to Information legislation where such documents could be obtained through the application of the Court's procedural mechanism.
[36] The Court of Appeal in Ethier (supra) did not touch upon this aspect directly. However, the Court of Appeal noted that "it is not without significance that respondent's counsel had generally refused request for production of such documents during the preliminaries leading up to the hearing in the trial division." (page 375). The Court of Appeal then went on to determine that the documents, obtained through the Access to Information Act, were admissible in that they did not offend against the hearsay Rule. And that refusal to produce documents was certainly the case here, for AECL were able initially to block any production of documents and quite properly so, for the Sierra Club cast its net far too broadly. The Respondent subsequently refused a request for a more specific production of documents.
[37] Ought the Sierra Club to have been forced to make other motions to Court or to try other possible requests when it would likely have been opposed? I think not, for as Madame Justice Reed pointed out in John Witness v. The Commissioner of the Royal Canadian Mounted Police1, Rule 1612 and 1613 do not provide a procedure for dealing with the production of documents held by a tribunal which the tribunal declines to produce:
| Rule 1612 and 1613 ... do not set out any procedure for dealing with applications for the production of documents within the possession of a tribunal which that tribunal declines to produce. (p. 266). |
Madame Justice Reed went on to point out that one approach to the production of the documents in question would be to obtain an order to file the documents with the Court. That comment leaves the way open for other options as well. Granted, the documents at issue in John Witness were said to be privileged. Yet I do not think that the Rules of Court and the present principled approach to the hearsay rule ought to be interpreted so as to force a party to make a number of expensive applications to the Court when a straightforward access to information application, directed to a department of the Crown, would accomplish the same thing.
CONCLUSION
[38] The Sierra Club may further cross-examine John Mundy on Exhibits "B" through "G". Mr. Mundy shall pay the cost of transportation to and food and lodging at that cross-examination. Any additional taxable costs of the further cross-examination shall be costs in the cause.
[39] As success on the Sierra Club's motion was partial, costs shall be in the cause.
[40] Paragraphs 14, 16, 17, 18, 19, 28, 29, 43, 44, 45, 58, 60, 75, 76 and 83 and a portion of paragraph 55 of the Elizabeth May affidavit are struck out. Paragraphs 79, 80, 81 and 82 are struck out, but the related exhibits are to remain. The motion of AECL to strike out the affidavits of Jennifer Barnes and Kenneth Rubin, or portions of them, is denied. Again, costs will be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
10 November 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-85-97
STYLE OF CAUSE: Sierra Club of Canada
v.
The Minister of Finance of Canada and others
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated November 10, 1998
APPEARANCES BY:
| Mr. Timothy Howard for the Applicant |
| Sierra Legal Defence Fund |
| Mr. Brian Saunders for the Respondent |
| Department of Justice |
| Mr. Donald D. Hanna for the Intervenor |
| Osler Hoskin & Harcourt |
SOLICITORS OF RECORD:
| Mr. Timothy Howard for the Applicant |
| Sierra Legal Defence Fund |
| Vancouver, BC |
| Mr. Morris A. Rosenberg for the Respondent |
| Deputy Attorney General of Canada |
| Mr. Donald D. Hanna for the Intervenor |
| Osler Hoskin & Harcourt |
Toronto, ON
__________________1 Indexed as: Persons Seeking to Use the Pseudonyms of John Witness and Jane Dependant v. Canada (Commissioner of the Royal Canadian Mounted Police) (T.D.) , [1998] 2 F.C., 252.