Docket: T-668-15
Citation:
2015 FC 1401
Ottawa, Ontario, December 18, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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BALRAJ SHOAN
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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ORDER AND REASONS
[1]
The Applicant moves to strike the affidavit
filed by the Respondent in response to his judicial review application on the
basis that the Respondent’s deponent failed to attend his oral
examination. The Respondent consents to the requested Order on the ground that
the deponent was not - and will not - be able to attend an oral examination due
to his medical condition. However, in a cross-motion, the Respondent seeks
leave to file a replacement affidavit. The Applicant opposes the cross-motion. Both
motions were brought under Rule 369 of the Federal Court Rules,
SOR/98-106 (the Rules).
[2]
The relevant facts are these. The Applicant is seeking
judicial review of a decision from the Chairman of the Canadian
Radio-television and Communications Commission (CRTC), Jean-Pierre Blais, dated
April 7, 2015, accepting the recommendations made to him regarding
administrative measures to be put in place to address the results of an
investigation into a harassment complaint filed against the Applicant.
[3]
The Applicant, a Commissioner of the CRTC, is primarily
challenging the process that led to the impugned decision. On June 8, 2015, he
swore and served an affidavit in support of his judicial review application. On
August 27, 2015, the Respondent filed an affidavit in response sworn by the
Secretary-General of the CRTC, John Traversy.
[4]
After a number of unsuccessful attempts at
securing a date for an oral examination of Mr. Traversy, the Applicant served
the Respondent with a Direction to Attend requiring Mr. Traversy to attend an
oral examination on October 23, 2015. The Respondent then advised that Mr.
Traversy would not be able to attend as he was on medical leave. Mr. Traversy
did not in fact attend the oral examination scheduled for October 23,
2015.
[5]
On November 3, 2015, the Applicant moved to have
Mr. Traversy’s affidavit struck out from the Court record under Rule 97 of the
Rules, on the basis of Mr. Traversy’s failure to attend the oral
examination. In the alternative, the Applicant sought an order that the
Chairman of the CRTC, Mr. Blais, attend for cross-examination on behalf of the
Respondent.
[6]
As indicated previously, the Respondent reacted
to the Applicant’s motion by consenting to the removal of Mr. Traversy’s
affidavit from the Court record and by seeking leave to file the affidavit of
Helen McIntosh, former Director General of Human Resources at the CRTC for the
purpose of replacing the Traversy affidavit.
[7]
According to subsection 18.4(1) of the Federal
Courts Act, RSC, 1985, c F-7, judicial review proceedings are summary
proceedings. They are procedurally governed by Part V of the Rules. Pursuant to
Rules 306 and 307, each party’s evidence consists of affidavit evidence and
Rule 308 confers on each party the right to cross-examine the other side’s
deponent(s) within the stipulated timeline.
[8]
The general rules governing cross-examination on
affidavits are found at Rules 87 to 100. Rule 97, in particular,
provides that where a person fails to attend an oral examination, as was the
case here, the Court may either (i) order the person to attend or re-attend, as
the case may be, at his or her own expense, (ii) strike all or part of the
person’s evidence, including an affidavit made by the person, or (iii) dismiss
the proceeding or give judgment by default, as the case may be.
[9]
The authority granted by Rule 97 is
discretionary (LS Entertainment Group Inc v Formosa Video (Canada) Ltd,
2005 FC 1347, at para 49, 281 FTR 99) but as a general rule, affidavits will be
struck if the deponent does not appear for cross-examination and replacement
affidavits will not be allowed unless there are justifiable grounds (Nedship
Bank NV v Zoodotis (The), 184 FTR 308 at para 2, 98 ACWS 3(d) 279). In Bayer
AG v Apotex Inc 154 FTR 229, 82 ACWS (3d) 566, the Court held, at paragraph
11 of the decision, that in considering procedural disputes such as this one, each
case turns on its own facts and the Court must have regard to fairness and the
expedition of proceedings. This is consistent with the Rules’ interpretative
guiding principle found at Rule 3, which states that the Rules must be
interpreted and applied “so as to secure the just, most
expeditious and least expensive determination of every proceeding on its
merits.”
[10]
In support of its cross-motion, the Respondent
claims that allowing the McIntosh affidavit would cause no prejudice to the
Applicant whereas refusing it would be seriously prejudicial to the Respondent
and would deny the Application Judge a full evidentiary record upon which to
determine the issues raised by the Applicant’s judicial review application. In
particular, the Respondent contends that the McIntosh affidavit (i) confirms
and supports the Traversy affidavit, a brief and straight-forward affidavit
tendered primarily for the purposes of providing evidence on the selection process
that led to the appointment of the harassment investigator, (ii) raises no new
issues and (iii) would not cause any significant delay in the proceedings as it
can be served immediately upon leave being granted, and that cross-examination
can be held within a reasonable period of time thereafter. The
Respondent further contends that if leave is denied, there will be a lack of
evidence in response to the Applicant’s judicial review application, which can
hardly be justified by the simple unavailability of its original affiant for cross-examination
in the circumstances of this case.
[11]
The Respondent submits that these are ample
grounds justifying an exception to the general rule against replacement
affidavits.
[12]
The Applicant claims that the cross-motion ought
to be dismissed since:
a. there are no justifiable grounds for Mr. Traversy’s refusal to
attend cross-examination as no evidence was provided in support of the
contention that Mr. Traversy is too ill for examination;
b. even if there were, leave to file the McIntosh affidavit should be
denied as (i) he has already been prejudiced by the delay caused by Mr.
Traversy’s refusal to attend cross-examination and would continue to suffer
prejudice by the further delay resulting from the filing of the McIntosh
affidavit; and (ii) he would be prejudiced by said affidavit given that Ms.
McIntosh has no knowledge of anything whatsoever that occurred after the
selection of the investigator and thus cannot speak at all to the majority of
the issues that form the basis of the present judicial review application.
[13]
I do not agree with the Applicant.
[14]
First, I find that the failure to provide
evidence of Mr. Traversy’s condition is not fatal to the Respondent’s
cross-motion. The issue here is not whether the Traversy affidavit should remain
on file despite the fact that Mr. Traversy failed to attend cross-examination since
the Respondent consents to the removal of that affidavit from the record. In
other words, the Respondent is not seeking an exception to the general rule
that an affidavit will be struck if the deponent does not appear for
cross-examination. Although it would have been preferable to find such evidence
on record, the fact that none was submitted is not, in and of itself,
sufficient to dismiss the cross-motion in the particular circumstances of this
case.
[15]
Second, the end-result of the Applicant’s
opposition to the cross-motion is to deprive the Respondent of any possibility
to file evidence in response to the judicial review application. This seems to
me to be a too drastic and unfair outcome given the nature of the proceedings -
a judicial review of a decision taken in the context of the implementation of
government and CRTC’s policies on harassment prevention and resolution in the
workplace – and the nature of the evidence at stake, which is institutional in
nature. Mr. Traversy is an institutional witness, not a party to the present
proceedings. So is Ms. McIntosh. Again, the dispute about the replacement of
the Traversy affidavit by the McIntosh affidavit is a procedural dispute which
must be decided having regard to the fairness and the expedition of the
proceedings.
[16]
It is a fact that this dispute has delayed the
proceedings and could have a further delaying effect if the cross-motion is
granted but this is certainly not to a point where it could reasonably be said that
the position of the Applicant in these proceedings is prejudiced or jeopardized.
The proceedings were initiated about six months ago, the Respondent has
indicated that it is in a position to serve the McIntosh affidavit immediately
upon the cross-motion being granted and cross-examination of Ms McIntosh could
be held within a reasonable period of time thereafter. I fail to see how this
schedule of events could be prejudicial to the Applicant.
[17]
I am not persuaded either that the Applicant would
be prejudiced by the McIntosh affidavit on the basis that Ms. McIntosh has no
knowledge of anything whatsoever that occurred after the selection of the
investigator and thus cannot speak at all to the majority of the issues that
form the basis of the present judicial review proceedings. As indicated
previously, the 7-page Traversy affidavit was tendered primarily for the
purposes of providing evidence on the selection of the harassment investigator.
The McIntosh affidavit is consistent with the Traversy affidavit in this
respect. Ms. McIntosh, in her capacity of Director General of the CRTC’s Human
Resources Department provided advice to Mr. Traversy on this very issue and was
directly involved in the selection process. Although Mr. Traversy,
according to his affidavit,
had personal interactions
with the Applicant and the complainant and had a greater involvement in the
matters in issue in this judicial review application, Ms. McIntosh appears to
be as knowledgeable and well-versed regarding the selection process and, in
this respect, a proper substitute to Mr. Traversy. The McIntosh affidavit
raises, in this regard, no new issues.
[18]
The fact that the McIntosh affidavit does not
cover facts forming the basis of the Applicant’s judicial review application,
as does for that matter the Traversy affidavit, is of no avail to the
Applicant. As the Respondent correctly points out, it is entitled to choose
which facts and evidence it will file and rely on in response to the
application. As such, the Respondent was - and is still – not required to
provide evidence on the majority, or even any, of the facts that form the basis
of the said application (Merck & Frosst Canada v Canada, [1994] FCJ
No. 662 at para 26 (FCA); Tajgardoon v Canada, [2000] FCJ No. 1450, at
para 12 (FCTD)). In other words, the Applicant is expected to make his own case
on his own evidence. Cross-examination on affidavit, contrary to the discovery
process applicable in proceedings brought by an action, is limited in scope. It
does not allow the Applicant to make his case beyond the relevant matters
arising from the affidavit itself (Merck & Frosst Canada, above at
para 26). At the end of the day, it will be up to the Application judge to
determine whether the Respondent’s evidence, in light of the entire record,
support its contention that the Applicant’s judicial review application should
fail.
[19]
In such context, I find that the filing of the
McIntosh affidavit would not be prejudicial to the Applicant.
[20]
Both the motion and the cross-motion are therefore
granted. The McIntosh affidavit shall be served by December 22, 2015, and Ms. McIntosh’s
cross-examination shall be completed within 20 days of service of the affidavit
or within such timeline agreed upon by the parties.
[21]
The Applicant is entitled to his costs on his
motion to strike the Traveresy’s affidavit in any event of the cause, including
the costs of preparing and attending the cross-examination scheduled for October
23, 2015. The Applicant’s request that the Respondent be ordered to pay for any
subsequent cross-examination is denied.
[22]
The Respondent is not seeking costs on the
cross-motion. None will be awarded.
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