PRACTICE |
Evidence |
Commission Evidence |
Dene Tsaa First Nation v. Canada
T-705-97
2002 FCT 838, Hugessen J.
31/8/02
7 pp.
Motion for examination of potential witness on commission pursuant to Federal Court Rules, 1998, r. 271--Motion allowed--Factors to be considered: health, availability of proposed witness; likelihood evidence will be important at trial, justice would be defeated if witness no longer available when trial took place--Potential witness 89 years old with history of heart troubles, at least one heart by-pass and open-heart surgery--While age not sufficient to justify order, age plus history of serious medical condition sufficient to tip balance in favour of making order--Contrary to obiter in Sawridge Band v. Canada (1994), 109 D.L.R. (4th) 364 (F.C.T.D.), medical evidence not necessary on motion of this sort--Evidence of potential witness himself as to age, health sufficient on motions--Witness' interest, real or perceived, in outcome of case, failing memory not reasons to refuse commission; matters going to credibility of witness--Witness' evidence may be crucial--Witness' evidence should be videotaped where now lives, at Fort Nelson, about 1000 kilometres away from both Calgary, Vancouver, nearest Federal Court centres--Order made de bene esse--If witness still alive, available at time case comes on for trial, even if he cannot travel from Fort Nelson, Court will have to make arrangements to go to Fort Nelson to take his evidence--No purpose served by having judicial officer present at examination of witness; objections to be noted on record and questions answered under reserve of objection--Court will try to make itself available for telephone conference to deal with objections based on privilege or of similar type--Federal Court Rules, 1998, SOR/98-106, r. 271.