Sierra Club of Canada v. Canada ( Minister of Finance )
T-85-97
Hargrave P.
11/12/98
22 pp.
Sierra Club applying to require reattendance of John Mundy for further cross-examination on affidavit; Atomic Energy of Canada Limited (AECL) applying to strike out various affidavits allegedly containing irrelevant material, opinion, argument, legal conclusions and hearsay-Sierra Club's application alleging breach of duties when ministers of federal government failed to ensure Canadian Environmental Assessment Act environmental assessment done in respect of construction in China of two CANDU reactors-At Sierra Club's initial examination of Mundy, solicitors instructing him not to answer questions on certain documents on basis of relevancy-(1) In applying concepts that deponent must answer questions relating to all of issues, both those within four corners of affidavit, and those relevant to determination of issue in respect of which affidavit filed, but stopping short of examination for discovery, must keep in mind fundamental principle, as to condition for receipt of evidence, that evidence, if relevant, ought to be admitted unless some applicable exclusionary rule-Discretion to reject evidence must be exercised cautiously, for often proper determination can only be arrived at once all relevant law, fact thoroughly canvassed, task best left to trial judge-Must balance undue delay by reason of multiplicity of documents and lengthy cross-examination on affidavits and documents against desirability judge, hearing eventual application on merits ought to have all of relevant, material information to make proper decision-R. 91(2) requiring deponent of affidavit, upon cross-examination, to produce all documents relevant to application, motion-Concept reiterated in r. 94(1), subject to such relief from production as Court, on motion, might grant-No exclusionary rule preventing putting apparently relevant document to witness in order to see if witness knows of document or recognizes it, and if answer affirmative, crossexamination ought to follow and in that way material might, subject to final discretion of trial judge, become evidence in case-Documents found in exhibits "B" through "G" should be put to Mundy, who would be able to authenticate them by reason of his either writing them or receiving them-May form basis for cross-examination of Mundy-Documents relevant to determination of issues; cross-examination thereon will not unduly delay proceeding; may be required so that may have all of information needed to reach proper decision-Witness ordered to reattend for cross-examination on exhibits "B" through "G"-(2) Discretion to strike out affidavits ought to be exercised sparingly-To maintain efficiency of judicial review proceedings, parties ought not to be permitted to strike out each other's affidavits-Exceptions: if affidavit abusive or clearly irrelevant, or if party obtaining leave to admit evidence proving to be inadmissible, or if Court convinced admissibility should be considered at early date so that eventual hearing may proceed in orderly manner, affidavit may be struck out-As to striking out part of an affidavit, appropriate if possible to separate admissible from non-admissible portions of affidavit-Substantial portions of affidavits hearsay-Federal Court Rules, 1998, r. 81(1) now requiring affidavits be confined to facts within knowledge of deponent, except on motions-Former R. 332(1) confined affidavits to such facts as witness able of own knowledge to prove-No substantial difference between wording of past, present rules-Shades of meaning between proving fact through one's own knowledge, confining testimony to facts within one's own personal knowledge-Hearsay evidence admissible on principled basis, governing principles being reliability of evidence and its necessity-Unreasonable to say shading of meaning, largely illusory in difference, sufficient to bar admission of hearsay evidence-Some paragraphs of Elizabeth May's affidavits struck out as unacceptable opinion, legal conclusion, conjecture, speculation-Motions to strike other affidavits denied-Federal Court Rules, 1998, SOR/98-106, rr. 81(1), 91(2), 94(1)-Federal Court Rules, C.R.C., c. 663, R. 332(1).