A-365-86
Amway Corporation (Appellant) (Defendant)
v.
The Queen (Respondent)(Plaintiff)
INDEXED AS: CANADA V. AMWAY OF CANADA LTD.
Court of Appeal, Heald, Mahoney and Stone
JJ.—Montréal, December 1, 2, 3, 4; Ottawa,
December 18, 1986.
Practice — Discovery — Examination for discovery —
Competence and compellability of corporation charged with
offence under Customs Act to attend examination for discov
ery — Corporation witness — Action penal in nature and
corporation person charged with offence — Corporation nei
ther competent nor compellable witness as entitled to protec
tion of Charter and Canada Evidence Act — Federal Court
Rules, C.R.C., c. 663, R. 465(1)(b),(5),(7),(12),(15) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 46(1),(2), 52(b)
— Canada Evidence Act, R.S.C. 1970, c. E-10, ss. 2, 4(1).
Customs and excise — Customs Act — Practice — Corpo
ration charged with Customs Act offence — Competence and
compellability to undergo examination for discovery — Cor
poration witness — Penal action — Availability of Charter
and Canada Evidence Act protection — Customs Act, R.S.C.
1970, c. C-40, ss. 2, 18, 102, 180, 192, 249 (as am. by R.S.C.
1970 (2nd Supp.), c. 10, s. 64(2)), 252 (as am. idem) — Excise
Tax Act, R.S.C. 1970, c. E-13, s. 58 — Canada Evidence Act,
R.S.C. 1970, c. E-10, ss. 2, 4(1).
Criminal justice — Evidence — Corporation charged with
Customs Act offence — Whether compellable to undergo
examination for discovery — Penal action — Corporation
when examined for discovery is witness — Entitled to protec
tion of Canada Evidence Act, R.S.C. 1970, c. E-10, s. 4(1).
Constitutional law — Charter of Rights — Criminal process
— Corporation charged with Customs Act offence —
Compellability to undergo examination for discovery —
Charter s. 11(c) protection applies in absence of "limit pre
scribed by law" — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act, 1982, 1982, c. 11 (U.K.), ss. 1, 11(c).
The appellant, a corporation, is being sued under the Cus
toms Act for failure to report and for smuggling of goods into
Canada. This is an appeal against an interlocutory order of the
Trial Division ordering the appellant to produce one of its
officers for examination for discovery.
Held, the appeal should be allowed.
As the Trial Judge found, although the action is for the
recovery of a penalty by a civil proceeding, this is a penal action
in which the appellant is a person charged with an offence.
The corporation is a witness when examined for discovery.
As such, it is entitled to claim whatever benefit the law provides
it against being compelled to testify. It is therefore entitled to
the benefit of subsection 4(1) of the Canada Evidence Act by
virtue of which a person charged with an offence is not a
competent witness, except for the defence, and is therefore not
a compellable witness for the plaintiff in a civil proceeding.
This is true provided that there are no statutory provisions to
the contrary.
Likewise, the appellant can claim the benefit of the Charter
right not to be compelled to be a witness provided that there are
no reasonable limits prescribed by law that can be demons
trably justified in a free and democratic society. These limits
would be the same as the "statutory provisions to the contrary"
referred to above. But, contrary to what the Trial Judge found,
there are no such limitations in subsection 249(1) or section
252 of the Customs Act, nor in Rule 465. The Trial Judge
therefore erred in finding that the Customs Act and the Rules
of Court operated to make the appellant a compellable and
competent witness in spite of paragraph 11(c) of the Charter
and subsection 4(2) of the Canada Evidence Act.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Chabot, [1980] 2 S.C.R. 985; R. v. Judge of the
General Sessions of the Peace for the County of York,
Ex p. Corning Glass Works of Canada Ltd. (1971), 3
C.C.C. (2d) 204 (Ont. C.A.); R. v. N.M. Paterson and
Sons Ltd., [1980] 2 S.C.R. 679; Klein v. Bell, [1955]
S.C.R. 309.
COUNSEL:
Guy Du Pont and Marc Noël for appellant
(defendant).
Edward R. Sojonky, Q.C. and Michael F.
Ciavaglia for respondent (plaintiff).
SOLICITORS:
Verchère, Noël & Eddy, Montréal, for appel
lant (defendant).
Deputy Attorney General of Canada for
respondent (plaintiff).
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This appeal is taken against the
following interlocutory order of the Trial Division
[[1987] 1 F.C. 3]:
IT IS ORDERED THAT the Defendant, Amway Corporation,
upon an appointment being served upon its solicitors, produce
either Jay VanAndel or Richard DeVos for examination for
discovery.
Neither VanAndel nor DeVos reside in Canada.
An amount of almost $150 million is sought to be
recovered in the action, which deals with transac
tions between January 7 and May 6, 1977, and
similar actions dealing with transactions during
other periods of time.
In an earlier judgment involving the same par
ties and actions, A-915-85, rendered September
15, 1986, I characterized the amounts sought to be
recovered as "duty, sales tax, interest and forfei
ture". This appeal requires a precise characteriza
tion of the nature of the action as three of the four
grounds of appeal are predicated on the theses that
it is a penal action and that the appellant is, in the
action, a person charged with an offence.
That appears to have been the conclusion
reached by the learned Trial Judge who held, at
page 17, that:
... the deemed forfeiture provisions of sections 180 and 192 of
the Customs Act provide for the imposition of a penalty for the
commission of an offence, by means of a civil procedure.
The respondent sought to find a different charac
terization in the following, at pages 24-25:
... this would only excuse the defendants from discovery
insofar as the deemed forfeitures are concerned. They would
not be excused from discovery with respect to the duties and
taxes owing.
It is true that, in paragraph 9 of the statement of
claim, it is alleged that the defendants are liable to
Her Majesty for additional duties of $1,299,119.31
pursuant to section 102 of the Customs Act,
R.S.C. 1970, c. C-40. However, judgment in
respect of that alleged liability is not sought in this
action. The relief sought, in addition to costs and
the usual "such further and other relief", is limited
to "the sum of $9,415,706.66 by way of
forfeiture".
In reaching her conclusion, the learned Trial
Judge carefully considered the pertinent provisions
of the Customs Act, the Excise Tax Act, R.S.C.
1970, c. E-13, and the authorities. I agree with the
learned Trial Judge in the conclusion that the
applicable provisions of sections 180 and 192 of
the Customs Act,* taken with sections 249 [as am.
by R.S.C. 1970 (2nd Supp.), c. 10, s. 64(2)] and
252 [as am. idem], provide for the recovery of a
penalty by a civil proceeding in this Court and, it
follows, that this is a penal action. I also agree
with the reasoning of the learned Trial Judge in
reaching those conclusions.
* The Customs Act, R.S.C. 1970, c. C-40.
18. Every person ... arriving in Canada ... shall
(b) before unloading or in any manner disposing thereof,
make a report in writing ... of all goods in his charge or
custody ... and of the quantities and values of such goods
...and
(c) then and there truly answer all such questions respect
ing the articles mentioned in paragraph (b) as the collector
or proper officer requires of him and make due entry
thereof as required by law.
180. (1) Where the person in charge or custody of any
article mentioned in paragraph 18(b) has failed to comply
with any of the requirements of section 18, all the articles
mentioned in paragraph (b) of that section in the charge or
custody of such person shall be forfeited and may be seized
and dealt with accordingly.
(2) If the articles so forfeited or any of them are not
found, the owner at the time of importation and the importer,
and every other person who has been in any way connected
with the unlawful importation of such articles shall forfeit a
sum equal to the value of the articles ....
192. (1) If any person
(b) makes out or passes or attempts to pass through the
custom-house, any false, forged or fraudulent invoice of
any goods of whatever value; or
(c) in any way attempts to defraud the revenue by avoiding
the payment of the duty or any part of the duty on any
goods of whatever value;
(Continued on next page)
I likewise agree that a defendant in this action is
a person charged with an offence. "Charge" is not
a term of art. The Supreme Court of Canada, per
Dickson J., as he then was, in R. v. Chabot, [1980]
2 S.C.R. 985, at page 1005, said:
As the Supreme Court of the United States observed in United
States v. Patterson ((1893), 150 U.S.R. 65) at p. 68 a criminal
charge, strictly speaking, exists only when a formal written
complaint has been made against the accused and a prosecution
initiated. "In the eyes of the law a person is charged with crime
only when he is called upon in a legal proceeding to answer to
such a charge."
The statement of claim alleges:
5. The Defendants made untrue declarations to Customs con
cerning the fair market value of the goods contrary to the
provisions of Section 18 and 180 of the Customs Act.
6. The Defendants therefore passed false invoices in respect of
the said goods through the Customs House and did thereby
avoid payment of part of the duty properly payable on the said
goods contrary to the provisions of Section 192(1)(b) of the
Customs Act.
An action is a legal proceeding; offences are
charged in the statement of claim; the appellant
was called upon to answer them when the state
ment of claim was served.
A second matter requiring definition, before the
specific grounds of appeal are considered, is the
status of a corporation being examined for discov
ery. Is the corporation, in law, the witness notwith
standing that, of necessity, it speaks through the
(Continued from previous page)
such goods if found shall be seized and forfeited, or if not
found but the value thereof has been ascertained, the person
so offending shall forfeit the value therof as ascertained ....
2. (1) In this Act, or in any other law relating to the
customs,
"value" in respect of any penalty, punishment or forfeiture
imposed by this Act and based upon the value of any goods
or articles, means the duty-paid value of such goods or
articles at the time of the commission of the offence by
which such penalty, punishment or forfeiture is incurred;
The Excise Tax Act, R.S.C. 1970, c. E-13.
58. Where an excise tax is payable under this Act upon the
importation of any article into Canada, the Customs Act is
applicable in the same way and to the same extent as if that
tax were payable under the Customs Tariff.
medium of a human representative? The absence
of authority directly on the point leads one to
suspect that an affirmative answer to that question
has been generally taken for granted. Surely if a
corporation were not accorded a like right to an
individual party not to incriminate itself on discov
ery, there would be jurisprudence to that effect.
The proposed examination for discovery is to be
conducted under the general authority of Rule
465(1)(b) [Federal Court Rules, C.R.C., c. 663].
Rule 465. (1) For the purpose of this Rule, a party may be
examined for discovery, as hereinafter in this Rule provided,
(6) if the party is a corporation or any body or group of
persons empowered by law to sue or to be sued, either in its
own name or in the name of any officer or other person, by
questioning any member or officer of such corporation, body
or group,
and, in this Rule, a party who is being, or is to be, so examined
for discovery is sometimes referred to as the "party being
examined" or the "party to be examined" as the case may be,
and the individual who is being, or is to be, questioned is
sometimes referred to as the "individual being questioned" or
the "individual to be questioned", as the case may be.
(15) Upon examination for discovery otherwise than under
paragraph (5), the individual being questioned shall answer any
question as to any fact within the knowledge or means of
knowledge of the party being examined for discovery that may
prove or tend to prove or disprove or tend to disprove any
unadmitted allegation of fact in any pleading filed by the party
being examined for discovery or the examining party.
While it is the "individual being questioned", it is
the corporation that is the "party being exam
ined". The purpose of an examination for discov
ery is twofold: to ascertain the facts upon which
the party being examined bases its case and to
obtain admissions of fact which may be used in
evidence against the party being examined. Except
where Rule 465(5) applies, and that is not the
present case, the individual being questioned is
required to obtain and give answers outside his
personal knowledge but within that of the party
being examined. Such answers are not evidence at
all insofar as the individual being questioned is
concerned; they are hearsay, but they are the
evidence of the party being examined, the
corporation.
Both R. v. Judge of the General Sessions of the
Peace for the County of York, Ex p. Corning
Glass Works of Canada Ltd. (1971), 3 C.C.C.
(2d) 204 (Ont. C.A.), and R. v. N.M. Paterson
and Sons Ltd., [1980] 2 S.C.R. 679, were con
cerned with the compellability of corporate offi
cers to testify at the trials of their corporations,
not with officers being examined for discovery. In
the former, Arnup IA., for the Ontario Court of
Appeal, contrasted the position of an officer called
as a witness at trial and one being examined for
discovery on behalf of his company, at pages
208-209.
In my view, there are fundamental differences between evi
dence given on examination for discovery of a person produced
by a corporation for that purpose and evidence given at trial by
a witness who is an officer or employee of that corporation. On
discovery, the witness literally speaks for the corporation. He
has been described, as long ago as 1902, as the "mouthpiece" of
the corporation: Morrison v. Grand Trunk R. Co. (1902), 5
O.L.R. 38, 2 C.R.C. 398. The term was adopted, with reference
to a servant of the corporation, by Roach, J., in Fisher v. Pain
et al., [1938] O.W.N. 74 at p. 76, [1938] 2 D.L.R. 753n. As
pointed out by Grant, J., if such a witness does not know the
answer to a relevant question, he must inform himself from
others employed by the corporation or from its records. Con
versely, he may be examined only as to matters coming to his
knowledge as an officer of the corporation. Knowledge which
he has acquired otherwise than as such officer cannot be
explored: Fisher v. Pain, supra.
At the trial, a witness subpoenaed to give evidence, who
happens to be a servant, officer or even president and control
ling shareholder of a corporate accused, is not called upon to
speak "for" the corporation. He is not its "mouthpiece". He is
required to testify as to all relevant facts within his knowledge,
whether those facts were acquired by him during his employ
ment or term of office or were acquired in circumstances
completely unrelated to the corporation. He is in no different
position from a witness who had been in complete charge of the
corporation's affairs for many years, but has retired before the
charge against it was laid. Both must tell what they know, so
far as it is relevant and admissible. Both are entitled to all the
protection that is available to any witness, and in particular, the
protection against self-incrimination found in both the Canada
Evidence Act, R.S.C. 1952, c. 307, and the Ontario Evidence
Act, R.S.O. 1960, c. 125.
At trial the corporation is not a witness. It is not being
"self-incriminated" because one of its managers is giving
damaging evidence in the witness-box.
In my view, cases decided on the obligation of a corporation
to produce documents which might tend to incriminate it are
also distinguishable. The production to be made is that of the
corporation and not that of its officer who swears the affidavit
on production. Here, too, such officer is merely the "mouth-
piece", the spokesman of the written words, on behalf of and as
the corporation.
In R. v. Paterson, at page 691, Chouinard J.,
delivering the judgment of the Supreme Court of
Canada, said:
Finally, I believe that Arnup J.A. in Corning Glass, supra,
has aptly distinguished evidence given on an examination for
discovery by a person produced by a corporation and evidence
given at trial by an employee or officer of that corporation. On
discovery, such an employee or officer is the corporation ....
While, strictly speaking, neither Arnup J.A., nor
the Supreme Court were speaking to the present
circumstances, I find their dicta most opposite.
As to the compellability of its officers to attend
on the examination for discovery, the learned Trial
Judge, at page 38, after considering the Corning
Glass and Paterson decisions, concluded that:
... the only effect of refusing to order the officers of the
corporation to appear for discovery in the present case would be
to postpone the obtaining of their evidence until trial.
With respect, I cannot reconcile that conclusion
with those judgments. I should have thought that
they served to distinguish rather than confound the
nature of testimony of an officer as a witness at his
company's trial and that given as the corporate
party's mouthpiece on discovery.
In my opinion, it is the corporation that is the
witness when it is the party being examined for
discovery. As such, it is entitled to claim whatever
benefit the law provides it against being compelled
to testify and, if under compulsion or otherwise
testifying, against self-incrimination, vid. Klein v.
Bell, [1955] S.C.R. 309, at page 315.
The conclusions of the learned Trial Judge, in
the order dealt with in this appeal, were:
1. The appellant was a compellable witness by reason of
sections 249 and 252 of the Customs Act and the Rules of
Court.
2. The appellant was entitled to claim the right afforded by
section 11 (c) of the Canadian Charter of Rights and Freedoms
but that right had been duly abridged, as contemplated by
section 1 of the Charter.
3. The appellant's common law privilege against self-incrimina
tion in an action for a penalty or forfeiture had been abolished
by section 5 of the Canada Evidence Act, R.S.C. 1970, c. E-10.
The first three grounds of appeal were stated by
the appellant as follows:
1. the judgment appealed from requires the appellant to give
evidence for the respondent and, by virtue of section 4 of the
Canada Evidence Act, the appellant is not competent—and
is, therefore, not compellable—to give evidence in the action
for the respondent.
2. the judgment appealed from requires the appellant to give
evidence for the respondent and, by virtue of section 11(c) of
the Canadian Charter of Rights and Freedoms, the appellant
has a right not to be compelled to give evidence in the action,
which right has not been limited by virtue of section 1 of the
Charter;
3. the judgment appealed from requires the appellant to give
discovery as between parties before trial and the appellant, as
a defendant in the action, which is a penal action, has a right
not to give discovery to the respondent before trial;
As to the first ground of appeal, the pertinent
provisions of the Canada Evidence Act are section
2 and subsection 4(1).
2. This Part applies to all criminal proceedings, and to all
civil proceedings and other matters whatever respecting which
the Parliament of Canada has jurisdiction in this behalf.
4. (1) Every person charged with an offence, and, except as
otherwise provided in this section, the wife or husband, as the
case may be, of the person so charged, is a competent witness
for the defence, whether the person so charged is charged solely
or jointly with any other person.
The learned Trial Judge did not mention section 4
in her lengthy reasons. I assume this argument was
not urged upon her.
At common law, a party to an action was not a
competent witness at all. Vid. The Laws of Eng-
land, Halsbury, First Edition, 1910, Butterworth
& Co., London, paragraph 777, footnote (r). The
competence of a party to be a witness depends on
statute. Subsection 4(1) of the Canada Evidence
Act, which by section 2 applies to the present
proceeding, makes a person charged with an
offence a competent witness for the defence. The
effect of the order in issue is to compel the person
charged to be a witness for the plaintiff. The
person charged with an offence is not a competent
witness, except for the defence, and is, therefore,
not a compellable witness for the plaintiff in a civil
proceeding any more than, in a criminal proceed
ing, that person would be a compellable witness for
the prosecution.
All of that is, of course, subject to any statutory
provisions to the contrary. It will be convenient to
deal with those later, as the same provisions are
relied on as excluding the application of paragraph
11(c) of the Charter [Canadian Charter of Rights
and Freedoms, being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)].
The Charter provides:
11. Any person charged with an offence has the right
(c) not to be compelled to be a witness in proceedings against
that person in respect of the offence;
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
The learned Trial Judge found, at page 34, that:
... paragraph 11(c) applies to the proceedings in the Federal
Court, at least insofar as the "deemed forfeiture" is concerned.
I have already indicated my disagreement with the
conclusion that the proceedings are concerned with
subject matter other than the deemed forfeiture.
Subject to that, I agree with the conclusion of the
learned Trial Judge and her reasons therefore. She
made one observation, at page 33, which merits
repetition by way of emphasis.
I cannot accept that the Crown's right to elect which procedure
it will follow should determine the defendant's constitutional
rights.
Nor can I.
The question now to be dealt with is whether the
constitutional right afforded the appellant by para
graph 11(c) has been limited at all by law. Only if
that is the case does the inquiry move to consider
whether such limitation is reasonable and whether
it can be demonstrably justified in a free and
democratic society. In my view, precisely the same
inquiry will determine whether subsection 4(1) of
the Canada Evidence Act has been made inappli
cable so as to render the appellant a competent
and, hence, compellable witness in the proceeding.
The learned Trial Judge, at page 35, held:
In the first place the limit on the right not to be compelled to
be a witness is clearly "prescribed by law": section 252 of the
Customs Act read together with the Federal Court Act and
Rules, particularly Rule 465.
The balance of her reasons, as they relate to the
question at all, dealt with the other inquiries
required by section 1 of the Charter.
The relevant provisions of the Customs Act are
subsection 249(1) and section 252. The headnote
"Procedure" appears immediately before section
249 and applies as well to section 252.
PROCEDURE
249. (1) All penalties and forfeitures incurred under this
Act, or any other law relating to the customs or to trade or
navigation, may, in addition to any other remedy provided by
this Act or by law, and even if it is provided that the offender
shall be or become liable to any such penalty or forfeiture upon
summary conviction, be prosecuted, sued for and recovered
with full costs of suit, in the Federal Court of Canada, or in any
superior court having jurisdiction in that province of Canada
where the cause of prosecution arises, or wherein the defendant
is served with process.
252. Every prosecution or suit in the Federal Court of
Canada, or in any superior court or court of competent jurisdic
tion, for the recovery or enforcement of any penalty or forfeit
ure imposed by this Act, or by any other law relating to the
customs or to trade or navigation, may be commenced, prose
cuted and proceeded with in accordance with any rules of
practice, general or special, established by the court for Crown
suits in revenue matters, or in accordance with the usual
practice and procedure of the court in civil cases, in so far as
such practice and procedure are applicable, and, whenever the
same are not applicable, then in accordance with the directions
of the court or a judge.
I have already set out Rule 465(1)(b). I do not
believe there are any other provisions of that
lengthy Rule that require recitation for present
purposes. Rule 465 has been made under the gen
eral authority of subsection 46(1) of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10. None
of the subjects specifically dealt with in para
graphs 46(1)(a) to (i) inclusive are relevant to this
inquiry.
46. (1) Subject to the approval of the Governor in Council
and subject also to subsection (4), the judges of the Court may,
from time to time, make general rules and orders not inconsist
ent with this or any other Act of the Parliament of Canada,
(a) for regulating the practice and procedure in the Trial
Division and in the Court of Appeal, including, without
restricting the generality of the foregoing,
(2) Rules and orders made under this section may extend to
matters arising out of or in the course of proceedings under any
Act involving practice and procedure or otherwise, for which no
provision is made by that or any other Act but for which it is
found necessary to provide in order to ensure the proper
working of that Act and the better attainment of its objects.
I have set out subsection 46(2) only because it
seems to complement the provision of section 252
of the Customs Act that an action for a forfeiture
may be conducted under the generally applicable
Rules of Court.
I find nothing in either subsection 249(1) or
section 252 of the Customs Act that expressly
limits the constitutionally guaranteed right of
paragraph 11(c) of the Charter or expressly, or by
necessary implication, limits the application of
subsection 4(1) of the Canada Evidence Act to a
defendant in an action brought in the Federal
Court under the authority of subsection 249(1).
The only way in which such a limitation can be
found is if Rule 465 must be construed as imposing
it. The Rule is undoubtedly law.
I do not think that, on a proper construction,
Rule 465 purports either to render an incompetent
witness competent nor a non-compellable witness
compellable. There is no point in entering into a
lengthy discourse on this subject because, if the
Rule purported to achieve either result, it would,
to that extent, be ultra vires the rule making
authority of subsection 46(1) of the Federal Court
Act which, by its very terms, precludes a valid rule
being inconsistent with subsection 4(1) of the
Canada Evidence Act. Parliament's intention to
empower its delegate to limit a constitutionally
guaranteed right by making rules regulating prac
tice and procedure would, at the very least, have to
be explicitly stated before I should be prepared
even to consider giving such a rule that effect.
In my opinion, the learned Trial Judge erred in
concluding that the Customs Act and Rules of
Court limit the appellant's constitutional right,
under paragraph 11(c) of the Charter, not to be
compelled to be a witness in proceedings against it
in respect of offences with which it is charged. I
am also of the opinion that the appellant is not a
competent witness in these proceedings by reason
of subsection 4(1) of the Canada Evidence Act and
is not, therefore, a compellable witness on its
examination for discovery.
It is, accordingly, not necessary to deal with the
third ground of appeal and I see no useful purpose
to be served by doing so. The appellant is not a
compellable witness; it would be idle to speculate
on its privileges against self-incrimination as if it
were.
It is likewise unnecessary to deal with the fourth
ground of appeal but I think it desirable to do so
briefly. It is entirely unrelated to the other grounds
and turns on the fact that neither of the individu
als named in the order reside in Canada. The
appellant stated it as follows:
... even if the appellant were subject to being compelled to
submit to examination for discovery, the judgment appealed
from is a delegation to the examiner of the power to fix the
"place" for the examination, which power must be exercised by
the Court in a case where the person to be questioned is out of
the jurisdiction as the named officers are.
Rule 465(12) provides:
Rule 465. .. .
(12) Where an individual to be questioned on an examination
for discovery is temporarily or permanently out of the jurisdic
tion, it may be ordered by the Court, or the parties may agree,
that the examination for discovery be at such place, and take
place in such manner, as may be deemed just and convenient.
In my opinion, it is clear that, in the circum
stances, it was not open to the learned Trial Judge,
in effect, to delegate to the examiner, who is
empowered by Rule 465(7) to issue an appoint
ment, the responsibility of selecting the place at
which the examination was to be conducted. The
Court is not obliged to settle the details of the time
and place of the examination but, if the individual
to be examined is not in Canada, the Court must
at least, absent agreement, direct whether the
examination is to be conducted in Canada and, if
not, designate the jurisdiction where it is to
proceed.
I would allow this appeal with costs, set aside
the order of the Trial Division recited above and,
pursuant to paragraph 52(b) of the Federal Court
Act, I would dismiss the application to the Trial
Division with costs.
HEALD J.: I agree.
STONE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.