Jerome, ACJ:—When this matter came on for trial at Victoria, BC, on March 9, 1983, two preliminary motions were raised on behalf of the plaintiff, the first seeking a determination that because of the failure of the Crown to plead specific assumptions made by the Minister, the onus of proof should rest with the Crown. After argument, I rejected the motion and called upon the plaintiff to proceed. I do not consider this to be a final decision appealable under the Rules of the Federal Court and accordingly, no formal order will issue.
The plaintiff then applied to call as a witness, an assessor in the employ of the Crown, in accordance with the prevailing practice in the Supreme Court of British Columbia. My initial disposition was to either reject the application or to defer it until I was satisfied that the Crown was not prepared to call the witness, but after careful consideration of extensive argument from both sides, I reached the conclusion that the plain language of rule 5 entitles the plaintiff to the benefit of British Columbia practice since it lies in an area in which Rules of the Federal Court could properly have been written. I also acceded to the request of the parties that the trial be adjourned to permit an immediate appeal. Having now examined the transcript of the proceedings and for the purpose of an expedited appeal, I am satisfied that the transcript serve as my reasons for both decisions.
IT IS THEREFORE ORDERED THAT the plaintiff in the within proceeding shall be at liberty to call as a witness an employee of the Crown, in accordance with Rule 40 of the British Columbia Supreme Court Rules of Practice.
[Extract from transcript of proceedings of March 9, 1983]
THE COURT: I had thought earlier in the argument that I would have the luxury on this one of being able to reserve the matter, as I indicated I wanted to do with the other point. I indicated that I would like to be able to do that, to stand this down and require the plaintiff's counsel to go on with the evidence and then to see whether or not he was going to be prejudiced in carrying on this trial by the lack of an assurance that this witness was going to be called, and if called by the Crown, subject to cross-examination by plaintiff’s counsel.
However, I don’t think, on reflection now after listening to the argument, I really don’t think I have that luxury. The point is more fundamental, and I think it has to be decided before we go on with the trial. The first question I have to answer is whether or not Rule 5 of the Federal Court Rules covers this situation. That would be, does it deal with it one of the two ways set out in Rule 5. First of all, is it covered by the Federal Court Rules; it is not in my view.
The second is is it covered by any other Act of the Parliament of Canada? If so, it would be covered by section 9 of the Canada Evidence Act.
In my view, section 9 of the Canada Evidence Act does not deal with the practice established or permitted by Rule 40 of the British Columbia Rules. What it deals with is the rights that counsel has in terms of his own witness or his or her own witness, and what must take place before that witness is declared to be hostile, and therefore, in turn, certain other consequences that follow. I distinguish that from the British Columbia Rule which has a different intent, and that is to permit not only the calling of a witness that falls within that category, but also as of right the treatment of that witness as though and for all intents and purposes he were a hostile witness.
I say that there’s a distinction between the two of them because for the British Columbia Rule 40 to apply, the witness must first fall in that category and I take that as a distinction from section 9 of the Canada Evidence Act, which deals with any witness called by a party. They have different intent, different language, and therefore, I find that the situation embraced by Rule 40 of the British Columbia Rules is not the same one as covered by section 9 of the Canada Evidence Act.
Therefore, returning to the language of Rule 5 of the Federal Court, it seems to me that the first two conditions are met, and that is that it is not covered by a rule of this Court specifically, and it is not covered by any other Act of the Parliament of Canada.
In respect to Mr Chambers’ argument about whether or not we are dealing here with evidentiary or substantive matters, it seems to me that Rule 46 or paragraph 46(1 )(a), subparagraph v clearly permits the Court to make rules governing the taking of evidence before a judge during a trial. Therefore, I conclude that the answer to the question could the Federal Court of Canada enact a rule like section 40 or similar to Rule 40 of the British Columbia Supreme Court Rules, my answer to that is yes, it could do so.
That being the case, since it could do so and hasn’t, then it seems to me that we are in a situation contemplated by Rule 5. We are in an area of practice and procedure or evidence as contemplated by paragraph 46(1 )(a), subparagraph v, which could be covered by the Rules of the Federal Court and is not, and is addressed by an analogous rule in the Supreme Court of British Columbia.
Therefore, in my view, the plaintiff, upon his application for directions is entitled to a direction that, for the purposes of this trial, an analogous procedure to that set out in the British Columbia Supreme Court Rule 40, should be followed, and that the plaintiff is entitled to call a witness that falls within that Rule and to examine him in the manner described or covered by that Rule.