Walker v. Randall, docket T-1103-98

Date: 19980915

Docket: T-1103-98

BETWEEN:

     KATHLEEN HELEN WALKER,

     Applicant,

     - and -

     JOHN CHRISTOPHER RANDALL

     and THE ATTORNEY GENERAL (CANADA),

     Respondents.

     REASONS FOR ORDER

REED, J.

[1]      The applicant seeks to file a reply affidavit to answer the affidavit filed by George Kolk on July 24, 1998. Mr. Kolk resides in Ottawa. The applicant resides in Vancouver. The applicant is acting on her own behalf. While the respondents are willing to consent to an extension of time to allow the applicant to cross-examine Mr. Kolk on his affidavit (the applicant missed the time period prescribed by the Rules), counsel for the respondents took the position that the cross-examination should take place in Ottawa. The applicant says she is unable to go to Ottawa for this purpose and seeks to file a reply affidavit instead of cross-examining Mr. Kolk (presumably her "inability" is linked to the expense and the amount of time that would be required to travel to Ottawa).

[2]      Counsel for the respondents is unwilling to consent to the filing of a reply affidavit without seeing the affidavit that the applicant wishes to file. Counsel for the respondents asserts that it is improper for the Court to grant leave to file a reply affidavit without first reviewing the content of that affidavit to determine whether its filing will serve the interest of justice and assist the Court: two of the three criteria set out in Eli Lilly & Co. et al. v. Apotex Inc. et al. (1998), 137 F.T.R. 226.

[3]      The jurisprudence does not indicate that it is a requirement that the affidavit be in existence when leave to file reply affidavit under what is now Rule 312 is sought. Indeed, the order given in the Eli Lilly case gave the applicants seven days within which to file such evidence (p. 231). If the affidavits were before the Court at the date of the hearing of the request for leave to file them, it would not have been necessary to allow for a further period of time for their filing. Also, the decision in Prouvost S.A. v. Munsingwear Inc. (1992), 141 N.R. 241 (F.C.A.) is not directly relevant. It relates to a request for an extension of time within which to file affidavits when the time for doing so had expired. Indeed, the affidavits in the Prouvost case were not even "reply affidavits" in the same sense as that to which the present motion relates. They were affidavits in reply to the appellant's affidavits which had been filed pursuant to Rule 704, with the appellant's originating notice of appeal, in a trademark appeal case. I quote from Mr. Justice Décary's decision:

[4]      In the present case, delay is not in issue (the respondents have agreed not to hold the applicant to the time limits under the Rules). The applicant has given a good explanation as to why she wishes to file a reply affidavit: expense, distance and time make cross-examining Mr. Kolk difficult. I am not persuaded that it is necessary for the Court to first see the affidavit before leave is granted in order to be able to determine that leave should be granted in accordance with the principles set out in Eli Lilly.

[5]      The respondents are concerned that the reply affidavit that is filed may be an improper one in that it will seek to add to the record before the Court material that was not before the decision maker. If this is the case, the respondents can make that argument on that hearing of the application and the judge hearing the application will either accept or ignore the material, depending upon the validity of the respondents' objection. The respondents of course must be given an opportunity to cross-examine on the reply affidavit that is filed, and the time limits for further steps in the proceeding must be adjusted in accordance therewith.

[6]      Having concluded that this is a proper case in which to allow reply evidence, an order will issue.

                             (Sgd.) "B. Reed"

                                 Judge

Vancouver, British Columbia

September 15, 1998

     FEDERAL COURT TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:              T-1103-98

STYLE OF CAUSE:          Kathleen Helen Walker

                     v.

                     The Attorney General of Canada and others

PLACE OF HEARING:          Vancouver, BC

REASONS FOR ORDER OF REED, J.

dated September 15, 1998

APPEARANCES:

SOLICITORS OF RECORD:

     Deputy Attorney General

     of Canada