Date: 20051021
Docket: T-626-96
Citation: 2005 FC 1432
Ottawa, Ontario, October 21, 2005
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
HUSSEIN FARZAM
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] In this motion, the Plaintiff seeks an order from the Court to allow the introduction of two documents as direct evidence at the trial of this action, which is set to begin on October 24, 2005, less than three days from the issuance of the present reasons for order and order.
[2] An understanding of the facts is necessary before examining the present motion. The following facts are not in dispute.
FACTUAL BACKGROUND
[3] On March 28, 1984, the Plaintiff and Mrs. Esmat Mohiti were married in Iran. The Plaintiff was in the Shomeli refugee camp in Iraq from 1984 to 1988. On October 26, 1988, he arrived in Canada on a Minister's Permit. However, he did not have permanent residence status. On November 5, 1991, the Plaintiff was granted landed immigrant status.
[4] On June 30, 1992, the Plaintiff's sponsorship application for his wife, including the undertaking of assistance, was approved and forwarded to the Damascus office of the Defendant. The Damascus office received the sponsorship application on July 29, 1992. Nonetheless, on June 4, 1993, the Damascus office sent a telex to the Plaintiff's wife, Mrs. Mohiti, stating that the Plaintiff had not submitted the undertaking of assistance.
[5] Sometime in late December 1993, Mrs. Mohiti apparently divorced the Plaintiff in Iran.
[6] On January 10, 1994, a Minister's permit was issued by the Canadian embassy in Damascus for Mrs. Mohiti to come to Canada.
COURT PROCEEDINGS
[7] On August 4, 1995, a statement of claim was filed by the Plaintiff in the Ontario Court (General Division) under file no. 93311/95. The Plaintiff was seeking damages as a result of the defendant's alleged negligence regarding the processing of his and his former wife's immigration files. On November 17, 1995, Soublière J. issued an order staying the proceedings under section 106 of the Courts of Justice Act, R.S.O. 1990, c. C-43.
[8] On March 14, 1996, the Plaintiff filed a statement of claim in the Federal Court, Trial Division (as it then was), in which he sought damages as a result of the defendant's alleged negligence relating to the processing of both his and his former wife's immigration files. Since August 10, 1999, Hugessen J. has acted as case management judge. Aronovitch P. assisted him in the proceedings.
[9] On September 16, 2002, the Defendant filed a motion for summary judgment in which it was argued that there was no genuine issue for trial. Essentially, the motion was based upon limitation periods having expired when the action was brought. The motion was allowed in part by Hugessen J. on February 10, 2003. An appeal by the Plaintiff was dismissed by the Federal Court of Appeal on October 29, 2003 following a status review.
[10] In his reasons, Hugessen J. took the view that the action of the Plaintiff could be divided into three distinct claims, all involving negligence. The first claim was based on alleged misrepresentations made to the Plaintiff by an immigration official outside of Canada, prior to the Plaintiff ever coming to Canada. The second claim was based upon an alleged loss of employment opportunities due to the Plaintiff's treatment as a refugee claimant, which precluded him from employment without authorization. The third claim dealt with damages resulting from an alleged marriage breakdown due to the Defendant's alleged negligent actions; this resulted in the Plaintiff allegedly suffering depression.
[11] In effect, the order rendered by Hugessen J. restricted the Plaintiff's action in the following manner: while his first two claims were found to be out of time because of limitation periods, the Plaintiff could still rely on his third claim, but only insofar as damages based on acts or omissions by officials of the Defendant committed outside Canada:
Now, turning to the claim or that part of the claim based upon the acts and omissions of the defendant and its officials in dealing with the request that the plaintiff's wife come to Canada, there is evidence upon which the Court might find that the delay in dealing with the wife's application was due to negligence in either the Tehran or Damascus offices of the defendant. Immigration Officials in those offices do not enjoy the protection of the Ontario Public Authority Protection Act in respect of acts or omissions done by them in those offices. Accordingly, that part of the claim which is based upon alleged negligence by officials in overseas offices of the Department appears to be timely and should not be dismissed.
However, the claim must be limited to acts or omissions by officials of the Department committed outside Canada, and that part of it, which may be based upon acts or omissions of officials in Ontario, must likewise be dismissed.
[12] Following a pre-trial conference, Madam Prothonotary Aronovitch summed up, in her order dated February 1, 2005 by reference to the above order of Justice Hugessen, the factual and legal framework applicable to the case at bar:
a) Whether, in the circumstances of this case, a prima facie duty of care was owed to the Plaintiff regarding the processing of his wife's application?
b) Whether the actions or omissions of CIC officials acting outside of Canada breached the applicable duty of care regarding the handling and processing of Mrs. Mohiti's file?
c) In the event that liability can be established, what is the appropriate quantum of damages?
d) Is the successful party entitled to costs, and if so, in what amount?
[13] The parties having indicated their readiness to proceed at the earliest available opportunity for 12 days to be set aside, Lutfy C.J. issued on March 16, 2005 an order in which he set out the trial date as October 24, 2005, to be heard in Ottawa. This was nearly seven months ago.
[14] In order to simplify the issues and to resolve all procedural matters that may facilitate the trial, a trial management conference was held at the initiative of this Judge on October 12, 2005. At this occasion, the Court was informed that the Plaintiff had made arrangements on July 25, 2005 to have interpreters available for the trial. It also appears that on August 5, 2005, the Plaintiff had served and filed a motion to order the Administrator to issue subpoenas to facilitate the entry in Canada of family members who reside in Iran. The Plaintiff submitted then that these witnesses would likely testify on Mrs. Mohiti's reasons to divorce and remarry another man. Indeed, on August 18, 2005, Prothonotary Aronovitch issued an order to compel the appearances of Razia Farzam, Hassan Farzam and Goulsom Farzam. However, on October 3, 2005, Mr. Hassan Farzam, the Plaintiff's brother and Mrs. Razia Farzam, the Plaintiff's mother (collectively "the Iranian witnesses"), were denied entry to Canada by Canadian immigration officials. At the conference, Plaintiff's counsel expressed his client's desire to have the trial adjourned pending judicial review proceedings in order to force the Minister to deliver visas to the Iranian witnesses. Incidentally, the Plaintiff does not intend to call his sister, Mrs. Goulsom Farzam, or Mrs. Mohiti as witnesses at the trial. The Court was advised by counsel that Mrs. Mohiti had apparently cut off all communication with the Plaintiff and that her new husband would not likely permit her to testify in this case. The Court was also informed by counsel that the parties were currently in the process of preparing a joint book of documents and of finalising an agreed statement of facts, already overdue. In any event, this statement, at the insistence of the Defendant, would not include any admission on the content of the testimonies of the Iranian witnesses. Moreover, the Defendant was not ready to admit that Mrs. Mohiti had divorced the Plaintiff in 1993 as a direct result of the delays and alleged errors made by the immigration officials employed by the Defendant at the Damascus and Tehran offices. In view of all this, Plaintiff's counsel expressed the desire to be permitted to present a motion for alternative means to introduce evidence.
[14] Further to the representations made by counsel on October 12, 2005, I issued the following directions:
The parties are to file their agreed statement of facts by 4:00 pm on 12 October 2005. The parties shall file a joint book of documents by 4:00 pm on 13 October 2005. The Plaintiff shall serve and file any motion to adjourn the trial of this action by no later than 4:00 pm on 13 October 2005. The motion is to be in writing and to the attention of the Chief Justice. The defendant's responding motion record is to be served and filed by 4:00 pm on 14 October 2005. Any reply on behalf of the Plaintiff should be served and filed by 4:00 pm on 17 October 2005. It is also directed that should the Plaintiff wish to bring any motion for alternative means to introduce evidence, it should be served and filed within the same time limitations as those concerning the motion to adjourn the trial.
[15] Indeed, on October 13, 2005 the Plaintiff filed a motion for adjournment in order to seek leave for judicial review of the Defendant's decision to deny entry to the Iranian witnesses, which would allow them to attend the trial or to obtain evidence by alternate means. Concurrently, the Plaintiff brought the present motion.
[16] On October 18, 2005, Lutfy C.J. dismissed the motion for an adjournment and ordered that all other issues, including the issue of the costs of said motion, be referred to the trial judge.
THE PRESENT MOTION
[17] The Plaintiff claims that he has in his possession two documents from Mrs. Mohiti which provide evidence of the cause of the divorce she apparently sought in December 1993. The first of these documents is a declaration apparently witnessed by a notary public in Iran, dated October 3, 1996 (the 1996 document). The second document is a letter apparently signed by Mrs. Mohiti, dated April 13, 1993, and apparently addressed to the Plaintiff (the 1993 document). Both documents are written in Farsi. The Plaintiff wishes to have these two documents, together with their translations in English, entered as direct evidence at the trial.
[18] The Plaintiff brings this motion under Rule 286 of the Federal Courts Rules, 1998 SOR/98-106 (the Rules) which reads as follows:
| 286. The Court may, before trial, order that evidence of any fact be given at the trial in such a manner as may be specified in the order, including
(a) by statement on oath of information or belief;
(b) by the production of documents or other material;
(c) by the production of copies of documents; or
(d) in the case of a fact that is or was a matter of common knowledge either generally or in a particular district, by the production of a specified publication containing a statement of that fact..
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286. La Cour peut, avant l'instruction, ordonner que la preuve d'un fait particulier soit présentée à l'instruction de la manière précisée dans l'ordonnance, notamment :
a) par une déclaration sous serment de renseignements ou d'une croyance;
b) par la production de documents ou d'éléments matériels;
c) par la production de copies de documents;
d) dans le cas d'un fait notoire ou d'un fait connu dans un district particulier, par la production d'une publication particulière qui relate ce fait.
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[19] The Plaintiff alleges that the 1993 document demonstrates Mrs. Mohiti's "impatience" as well as "her growing frustration with and doubts about the delays for her immigration process". The Plaintiff also alleges that the 1993 document demonstrates that Mrs. Mohiti was "being told by other persons seeking visas to Canada that the sponsorship process did not take four years to be completed". As for the 1996 document, the Plaintiff submits that it constitutes proof of the fact that Esmat Mohiti divorced him as a direct result of 1) the delays and errors in processing of her admission to Canada and 2) the failure of the Defendant's representatives to take timely steps to rectify these delays and errors. Traditionally, the rule against hearsay renders inadmissible written statements that are tendered as proof of the truth or as proof of their content. In this case, the Plaintiff has recognised that the two documents at issue could not, under the traditional rule, be entered as direct evidence at trial.
[20] It is manifest that one of the central issues at trial will revolve around the causation of the alleged divorce which occurred sometime in December 1993. Given that it is Mrs. Mohiti who took the initiative to seek this divorce, the best witness to give evidence to the Court on this issue would be Mrs. Mohiti herself. She resides in Iran. However, the Plaintiff claims that Mrs. Mohiti got remarried a few months after she divorced him and that she has been unwilling to participate in the trial. He also claims that even if she had been willing to do so, her current husband would have prohibited it.
[21] According to the Plaintiff, exceptions to the hearsay rule have been established when it is impossible or difficult to secure other evidence and when the author of the statement is not an interested party. The Plaintiff claims that Mrs. Mohiti is not an interested party as she never wanted to participate in the trial, and because the two documents at issue amount to be the only evidence she ever gave to the Plaintiff. The Plaintiff submits that the two documents are reliable because Mrs. Mohiti has no motive to fabricate a false statement in favour of the Plaintiff, having nothing to gain from the action at trial.
[22] Further, the Plaintiff claims that the principled approach to hearsay set out in R. v. Khan, [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92, would allow him to enter the 1993 and 1996 documents as direct evidence at trial as they meet the criteria of "necessity" and "reliability". Under the principled approach which has been developed in Khan, a hearsay statement will be admissible for the truth of its contents if it meets the separate requirements of "necessity" and "reliability". In R. v. Hawkins, [1996] 3 S.C.R. 1043 at 1081, 141 D.L.R. (4th) 193, the Supreme Court stated that "[I]f a hearsay statement satisfies these two criteria, the trial judge may put the statement to the trier of fact, subject to appropriate safeguards and to cautions regarding weight.".
[23] The present motion must be dismissed. I find that the evidence at issue in this motion does not satisfy the separate requirements of "necessity" and "reliability". The Plaintiff has failed to satisfy me that he has made reasonable attempts to have Mrs. Mohiti participate in the trial. In this regard, I am simply not satisfied by the laconic reasons advanced by the Plaintiff in his affidavit where he states that he has no contact whatsoever with his former wife and that Mrs. Mohiti's new husband has forbidden her to have any contact with the Plaintiff and his family. Moreover, the Defendant would be severely prejudiced if the 1993 and 1996 documents were admitted as direct evidence at trial.
NECESSITY
[24] It is clear from R. v. Smith, [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590 that necessity relates to both relevance and availability of the hearsay evidence to prove a fact in issue. Necessity for these purposes must be interpreted as "reasonably necessary". In addition, the criterion of necessity must be studied in a flexible manner, capable of encompassing diverse situations where the evidence is not available for a variety of reasons. The necessity of a hearsay statement may arise in a number of situations. As a result, the categories of necessity are not closed.
[25] In R v. F. (W.J.), [1999] 3 S.C.R. 569 at 590-91, 178 D.L.R. (4th) 53 McLachlin J. wrote about the way a court can determine whether the hearsay statement meets the criterion of necessity.
[36] Necessity therefore should not be approached on the basis that the case must fit into a preordained category. It is a matter of whether, on the facts before the trial judge, direct evidence is not forthcoming with reasonable effort. The reasons for the necessity may be diverse - ranging from total testimonial incompetence to traumatic consequences to the witness of testifying.
(...)
[39] We may thus conclude that where it is self-evident that a child's evidence will not be effectively available, the judge may find necessity and, subject to reliability, admit the child's out-of-court statements.
[40] On the other hand, where it is not self-evident from the circumstances that direct evidence will be unavailable with reasonable efforts, the judge may require evidence of that fact. This may be the case where the Crown, without calling the child as a witness, simply states that to call the child would be traumatic to the child. It was in this context that the Court in Khan referred to "sound evidence based on psychological assessments that testimony in court might be traumatic" (p. 546).
[41] It is therefore error to assert that in all cases there must be extrinsic evidence to support the assertion that the out-of-court evidence is necessary under the Khan rule. It is for the trial judge and not the prosecutor to determine necessity. To be sure, the trial judge must have a foundation for ruling that necessity is established. But that foundation may arise either from the facts and circumstances of the case as revealed to the trial judge, or from evidence called by the Crown. Where what occurs at trial satisfies the judge that there is no reasonable prospect of obtaining a meaningful account of the events from the child by direct evidence, the judge may well find necessity on the basis that it is self-evident. Failing this, the judge may ground a finding of necessity in evidence called by the Crown. The unavailability of direct evidence may be self-evident in the case of very young children. But it is not confined to that situation. If the circumstances reveal that the child cannot, for whatever reason, give his or her evidence in a meaningful way, then the trial judge may conclude that it is self-evident, or evident from the proceedings, that out-of-court statements are "necessary" if the court is to get the evidence and discover the truth of the matter.
[26] For the purpose of the present motion, I shall assume that Mrs. Mohiti divorced the Plaintiff sometime in late December 1993 and that she remarried in Iran a few months after obtaining her divorce. The exact circumstances of said divorce have not been alleged by the Plaintiff and it is not clear how and for what particular reasons the alleged divorce was sought, obtained or as the case may be, pronounced by an Iranian court. I will note, however, that evidence of any proceeding or record whatsoever of, in or before any court in a foreign state, may be given in any action or proceeding before this Court by an exemplification or certified copy thereof, purporting to be under the seal of the court in question, without any proof of the authenticity of the seal or of the signature of the justice or any other proof whatsoever (para. 23(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5). No such document has been included in the joint book of documents filed to the Court on October 13, 2005. In any event, what the Plaintiff wishes to enter as evidence through the 1993 and 1996 documents is not the divorce itself but essentially Mrs. Mohiti's reasons for divorcing him sometime in late December 1993. This is one of the most crucial issues which will be contemplated at trial. Evidence of intention is quite different from the evidence required, for example, to show the occurrence of a divorce. Understandably, the causation of the alleged divorce is highly contentious as it arose from the culmination of factual events and/or emotional experiences of Mrs. Mohiti.
[27] The Plaintiff has to demonstrate that the witness is unavailable despite his reasonable efforts to have the witness testify at trial. In the present case, the Plaintiff has stated that Mrs. Mohiti was unavailable to testify as she was unwilling to participate in the proceedings in any way. The Plaintiff suggests that even if she had been willing to do so, her current husband would not allow her to apply for a visa or a passport in order to testify in Canada. However, these statements have been put forward without supporting or credible evidence to this effect. The Plaintiff simply states that Mrs. Mohiti apparently agreed to assist him in 1996 by providing "a declaration regarding her attempts to immigrate to Canada and the case of our divorce". However, the Plaintiff precises that he was advised that "this was the most [Mrs. Mohiti] was willing to do to help me with my case". There is no mention in the Plaintiff's affidavit of any subsequent attempt made at any time by the Plaintiff or his family to secure the cooperation of Mrs. Mohiti or her new husband in this proceeding. In view of their laconic and hearsay character, I afford very little weight to the following general explanations given by the Plaintiff: "[since 1996, Mrs. Mohiti's husband] has barred her from communicating with me and my family. My family was told to desist from contacting Mrs. Mohiti or the police would be called".
[28] The Plaintiff knew for quite some time now that he would need to demonstrate the causation of the divorce, and that the best witness to testify on this issue would have been Mrs. Mohiti herself. It is a fact that Mrs. Mohiti will not be present during the course of the trial. Necessity, however, cannot be inferred solely from the unavailability of the witness during trial. I find that the 1993 and 1996 documents do not meet the necessity requirement. The Plaintiff knew the importance of the evidence establishing the intention of Mrs. Mohiti to divorce him for quite a long time but did not act on it until ten days before trial. The present case has been in case management since at least 1999. The Plaintiff never inquired with the case management judge or prothonotary to issue directions concerning the manner in which he could have dealt with this specific issue. Indeed, the Plaintiff never filed a motion seeking the issuance of a subpoena to require Mrs. Mohiti to testify. The fact that Mrs. Mohiti is apparently unwilling to testify is the main reason advanced by the Plaintiff to introduce hearsay statements. The reasons advanced by the Plaintiff to justify the introduction of the two documents as direct evidence of the motives and causation of the divorce are too few when compared to the prejudice caused to the Defendant. The right to cross-examine the witness on such a crucial issue should prevail under the specific circumstances of this case.
[29] While it is not necessary to rest my finding on the following observations, I will add that before bringing the present motion, there were other possibilities that ought to have been considered or exhausted, while respecting the overall principle stated under Rule 3 of the Federal Court Rules which reads as follows:
| These Rules shall be interpreted and applied so as to secure the just, most expeditious and least expensive determination of every proceeding on its merits.
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Les présentes règles sont interprétées et appliquées de façon à permettre d'apporter une solution au litige qui soit juste et la plus expéditive et économique possible.
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[30] To see but one example, the Plaintiff neither sets out in his affidavit the fact that he has sought or even considered seeking an order to establish a commission for examination outside Canada under Rules 271 and 272 nor his reasons for not doing so:
| 271. (1) On motion, the Court may order the examination for trial of a person out of court.
(2) In making an order under subsection (1), the Court may consider
(a) the expected absence of the person at the time of trial;
(b) the age or any infirmity of the person;
(c) the distance the person resides from the place of trial; and
(d) the expense of having the person attend at trial.
(3) In an order under subsection (1), or on the subsequent motion of a party, the Court may give directions regarding the time, place, manner and costs of the examination, notice to be given to the person being examined and to other parties, the attendance of witnesses and the production of requested documents or material.
(4) On motion, the Court may order the further examination, before the Court or before a person designated by the Court, of any witness examined under subsection (1), and if such an examination is not conducted, the Court may refuse to admit the evidence of that witness.
272. (1) Where an examination under rule 271 is to be made outside Canada, the Court may order the issuance of a commission under the seal of the Court, letters rogatory, a letter of request or any other document necessary for the examination in Form 272A, 272B or 272C, as the case may be.
(2) A person authorized under subsection (1) to take the examination of a witness in a jurisdiction outside Canada shall, unless the parties agree otherwise or the Court orders otherwise, take the examination in a manner that is binding on the witness under the law of that jurisdiction.
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271. (1) La Cour peut, sur requête, ordonner qu'une personne soit interrogée hors cour en vue de l'instruction.
(2) La Cour peut tenir compte des facteurs suivants lorsqu'elle rend l'ordonnance visée au paragraphe (1) :
a) l'absence prévue de la personne au moment de l'instruction;
b) l'âge ou l'infirmité de la personne;
c) la distance qui sépare la résidence de la personne du lieu de l'instruction;
d) les frais qu'occasionnerait la présence de celle-ci à l'instruction.
(3) Dans l'ordonnance rendue en vertu du paragraphe (1) ou sur requête subséquente d'une partie, la Cour peut donner des directives au sujet des date, heure, lieu et frais de l'interrogatoire, de la façon de procéder, de l'avis à donner à la personne à interroger et aux autres parties, de la comparution des témoins et de la production des documents ou éléments matériels demandés.
(4) La Cour peut, sur requête, ordonner qu'un témoin interrogé en application du paragraphe (1) subisse un interrogatoire supplémentaire devant elle ou la personne qu'elle désigne à cette fin, si l'interrogatoire n'a pas lieu, la Cour peut refuser d'admettre la déposition de ce témoin.
272. (1) Lorsque l'interrogatoire visé à la règle 271 doit se faire à l'étranger, la Cour peut ordonner à cette fin, selon les formules 272A, 272B ou 272C, la délivrance d'une commission rogatoire sous son sceau, de lettres rogatoires, d'une lettre de demande ou de tout autre document nécessaire
(2) À moins que les parties n'en conviennent autrement ou que la Cour n'en ordonne autrement, la personne autorisée en vertu du paragraphe (1) à interroger un témoin dans un pays autre que le Canada procède à cet interrogatoire d'une manière qui lie le témoin selon le droit de ce pays.
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[31] Indeed, if an order had been made under Rules 271 or 272, unless a contrary order was made by the Court, the Plaintiff would have been allowed to use Mrs. Mohiti's evidence during the trial:
| 273. Unless the Court orders otherwise, evidence obtained on an examination under subsection 271(1) or (4) may, without further proof, be used in evidence by any party.
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273. Sauf ordonnance contraire de la Cour, toute déposition recueillie à l'interrogatoire visé aux paragraphes 271(1) ou (4) peut, sans autre justification, être invoquée en preuve par toute partie.
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[32] While I recognise that the establishment of a commission for examination outside Canada is a costly and lengthy process, this action was instituted nearly 10 years ago. I note here that there has been no suggestion that the procedure set out in Rules 271 and 272 would be inefficient or that the issuance of a commission and letters rogatory would not be enforced by the Iranian authorities. In these circumstances, it is reasonable to assume that the use of a commission of examination outside Canada could have solved the alleged issue of Mrs. Mohiti's unavailability in a way that would respect the three criteria enunciated under Rule 3.
Reliability
[33] Although the 1993 and 1996 documents do not meet the necessity requirement, I will nonetheless examine the application of the second criterion elaborated in the Khan decision to the facts in the present case. According to the principled approach, a hearsay statement not only needs to be necessary, it also needs to be reliable. Like its necessity counterpart, reliability of the hearsay evidence must be evaluated with reference to the particular facts of the case, subject as the case may be, to appropriate safeguards and to cautions regarding weight.
[34] According to John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworth, 1999) at 197, "[I]t is not essential that the statement be absolutely reliable. Substantial reliability will suffice. (...) Substantial reliability will not be achieved if the hearsay statement is equally consistent with other hypotheses. (...)"
[35] In R. v. B. (K.G.), [1993] 1 S.C.R. 740 at 764, 79 C.C.C. (3d) 257, Lamer C.J. mentioned some of the central "hearsay dangers" while considering the issue of prior inconsistent statements of a witness. These are the following:
1) the absence of an oath or solemn affirmation when the statement was made;
2) the inability of the trier of fact to assess the demeanour and therefore the credibility of the declarant when the statement was made;
3) the trier's inability to ensure that the witness actually said what is claimed; and
4) the lack of contemporaneous cross-examination by the opponent.
[36] Additionally, in Khan at 542, McLachlin J. characterised the reliability of the child's evidence:
The evidence also bore strong indicia of reliability. T. was disinterested, in the sense that her declaration was not made in favour of her interest. She made the declaration before any suggestion of litigation. (...)
[37] I also note that in Hawkins at 1084, Lamer C.J. and Iacobucci J. considered the function of the trial judge to determine whether or not the criterion of reliability had been met:
The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement, and the weight to be attached to it, remain determinations for the trier of fact.
[38] Therefore, in order to determine whether or not the 1993 and 1996 documents exhibit sufficient indicia of reliability, it is vital to first evaluate the specific hearsay dangers raised by the statement, and second to determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. For the purposes of this exercise, I will assume without formally ruling on this point, that the authenticity of the 1993 and 1996 documents has been established by the Plaintiff.
[39] In the case at bar, the particular hearsay statements contained in the 1993 and 1996 documents do not exhibit sufficient indicia of reliability so as to afford this Judge, as trier of fact, a satisfactory basis for evaluating the truth of the statements in question. Looking at some of the hearsay dangers applicable to Mrs. Mohiti's letter dated 1993, it is evident that the document was not sworn under oath, which makes it quite unreliable when it comes to proving the veracity of the representations or actual dealings she may have had with officials of the Defendant outside Canada. As to the declaration made by Mrs. Mohiti in October 1996, it was apparently witnessed by a notary public in Iran. Yet, the declaration in question had been made after the Plaintiff filed its statement of claim before this Court on March 14, 1996. The fact that the Plaintiff had already commenced his lawsuit against the Defendant would be an important factor to explore in cross-examination with Mrs. Mohiti. For example, Mrs. Mohiti could be questioned to determine whether she was told what to say in the declaration, and whether she was asked to leave out any information. This specific issue raises the existence of a danger too grave to allow the document to be entered as direct evidence at trial, unless Mrs. Mohiti is called as witness. At this point, there are no appropriate safeguards in admitting such hearsay evidence, and I fail to see how it could be rebutted at trial by the Defendant whatever ultimate weight is later on attributed by the trial judge.
[40] In the case at bar, the credibility of the contents of the documents is a critical issue. It is obvious from the facts of the case that this Court will not be able to observe Mrs. Mohiti's demeanour on the stand as she will not be testifying at trial. In B. (K. G.) at 792, Lamer C.J. emphasized the handicap of the trier of fact to assess the credibility of the declarant in such circumstances:
When the witness is on the stand, the trier can observe the witness's reaction to questions, hesitation, degree of commitment to the statement being made, etc. Most importantly, and subsuming all of these factors, the trier can assess the relationship between the interviewer and the witness to observe the extent to which the testimony of the witness is the product of the investigator's questioning. Such subtle observations and cues cannot be gleaned from a transcript, read in court in counsel's monotone, where the atmosphere of the exchange is entirely lost.
[41] In this case, the facts surrounding the utterance of the hearsay statements do not offer sufficient circumstantial guaranties of trustworthiness to compensate for the dangers already outlined. Indeed, the Plaintiff's central allegation is that his former wife divorced him due to delays in the processing of her immigration file. The divorce allegedly resulted in his suffering from depression for which he is claiming damages from the Defendant. As such, the cause of the Plaintiff's divorce is an important issue in the trial. In the case at bar, the Defendant is not prepared to admit that Mrs. Mohiti divorced the Plaintiff because of the delays and alleged errors made by representatives of the Defendant working outside Canada. The burden of proof lies on the Plaintiff. As such, it is suggested by the Defendant that Mrs. Mohiti may have decided to divorce the Plaintiff for reasons completely unrelated to her sponsorship application. In this regard, the Defendant suggests that there could be a number of other plausible reasons as to why Mrs. Mohiti would have decided to divorce the Plaintiff. First, she may have been pressured by her father - for whatever reason - to divorce the Plaintiff. Second, Mrs. Mohiti may have simply decided that she no longer wanted to leave Iran and move to Canada to live with the Plaintiff. Substantial reliability cannot be achieved in the case at bar since the hearsay statements are equally consistant with other hypotheses. Accordingly, before the statements made by Mrs. Mohiti in the 1993 and 1996 letters are accepted as direct evidence, the Defendant should be able to cross-examine her at trial on all relevant facts and circumstances.
CONCLUSION
[42] For the reasons stated above, I dismiss the Plaintiff's motion. Considering the result and all relevant factors, the Defendant will be entitled to his costs.
ORDER
THIS COURT ORDERS that the motion for an order allowing the introduction of the 1993 and 1996 documents as direct evidence at the trial of this action, be dismissed with costs in favour of the Defendant.
"Luc Martineau"
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