Date: 20040119
Docket: T-39-94
Citation: 2004 FC 72
BETWEEN:
CLIFF BEGG, ROLLIE BEGG, BENTLEY BROWN,
DALE CONACHER, KEITH CONACHER,
LAURIE CONACHER, MILTON CONACHER
and MILES JOHNSON
Plaintiffs
and
HER MAJESTY THE QUEEN IN THE RIGHT
OF CANADA, AS REPRESENTED BY
THE MINISTER OF AGRICULTURE FOR CANADA
Defendant
REASONS FOR ORDER
HARGRAVE P.
[1] This motion for leave to file additional material is a procedural matter arising out of a motion by the Defendant for summary judgment. The summary judgment motion was initially set for 1 May 2002, adjourned to 28 and 29 April 2003 and further adjourned so that the Plaintiffs, who act for themselves, might make one last attempt, with the assistance of case management, to perfect their evidentiary record.
[2] The summary judgment application is, as I say, that of the Crown, as represented by the Minister of Agriculture for Canada, an application by which the Crown seeks to have dismissed the claim of the Plaintiffs in its entirety or, alternatively, to have the claim for damages dismissed and the claim for declaratory relief struck out.
Background
[3] By way of relevant background all outstanding issues were resolved and the documentation and evidence for the summary judgment application were completed, to the satisfaction of the Plaintiffs, with the filing of a further Plaintiffs' affidavit on 11 July 2003. On cross-examination, 10 September 2003, at page 13 of the transcript, Mr. Dale Conacher confirmed that as of that date the Plaintiffs' evidentiary record had been perfected and that Mr. Conacher understood that the Plaintiffs would be allowed to file no further evidence in respect to the summary judgment motion, a matter covered at pages 13 and 14 of the transcript. Given that the April 2003 adjournment, which occurred during the hearing of the summary motion, arose out of reference by Mr. Conacher to material which was not properly in evidence, it is understandable that during the September 2003 cross-examination counsel for the Crown wanted to make certain that the record was in fact complete.
[4] On 30 October 2003 the Plaintiffs tendered three volumes of material, which are volumes in addition to the five volumes which were filed 15 July 2003, all in opposition to the Defendant's summary judgment motion. The additional material consists of
1. Excerpts from a transcript of evidence given by Dr. Maria Koller in 1994 which concerns some aspects of policy bearing on bovine tuberculosis in pigs
2. An unsworn statement, in the form of a letter, "To whom it may concern" and dated 20 October 2003 from Dr. Richard R. McLean, a Saskatchewan veterinary, touching on policies as to the National Tuberculosis Eradication Program and mentioning pigs.
3. The affidavit of Dr. Murray R. Woodbury, the body of which has been sworn, before a notary, apparently at an undisclosed date in 2003, attached to which are a number of exhibits, none of which have been commissioned, dealing with bovine tuberculosis, pigs and game farm animals. This evidence appears to go to negligence on the part of Agriculture Canada.
4. The affidavit of Dr. Jeremy Christopher Haigh which contains 36 pages of curriculum vitae and 3 pages of opinion, properly sworn, with many attached documents, referred to in the affidavit, but none of which have been commissioned by the notary before whom Dr. Haigh swore his affidavit, the Haigh affidavit apparently going to the claim by the Plaintiffs of professional negligence.
[5] This material, contained in three volumes, was tendered at the Federal Court's Saskatchewan Registry and accepted, the registry officials there not being familiar with the summary judgment process, as set out in Rule 214, involving a motion and motion record from the moving party, followed by a responding motion record not later than 10 days before the hearing.
Consideration
[6] As a general proposition, it is for each side to put forward their best case on a summary judgment motion, consisting of the evidence that is reasonably available and which could assist the Court in determining if there is a genuine issue for trial. The time limits set for summary judgment procedure are, as one might expect, relatively brief. Moreover, there is no provision or intention set out in the Rules for augmenting as a right of the records of the parties once they have been filed and there has been cross-examination.
[7] In the present instance the Plaintiffs say that their additional material is in the nature of reports of expert witnesses. Leaving aside that the material, except I think the affidavit of Dr. Haigh, is not in a form which would be accepted as expert evidence, I question whether the affidavits of experts, where the material would be challenged, as is the case here, have any place in a summary judgment procedure. This was certainly the view of Mr. Justice Heald, both in Ault Foods Ltd. v. George Weston Limited (1996) 112 F.T.R. 245 at page 249 and following and Hayden Manufacturing Co. v. Canplas Industries Ltd. (1996) 115 F.T.R.20 at 24 and following. In both instances he refused to deal with the summary judgment applications because of the conflict over the experts' views, observing that expert evidence should be reserved for trial, where the experts can explain their views to the judge and that evidence be tested through viva voce testimony and cross-examination.
[8] Further, additional affidavit material, which a party intends to file after the records have been served and filed and cross-examination completed, ought only to be allowed in when it has met the test for filing supplemental affidavit material derived from Guilaine Côté v. The Queen, an unreported 27 May 1992 decision of Mr. Justice Dubé, in action T-1026-89, referred to in Ruggles v. Fording Coal Ltd. (1999) 168 F.T.R. at 106 and 108 and by Mr. Justice Pelletier, as he then was, in Inverhuron & District Ratepayers' Association v. Canada (2000) 180 F.T.R. 314 at 316.
[9] In Ruggles at issue was the filing of supplemental affidavit material following cross-examination. In Inverhuron Mr. Justice Pelletier looked upon the application to file supplementary affidavit material, in a judicial review application, not merely as an extension of time, but rather as a request to file further evidence when the evidentiary phase of the process was otherwise closed. The test applied in Ruggles and in Inverhuron contains three elements:
(1) Was the information in the affidavit available before the cross-examination?
(2) Are the facts established by the supplementary affidavit relevant to the case?
(3) Might the filing of the supplementary affidavit cause serious prejudice to the other parties?
[10] All three of these elements must be satisfied in order to allow in supplementary affidavit material, however there should be some balancing of these three elements in relation to the material at issue.
[11] In Robert Mondavi Winery v. Spagnol's Wine & Beer Making Supplies Ltd. (2001) 211 F.T.R. 80 Mr. Justice Nadon, as he then was, considered the filing of affidavit material, after cross-examinations had been completed, in detail, referring to various cases including Ruggles (supra) and to the decision of Mr. Justice Lemieux in Salton Appliances (1985) Corp. v. Salton Inc. (1999) 4 C.P.R. (4th) 491. There Mr. Justice Lemiex looked at the issue of supplemental affidavits, after cross-examination, referring to Ontario case law and while he did not cite either Inverhuron or Ruggles, he added what is in effect a gloss on the third part of the Ruggles test:
[18] As I view the law on the point in this Court there is the additional requirement as to the non-availability of the material in the proposed affidavit prior to cross-examination; a supplementary affidavit cannot be a substitute for putting available information to a deponent on cross-examination. A further affidavit is not designed to repair answers which cross-examining counsel wishes he did not get. Moreover, normally, parties are obliged to disclose all available information before cross-examination so as to avoid splitting the evidence.
(Page 497)
[12] In the Mondavi case Mr. Justice Nadon applied the Ruggles test at page 86, noting that all of the factors had to be considered and balanced. I now turn to the elements of the test.
Availability of the Evidence
[13] Leaving aside the confirmation by the Plaintiffs through Mr. Conacher, that the Plaintiffs' evidentiary record was perfected and complete, most recently at page 13 of the 10 September 2003 transcript of Mr. Conacher's cross-examination, the Defendant submits and I accept that the intended affidavit material has always been available to the Plaintiffs. The Defendant takes the position that the Plaintiffs are trying to bolster their case, following cross-examination, something which is not permitted. While that could be the situation, it is better to look at the material itself.
[14] Interestingly the Plaintiffs, in their written argument, submit that the material which they now wish to include in the record, through the supplemental filing, contains no new evidence, but merely an interpretation of evidence based on documents which are presently before the Court. If that is the case, clearly all of the evidence which the Plaintiffs wish to file now could have been put together well in advance of the perfection of the Plaintiffs' motion record in the summer of 2003.
[15] More specifically, the examination in chief of Dr. Koller, the first document which the Plaintiffs wish to include, was done 20 September 1994. It has been available since then to the Plaintiffs and to their previous counsel. I also accept that the Plaintiffs did not put that material to Dr. Koller when she was cross-examined in the present proceedings for five days in 2001. Thus, not only could the material have easily been included in the five volumes of material which presently constitute the record, but also that material should have been put to Dr. Koller, on her cross-examination, in order to properly introduce it as evidence.
[16] The second document which the Plaintiffs wish to include in the supplemental material is a letter from Dr. McLean, in effect an unsworn statement. Leaving aside that the Plaintiffs confirmed, during a case management conference on 28 August 2002, that the Plaintiffs had decided not to examine Dr. McLean and would not be relying on a 21 March 2002 affidavit filed in connection with a refusal by Dr. McLean to provide sworn evidence, I accept that the Plaintiffs have known of Dr. McLean's involvement in this matter since 16 April 1999. Clearly his evidence could have been obtained at an earlier stage, for example by way of examination of Dr. McLean, as a non-party, under Rule 238. Here the Defendant submits that the Plaintiffs did not exercise due diligence for had they done so they could have properly put in material as to the evidence of Dr. McLean with their initial motion record.
[17] The evidence of Drs. Woodbury and Haigh relates to the allegations of negligence made by the Plaintiffs. The Plaintiffs could have provided such evidence at any time. Counsel for the Defendant submits that the Plaintiffs and their former legal counsel chose not to put in evidence of negligence, for it was not relevant to the issue for determination on the summary judgment motion. However, as I say, the evidence of negligence was available well before the evidentiary record of the Plaintiffs was considered complete, served and filed. I now turn to the relevancy of the new material.
The Relevancy of the New Evidence
[18] The Crown submits that the principle remaining issue, for the summary judgment motion on 15 April 2004, is whether provisions of the Crown Liability and Proceedings Act bar the Plaintiffs' action as framed in negligence. I do not see that the evidence of Drs. Woodbury and Haigh, which bears on the negligence itself, has any relevance to the question of whether the action of the Plaintiffs can in fact avoid a bar under the Crown Liability and Proceedings Act.
Serious Prejudice
[19] There are two aspects to the prejudice issue in this instance. First, there is the cost of cross-examining Drs. McLean, Woodbury and Haigh. Counsel for the Defendant points out that the costs would be high and would result in a waste of the resources of the Court. The latter may be correct, however that, in itself, is not prejudice. Moreover, the cost of re-examining Mr. Conacher, on behalf of the Plaintiffs and of examining the witnesses, is a cost that can be reimbursed in money. Thus it falls short of the serious prejudice requirement.
[20] What could constitute serious prejudice is the fact that the summary judgment motion has been adjourned several times since it was originally filed over four years ago. A further adjournment, until the judge who is seized with the summary judgment motion can again be available, constitutes significant prejudice, to say the least, to all concerned. I would go on to accept the submission of counsel for the Defendant that this is particularly so in that the material has no relevance to the determination of the motion for summary judgment.
CONCLUSION
[21] I must weigh the result of the application of the three elements of the test before concluding whether the supplemental material should or should not be filed.
[22] Clearly the material was available so that it could easily have been included when the Plaintiffs put their best foot forward and served and filed their motion record. Second, nothing in the material presented by the Plaintiffs convinces me that the new material is relevant to what is presently at issue. All the more so given the admission of the Plaintiffs that the documents which they wish to file contain no new evidence.
[23] As to prejudice, I would not go so far as to say that serious prejudice is involved, although a further delay of the motion, which could be for many months, comes close to serious prejudice. Rather I would characterize the prejudice as significant. This falls short of the serious prejudice requirement, yet balancing all three of the requirements from Ruggles, it is clear that the material, a 1994 transcript, the letter of Dr. McLean, the improperly sworn affidavit of Dr. Woodbury and the affidavit of Dr. Haigh ought not to be filed. Thus the motion is denied.
[24] In this instance, the Crown made it clear to Mr. Dale Conacher, when he was cross-examined, in September 2003 that, under the Rules, the Plaintiffs would be allowed no further filing of evidence for the summary judgment motion and Mr. Conacher acknowledged that he understood: see pages 13 and 14 of the 10 September 2003 cross-examination of Mr. Conacher. This bears on costs. However the scale of costs is not touched upon in the written material.
Thus the costs of this motion, payable to the Crown in any event, will be mid-range, Column III.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
January 19, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-39-94
STYLE OF CAUSE: Cliff Begg,and others v Her Majesty the Queen,and others
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Mr. John A. Hargrave, Prothonotary
DATED: January 19th, 2004
WRITTEN REPRESENTATIONS BY:
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Dale C. Conacher
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FOR THE PLAINTIFFS
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Myra J. Yuzak
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FOR THE DEFENDANT
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SOLICITORS OF RECORD:
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