Date: 200010307
Dockets:IMM-2294-96
IMM-2296-96
IMM-2297-96
Neutral Citation: 2001 FCT 147
BETWEEN:
ATLANTIC PRUDENCE FUND CORPORATION
ATLANTIC GROWTH FUND CORPORATION LIMITED
AB CAPITAL CORPORATION
KLC CAPITAL CORPORATION LIMITED
MOUNT ROYAL CAPITAL CORPORATION
PEI GROWTH FUND CORPORATION
ATLANTIC PRUDENCE MANAGEMENT CORPORATION
GRT MANAGEMENT CORPORATION
ABT MANAGEMENT CORPORATION
KLC MANAGEMENT LTD., MTR MANAGEMENT CORPORATION
and PEI GROWTH MANAGEMENT CORPORATION LTD.
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on February 28, 2001)
HUGESSEN J.
[1] The bulk of the requests made by the applicants in this motion have to do with requests for production of documents addressed to the witness Webber who swore an affidavit on behalf of the respondents. It is common ground that Mr. Webber was, at relevant times, a contract employee of the CIC but is not now such an employee and is in fact working for the World Bank in Washington, DC.
[2] I am quite satisfied that I cannot order a simple witness which is what Mr. Webber is, to produce documents which are not now in his possession, custody or control. To do so, it seems to me, would be to confuse the role of the witness with that of a person being examined for discovery. As I put to counsel during argument, I would test that proposition in a very simple way by looking at the means the Court has at its disposal for enforcing an order to produce documents addressed to a witness. That means is customarily through the compulsion of a contempt order. But I simply could not issue a contempt order against Mr. Webber for failure to produce documents which are not in his possession, custody and control and are in the possession of the Minister. I do not need to reach the question with respect to Mr. Webber as to whether if he were still in the employ of the Minister he is sufficiently highly placed to have what I might call de facto possession, custody or control of documents in the Ministry. That disposes of most of the requests for documents in this motion.
[3] There are few minor items remaining over. The first has to do with some departmental guidelines or policy documents. Mr. Webber, in his affidavit, produced such guidelines. Another respondent's deponent who swore an affidavit and was cross-examined thereon, was asked if there were any other such documents, and if I understand his response correctly, he said that there were. It seems to me that those documents can properly be ordered to be produced and should be so ordered. They are referred to in question 132 addressed to Mr. Myatt.
[4] There were also questions put to Mr. Myatt and to Mr. Bissett who are both, as I say, still employees with the department, in connection with minutes of meetings of the steering committee and the working group of which the applicants do not have copies. In order for me to order the production of such documents, I would have to be satisfied that the documents exist and the evidence is simply not there that such documents do exist. It is quite clear that the applicants have a great many minutes and other documents emanating from the steering committee and the working group and there is no satisfactory evidence as to any gaps in that documentation which would justify an order on my part.
[5] The final point taken was with respect to a question relating to the identity of an informant. I am informed by counsel that an objection was taken under section 37 of the Canada Evidence Act and in any event that objection was renewed before me this morning, and counsel are in agreement that that objection, together with a number of others taken under section 37, are going to be the subject matter of another motion which will be brought on another day. So the order that will go will dismiss the motion but will contain an order that the respondent's witness Mr. Myatt is to produce the document to which he referred in his answer to question 132.
[6] I will deal with the question of cost later.
"James K. Hugessen"
Judge
Ottawa, Ontario
March 7, 2000
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