Date: 20000615
Docket: T-699-00
BETWEEN:
P.S. PART SOURCE INC.
Applicant
- and -
CANADIAN TIRE CORPORATION, LIMITED
Respondent
REASONS FOR ORDER
LEMIEUX J.
A. Background
[1] The respondent Canadian Tire Corporation, Limited appeals the order of Prothonotary Lafrenière dated May 29, 2000 issued without written reasons, dismissing its motion of May 24, 2000 made under Rule 81 of the Federal Court Rules, 1998 (the Rules) seeking to strike out paragraph 9 of the affidavit of Phillip Bish, President of P.S. Part Source Inc., sworn April 11, 2000 in support of a Section 57 Trade Marks Act expungement application. The respondent argues this paragraph is hearsay and offends Rule 81 which requires affidavits to be confined to facts within the personal knowledge of the deponent.
[2] Paragraph 9 of Mr. Bush"s affidavit reads:
| Within a few weeks of the respondent"s announcement in the fall of 1999, the applicant received at least 60 to 70 inquiries about it from its customers. These were customers who expressed a belief, contrary to the fact, that the new business announced by Canadian Tire Corporation was part of the applicant"s business, or was affiliated with the applicant. For example, some customers asked what parts they would now be able to get from the new stores. Some said they saw the announcement and looked up Partsource in the phone book and called us for information on what parts they could get. |
[3] Mr. Bish was not cross-examined on his affidavit before the respondent made its motion.
[4] The test on an appeal from a Prothonotary decision is set out in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at 463 where McGuigan J.A. said discretionary orders of Prothonotaries ought not to be disturbed unless such orders are clearly wrong including being based upon a wrong principle or upon a misapprehension of the facts or where they raise questions vital to the final issue of the case.
B. Discussion
[5] In R v. Smith, [1992] 2 S.C.R. 915, Lamer C.J. adopted this formulation of hearsay evidence quoting from a Privy Council decision:
| Evidence of a statement made to a witness by a person who is not himself called as witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. |
[6] The Chief Justice went on to discuss the underlying principles to the hearsay rule, its exceptions and the rejection of the approach to hearsay evidence based on categorical exceptions by the Supreme Court of Canada in R v. Khan, [1990] 2 S.C.R. 531. He referred to McLachlin J"s, as she then was, statement in that case that the principles which should govern the creation of exceptions and the admission of such evidence are the necessity of the evidence to prove a fact in issue and the reliability of this evidence.
[7] I see no basis to interfere with the Prothonotary"s order for several reasons.
[8] First, this paragraph is not said to be made on information and belief and the statements which it contains may or may not be hearsay. It depends upon the purpose for which they are introduced. If they are introduced simply to prove that the statements were made, no hearsay is involved.
[9] Second, to rule on admissibility now deprives the trial judge to consider paragraph 9 in its entire context, whether the new principled approach on hearsay evidence has application with the appropriate weight to be given to such evidence. Justice Gibson adopted this view, to which I subscribe, in Eli Lilly and Co. v. Apotex Inc. (1997), 75 C.P.R. (3d) 312.
[10] Third, it is an established principle that as a Court will not usually make an a priori ruling on admissibility; it takes an obvious case which is not the situation here.
[11] For these reasons, the appeal will be dismissed with costs.
"François Lemieux"
J.F.C.C.
Toronto, Ontario
June 15, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: P.S. PART SOURCE INC. |
- and -
| CANADIAN TIRE CORPORATION, LIMITED |
| DATE OF HEARING: MONDAY, JUNE 12, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: LEMIEUX J. |
DATED: THURSDAY, JUNE 15, 2000
| APPEARANCES: Mr. Mark L. Robbins |
Mr. John S. McKeown
| SOLICITORS OF RECORD: Oyen Wiggs Green & Mutula |
| 480-601 West Cordova Street |
| Cassels Brock & Blackwell LLP |
Scotia Plaza
Toronto, Ontario
M5H 3C2
FEDERAL COURT OF CANADA
Date: 20000613
Dockets: IMM-2357-00
IMM-2545-00
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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