Date: 20001019
Docket: T-2304-98
BETWEEN :
KEN RUBIN
Applicant
-and-
THE MINISTER OF FOREIGN AFFAIRS
AND INTERNATIONAL TRADE
Respondent
REASONS FOR ORDER
DUBÉ J. :
[1] The appellant ("Ken Rubin") appeals the order of Madam Prothonotary Aronovitch dated September 26, 2000, denying Ken Rubin's application to substitute "AECL Site Report" to "Shanghai Report(s)" in his proceedings under the Access to Information Act1.
[2] In her order, the Prothonotary found that it would not be "appropriate to amend the application to recast the identity of the document which allegedly was refused to the applicant thus, introducing a new document that is not at issue in these proceedings". She explained that according to Jaye Lowry Shuttleworth, the Acting Director, Environmental Services, for the respondent department ("DFAIT"), the report in question "was provided to her by Atomic Energy of Canada Limited ("AECL") as part of a binder of material, later returned to AECL" and that DFAIT "has taken the position in these proceedings that it is not in possession and control of this document".
[3] However, the Prothonotary ordered Ms. Shuttleworth to contact AECL and to secure information regarding the identification of the report. She also ordered that the information in question be provided by way of sworn affidavit which shall not give rise to further cross-examination by Ken Rubin.
[4] DFAIT does not agree that there was a duty on its part to inform itself from a third party (one not covered by the Access to Information Act). The significant differences between a deponent on discovery in an action and an affiant in an application was made clear in Merck Frosst Can. Inc. v. Canada (Minister of Health)2.
[5] Nevertheless, the respondent did not appeal the decision of the Prothonotary in that respect but obeyed the order. By way of an affidavit dated October 6, 2000, Ms. Shuttleworth stated as follows:
| ... AECL has stated that the report provided to me in November of 1996 was an English translation of the "Environmental Impact Report (Siting)-Quishan Phase III" ("EIR Sitting"). AECL has further stated that this document was prepared by the Shanghai Nuclear Engineering Research and Design Institute ("SNERDI") under contract to the Quinshan Nuclear Power Corporation, and that it was prepared over a period of time extending from August 1995, to March 1996. |
[6] Ken Rubin, as mentioned earlier, appealed the Prothonotary's decision on the ground that he is entitled to cross-examine Ms. Shuttleworth on her affidavit as he wants more information.
[7] At the hearing of this appeal, counsel for the respondent filed a letter dated October 16, 2000, addressed to him by counsel for AECL providing further information on the so-called "Shanghai Report" as follows:
| Our client again confirms that the "Shanghai Report" described in Ms. Shuttleworth's affidavit is an English translation of portions of the Environmental Impact Report (Siting) Qinshan Phase III ("EIR Siting") prepared by the Shanghai Nuclear Engineering Research and Design Institute ("SNERDI") between August 1995 and March 1996, under contract to the Qinshan Nuclear Power Corporation. Please note that the English translation referred to above was an unofficial translation prepared by AECL and Bochtel personnel; and that the document is the same document as that referred to in paragraph II(b)(iv) of the Notice of Motion filed in Court File No. -85-97, which is attached as Exhibit "G" to Mr. Rubin's affidavit of October 9, 2000. |
| I trust this provides the information you require pursuant to the order of Prothonotary Aronovitch of September 26, 2000. |
[8] In my view, the answer provided by Ms. Shuttleworth in her affidavit, coupled with the additional information provided by AECL, fully complies with the order of the Prothonotary "to provide the date, author and title of the report which was provided to her in the AECL binder which was later returned to AECL".
[9] And the Prothonotary was not "clearly wrong"3 in refusing cross-examination on the affidavit. The affidavit was not filed under Rule 83 of the Federal Court Rules, 1998. It was information obtained from a third party and filed by way of sworn affidavit pursuant to the order of the Prothonotary as a vehicle to enter the information on the Court record. Since the information was sought from a third party, the affidavit of Ms. Shuttleworth had to be on information and belief. She cannot be compelled, under the Access to Information Act, to answer questions about a document returned to a third party and of which she has no further personal knowledge.
[10] In his appeal Ken Rubin also seeks an order staying paragraph 6 of the order of the Prothonotary that "the time for the service and filing of the applicant's record pursuant to the Federal Court Rules, 1998, shall run as of the service and filing of the Shuttleworth affidavit". Time is hereby extended to run from the date of the instant order.
[11] Consequently, the appeal is dismissed with costs in the cause.
OTTAWA, Ontario
October 19, 2000
Judge
__________________
1 R.S.C. 1985, c. A-1.
2 (1997), 145 (F.T.R.) 249 at 253 (para 4).
3 The test provided in Canada v. Aquam Gem Investments Ltd. , [1993] 2 F.C. 425 at 454.
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