Docket: T-2587-14
Citation:
2016 FC 9
Ottawa, Ontario, January 5, 2016
PRESENT: The Honourable Mr. Justice LeBlanc
BETWEEN:
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KELLY O’GRADY
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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ORDER AND REASONS
Introduction
[1]
The Applicant is bringing a motion in writing
pursuant to Rules 96(2), 81(2), 369 and 371 of the Federal Court Rules, SOR/98-106
(the Rules). In particular, the Applicant moves to have an adverse inference
drawn from the affidavit evidence of Ms. Jane Badets, the Respondent’s affiant
(the Affiant) in the underlying review proceeding, which was sworn on July 10,
2015 and September 18, 2015.
[2]
In the alternative, the Applicant seeks an order
“authorizing” the Affiant to testify in Court
pursuant to Rule 371 which, in the circumstances of his case, amounts to a
request for an order requiring the Affiant to testify in Court in relation to
her motion. Accessorily, the Applicant is asking the Court to order that all
subsequent steps in the underlying review proceeding follow the timelines set
out in the Rules.
[3]
The Respondent opposes the Applicant’s motion
and objects to the filing of the Applicant’s affidavit sworn in reply to the
Respondent’s motion record. It contends in this regard that evidence is not
permissible on reply.
[4]
The Respondent is correct on this point. Rule
369(3) allows a moving party to reply to a respondent’s motion materials.
However, Rule 369(3) is clear that the moving party is permitted to file only written
representations in reply. Any derogation to this Rule would need to be sought
– and authorized by – the Court, which was not done in this case. The
Applicant’s reply affidavit will therefore be disregarded.
Background
[5]
The relevant facts to the Applicant’s motion are
these. The Applicant’s underlying review proceeding is a challenge to a
decision of the Privacy Commissioner of Canada dismissing a complaint filed by
the Applicant under the Privacy Act, R.S.C. 1985, c. P-21 (the Act),
regarding the alleged use of the Applicant’s personal information in a
Perinatal Outcomes Study (the Study) performed by Statistics Canada through its
Data Research Centre at McGill University (the Data Center), which required the
record linkage of a sample of birth records between May 14, 1994 and May 13,
1996 and May 16, 2004 and May 15, 2006 to Census data collected in 1996 and
2006. The Applicant gave birth in Ontario during the 1994-1996 period and
claims that, contrary to the provisions of the Act, information from her birth
records was intentionally used without her consent, through records linkage,
for a purpose not previously identified.
[6]
At all relevant times, the Affiant was Director
General, Census Subject Matter, Social and Demographic Statistics Branch at
Statistics Canada and was responsible in that capacity, of all Statistics
Canada Research Data Centers. She states that the Applicant’s records did not
form part of the Census-linked birth records for the Study as no Ontario births for the 1994-1996 period were included in the data linkage for the Study
because of data quality concerns. The Affiant’s affidavit further states that
Statistics Canada has taken steps to minimize intrusions on individual privacy
interests that may result from record linkage. In this case, this meant, inter
alia, that record linkages were performed by Statistics Canada employees,
the names of individuals were only used for linkage purposes and names were
removed from the linked files before access to the linked files was given to
physicians and researchers conducting the Study at the Data Center.
[7]
On July 31, 2015, the Applicant sent the
Respondent a list of written cross-examination questions for the Affiant which
she significantly reduced on August 7, 2015. On both occasions, the Respondent
refused to accept service on the grounds that it had not been properly served.
The Applicant sought direction from this Court on how to proceed in these
circumstances. On September 10, 2015, the Court directed (the Direction) that
the written cross-examination questions communicated to the Respondent on
August 7, 2015 (the Written Examination Questions), be deemed to have been
served on the Respondent and that the written examination be completed within
ten days of the date of the Direction.
[8]
On September 18, 2015, the Respondent served the
Applicant a further affidavit from the Affiant in response to the Applicant’s
Written Examination Questions. The Respondent acknowledges that it failed to
answer two of the 26 questions claiming that these two questions were unclear
and improper in form.
[9]
The Applicant challenges the content of the
Affiant’s second affidavit on the basis that the Affiant allegedly failed to
identify the sources of her evidence, refused to address inconsistencies in her
response to the Written Examination Questions and significantly relied on
third-party evidence. She alleges that the Respondent refused to supply the
proper names of the two datasets used to form the basis of the Study and the
names of three forward linked files generated by the Study. The Applicant
further contends that the Affiant failed to disclose the sources of her
evidence “proving” that the Applicant’s
information was not used in the Study.
[10]
The Applicant claims that in so doing, the
Affiant failed to comply with an Order of the Court made under Rules 96 or 97.
As a result, she contends that it is open to the Court to find the Affiant in
contempt pursuant to Rule 98 or to order the Affiant to answer a question “that was improperly objected to” as contemplated by
Rule 97(b).
[11]
However, the Applicant is of the view that
neither of these remedies “will fill the missing gaps
or clear up any glaring inconsistencies” in the Affiant’s evidence.
Accordingly, she submits that the most appropriate remedy in these
circumstances is to draw, through Rule 81(2), an adverse inference from the
Affiant’s “patent refusal to provide critical details
regarding the Study, […] failure to address blatant inconsistencies in her
response to the written cross-examination; […] failure to name all but one of
her sources; and […] substantial reliance on third-party information” . In
the alternative, as indicated previously, the Applicant seeks an order under
Rule 371 requiring the Affiant to testify in Court.
Issues
[12]
The Applicant’s motion raises, in my view, the
following three questions:
- Whether the Respondent failed to comply with the Court’s
Direction, namely whether it answered the Written Examination Questions
within the timeframe set out therein;
- Whether the Court should draw an adverse inference from the
Affiant’s evidence of July 10, 2015 and September 18, 2015; and
- Whether it is open to the Court, as an alternate remedy, to
require the Affiant to testify in Court.
[13]
For the reasons that follow, I find that all
three questions shall be answered in the negative.
The Respondent Complied with
the Court’s Direction
[14]
There was no failure on the part of the
Respondent to abide by the Court’s Direction which was meant to resolve the
issue related to the service of the Written Examination Questions, which was
preventing the underlying proceeding to move forward, and to ensure that this matter
could proceed further in an orderly manner. It was not an Order made pursuant
to Rules 96 or 97. The Direction was clearly not aimed at sanctioning a case
of improper conduct, misconduct or failure to attend as contemplated by Rules
96 or 97.
[15]
In this regard, the Applicant’s reliance on Rule
96(2) is misplaced. This Rule provides that a person conducting an oral
examination “may adjourn the examination and bring a
motion for directions if the person believes answers to questions being
provided are evasive or if the person being examined fails to produce a
document or other material requested under Rule 94”. However, Rule
96(2) does not apply in the context of a written examination under the Rules.
Rule 100 is clear to that effect: only Rules 94, 95, 97 and 98 are applicable
to written examinations, with the necessary modifications.
[16]
Here, I cannot find that the Respondent did not
comply with the Direction since it answered the Written Examination Questions
by way of an affidavit as required by Rule 99(3) and within the time frame set
out in the Direction. Furthermore, as I have just indicated, this is not a
case where Rules 97 and 98 are engaged. Rule 94, which deals with the production
of documents arising on examination, is clearly not engaged either. Finally,
to the extent that Rule 95 is engaged with respect to the Respondent’s
objections at answering two of the 26 Written Examination Questions on the
ground that one was unclear and the other not in proper form, I find that these
objections are well-founded and are, as a result, sustained.
The Rule 81(2) Argument
[17]
The Applicant contends that the Court should
draw an adverse inference pursuant to Rule 81, which reads as follows:
81. (1) Affidavits shall be confined to facts within the
deponent’s personal knowledge except on motions, other than motions for
summary judgment or summary trial, in which statements as to the deponent’s
belief, with the grounds for it, may be included.
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81. (1) Les affidavits se limitent aux faits dont le déclarant a
une connaissance personnelle, sauf s’ils sont présentés à l’appui d’une
requête – autre qu’une requête en jugement sommaire ou en procès sommaire –
auquel cas ils peuvent contenir des déclarations fondées sur ce que le
déclarant croit être les faits, avec motifs à l’appui.
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(2) Where an affidavit is made on belief, an adverse inference may
be drawn from the failure of a party to provide evidence of persons having
personal knowledge of material facts.
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(2) Lorsqu’un affidavit contient des déclarations fondées sur ce
que croit le déclarant, le fait de ne pas offrir le témoignage de personnes
ayant une connaissance personnelle des faits substantiels peut donner lieu à
des conclusions défavorables.
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[18]
Adverse inferences drawn pursuant to Rule 81(2)
are restricted to limited circumstances. In particular, Rule 81(2) does not
allow the Court to draw any adverse inferences due to inconsistencies in an
affiant’s responses or reliance on so called “third-party
evidence.” The purpose of affidavits is to assist the Court in
determining disputes by adducing facts “relevant to the
dispute without gloss or explanation” (Canada (Attorney
General) v Quadrini, 2010 FCA 47, at para 18; Dwyvenbode v Canada (Attorney General), 2009 FCA 120, at para 2). While affidavits are generally
confined to personal knowledge, courts have taken the view that an affiant may
in some circumstances rely on hearsay evidence and evidence made on belief.
[19]
The Supreme Court of Canada developed a
principled approach to the admissibility of hearsay evidence, which has been
adopted by the Federal Court of Appeal in Éthier v Canada, [1993] 2 FC
659, 63 FTR 29 and by the Federal Court in Twentieth Century Fox Home
Entertainment Canada Limited v Canada (Attorney General), 2012 FC 823, 414
FTR 291 [Twentieth Century Fox] regarding the admissibility of hearsay
evidence given by way of affidavit. In Twentieth Century Fox, Justice
Phelan held that an affiant is in a position to know that the facts are true
where evidence is “corporate” in nature in that
the affiant acts in a supervisory capacity and is responsible for his
subordinates (at para 22). In my view, the Affiant, who at the time the Study
was conducted was Director General, Census Subject Matter, Social and
Demographic Statistics Branch at Statistics Canada and was responsible,
in that capacity, of all Statistics Canada Research Data Centres, is in a
position to know that the facts sworn in her affidavit are true.
[20]
For similar reasons, I am of the opinion that
while the Affiant swore her affidavit on belief and information, she was not
obliged to “provide evidence of persons having personal knowledge of material
facts.” This Court has taken the position that
no adverse inference will be drawn where it is probable
that an affiant’s qualifications or office places an affiant in a position
where he or she would, of his or her own knowledge, be aware of the particular
facts (Smith, Kline & French Laboraties Ltd v Novapharm Ltd (1984)
79 CPR (2d) 103, at para 9, 25 ACWS (2d) 470). Thus, the Affiant need not
provide evidence of persons having personal knowledge of material facts but be
in a position to “be aware” of the particular facts. In my view, in her position as Director
General, Census Subject Matter, Social and Demographic Statistics Branch and
being responsible for all Statistics Canada Research Data Centres, including
the Data Centre where the data at issue was accessed, the Affiant was probably
aware of the particular facts and therefore in a position to swear the
affidavit without providing evidence of persons having personal knowledge of
material facts.
[21]
Moreover, I find that the Affiant did provide
evidence of persons having personal knowledge of the material facts as she
swore in the September 18, 2015 affidavit. The Affiant consulted Mr. Richard
Trudeau who apparently handled the Applicant’s request to have her personal
information removed from the Study and who was copied on several emails
regarding Health Canada’s decision to exclude Ontario from the Study. Further,
the exhibits sworn by both the Applicant and Respondent, which were included in
the record before me, support the facts sworn in the Affiant’s September 18,
2015 affidavit.
[22]
In addition, from my analysis of the record
before me, it is not readily apparent that the Affiant’s evidence is plagued
with blatant inconsistencies and lacks critical details regarding the Study, as
argued by the Applicant. In any case, I am of the view that this is a matter to
be assessed by the judge hearing the case on the merits. Failure to provide
the best evidence goes to the weight to be accorded the affidavit (Lumonics
Research Ltd v Gould, [1983] 2 FC 360, 46 NR 483), something which is in
the purview of the application judge, not the motion judge.
[23]
Finally, regarding the Applicant’s claims of
bias, I agree with the Respondent that it is improper for the Applicant to seek
to argue these claims on this motion when it will be treated on the merits once
the application is heard.
[24]
I see no reason, therefore, to draw any adverse
inferences from either the Affiant’s July 10, 2015 affidavit or September 18,
2015 affidavit.
The Rule 371 Alternate Argument
[25]
Rule 371 empowers the Court, in special
circumstances, to authorize a witness to testify in Court in relation to
an issue of fact raised on a motion. The Applicant bears the onus of
demonstrating that “special reasons” exist for
the Court to order the Affiant to testify in Court in relation to the facts
raised on the motion (Glaxo Can Inc v Canada (Minister of National Health
and Welfare) [1987] 11 FTR 132, at para 7). Apart from the fact
that the present motion is a motion in writing under Rule 369, which is to be
decided without an oral hearing, it is clear from the Applicant’s submissions
that the Applicant does not raise any special reasons to this effect. Here, I
agree with the Respondent that the Applicant’s request under Rule 371 is an
attempt to do indirectly what she cannot do directly, that is seeking another
opportunity to cross-examine the Affiant when she already had the opportunity
to do so.
[26]
For these reasons, the Applicant’s alternate
request under Rule 371 is denied.
[27]
The Applicant’s motion is therefore dismissed.
Costs are to follow the event.