Date: 20020614
Dockets: A-744-01
A-745-01
Neutral citation: 2002 FCA 376
PRESENT: PELLETIER J.A.
BETWEEN:
GLOBAL TELEVISION
(Global Lethbridge, a Division of
Can West Global Communication Corp.)
Applicant
and
COMMUNICATIONS, ENERGY AND
PAPERWORKERS UNION OF CANADA
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on June 14, 2002.
REASONS FOR ORDER BY: PELLETIER J.A.
Date: 20020614
Dockets: A-744-01
A-745-01
Neutral citation: 2002 FCA 376
Present: PELLETIER J.A.
BETWEEN:
GLOBAL TELEVISION
(Global Lethbridge, a Division of
Can West Global Communication Corp.)
Applicant
and
COMMUNICATIONS, ENERGY AND
PAPERWORKERS UNION OF CANADA
Respondent
REASONS FOR ORDER
[1] These reasons and the order accompanying them shall apply equally to files A-744-01 and A-745-01.
[2] I have before me a motion by the Respondent CEP to strike a direction to attend directed to Ms.Megan T. Higgins for cross-examination on her affidavits sworn May 9, 2002 and to bring with her "all documents and other material in your possession power or control that are relevant to the Motion for an Order pursuant to Rules 3, 4 and 8 of the Federal Court Rules 1998 by the Respondent in these proceedings dated May 24, 2002".
[3] In the Written Representations submitted in support of the Motion by CEP, it is alleged that one of the affidavits in question merely identifies for the court the submissions before the Canada Industrial Relations Board (CIRB) regarding the application for reconsideration filed by Global. It is alleged that the second affidavit attaches the full record before the panel at the CIRB in chronological order. I have not seen the affidavits and accept these representations at face value for the purposes of this motion.
[4] The May 9 affidavits were filed in support of CEP's Amended Notice of Motion , dated June 10, 2002, which seeks a stay of Global's application for judicial review of a decision of the CIRB pending receipt of the CIRB's decision on Global's application for reconsideration of an earlier decision, as well as extension of time for filing CEP's materials in the application for judicial review until 21 days after the said reconsideration decision has been rendered.
[5] In his affidavit filed in response to the motion to strike John Gilmore, one of Global's lawyers, deposes the reason for which cross-examination is required is the discrepancy between the explanation offered for the delay in filing CEP's record contained in affidavits by Megan T. Higgins dated May 8, 2002 (i.e. not the affidavits on which cross-examination is sought) and certain representations made in the Written representations made in support of the Amended Notice of Motion. At paragraph 11, Mr. Gilmore deposes that the cross-examination will likely yield substantive admissions and concessions in respect of the relief sought by CEP in their Amended Motion. One of the exhibits to Mr. Gilmore's Affidavit is a letter from counsel for Global dated June 12, 2002, setting out the areas to covered in cross-examination:
-the extent of the deficiency in the record and the relevance of the documents to be put into the record.
-the procedural steps taken with respect to the issue of delay including communications between counsel.
- the urgency of the matter
-any matters related to the above which go to the issue of credibility.
[6] I am unable to see how a discrepancy between an affidavit dated May 8, 2002 and unsworn written representations as to a matter of fact gives rise to a need to cross-examine on different affidavits which apparently deal with different subject matter. If the explanation for the delay is the issue, the cross-examination on the affidavits of May 8 would be indicated. It may be that there are questions to be asked about documents which are not yet in the record, but relevance is not among them. If a document was before the decision maker, it is, or should be, part of the record. Whether it is relevant in the end is a matter for the judge hearing the judicial review application. The question of urgency would not arise, on the face of it, out of affidavits which merely set out the record. It is unlikely that issues of credibility arise out of the types of affidavits which are in question here.
[7] Furthermore, it is not obvious which documents Global wishes produced in cross-examination on affidavits which simply produce the record before a tribunal.
[8] All in all, one entertains the suspicion that Global is engaged on a fishing expedition or worse. However, this cannot be decided ahead of time and Global is entitled to cross-examine on affidavits filed in support of CEP's motion. I am therefore not prepared to strike the direction to attend. I will note however that the scope of cross-examination on an affidavit is rather more limited than the goals which Global has set itself. If the proper scope of cross- examination is exceeded, the affiant is entitled to refuse to answer. If it should transpire that the cross-examination is an abuse of process or simply abusive, then the matter can be dealt with as matter of costs with respect to CEP's Amended Motion as the costs of this motion and of the cross-examination will be costs in the Amended Motion
[9] The motion to strike the direction to attend is dismissed. The cost of this motion and of the cross-examination will be costs in CEP's Amended Notice of Motion.
"J.D. Denis Pelletier" J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-744-01 & A-745-01
STYLE OF CAUSE:
GLOBAL TELEVISION ET AL.
and
COMMUNICATIONS, ENERGY AND
PAPER WORKERS UNION OF CANADA
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER : PELLETIER J.A.
DATED: JUNE 14, 2002
WRITTEN REPRESENTATIONS BY:
Mr. John R. Gilmore FOR THE APPLICANT
Ms. Megan Higgins FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bennett Jones LLP
Calgary, Alberta FOR THE APPLICANT
Shortt Moore & Arsenault
Vancouver, British Columbia FOR THE RESPONDENT
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