Date: 20031104
Docket: T-1506-02
Citation: 2003 FC 1281
Ottawa, Ontario, Tuesday, this 4th day of November 2003
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
BETWEEN:
CONSTABLE DARREL BRUNO
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA,
THE ROYAL CANADIAN MOUNTED POLICE GRIEVANCE REVIEWER,
LABOUR RELATIONS UNIT, REGINA NWR HUMAN RESOURCES,
NCO I/C STAFFING AND PERSONNEL NWR "K"DIVISION
Respondents
REASONS FOR ORDER AND ORDER
[1] UPON the Applicant's motion, made in writing pursuant to Rule 369 of the Federal Court Rules, 1998, for an order compelling answers to undertakings and for an order extending the time to serve and file the Applicant's record;
[2] UPON considering the motion records of the parties.
[3] I note that the parties have agreed that undertakings no. 22 and 27 have now been answered, and that undertaking no. 24 will be answered by November 14, 2003.
[4] There remains seven "undertakings" (no. 5, 13, 15, 16, 29, 31 and 32) which were either refused outright at the cross-examination or which, although not refused outright, were taken under advisement by Respondents' counsel before deciding whether they would undertake to provide an answer; a further two undertakings were freely given and were answered, the Applicant finding the answers unsatisfactory (no. 30 and 34).
[5] As to the "undertakings" refused or taken under advisement at the cross-examination, it does not matter in my view whether a partial answer was later given or what reasons were given by the Respondents for refusing to provide answers. I subscribe fully to that part of the reasons for order given by Justice Hugessen in Merck Frosst Canada Inc. v. Canada (Minister of Health) [1997] F.C.J. No. 1847, where he states as one of the distinguishing features between cross-examinations and examinations for discovery that "absence of knowledge is an acceptable answer: the witness cannot be required to inform him or herself". Undertakings are no more than an agreement by a party that it will inform itself in order to provide an answer to a question to which the witness does not know the answer. There is no obligation in the context of cross-examinations for a party to give any undertakings whatsoever. The person cross-examined on an affidavit is a witness, not a party. If, upon being cross-examined, his or her knowledge if found to be lacking, this may go to credibility, to the probative value of the evidence, etc., but it will not justify an obligation to give an undertaking. Of course, when a party, being under no obligation to give an undertaking, freely undertakes to provide further answers or documents, the undertaking must be honoured. But that is not the case for the specific "undertakings" under consideration.
[6] The parties in their written representations have discussed at some length the issue as to whether there exists a right to compel production of documents in the context of cross-examinations on affidavits. Matters of relevance aside, it seems to me that Rule 91 contains a clear statement of the procedure to be used when a party desires to obtain production of documents on cross-examination of an affiant: By including in a direction to attend served on the person to be examined a direction to produce for inspection at the examination certain specified documents, which may include "all documents and other material in that person's possession, power or control that are relevant to the application or motion". A party who fails to request production of documents prior to conducting a cross-examination must take the witness as he or she is and may not send the witness back to secure or produce documents which were not requested in a direction to attend or which the witness does not happen to have in his or her possession at the time of the cross-examination.
[7] In the present case, the Applicant has not shown that it sent a direction to attend requiring production of certain documents, and there was no undertaking actually given by the Respondents to provide answers or documents. The Respondents are therefore not required to answer these questions.
[8] Finally, as regards undertakings no. 30 and 34, having reviewed both the undertakings as formulated and the answers given, I am of the view that the answers provided satisfactorily fulfill the undertakings given.
ORDER
1. The Applicant's motion to compel answers to undertakings is dismissed, save and except as regards undertakings 22, 24 and 27 for which the parties have reached an agreement.
2. The time within which the Applicant is to serve and file the Applicant's record is extended to December 10, 2003. All other deadlines shall be as provided in Part 5 of the Federal Court Rules, 1998.
3. Costs in the cause.
"Mireille Tabib"
Prothonotary
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1506-02
STYLE OF CAUSE: Constable Darrel Bruno v. The Attorney General of Canada, The Royal Canadian Mounted Police Grievance Reviewer, Labour Relations Unit, Regina NWR Human Resources, NCO I/C Staffing and Personnel NWR "K" Division
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Prothonotary Mireille Tabib
DATED: November 4, 2003
WRITTEN REPRESENTATIONS BY:
SOLICITORS OF RECORD:
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Parlee McLaws LLP
Edmonton, Alberta
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FOR THE APPLICANT
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Morris Rosenberg
Deputy Attorney General of Canada
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FOR THE RESPONDENTS
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