Date: 20050629
Docket: T-1605-04
Citation: 2005 FC 917
Ottawa, Ontario, Wednesday, this 29th day of June 2005
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
BETWEEN:
AGUSTAWESTLAND INTERNATIONAL LIMITED
Applicant
- and -
MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
and SIKORSKY INTERNATIONAL OPERATIONS, INC.
Respondents
Let the attached revised excerpts of the transcript of the reasons given at the hearing held in Ottawa on Friday, June 17, 2005 be filed in accordance with art. 51 of the Federal Courts Act, R.S.C. (1985), c.F-7.
"Mireille Tabib"
Prothonotary
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1605-04
STYLE OF CAUSE: AGUSTAWESTLAND INTERNATIONAL LIMITED
v.
THE MINISTER OF PUBLIC WORKS AND
GOVERNMENT SERVICES and SIKORSKY
INTERNATIONAL OPERATIONS, INC.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 17, 2005
REASONS FOR
JUDGEMENT: Madam Prothonotary Mireille Tabib
DATED: June 29, 2005
APPEARANCES:
G. Cameron FOR THE APPLICANT
M. Gardner
J. Brongers FOR THE RESPONDENT
T. Sandler (PWGSC)
B. Mills FOR THE RESPONDENT
Sikorsky International Operations
SOLICITORS OF RECORD:
BLAKE, CASSELS & GRAYDON LLP FOR THE APPLICANT
Ottawa, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada (PWGSC)
McCARTHY TETRAULT FOR THE RESPONDENT
Ottawa, Ontario Sikorsky International Operations
File Number T-1605-04
THE FEDERAL COURT
BETWEEN:
AGUSTWESTLAND INTERNATIONAL LIMITED
Applicants
- and -
THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES
and SIKORSKY INTERNATIONAL
Respondents
Held before the Honourable Madam Prothonotary Tabib
the Federal Court
Excerpt of Proceedings
Reasons for Judgement
APPEARANCES:
G. Cameron
M. Gardner for the Applicants
J. Brongers
T. Sandler for the Respondent(PWGS)
B. Mills For the Respondent(Sikorksy)
HELD AT:
The Federal Court
90 Sparks
11th floor, Courtroom 1104
Ottawa, Ontario
Friday, June 17, 2005
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CROSS-EXAMINATION OF MICHEL RANCOURT
PROTHONOTARY TABIB: I am prepared to rule on that objection. [Q. #26, P.7]
There is a general rule to the effect that undertakings are not appropriate to be asked in the course of a cross-examination on affidavit. They may be given voluntarily but nobody is compelled to give an undertaking.
An exception to this rule has been suggested in the case of Bland v. National Capital Commission (1989), 29 F.T.R. 232 with respect to questions where it is expected that the affiant might be questioned, and the questions are within the area of expected knowledge of the witness, upon which there might be found a duty on the deponent to inform himself, which would then lead to a duty to give undertakings.
Without deciding whether Bland is still current and applicable, it seems to me that Bland would apply only where the issue is directly relevant to the proceedings at hand.
In this case, in the case of Question 26 to the Cross-Examination of Michel Rancourt, the Notice of Application raises as grounds for Judicial Review strictly whether the chosen Fairness Monitor should have been awarded the contract in view of a conflict of interest. It does not specifically raise non-compliance of the successful Bidder with the Request for Proposal or an alleged rigging or development of a Request for Proposal for the purpose of pre-selecting or favouring the selection of a contractor friendly or favourable to the Respondent herein.
There may be relevance to that question, but the relevance would be in respect of the credibility of the witness.
I do not think that the exception discussed in Bland can be extended to cases where the relevance of the question goes to the credibility of the witness or goes to matters peripheral to issues squarely raised in the proceedings.
On Question number 26, I find that the Respondent did not have to give the Undertaking requested.
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PROTHONOTARY TABIB: I am going to rule on that objection. [Q. #168, p. 48]
I find that the question was proper in the context of a cross-examination. It was put before the witness a proposition that, yes, took the form of a conclusion of fact drawn from previous facts. The witness may agree or disagree with the conclusions put to him, but it is, I think, informative to know the witness' position, perception, whether he accepts that conclusion and how he perceives the situation.
I think it is entirely proper in the course of a cross-examination to put that kind of a statement to the witness. The witness is entirely free to agree or disagree and then can explain his answer.
I am sure that a proper follow-up to that would have been for him to explain either a positive or a negative answer, which is perfectly within the purview of a cross-examination of a witness on the subject for which he was being cross-examined and tendered.
The objection is overruled. **************
PROTHONOTARY TABIB: This is my ruling on this objection. [Q. #233, p. 70]
It is not a proper objection to a question that "the answer is self-evident". Either the question is relevant or it isn't.
There are other objections: privilege, improper form, and so on, but I have never heard of an objection based on the "the answer is self-evident".
A line of question may start with a self-evident answer but it is usually the beginning of a line of inquiry. And if objections are allowed at the beginning of a line of inquiry on the basis that they are self-evident, then it curtails any meaningful cross-examination of a witness.
The question was relevant and the objection is overruled.
As to whether Mr. Cameron is now bound by his statement that he accepts the Defendant's position, I find that the acceptance of the Defendant's position for the purpose of going on with his cross-examination did not mean an acceptance of Counsel's answer in lieu of a witness's evidence, and that the witness' evidence was requested specifically a number of times. In conceding that he could go on with the cross-examination based on Counsel's position, I do not think that Counsel for the Applicant abandoned or waived his right to have a ruling on the objection and an answer from the witness on the question.
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PROTHONOTARY TABIB: I will rule on this objection to Question 235, page 72 of Mr. Rancourt's Cross-Examination.
I find that the question was relevant.
The relevance goes to a variety of reasons.
It would be quite appropriate formally because there is a clear allegation, a clear statement in the Affidavit of Mr. Rancourt to the effect that the bid was compliant.
To a certain extent, the mere fact that it was sworn in the affidavit allows some latitude to Counsel for the Applicant to cross-examine on that statement for the purpose of establishing the credibility of the affiant.
I readily agree that relevance in terms of credibility has limits and relevance in terms of what was in the four corners of affidavit has its limits, as set out in the Merck decision, that if it has no legal relevance, then it cannot be allowed.
But Justice Hugessen in the Merck Frosst decision made a clear exception with respect to questions that go to the personal credibility of the witness. I think that this question falls well within that kind of question.
Furthermore, there is tangential relevance to all the issues going to the award of the contract.
Justice Kelen ordered that documents relating to the award of the Fairness Monitor Contract were to be produced on the basis that they were relevant.
While his decision does not bind a judge on the merits, surely we cannot start debating the relevance of those documents on every interlocutory motion.
In that sense, I think that there is issue estoppel attaching to that decision for the purpose of interlocutory matters in the conduct of this litigation. While it may not bind the judge on the merits, as a question of efficiency of proceeding with this Application, the Court cannot be asked to second-guess itself and change its view on relevance for every single interlocutory motion.
In view of the relevance that is implied in the Order of Justice Kelen requiring production of documents relating to that issue, in view of the relevance, the formal relevance of falling within a clear statement in the affidavit and of the relevance that attaches to questions that go credibility, that objection is overruled.
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PROTHONOTARY TABIB: The objection to question 246 is overruled.
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PROTHONOTARY TABIB: This is my decision on the objection. [Q. #251 and 252, p. 87 and 88]
The objection is overruled. I find that it is not the same question.
The initial question was whether Mr. Rancourt was familiar with a certain principle or policy that has been enunciated. The answer was no.
I think that Counsel for the Applicant would at least have been entitled to ask "can you clarify your answer? Are you saying that you are not familiar or they do not exist?"
The following questions all go in a different way to putting that kind of clarification. At 251, whether the witness is aware of any constraints or rules that apply broadly, this is a more general question to try to clarify the negative answer given to the first question.
The same applies to Question 252 whether there are any rules or principles or policies that govern whether a Fairness Monitor should be a Fairness Monitor on the evaluation.
Now maybe 252 would not have been necessary had 251 been answered.
But at the end of the day, there is latitude that must be given on cross-examining a witness.
The line between harassing the witness and being given the latitude to ensure that you understand and have a clear and useful answer from the witness is not a brightly defined line.
In this case, especially since there were several objections and none of the following clarification questions were answered, it is impossible to say that we have crossed the line from proper clarifying answers into harassment.
Question 249 and Question 252 are different questions. One is whether he is familiar with a stated principle or policy, and 252 is whether there are rules or principles or policy that govern whether a Fairness Monitor can or should be a Fairness Monitor on the evaluation. 249 and 252 are not the same question. Whether 251 and 252 are the same question is quite irrelevant. Mr. Ciavaglia objected to both. No one got an answer.
My decision is that 249 and 252 are not the same question. I say maybe 251 and 252 are the same question but that is irrelevant. Mr. Ciavaglia objected to both 251 and 252, both objections were improper and both objections are overruled.
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PROTHONOTARY TABIB: The objection [Q. #266, p. 91] is overruled on the basis that I do not see it as being an improper hypothetical question.
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CROSS-EXAMINATION OF ANDRÉ DUMAS
The question to which there is an objection [Q. #85, p. 22] is "Why do you say that, sir?" That is the specific question.
The answer that was given was not responsive to the question. The question "Why do you say that, sir?" is a proper question. I cannot really see exactly where the objection is to which question because an answer was provided?
Could you help Mr. Cameron as to which question exactly you are asking for a ruling?
MR. CAMERON: The question is "Why do you say that?"
An answer with the reasons as opposed to the impact was given and then there were a series of interruptions by Mr. Ciavaglia saying "He has already responded to that."
PROTHONOTARY TABIB: The rephrased Question 88.
MR. CAMERON: That I suppose is the ultimate one that was objected to.
PROTHONOTARY TABIB: If I may put my ruling that way: The question asked in between from Question 85 following through to Question 88 is a proper question and the objection phrased therein is overruled.
It did not call for an opinion and the answers given by the witness to Question 85 and the following attempts to rephrase it were not responsive to the question that was asked. It was fair for Counsel for the Applicant to ask and insist for an answer to the question.
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PROTHONOTARY TABIB: [Q. #104, p. 29] I think that although it calls for an opinion, it called for a perception or a reaction, which was close enough within the functions of that witness in the facts under review that it is not an improper request for an opinion or a perception.
With respect to its hypothetical nature, again, I am satisfied that a question is not hypothetical merely because the facts are denied by that witness. So long as it appears that in sincerity and with some measure of potential success, the opposing party expects and will lead evidence to contradict the basic fact or to support the premise of the so-called "hypothetical question", then the question is proper and is not an impermissible hypothetical question.
The objection is overruled.
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CROSS-EXAMINATION OF NORMAN CRAWLEY
PROTHONOTARY TABIB: [Q. #24, p.7] It is a different species of hypothetical in that, as described by Mr. Cameron, it does appear to be a question which must be hypothetical because it goes to the witness' understanding of the application of a formula. You cannot get to it without giving a hypothetical.
In that sense, it is fair for the potential application of a formula to be questioned by the use of a hypothetical situation. Objection overruled.
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PROTHONOTARY TABIB: This is my ruling on this objection. [Q. #41, p. 13]
In my view, the only grounds on which the question would be questionable is that it seeks an opinion from the witness as to whether that schedule could be prepared without knowledge of how long it takes to perform a task.
There is no prohibition as such to seek an opinion of witnesses.
Opinions may require expert knowledge but some opinions can properly be requested as being a natural conclusion of a person's knowledge, function and tasks.
In this case, I have no basis to find that it was an improper opinion being requested and the objection is overruled.
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PROTHONOTARY TABIB: My ruling on that objection [Q. #54, p. 17] is that it is overruled, it is a little bit the same reasons as the previous one.
The question is asking the witness to provide his understanding of what input experts would normally have, or in his experience have in creating a schedule.
It does ask for an opinion, or at the very least the witness' knowledge of what is usually done or what is necessary, but again I do not have a basis to find that it is inappropriate for this witness of fact to provide an opinion on that subject.
I would add that had Mr. Cameron ask him what input the expert hired by Sikorsky did have, then to the extent that the witness has no knowledge of it, then he would have to answer "I don't know". The question was asked: "What would these experts have needed to provide or would normally have provided".
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PROTHONOTARY TABIB: My decision on Question 84 and 85 [p. 29-30] is the objection is overruled.
If it is relevant to know how you can reconcile starting flight testing on the very date that the report is due, and the answer comes back that the necessary information is actually provided over the course of a year, then questions going to what information is used, and what is that information that comes in over the course of one year and is used to make the assessment prior to the issuance of the report, are proper and relevant; and in that case, I think that the question as to whether the data relating to the electromagnetic interference comes from the Green Vehicle or other sources of data is relevant and the question is proper.
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CROSS-EXAMINATION OF MICHEL LAPOINTE
PROTHONOTARY TABIB: My ruling strictly on the relevance of Question 74 is that the objection is overruled as to relevance.
The Notice of Application specifically raises actual and apparent bias as a ground for Judicial Review.
It is well known and accepted that extrinsic evidence is permitted to demonstrate bias. If bias comes from political purposes, then the question of, maybe not the content of the legal opinion, I do not know, but the fact that a legal opinion had been asked to achieve a certain purpose may provide evidence of a state of mind, which is squarely put in issue in these proceedings.
What is in issue is the state of mind and a bias that is clearly alleged to have its foundation in events that took place in 1993.
Evidence of bias that occurred between 1993 and 2004, in my view, meets the test of relevance.
This being said, the question of privilege, as it may or may not attach to the existence and subject matter of a legal opinion, is not being ruled upon and the parties have agreed to leave that issue to be determined if the need arises at a later time.
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PROTHONOTARY TABIB: [Q. 96, p. 31] I am not sure that this Ruling is going to be of any use to either of you on this.
Because I tend to agree in principle, and I have already issued a Ruling that it is not proper to cross-examine a witness on a document that he has not recognized.
However, I can't help but think that the objection was a little bit premature because I do not know where this is leading and whether the witness is capable of identifying the document as having originated in a department or another; whether he is capable, on the face of the document, of recognizing its general source; which, in and of itself, is not improper.
So, as I said when I gave the Reasons earlier on the question of cross-examining on a document, some questions may be proper and some questions may not be. It is a difficult subject; it depends how the question is phrased. But on this particular question: on its face, it appears to be a Maritime Helicopter Project document and that it was a presentation pertaining to the Maritime Helicopter Project; on its face, it does or it does not, whichever the witness has knowledge to base an answer on. How much further can Counsel go on this is probably severely limited, but it depends on what the answer of the witness is going to be.
The question as phrased is proper. It does not ask for anything other that the witness' knowledge of what type of a document it appears to be.
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PROTHONOTARY TABIB: Question 138, page 48.
The ruling is that there was no obligation on the part of the Respondent to give the undertaking.
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PROTHONOTARY TABIB: My ruling on Question 169.
The relevance of an initial decision to split the procurement is specifically alleged in the Notice of Application.
I understand that formal relevance and legal relevance are not the same thing. Even though something may be alleged in a pleading, does not mean that it will in fact advance the party's position and have any relevance at the hearing.
However, factual relevance and probative value of certain facts is something that is usually left to the judge on the merits, unless on the interlocutory motion, I can be certain that there is no chance of it having a probative value.
Legally, it seems to me that in order to prove state of mind and bias, if you are alleging that the bias took root in past events and that there was an intention to carry it out, then attempts to carry out the bias are fair and possibly relevant evidence to establish the bias that is being alleged.
At the end of the day, the judge on the merits will determine whether an idea for procurement, which was not actually carried out, does in fact show evidence of bias, but that will for the judge on the merits.
At this point, there is sufficient relevance, formal and legal, to allow the question to be asked. The objection is overruled.
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PROTHONOTARY TABIB: I will avail myself of the ability that I have to give short reasons on the part of the Motion of the Applicant seeking an order directing Counsel for the Minister to refrain from improperly interfering with the continued cross-examination by giving brief observations, because at the end of the day, I will not make an order specifically directing the Minister, as requested.
The order will go in the form of directions as to the form interventions are to take.
But the comments as to why it is necessary to make these directions are that there appears to have been a misapprehension from the Respondent as to the applicability of Rule 246(1).
In my view, a cross-examination on affidavit is testimony to the same extent and in the same way as if it were given in open Court.
It is sworn testimony of a witness as to his personal knowledge, and therefore it is not permissible or appropriate for Counsel to answer for the witness.
As happens in Court, Counsel can appropriately offer assistance to clarify an issue, to provide the position of the party with respect to an issue.
But the position of the party is not the testimony of the witness and whether the assistance is accepted or not, counsel who is cross-examining the witness remains entitled to an answer from the witness.
In ruling on the objections, in many cases, I have said that the objection was premature.
It is understood that there are a great many issues, that this Application for Judicial Review is wider-ranging than is usually seen, and it is understandable for Counsel for the Respondent to take a certain view of relevance and to try to limit the questions to what his view of the ultimate relevance may be.
As I have stated, there is a certain leeway that must be provided to any counsel cross-examining on an affidavit, or on testimony in Court. And that leeway includes cross-examining for the purposes of testing the witness' credibility, which, in and of itself, is a process which is adversarial, which is aggressive, and again leads to that ill-defined territory between vigorous and effective cross-examination and badgering the witness.
In the examples that were provided to the Court to base the Motion of the Applicant, I am satisfied that the point at which the leeway must stop had not been reached.
The objections were premature and the objections as to "this is the same question, he has answered" were also premature.
It is in the nature of cross-examination that it will be aggressive and that questions will be rephrased.
Before a judge berates a counsel for badgering a witness, it needs to be a little bit stronger than Counsel for the Applicant's conduct of the cross-examination so far.
With these observations, I do not think that it is necessary to give an order to Counsel for the Respondent to refrain from improperly interfering with the continued cross-examination.
I think that directions as to the form in which interventions other than objections are to be conducted, and an understanding that it is entirely within the purview of Counsel for the Applicant to refuse the assistance, to refuse Counsel for the Respondent to testify or to give answers for the witness or to refuse re-direct in the midst of cross-examination, then I am certain that further intervention will be left to a minimum.
With respect to objections, one cannot ask Counsel for the Respondent to cease objecting, but I am certain that Counsel will be guided by, as suggested quite properly by Mr. Brongers, that Counsel will be guided by the rulings on objections and the reasons given.
With respect to costs, overall the rulings went in favour of the Applicant.
It is true that some rulings were not asked. And as I said earlier, discretion may have been the better part of valour, but in many cases, rulings were withdrawn because they were made unnecessary in view of answer previously given or in view of rulings previously made.
On the whole, I find that the success of the Motion is quite clearly predominantly the Applicant's, in which case, costs will go to the Applicant in any event of the cause at the normal rate of the tariff.
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