Date: 20041125
Docket: T-1805-98
Citation: 2004 FC 1656
Ottawa, Ontario this 25th day of November 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
REVEREND BROTHER WALTER A. TUCKER and
REVEREND BROTHER MICHAEL J. BALDASARO
Plaintiffs
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] Reverend Brother Walter A. Tucker and Reverend Brother Michael J. Baldasaro (the "Plaintiffs") filed a Notice of Motion on November 18, 2004, seeking an Order, pursuant to the Federal Court Rules, 1998, SOR/98-106 (the "Rules") for determination of a question of law, specifically the following:
a. Whether the Court at trial may consider as evidence the affidavits and or affirmations of the applicants, now held to be invalid, and that were previously submitted in support of and as evidence relative to the issues set forth in the Statement of Claim and Motions previously heard and resolved by this Honourable Court since inception?
b. If not, then the applicants request that their Statement of Claim be stayed without prejudice and with costs against the Defendant?
c. Whether the Plaintiffs Affidavit of Documents, Motion Records and Motions supported as they were by Affidavits and/or Affirmations held to be nullities, must all be set aside as nullities for non compliance with the applicable rules relative to Motion Records, Affidavits and Affirmations?
d. Whether in the circumstances the Court has jurisdiction to continue with pre-trial and trial proceedings being that none of the prerequisites have been validly complied with?
[2] By Direction issued by the Court on November 19, 2004, the Plaintiffs and Her Majesty the Queen (the "Defendant"), as represented by counsel, were directed to participate by conference call with this Court in Ottawa for the hearing of the motion on November 23, 2004.
[3] A number of matters were raised by the Plaintiffs during the hearing of the motion.
[4] At the beginning of the hearing, the Plaintiffs requested leave of the Court to bring a tape recorder into the hearing room, for the purpose of preparing a tape to supplement their notes of the hearing. The Plaintiffs purported to rely on the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended and their experience before the Ontario Courts when they have been allowed, in part, to maintain such tape recordings.
[5] Although counsel for the Defendant initially expressed no opposition to this request, a brief adjournment was granted to allow further consideration of the matter. Subsequently, counsel for the Defendant advised that the Plaintiffs' request should be denied on the grounds that a court reporter will be present. An authorized transcript would be available and counsel for the Defendant agreed to request preparation of the transcript on an urgent basis, with a copy to be provided to the Plaintiffs without cost.
[6] In the exercise of my discretion and having regard to Rule 4, I dismissed the Plaintiffs' request to make a tape recording of the motion. The Plaintiffs did not cite any particular provision of the Ontario Courts of Justice Act, supra. Rule 4 of the Rules accords this Court discretion in the matter of relying on the practice of provincial superior courts in addressing matters that are not otherwise addressed in the Rules of this Court. Rule 4 provides as follows:
| 4. On motion, the Court may provide for any procedural matter not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject-matter of the proceeding most closely relates.
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4. En cas de silence des présentes règles ou des lois fédérales, la Cour peut, sur requête, déterminer la procédure applicable par analogie avec les présentes règles ou par renvoi à la pratique de la cour supérieure de la province qui est la plus pertinente en l'espèce.
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[7] It is clear that this Rule confers discretion upon the Court whether to rely, or otherwise, upon the practices in the Ontario Courts of Justice. In the absence of evidence concerning the practice, I declined to exercise a positive discretion, particularly in light of the fact that a court reporter will be in attendance and that a copy of the transcript would be made available to the Plaintiffs.
[8] As for the informal request of the Plaintiffs concerning access to the transcripts of the hearings held on October 7, 2004, that is the Trial Management Conference, and on November 12, 2004, that is the hearing of the prior motion by the Plaintiff Reverend Brother Tucker for an adjournment, I advised that upon the application of the Plaintiffs to the Registry, transcripts of these hearings would be available.
[9] The Plaintiffs then raised a second preliminary issue. They said that they had not been properly served with the Defendant's responding material to the present motion because those materials had not been addressed to them under their titles of "Reverend" or "Brother". The Plaintiffs referred repeatedly to a letter dated January 14, 2004 from counsel for the Defendant in which the Defendant set forth the position that reference to these titles was prejudicial to matters raised in her defence to the Plaintiffs' action.
[10] The letter dated January 14, 2004 was part of the Defendant's response to the adjournment motion that was argued on November 12, 2004. That motion has been disposed of by Reasons for Order and Order issued on November 15, 2004. The motion now before the Court does not address this issue and I will not address it, except to note that the status of the Plaintiffs as ministers of a religion has been raised in their Statement of Claim.
[11] The Defendant, in her Statement of Defence, has denied all of the factual allegations of the Plaintiffs. The status of the Plaintiffs as ministers of a religion has been squarely put in issue by the Statement of Defence filed in this action. To that extent, both parties are at liberty to address that issue at trial as they may see fit to do.
[12] The Plaintiffs also objected to the Court's direction that the matter proceed on the basis of an oral hearing, rather than as a motion in writing. They said they sought the protection of the Court in protecting their dignity and the guidance of the law in addressing the issues raised in this litigation. They said that they had not been offered the assistance of the Court by means of case management in this file. Further, they argued that the award of costs made in favour of the Defendant following the hearing of the adjournment motion indicates bias on the part of the Court.
[13] The manner in which a motion will be dealt with lies in the discretion of the Court; see Olson v. Canada, [1993] 1 F.C. 32 (C.A.). Having regard to the fact that this motion was filed eleven (11) days prior to the scheduled commencement of the trial, the guiding principles of Rule 3 weigh heavily in favour of earlier, not later, adjudication of the motion.
[14] As for the Plaintiffs' submissions concerning guidance and lack of case management from the Court, I note that this proceeding has not been subject to formal case management. However, a cursory review of the file shows that this action has received considerable attention from the prothonotaries and judges of this Court since its inception. Indeed, the Trial Record prepared by the Defendant includes Orders from nine different judges of this Court between January 1999 and August 2003.
[15] The Plaintiffs allege bias on the basis of the costs award in favour of the Defendant, pursuant to the Order of November 15, 2004. This argument is specious. Pursuant to Rule 400(1), the Court has full discretion in the matter of awarding costs.
[16] Turning now to the merits of the present motion, the Plaintiffs argue that the status of the affidavits, filed by them to date in this proceeding, is critical to the pursuit of their claim. In particular, they say that this claim is based upon their affidavit of documents and the affidavit has not been properly commissioned, as according to the Defendant. They argue that the document is not properly before the Court and as such, the action cannot proceed to trial.
[17] The Plaintiffs have framed their concerns about the status of the various affidavits, filed by them in the course of this proceeding, as a question of law. They raise a subsidiary question about the use of those affidavits as evidence at trial.
[18] The Defendant argues that it is not necessary for the Court to determine the status of the Plaintiffs' affidavits prior to trial because the evidence at trial will be oral evidence, not affidavit evidence.
[19] Rule 220(1) allows for the preliminary determination of questions of law and provides as follows:
| 220. (1) A party may bring a motion before trial to request that the Court determine
(a) a question of law that may be relevant to an action;(b) a question as to the admissibility of any document, exhibit or other evidence; or
(c) questions stated by the parties in the form of a special case before, or in lieu of, the trial of the action.
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220. (1) Une partie peut, par voie de requête présentée avant l'instruction, demander à la Cour de statuer sur :
a) tout point de droit qui peut être pertinent dans l'action;
b) tout point concernant l'admissibilité d'un document, d'une pièce ou de tout autre élément de preuve;
c) les points litigieux que les parties ont exposés dans un mémoire spécial avant l'instruction de l'action ou en remplacement de celle-ci.
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[20] In my opinion, the Plaintiffs' motion does not raise a question of law that should be determined on an interlocutory motion, brought shortly before the commencement of the trial. According to Canada (Minister of Citizenship and Immigration) v. Obodzinsky (2002), 224 F.T.R. 161, prior to determination of a question of law before trial, the Court should first be satisfied that the proposed questions are true questions of law. I am not so satisfied. In my opinion, the questions raised by the Plaintiffs relate to the admission of evidence at trial and that is answered by Rule 282, as follows:
| 282. (1) Unless the Court orders otherwise, witnesses at trial shall be examined orally and in open court.
(2) All witnesses shall testify under oath.
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282. (1) Sauf ordonnance contraire de la Cour, les témoins à l'instruction sont interrogés oralement, en séance publique.
(2) Les témoins déposent sous serment.
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[21] I refer to the definition of "oath" in Rule 2 which provides as follows:
| 2. The following definitions apply in these Rules.
"oath" includes a solemn affirmation within the meaning of subsection 14(1) of the Canada Evidence Act. (serment)
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2. Les définitions qui suivent s'appliquent aux présentes règles.
« _serment_ » Est assimilée au serment l'affirmation solennelle visée au paragraphe 14(1) de la Loi sur la preuve au Canada. (oath)
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This means that the Plaintiffs may testify under affirmation, rather than by swearing an oath.
[22] The Plaintiffs' concerns about the "admissibility" of their affidavit of documents is answered by reference to Rules 222, 223(1) and 232. These Rules provide as follows:
| 222. (1) In rules 223 to 232 and 295, "document" includes an audio recording, video recording, film, photograph, chart, graph, map, plan, survey, book of account, computer diskette and any other device on which information is recorded or stored.
(2) For the purposes of rules 223 to 232 and 295, a document of a party is relevant if the party intends to rely on it or if the document tends to adversely affect the party's case or to support another party's case.
223. (1) Every party shall serve an affidavit of documents on every other party within 30 days after the close of pleadings.
232. (1) Unless the Court orders otherwise or discovery of documents has been waived by the parties, no document shall be used in evidence unless it has been [Emphasis added]
(a) disclosed on a party's affidavit of documents as a document for which no privilege has been claimed;
(b) produced for inspection by a party, or a person examined on behalf of one of the parties, on or subsequent to examinations for discovery; or
(c) produced by a witness who is not, in the opinion of the Court, under control of the party.
(2) Subsection (1) does not apply to a document that is used solely as a foundation for, or as a part of a question in, cross-examination or re-examination.
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222. (1) Pour l'application des règles 223 à 232 et 295, est assimilée à un document toute information enregistrée ou mise en mémoire sur un support, y compris un enregistrement sonore, un enregistrement vidéo, un film, une photographie, un diagramme, un graphique, une carte, un plan, un relevé, un registre comptable et une disquette.
(2) Pour l'application des règles 223 à 232 et 295, un document d'une partie est pertinent si la partie entend l'invoquer ou si le document est susceptible d'être préjudiciable à sa cause ou d'appuyer la cause d'une autre partie.
223. (1) Chaque partie signifie un affidavit de documents aux autres parties dans les 30 jours suivant la clôture des actes de procédure.
232. (1) À moins que la Cour n'en ordonne autrement ou que les parties n'aient renoncé à leur droit d'obtenir communication des documents, un document ne peut être invoqué en preuve que dans l'un des cas suivant :[mes soulignés]
a) il est mentionné dans l'affidavit de documents de la partie et, selon celui-ci, aucun privilège de non-divulgation n'est revendiqué;
b) il a été produit par l'une des parties ou par une personne interrogée pour le compte de celle-ci pour examen, pendant ou après les interrogatoires préalables;
c) il a été produit par un témoin qui, de l'avis de la Cour, n'est pas sous le contrôle de la partie.
(2) Le paragraphe (1) ne s'applique pas aux documents qui sont utilisés uniquement comme fondement ou partie d'une question posée à un contre-interrogatoire ou à un nouvel interrogatoire
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[23] The bottom line is that failure of a party to disclose a relevant document, in accordance with the Rules is that such party runs the risk of being unable to tender that document in evidence at trial. The affidavit of documents, by itself, is not generally an admissible exhibit. Indeed, affidavit evidence is not entered as evidence at trial without leave of the Court. In this regard, I refer to section 53(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, as follows:
| 53. (1) The evidence of any witness may by order of the Federal Court of Appeal or the Federal Court be taken, subject to any rule or order that may relate to the matter, on commission, on examination or by affidavit.
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53. (1) La déposition d'un témoin peut, par ordonnance de la Cour d'appel fédérale ou de la Cour fédérale, selon le cas, et sous réserve de toute règle ou ordonnance applicable en la matière, être recueillie soit par commission rogatoire, soit lors d'un interrogatoire, soit par affidavit.
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[24] I refer, as well, to Rule 285 which provides as follows:
| 285. The Court may, at any time, order that any fact be proven by affidavit or that the affidavit of a witness be read at trial.
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285. La Cour peut ordonner qu'un fait particulier soit prouvé par affidavit ou que l'affidavit d'un témoin soit lu à l'instruction.
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[25] In the result, it appears to me that the Plaintiffs are operating under a misapprehension as to how evidence is entered in a trial in this Court. The affidavits filed to date in the various interlocutory proceedings are not critical to the conduct of the pending trial. The admission of affidavits in the Ontario courts, including the habeas corpus proceeding before Justice Borkovich, is not relevant to the conduct of proceedings in this Court. Evidence at trial will be given orally, by witnesses, who will testify from the witness box.
[26] The Plaintiffs' motion is dismissed. The costs of this motion will be reserved pending the judgment at trial.
ORDER
The Plaintiffs' motion is dismissed. The costs of this motion will be reserved pending the judgment at trial.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1805-98
STYLE OF CAUSE: Reverend Brother Walter A. Tucker and
Reverend Brother Michael J. Baldasaro
PLACE OF HEARING: Ottawa and Toronto
DATE OF HEARING: November 23, 2004
REASONS FOR ORDER : The Honourable Madam Justice Heneghan
DATED: November 25, 2004
APPEARANCES:
Reverend Brother Walter A. Tucker PLAINTIFF
(Acting on his own behalf)
Reverend Brother Michael J. Baldasaro PLAINTIFF
(Acting on his own behalf)
Mr. James Gorham FOR DEFENDANT
SOLICITORS OF RECORD:
Reverend Brother Walter A. Tucker PLAINTIFF
Hamilton (Acting on his own behalf)
Reverend Brother Michael J. Baldasaro Plaintiff
Hamilton (Acting on his own behalf)
Morris Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Toronto
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