Date: 20011102
Docket: T-2406-93
Neutral citation: 2001 FCT 1195
BETWEEN:
JAMES W. HALFORD and
VALE FARMS LTD.,
Plaintiffs,
and
SEED HAWK INC., PAT BEAUJOT,
NORBERT BEAUJOT, BRIAN KENT and
SIMPLOT CANADA LIMITED,
Defendants
REASONS FOR ORDER
PELLETIER J.
[1] The issue before me is the admissibility of certain slides taken by, or in the presence of, Mr. Huhtapalo, the witness. Those slides, or paper representations of the slides, were forwarded to counsel for the plaintiff, Mr. Raber, at the beginning of September of this year. Counsel for the defendant Seed Hawk seeks to introduce them into evidence to illustrate the public use of certain devices as part of its case in relation to prior art and anticipation.
[2] The admission of the slides is objected to on the basis of late production, their absence from the defendants' affidavit of documents and the absence of unfettered access to the witness.
[3] Rule 232 is relied upon by both sides in support of their position. They disagree as to whether the witness is one who is within the control of the Seed Hawk defendants.
[4] Rule 232 prohibits, "unless the court orders otherwise" the introduction of documents into evidence which have not been disclosed in a party's affidavit of documents. The purpose of the inclusion of documents into an affidavit of documents is to record their disclosure to the other side.
[5] Rule 226 provides that a party who becomes aware that their affidavit of documents in inadequate shall file a supplementary affidavit of documents "without delay". There is no mention of an order being required to authorize that filing, from which I conclude that disclosure of documents can continue up to the date of trial and perhaps beyond.
[6] In this case, it is clear that there has been disclosure to the other side. To ignore that disclosure by reason of the absence of an entry in an affidavit of documents is to prefer form over substance.
[7] If the defendants are entitled and obligated to make continuing disclosure, what are the plaintiffs rights in the face of that disclosure. The usual remedy is to reopen examinations for discovery to permit questions to be asked about the documents to ensure that the plaintiff is not taken by surprise. This is an optional remedy and in the case of documents originating from third parties, may be of limited utility. Counsel for the plaintiffs concluded with reason that that was the case here.
[8] The next option is an application for an order to examine the source of the documents as a non-party pursuant to Rule 238(1). However, where the source of the documents is not a resident of Canada, the remedy is not available since there is no way of compelling the attendance of the witness at the examination. That said, such an examination could, theoretically, take place when the witness attends in Canada, if indeed he does, to give evidence. But in practical terms, that remedy was not available either.
[9] The final option is to interview the witness and that was attempted in this case. The difficulty is that on the eve of the interview, the witness advised that counsel for the Seed Hawk defendants would be present at the interview. Counsel for the plaintiff took the position that it was of no use to him to interview the witness in those circumstances and declined to pursue the question of an interview.
[10] I heard much argument about the retainer of the witness by the defendants and the effect which that might have on this issue. In my view, it has no effect in so far as Rule 232 is concerned because there has been disclosure. Does it have any influence in so far as the question of the interview is concerned? It may be that the witness felt it advisable to have defendant's counsel at the interview because of some question as to the effect of his retainer upon his ability to answer questions. Or, being unfamiliar with common law civil procedure, he may have been uncertain as to what his rights and obligations were. Whatever the reason, I am satisfied that the request for the presence of counsel originated with the witness and did not represent an attempt by the defendants to limit access to the witness. The witness was under no obligation to agree to an interview and could stipulate such conditions as he chose.
[11] In the normal course, the remedy available to counsel who is refused an interview by a witness is to cross-examine the witness and attempt to show partiality. There is nothing about the circumstances of this fact witness which takes his response to a request for an interview outside the normal rules. He will be available for cross examination and the question of independence and partiality can be explored at that time. It is not grounds for refusing to admit documents which are sought to be put into evidence through the witness.
[12] Faced with this, one might ask oneself if the issue is not whether there is a point at which counsel can assume that the case he has to meet is set and that he can conduct his trial preparation accordingly. There is not only the issue of disclosure but also the issue of timely disclosure. Is the fact that the character of the case to be met may be changed by late disclosed documents a reason to exclude those documents. The answer, in my experience, is no. The remedy for lack of timeliness is an adjournment to permit a party to pursue the remedies otherwise provided by the rules. It is not to exclude evidence which would otherwise be admissible.
[13] In my view, having been disclosed, the slides in question are admissible if they meet the normal requirements for admissibility.
[14] Mr. Raber challenges whether the slides do in fact meet the normal conditions of admissibility. He says that the witness is unable to identify the subject matter of the slides in the sense of identifying when and where they were taken and the subject matter of the slides. Mr. Huhtapalo's evidence on this point is not particularly specific but he is able to say that they are slides taken by him or in his presence with his camera of the operation of two machines in a radius of approximately 70 kilometres of Upsalla between 1965 and 1972. In my view, this meets the fairly low threshhold of admissibility. What the slides will prove if that is the only evidence he can give as to the circumstances of their taking is another question.
[15] Mr. Raber also challenges the admissibility of the slides on the basis that they were out of Mr. Huhtapalo's control or possession. My notes of the evidence is that they were taken while he was employed by the Swedish University of Agricultural Science where he says he found them, first in 2000 and then in his corrected evidence, in 2001. I understand his evidence to be that they were forwarded to counsel by a colleague at that institution at his request. I take it from this that they have been in the custody of a stranger to the action. The opportunity for altering the slides is a matter for cross-examination.
[16] In the end result, while it may be that after cross examination the evidentiary value of the slides may be minimal, a matter which remains to be decided, that does not make them inadmissible. The motion to have the slide admitted in evidence is granted.
"J.D. Pelletier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: T-2406-93
NEUTRAL CITATION NO: 2001 FCT 1195
STYLE OF CAUSE: James W. Halford and Vale Farms Ltd. v. Seed Hawk Inc., Pat Beaujot, Norbert Beaujot, Brian Kent and Simplot Canada Limited
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: October 15, 2001
REASONS FOR ORDER OF
THE HONOURABLE MR. JUSTICE PELLETIER
DATED NOVEMBER 2, 2001
APPEARANCES
Steven Raber for the Plaintiff
Dean Giles
Alexander Macklin for the Defendant-Seed Hawk
Doak Horne
Wolfgang Riedel for the Defendant -Simplot
SOLICITORS OF RECORD
Fillmore Riley for the Plaintiff
1700 Commodity Exchange Tower
360 Main Street
Winnipeg, MB R3C 3Z3
Gowlings for the Defendant-Seed Hawk
Suite 1400
700 - 2nd Street S.W.
Calgary, AB T2P4V5
Meighen, Haddad & Co. for the Defendant-Simplot
Barristers & Solicitors
P.O. Box 22105
110 - 11th Street
Brandon, MB R7A 6Y9
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