Date: 19991229
Docket: T-34-99
Between:
GABRIEL AZOUZ,
Applicant,
- and -
THE ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
LEMIEUX J.
- . INTRODUCTION
[1] This is an appeal pursuant to s. 51 of the Federal Court Rules, 1998 ("the Rules") from a decision by the prothonotary Richard Morneau on November 10, 1999 which reads:
| [TRANSLATION] |
| ORDER |
| This application is adjourned sine die. |
| In the meantime, the parties will have to comply with the following schedule: |
- . on or before November 17, 1999 the plaintiff will have to determine the current state of health of the deponent Mr. El-Ouataibi;
- . if according to the information received by the plaintiff the deponent"s state of health does not allow him to travel, the plaintiff will have to serve and file on or before November 25, 1999 an affidavit to this effect from a physician;
- . the defendant may then, on or before December 20, 1999, cross-examine the physician who has signed the affidavit by a conference call, the cost of which, together with cost of an interpreter if necessary, shall be paid by the plaintiff;
- . the defendant may, on or before January 14, 2000, serve and file an affidavit from a physician in rebuttal of the testimony of the deponent"s physician; if such an affidavit is filed by the defendant, the plaintiff may cross-examine the deponent on or before January 31, 2000.
[2] The parties agreed that the prothonotary"s order is discretionary and that the judge hearing the appeal should not intervene unless the order is "clearly wrong in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts". This rule is set out in Canada v. Aqua-Gem Investments Ltd. , [1993] 2 F.C. 425 (F.C.A.).
- . BACKGROUND
[3] On January 8, 1999 Gabriel Azouz by judicial review asked the Court to quash a request for information by Revenue Canada to the U.S. Internal Revenue Service. He was not required to file the affidavits he intended to use in support of his application until August 1999, following objections made by the respondent to the request for transmittal of material under Rule 317.
[4] One of these affidavits is that of Mr. El-Outaibi, a resident of Saudi Arabia. His affidavit concerns the incorporation of Jubail Motors Establishment for Commercial Engines, a company created in accordance with the laws of Saudi Arabia, the participation of Gabriel Azouz in that company and the latter"s bank account in New York contemplated by the request for information.
[5] The respondent wished to exercise his right of cross-examining Mr. El-Outaibi by the viva voce method. On October 22, 1999 the plaintiff filed a motion for an order by the Court that this cross-examination should be done in writing. In support of this motion was the affidavit of Nicole Bertrand, judicial assistant in the plaintiff"s law firm, to which was attached Exhibit R-3, a medical report by Dr. Ashoor, which reads:
| 61 years old male, Saudi patient, presented with loss of weight and appetite with lower abdominal pain. |
| He is currently under bed rest and full investigations. |
| It is not advisable that he should travel at present. |
[6] The respondent objected to the order sought. First, she argued that he has the right to determine whether Mr. El-Outaibi is actually incapable of being cross-examined viva voce; he submitted that such a determination is impossible since the affidavit to which Dr. Ashoor"s report was attached was not that of the doctor himself. Further, the respondent disputed the Court"s jurisdiction to make such an order. The prothonotary Morneau partly resolved the issue by his order of November 10, 1999.
- . ANALYSYS
[7] In my view, an understanding of the circumstances of the plaintiff"s motion and the basic principles regarding procedure are the key aspects to understanding the prothonotary Morneau"s order: the affidavit by Nicole Bertrand is not in compliance with Rule 81; the respondent is entitled to cross-examine Dr. Ashoor; the order sought by the plaintiff, namely cross-examination of Mr. El-Outaibi in writing, is an exception to the respondent"s right to cross-examine him viva voce ; the reason given by the plaintiff to justify the exception is a medical one. Further, the content of Mr. El-Outaibi"s affidavit is of substantive importance.
[8] The irregular nature of Nicole Bertrand"s affidavit justified dismissing the plaintiff"s motion that Mr. El-Outaibi"s cross-examination be in writing. From a concern that justice be done, the prothonotary adjourned the motion and made an order which respected the rights of the parties.
[9] In this Court the plaintiff argued that the prothonotary erred in law in requiring that Dr. Ashoor"s affidavit be filed, that he be cross-examined by conference call and that it be at the plaintiff"s expense. He referred the Court to abundant case law and suggested that it apply Rule 4.
[10] The plaintiff"s arguments are without merit and the case law cited is not relevant. The case concerns an interlocutory motion, which does not involve a discussion between expert physicians on the merits or how medical evidence should be presented or challenged. The point of the motion is to determine whether the exception sought by the plaintiff is warranted. To dispose of the motion, quite apart from the question of jurisdiction, what is important is Mr. El-Outaibi"s disability. The prothonotary"s order was directed specifically to this end: establishing the necessary facts.
[11] Rule 90(2) authorizes the prothonotary to order that the cost of a conference call and an interpreter be payable by the plaintiff; Rule 84 also authorizes rebuttal evidence by affidavit. In the circumstances, the prothonotary"s exercise of the discretionary authority is clearly not in error and there is nothing to justify this Court"s intervention.
[12] For these reasons, the appeal is dismissed with costs.
| François Lemieux Judge |
Ottawa, Ontario
December 29, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-34-99 |
| STYLE OF CAUSE: GABRIEL AZOUZ v. |
ATTORNEY GENERAL OF CANADA
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: December 20, 1999 |
| REASONS FOR ORDER AND ORDER BY: LEMIEUX J. |
| DATED: December 29, 1999 |
APPEARANCES:
| Michel Mathieu for the plaintiff |
| Maria Grazia Bittichesu for the defendant |
SOLICITORS OF RECORD:
| Sweibel, Novek for the plaintiff |
Montréal, Quebec
| Morris Rosenberg for the defendant |
Deputy Attorney General of Canada
Ottawa, Ontario
THE ATTORNEY GENERAL OF CANADA,
Respondent.
ORDER
For the reasons given, the appeal from the decision by the prothonotary Richard Morneau on November 10, 1999 is dismissed with costs.
| François Lemieux Judge |
Certified true translation
Bernard Olivier, LL. B.