Date:20020514
Docket: T-80-99
Neutral Citation: 2002 FCT 553
BETWEEN:
HANDEL MAITLAND HAMILTON
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] Mr. Handel Maitland Hamilton (the "Plaintiff") brings a motion pursuant to the Federal Court Rules, 1998, rules 282, 286 and 290 for an order allowing his evidence to be presented by way of filing the transcript of his examination for discovery, in lieu of oral or affidavit evidence.
[2] At the same time, Her Majesty the Queen (the "Defendant") brings a motion pursuant to rule 416 for an order that the Plaintiff be required to post security for costs.
[3] The Plaintiff has commenced this action in negligence against the Defendant, claiming damages for personal injuries allegedly sustained while he was an inmate at the Collins Bay Institution, Kingston, Ontario. According to the Statement of Claim, these injuries were allegedly sustained on or about September 5, 1997 when the Plaintiff was stabbed by other inmates at the penitentiary. The basis of the Plaintiff's action is that the Defendant breached a statutory duty to protect him, as an inmate of a federal institution, from harm.
[4] The Defendant denies liability and seeks dismissal of the Plaintiff's action.
[5] The Plaintiff was deported from Canada on or about January 18, 2002. The trial of this matter is scheduled to begin in Toronto on June 10, 2002. According to Plaintiff's counsel, the Plaintiff is impecunious and unable to afford the cost of returning to Canada to testify at the trial, even if a ministerial permit were issued to allow his entry into the country. The Plaintiff seeks to introduce his discovery examination as his evidence at trial, in lieu of personal attendance or the taking of his evidence by commission in Guyana.
[6] The Defendant opposes the Plaintiff's motion and argues that the Plaintiff has failed to demonstrate a basis for departing from the general rule that evidence in a trial will be delivered viva voce and in person.
[7] Furthermore, the Defendant points out that she will be prejudiced if the Plaintiff is permitted to introduce his discovery evidence as the evidence at trial since there will be no opportunity for cross-examination upon that evidence. In this regard, the Defendant relies on the decision of this court in Newfoundland Processing Limited v. "South Angela" (The) (1995), 102 F.T.R. 300 (T.D.) where the court disallowed the use of a discovery examination in lieu of the evidence of the witness.
[8] Finally, the Defendant argues that the Plaintiff has failed to lead sufficient evidence to support the allegation that evidence could not be obtained on commission. There is no evidence, apart from submissions of counsel, as to the difficulty or cost of obtaining commission evidence in Guyana.
[9] This action is proceeding as a simplified action. Rule 299(1) and (2) govern the manner in which evidence will be adduced in a simplified action, and these rules provide as follows:
| 299(1) In the trial of a simplified action, unless the Court directs otherwise, the evidence of each party shall be adduced by affidavit, which shall, subject to rules 279 and 281, be served and filed (a) in the case of evidence of a plaintiff, at least 20 days before the trial; and (b) in the case of evidence of a defendant, at least 10 days before the trial. (2) Unless all adverse parties agree otherwise, a witness whose affidavit evidence is tendered at trial shall be made available for cross-examination at trial. |
299(1) À l'instruction d'une action simplifiée, la preuve de chaque partie est établie par affidavit, sauf directives contraires de la Cour; cet affidavit est, sous réserve des règles 279 et 281, signifié et déposé : a) dans le cas de la preuve du demandeur, au moins 20 jours avant l'instruction; b) dans le cas de la preuve du défendeur, au moins 10 jours avant l'instruction. (2) À moins que les parties adverses n'en conviennent autrement, le témoin dont le témoignage établi par affidavit est présenté à l'instruction est tenu d'être disponible pour contre-interrogatoire à l'instruction. |
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[10] Rule 299(1) allows the parties to introduce evidence by way of affidavit but this rule is subject to the requirement in rule 299(2) which requires the availability for cross-examination of a witness whose evidence has been tendered by affidavit, unless the adverse party agrees to forego that opportunity. In the present case, the Defendant is not prepared to waive her right of cross-examination.
[11] In Newfoundland Processing, supra, the court commented on the value of cross-examination at trial, as follows at pages 302-303:
It should be underlined that the discovery which defendants wish to introduce is that of his own witness conducted by the plaintiff. There are a number of reasons why I am not prepared to allow this evidence to be introduced. In many circumstances, one may be conducting a fishing expedition. Answers usually not subjected to cross-examination could prove to be extremely embarrassing to a party who conducts the discovery and chooses not to make use of it or read from it at trial. To allow a party to read in his own witness' discovery without it having been referred to by the examining party would amount to nothing more than self-serving evidence that could, depending on circumstances, be erroneous or false.
This is an extremely important issue. We could in fact be deviating from the hearsay rule as well as other basic principles of the rules of evidence. It would impede the Court of its opportunity to assess the demeanor or credibility of a witness; the opposing party would be denied cross-examination and would be unable to challenge the testimony of someone providing particularly crucial evidence in a civil action.
[12] In my opinion, the Plaintiff has failed to show why he should be exempt from the general rules and practice regarding the admission of evidence at trial. In light of the principles considered and applied in Newfoundland Processing, supra, and the arguments advanced by the Defendant, I am not persuaded that the Plaintiff should be exempt from the general requirement of attendance for cross-examination. Credibility is an issue in this action and cross-examination remains the best tool of testing credibility.
[13] The Plaintiff's motion for leave to enter his discovery examination as evidence at trial, is dismissed.
[14] I turn now to the Defendant's motion that the Plaintiff be required to post security for costs on the grounds that he is impecunious and without assets in Canada. Rule 416 outlines the circumstances in which an order for security for costs may be granted; the Defendant relies primarily on rule 416(1)(a) which provides as follows:
| 416(1) Where, on the motion of a defendant, it appears to the Court that (a) the plaintiff is ordinarily resident outside Canada, |
416(1) Lorsque, par suite d'une requête du défendeur, il paraît évident à la Cour que l'une des situations visées aux alinéas a) à h) existe, elle peut ordonner au demandeur de fournir le cautionnement pour les dépens qui pourraient être adjugés au défendeur : a) le demandeur réside habituellement hors du Canada; |
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[15] Rule 417 is also relevant and provides as follows:
| 417 The Court may refuse to order that security for costs be given under any of paragraphs 416(1)(a) to (g) if a plaintiff demonstrates impecuniosity and the Court is of the opinion that the case has merit. |
417 La Cour peut refuser d'ordonner la fourniture d'un cautionnement pour les dépens dans les situations visées aux alinéas 416(1)a) à g) si le demandeur fait la preuve de son indigence et si elle est convaincue du bien-fondé de la cause. |
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[16] The Defendant takes the position that an order for security for costs should be granted in this case because the Plaintiff is now ordinarily resident outside Canada. This fact has been admitted by counsel for the Plaintiff. The Defendant then argues that the Plaintiff is not entitled to the benefit of Rule 417 because he has failed to prove impecuniosity, on the record before the court, or that his case is meritorious.
[17] The Plaintiff's cause of action is founded in negligence on the basis of an alleged duty upon the Defendant to provide a secure environment for inmates of a federal penal institution. Counsel for the Plaintiff characterizes the cause of action as "novel".
[18] In my opinion, novelty does not necessarily detract from the merits of a claim. For the purposes of this motion, I do not accept the arguments of the Defendant that the Plaintiff has failed to demonstrate that he has a serious claim on the merits. I am satisfied that the Plaintiff is advancing a serious claim.
[19] An order for security for costs involves the discretion of the court. On the basis of the material before me, I am not persuaded that an order for security for costs should issue in this case, having regard to the nature of the claim advanced by the Plaintiff against the Defendant. The Defendant's motion is dismissed.
[20] Costs of these motions will be costs in the cause.
ORDER
The motions are dismissed. Costs of these motions will be costs in the cause.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
May 14, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-80-99
STYLE OF CAUSE:HANDEL MAITLAND HAMILTON v. HER MAJESTY THE QUEEN
PLACE OF HEARING: OTTAWA
DATE OF HEARING: MAY 13, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: MAY 14, 2002
APPEARANCES:
MR. JOHN HILL FOR PLAINTIFF
MS. NANCY NOBLE FOR DEFENDANT
SOLICITORS OF RECORD:
JOHN L. HILL FOR PLAINTIFF
Toronto, Ontario
MORRIS ROSENBERG FOR DEFENDANT
Deputy Attorney General of Canada