Date: 19980420
Docket: T-938-95
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
JOHANN DUECK
Respondent
REASONS FOR ORDER
NOËL J.:
[1] The respondent moves on short notice for an order requiring the applicant to select a person other than John Lynn Baker as the person to be examined on discovery on her behalf. The respondent also moves for an order requiring that the applicant produce unexpurgated copies of the documents listed in Schedule I of its Affidavit of Documents.
[2] Counsel for the applicant consented to proceed on short notice in respect of the first motion, but informed the Court that he was not in a position to argue the second motion. Counsel for the applicant also advised that he was not in a position to proceed with his own motion seeking to have the hearing of this reference take place in Toronto. This last motion will proceed under Rule 324 as the applicant had originally requested. Accordingly, these reasons dispose solely of the respondent"s application for an alternative deponent and the consequential adjournment of the discoveries.
[3] It is the respondent"s position that the applicant"s deponent, John Lynn Baker, has failed to reasonably inform himself of matters relevant to this reference, contrary to Rule 458(2). The respondent observes that Mr. Baker is a retired public servant, retained to serve as the applicant"s deponent for the purposes of discovery. The respondent maintains that Mr. Baker"s knowledge of this case is limited and that upon examination he could "produce nothing more than an endless series of undertakings ...".1 In the respondent"s view, Mr. Baker does therefore not properly qualify as "an informed officer, servant or employee" within the meaning of Rule 456(3).2
[4] The respondent"s application in this instance follows on the heels of an examination of Mr. Baker which the respondent aborted less than one full day into the nine days of discovery agreed to by the parties. Counsel for the respondent maintains that it is futile to proceed with discovery of the applicant"s deponent as he "knows nothing of this case other than what he, or anybody else could read."3 Although counsel did not purport to name an alternative deponent he did suggest that a more appropriate candidate would be an individual "in charge" of matters relating to this reference.
[5] In seeking to have the applicant"s deponent replaced in this matter, the respondent relies on Rule 456(4), which authorizes the Court to override the Crown"s right to designate the person to be examined on its behalf. In support of his application counsel for the respondent referred to a decision of this Court, Irish Shipping Ltd. v. The Queen.4 In that case, Collier J. held that it was open to the Court, upon application by the opposing party, to replace the Crown"s selected deponent with a more suitable individual. I note, however, that this case was decided prior to the 1990 amendment to the Federal Court Rules which brought Rule 456(4) into existence.5
[6] In Ermineskin Indian Band v. Canada,6 a case which counsel for the respondent did not seem to be aware of, MacKay J. explained the changes effected by the new Rule 456(4) on the nomination process of a Crown deponent. As regards Irish Shipping and related cases decided prior to the above mentioned amendment, MacKay J. said the following:
In my opinion, those cases must be read in light of paragraph 465(1)(c) of the Rules as it then applied, which provided for "questioning any departmental or other officer of the Crown nominated by the Attorney General ... or by order of the Court". Subsection 456(3) of the Rules now provides for the naming of the deponent by the Crown, and under s. 456(4) of the Rules for the Court "on the application of a party entitled to examine the person selected under paragraph ... (3) [to] order that some other person be examined". It seems clear to me that this means a two-step process, a determination about who shall be nominated as deponent for the Crown to be made by the Attorney General or his deputy, and only thereafter possible intervention by the Court. It is unlikely that intervention would be exercised unless it were to be demonstrated that the nominee of the Crown is not informed, or capable of being informed of the facts essential to the issues upon which discovery is pursued.7
He then went on to explain the principle underlying the Court"s more restricted role in the nomination of the Crown deponent:
This implies a greater recognition than may have been the case under the former Rule, of the role of the deponent in an examination for discovery of the Crown, or a corporation, in binding the Crown or the corporation, as the party the deponent represents, by his or her admissions of fact. That aspect of the deponent"s role necessarily implies that he or she be a person in whom the Crown has reasonable confidence as its representative with implicit authority to bind the Crown.8
[7] It follows that under the new Rule, the choice of the deponent rests entirely with the applicant and unless the respondent can establish that the person nominated is not informed or capable of being informed with respect to the issue relevant to this reference, the Court cannot intervene in the applicant"s selection.
[8] In my view, the respondent has failed to establish either that Mr. Baker is uninformed or incapable of being informed of the issues relevant to this proceeding. As pointed out by counsel for the applicant, Mr. Baker has extensive experience in citizenship and immigration matters, having worked over twenty-seven years in that field in Canada and overseas as a visa officer, Director of Refugee Affairs, legislative draftsmen, officer responsible for complex cases, person charged with the exercise of ministerial discretion, etc. Having regard to his background, Mr. Baker is not a person who can only contribute that which he can gather from the documents as the respondent contends.
[9] The respondent also takes issue with the fact that the deponent was compelled to give numerous undertakings during the first days of discovery.9 This is not surprising when one considers the nature of this case which encompasses events spanning over a forty year period. In Ermineskin Indian Band (supra), MacKay J. notes that the deponent there in question had given "to date" in a case also characterized by its stretch over time, "in excess of 2,500 undertakings."10 Obviously, no single person can possess the answer to all the questions. It is simply unrealistic for counsel for the respondent to expect immediate answers to every question.
[10] The evidence as to what has transpired to date shows that answers were given, undertakings were made and none of the questions asked were refused. There is nothing on the record as presently constituted to suggest that Mr. Baker cannot fully inform the respondent of the case against him assuming of course that the respondent avails himself of his right to discovery. Simply put, counsel for respondent "jumped the gun" when he walked out during the discovery.
[11] On April 7, I denied the respondent's motion to adjourn the examination for discovery. By aborting the discovery on the very first day, counsel has effectively countered that order and squandered three of the nine days which had been set aside for his discovery of the applicant. I have no doubt that counsel brought the present motion in good faith. However, it is now incumbent upon him to make full use of what remains of the time to conduct his discovery even if it now seems clear that it will have to be continued beyond the allocated time.
[12] For these reasons, the respondent's motion for an alternative deponent and for a consequential order adjourning the discoveries is denied. I will however grant the request made by counsel for the respondent in open Court that the examination for discovery of the respondent begin on April 28 rather than April 27, this in order to allow him to move to have the examination of the applicant completed before the respondent is
examined.11 Paragraph 1 of the Direction requiring the respondent to attend at his discovery shall be read accordingly. An Order is issued in conformity with the foregoing.
Marc Noël
Judge
OTTAWA, ONTARIO
April 20, 1998
__________________1 Paragraph 49 of the Respondent"s Memorandum of Fact and Law.
2 The respondent does not take issue with the fact that the deponent is neither an officer or an employee of the Crown. He accepts that a person retained as Mr. Baker was, is a servant of the Crown within the meaning of Rule 456(3).
3 Paragraph 49 of the Respondent"s Memorandum of Fact and Law.
5 Amending Order No. 13, SOR/90-046, section 15.
7 Footnote 6, supra at page 553.
8 Footnote 6, supra at page 555.
9 I would have thought that counsel for the respondent who continues to assert that he needs more time to prepare would have welcomed the extension of the discovery which these undertakings entail.
10 Footnote 6, supra at page 548.
11 As had been argued in the context of the present motion. Should counsel for the respondent wish to move to postpone the examination of his client, the appropriate motion should be brought and made returnable in Ottawa, on Monday April 27, at 10:00 a.m. In that eventuality counsel for the applicant may choose to be heard by teleconference provided that they attend at the office of the Court in Toronto for that purpose