Date: 19980727
Docket: T-577-87
OTTAWA, ONTARIO, THIS 27th DAY OF JULY 1998
PRESENT: THE HONOURABLE MR. JUSTICE NADON
BETWEEN:
IMPERIAL OIL LIMITED
and its subdivisions PARAMINS
Plaintiff
AND:
THE LUBRIZOL CORPORATION
and LUBRIZOL CANADA, LIMITED
Defendants
AND:
DR. FRED W. BILLMEYER JR.
Intervenor
ORDER AND REASONS FOR ORDER
The sole issue for determination is whether counsel for the defendants may cross-examine Marguerite F. Ethier and Ronald C. Walker on their affidavits sworn on April 21 and May 4, 1998 respectively. Ms. Ethier is a partner with the law firm of McCarthy Tétrault and Mr. Walker is vice-president and general counsel of Imperial Oil Limited, the plaintiff.
I shall deal firstly with the Walker affidavit. This affidavit was filed by the plaintiff in support of its motion to have Cullen J. disqualified following two orders that he made on April 29, 1998 dismissing motions brought by the plaintiff. The motion to disqualify was brought by the plaintiff on the ground that Cullen J."s conduct was such as to create a reasonable apprehension of bias in its mind.
That motion was never heard as Cullen J. removed himself prior to the motion being heard. Consequently, the issue of bias is no longer an issue in these proceedings. The sole purpose of Mr. Walker"s affidavit was to explain why the plaintiff believed that Cullen J."s conduct was such as to create a fear of bias. As a result, I am of the view that the defendants cannot be allowed to cross-examine Mr. Walker on his affidavit.
The same affidavit by Mr. Walker was before the Court of Appeal as an exhibit to a solicitor"s affidavit filed in support of an appeal of the orders rendered by Cullen J. on April 29, 1998. One of the grounds of the appeals was that the plaintiff had a reasonable apprehension of bias with respect to Cullen J.. Because the Walker affidavit was appended to a solicitor"s affidavit, it was not then, nor is it now open to the defendants to cross-examine Mr. Walker.
I now turn to Ms. Ethier"s affidavit which the plaintiff filed in support of its motion to remove Lang Michener as solicitors of record for the defendants. This motion has yet to be decided.
The plaintiff takes the position that the defendants cannot examine Ms. Ethier because cross-examination has been waived. Counsel for the plaintiff referred me to the transcript of the April 29, 1998 hearing before Cullen J. and pointed out that counsel for the defendants had decided not to cross-examine Ms. Ethier. Counsel for the plaintiff therefore argues that the defendants should be held to the decision made.
Mr. Nelligan, for the defendants, argues that the decision not to cross-examine Ms. Ethier was made solely for the purpose of not delaying the trial which was to commence on May 11, 1998.
If counsel for the defendants were concerned with the contents of Ms. Ethier"s affidavit, it seems to me that they ought to have cross-examined her. That cross-examination would likely not have taken more than one or perhaps two days to conduct. Surely Cullen J. or any other trial judge would have allowed the cross-examination of Ms. Ethier even if some adjustment of the trial dates became necessary.
I can only conclude that counsel for the defendants did not cross-examine Ms. Ethier because they were not concerned by her affidavit. It is not now open to the defendants to change their position. I am also not convinced that because a different judge is now presiding that the parties should be allowed to rethink past strategy. There may be cases where circumstances would dictate that a party be allowed to change its position, but the circumstances of the case before me are not in that category.
Thus the defendants shall not be allowed to cross-examine Ms. Ethier. Costs shall be in the cause.
"MARC NADON"
Judge