Court No. T-2243-93
BETWEEN:
| EDWARD ANDERSON, GARNET WOODHOUSE, |
MARSHALL WOODHOUSE, ROBERT MCLEAN,
| PATRICK ANDERSON, ORMAND STAGG and |
| GEORGE TRAVERSE on their own behalf and on |
behalf of all members of the FAIRFORD FIRST
NATION, a body of Indians described as the Fairford
Band and declared to be a band for the purposes of the
Indian Act by P.C. 1973-3571,
Plaintiffs,
- and -
| THE ATTORNEY GENERAL OF CANADA on behalf |
of HER MAJESTY THE QUEEN in Right of Canada,
Defendant.
REASONS FOR ORDER
(Delivered from the Bench, at Edmonton, Alberta,
Thursday, March 6th, 1997, as edited).
ROTHSTEIN, J.:
This is a motion by the Plaintiffs for an Order enabling them to cross-examine their own witness, John Robinson Tully, as an adverse party under Manitoba Court of Queen's Bench Rule 53.07. The relevant portions of Rule 53.07 provide:
| (1) A party may secure the attendance of a person who is, |
| (a) an adverse party; |
| (b) an officer, director or sole proprietor of an adverse party; or |
| (c) a partner in a partnership that is an adverse party; |
| as a witness at a trial by |
| (d) serving the person with a subpoena,: or |
| (e) serving on the adverse party or the lawyer for the adverse party, at least 10 days before the commencement of the trial, a notice of intention to call the person as a witness; |
| and at the same time paying or tendering attendance money calculated in accordance with Tariff "B". |
| (2) A party may secure the attendance of a person who is a former officer, director, sole proprietor or partner of an adverse party by serving the person with a subpoena under rule 53.04. |
| (4) A party calling a witness pursuant to subrules (1) or (2) may cross-examine him or her, unless, in the case of a party referred to in subrule (2), the court otherwise orders. |
The first issue is whether Manitoba Rule 53.07 is applicable in this case. There is no Federal Court rule allowing a party to call an adverse party as a witness and cross-examine that witness. However, sections 9 and 10 of the Canada Evidence Act, R.S. ch. E-10 do address the question of adverse witnesses in a more limited way.1 Because the subject matter of these proceedings most particularly relates to Manitoba, the Plaintiffs sought to rely upon Rule 5 of the Federal Court Rules, the gap rule, to invoke Manitoba Rule 53.07. However, in Farmer Construction Ltd. v. R., (1983) 48 N.R. 315, an issue similar to the one in this case arose with respect to a British Columbia rule that is similar to Manitoba Rule 53.07. In obiter Pratte, J.A. stated:
| "If we had had to deal with the merits of this appeal, we would not have referred to Rule 5 of the Federal Court Rules but rather to s. 37 (now section 40)2 of the Canada Evidence Act pursuant to which the rules of evidence applicable in British Columbia, including those contained in the Rules of the Supreme Court of that province, were applicable to the trial of this action subject, however, to the Canada Evidence Act and other Acts of Canada. As Rule 40 of the British Columbia Rules is certainly not entirely compatible with s. 9 of the Canada Evidence Act, we would have said that the rules of evidence contained in Rule 40 apply to the trial of this action to the extent to which they do not conflict with s. 9 of the Canada Evidence Act." |
I think Pratte, J.A.'s comments apply to the case at bar.
Although the evidence in question here is being taken in Alberta for the conveinence of Mr. Tully who now lives in Alberta, the proceedings were commenced in Manitoba and will be continued in Manitoba. Although the question is not beyond doubt, I accept this a Manitoba proceeding. As such I am satisfied that Rule 53.07 of the Manitoba Rules is part of the laws of evidence of Manitoba and to the extent to which it does not conflict with section 9 of the Canada Evidence Act, is applicable to these proceedings.
The second issue is whether Mr. Tully is an officer of the Defendant as the term "officer" is used in Rule 53.07. The Plaintiffs concede that Rule 53.07 may not be invoked to cross-examine any employee of an adverse party. However, they say Mr. Tully is an officer of the Defendant and therefore comes within Rule 53.07.
Mr. Tully testified as to his career with the Department of Indian Affairs. He started work with the Department in 1949 as an Assistant Indian Agent. At the time relevant to these proceedings, the early 1960's, he was Superintendent of the Fisher River Indian Agency, Peguis Reserve, Manitoba. By 1980, he had been promoted to Regional Director General, Alberta. Counsel for the Defendant submits that the relevant time at which to consider whether Mr. Tully was an officer of the Defendant was when he worked in Manitoba in the early 1960's. The Defendant says that when he was in Manitoba as Superintendent, he was clearly not an officer of the Defendant.
However, Rule 53.07 contains no condition that in order to be considered an officer for the purposes of the Rule, an individual must have been an officer at the time relevant to the litigation. The purpose of the rule is to ensure that if the evidence of an adverse party is required it may be secured. The rule recognizes that an adverse party, by definition, is adverse in interest to the party seeking his or her evidence and therefore the appropriate way in which to examine that adverse party is by way of cross-examination. Where the adverse party is not a natural person, i.e, a corporation or government, an officer or director is the person whose attendance may be secured and who may be cross-examined. Clearly a present officer or director will have an interest that is, if not identical, similar to the interest of the adverse party. That is why cross-examination is allowed in the case of such a witness. The fact that the evidence given by an officer may relate to a time when he or she was not an officer is not a relevant consideration. If the person at any time has achieved the position of officer with the adverse party, the rule may be invoked.
I therefore turn to consider Mr. Tully's qualifications as Regional Director General, Alberta, the highest line position he held with the Department of Indian Affairs. He described his job in the civil service hierarchy as Executive Officer 3 reporting directly to the Assistant Deputy Minister. He said his position was analogous to a senior vice president for a province with a bank. He was the highest ranking employee of the Department of Indian Affairs in Alberta. While he was not a policy maker he was responsible to ensure that the policy as laid out by the government was properly explained, interpreted and carried out.
It is not easy to know exactly where to draw the line between a senior employee and an officer. Plaintiff's counsel referred to Black's Law Dictionary, which defines an "officer" as a "person holding office of trust, command or authority in corporation, government, armed services or other institutional organization". This definition is of limited assistance because it covers such a wide range. Counsel for the Defendant acknowledged that a Deputy Minister would be an officer of the government but that it would depend on the circumstances of each case how far down the line of authority the designation of officer would also apply. The fact that Mr. Tully was the senior employee of the Department of Indian Affairs in Alberta holding a position analogous to a provincial vice-president for a bank persuades me that for purposes of Rule 53.07 and these proceedings, he was an officer of the Defendant and that the Plaintiffs may therefore invoke Rule 53.07.
The third issue pertains to the discretion given to the Court not to allow cross-examination of a former officer of an adverse party pursuant to subsection 53.07(4). Notably, if a witness is a current officer of an adverse party, the party calling the witness has the right to cross-examine the witness. In the case of a former officer the party calling that witness has that right, unless the Court otherwise orders. The difference in approach as between a current and a former officer can be explained by the interests which each may be seen to have. In the case of a current officer it is presumed that the officer's interest is that of the adverse party and therefore cross-examination is always in order. However, in the case of a former officer that will not necessarily be the case. For example, if a former officer was fired or left under unpleasant circumstances, the opposite may be true. Hence, this must be the reason the Court is given a discretion not to allow cross-examination in the case of a former officer.
Mr. Tully left the Department of Indian Affairs in 1983. He has not been employed by the federal government since. I have no evidence of the circumstances of his departure, but his subsequent employment to which I will refer, gives me no reason to believe he left on anything but good terms. From 1985 to the present he has worked for certain Alberta Indian Bands or First Nations as a consultant. A major part of his work was in dealing with the federal government. He explained that a regular part of his job as a consultant was to try to obtain funds for the Bands from the government. While he was not the type of person who sought out confrontation, some of the issues on which he dealt with the government could have become confrontational. He admitted that he didn't always get what he wanted from the federal government.
It is clear by the effluxion of time and his role as consultant to Indian Bands that there is now substantial distance between Mr. Tully and the Government of Canada. As a consultant, he has been assisting Indian Bands in their dealings with the government. Certainly his current interest is not similar or identical to that of the government. In saying this I do not mean to imply there is anything antagonistic between him and the government, but only that his personal position today, in relation to the government, is very different from what it was when he was Regional Director General of the Department of Indian Affairs for Alberta. These considerations persuade me that this would not be an appropriate case in which Plaintiffs' counsel should be able to treat Mr. Tully as an officer of an adverse party and cross-examine him.
I think the way in which the Plaintiffs have dealt with Mr. Tully in relation to this trial supports this conclusion. The Plaintiffs contacted Mr. Tully in November, 1996 and interviewed him. In preparation for trial, they obtained a statement under oath from him. It appears they have had ample time, opportunity and co-operation to ascertain Mr. Tully's anticipated evidence and take whatever preparatory steps they considered necessary with respect to it. This is not conduct that could normally be pursued with an officer of an adverse party. In the circumstances it would be unfair for Plaintiffs' counsel to be able to cross-examine him. I think Defendant's counsel also makes a good point when he says the Plaintiffs have not dealt with Mr. Tully as a representative of an adverse party but rather as a witness in which there is no property. If the Plaintiffs intended to treat Mr. Tully in the capacity of a former officer of an adverse party for purposes of Rule 53.07 Plaintiffs' counsel would have had to deal with counsel for the Defendant. It would not be appropriate to deal directly with an officer or a former officer of that adverse party when it was represented by counsel. However, that is exactly what was done. In this respect I found the Plaintiffs' position inconsistent. For preparation purposes, they considered Mr. Tully an ordinary witness. But for purposes of the trial they want him treated as a former officer of an adverse party so they may cross-examine him. I do not think they can have it both ways.
I am satisfied the Plaintiffs will not be prejudiced if they deal with Mr. Tully in the usual manner at trial and examine him as their own witness. I would therefore exercise my discretion not to allow Plaintiffs' counsel to cross-examine Mr. Tully.
Judge
__________________1 Sections 9 and 10 of the Canada Evidence Act:
9. (1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement.
(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness' present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.
10. (1) On any trial a witness may be cross-examined as to previous statements that the witness made in writing, or that have been reduced to writing, or recorded on audio tape or video tape or otherwise, relative to the subject-matter of the case, without the writing being shown to the witness or the witness being given the opportunity to listen to the audio tape or view the video tape or otherwise take cognizance of the statements, but, if it is intended to contradict the witness, the witness' attention must, before the contradictory proof can be given, be called to those parts of the statement that are to be used for the purpose of so contradicting the witness, and the judge, at any time during the trial, may require the production of the writing or tape or other medium for inspection, and thereupon make such use of it for the purposes of the trial as the judge thinks fit.
(2) A deposition of a witness, purporting to have been taken before a justice on the investigation of a criminal charge and to be signed by the witness and the justice, returned to and produced from the custody of the proper officer shall be presumed, in the absence of evidence to the contrary, to have been signed by the witness.
2 Section 40 of the Canada Evidence Act provides:
In all proceedings over which the Parliament of Canada has legislative authority the laws of evidence in force in the province in which such proceedings are taken including the laws of proof of service of any warrant, summons, subpoena or other document subject to this and other acts of the Parliament of Canada apply to such proceedings.