Date: 19980407
Docket: T-938-95
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
JOHANN DUECK
Respondent
REASONS FOR ORDER
NOËL J.:
[1] These reasons issue in relation to an order directing the applicant, the Minister of Citizenship and Immigration, to file an Affidavit of Documents which fully complies with the provisions of Rule 448 of the Federal Court Rules, and a further order granting the applicant"s motion to take commission evidence.
Background
[2] On December 23, 1997, I issued the following order setting down the preliminary procedure to be followed in respect of the applicant"s reference to the Court:
| 1. The respondent shall file a written statement of the position which he intends to take in this reference in conformity with paragraph 58 of the Reasons for Order; |
| 2. The parties shall file and serve an affidavit of documents in full compliance with Rule 448; and at the same time a notice to inspect in conformity with Rule 452; |
| 3. The parties shall, upon becoming aware that the affidavit of documents which they have filed is inaccurate or deficient, serve and file a supplementary affidavit correcting the inaccuracy or deficiency without delay; |
| 4. The parties shall allow inspection of the documents listed in their respective affidavits of documents in conformity with Rule 452; |
| 5. Both parties shall be examined for discovery. In the case of the applicant, the person examined shall be a person selected by her; |
| 6. Either party may by notice call upon the other party to admit any document in conformity with Rule 468(2) and form 23; |
| 7. Either party may by notice call upon the other party to admit facts in conformity with Rule 468(3) and form 24; |
| 8. Any party who intends to adduce expert evidence at the hearing of the reference shall serve and file an affidavit setting out the substance of the proposed evidence of each expert, at least 30 days prior to the commencement of the hearing; |
| 9. The respondent shall file and serve his written statement within 30 days of January 1st, 1998; the affidavits of documents and notices to inspect shall be filed and served with 60 days of January 1st, 1998; the examination on discovery shall be concluded within 120 days of January 1st, 1998; |
| 10. The hearing date shall be fixed upon the disposition of the motion to be filed by the applicant for the taking of evidence abroad. |
[3] On March 2, 1998, the applicant filed a motion to take commission evidence in the Ukraine pursuant to paragraph 10 of the above order.1 On the same day, the applicant also filed its Affidavit of Documents, in purported compliance with paragraph 2 of the order.
[4] Two weeks later, on March 16, 1998, the respondent filed a motion with the Court contesting the adequacy of the applicant"s Affidavit of Documents and seeking the adjournment of the examination for discovery of a representative of the applicant which has been set to begin April 14, 1998.2 Included with this motion was a letter written by counsel for the respondent, announcing his intention to oppose the applicant"s motion to take commission evidence. In this letter, counsel also requested that both the applicant"s and the respondent"s motions be heard together in open Court. This request was granted and on March 27, 1998, the parties appeared before me to debate their respective motions.
Disposition
[5] As regards the applicant"s Affidavit of Documents, the respondent takes the position that Schedule II thereof fails to comply with the provisions of Rule 448 which provides in part:
448. (1) Every party to an action shall file an affidavit of documents and serve it on every other party to the action within 30 days from the close of pleadings or such other period as the parties agree or the Court orders. (2) An affidavit of documents (Form 19) shall contain (a) separate lists and sufficient descriptions of all documents relevant to any matter in issue that (i) are in the possession power or control of the party and for which no privilege is claimed, (ii) are or were in the possession, power or control of the party and for which privilege is claimed (iii) were but are no longer in the possession, power or control of the party and for which no privilege is claimed, and (iv) the party believes are in the possession, power or control of a person who is not a party to the action;
(b) a statement of the grounds for each claim of privilege in respect of a document;
...
| (3) A party may treat a bundle of documents a single document for the purposes of an affidavit of documents, if |
| (a) the documents are all of the same nature; and |
| (b) the bundle is described in sufficient detail to enable another party to clearly understand its contents. |
[6] The applicant"s Affidavit of Documents is composed of four separate Schedules, corresponding to Rule 448(2)(a)(i) through (iv) above. Schedule II lists all of the relevant documents for which the applicant claims privilege. These documents are segregated into seven distinct bundles labelled "A" through "G", an arrangement presumably inspired by Rule 448(3). It is the respondent"s contention however, that these bundles do not satisfy the requirements of that Rule. Insofar as bundles "A" to "F" are concerned, I agree.3
[7] Rule 448(3) allows a party to treat a bundle of documents as a single document under two conditions. The first condition is that the documents be of the same "nature". The second condition is that the bundle be described in sufficient detail to enable a clear understanding of its contents. In my view, Bundles "A" through "F" do not meet either of these two conditions.
[8] Each of Bundles "A" through "F" claim privilege over a wide variety of documentation. Bundle "A" is said to contain a multitude of documents described, inter alia , as "correspondence, memoranda and other communications passing between officers, servants or employees of the Applicant and their legal advisors..." as well as "documents created or assembled and information acquired by or for the use of Applicant"s counsel in the litigation, including investigation reports, briefs, memoranda, translations and working papers". Bundles "B" through "F" then reproduce word for word the description given to the documents contained in Bundle "A". There is no apparent commonality amongst the documents within each bundle. Indeed when pressed, counsel for the applicant conceded that the only common thread running through these documents is the fact that they were all subject to a claim of privilege. Obviously, if this was sufficient to bring documents within Rule 448(3), there would never be any need to list privileged documents.
[9] As the documents in question are not of the same nature, the applicant"s attempt to describe them in bulk cannot possibly allow the respondent to clearly understand the contents of each bundle as Rule 448(3) requires. In the normal course, where a party resists the production of a document on the ground of privilege it must supply a minimum of particulars in respect of that document so as to allow the opposite party to decide whether a challenge is warranted. A proper description would include a brief description, the date, the sender and recipient if any, etc. However, a practice has developed over time whereby a party claiming privilege over a significant number of documents may separate the documents into classes and arrange them in bundles.4 Rule 448(3) has codified this practice. In my view, where documents of the same class or nature are organized in bundles it is not necessary to identify each individual document as this would defeat the very advantage of "bundling".5 However, the less closely related the constituent documents in a bundle, the greater the degree of detail required to adequately describe the bundle"s contents.
[10] In the instant case, no manner of detail could compensate for the dissimilarity in the medley of documents said to comprise each bundle. I note that the applicant"s description of the various bundles is replete with qualifiers such as "including" and the disjunctive "or" and references to "other documents" presumably beyond those specifically noted. These terms offer very little insight and indicate that the applicant does not have a firm grasp of the very documentation over which she claims privilege.
[11] Litigation privilege is an exception to the general rule that parties to an action must fully disclose all information relevant to their dispute. It is a substantive rule that must not be asserted lightly.6 In the words of the House of Lords: "claiming privilege in an affidavit of documents is not like pronouncing a spell, which, once uttered, makes all the documents taboo."7 The party claiming privilege must file an affidavit that is sufficient in identifying the relevant documents and setting forth the particular basis on which the claim rests. As noted by MacKay J. in Samson Indian Band v. Canada, where the Court depends on affidavit evidence it necessarily relies on the due diligence of counsel "as an officer of the court, advising the client upon documents to be listed in full disclosure and upon which ones and for what grounds a claim of privilege may be advanced...".8
[12] In the present instance, it is my opinion that counsel for the applicant did not meet a standard of due diligence in preparing Schedule II of the Affidavit of Documents. While it does appear that due to the nature of this particular citizenship reference a considerable volume of material has accumulated, this does not excuse the applicant from her obligation to act in compliance with the Rules. In any event, the applicant has had ample time to sift through these materials given that this case has been outstanding for some three years.
[13] The applicant is therefore directed to file and serve a revised list of the documents in Schedule II to its Affidavit of Documents. The Schedule in question should only bundle those documents that are of the same nature. The documents must otherwise be listed individually. A two month period was said to be required to file a proper affidavit. The order will provide for compliance on or before May 22, 1998.
[14] As mentioned above, the respondent also resists the applicant"s motion for the taking of commission evidence in the Ukraine. It is the respondent"s position that the applicant has failed to produce the appropriate material in support of her motion. The respondent suggests that the material in question does not establish with certainty the cooperation of the Ukrainian authorities in the conduct of a commission in that country. The respondent further contends that the applicant has not properly demonstrated that the Ukrainian witnesses sought to be examined have any relevant evidence to give.
[15] As regards the first objection, the respondent specifically takes issue with the "Memorandum of Understanding" between Canada and the Ukraine which the applicant has filed in support of her motion. The respondent invokes a trio of cases for the proposition that a commission should not issue in the absence of evidence that the foreign country will authorize the taking of evidence within its borders.9 According to the respondent, the language and the context in which the Memorandum of Understanding
was signed suggest that the Ukraine has pledged assistance to Canada solely in respect of war crimes prosecutions under the Criminal Code. In the respondent"s view, the applicant is not entitled to rely on this document in the furtherance of a citizenship reference, which is civil in nature.
[16] Despite the respondent"s misgivings, I am not convinced that there is an absence of evidence that the Ukraine will assist the Court in this matter. The case law relied on by the respondent merely requires that I be satisfied as to the likelihood of the foreign state"s collaboration. Although the Memorandum of Understanding adduced by the applicant contains references to war crimes and related terminology, I am compelled to take judicial notice of the fact that two commissions have been dispatched to the Ukraine in the past year, both of which enjoyed the full cooperation of the authorities in that country notwithstanding that the commissions arose out of citizenship references to this Court.10 There is no reason to believe that the Ukrainian authorities will not lend their support in this case as well.
[17] The respondent also opposes the motion to take commission evidence on the ground that the applicant has provided no "real evidence" that the witnesses proposed to be examined have relevant evidence to give in this matter.11 Obviously, a condition precedent to the authorizing of a commission is that the court be satisfied that the witnesses to be examined can give evidence material to the issues.12 As the author of the affidavit filed by the applicant in support of her motion does not directly affirm the relevancy of the testimony sought to be adduced by the applicant"s witnesses, the respondent insists that the applicant has failed to establish that the proposed commission will be useful to the advancement of her case. I note, however, that although the respondent has for some time been in possession of witness statements from each of the proposed witnesses, he did not rely on any of these statements to establish their lack of relevance.13 I am satisfied that the witnesses in respect of which the applicant seeks to take commission evidence can give testimony material to the issues in this case. In my view, the respondent"s second objection to the applicant"s motion is based on a pure technicality which must be overlooked.
[18] This brings me to the last question in issue, namely the timing of the commission. The applicant requests that the commission issue now and that the witnesses be heard during the last week of May and the first week of June. In support of that request, the applicant points out that three potential witnesses have already died, a fourth has become mentally incapacitated and all of the remaining witnesses are elderly.
[19] In contrast, the respondent takes the view that it would be premature to issue a commission now having regard to the limited degree of disclosure that will have taken place between the parties if the commission were to set out on the requested dates. The respondent expressed concern over the prospect of embarking upon a commission without having had the benefit of full disclosure.
[20] The issue to be decided thus calls for a balancing of the interests at stake. As Catanach J. stated in Northrop Corporation v. Canada:14
..., a Court would be most reluctant to refuse an order for a commission if that refusal would deny the plaintiff the right to have its case fairly tried, but the converse is equally true. An order for evidence on commission ought not to be granted when to do so would be oppressive or unfair to the opposite party.
[21] Although it would be preferable for the commission to follow the resolution of all pre-trial matters as the respondent argues, Rule 477 clearly contemplates the striking of a commission in advance of the actual proceedings. In this respect, I am satisfied that the applicant"s ability to prove her case is threatened by every additional month that passes. There is a real possibility that key witnesses will pass on before all pre-trial matters are resolved and this reference can be heard.
[22] Considering the matter from the respondent"s perspective, it is difficult to see how the issuance of a commission now would be oppressive or unfair. The respondent is in possession of a certified transcript of the testimony of all the witnesses sought to be examined abroad15 He knows precisely what they will be asked and what they will say in response to the questions asked. These are not conditions for the conduct of cross-examination which can be labelled as unfair or oppressive.
[23] The examination for discovery of a representative of the applicant is also set to begin on April 14, for a ten day period based on an agreement reached between the parties.16 It follows that prior to the commission setting out, the respondent will have the benefit of discovery of the applicant insofar as all matters in issue are concerned and all questions arising out of the documents listed in Schedule 1 of the applicant"s list of documents.
[24] This does leave out any information which the respondent could eventually come upon as a result of the better affidavit which I am ordering with respect to documents which the applicant asserts are privileged. It is also possible that questions will be objected to during the course of the scheduled discovery of the applicant and that information underlying these objections may not be available to the respondent in time for the commission.
[25] However, it is most unlikely that this potential shortfall in information could prejudice the respondent"s ability to examine the announced witnesses during the course of the commission. What these witnesses will testify to are events which they experienced in the Ukraine during or shortly after World War II. These are matters with respect to which the applicant can be of no foreseeable assistance in the context of discovery.
[26] Nevertheless, I agree that the possibility that the respondent may somehow be prejudiced in his ability to examine witnesses in the Ukraine during the course of the requested commission cannot be eliminated altogether. When confronted with this possibility, counsel for the applicant formally undertook on behalf of his client to assume all costs incidental to a second commission,17 should the respondent come to be in a position to show that his ability to examine Ukrainian witnesses was prejudiced by the fact that the commission issued before he had the benefit of all pre-trial discovery.18
[27] Under these conditions, I am satisfied that a commission ought to issue now and travel to Ukraine on the dates requested by the applicant. An order will also issue directing the applicant to file and serve a better Affidavit of Documents on or before May 22, 1998, in conformity with these reasons. The respondent shall have the right to apply for an order compelling the resumption of the examination for discovery of the representative of the applicant upon the better Affidavit being filed by the applicant. The motions are otherwise dismissed.
[28] In conformity with paragraph 10 of the order of December 23, 1997, the hearing of this reference is tentatively set to begin October 6, 1998, at 10:00 a.m. for an eight week period, in Toronto or Ottawa, depending on the preference of the respondent.
Marc Noël
Judge
OTTAWA, ONTRIO
April 7, 1998
__________________1 The applicant requested that this motion be decided without personal appearance pursuant to Rule 324 of the Federal Court Rules .
2 By agreement of the parties.
3 Bundle "G" is said to contain documents subject to public interest immunity for which a certificate under subsection 39(1) of the Canada Evidence Act is pending. No objection appears to have been raised at this juncture with respect to the documents so described.
4 See Hill v. Hart-Davis (1884), 26 Ch. D. 470; Cooke v. Smith, [1891] 1 Ch. 509; Vickery v. C.P.R. [1921] 2 W.W.R. 517; Morse v. Moore Bros. (1916), 10 W.W. R. 966.
5 In Creaser v. Warren et al. (1987), 36 D.L.R. (4th) 147, the Supreme Court of Nova Scotia came to the conclusion that despite a provision in that province"s Civil Procedure Rules allowing for "bundling" a party was nevertheless required to describe each individual document in the bundle.
6 Descôteaux v. Mierzwinski [1982] 1 S.C.R. 860.
7 Birmingham & Midland Motor Omnibus Co. v. London & North Western R., [1913] 3 K.B. 850 at 860 (C.A.) per Hamilton L.J.
8 [1996] 2 F.C. 528, at page 557.
9 Northrop Corporation v. Canada [1974] F.C. J. No. 918 (F.C.T.D.) (unreported) ; Textron Canada Ltd. v. Rodi & Wienenberger Aktiengesellschaft, [1973] F.C. 667 (F.C.T.D.); R. v. Hanson, [1998] O.J. No. 429 (O.C.G.D.).
10 The Minister of Citizenship and Immigration v. Wasily Bogutin, Court file T-1700-96, and The Minister of Citizenship and Immigration v. Serge Kisluk, Court file T-300-97.
11 Paragraph 31 of the respondent"s Memorandum of Fact and Law.
12 Crestbrook Forest Industries Ltd. v. Canada, [1993] 3 F.C. 251 at p. 275; Doyle (JC) v. M.N.R., [1978] C.T.C. 597 at p. 600.
13 Affidavit of Paola Casale, filed March 20, 1998.
15 These were obtained in the course of a prior attempt by the applicant to secure their evidence prior to trial.
16 I do not accept as reasonable the respondent"s request that the agreed upon discovery be postponed on the ground that he will not have an adequate opportunity to prepare. Although the documents disclosed by the applicant are voluminous (approximately 12,000 pages), he will have had possession of the applicant"s documents for three full weeks prior to the scheduled date and there has been over the last three years ongoing disclosure of many of these documents.
17 As is being done with respect to the commission presently being requested.
18 The Court is also mindful of Rule 477(4) which allows it to decline to act on evidence gathered during the commission if the applicant should refuse to proceed with a further commission.