Date: 19991112
Docket: T-1155-99
Ottawa, Ontario, this 12th day of November, 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
PORT ADVISORY COMMITTEE and
HAROLD PEREENBOOM in his personal capacity
and on behalf of THE TORONTO PORT AUTHORITY
Applicants
(Respondents on the Motion)
- and -
HENRY PANKRATZ, JAN WHITELAW,
HERMAN JAN WILTON-SIEGEL, THE GOVERNOR IN COUNCIL
THE MINISTER OF TRANSPORT and the
ATTORNEY GENERAL OF CANADA
Respondents
(Applicants on the Motion)
REASONS FOR ORDER AND ORDER
Sharlow J.
[1] The Toronto Harbour Commission was replaced with the Toronto Port Authority by legislation that came into force on June 8, 1999. The office of Mr. Harold Pereenboom as Chair of the Toronto Harbour Commission was abolished, as were the offices of the other Commissioners.
[2] On June 1, 1999, the Governor in Council decided to appoint several individuals to the Board of Directors of the new Toronto Port Authority effective June 8, 1999. Among those appointed were Henry Pankratz, Jan Whitelaw and Herman Jan Wilton-Siegel, who were nominated by the Minister of Transport. This application for judicial review challenges the nominations of Mr. Pankratz, Ms. Whitelaw and Mr. Wilton-Siegel, as well as their appointments.
[3] One of the applicants is Mr. Pereenboom. The Toronto Port Authority and the Port Advisory Committee are also named as applicants. There is an issue as to whether the Toronto Port Authority should have been named as an applicant, but in any event it has been permitted to intervene.
[4] The respondents are Mr. Pankratz, Ms. Whitelaw and Mr. Wilton-Siegel, the three individuals whose nominations and appointments are challenged, and the Governor in Council, the Minister of Transport and the Attorney General of Canada. For convenience I will refer to the last three respondents collectively as the "Crown".
[5] Pursuant to directions for an expedited hearing, all cross-examinations were to be completed by October 22, 1999. The hearing is scheduled to be heard on December 16 and 17, 1999.
[6] The applicants filed the affidavits of several people, including Mr. Pereenboom and Mr. David Reid. As of June 7, 1999, Mr. Reid was the general manager of the Toronto Port Authority. He had been employed there for more than 24 years. Mr. Pereenboom was cross-examined, but Mr. Reid was not.
[7] Mr. Pereenboom declined to answer a number of questions on cross-examination relating to an alleged severance package for Mr. Reid. The questions suggest that knowledge of the alleged severance package came to the Crown through newspaper reports. The Crown is seeking an order to compel Mr. Pereenboom to answer these questions.
[8] It is agreed that the facts relating to the alleged severance package are not relevant to the validity or propriety of the challenged nominations or appointments to the Board of Directors of the Toronto Port Authority, which is the subject of the application for judicial review.
[9] However, counsel for the Crown argues that the questions must be answered because they bear on the credibility of Mr. Reid and Mr. Pereenboom. He relies on Upjohn Inter-American Corp. v. Minister of National Health and Welfare (1987), 14 C.P.R. (3d) 50 (F.C.T.D.), and in particular this passage from page 56:
| Counsel cross-examining the maker of an affidavit has a wide range of latitude that is circumscribed only by the dictates of relevancy and fairness. Generally, he has the right to put questions covering all matters relevant to the determination of the issue in respect of which the affidavit is filed or that go to credibility. |
[10] No one has suggested that the Toronto Harbour Commission was not entitled to authorize a severance package for Mr. Reid, based on his 24 years of service. If indeed Mr. Reid had a valid claim to a severance package, it is not immediately obvious why the existence of a severance package would reflect negatively on his credibility or that of Mr. Pereenboom. However, despite my doubts on this point, I have assumed that there is some validity to the Crown"s suggestion that this information may have something to do with their credibility.
[11] Counsel for Mr. Pereenboom argues that even if the questions about the alleged severance package relate somewhat to the credibility of Mr. Pereenboom, the principal object of the questions is to impugn the credibility of Mr. Reid. He says that it is unfair to Mr. Reid to require Mr. Pereenboom to answer the questions for that purpose after the Crown passed on the opportunity to cross-examine Mr. Reid.
[12] Material in the record indicates that the Crown has known for some time about certain transactions undertaken by the Toronto Harbour Commission immediately prior to its abolition. Those transactions would have been more or less contemporaneous with any decisions made about an alleged severance package for Mr. Reid.
[13] I infer that the Crown knew or had the means of knowing, well before the decision was made not to cross-examine Mr. Reid, whether or not a severance package for Mr. Reid had been discussed or authorized by the Toronto Harbour Commission. Counsel for the Crown did not suggest any reason why questions relating to the alleged severance package could not have been put to Mr. Reid on cross-examination.
[14] In support of the argument that Mr. Pereenboom should not be required to answer these questions, counsel for Mr. Pereenboom cites the following passage from Browne v. Dunn (1893), 6 R. 67 (H.L.) at 76-77:
| To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to. |
[15] It was not suggested that this venerable principle is not good law. However, counsel for the Crown argued that it does not excuse a deponent from answering questions going to his own credibility, even if the question is also intended to attack the credibility of someone else who has not been cross-examined. I summarize his reasoning as follows. Precluding the answers at this stage will prevent the Crown from using them to attack the credibility of Mr. Pereenboom, which it should be entitled to do. The questions ought to be answered, and the ultimate use of the answers should be left to the judge at the hearing. It will be open to the applicants to argue at the hearing that the answers should not be used to impugn the credibility of Mr. Reid.
[16] I do not accept the Crown"s argument. The thrust of the passage from Browne v. Dunn is that answers obtained on the cross-examination of a witness cannot be used to attack the credibility of another witness without giving that other witness an opportunity to defend his credibility. Why? Because that is not a fair way to determine the credibility of the second witness. In the course of a trial, such cross-examination would be stopped and would not be heard at all. That should also be the case in judicial review proceedings.
[17] I have no doubt that the principal target of these questions is Mr. Reid. The fact that Mr. Pereenboom"s credibility may also be tested is merely incidental. It is obvious that the attempt to justify these questions as relating to Mr. Pereenboom"s credibility was an afterthought. To permit the credibility of Mr. Reid to be attacked through the cross-examination of Mr. Pereenboom would be manifestly unfair to Mr. Reid. In the circumstances of this case, these questions cannot be justified by the marginal chance that the answers may have some bearing on the credibility of Mr. Pereenboom.
[18] For these reasons, the application for an order requiring Mr. Pereenboom to reattend to answer the refused questions is dismissed with costs.
ORDER
The application for an order requiring Mr. Pereenboom to reattend to answer the refused questions is dismissed with costs.
"Karen R. Sharlow"
Judge