Date: 19990426
Docket: T-39-94
BETWEEN:
CLIFF BEGG, ROLLIE BEGG, BENTLEY BROWN,
DALE CONACHER, KEITH CONACHER,
LAURA CONACHER, MILTON CONACHER,
AND MILES JOHNSON,
Plaintiffs,
- and -
HER MAJESTY THE QUEEN IN
RIGHT OF CANADA, AS REPRESENTED BY
MINISTER OF AGRICULTURE FOR CANADA,
Defendant.
REASONS FOR ORDER AND ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] This Order arises out of a motion, at a case management conference, to further amend the Statement of Claim to reflect documents recently produced by the Crown. The substance of the amendment is that a previously pleaded moratorium imposed by the Crown, on the evaluation of and the slaughter of an elk herd, infected with bovine tuberculosis, under federal legislation, is now seen to have placed the Plaintiffs at risk because the infected animals were not immediately destroyed and removed from the farm. Here I should note that the amendment was also requested, by counsel for the Defendant, so she might safely, in her view, release third party documents.
[2] At the case management conference the Defendant took exception to an affidavit sworn by Plaintiffs counsel, an affidavit which was relied upon to support the amendment, not an unreasonable exception in some circumstances. The Crown's initial position was that consent to the amendment was contingent upon the withdrawal of the affidavit. One must bear in mind that there was no apparent prejudice by reason of the amendment which, as I say, was both as a result of the Crown's recent production of documents and as a result of the Crown's request for an amendment: a compromise thus seemed reasonable.
[3] Counsel for the Crown agreed to recommend that the Crown consent to the amendment, so long as the Crown might reserve its right to challenge the affidavit should the Plaintiffs wish to rely on it in the future. That was to be accomplished by a specific provision in the Order. In line with such give and take counsel for the Plaintiffs, who wished the affidavit to remain in place, was agreeable to the suggested procedure and, moreover, volunteered that since the affidavit was both important to the Plaintiffs and since much of it related to matters in which counsel was personally involved, the Plaintiffs might, at some point in the future, need to hire outside counsel.
[4] Counsel for the Defendant was unable to obtain the desired instructions. Instead, and here some confusion arises, she confirmed her view of the agreement as involving consent to the amendment so long as the affidavit was withdrawn, without prejudice to it being re-filed in opposition to a pending motion for summary judgment and reserving the Crown's right to contest the propriety of filing a solicitor's affidavit in response to the Crown's anticipated motion for summary judgment.
[5] At issue is Rule 82:
| 82. Use of solicitor's affidavit - Except with leave of the Court, a solicitor shall not both depose to an affidavit and present argument to the Court based on that affidavit. |
This rule is a little broader than was perhaps the existing law, for the rule clearly allows the Court to exercise discretion so that, in appropriate circumstances, counsel may both swear an affidavit and present argument.
[6] This is an appropriate instance in which to exercise discretion. In the present instance the amendment is clearly neither prejudicial nor contentious and indeed, was invited. To require withdrawal and re-filing of an affidavit, as the price for consent to an amendment, is not only nonsensical, but also requires the further expenditure of time, money and Court resources. The amendment is allowed, costs to the Plaintiffs, on the terms set out below.
ORDER
| 1. The Plaintiffs may, within the next 21 days, serve and file the Further Amended Statement of Claim. The Defendant may, within the next 21 days of service and filing of the Further Amended Statement of Claim, serve and file a Further Amended Defense; |
| 2. The Defendant may, on reasonable notice, bearing in mind an upcoming summary judgment application, challenge the right of the Plaintiffs to rely, in future, upon the 6 January 1999 affidavit of Mr. Lyle R. Jones; and |
| 3. Costs to the Plaintiffs in any event. |
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
April 26, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
CASE MANAGEMENT
CONFERENCE DATED: April 20, 1999
COURT NO.: T-39-94
STYLE OF CAUSE: Cliff Begg et al.
v.
| Her Majesty the Queen in Right of Canada, as represented by the Minister of Agriculture for Canada |
PLACE OF CASE
MANGEMENT CONFERENCE: Vancouver, BC
REASONS FOR ORDER AND ORDER OF
MR. JOHN A. HARGRAVE, PROTHONOTARY
dated April 26, 1999
APPEARANCES:
Mr. Lyle Jones for Plaintiffs
Ms. Myra Yuzak for Defendant
SOLICITORS OF RECORD:
Jones, Hudec, Riou
North Battleford, SK for Plaintiffs
Morris Rosenberg for Defendant
Deputy Attorney General
of Canada