Date: 20010605
Docket: T-453-00
Neutral Citation: 2001 FCT 594
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
- and -
JACOB FAST
Defendant
[1] The Plaintiff brought a formal notice of motion on April 27, 2001 to have "the Administrator prepare and issue, in the form provided for under Rule 272 of the Federal Court Rules, a Commission naming a Commissioner to take the evidence of the witnesses described in Annex A herein, all residing in Ukraine, on behalf of the Plaintiff for use at trial" together with an order "that the Administrator prepare and issue a Letter of Request addressed to the Procurator-General of Ukraine, for assistance in the form annexed hereto as Annex B, requesting the issuance of such process as is necessary to compel the witnesses, and any other witness who may have relevant evidence to give relating to the Action before the Court, to attend and be examined before the Commissioner" and an Order directing that all costs shall be paid by the Plaintiff, in accordance with Treasury Board Guidelines and as set out in paragraph c) of the notice of motion.
[2] The Plaintiff submitted a pro forma request in accordance with the usual practice of this Court. Orders had been made by this Court on this file on February 8, 2001, March 7, and April 29, 2001, setting out the dates of the Commission.
[3] It appeared that the Defendant had not consented to a Commission based on his counsel's response to the original motion to have a Commission. In order to ensure fairness to the Defendant, the Court decided to deal with the issue as if a Commission had not been agreed to.
[4] A teleconference was held on May 16, 2001 and further submissions were made by the parties on the issue of a Commission. A second teleconference was held on May 30, 2001 and the Court determined that the Plaintiff would not be allowed to submit further materials, as the Plaintiff had ample notice of the issue at hand and the Court had already requested further submissions from the Plaintiff, which the Plaintiff did file with the Court.
[5] It now falls to me to decide whether or not a Commission should be ordered. I note that at the teleconference held on May 30, 2001, the Defendant's counsel stated that he now only takes issue with the materiality of one of the Plaintiff's 9 witnesses, that of Mrs. Sivodid. The Defendant also submits that the Plaintiff has not met the onus required to show that Mrs Sivodid and two of the Plaintiff's other witnesses, Mr. Meshok and Mr. Motyrev, cannot travel to Canada in order to testify. Based on paragraph 14 of the Mr. Poulin's supplementary affidavit, only these 3 witnesses, and Mr. Mezentsev (who it now appears is unable to testify at all) are unable to travel to Canada to testify on account of their advanced age and failing health. Accordingly I have only dealt with the 3 witnesses MESHOK, MOTYREV, and SIVODID in determining whether a Commission should be granted. The Defendant also stated that the Plaintiff has not met the onus required to show that 5 other witnesses listed in Annex A cannot travel to Canada in order to testify. I will determine where the 5 other witnesses should be examined after determining whether a Commission should be granted in respect of the 3 witnesses.
[6] Rule 271(1) and (2) of the Federal Court Rules, 1998, states:
271. (1) On motion, the Court may order the examination for trial of a person out of court.
(2) In making an order under subsection (1), the Court may consider
(a) the expected absence of the person at the time of trial;
(b) the age or any infirmity of the person;
(c) the distance the person resides from the place of trial; and
(d) the expense of having the person attend trial.
[7] The case law indicates that the decision to set up a commission is discretionary and that a four part test be applied. The Defendant's counsel submits that the Plaintiff's affidavit evidence is insufficient to uphold the four part test found in the case law, i.e. (1) that the application is made bona fide; (2) that the issue should be tried by the Court; (3) that the witnesses named are to give relevant evidence material to the issue; and (4) that there is good reason why these witnesses cannot be examined in Canada.
[8] The decision of Addy J. in Doyle v. M.N.R., [1978] C.T.C. 597 (T.D.) gives a good overview of the Court's general view on the granting of Commissions to take evidence. In that case, Mr. Doyle made an application to have his evidence heard by commission in Panama City, as he faced possible arrest and detention upon return to Canada. At page 600, Addy J. cited the unreported reasons of Collier J. in Marubeni Corporation v. The Ship "Star Taranger" and Westfal-Larsen & Co. A/S and Star Shipping Co A/S (July 25, 1977) Doc. T-2991-74, wherein Collier J. stated at page 4:
One can possibly envisage a situation in an action of some kind where all the key witnesses are outside Canada; where there is obviously going to be major conflicts in factual or opinion testimony; where credibility (and assessment of it) would be or prime importance. It may perhaps be that the Court, in that situation, would concluded there were compelling reasons, in a practical sense and in the interest of justice, that a judge should be appointed. While a judge, in those circumstances, might technically be characterized as a mere commissioner, one must look at the position realistically. Basically, the judge would be sitting as a court, making immediate rulings on evidence and other legal points, arriving at tentative, or perhaps final, assessments as to credibility - all this in a foreign jurisdiction.
Addy J. then went on to himself state that:
There is good authority in this court for the appointment of the judge who would be ultimately trying the case as the commissioner to hear evidence in a foreign country, namely the order of former Associate Chief Justice Noël in the case of Rossdeutscher v. The Queen (unreported). In my view such a procedure should be adopted where the ends of justice require it.
....
There is no question but that the granting of a commission is a discretionary matter which must be dealt with according to the particular circumstances of each case. As to the method of exercising that discretion, I am in general agreement with the tests enumerated by Osler JA in the case of Ferguson v. Millican (1905), 11 OR 35 at 39, which tests were approved and applied by the late Steward, J in Niewiadomski v. Longdon, [1956] OWN 762. According to these authorities the court must be satisfied that:
1. The application is made bona fide;
2. The issue is one which the court ought to try;
3. The witnesses to be examined can give evidence material to the issue;
4. There is some good reason why they cannot be examined here.
[9] As stated earlier, the Defendant has raised issues relating to the last two points of the above test. On the issue of the materiality of the proposed witness Mrs. Sivodid, the Plaintiff's counsel, Mr. Poulin, has sworn a supplementary affidavit in which he states at paragraph 8 that Mrs. Sivodid, "was arrested by the SD in Zaporozhye in 1943 and, after being tortured, was sent to the Concentration camp Mathausen from which she was liberated. She is a concentration camp survivor." The Minister alleges at paragraph 5 of her Statement of Claim that, "[from 1941 until 1944, [the Defendant] was a member of, headed, or was associated with, a department of the indigenous auxiliary policy unit in the city of Zaporozhye (known as "Political Police", "Political Department", or even simply "SD" by the locals)". In view of this claim, which forms part of the case that the Minister is attempting to make, her evidence relating to the nature of concentration camps and/or the SD may indeed be relevant to the proceeding at hand. In my view, this is enough to establish on a civil standard that this witness is a material witness for the Plaintiff.
[10] The Defendant submits that the Plaintiff has failed to demonstrate that any of the witnesses listed in Annex A to the Notice of Motion cannot travel to Canada and that therefore a Commission should not be ordered. The three witnesses concerned are Mr. Meshok, Mr. Motyved and Mrs. Sivodid. A fourth witness, Mr. Mezentsev, is no longer capable of testifying. The Defendant has made reference to the jurisprudence, which makes the general statement that the granting of a Commission to receive evidence is an extraordinary measure and that therefore the onus on the party seeking the Commission is a high one. In the Defendant's submission, the Plaintiff has not met this onus in terms of the evidence relating to whether or not the Plaintiff's witnesses are able to travel.
[11] Mr. Poulin, counsel for the Plaintiff, makes reference at paragraph 14 of his supplementary affidavit that 4 of the 9 remaining witnesses are unable to travel to Canada due to their advanced age and failing health. I noted above that one of these 4 witnesses, Mr. Mezentsen, is unable to testify at all in any location. Counsel for the Defendant submits that the transcript of the cross-examination of Mr. Poulin (dated April 27 and May 15, 2001) indicates that there is insufficient evidentiary basis for the Plaintiff's contention that the witnesses Meshok and Motyrev both 75 years old are not fit to travel.
[12] At pages 10-12 of the cross-examination transcript, Mr. Poulin testified that his last personal contact with Mr. Meshok occurred in 1998 and that Mr. Meshok was suffering from failing health at that time. At page 12, Mr. Poulin agrees with Mr. Mattson's statement made at page 11 of the transcript to the effect that:
My question is, at this time, you are not in a position to say if [Mr. Meshok] is deceased or if he is unable to communicate because of ill health?
However, in my view, Mr. Poulin's agreement with this statement does not demonstrate that Mr. Meshok is now in good health. The last known information is that he was unable to travel to Canada due his advanced age and failing health and there is no reason to believe that his situation has improved.
[13] At pages 24-27 of the cross-examination transcripts, Mr. Poulin testified that the transcripts of his examination of Mr. Motyrev were incomplete and that Mr. Motyrev himself had indeed confirmed his wife's statement at the examination that Mr. Motyrev suffers from sclerosis.
[14] Counsel for the Defendant also submits that another witness who is unable to travel, Mrs. Sivodid, age 84, does not have material evidence to give and therefore she does not enter into the equation in terms of deciding whether or not a Commission should be ordered. However, as I have already determined, I am sufficiently satisfied that the evidence of Mrs. Sivodid may be relevant, and therefore her ill-health is still an issue before me. The affiant states that "she is a concentration camp survivor. Since our last meeting, she has lost her sight and she says her health is worse".
[15] In my view, the following statement by Addy J., made in the course of his reasons in Doyle, supra at 601, applies in this case:
In adjudicating between parties on a discretionary matter, a court must not only consider the rights of the parties but the effects which its decision might have on the administration of justice generally.
It is my role to determine, in the context of this case and in light of the interests of justice, whether or not a Commission should be ordered.
[16] In deciding this matter, I may consider the provisions of Rule 271(2) of the Federal Court Rules, 1998, which provide that the Court may consider the following factors: the expected absence of the person at the time of trial, the age or infirmity of the person, the distance the person resides from the place of trial, and the expense of having the person attend trial. In my view, the Plaintiff has demonstrated on a civil standard that three of her witnesses are of failing health and advanced age, rendering them unable to travel. In my view, it would be more prejudicial the Plaintiff to not be able to present her witnesses if a Commission is not ordered, than it would be prejudicial to the Defendant due to his inability to attend the Commission in the Ukraine, if a Commission is ordered by this Court.
[17] In light of the fact that three of the Plaintiff's witnesses must be examined in the Ukraine, it is conducive to the general administration of justice that the other 5 witnesses named in paragraph 15 of the supplementary affidavit of Mr. Poulin also be examined in the Ukraine. This is especially the case as, according to paragraph 15 of the supplementary affidavit of Mr. Poulin, these witnesses "have personal knowledge of the SD Headquarters and the SD prison in Zaporozhye and are able to point out these locations and buildings in Zaporozhye, Ukraine." In my view, the factors of distance and expense for these witnesses from the Ukraine to attend trial in Canada weigh in favour of the ordering of a Commission to take their evidence. Notwithstanding the foregoing, I would urge counsel to discuss the possibility of having one or more of the other 5 witnesses named in paragraph 15 of the supplementary affidavit of Mr. Poulin examined in Canada.
[18] Furthermore, in the context of this case, the general administration of justice calls for a Commission to be set up in the Ukraine in order to gather the relevant evidence. I note that most cases involving similar issues to the present matter have required the setting up of a Commission. In the present case, the affiant notes that "all the witnesses live in poor conditions in the Zaporozhye Oblast". While this does not alter the fact that the Plaintiff must meet the test for the granting of a Commission, it does go some way to demonstrating in my view that the very nature of the case, involving as it does the need to examine historical events in context, warrants the Court ordering what in another context might appear to be an extraordinary measure: that of setting up a Commission to take evidence in a foreign country prior to trial.
[19] The Plaintiff's motion for the Ordering of a Commission to take evidence in Zaporozhye, Ukraine is granted. The Administrator of the Court shall prepare and issue, in the form provided for under Rule 272, a Commission naming a Commissioner to take the evidence of the witnesses MESHOK, MOTYREV, SIVODID, SUPRUN, FOMIN, VASILENKO, KOPAYEVSKAYA, and KUDIN, all residing in the Ukraine, on behalf of the Plaintiff for use at trial.
[20] The Administrator shall prepare and issue a Letter of Request addressed to the Procurator-General of Ukraine, for assistance in the form annexed to the Notice of Motion as Annex B, requesting the issuance of such process as is necessary to compel the witnesses, to attend and be examined before the Commissioner.
[21] It is further ordered that all costs of the Commissioner and the Commissioner's Registry staff and all other costs incidental to the taking of evidence under the Commission to be issued, all other expenses of the parties incidental to the Commission to be issued shall be the responsibility of and shall be recovered from the Plaintiff by the Administrator of the Court.
(Sgd.) "William P. McKeown"
Judge
Ottawa, Ontario
June 5, 2001