Date: 20020215
Docket: T-757-00
Neutral citation: 2002 FCT 173
Vancouver, British Columbia, Friday, the 15th day of February, 2002
Present: Mr. John A. Hargrave, Prothonotary
BETWEEN:
EVE KOLLAR
Applicant
- and -
CANADIAN IMPERIAL BANK
OF COMMERCE
Respondent
REASONS FOR ORDER
[1] This motion giving rise to these reasons was filed 13 February 2002, pursuant to Rule 369, a motion in writing. It is an application by Ms. Kollar who relies upon Rule 312(b), which permits cross-examination, with the leave of the Court, when additional affidavits have been filed in an application.
[2] Given the short time available, the judicial review application itself to be heard 19 and 20 February 2002, I have decided the Motion not solely on the basis of a motion in writing, but rather have relied upon the written submissions and affidavit of Ms. Kollar and the representations set out in a 14 February 2002 letter for counsel for the Canadian Imperial Bank of Commerce, supplemented by oral representations from and on behalf of both parties, heard on 15 February 2002.
[3] The additional affidavits upon which Ms. Kollar wishes to examine and which were filed by the Imperial Bank of Commerce serve two purposes. The affidavit of Ms. Veillette, secretary to the Canadian Human Rights Commission, Ottawa, catalogues the documents which were before the Canadian Human Rights commission, as set in a Rule 317 certificate, dated 12 May 2000. It confirms the approximate size of Ms. Kollar's submissions and submission package. It exhibits a brief letter, which was a cover letter to documents sent by the Canadian Human Rights Commission to Ms. Kollar on 11 May 2000. The affidavit is, in effect, a convenient check list of what documents were before the Commission.
[4] The affidavit of Mr. Raymond, Senior Secretariat Officer of the Canadian Human Rights Commission, sets out that he had been a lead investigator assigned to Ms. Kollar's complaint, that he referred the file to a contractor, a Mr. Paul Leroux, 18 February 1997, however Mr. Leroux was unable to begin his investigation and thus returned the file to Mr. Raymond on 14 April 1997, at which point Mr. Raymond himself assumed responsibility for investigating the complaint, until Ms. Ackroyd took over the investigation in January of 1999. The affidavit establishes a negative, that Mr. Leroux had no part as an investigator for the Commission.
[5] While this material and information may well be of assistance to the Court, both as to what does not exist and as a check-list of what was before the Tribunal, the affidavits seem, on their face, to be hardly contentious.
[6] In her submissions and the affidavit in support of this Motion Ms. Kollar refers to forty-seven documents, an order and two affidavits. Counsel for the Respondent advises that seventeen of the documents have already been included in either the Applicant's or the Respondent's Record. The remaining thirty-three documents, all of which, except for the order and the two affidavits at issue here, are referred to in Ms. Kollar's present material, are new documents. These new documents appear to be dated between1996 and 1999. I do not see that these fifty documents have a direct bearing on the Veillette or Raymond affidavits or on any cross-examination of those deponents.
[7] Much of the submission material from the Applicant on this Motion is either argumentative and irrelevant, or submissions which might be made to a judge hearing this matter on its merits, or are long existing documents just now brought forth by Ms. Kollar. Ms. Kollar's argument does not lead either to a conclusion or a summation as to why cross-examination is needed, or indeed upon what relevant aspect cross-examination is required. Ms. Kollar has not convinced me that there ought to be cross-examination on the additional affidavits.
[8] In reviewing both the Veillette and Raymond affidavits I do not see the utility of any cross-examination. To bring those individuals to Vancouver, on short notice and thus full economy class airfare, to accommodate them in Vancouver, to feed them and to provide ground transportation, would cost in excess of $8,000.00.
[9] Leaving aside this approach as to utility, a cost and benefit approach, an examination of the Veillette and Raymond affidavits, in the context of what is presently before this Court on this Motion and in the form of Motion Records for the ultimate hearing, leads one to the conclusion that the two affidavits are extraneous to the question in the principal proceedings which, as I say, are to take place commencing five days from now.
[10] Cross-examination under Rule 312 is discretionary. This is likely so because a party is not bound to cross-examination upon an affidavit: the Court may form its own view without hearing such cross-examination: for example see Re Brace, Ex parte. The Debtor v. H. Gabriel [1966] 2 All E.R. 38 (C.A.). Moreover and this is the real point, cross-examination on an affidavit will not generally be allowed as to matters extraneous to the question in the particular proceedings in which the affidavit has been filed: Re S.B.A. Properties Ltd [1967] 2 All E.R. 615 ch. D at 619.
[11] In the result, the Applicant's Motion for cross-examination is denied.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
February 15, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-757-00
STYLE OF CAUSE: Eve Kollar v. Canadian Imperial Bank of Commerce
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 15 February 2002 (via teleconference)
REASONS FOR ORDER: Hargrave P.
DATED: 15 February 2002
APPEARANCES:
Ms. Eve Kollar APPLICANT
Ms. Kitty Heller RESPONDENT
SOLICITORS OF RECORD:
Ms. Eve Kollar FOR APPLICANT
Owen Bird FOR RESPONDENT
Vancouver, British Columbia