Date: 20040121
Docket: T-2682-87
Citation: 2004 FC 82
BETWEEN:
SINCLAIR M. STEVENS
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
[1] This is a motion by the defendant for an order quashing the subpoena, dated April 14, 2003 served on the Ethics Counsellor Howard Wilson.
[2] The Plaintiff wishes to examine Mr. Wilson on conflict of interest standards and procedures employed by the Federal Government.
[3] This matter was commenced as an action under the former Federal Court Rules. The Statement of Claim was filed on December 18, 1987. After the Statement of Claim was filed applications for access to information were filed which were the subject of court decisions.
[4] Paragraph 5(1) (a) of the Statement of Claim reads:
5. In conducting the Inquiry and in making the Report, the Commissioner acted outside of and in excess of his jurisdiction and failed to act in accordance with the principles of natural justice in the following and other respects:
(1) The Commissioner exceeded his terms of reference and jurisdiction and erred in law:
(a) in defining what constitutes a conflict of interest within the meaning of the guidelines for public office holders;
[5] Paragraph 1 of the Reply to the Demand for Particulars reads in part:
1. Paragraph 5 - particulars of the "other respects" in which the Commissioner acted outside of and in excess of his jurisdiction and failed to act in accordance with the principles of natural justice.
Particulars of the "other respects" in which the Commissioner acted outside of and in excess of his jurisdiction and failed to act in accordance with the principles of natural justice include the following:
(i) The Commissioner had no jurisdiction to conduct the Inquiry as the Order-in-Council was contrary to principles of natural justice and procedural fairness and to section 7 of the Charter of Rights and Freedoms and, therefore, was of no force and effect.
In particular, the Commissioner's terms of reference were overly vague and uncertain, as follows:
(a) ...
(b) ...
(c) ...
(d) ...
(ii) ...
(a) ...
(b) ...
(iii) Adopting a definition of "conflict of interest" which was incorrect or, alternatively, patently unreasonable.
[6] The plaintiff pleaded that the definition of conflict of interest adopted by Commissioner Parker was "incorrect or, or alternatively, patently unreasonable" and that Commissioner Parker "exceeded his terms of reference and jurisdiction and erred in law: (a) in defining what constitutes a conflict of interest within the meaning of the guidelines for public officer holders". As a result of the presence of these pleadings I am not prepared to grant the motion to quash the subpoena.
[7] Based on the material before me on this motion, I am not satisfied that the evidence sought to be tendered is not relevant to the issue of whether or not the definition of conflict of interest chosen by Commissioner Parker is as alleged in the statement of claim "incorrect, or alternatively, patently unreasonable".
[8] It should be noted that the weight given to any such admissible evidence will be determined by the trier of fact.
[9] The record to date in this case consists of both evidence that was before Commissioner Parker and other evidence. By way of example Commissioner Parker's testimony before the Parliamentary committee (Document # 104 of the Joint Document Brief) was not before Commissioner Parker. These documents were put in by the agreement of the parties.
[10] The Defendant submitted that since this was a judicial review hearing then only the material that was before Commissioner Parker should be considered by me with the exception of evidence relating to breach of jurisdiction. I agree that under the present rules that this is a correct statement of the law. However, in this case, the claim was commenced as an action with a statement of claim and other pleadings. As a result of the fact, that other evidence is before me that was not before Commissioner Parker and because this matter has been conducted as an action I am not prepared to apply this law in these circumstances to justify the quashing of the subpoena.
[11] Accordingly, I would dismiss the defendant's motion to quash the subpoena.
[12] If required the parties may address the issue of costs of the motion.
"John A. O'Keefe"
J.F.C.
Toronto, Ontario
January 21, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2682-87
STYLE OF CAUSE: SINCLAIR M. STEVENS
Plaintiff
and
THE ATTORNEY GENERAL OF CANADA
Defendant
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 19, 2004
REASONS FOR ORDER: O'KEEFE J.
APPEARANCES:
Peter Jervis
Gillian Hnatiw For the Plaintiff
Sean Gaudet
Kathryn Hucal For the Defendant
SOLICITORS OF RECORD:
Lerners LLP
Barristers & Solicitors
Toronto, ON For the Plaintiff
Morris Rosenberg
Deputy Attorney General of Canada For the Defendant