Date: 20040206
Docket: T-319-98
Citation:2004 FC 203
BETWEEN:
VOLKSWAGEN CANADA INC.
Plaintiff
- and -
ACCESS INTERNATIONAL AUTOMOTIVE LTD.
Defendant
REASONS FOR ORDER (#1)
(Delivered from the Bench at Calgary, Alberta
on February 5, 2004)
[1] This is the third of three motions which is before the Court today. The first is a motion by the defendant seeking various forms of sanction against the plaintiff where alleged non compliance with the consent order relating to affidavits of documents and production of documents.
[2] The second, is a motion by the plaintiff broadly speaking, seeking to vary or alter the terms of the consent order and the third motion is the motion I now have before me, namely, by the plaintiff seeking leave to introduce a supplementary affidavit into the record of the first motion. As I indicated to counsel at the outset of the hearing, it seemed and still seems to me that the most convenient way to deal with these three motions was in the reverse order of their filing so that we should deal first with the request to file a supplementary affidavit, then when counsel come to argue the other two motions, they will know what the record is before them.
[3] The affidavit needs leave in order to be filed because of the terms of Rule 84.
| 84. (1) A party seeking to cross-examine the deponent of an affidavit filed in a motion or application shall not do so until the party has served on all other parties every affidavit on which the party intends to rely in the motion or application, except with the consent of all other parties or with leave of the Court.
(2) A party who has cross-examined the deponent of an affidavit filed in a motion or application may not subsequently file an affidavit in that motion or application, except with the consent of all other parties or with leave of the Court.
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84. (1) Une partie ne peut contre-interroger l'auteur d'un affidavit déposé dans le cadre d'une requête ou d'une demande à moins d'avoir signifié aux autres parties chaque affidavit qu'elle entend invoquer dans le cadre de celle-ci, sauf avec le consentement des autres parties ou l'autorisation de la Cour.
(2) La partie qui a contre-interrogé l'auteur d'un affidavit déposé dans le cadre d'une requête ou d'une demande ne peut par la suite déposer un affidavit dans le cadre de celle-ci, sauf avec le consentement des autres parties ou l'autorisation de la Cour. |
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[4] The plaintiff has already filed more than one affidavit on the defendant's motion and cross-examinations have been held. The rule is quite clear that a supplemental affidavit cannot in most circumstances be filed.
[5] I am not going to grant the leave sought on rather limited grounds, namely that whether or not it might in some circumstances be proper to file a supplemental affidavit in response to things that took place during the cross-examination of the requesting party's own witness. That is the situation here. I do not need to decide that question. In my view, the affidavit itself simply does not speak to any relevant question that I am going to have to decide today. It deals entirely with the circumstances in which the affiant who is a solicitor for the plaintiff explained and transmitted to his clients overseas the obligation that they had arising from the consent order to produce a supplemental affidavit of documents.
[6] That is not an issue. The supplemental affidavit of documents is accompanied by a solicitor's certificate, the same solicitor whose affidavit is now being offered, that certificate has not been challenged, it would be very difficult to challenge that certificate and I can see no purpose in admitting additional paper in which all really is done is that the solicitor certifies yet again that he did what he was alleged to do and transmitted the consent order to the overseas clients.
[7] The whole thing arose as I indicated a moment ago during the cross-examination of the plaintiff's witness when he was clearly misinformed or ill-informed or ill-prepared and gave some rather confusing and contradictory answers as to when and how his superiors overseas had been advised of the content of the consent order.
[8] I will stop the matter there, I will not allow the filing of the affidavit, the motion will be dismissed. Costs will be dealt with when the third or the first of the motions is dealt with since I propose to deal with costs only at the end of the day.
Judge
Ottawa, Ontario
February 6, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-319-98
STYLE OF CAUSE: Volkswagen Canada Inc. V. Access International Automotive Ltd.
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: February 5, 2004
REASONS FOR ORDER BY THE HONOURABLE MR. JUSTICE HUGESSEN
APPEARANCES:
Michael J. Donaldson For plaintiff
Trent Horne For defendant
SOLICITORS OF RECORD:
Burnet, Duckworth & Palmer LLP
Calgary, Alberta For plaintiff
Sim, Hughes, Ashton & McKay
Toronto, Ontario For defendant