PRACTICE |
Evidence |
Commission Evidence |
Canada (Minister of Citizenship and Immigration) v. Fast
T-453-00
2001 FCT 594 McKeown J.
5/6/01
10 pp.
Motion to have Commission issued naming Commissioner to take evidence of witnesses residing in Ukraine--Defendant taking issue with materiality of one of plaintiff's nine witnesses, Mrs. Sivodid--Also submitting plaintiff not meeting onus required to show Mrs. Sivodid and two other witnesses, Mr. Meshok and Mr. Motyrev, cannot travel to Canada in order to testify--Federal Court Rules, 1998, r. 271(1) permitting Court to order examination for trial of person out of court--Case law indicating four-part test be applied: (1) application bona fide; (2) issue should be tried by Court; (3) witnesses named are to give relevant evidence material to issue; (4) good reason why witnesses cannot be examined in Canada--Court's general view on granting of Commissions to take evidence set out in M.N.R. v. Javelin Foundries & Machine Works Ltd., [1978] C.T.C. 597 (F.C.T.D.)--Plaintiff's counsel swearing affidavit in which states Mrs. Sivodid concentration camp survivor--Plaintiff claiming defendant member of department of indigenous auxiliary police unit in city of Zaporozhye (known as SD)--In view of claim, Mrs. Sivodid's evidence relating to nature of concentration camps and/or SD may be relevant--Sufficient to establish on civil standard that material witness--Last known information about Mr. Meshok that unable to travel to Canada due to advanced age, failing health--No reason to believe situation improved--Mr. Motyrev suffering from sclerosis--As Mrs. Sivodid's evidence relevant, her ill health still issue--Affidavit stating since last meeting with plaintiff's counsel, she has lost sight and says health worse--Plaintiff demonstrating on civil standard that three of witnesses are of failing health and advanced age, rendering them unable to travel--More prejudicial to plaintiff to not be able to present witnesses if Commission not ordered, than prejudicial to defendant due to inability to attend Commission in Ukraine if Commission ordered by Court--In light of fact three of plaintiff's witnesses must be examined in Ukraine, conducive to general administration of justice that other five witnesses named in supplementary affidavit of plaintiff's counsel also be examined in Ukraine, especially as these witnesses have personal knowledge of SD Headquarters, prison--Factors of distance, expense for these witnesses from Ukraine to attend trial in Canada weigh in favour of ordering of Commission to take their evidence--Furthermore general administration of justice calling for Commission to be set up in Ukraine in order to gather relevant evidence--Motion allowed--Federal Court Rules, 1998, SOR/98-106, r. 271(1).