Digests

Stevens v. Canada (Attorney General)

T-2682-87

2002 FCT 2, Heneghan J.

3/1/02

29 pp.

Appeal from Prothonotary's order dismissing request for leave to conduct discovery examination of Commissioner Parker and other discretionary orders--Motion seeking order reversing Prothonotary, as well as order allowing examination of Commissioner Parker, including cross-examination, out of court, and use of that evidence upon trial of matter-- Commissioner Parker had been appointed under Inquiries Act to conduct inquiry into allegations of conflict of interest made with respect to conduct, dealings or actions of plaintiff--After Commissioner Parker's submitted report in December 1987, plaintiff instituted action against Commissioner Parker and Attorney General--Commissioner Parker struck as party defendant--Prothonotary dismissed plaintiff's motion on basis had not exhausted all reasonable means in obtaining required information from other sources and upheld Commissioner Parker' objection that not compellable as witness based on deliberative secrecy--Inter alia, plaintiff argued Prothonotary failed to consider context of evidence about role of Commission counsel, in light of fact some 1700 hours of billable time recorded by Commission counsel after close of public hearing and presentation of submissions by counsel, including Commission counsel--Plaintiff also referred to adversarial role played by Commission counsel during hearing and introduction of new issues of alleged conflict of interest not part of original terms of reference for Commission of Inquiry--Motion dismissed--Standard of review herein one of extremely high deference in which court can find procedural unfairness on part of Commissioner Parker, only under "exceptional circumstances"--Prothonotary not clearly wrong in finding plaintiff failed to provide valid reasons for believing Commissioner breached procedural fairness--No error in finding evidence presented by plaintiff failed to support conclusion Commissioner breached principles of natural justice--Second, participation of Commission counsel in writing of report not necessarily violation of procedural fairness, particularly if Commissioner reviewed report, signed it and adopted it as own--Commissioner clearly entitled to establish method of proceeding in discharge of mandate--Authorized to engage and instruct counsel, and to utilize their services as sees fit--Entitled to benefit of presumption will act properly in discharge of duty as Commissioner--As to possibility that Commission counsel involve in writing of final report giving rise to reasonable apprehension of bias, in light of their adversarial role during hearing process, no evidence to support that allegation--Nor evidence that Commissioner abdicated responsibility to discharge his mandate, including writing of report, in proper manner--Questions appearing in plaintiff's written interrogatories falling under protection of deliberative secrecy as directed to matters related to conclusory function, part of Commissioner's mandate--Having regard to his consideration of principles of deliberative secrecy and judicial immunity, Prothonotary not clearly wrong in rejecting argument only Commissioner could give evidence concerning influences which may have been brought by another party, such as Commission counsel, after close of public hearings-- Insufficient evidence to support request to examine Commissioner Parker out of court pursuant to Federal Court Rules, 1998, r. 271--No grounds to allow request to cross-examine Commissioner Parker or even to examine him pursuant to rr. 238, 271--Federal Court Rules, 1998, SOR/98-106, rr. 238, 271.