Sierra Club of Canada v. Canada ( Minister of Finance )
T-85-97
Hargrave P.
10/11/98
21 pp.
Motion by applicant Sierra Club of Canada to require reattendance, at own expense, of John Mundy for further crossexamination on affidavit-Motion by intervener Atomic Energy of Canada Ltd. (AECL) to strike out various affidavits-Motions arising out of sale of two CANDU nuclear reactors to China, financed through branch of Department of Foreign Affairs and International Trade-Sierra Club's application setting out ministers of federal government in breach of duties when failing to ensure Canadian Environmental Assessment Act environmental assessment done in respect of construction in China of two CANDU reactors-Sierra Club initially examining Mr. Mundy on affidavit on June 15, 1998-Now seeking further cross-examination-Affidavit setting out involvement of Department of Foreign Affairs and International Trade (DFAIT) and Minister of International Trade in sale of reactors by AECL-Affidavit containing great deal of information, showing substantial knowledge on part of Mundy-Evidence, if relevant, ought to be admitted unless applicable exclusionary rule-Motions judge, prothonotary having discretion to reject evidence, but discretion to be exercised cautiously, for often proper determination can only be arrived at once all relevant law, fact thoroughly canvassed, task best left to trial judge-R. 91(2) requiring deponent of affidavit, upon cross-examination, to produce all documents relevant to application, motion-Exhibits "B" through "G" clearly relevant in context of sale, financing of two CANDU reactors in question-May form basis for cross-examination of Mr. Mundy-Documents relevant to determination of issues in respect of which Mundy affidavit filed, and to case outlined in application for judicial review-Documents such that reasonable crossexamination on them will not unduly delay proceeding-Mundy must reattend in order to be cross-examined on exhibits "B" through "G"-Motion of AECL to strike out affidavits of Elizabeth May, Jennifer Barnes, Kenneth Rubin, as said to contain irrelevant material, opinion, argument, legal conclusions, hearsay-To maintain efficiency of judicial review proceedings, or any proceeding, parties should not, for most part, be permitted to strike out each other's affidavits-Affidavit, portions of it, may be struck out where abusive, clearly irrelevant, or if party obtained leave to admit evidence proved to be obviously inadmissible-Substantial portions of three impugned affidavits hearsay, not limiting factor by itself as long as certain criteria met-Elizabeth May executive director of Sierra Club of Canada-Portions of her affidavit having less relevance than others-No reason to strike out affidavit, portions of it on that basis, as discretion should be exercised with restraint-Number of paragraphs crossing over boundary to unacceptable opinion, legal conclusion, conjecture, speculation-Paragraphs struck out, in part or entirely-Motion of AECL to strike out affidavits of Jennifer Barnes, Kenneth Rubin, or portions of them, denied-Canadian Environmental Assessment Act, S.C. 1992, c. 37-Federal Court Rules, 1998, SOR/98-106, r. 91(2).