Sierra Club of Canada v. Canada ( Minister of Finance )
T-85-97
Hargrave P.
4/3/99
11 pp.
Two interlocking motions-Applicant's motion for production of documents referred to in, but not exhibited to, two affidavits filed by intervener Atomic Energy of Canada Ltd. (AECL), at reasonable time before deponents to be produced for crossexamination-AECL's motion seeking order it not be required to do so before their respective cross-examinations-Using motion in response to motion not appropriate in most instances-Motions should be opposed on merits and should not be made subject matter of further procedural motions, otherwise, risk of building endless pyramids of motion materials if such rule not enforced: Greens At Tam O'Shanter Inc. v. Canada, [1999] F.C.J. No. 260 (T.D.) (QL)-As already substantial delay herein, nothing would be served by refusing to hear AECL motion-Case of judicial review involving absence of environmental review before federal government financing of CANDU reactors for Qinshan, China-AECL filed affidavits of two Chinese experts-Affidavits refer to and comment upon very substantial number of Chinese technical and legal documents concerning wide variety of environmental and civil issues-AECL saying material referred to very extensive, consisting of over 1000 documents-Applicant concerned will be faced with overwhelming mass of unfamiliar material, some of it in Chinese, at last minute before crossexamination and thus be unable to either properly assimilate or effectively cross-examine on material-AECL's approach, of incorporating by reference but not exhibiting obscure material, possibly not available in West, not one that ought to be encouraged-Might, at least in first instance, shield deponent from any effective cross-examination-Applicant's request, to avoid ambush, not unreasonable-Although AECL correct in arguing Court lacking jurisdiction, applicant may, at end of day, have other effective remedy-Applicant's motion dismissed-Court without jurisdiction to grant applicant early inspection of documents, before cross-examination to take place-Best evidence rule not of any immediate assistance to applicant as dealing primarily with weight to be given to evidence, not with exclusion or production of document at any particular time-Federal Court Rules, rr. 91, 94 providing that, upon request, person being cross-examined on affidavit must produce relevant material in possession, power or control, at examination-Application such as present one to be dealt with without delay and in summary manner-No gap in Rules relating to inspection of documents required for cross-examination in notice to deponent of affidavit to produce certain material-Rr. 91 and 94 contain complete code for provision of documents for inspection on crossexamination-To add requirement that production be at reasonable common sense time, before examination would, unfortunately, be contrary to clear wording as to time of production at examination, set out in rr. 91 and 94-No gap-Court without jurisdiction to order early production-AECL here acting within clear wording of Rules by not providing documents until time of cross-examination-This may well result in further delay and further motions by reason of adjournment of cross-examination and for further cross-examination when counsel for applicant able to properly prepare-AECL should keep in mind delay and perhaps monetary costs in taking present course of action, for intervener not allowed to highjack proceeding by first putting Chinese environmental procedure, legislation and regulation at issue and then not only by not exhibiting material to affidavits, but also by refusing to produce it at sensible time-Costs in the cause-Costs might have been awarded to AECL had it not made procedural lapse-Federal Court Rules, 1998, SOR/98-106, rr. 91, 94.