Date: 20011119
Docket: T-1505-95
Neutral citation: 2001 FCT 1268
Toronto, Ontario, Monday the 19th day of November, 2001
PRESENT: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
JOHN ALEXANDER SUMMERBELL
Plaintiff
-and-
HER MAJESTY THE QUEEN
representing Her Majesty's CORRECTIONAL
SERVICE OF CANADA, the COMMISSIONER
OF CORRECTIONS, and the INSTITUTIONAL
HEAD of Her Majesty's Warkworth Penitentiary
Defendant
AMENDED REASONS FOR ORDER AND ORDER
[1] Before me are two motion records for motions in writing. The first by the Crown is dated February 3rd, 2000 and was filed on February 8th, 2000, and was numbered 95 by the Registry (Motion 95). The second motion record is dated February 4th, 2000, was filed February 11th, 2000 and was numbered 111 by the Registry (Motion 111).
[2] Motion 95 seeks an order striking certain questions from the Plaintiff's written examination for discovery of the Defendant. Together with an award of costs on a solicitor and client scale payable forthwith.
[3] On February 18th, 2000, the Registry filed the RESPONDENT'S MOTION RECORD - PRELIMINARY OBJECTION BY PLAINTIFF AGAINST DEFENDANT'S UNSIGNED MOTION RECORD DATED FEBRUARY 3RD, 2000. This document was filed as document 99 in the Registry (Response 99).
[4] On February 24th, 2000, the Registry filed the DEFENDANT'S REPLY TO THE PLAINTIFF'S SUBMISSIONS as document 101 (Reply 101).
[5] Dealing first with the responding Plaintiff's preliminary objection. The Plaintiff asks that the Defendant's motion be dismissed outright with costs in the amount of $1000 against counsel personally. First, the Plaintiff objects, "to being served as I have been with a bunch of unsigned paper." He writes, "this bunch of unsigned documents purports to be a motion record, the contents of which I am unable to ascertain the veracity and, as such, am unable to respond to absent these documents being properly signed."
[6] Second, the Plaintiff objects to the inclusion (in the Record) of "material which is not only absolutely irrelevant to the Defendant's motion in regards to striking certain questions in my written examination but is likewise of no known relevance to either my statement of claim as amended or the statement of defence and is manifestly calculated to embarrass the Court and me to my prejudice." The material objected to was:
(a) The purported transcript of an alleged examination-in-chief of Dr. Angus McDonald from the Ontario Court of Justice (TAB 5 of the Defendant's motion record), and this, if there is any relevance, without the Court at least having the benefit of the transcript of subsequent cross-examination;
(b) The judgment of the Federal Court of Canada in Oswald v. Canada, [1997] F.C.J. 203 D.R.S 97-5653 (TAB 7 of the Defendant's motion record);
(c) Paragraphs 5, 6, and 7 of the affidavit of Susan E. Gunter (TAB 2 of the Defendant's motion record); and
(d) Paragraphs 2 and 3 of "RESPONDENT'S [sic] WRITTEN REPRESENTATIONS" (TAB 8 of Defendant's motion record.)
[7] The Plaintiff asks the Court to "note the enormous prejudice done by Hepner not only in presenting material totally irrelevant to his motion on the Defendant's behalf to strike questions objected to in the written examination but also in presenting material which is significantly incomplete without the Court at least also being given the benefit of the transcript of cross-examination subsequently conducted on Dr. McDonald's purported evidence, all of which constitutes abuse of process on Hepner's part punishable by costs awarded under Rules 400(4) and 404(1)(a) of Federal Court Rules, 1998."
[8] Secondly, all counsel appearing before the Court, including Hepner, are officers of the Court and, as such, have a duty to call to the Court's attention ALL JURISPRUDENCE RELEVANT TO THE ISSUE, whether or not it supports their position:
DeMariav. Canada (Regional Transfer Board), [1988] 2 F.C. 480,
62 C.R. (3d) 248, 18 F.T.R. 68 (T.D.)
Federal Court Act: Section 11(3)
[9] A third objection is found under the heading "Incomplete Motion Record". There the Plaintiff objects to "the Defendant's motion record as being incomplete absent:
(a) a copy of my reply to the Defendant's statement of defence so that the Court has before the complete pleadings; and
(b) a copy of the written examination itself.
Respondent's [sic] Motion Record:Table of Contents, p.3."
[10] The fourth objection is to the grounds set out in the motion and the evidence in the affidavit of Susan E. Gunter. In this regard, the Plaintiff states:
Likewise, I object to the grounds set out in the motion and the evidence given in the affidavit of Susan E. Gunter as being improper for the purposes of objecting to questions on an examination for discovery. The rules are specific as to the exact grounds open on which to base an objection, none of which grounds are shown in the Defendant's motion nor are supported by the evidence contained in Gunter's affidavit:
Notice of Motion: ‘Grounds', p. 5 of Defendant's motion record
Affidavit of Susan E. Gunter: pp. 7 to 10 of Defendant's motion record
Federal Court Rules, 1998: Rule 242
As such, absent evidence of the written examination served on the Defendant, and absent proper, explicit grounds specific to Rule 242 of the Federal Court Rules, 1998, I am unable to respond to the defendant's multiple objections, while the Court itself has been left without the proper grounds and evidence needed on which to properly determine the merits, if any, of the Defendant's motion.
[11] The last objection is to the Defendant's affidavit of documents which he says has not been sworn.
[12] Dealing with the question of unsigned documents, the document which is required to be signed is the document which is filed. A copy has been served on the Plaintiff and there is no requirement that, that copy be signed. The Rules indicate that a non-originating document shall be served before it is filed. It is patent that the same piece of paper cannot be both served and filed. The original filed with the Court is signed. A copy only is served. The documents filed consist of a bound motion record which is signed in ink. That record contains a notice of motion in which the name of the "Deputy Attorney General per Richard G. Hepner" is typed. The affidavit of Susan E. Gunter was signed by her and by the Commissioner on the 4th of February, 2000, and a signed copy is in the motion record. The Rules do not require that a true copy, that is a copy which "quotes and types the ink-signed signature". While he does not say so at this stage in his submissions, it is quite obvious that the "bunch" was tabbed and the Plaintiff was fully able to object to any part of the motion record he wished for the purpose of his preliminary objection and he could equally easily have responded to it.
[13] The Plaintiff's next objection was to the inclusion of allegedly irrelevant material. In the first instance, to the affidavit material including a transcript from the Ontario Court proceedings in which the Plaintiff was involved. The Plaintiff objects in part on the grounds of relevance, and with that objection, I agree. Hypochondria is pleaded. Questions relating to hypochondria are therefore relevant. It is not necessary on this motion to file evidence tending to prove that the Plaintiff is a hypochondriac. That evidence is irrelevant for the purposes of this motion and I will therefore ignore it.
[14] The next objection is to the inclusion of a report of reasons for a decision of the Court. There is certainly no objection in the Crown drawing the Court's attention to any reported case. While it might better have been done in the representations section of the motion record, I have no objection to it being included in the affidavit. It is however, not actually included within the affidavit but is separately filed under TAB 7. Paragraph 5 of the affidavit of Susan E. Gunter is a precis of the evidence of Dr. McDonald contained in the transcript which I have previously ruled should not have been filed at this stage. Paragraph 5 must therefore be ignored.
[15] Paragraph 6 should more properly be in the representation section of the motion record. It is either the opinion of Susan E. Gunter or part of the Crown's argument. In neither case should it have been the subject of an affidavit. Paragraph 7 is likewise more properly in the representation section as it is the Crown's argument. Paragraphs 2 and 3 of the Crown's written representations are just that and there can be no objection to them.
[16] The Plaintiff objects to the fact that the Crown has not filed a transcript of the cross-examination of Dr. McDonald together with his evidence. It would have been quite possible for the Plaintiff to have filed the cross-examination in his response but it, like the transcript itself is irrelevant.
[17] The Plaintiff next states that the Crown's counsel has a duty to call the Court's attention to all jurisprudence relevant to the issue and objects to the failure of counsel to bring to the Court's attention Daoust v. La Reine, [1969] 2 Ex C.R. 129. A case in which the Court held a doctor providing medical services within a penitentiary is a servant of the Crown.
[18] The failure of counsel to bring reports of decided cases to the attention of the Court does not give rise to any claim by an opposing party. No doubt, there will be argument at trial as to whether the doctors alleged to have caused the Plaintiff's damages were servants or independent contractors and in either case whether the doctors fall within the meaning of the word "servant" as used in the Crown Liability and Proceedings Act, R.S., 1985, c. C-50. I do not intend to determine at this time on this motion to strike questions whether the Crown is vicariously liable for the actions of any of the doctors mentioned.
[19] Under the heading "INCOMPLETE MOTION RECORD", the Plaintiff objects to the fact that there is no copy of the REPLY TO THE DEFENDANT'S STATEMENT OF DEFENCE in the Defendant's motion record. There is no requirement to include in a motion record, any material upon which the moving party does not wish to rely.
[20] The second objection under this heading is that a copy of the written examination itself was not exhibited to the affidavits filed in support of the motion. With this objection I agree that the Court must be able to see the questions asked before it can determine whether the questions should be struck out. The Court cannot do this if the questions are not before it. However, the Plaintiff, having written the questions obviously was in no way inconvenienced by the fact that the Defendant had omitted to include a copy of the questions in the record of his motion to strike the questions. I am now in possession of the necessary questions, they having been provided in the Defendant Crown's reply.
[21] Under the heading "Improper Grounds and Affidavit" the Plaintiff states that none of the grounds mentioned in Rule 242 are shown in the Defendant's motion or supported by the evidence in the Gunter affidavit. Rule 242(b) indicates that a person may object to a question which is not relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party. The grounds alleged by the Crown in its notice of motion are as follows "the majority of the questions are not relevant and/or are improper and thus objectionable on that basis." It is patent that at least the ground of lack relevance has been included in the notice of motion.
[22] The next objection is a repeat of the objection to the absence of the written examination questions themselves. The Plaintiff states that absent proper explicit grounds specified in Rule 242 he is unable to respond to the Defendant's multiple objections. Perhaps the most important ground specified in Rule 242 is relevance and that the moving Crown has alleged. As previously pointed out, the Plaintiff having written the questions is not in the least disadvantaged by not having them repeated in the motion record.
[23] The next objection is improper affidavit of documents. The affidavit of Susan E. Gunter sworn the 4th day of February, 2000, in paragraph 8 indicates that attached thereto and marked as exhibit "B" was a true copy of the Defendant's affidavit of documents. The paper is of course not the original affidavit of documents and does not have to be sworn. However, there is a school of thought which indicates that a true copy is one in which such things as the signature of the affiant and the signature of the commissioner for whom the affidavit was sworn should be typed or written in to show that the original was actually signed. I note that Black's Law Dictionary indicates that a true copy does not, "mean an absolutely exact copy but means that the copy shall be so true that anybody can understand it." I think one can assume that in using "anybody" Black's did not mean to include someone who was determined not to.
[24] Under the heading "Requested Order", the Plaintiff is asking that I dismiss the motion outright against all its manifest defects. I shall not do that at this stage because the technical points raised by the Plaintiff if given effect to, would only result in even further delay in the progress of this proceeding to trial. The preliminary objection by the Plaintiff is dismissed.
[25] Dealing now with the part of the motion seeking to strike questions and parts of questions. In question 1, the Plaintiff seeks the full and proper name of the person answering the written examination including middle names and then goes on to ask if that is the name that appears on the deponent's identification such as birth certificate, driver's license, etc. The Plaintiff is entitled to the name and position of the witness only. It is not entitled to an answer to the rest of the question which is struck.
[26] Where the Crown is to be examined for discovery, the Attorney General is to select a representative to be examined. There is nothing in the Rules to indicate that the representative should be or should have ever been an employee of the government. Whoever is selected is under an obligation to inform him or herself and reveal the relevant information in the possession of any employee of the Crown. Questions 9 to 13 are therefore irrelevant and are struck out.
[27] With regard to question 17, the Defendant objects to the last sentence in the question which reads, "Will the Defendant, through its solicitor, undertake to provide the Plaintiff with its answers hereto with a copy of each one of these said documents?" The documents presumably are the documents or some of them listed in the Defendant's affidavit of documents. The Rules provide that the Plaintiff may inspect them and arrange for copies to be made for his use at his own expense. The last part of the question being not contemplated by the Rules is struck out.
[28] Question 18 reads, "Did the deponent make enquiries with Mr. Chambers as to his knowledge of the matters pleaded against him in the statement of claim and contained in the Defendant's said documents signed by him or asked in these questions?" Before the questions were received, there would have been little point in asking Mr. Chambers anything. After the questions were received, the deponent would be under an obligation to inform himself of any information relevant to a question asked which is in the possession of any supposedly knowledgeable employee of the Crown including Mr. Chambers. There is no obligation to ask Mr. Chambers any questions with respect to the Defendant's documents unless an answer would be an answer to a question asked in this discovery. The question is therefore struck out.
[29] Question 19 asks, "Does the deponent know of a Dr. Fiddler?" That part of the question should be answered. "Who is he in relation to the CSC?" That part of the question should be answered. "Which of the Defendant's said documents are signed by or on behalf of Dr. Fiddler?" The documents speak for themselves and this question should not have been asked. It is struck out. As previously noted, the Plaintiff is entitled to arrange for copies of any document in the Defendant's affidavit of documents to be made at his expense. The last sentence of the question will be struck out.
[30] With regard to Question 20, "Does the deponent know of Dr. Maraghi?" That part of the question will be answered. "Who is he in relation to the CSC?" That part of the question will be answered. "Which of the Defendant's said documents are signed by or on behalf of Dr. Maraghi?" For the same reasons as the last part of Question 19 was struck, this last part of Question 20 is struck out.
[31] Question 21 asks, "Has the deponent made enquiries with Dr. Maraghi and Dr. Fiddler as to their knowledge of the matters pleaded about them in the statement of claim and of the contents contained in the Defendant's said documents signed by either of them?" There is no obligation on the Crown to have any contact with these alleged independent contractors. If the Crown did so, and obtained information, it may be that, that information should be produced unless as seems undoubtedly the case, the information was obtained in connection with enquiries being made as a result of the litigation having been commenced for the purposes of the litigation and therefore privileged. Question 21 will therefore be struck.
[32] With regard to the last sentence of Question 24, where it is asked, "Has anyone with whom the deponent made enquiry also signed any of the Defendant's documents contained in schedule 1 of the Defendant's affidavit of documents, and if "yes", which documents and by whom are they signed?" As previously pointed out, the documents speak for themselves. The Plaintiff can answer this question himself by reading the affidavit of documents and this part of the question is therefore struck out.
[33] Question 25 seeks the basis of the Defendant's denial of the Plaintiff's allegations. The Defendant's defence speaks for itself. The Crown has in its representations with regard to Question 26 indicated the general nature of its defence which is sufficient. Question 25 is struck out.
[34] Question 27 seeking a description of each document relied on by the Defendant does not have to be answered as the documents speak for themselves and can be read by the Plaintiff. Question 27 will be struck.
[35] Question 31 seeking information with regard to other acting positions, is irrelevant and is struck out.
[36] Question 32 is irrelevant and is struck out.
[37] Question 33 regarding the present Chief of Health Care Services at Warkworth Penitentiary is irrelevant as the Plaintiff's claim is against or with respect to Dale Chambers only. Question 33 will be struck out.
[38] Question 36 should be answered.
[39] Questions 45 to 48, concerning professionally accepted standards will be the subject of expert evidence and will be addressed by experts. Expert evidence affidavits must be provided in the time indicated in the Rules. Questions 45 to 48 are therefore struck out.
[40] Questions 50 to 52 seek information that the Government of Canada has with respect to published or distributed materials with respect to the disease M.E. What information the Government of Canada has in any of its various departments other than Correctional Services is not relevant to the issue here, which is with respect to the negligence, or alleged negligence of Correctional Services which will depend upon the work of the doctors involved not on the information filed in government departments. Questions 50, 51 and 52 will be struck out.
[41] Questions 60 and 61 seeks information that the Defendant through its solicitors or otherwise has obtained with respect to various diseases. If this information was obtained for the purposes of this litigation, the Defendant would be entitled to claim privilege with respect to any of it. The Questions will be ordered answered subject to the Defendant's right to claim privilege and if it does so, the Questions need not be answered.
[42] Questions 63 and 64 are undoubtedly privileged and do not have to be answered.
[43] Question 65 appears to have been answered.
[44] Question 66 with respect to documents is within the control of the Plaintiff who can read the affidavit of documents and arrange to obtain copies of the various documents. Question 66 will be struck.
[45] Questions 67 to 71 are irrelevant and are struck out.
[46] This action concerns the treatment of the Plaintiff while at Warkworth Penitentiary. Questions with regard to Millhaven Penitentiary appear irrelevant. Questions 73 to 76 are struck out.
[47] Questions 83 to 85 are irrelevant to this action which deals with the treatment the Plaintiff received or did not receive. They are therefore struck out.
[48] Question 91 should be answered, save for the request for copies, which the Plaintiff can obtain as previously mentioned. In ordering an answer to this Question, I am not denying the Defendant's right to claim privilege.
[49] Question 98 appears to have been answered, save with respect to the documents for which an answer will not be ordered.
[50] Question 100 seeks information with regard to reports by duly qualified medical doctors. Those reports and records will speak for themselves. The Question does not have to be answered.
[51] Questions 101 and 102 dealing with the criteria used by duly qualified medical doctors, is information obtainable from those doctors who are not parties to this litigation. The Questions are struck out.
[52] Question 108 is answered by the affidavit of documents, which affidavits speak for itself. No further answer is required. The Question is struck out.
[53] Questions 115 to 119 regarding the qualifications and associations of duly qualified medical doctors can be asked of those doctors and the Questions will be struck out.
[54] Question 120 dealing with contacts between the Defendant and Dr. Fiddler would be privileged. The Question will be struck out.
[55] The same applies to Question 121.
[56] Questions 122, 123 and 124 can be asked of Dr. Fiddler. He is not a party to this action.
[57] The Defendant has indicated that it will answer parts of Questions 136 to 138 but refuses to answer questions with respect to the affidavit of documents and the documents listed therein on the grounds that those documents speak for themselves. As previously indicated, I agree with this position and those parts of the Questions do not have to be answered.
[58] Questions 142 to 147 are not relevant for the reasons set out in the Defendant's motion.
[59] Questions 148 and 149 are irrelevant and are struck out.
[60] With regard to the costs of the Plaintiff's preliminary objection and this motion itself, the Defendant having won on both parts is entitled to its costs but not on a solicitor-client basis and not payable forthwith.
[61] The second motion, Number 111, seeks a contempt order against the Registry Officer who failed to send out an order of Prothonotary Lafrenière until two weeks after that order was made. The Rules require that orders be sent out forthwith. The order was made at a teleconference hearing when the Plaintiff was present and was fully aware of the order. I take notice of the shortage of staff and that the Registry is busy and the fact that the Plaintiff was not seriously inconvenienced, having been present when the order was made and having known what it was. Motion Number 111 is dismissed.
ORDER
1. The motions are disposed of as indicated in the above reasons. Costs of both motions to the Defendant in any event of the cause.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
November 19, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1505-95
STYLE OF CAUSE: JOHN ALEXANDER SUMMERBELL
Plaintiff
-and-
HER MAJESTY THE QUEEN
representing Her Majesty's CORRECTIONAL SERVICE OF CANADA, the COMMISSIONER
OF CORRECTIONS, and the INSTITUTIONALHEAD of Her Majesty's Warkworth Penitentiary
Defendant
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
AMENDED REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: MONDAY, NOVEMBER 19, 2001
WRITTEN SUBMISSIONS BY: John Summerbell
For the Plaintiff, on his own behalf
Richard G. Hepner
For the Defendant
SOLICITORS OF RECORD: John Alexander Summerbell
The Warkworth Penitentiary
P.O. Box 760
Campbellford, Ontario
K0L 1L0
For the Plaintiff, on his own behalf
Page: 2
SOLICITORS OF RECORD:
(Cont'd) Dutton, Brock, MacIntyre & Collier
Barristers & Solicitors
438 University Avenue
Suite 1700
Toronto, Ontario
M5G 2L9
For the Defendant
FEDERAL COURT OF CANADA
Date: 20011119
Docket: T-1505-95
Between:
JOHN ALEXANDER
SUMMERBELL
Plaintiff
-and-
HER MAJESTY THE QUEEN
representing Her Majesty's CORRECTIONAL SERVICE OF CANADA, the COMMISSIONER
OF CORRECTIONS, and the INSTITUTIONAL HEAD of Her Majesty's Warkworth Penitentiary
Defendant
AMENDED REASONS FOR
ORDER AND ORDER