Date: 19990910
Docket: T-1770-98
BETWEEN:
DR. GIORGIO COPELLO
Applicant
- and -
THE MINISTER OF FOREIGN AFFAIRS and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion seeking an order of the Court granting the applicant leave to examine Mr. Alain Dudoit, Chief of the Office of Protocol of the Department of Foreign Affairs and International Trade, in relation to issues of fact raised in this application.
[2] Even though there is no time limit under Rule 316 to bring a motion to the Court, the Court has to consider that the pleadings are closed, the requisition for a hearing has already been filed on July 9, 1999 and the cross-examination of William Bowden was conducted on January 25, 1999.
[3] I understand that the reason why the applicant wants to examine Mr. Alain Dudoit is because the applicant is not satisfied with the cross-examination of Mr. Bowden given that the applicant suggests that Mr. Bowden did not answer over forty questions.
[4] I my view, the applicant has failed to explain the delay in bringing the within motion.
[5] Pursuant to Rule 316,
| ...the Court may, in special circumstances, authorize a witness to testify in court in relation to an issue of fact raised in an application. |
| (my emphasis) |
[6] As suggested by counsel for the respondent,
| The Court held that it was exceptional to depart from the practice of conducting motions on the basis of documentary evidence.1 |
[7] Also the Court has recently decided that a similar standard applies under the Federal Court Rules , 1998,
| In judicial review applications, one does not make evidence with oral testimony except in exceptional circumstances. Evidence is made by affidavit (Rule 316).2 |
[8] As suggested by counsel for the respondent, affiants put forward by parties in application, are subject to being cross-examined but there is no general right of discovery. Cross-examination is not a fishing expedition.
[9] Any party could cross-examine any affiant under knowledge of the facts, if they are not satisfied with the answers. This is something they could raise before the Court and the parties could even sustain that the affidavit is not strong enough to support the party"s position.
[10] The applicant failed to convince the Court that to allow examination of a witness pursuant to Rule 316 at this stage, would be reasonable given that I do not see any exceptional circumstances to justify it.
[11] For these reasons, the motion is dismissed with costs established at $300.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 10, 1999
__________________1 Cyanamid Canada Inc. v. The Minister of National Health and Welfare (1992), 52 F.T.R. 22 at 31 (T.D.).
2 Tunda v. Canada (Minister of Citizenship and Immigration, [1999] F.C.J. No. 821, May 31, 1999.