Federal Court Decisions

Date: 19980827

Docket: T-938-95

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

JOHANN DUECK

Respondent

REASONS FOR ORDER

NOËL J.:

[1]      These reasons issue in relation to an Order rendered August 27, 1998, disposing of the respondent"s motion for the following relief:

(a)      An Order requiring the Applicant to answer forthwith the outstanding objections, undertakings and matters taken under advisement during the course of the examinations for discovery of John Lynn Baker, the representative of the Minister of Citizenship (the "Applicant") which were conducted April 14 and April 20 through 24, 1998;

(b)      An Order requiring the representative of the Applicant to re-attend at his own expense to answer further questions properly arising out of the answers to any questions ordered to be answered or any documents ordered to be produced;

(c)      An Order requiring the documents in the possession, power or control of the Royal Canadian Mounted Police relevant to the matters in issue herein be produced to the Respondent forthwith;

(d)      An Order amending paragraph 8 of the Order of December 23, 1997 so that the Respondent is not required to serve and file an Affidavit setting out the substance of the proposed evidence of each expert until September 14, 1998, 23 days prior to the commencement of the hearing;

(e)      Such further and other Order as counsel may advise and this Honourable Court deems just.

[2]      With respect to the matter raised at paragraph (c) above, counsel for the R.C.M.P. and counsel for the respondent have consented to an Order setting out the basis upon which the documents in question will be produced. Having approved the consent Order placed before me during the hearing, I need not address this issue.

[3]      As is evident from the remaining orders requested, the relief presently sought relates to a number of unresolved issues arising out of the respondent"s discovery of the applicant in this matter. Specifically, the respondent demands answers to several undertakings given and questions taken under advisement by the applicant during the examination of its representative, Mr. John Lynn Baker.

Background

[4]      On December 23, 1997, I issued an Order setting down the preliminary procedure to be followed in the litigation of this Reference. That Order directed the parties to conclude their examinations for discovery within 120 days of January 1, 1998. On April 14, the respondent commenced its examination of Mr. Baker. After one day of examination the respondent brought a motion requesting that the applicant name an alternative deponent. This motion was dismissed on April 17 and the examination resumed April 20 through 24, 1998.

[5]      Over the course of the respondent"s examination of Mr. Baker, many undertakings were given by the applicant and many questions were taken under advisement. In the weeks and months following the conclusion of the examination, the parties corresponded regularly and the applicant gradually responded to a significant number of the respondent"s outstanding questions.¹

[6]      On August 18, 1998, the respondent, frustrated with the pace and degree to which his answers were being addressed by the applicant, filed the present motion with the Court. The respondent"s motion materials divided the questions left outstanding from the examination of Mr. Baker into three categories:

1.      Unanswered undertakings;

2.      Unsatisfactory answers to undertakings and matters taken under advisement;

3.      Unanswered matters taken under advisement.2

[7]      Included with the respondent"s motion was a letter from his solicitor, Mr. Peter Doody, dated August 17, 1998, advising that subsequent to his preparation of the motion materials, he had received a 17 page letter from the applicant containing further answers to undertakings, together with approximately 300 documents. As a result, on August 19, 1998, Mr. Doody filed a Supplementary Motion Record with a revised list of the remaining questions in respect of which answers are now being sought. The Supplementary Motion Record also contains the supplementary affidavit of Delinda Hayton, wherein Ms. Hayton explains that the respondent significantly underestimated the number of documents received by the applicant on August 17, 1998. According to this affidavit, the respondent actually received 527 further documents, 318 of which are in English, with the remaining 209 documents in German or in a language using the Cyrillic alphabet.

[8]      On August 24, 1998, Mr.Doody placed a further letter on file with the Court. In this letter, Mr Doody advises that as a result of discussions held between counsel in the period leading up to the date of the hearing, further refinements need be brought to the categories of outstanding questions as set out in the respondent"s Supplementary Motion Record. In his letter, Mr. Doody itemizes in a table the remaining matters in issue between the parties. This table was relied upon by both parties at the hearing and will be referred to in these Reasons in identifying the outstanding questions, undertakings and matters taken under advisement which are to be disposed of.

[9]      Pages 2 and 3 of Mr. Doody"s letter dated August 24, 1998, outline questions with respect to which an Order is sought on consent in conformity with an agreement reached by the parties. The terms of the Order are agreed to. Only the time for compliance remains in issue.

[10]      On the following pages of the letter, the respondent sets out the questions with respect to which the parties could not agree and which necessitate some kind of determination by the Court. These questions³ which were numbered 1 through 23 during the course of the hearing, are reproduced with this numeration in Appendix I to these Reasons.

[11]      The issues raised fall into three broad categories. Questions 14, 15, 16, 17, 20 and 21 seek the production of documents arising out of various intergovernmental exchanges pertaining to Mr. Dueck and are being resisted on the basis that they are protected by the litigation privilege. Questions 1, 2 and 23 are requests for information relating to Cabinet decisions which the applicant maintains can only be fairly responded to by its expert witness. Questions 3, 4, 5, 7, 8, 9, 10, 11, 12 and 13 seek to determine whether the applicant"s potential witnesses know anything of relevance to this case over and above what is or will be stated in their will-say statement, and are being resisted on the ground that the questions as framed are too vague and general. Questions 18 and 19 relate to a different matter but are being resisted on the same ground. Rule 242(1)(d) of the Federal Court Rules, 1998, is also relied upon.

Discussion and Decision

[12]      It is the applicant"s position that it is entitled to resist the production of the documents sought by the respondent through questions 14, 15, 16, 17 , 20 and 21, on the ground of litigation privilege. While counsel for the applicant acknowledged that litigation privilege may only attach to materials created for the dominant purpose of litigation, he contended that the present proceedings have been contemplated for some time. In that regard, counsel alluded to the Deschênes Commission report, issued in the late 1980's, which discussed the possibility of denaturalizing suspected war criminals. In addition, counsel suggested that documentation exists which would indicate that the applicant contemplated citizenship revocation proceedings against Mr. Dueck sometime in 1992. Counsel states that this gives rise to the very difficult issue of determining precisely when the applicant first decided to proceed with this legislation.

[13]      However, this very question as to when the applicant first considered whether to institute proceedings against Mr. Dueck was put to the applicant during discovery and made the subject of an undertaking. This undertaking was fulfilled by Mr. Paul Vickery, counsel of record acting on behalf of the applicant who by letter dated August 14, 1998, confirmed that:

The Department of Citizenship and Immigration first considered the question of whether to institute proceedings against Mr. Dueck on or about July 19, 1994.4

[14]      I am at a loss to see how applicant"s co-counsel can now maintain that the denaturalisation proceeding was envisaged before the date formally confirmed by Mr. Vickery. In any event, he has placed nothing on the record to counter Mr. Vickery"s assertion. On the basis of the response provided by Mr. Vickery, I must conclude that the applicant did not envisage this litigation before the stated date. I therefore find that documents created before July 19, 1994, are not protected from disclosure on the basis of litigation privilege.

[15]      As otherwise the documents sought through questions 14, 15, 16, 17, 20 and 21 appear to be relevant to the issues to be decided in this reference and are reasonably ascertainable, an Order will issue for their production.

[16]      Questions numbered 1, 2 and 23, are requests from the respondent for further information pertaining to Cabinet policy on immigration matters in the late 1940's, the time period of relevance to this proceeding. Questions 1 and 2 refer to a Cabinet direction marked as exhibit no. 32 during discovery. The question that the respondent wishes to have answered is whether the applicant is aware of any Cabinet directive relevant to exhibit no. 32, and particularly whether the applicant is aware of any Cabinet directive tending to contradict the contents of exhibit no. 32. As regards question 23, the respondent wishes to obtain a record of any decision which may have been taken as a result of a memo to Cabinet dated March 27, 1947, marked as exhibit no. 53 at discovery.

[17]      Counsel for the applicant maintains that he cannot in good faith give answers to questions 1, 2 and 23 other than to provide the respondent with the expert affidavit of Nicholas d"Ombrain which he intends to do shortly. According to the applicant, Mr. d"Ombrain"s affidavit will speak to "[t]he progressive development of Immigration and Security screening policy between 1945 and 1948". If I understand counsel correctly, it is his position that having regard to the lack of structure or formality to the Cabinet decision-making process of the day, only an expert is in a position to properly discern what documents reflect Cabinet policy at that time or what could then be considered to be a Cabinet decision or what decisions had been reached by Cabinet at that time.

[18]      While I appreciate that these matters raise an element of complexity which may call for the interpretation of experts, I cannot accept that the applicant is unable to provide materials that on a prima facie basis address the issues raised by exhibits nos. 32 and 53 if such materials exist. In that event, the respondent is obviously entitled to have his own expert(s) peruse these materials in order to opine on their meaning. Questions 1 and 2 will therefore be required to be answered as phased. Question 23 will also be required to be answered on the basis of the same reasoning but without regard to paragraph numbered 1 of exhibit no. 53 which, as noted by counsel for the applicant, is clearly not relevant to the matters here in issue.

[19]      With respect to undertakings 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13, I agree with counsel for the applicant that the questions as framed are too broad to give rise to an order compelling answers. I do however take note of the fact that counsel for the applicant indicated in open Court that with respect to George Francis F. Reynolds and Richard Taillefer (undertakings 11 and 12) a will-say statement will be provided to the respondent as had been done with respect to all the other potential witnesses listed by the applicant. I also find that the two questions relating to trips abroad by governmental officials (undertakings 18 and 19) totally lack in focus and are too general to justify a compelled answer. No Order will be issued with regard to these questions.

[20]      In terms of compliance with the orders issued, counsel for the respondent asked that the responses be provided forthwith having regard to the extensive delays which have already passed. Counsel for the applicant suggested that a period of ten working days would be more reasonable. The Order will provide for compliance on or before September 4, 1998.

[21]      With respect to the respondent"s motion that the time for filing the affidavit(s) of his expert(s) be extended by six days, I agree that the late provision of relevant material justifies such an extension. I also believe however that the applicant should be granted a similar extension in order to avoid a foreseeable request on its part to file a further expert affidavit in reply. The Order will provide for an extension of time to September 14, 1998 for both parties.

[22]      The motion is otherwise dismissed.

[23]      An order is issued today in accordance with these Reasons.

Marc Noël

Judge

OTTAWA, ONTARIO

August 27, 1998

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     APPENDIX I

Undertaking or Matter taken under advisement	Volume	Page	Question	Description
Undertaking - 1 -	II	272	796	With respect to Exhibit 32, to advise of any other Cabinet direction saying something else Ans: We will be relying on the opinion of Mr. Nicholas d"Ombrian in this regard. His report is scheduled to be delivered no later than September 6, 1998.
Undertaking - 2 -	II	274	801	To use best efforts to indicate whether or not there are other Cabinet directives which would be contrary to Exhibit 32 Ans: We will be relying on the opinion of Mr. Nicholas d"Ombrian in this regard. His report is scheduled to be delivered no later than September 6, 1998.
Advisement - 3 -	V	477	1359	With respect to Mr. Donald Cliff"s Affidavit, use best efforts to advise whether he has any information relevant to the matters in issue in this action other than as disclosed in his Affidavit. Ans: We enclose a copy of other statements given by Mr. Cliffe. The affidavits provided to you form a summary of his evidence that we intend to rely upon at trial. He can be expected to have general background knowledge as a result of his position.
Undertaking - 4 -	V	478	1359	With respect to Guy Fredette"s will say statement, other than the will say statement, determine whether he has any knowledge as to matters in issue in this litigation. Ans. We do not currently intend to call Constable Fredette as a witness at trial.
Undertaking - 5 -	V	479	1359	Whether police officer Robert Fnukal has any relevant evidence to give other than what is contained in his can say or will say statement. Ans: We do not currently intend to call Corporal Fnukal as a witness at trial.
Undertaking - 6 -	V	480	1359	Same question with respect to Nicole Jauvin. Ans: We do not currently intend to call Nicole Jauvin as a witness at trial.
Undertaking - 7 -	V	480	1359	Mr. Andrew Kaarsberg"s Affidavit. Determine whether he has any information relevant to the matters in issue in this litigation other than what is disclosed in his Affidavit. Ans: We enclose a copy of other statements given by Mr. Kaarsberg. These statements provided to you form a summary of his evidence that we intend to rely upon at trial. He can be expected to have general background knowledge as a result of his position.
Undertaking - 8 -	V	481	1359	Constable Francois Marcil has provided a will say or can say statement. Determine if he has any information relevant to the matters in issue in this litigation other than what is set out in the can say or will say statement. Ans: We do not currently intend to call Constable Marcil as a witness at trial.
Undertaking - 9 -	V	481	1359	Roger Martineau has provided an Affidavit. Determine whether he has any information relevant to the matters in issue in this litigation other than what is set out therein. Ans: We enclose a copy of other statements given by Mr. Martineau. These statements provided to you form a summary of his evidence that we intend to rely upon at trial. He can be expected to have general background knowledge as a result of his position.
Undertaking - 10 -	V	482	1359	Same question with respect to George O"Leary. Ans: We do not currently intend to call George O"Leary as a witness at trial.
Undertaking - 11 -	V	482	1359	Advise as to any information which George Francis F. Reynolds has which is relevant to matters in these proceedings. Ans: We do not currently intend to call Mr. Reynolds as a witness at trial.
Undertaking - 12 -	V	483	1359	Same undertaking with respect to Richard Taillefer. Ans: We do not currently intend to call Richard Taillefer as a witness at trial.
Undertaking - 13 -	V	483	1359	Inspector George Watson has provided a will say statement. Determine whether he has any information as to matters in issue in this litigation other than what is set out in his will say or can say statement. Ans: We do not intend to call inspector Watson as a witness at trial.
Advisement - 14 -	V	503	1361	In paragraph 2 of the Memorandum of Understanding between the office of the Procurator General of Ukraine and the Department of Justice of Canada dated February 18, 1992 marked as Exhibit "A" to the Affidavit of Roman Waschuk of February 23, 1998 - Produce any documents, if any, which were transmitted to the Procurator General of the Ukraine in respect of Mr. Dueck pursuant to the following paragraph: "In order to commence investigation in Ukraine, the Canadian Party will transmit to the Ukrainian Party requests for assistance which will contain the names of other data of persons in Canada who are suspected of having committed war crimes or crimes against humanity as well as details of the places, dates and crimes alleged to have been committed by the suspects if available and will describe the assistance requested which assistance may be of a type and nature set out in paragraphs 4 and 5". Ans: This is now a refusal.
Advisement - 15 -	V	503	1361	Produce any documents transmitted to any authority in Ukraine by the Canadian authorities in respect of Mr. Dueck whether pursuant to the paragraph or the MOU. Ans: This is now a refusal.
Advisement - 16 -	V	503	1361	Produce documents including statements that were provided to the Canadian authorities by Ukrainian authorities among the Rule 448 list. Ans: This is now a refusal.
Advisement - 17 -	V	504	1361	Produce any documents which were provided to Canadian authorities by representatives of the former USSR in connection with Mr. Dueck. Ans: This is now a refusal.
Advisement - 18 -	V	505	1361	Determine who on behalf of the Canadian authorities made trips to countries other than Canada in order to determine what evidence was available in respect of this matter, what steps they took during those trips, what persons they interviewed, what those persons said, what documents they looked at including documents which have not been produced. Ans: This is now a refusal.
Advisement - 19 -	V	505	1361	Produce any documents in respect of these trips including any notes made by these persons during such trips. Ans: This is now a refusal.
Advisement - 20 -	V	506	1361	Subparagraph 5(d) of the Memorandum of Understanding provides that: "The Ukrainian Party will take all necessary measures to enable the representatives of the Canadian Party to perform forensic examinations of documents or other material evidence which have been located." Produce any forensic examinations which have been carried out in this case. Ans: Reference is made to their letter of May 15, 1998 and their response to the undertaking given at Vol. VI at P. 659: "Ms. Gertler advises that to the best of her knowledge and recollection, forensic testing was done on photographs of Mr. Dueck and a handwriting analysis was conducted as well."
Advisement - 21 -	V	506	1361	Produce any and all documents in respect of such forensic examination. Ans: This is now a refusal.
Advisement - 22 -	V	538	1377	Produce Canadian Government Returns for the immigrants who arrived at Halifax or Quebec City in the six months preceding October 15, 1948. Ans: They advise that this is now a refusal.
Under Advisement - 23 -	IV	333	962	With respect to Exhibit No. 53, Tab 160, Memo dated March 27, 1947, from Mr. Glenn to Cabinet - provide information as to what was the decision of Cabinet which was made as a result of this memorandum and produce a record of the decision. Ans: The progressive development of Immigration and Security screening policy between 1945 and 1948 will be addressed in the report of Mr. Nicholas d"Ombrain.

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¹      Respondent"s Motion Record, Vol. I, Tabs 2D to 2P, 2Z to 2BB.

²           Ibid , Tabs 1A, B and C.

³      Also referred to as "undertakings" or "advisements".

⁴      Supplementary Motion Record of the Respondent, Tab CC, page 6.