Federal Court of Appeal Decisions

Date: 20021125

Docket: A-3-02

(Trial Division: DES-2-01; DES-3-01)

Neutral citation: 2002 FCA 470

CORAM:        STONE J.A.

LÉTOURNEAU J.A.

SEXTON J.A.

BETWEEN:

                    JOSE PEREIRA E HIJOS, S.A. and ENRIQUE DAVILA GONZALEZ

                                                                                                                                             APPELLANTS

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                           RESPONDENT

                                          Heard at Ottawa, Ontario, on November 12, 2002.

                               Judgment delivered at Ottawa, Ontario, on November 25, 2002.

REASONS FOR JUDGMENT BY:                                                                                        STONE J.A.

CONCURRED IN BY:                                                                                               LÉTOURNEAU J.A.

                                                                                                                                               SEXTON J.A.

Date: 20021125

Docket: A-3-02

(Trial Division: DES-2-01; DES-3-01)

Neutral citation: 2002 FCA 470

CORAM:        STONE J.A.

LÉTOURNEAU J.A.

SEXTON J.A.

BETWEEN:

                    JOSE PEREIRA E HIJOS, S.A. and ENRIQUE DAVILA GONZALEZ

                                                                                                                                             APPELLANTS

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                           RESPONDENT

                                                        REASONS FOR JUDGMENT

STONE J.A.

[1]                 This is an appeal from an order of the Trial Division dated December 24, 2001, dismissing the appellants' motions for orders directing the respondent to answer certain questions posed to the respondent's witness on examination for discovery held on July 13, 2001. At the time the questions were posed the respondent took the position that the release of the information elicited by the question "would be injurious to international relations" within the meaning of subsection 38(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5.

The underlying dispute

[2]                 The immediate dispute stems from the seizure by Canada on March 9, 1995, of the Spanish fishing trawler "ESTAI" in international waters some 240 miles east of Canada while that vessel was engaged in fishing for Greenland Halibut. The apparent legal basis for the seizure was the provisions of section 5.2 of the Coastal Fisheries Protection Act, R.S.C. 1985, c. C-33 combined with section 21 of the Coastal Fisheries Protection Regulations, C.R.C. 1978, c. 413 as amended. Section 5.2 of the Coastal Fisheries Protection Act reads:

The Coastal Fisheries Protection Regulations were amended (P.C. 1995-372) effective March 3, 1995 by providing in paragraph 21(2)(b) that "the following classes of foreign fishing vessels are prescribed classes, namely

(i)... .

(ii)... .

(iii) foreign fishing vessels that fly the flag of any state set out in Table IV to this section."

Table IV to section 21 was at the same time amended by listing therein the countries of both "Portugal" and "Spain".

  

The pleadings

[3]                 The appellants commenced the within action in the Trial Division by Statement of Claim on July 28, 1995, alleging various unlawful acts on the part of the respondent. This pleading was later amended by order of the Trial Division which struck out certain of its paragraphs. In due course, by order of the Trial Division dated October 4, 2000, the appellants were permitted to amend their pleading by adding two new paragraphs, which were incorporated into the Further Amended Statement of Claim as paragraphs 34 and 35. They read:

34.    The Plaintiffs state further that the Regulation (P.C. 1995-372) was not enacted for the purposes of sound conservation and management or for any other purpose authorized by the Coastal Fisheries Protection Act, and was ultra vires the authority conferred by the Coastal Fisheries Protection Act.

35. The Plaintiffs state further that the defendant engaged in vote buying to obtain an unfair proportion of the total allowable catch of Greenland Halibut, and that such vote buying precipitated in a breakdown in international agreement for fishing the international sea. The Plaintiffs state the authority conferred by the Coastal Fisheries Protection Act for the management of fishing in international waters did not authorize vote buying by Canada.

[4]                 Subsequently, by Amended Statement of Defence dated November 10, 2000, the respondent pleaded as follows in paragraph 36:

36. A NAFO Meeting was held in Brussels, Belgium January 30-February 1, 1995 to discuss the division of this TAC into national quotas. The Defendant denies that it engaged in "vote buying" at this meeting and says that the states attending the meeting voted in accordance with their perceived national interests. Any communications by Canada to secure voting support were in accordance with normal diplomatic negotiating practice as carried on by free and democratic societies around the world. The Defendant says that these negotiating practices have nothing factually or legally to do with the validity of the Coastal Fisheries Protection Act or Regulations. The Coastal Fisheries Protection Act contains no provision dealing with the NAFO voting process and does not authorize or prohibit "vote buying".

  

The respondent's objections

[5]                 The questions objected to at the examination for discovery held on July 13, 2001 appear to have been directed to the allegation of "vote buying" contained in paragraph 35 of the Further Amended Statement of Claim. This allegation arose out of a meeting of the Northwest Atlantic Fishery Organization ("NAFO") held at Brussels, Belgium, January 30-February 1, 1995 with a view to allocating the September 1994 agreement of that body of a Total Allowable Catch (TAC) of Greenland Halibut of some 27,000 tonnes for the year 1995. Pursuant to a proposal that was placed before the meeting by Cuba and agreed to by a majority of the states represented, Canada was allocated 16,200 tonnes (60%) of the TAC and the European Union some 3,400 tonnes. The European Union objected to this allocation pursuant to the constitution of NAFO and, as a result, allocated to itself 18,630 tonnes of Greenland Halibut for 1995.

[6]                 The discovery transcript of July 13, 2001, indicates the basis on which counsel for the respondent objected to answering several questions in a series of questions which were put to the witness on the general subject of alleged "vote buying". As counsel put it in response to each of the questions objected to:

The Defendant objects to the question under Section 37 and 38 of the Canada Evidence Act for the reasons set out in Parts D and E of the Certificate of Brian Buckley, dated April 10^th, 2001.

[7]                 The context in which the objections were taken must be understood. As appears from the record, the Buckley certificate was filed by the respondent to support its claim to privilege in respect of documents contained in a bundle of documents listed in Schedule II of its Affidavit of Documents sworn March 30, 1999. By that schedule the respondent objected to release of these documents and others "on the ground that disclosure of the documents would be injurious to Canada's international relations and national defence and security". Part D of the Buckley certificate pertains to information provided by foreign states and institutions and international organizations concerning international relations "under the expressed or implied condition that the information and /or identities of the sources and contacts be protected from disclosure". This Part also claims that the release of such information "could be injurious to Canada's international relations because it could compromise or impair the trust or confidence of the governments, institutions, international organizations or individuals from which or from whom the information originated" and thereby jeopardize the Canadian government's ability to continue to benefit "from such relationships and to conduct diplomatic and consular relations effectively". Part E of the certificate addresses concerns with respect to the impact of disclosure on the adoption by the Government of Canada or of foreign states and organizations for international negotiations. This Part claims that the release of such information "could reasonably be injurious to Canada's international relations because it could compromise present and future negotiations" between Canada and foreign states and organizations "by revealing the strategies and motivations underlying the positions of Canada and other states or international organizations on current negotiations and issues".

Statutory provisions

[8]                 Sections 37 and 38 of the Canada Evidence Act read as follows:

37. (1) A minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.      (2) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a superior court, that court may examine or hear the information and order its disclosure, subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest.      (3) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a court, person or body other than a superior court, the objection may be determined, on application, in accordance with subsection (2) by (a) the Federal Court-Trial Division, in the case of a person or body vested with power to compel production by or pursuant to an Act of Parliament if the person or body is not a court established under a law of a province; or (b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case. (4) An application pursuant to subsection (3) shall be made within ten days after the objection is made or within such further or lesser time as the court having jurisdiction to hear the application considers appropriate in the circumstances. (5) An appeal lies from a determination under subsection (2) or (3) (a) to the Federal Court of Appeal from a determination of the Federal Court-Trial Division; or (b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of a province. (6) An appeal under subsection (5) shall be brought within ten days from the date of the determination appealed from or within such further time as the court having jurisdiction to hear the appeal considers appropriate in the circumstances. (7) Notwithstanding any other Act of Parliament, (a) an application for leave to appeal to the Supreme Court of Canada from a judgment made pursuant to subsection (5) shall be made within ten days from the date of the judgment appealed from or within such further time as the court having jurisdiction to grant leave to appeal considers appropriate in the circumstances; and (b) where leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within such time as the court that grants leave specifies. 38    (1) Where an objection to the disclosure of information is made under subsection 37(1) on grounds that the disclosure would be injurious to international relations or national defence or security, the objection may be determined, on application, in accordance with subsection 37(2) only by the Chief Justice of the Federal Court, or such other judge of that Court as the Chief Justice may designate to hear such applications. (2) An application under subsection (1) shall be made within ten days after the objection is made or within such further or lesser time as the Chief Justice of the Federal Court, or such other judge of that Court as the Chief Justice may designate to hear such applications, considers appropriate. (3) An appeal lies from a determination under subsection (1) to the Federal Court of Appeal. (4) Subsection 37(6) applies in respect of appeals under subsection (3), and subsection 37(7) applies in respect of appeals from judgments made pursuant to subsection (3), with such modifications as the circumstances require. (5) An application under subsection (1) or an appeal brought in respect of the application shall (a) be heard in camera; and (b) on the request of the person objecting to the disclosure of information, be heard and determined in the National Capital Region described in the schedule to the National Capital Act. (6) During the hearing of an application under subsection (1) or an appeal brought in respect of the application, the person who made the objection in respect of which the application was made or the appeal was brought shall, on the request of that person, be given the opportunity to make representations ex parte.		37. (1) Un ministre fédéral ou toute autre personne intéressée peut s'opposer à la divulgation de renseignements devant un tribunal, un organisme ou une personne ayant le pouvoir de contraindre à la production de renseignements, en attestant verbalement ou par écrit devant eux que ces renseignements ne devraient pas être divulgués pour des raisons d'intérêt public déterminées.      (2) Sous réserve des articles 38 et 39, dans les cas où l'opposition visée au paragraphe (1) est portée devant une cour supérieure, celle-ci peut prendre connaissance des renseignements et ordonner leur divulgation, sous réserve des restrictions ou conditions qu'elle estime indiquées, si elle conclut qu'en l'espèce, les raisons d'intérêt public qui justifient la divulgation l'emportent sur les raisons d'intérêt public invoquées lors de l'attestation.      (3) Sous réserve des articles 38 et 39, dans les cas où l'opposition visée au paragraphe (1) est portée devant le tribunal, un organisme ou une personne qui ne constituent pas une cour supérieure, la question peut être décidée conformément au paragraphe (2), sur demande, par_: a) la Section de première instance de la Cour fédérale, dans les cas où l'organisme ou la personne investis du pouvoir de contraindre à la production de renseignements en vertu d'une loi fédérale ne constituent pas un tribunal régi par le droit d'une province; b) la division ou cour de première instance de la cour supérieure de la province dans le ressort de laquelle le tribunal, l'organisme ou la personne ont compétence, dans les autres cas.      (4) Le délai dans lequel la demande visée au paragraphe (3) peut être faite est de dix jours suivant l'opposition, mais le tribunal saisi peut modifier ce délai s'il l'estime indiqué dans les circonstances.      (5) L'appel des décisions rendues en vertu des paragraphes (2) ou (3) se fait_: a) devant la Cour d'appel fédérale, pour ce qui est de celles de la Section de première instance de la Cour fédérale; b) devant la cour d'appel d'une province, pour ce qui est de celles de la division ou cour de première instance d'une cour supérieure d'une province.      (6) Le délai dans lequel l'appel prévu au paragraphe (5) peut être interjeté est de dix jours suivant la date de la décision frappée d'appel, mais la cour d'appel peut le proroger si elle l'estime indiqué dans les circonstances.      (7) Nonobstant toute autre loi fédérale_: a) le délai de demande d'autorisation d'en appeler à la Cour suprême du Canada est de dix jours suivant le jugement frappé d'appel, visé au paragraphe (5), mais le tribunal compétent pour autoriser l'appel peut proroger ce délai s'il l'estime indiqué dans les circonstances; b) dans les cas où l'autorisation est accordée, l'appel est interjeté conformément au paragraphe 60(1) de la Loi sur la Cour suprême, mais le délai qui s'applique est celui qu'a fixé le tribunal qui a autorisé l'appel. 38 (1) Dans les cas où l'opposition visée au paragraphe 37(1) se fonde sur le motif que la divulgation porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, la question peut être décidée conformément au paragraphe 37(2), sur demande, mais uniquement par le juge en chef de la Cour fédérale ou tout autre juge de ce tribunal qu'il charge de l'audition de ce genre de demande.      (2) Le délai dans lequel la demande visée au paragraphe (1) peut être faite est de dix jours suivant l'opposition, mais le juge en chef de la Cour fédérale ou le juge de ce tribunal qu'il charge de l'audition de ce genre de demande peut modifier ce délai s'il l'estime indiqué.      (3) Il y a appel de la décision visée au paragraphe (1) devant la Cour d'appel fédérale.      (4) Le paragraphe 37(6) s'applique aux appels prévus au paragraphe (3) et le paragraphe 37(7) s'applique aux appels des jugements rendus en vertu du paragraphe (3), compte tenu des adaptations de circonstance.      (5) Les demandes visées au paragraphe (1) font, en premier ressort ou en appel, l'objet d'une audition à huis clos; celle-ci a lieu dans la région de la capitale nationale définie à l'annexe de la Loi sur la capitale nationale si la personne qui s'oppose à la divulgation le demande.      (6) La personne qui a porté l'opposition qui fait l'objet d'une demande ou d'un appel a, au cours des auditions, en première instance ou en appel et sur demande, le droit de présenter des arguments en l'absence d'une autre partie.

The judgment below

[9]                 The learned Motions Judge, in sustaining the respondent's objections, was guided by the jurisprudence of the Court beginning with the seminal case of Goguen v. Gibson, [1983] F.C. 463 (C.A.), as well as more recent decisions of the Trial Division: R. v. Kahn, [1996] 2 F.C. 316 (T.D.); Singh (J.B.) v. Canada (Attorney General) (2000), 186 F.T.R. 1. The authorities are to the effect that the judge hearing the application for disclosure must first be satisfied that the public interest in disclosure is sufficiently compelling to require the information to be examined. As Thurlow C.J., sitting as a designated judge in Goguen v. Gibson, [1983] 1 F.C. 872, put it at 907:

On the whole of the material before me I am of the opinion that in the circumstances of this case not only is the importance of the public interest in national security and international relations not outweighed by the importance of the public interest in the proper administration of justice but that the evidence preponderates heavily in favour of the importance of the former as outweighing the importance of the latter. In such circumstances, it is, in my view, unnecessary that I should call for or examine any of the documents or information in question and undesirable that I should do so both because the authority to examine should only be exercised when necessary and because in all the circumstances I do not see any reason to suppose that an examination of the documents would indicate that the documents or information therein should be disclosed or that such an examination would otherwise serve any useful purpose.

These views were expressly approved by this Court on appeal, per Le Dain J. at 470-71 and Marceau J.A. at 478. As it was put more recently by Rothstein J. ( as he then was) in Evans (K.F.) Ltd. v. Canada (Minister of Foreign Affairs) (1996), 106 F.T.R. 210 (F.C.T.D.), at paragraph 27, at the first stage "the court must weigh the competing public interests...in order to determine if an apparent case for disclosure has been made out" and it is only after the court finds that the case in favour of disclosure "is at least equal to that for immunity from disclosure" that it should proceed "to the second stage (examination of the information) in order to determine which public interest is predominant in the particular circumstances".

[10]            The Motions Judge was of the further view that the appellants had failed to carry the onus of showing that, as MacKay J. stated in Singh, supra, at 6, "the public interest in disclosure is sufficiently compelling to require the examination to be examined". Moreover, at paragraph 28, he expressed "great difficulty understanding how the answers which the plaintiffs seek are relevant to the issues which the trial judge will have to decide".

Issues

[11]            Although the appellants attacked the order of the Motions Judge on several grounds, only those which counsel stressed in oral argument as central to the appeal need be canvassed. These were, first, that the Buckley certificate of April 10, 2001, does not support the objections made to the questions asked at the July 13, 2001 examination for discovery and, second, that the Motions Judge erred in his view that questions relating to "vote buying" were, in any event, irrelevant. The Motions Judge did not address the first of these issues presumably because it was not made the subject of argument before him.

Analysis

[12]            The appellants argue that the Buckley certificate cannot avail the respondent because it was prepared with a view to claiming a privilege with respect to a portion of the bundle of documents listed in Schedule II to the respondent's Affidavit of Documents, sworn March 30, 1999, rather than to support the objections raised by the respondent on July 13, 2001. The essence of this submission is that no certificate was made or filed with respect to the questions posed that satisfies the requirement of subsection 37(1) that the person claiming the protection of the statute certify "orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest".

[13]            In my view, this submission is not without merit. As we have seen, the Buckley certificate of April 10, 2001, was not and could not have been made with respect to the "vote buying" questions because those questions were not asked until July 13, 2001, more than three months later. While counsel for the respondent attempted to invoke that certificate at the examination for discovery by relying on the "reasons" set out in Parts D and E of the Buckley certificate, this did not satisfy the requirements of subsection 37(1) for the "minister of the Crown in right of Canada or other person interested...certifying" that the information "should not be disclosed on the grounds of a specified public interest". It seems to me that only a fresh certificate could effectively satisfy this requirement with reference to the objections raised to the questions asked on July 13, 2001.

[14]            Counsel for the appellants also contended that even if it could be said that Parts D and E of the Buckley certificate were effectively adopted by the respondent, the certificate is itself defective because nowhere therein is it stated, in compliance with subsection 38(1), that the release of the information "would" be injurious to Canada's international relations. That phraseology suggests that in order to secure the benefit of sections 37 and 38 a party must show a probability that a feared injury will result from disclosure. The record contains nothing showing that the disclosure of information sought by the series of "vote buying" questions "would be injurious to international relations". It is noted that the phraseology employed in Parts D and E to the Buckley certificate is "could" and "could reasonably" rather than "would". The statute would seem to require a showing of probability of injury instead of mere possibility.

[15]            Finally, the appellants contend that Motions Judge erred in treating "vote buying" questions as irrelevant. They point out that the plea of "vote buying" was clearly permitted by the order of MacKay J. dated October 4, 2000, and that the allegation was expressly denied by the respondent in its amended pleading. They contend, therefore, that vote buying was in issue as so defined and accordingly that the questions asked on July 13, 2001 were relevant to that issue. Indeed, Rule 240 of the Federal Court Rules, 1998 require a person being examined for discovery to answer "any question that...is relevant to any unadmitted allegation of fact in a pleading". The appellants were thus entitled to pose questions of alleged "vote buying" to the respondent's witness on the examination for discovery. On the other hand, while a question may be relevant to an issue pleaded its relevance in determining whether an objection under sections 37 and 38 should be sustained or rejected by a court appears to stand on a different footing.

[16]            In Khan, supra, at paragraph 26, Rothstein J. listed factors to be considered in a case of this kind. He stated, at 327-28:

In assessing whether an apparent case for disclosure has been made out, the following factors have been considered:

(a) The nature of the public interest sought to be protected by confidentiality: Kevork v. The Queen, [1984] 2 F.C. 753 (T.D.), at pages 762 to 764; Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.), at page 884; Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.) at page 479.

(b) Whether the evidence in question will "probably establish a fact crucial to the defence"; Kevork v. The Queen, supra, at pages 764 and 765; Goguen v. Gibson, supra, (T.D.), at page 906.

(c) The seriousness of the charge or issues involved; Kevork v. The Queen, supra, at pages 765 and 766; Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (T.D.), at page 238.

(d) The admissibility of the documentation and the usefulness of it; Kevork v. The Queen, supra, at pages 766 to 768; Goguen v. Gibson, supra, (T.D.), at page 906; Gold v. R., [1986] 2 F.C. 129 (C.A.).

(e) Whether the applicants have established that there are no other reasonable ways of obtaining the information; Kevork v. The Queen, supra, at page 767.

(f) Whether the disclosures sought amount to general discovery or a fishing expedition; Kevork v. The Queen, supra, at page 767; Gold v. R., supra, pages 139 to 140.

  

[17]            With the respect to factor (b) listed by Rothstein J., a similar point was made by Thurlow C.J. in discussing the "relevance" of information in Goguen, supra, at 707, where he concluded that the information was not "of critical importance" to the defence. Thus, whether a question is relevant in the context of a section 37 and 38 determination is not to be viewed in the narrow sense of whether it is relevant to an issue pleaded, but rather to its relative importance in proving the claim or in defending it.

[18]            I respectfully agree with the Motions Judge, at paragraph 28, that "the information which the plaintiffs seek to obtain will not establish a fact crucial to the plaintiffs' case". As I read his reasons, this was a significant factor in determining whether the importance of disclosure was outweighed by the importance of protecting the specified public interest. The essence of the appellants' case is that the fishing trawler "ESTAI" was unlawfully seized by Canada for the reason that the March 3, 1995 regulations authorizing such seizure were ultra vires. The facts sought to be elicited on the July 13, 2001 examination had no apparent bearing on that critical issue. Instead, as the appellants claimed in argument, questions of "vote buying" were aimed at demonstrating that Canada was not so much interested at the NAFO meeting in promoting conservation of the Greenland Halibut stock as in increasing its own share of the TAC for 1995. Moreover, the appellants by their questions appear to have been engaged in a general discovery or fishing expedition with a view to buttressing evidence contained in paragraph 7 of the affidavit of José Enrique Pereira, sworn July 23, 2001, as revealing Canada's true motivation at the January 30-February 1, 1995 NAFO meeting. A summary of that evidence and the respondent's response appears in paragraph 47 of the respondent's written argument:

(a) A Canadian Foreign Affairs telex reports that according to "newspaper reports" President Fraga (of Galicia) complained to the Cuban Foreign Minister about Cuba's support for Canada in return for quotas in Canadian waters. With respect to the complaint being made, this is triple hearsay (Pereira says that the telex says that the newspapers say) and no evidence at all as to whether there is a basis for any complaint made.

(b) A Research publication of the European Parliament last revised in February 1992, three years before the NAFO meeting in dispute, claims that Canada has achieved "domination of the work of NAFO" by offering quotas inside the Canadian 200 mile limit.    This is no evidence of "vote buying" at the 1995 meeting.

(c) A Canadian Foreign Affairs telex says that Canada would not link non-fisheries issues to buy support and the Plaintiffs conclude that this is evidence that it would link fisheries issues to buy support. This is a non sequitur and ignores the context. The full text of the item quoted in Exhibit "C" to the Pereira affidavit is as follows:

"The NAFO votes was fully consistent with traditional NAFO rules and procedures. EU was able to influence former east bloc states to support its position in the context of association with EU and eventual membership. Cda cld not and wld not link non-fisheries issues to buy support."

(d) Pereira says that the author, Michael Harris, in his book Lament for an Ocean says that a Canadian negotiator said "we were in effect buying their votes". This double hearsay reports the alleged characterization of events by an alleged Canadian official and not evidence as to what occurred.

[19]            In the result, I would allow the appeal with costs but without prejudice to the respondent filing a fresh certificate pursuant to sections 37 and 38 of the Canada Evidence Act with a view to supporting the objections taken to the "vote buying" questions put to the respondent's witness at examination for discovery on July 13, 2001.

                                                                                           "A.J. STONE"                              

                                                                                                              J.A.

"I agree

   Gilles Létourneau J.A."

"I agree

   J. Edgar Sexton JA"

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

   

DOCKET:                                                           A-3-02

STYLE OF CAUSE:                                        JOSE PEREIRA E. HIJOS S.A. and ENRIQUE DAVILA GONZALEZ v. THE ATTORNEY GENERAL OF CANADA

                                                         

PLACE OF HEARING:                                                Ottawa, Ontario

  

DATE OF HEARING:                                                  November 12, 2002

  

REASONS FOR JUDGMENT OF THE COURT: STONE J.A.

CONCURRED IN BY:                                                 LÉTOURNEAU J.A.

SEXTON J.A.

  

DATED:                                                              November 25, 2002

   

APPEARANCES:

Mr. John R. Sinnott, Q.C.                                                 FOR THE APPELLANT

Mr. Michael Donovan                                           FOR THE RESPONDENT

Ms. Kathleen McManus

SOLICITORS OF RECORD:

Lewis, Sinnott, Shortall, Hurley                                        FOR THE APPELLANT

St. John's Newfoundland

  

Mr. Morris Rosenberg                                                     FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario