Date: 20011203
Docket: T-1113-01
Neutral Citation: 2001 FCT 1320
BETWEEN:
PATRICK DUNBAR
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
[1] This is a motion pursuant to Rule 316 of the Federal Court Rules, 1998 to allow Madame Aline Landry to testify at the hearing of this application for judicial review.
[2] I have carefully reviewed the written representations of both parties.
[3] First of all, I should say that the respondent is right when it submits that to succeed on a motion to have a witness testify in Court at a hearing on a judicial review application, it is essential to demonstrate the existence of special circumstances.
[4] Justice MacKay in Holland v. Canada [1999], F.C.J. No. 1849 (F.C.T.D.), paragraph 3, referred to Glaxco Canada Inc. v. Canada in which Justice Rouleau considered the old Rule 319(4) of the Rules of the Federal Court:
Under Rule 319 all the facts on which a motion is based must be supported by affidavit evidence. It is only "by leave of the Court" and "for special reason" that a witness can be called to testify in relation to an issue. There were no cases presented to me by counsel for the plaintiff nor am I aware of any case law which identifies the test as to what constitutes "special reason". In my opinion, this is a question to be decided on the fact of a particular case with the onus being on the applicant to prove the existence of "special reason" to the satisfaction of the Court. What is clear from the jurisprudence is that leave will be granted by the Court only in exceptional circumstances.
[5] On the other hand, the applicant should have the opportunity to cross-examine the deponent Madame Aline Landry pursuant to Rule 308 of the Rules, at any time during the prosecution of this matter.
[6] Even though the applicant is outside of the time frame of Rule 308, a motion by the applicant to cross-examine Madame Aline Landry on her affidavit could be well received by the Court.
[7] I would suggest that the respondent should agree to provide Madame Aline Landry for cross-examination on consent and thus the problem raised by this motion would therefore just disappear.
[8] Nevertheless, this is not a motion pursuant to Rule 308 that is now before me rather a motion pursuant to Rule 316 and, as I expressed earlier, the applicant cannot succeed on today's motion.
[9] I can only suggest to both parties to reflect upon this order. If they cannot agree on consent, the applicant will have to bring another motion before the Court pursuant to Rule 308.
O R D E R
[10] Therefore, this motion is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 3, 2001