Date: 20030514
Docket: T-1931-02
Neutral citation: 2003 FCT 591
BETWEEN:
CYNTHIA LYNNE HOFER, Administrator of the
ESTATE OF JOCHEN HOFER,
also known as JOHN HOFER, Deceased
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
HARGRAVE P.
[1] At issue is whether there ought to be an exception to Rule 81(1) which provides that:
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Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included. |
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Les affidavits se limitent aux faits don't le déclarant a une connaissance personnelle, sauf s'ils sont présentés à l'appui d'une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l'appui. |
in order to allow the introduction of hearsay evidence by affidavit.
[2] The hearsay evidence in question is contained in the supplemental affidavit of the Applicant, Ms Hofer, widow of the deceased, John Hofer. By the affidavit Ms Hofer seeks to establish that an application for a night rating flying endorsement was sent by telefax to Transport Canada on 5 December 1999.
[3] Part of the affidavit deals with conversations between Ms Hofer and her late husband, John Hofer, as to sending the paper work for the licence to Transport Canada. In another part of the affidavit Ms Hofer recounts a specific telephone conversation with Ms Andrea Hinken some time after October 2001. Ms Hinken who had worked with Mr Hofer in his business recalled sending the licence application for the night flying endorsement by telefax to Transport Canada on 5 December 1999. Unfortunately, while the evidence of Ms Hinken is also in the form of a statutory declaration, the Applicant has been unable to locate her for production for cross-examination. Thus, the present application either to dispense with the Rule 81(1) which excludes hearsay evidence, or alternatively, for time to locate Ms Hinken with a view to having her swearing an affidavit for admission as an additional affidavit under Rule 312.
[4] It is appropriate to make a ruling arising out of Rule 81(1) at this time, rather than to leave the matter to the trial judge. The Respondent has the right to early knowledge of the case which will have to be met and then to have the opportunity to cross-examine, to the extent meaningful and investigate, to the extent reasonably possible, in order to determine the veracity of any admitted attributed hearsay material. Much of this was explored by the Federal Court of Appeal in. Canadian Tire Corp. v. P.S. Partsource Inc (2001), 267 N.R. 135. There the Court of Appeal, in referring to Rule 81(1), said that while the rule itself allowed no exceptions to the requirement that affidavits be confined to facts known personally to the deponent, it was a rule of practice and procedure which reflected the general rule against hearsay. As such it did not displace common law exceptions to the hearsay rule including a principled approach, most recently the exceptions of reliability and necessity. Moreover, the Court of Appeal pointed out that Rule 55 allowed, in special circumstances, dispensation by the Court with the compliance of any of the Court's rules: see Canadian Tire (supra)at page 139.
[5] At this point it is clear that paragraph 3 of Ms Hofer's supplemental affidavit, recalling her conversation with her deceased husband, may be admitted. It is certainly necessary. It has all of the trappings of reliability. It is a paragraph which can be easily subject to cross-examination, with the weight of the evidence and the effect of cross-examination to be weighed by the trial judge.
[6] Paragraphs 5 and 6 of Ms Hofer's affidavit present more difficulty. There Ms Hofer sets out what she was told by Ms Hinken as to the night rating endorsement application of Mr Hofer, material which I also read to indicate why Ms Hinken recalled the transmission of the licence application to Transport Canada by December 1999. Unfortunately, as I have noted, the Applicant has not been able to locate Ms Hinken.
[7] The burden is on Ms Hofer to provide evidence as to the necessity for and reliability of what is attributed to Ms Hinken. Here I must balance elements including, on the one hand, the feasibility of locating Ms Hinken so that she might swear an affidavit, upon which she might be cross-examined by telephone, if not in person and the reliability of the hearsay evidence now presented against, on the other hand, the prejudice to the Respondent who can have no meaningful cross-examination if the only examination is of Ms Hofer and what she was told, during a conversation with Ms Hinken several years ago and which is set out in a statutory declaration which Ms Hinken provided.
[8] There is perhaps some semblance of reliability in the hearsay evidence attributed to Ms Hinken. Where I have difficulty is as to necessity. Ms Hofer's evidence is that she believed Ms Hinken was moving to Vancouver and then probably to Germany where she came from, but unfortunately Ms Hofer does not know where Ms Hinken is at present or how to reach her. This evidence stops short of providing any details as to what was actually done in order to find Ms Hinken. Against the semblance of reliability and absence of evidence of necessity I must balance the very real prejudice to the Respondent of being unable to cross-examine Ms Hinken.
[9] I have concluded that the Applicant has not met the full test for an exception to the rule against hearsay, set out in R. v. Khan, [1990] 2 S.C.R. 531 at 546 and 547. Here I recognise, as pointed out by the Supreme Court of Canada, that necessity is to be interpreted as "reasonable necessity". There is no indication in Ms Hofer's material whether any reasonable searches were made for Ms Hinken. Similarly, see the test set out in R. v. Smith, [1992] 2 S.C.R. 915 in which Chief Justice Lamer, at pages 931 - 932, comments upon necessity as an element in the exception to the hearsay rule and at page 932 the need for reliability. In the present instance, while there is clearly a circumstantial guarantee of reliability in the affidavit evidence of Ms Hofer, recounting conversations with her deceased husband, I am not so comfortable about any circumstantial guarantee of reliability involving the hearsay evidence of Ms Hinken. Taking all of this into consideration, including the serious prejudice to the Respondent of being unable to cross-examine on the evidence of Ms Hinken in any meaningful way, paragraphs 5 and 6 of the affidavit of Ms Hofer, filed for April 2003, are struck out.
[10] In striking out two paragraphs from the affidavit of Ms Hofer I recognize the caution of the Court of Appeal in Canadian Tire at page 140, that striking out of all or part of an affidavit ought not to become routine. In this instance the two paragraphs contain clear hearsay material which goes to a controversial issue and which if left in place to be disposed of at trial would clearly be prejudicial.
[11] I am now left with the request that the Applicant have leave of the Court to find Ms Hinken and to have an affidavit sworn by her admitted into evidence pursuant to Rule 312. Ms Hofer has always been free to try to locate Ms Hinken. However, as I say, there is no material setting the efforts made, to date, to locate Ms Hinken. There is also insufficient evidence to make an advance determination as to whether there should be leave to file such an affidavit pursuant to Rule 312. Here I would refer to Marshall v. Canada (Solicitor General) (2002), 216 F.T.R. 85 at 89 - 90 (T.D.) for the principles governing supplemental affidavits. They are principles which Ms Hofer will have to deal with when seeking leave to submit any supplemental affidavit for filing.
[12] Just as it would be unjust to allow in by hearsay the evidence of Ms Hinken, for that would be prejudicial, it would also be unjust not to allow Ms Hofer reasonable additional time to make a concerted effort to find Ms Hinken. I say this notwithstanding the expedited nature of judicial review, for it would seem that Ms Hinken's evidence could be very important and would thus assist in Court. Ms Hofer therefore may have 45 days within which to apply to file any supplemental affidavit sworn by Ms Hinken. Success being mixed, costs will be in the cause.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
14 May 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-1931-02
STYLE OF CAUSE: Cynthia Lynne Hofer, Administrator of the Estate of Jochen Hofer, also known as John Hofer, Deceased v. The Attorney General of Canada
REASONS FOR ORDER OF: Hargrave P.
DATED: 14 May 2003
WRITTEN REPRESENTATIONS BY:
Kelsey K Monarque FOR APPLICANT
Tracy J King FOR RESPONDENT
SOLICITORS ON THE RECORD:
Bosecke & Song FOR APPLICANT
Barristers & Solicitors
Edmonton, Alberta
Morris A Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Edmonton, Alberta