EVIDENCE
Motion under Federal Courts Rules, r. 286 for Court order to allow introduction of two documents as direct evidence at trial of action, set to begin October 24, 2005—Plaintiff and former wife married in Iran in 1984—Plaintiff arrived in Canada on Minister’s permit in 1988—Became permanent resident in 1991, sponsored wife living abroad—Plaintiff’s sponsorship application, including undertaking of assistance, approved, forwarded to defendant’s Damascus office— Damascus office received sponsorship application but sent telex to plaintiff’s former wife stating plaintiff had not submitted undertaking of assistance—Former wife divorced plaintiff in Iran in 1993, remarried Iranian—Minister’s permit later issued by Canadian embassy in Damascus—Plaintiff filed statement of claim in Federal Court, Trial Division in 1996 seeking damages owing to defendant’s alleged negligence regarding processing of immigration files—Motion for summary judgment based on expiry of limitation periods, allowed in part—Order restricted plaintiff’s action to third claim (damages resulting from alleged marriage breakdown due to defendant’s alleged negligent actions) in so far as damages based on acts, omissions by defendant’s officials committed outside Canada; first two claims out of time— Despite prothonotary’s order compelling appearances of family members in Iran who would likely testify on former wife’s reasons to divorce, remarry another man, family members denied entry to Canada—Former wife apparently cutting off all communication with plaintiff, new husband not likely to allow wife to testify in plaintiff’s case—Defendant not ready to admit former wife had divorced plaintiff as direct result of delays, alleged errors made by immigration officials abroad—As a result, plaintiff’s counsel requested permission to present motion for alternative means to introduce evidence —Plaintiff claiming to be in possession of two documents from former wife, which provide evidence of cause of divorce —Seeking to have documents, translations thereof entered as direct evidence at trial—First document declaration apparently witnessed by notary public in Iran, dated October 3, 1996 (1996 document)—Second document letter apparently signed by former wife dated April 13, 1993, addressed to plaintiff demonstrating former wife’s impatience, frustrations with immigration process (1993 document)—Rule against hearsay evidence rendering inadmissible written statements tendered as proof of truth or proof of content—Causation of alleged divorce one of central issues at trial—Best witness to give evidence to Court on issue would be former wife since sought divorce but apparently unwilling to take part in trial— Exceptions to hearsay rule have been established when other evidence impossible or difficult to secure, when author of statement not interested party—Case law (R. v. Khan, [1990] 2 S.C.R. 531) established principled approach to hearsay evidence whereunder hearsay statement admissible for truth of contents if meeting separate requirements of “necessity”, “reliability”—If hearsay statement satisfying two criteria, trial judge may put statement to trier of fact, subject to appropriate safeguards, cautions regarding weight—Evidence not satis-fying separate requirements of “necessity”, “reliability”— Plaintiff not establishing reasonable attempts to have former wife participate in trial—Affidavit simply stating no contact with former wife; that new husband forbidding any contact with plaintiff, plaintiff’s family—Also, defendant would be severely prejudiced if 1993, 1996 documents admitted as direct evidence at trial—Necessity relating to both relevance, availability of hearsay evidence to prove fact in issue— Necessity must be interpreted as “reasonably necessary”, studied in flexible manner—Evidence of any proceeding, record, in or before any court in foreign state, may be given in any action or proceeding before Federal Court by exemplifica-tion or certified copy thereof, purporting to be under seal of court in question, without any proof of authenticity of seal or signature of justice or any other proof—Plaintiff not providing any such document with respect to divorce—Plaintiff wanting to enter 1993, 1996 documents as evidence of former wife’s reasons for divorce, not of divorce itself—Evidence of intention quite different from evidence required to show occurrence of divorce—Causation of alleged divorce highly contentious in present case since arising from culmination of factual events, former wife’s emotional experiences—Plaintiff must demonstrate witness unavailable despite reasonable efforts made to have witness testify at trial—Statements in affidavit indicating former wife unavailable to testify because unwilling to participate in proceedings not supported by credible evidence—Affidavit not mentioning subsequent attempts to secure former wife’s or new husband’s cooperation in proceeding—Little weight given to plaintiff’s general explanations—Necessity cannot be inferred solely from unavailability of witness—Plaintiff never requested case management judge or prothonotary to issue directions concerning manner in which specific issue could be dealt with —Also never seeking issuance of subpoena to require former wife to testify—Plaintiff’s reasons to justify introduction of two documents as direct evidence of motives, causation of divorce too few when compared to prejudice caused to defendant—Right to cross‑examine witness on crucial issue should prevail under specific circumstances of case—Plaintiff never considered, exhausted other possibilities, such as seeking order to establish commission for examination outside Canada—Reasonable to assume use of commission could have solved alleged issue of former wife’s unavailability in manner complying with Rules—1993, 1996 documents not meeting necessity requirement—Hearsay statement must also be reliable—Reliability evaluated with reference to particular facts, subject to appropriate safeguards, to cautions regarding weight—Substantial reliability not achieved if hearsay statement equally consistent with other hypotheses— Necessary to assess specific hearsay dangers raised by statement, determine whether facts surrounding utterance of statement offer sufficient circumstantial guarantees of trustworthiness to compensate for dangers assessed—1993 document presenting hearsay danger since not sworn under oath—Therefore, document quite unreliable to prove veracity of representations or actual dealings former wife may have had with defendant’s officials outside Canada—1996 document apparently witnessed by notary public in Iran but declaration made after plaintiff filed statement of claim in 1996—Fact plaintiff had already commenced proceedings against defendant would be important factor to explore in cross‑ examination with former wife—Specific issue raised existence of danger too grave to allow document to be entered as direct evidence at trial—No appropriate safeguards in place in admitting such hearsay evidence—Credibility of contents of documents was critical issue—Court not able to observe former wife’s demeanour on stand since not testifying—Facts surrounding utterance of hearsay statement not offering sufficient circumstantial guarantees of trustworthiness to compensate for dangers outlined—Burden of proving central allegation that former wife sought divorce due to delays, errors in processing of immigration file by defendant’s representatives abroad, on plaintiff—Hearsay statements not meeting requirement of substantial reliability since equally consistent with other hypotheses—Therefore before statements made by former wife in 1993, 1996 documents accepted as direct evidence, defendant should be able to cross‑ examine former wife at trial on all relevant facts, circumstances—Motion dismissed—Federal Courts Rules, SOR/98‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 286.
Farzam v. Canada (Minister of Citizenship and Immigration) (T‑626‑96, 2005 FC 1432 Martineau J., order dated 21/10/05, 21 pp.)