T-3190-73
Rae Import Corporation (Plaintiff)
v.
Federal Pacific Lakes Lines, Federal Commerce
& Navigation Company Limited and Atlantska
Plovidba (Defendants)
INDEXED AS: RAE IMPORT CORP. V. FEDERAL PACIFIC LAKES
LINES (T.D.)
Trial Division, Pinard J.—Montréal, October 15;
Ottawa, October 23, 1990.
Practice — Evidence — Motion to reverse Senior Prothono-
tary's order allowing examination for discovery of deceased
deponent to be read into evidence at trial — Prothonotary's
interpretation of Quebec Code of Civil Procedure, art. 320
contrary to Lortie- Tremblay v. Hôpital Maisonneuve -
Rosemont, 119881 R.J.Q. 1016 (S.C.) — Cartwright v. City of
Toronto still applicable in jurisdictions where Rules of Prac
tice not allowing party who was discovered to read into evi
dence examination of deceased deponent — RR. 478 and 479
limited to evidence "of any particular fact" — Not applying to
production of examination on discovery governed exclusively
by R. 494(9) — Appeal allowed.
Practice — "Gap" Rule — Motion to reverse Senior Pro-
thonotary's order allowing examination for discovery of
deceased deponent to be read into evidence at trial — Implicit
reference to R. 5 ill founded — Must be "gap" in Rules for R.
5 to apply — Cannot be used to amend unambiguous provi
sion, such as R. 494(9).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Code of Civil Procedure of Quebec, R.S.Q., c. C-25,
art. 320.
Federal Court Rules, C.R.C., c. 663, RR. 5, 478, 479,
494(9).
Rules of Civil Procedure, O. Reg. 560/84, R. 31.11(c).
CASES JUDICIALLY CONSIDERED
APPLIED:
Lortie-Tremblay v. Hôpital Maisonneuve -Rosemont,
[1988] R.J.Q. 1016 (S.C.); Cartwright v. City of Toronto
(1914), 50 S.C.R. 215; 20 D.L.R. 189.
COUNSEL:
Mireille A. Tabib for plaintiff.
David G. Colford for defendants.
SOLICITORS:
Stikeman, Elliott, Montréal, for plaintiff.
Brisset Bishop, Montréal, for defendants.
The following are the reasons for judgment
rendered in English by
PINARD J.: This is a motion by the defendants
for an order reversing the order of the Senior
Prothonotary, dated August 17, 1990, and dismiss
ing plaintiffs motion entitled "Application for an
Order that Evidence be given at the Trial by
Production of an Examination on Discovery".
The only question at issue is whether a party
who was discovered can be allowed to read into
evidence the examination of a deponent who has
since deceased.
The order under appeal states:
After hearing arguments of both counsel, upon reading the file
and more especially the supporting Affidavit of Mireille A.
Tabib, upon considering Rule 494, paragraph 9, Rule 465,
paragraph 15, extracts from British Columbia and Ontario
Rules, Code of Civil Procedure, Section 320, this Motion is
granted on the grounds of paragraphs 6, 7, 8 and 9 of the said
Affidavit of Mireille A. Tabib; at the time of the examination
of Mr. Edward Shatilla, he was the only officer of the Plaintiff
still alive who would have had knowledge of the facts of this
action; he died in 1989; the sworn evidence given by Mr.
Shatilla during the examination on Discovery conducted by Mr.
Cypihot, counsel at the time for the Defendants, is the best
evidence available to Plaintiff on the issue raised by Defendants
in their plea; it is in the interest of justice; and finally, this file
has originated 17 years ago, the Statement of Claim being
dated on the 28th of March 1973.
In my view, the implicit reference to Rule 5 of
this Court [Federal Court Rules, C.R.C., c. 663]
in that order is ill founded in law. In order for
Rule 5 to have any application, there must be a
"gap" or void in the Rules and legislation govern
ing procedure in this Court; it cannot be used to
amend an unambiguous provision in the Rules,
such as Rule 494(9) which states:
Rule 494... .
(9) Any party may, at the trial of an action, use in evidence
against another party any of his examination for discovery of
that other party, but, on the application of an adverse party, the
Court may direct that any other part of the examination which,
in the opinion of the Court, is so connected with the part to be
used that the last-mentioned part ought not to be used without
such other part, be put in evidence by the party seeking to use
such examination.
Furthermore, the suggestion by the Senior Pro-
thonotary that section 320 of the Code of Civil
Procedure of Quebec' allows the party who was
discovered to read into evidence the examination
of a deponent who has since deceased is contrary
to the interpretation given to that section by Mr.
Justice Gonthier, when he was a Superior Court
judge in Quebec, in Lortie-Tremblay v. Hôpital
Maisonneuve -Rosemont, [1988] R.J.Q. 1016, at
pages 1017-1018:
[TRANSLATION] Its very wording indicates that art. 320 applies
to a deposition given "at a former trial of the same action, or of
another action founded in whole or in part on the same cause of
action", and in French "lors d'une première introduction de la
demande ou d'une autre demande basée en partie ou pour le
tout sur la même cause d'action". This provision has been
given a broad interpretation by the Court of Appeal, in particu
lar in Day & Ross Ltd. c. Marois, [C.A. Québec 200-09-
000615-778 and 200-09-000616-778, April 1, 1981 (J.E.
81-444)] as covering both a criminal and a civil action, includ
ing a proceeding before a coroner. However, the article applies
only to depositions given at trial (à l'instruction). It is clear
from article 398.1, as the Court of Appeal recognized, that a
deposition under article 397 does not form part of the evidence,
unless it is included in the record by the party conducting the
examination. As Mr. Léo Ducharme wrote in his recent article:
The option the party conducting an exmination on discovery
has to decide whether the depositions so obtained will be part of
the evidence radically alters the nature of this procedure.
Whereas previously the principal purpose of the procedure was
to inform the court, and secondarily to inform the party
concerned, it has become a means available to the parties for
obtaining information, and incidentally an exceptional proce
dure for the administration of evidence ...
Since depositions obtained on discovery will now no longer
automatically be part of the evidence, a defendant examining
a plaintiff on a fact alleged by the latter and about which
oral evidence is prohibited no longer runs any risk. [Léo
Ducharme, "Chroniques. Le nouveau régime de l'inter-
rogatoire préalable et de l'assignation pour production d'un
écrit" (1983), 43 R. du B. 973].
' 320. A deposition given at a former trial of the same action,
or of another action founded in whole or in part upon the same
cause of action, may be given in evidence if it is established that
the witness who made it is dead, or is so ill as to be unable to be
present, or is absent from Quebec, provided in all cases that the
adverse party had a full opportunity to cross-examine.
This therefore means that such an examination is not part of
any trial, whether of the same action or of some other action
based wholly or partly on the same cause of action. Even by the
extension given by article 395 to article 320, it can only be part
of the trial if the party who has conducted the examination, the
defendant, so wishes. It thus does not fall within the wording of
article 320.
Deciding otherwise would be to alter ex post facto the basis
on which counsel for the defendant chose to conduct this
examination, namely with the assurance that it could only be
entered into evidence if they wished.
I am of the opinion that with respect to jurisdic-
tions where the Rules of Practice have not been
amended to allow a party who was discovered to
read into evidence the examination of a deponent
who has since deceased or is not available for
trial, 2 the following reasoning, by Mr. Justice
Duff, in the Supreme Court of Canada case Cart-
wright v. City of Toronto,' still applies:
The appellant seeks to shew that the late Sir Richard Cart-
wright entered into an agreement with Mr. Biggar, then City
Solicitor of Toronto, and for the purpose of proving this he
offers in evidence certain statements in the examination of Sir
Richard Cartwright for discovery. The principle upon which he
relies is this: Where a witness has given evidence in the course
of litigation, such evidence may be used in other litigation
relating to the same subject matter between same parties if the
witness have [sic], in the meantime, died, provided the party
against whom it is offered has had an opportunity of cross-
examining the witness.
I think the rule has no application. The examination for
discovery is in the nature of a cross-examination; but the rule
relating to the admission of evidence given on such examination
entitles the cross-examiner to proceed with the absolute assur
ance that no part of the examination can be used against him,
unless he on his part seeks to make use of it for his own
purposes.
Finally, even though the plaintiffs application
before the Senior Prothonotary was based on Rule
479 which itself refers to Rule 478, 4 I am of the
view that those Rules by their very terms strictly
2 Rule 31.11(c) of the Ontario Rules of Practice [Rules of
Civil Procedure, O. Reg. 560/84] now allows such use of
evidence led on an examination on discovery.
' (l914), 50 S.C.R. 215, at p. 218.
4 Rule 478. The Court may, at any time, order that any
particular fact be proved by affidavit or that the affidavit of
any witness may be read at the trial on such conditions as the
Court may specify.
(Continued on next page)
apply to the evidence "of any particular fact" and
have no application with respect to the requested
"production of an examination on discovery"
which is governed exclusively by Rule 494(9).
I also adopt the following comments (which, in
this case, must refer to the federal legislative
authority rather than to the "législateur québé-
cois") made by Mr. Justice Gonthier, in Lortie-
Tremblay (supra), at page 1019:
[TRANSLATION] It might be a very good idea for the Quebec
legislature to follow the example of Ontario, so as to enable the
Court to avoid the kind of injustice that may occur in the case
at bar. However, that is not for the Court to do, especially as
acting thus would have the effect of placing on the record a
deposition which was taken on condition it not be entered as
evidence, except at the instance of the defendant.
The Court must therefore grant the present
appeal and set aside the order of the Senior Pro-
thonotary dated August 17, 1990. In view of the
circumstances, however, there will be no costs.
(Continued from previous page)
Rule 479. (1) Without prejudice to Rule 478 the Court may,
before the trial of an action, order that evidence of any
particular fact shall be given at the trial in such manner as may
be specified by the order.
(2) The power conferred by paragraph (1) extends in
particular to ordering that evidence of any particular fact
may be given at the trial
(a) by statement on oath of information or belief;
(b) by the production of documents or entries in books;
(c) by copies of documents or entries in books; or
(d) in the case of a fact that is or was a matter of common
knowledge either generally or in a particular district, by
the production of a specified newspaper which contains a
statement of that fact.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.