T-522-90
Bell Canada (Applicant)
v.
Canadian Human Rights Commission and
Michelle Falardeau-Ramsay (Respondents)
INDEXED AS: BELL CANADA V. CANADA (HUMAN RIGHTS
COMMISSION) (T.D.)
Trial Division, Muldoon J.—Ottawa, June 5 arid
October 18, 1990.
Practice — Affidavits Motion to strike respondent
Falardeau-Ramsay's affidavit on applicant's originating
motion — Affidavits based on information and belief insuffi
cient: R. 332(1) — Affiant distinguished from witness on
examination for discovery, who is obliged to be informed on
party's stance even if expressing hearsay — Scope of affidavits
limited by R. 332(1) to personal knowledge — Deposition
limited to matters occurring upon or after appointment as
Deputy Chief Commissioner of CHRC in 1988 — Entitled to
tender pre-existing records as being produced from her cus
tody and control — Explanation of records or interpretation of
statute law by deponent prohibited — Leading to improper
cross-examination — Examination of impugned paragraphs
against standard in R. 332(1) — Paragraphs detailing Com
mission's mandate and initiatives under s. 10 and assertion
Commission "recognized" something without reference to
place, date, time or personal knowledge expressing affiant's
interpretation of law — Applicant entitled to compliance with
Rule notwithstanding inconvenience to respondents — Affida
vit struck in entirety with leave to file new affidavit within 15
days.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 332(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Gingras v. Cdn. Security & Intelligence Service (1987),
11 C.I.P.R. 327; 19 C.P.R. (3d) 283 (F.C.T.D.); Food-
corp Ltd. v. Hardee's Food Systems, Inc., [1982] 1 F.C.
821; (1982), 40 N.R. 349 (C.A.).
REFERRED TO:
Action Travail des Femmes v. Canadian National Rail
way Co., [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th)
193; 27 Admin. L.R. 172; 87 C.L.L.C. 17,022; 76 N.R.
161.
COUNSEL:
Roy L. Heenan and Thomas E. F. Brady for
applicant.
Raj Anand for respondents.
SOLICITORS:
Heenan Blaikie, Montréal, for applicant.
Scott & Aylen, Toronto, for respondents.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant moves to have the
affidavit of the respondent Falardeau-Ramsay,
sworn on May 11, 1990 and filed herein on May
17, 1990, struck out, or, in the alternative, it moves
to have paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14, 15, 16, 17, 19, 20, 22, 23, 24, 26, 36, 48
and 50 struck out of that affidavit, with leave to
the respondents to file an affidavit conforming to
the Rules [Federal Court Rules, C.R.C., c. 663]
within seven days from the date of this motion's
disposition. The respondents resist the making of
any such order striking out the affidavit or any
part of it.
The optic through which this issue is to be
viewed is surely that which is provided in and by
Rule 332(1) concerning all affidavits filed in pro
ceedings in this Court. It runs:
Rule 332. (1) Affidavits shall be confined to such facts as
the witness is able of his own knowledge to prove, except on
interlocutory motions on which statements as to his belief with
the grounds thereof may be admitted.
The respondent's affidavit is filed on an origi
nating motion, not an interlocutory one, in which
the applicant seeks an order to grant either prohi
bition or certiorari in regard to the respondent
Commission's investigation of the applicant pursu
ant to a complaint initiated by the respondent
Commission (hereinafter also: CHRC) itself on or
about July 17, 1989. Accordingly, affidavits based
on information and belief are insufficient. In order
to better situate the impugned affidavit, the appli-
cant's stated grounds for seeking extraordinary
relief are pertinent:
I. A writ of prohibition ought to issue prohibiting the Respond
ent Canadian Human Rights Commission from proceeding
with the complaint it initiated against the Applicant on July
17, 1989 because the said Respondent has exceeded its
jurisdiction by using such complaint as a colourable device
to enable it to pursue its ultra vires scheme of reviewing the
Applicant's implementation of employment equity including
its employment equity plan under the Employment Equity
Act. The Respondent Canadian Human Rights Commission
has been given no power to do so under any act of Parlia
ment or otherwise.
2. A writ of certiorari ought to issue quashing the Respondent
Canadian Human Rights Commission's decision to initiate
the complaint brought by the Respondent Michelle Falar-
deau-Ramsay in her capacity as a Division thereof on July
17, 1989 because such complaint is wholly lacking in any of
the particulars required for a valid complaint under the
Canadian Human Rights Act and fails to inform the Appli
cant of the nature of the complaint it has to meet. Further
the matters alleged in such complaint are so vague as to be
incapable of giving the Respondents or either of them
reasonable grounds to believe that the Applicant had con
travened the Canadian Human Rights Act.
3. Writs of certiorari and prohibition ought to issue in respect
of the Respondents' proceedings in initiating the complaint
against the Applicant because in an effort to assume a
jurisdiction which they do not have, the Respondents have
proceeded in a manner which is, in any event, totally unfair
to the Applicant and have manipulated the provisions of the
Canadian Human Rights Act to enable themselves to bring
an untimely and unlawful complaint in furtherance of their
ultra vires scheme to review implementation of employment
equity and employment equity plans pursuant to the
Employment Equity Act.
The applicant's language is a trifle melodramat
ic and, be it noted, it clearly imputes bad faith or
malice to the respondents in paragraphs 1 and 3,
at least. The respondents must not, of course, be
inhibited unduly in effecting such repudiation as
they deem appropriate in response to those allega
tions of attempting knowingly to wield excessive
powers in relation to the applicant's hiring prac
tices and the composition of its workforce.
It is important to distinguish the position of the
respondent Falardeau-Ramsay from that which
may be observed in other and different proceed-
ings, that is, the position of the officer of a corpo
ration who is offered for examination for discov
ery. The witness on examination for discovery has
a duty to describe under oath the specific posture
of the party concerned, even if that means express
ing hearsay in order to be informed on the specif
ics of the concerned party's claim or defence to
wit: the party's specific stance or posture in the
proceedings. On examination for discovery, the
witness is obliged to inform himself or herself at
the peril of the striking out of the concerned
party's pleadings.
The position of the respondent Falardeau-Ram-
say in regard to her affidavit filed in the instant
proceedings is defined and limited by the strictures
of Rule 332(1). Moreover, it is shown by the
affidavit of Chantal Lamarche sworn May 24,
1990, with its attached exhibit, that the respondent
Falardeau-Ramsay was first appointed to the
CHRC, in the initial rôle of Deputy Chief Com
missioner sometime in 1988. This fact is not
denied by the respondents. The individual respond
ent signed the complaint against the applicant
initiated by the CHRC on July 17, 1989.
This latter fact further limits the scope of the
respondent's deposition to matters and events
which occurred within the Commission upon or
after her taking up her duties there, lest she dredge
up hearsay. Of course, she would be quite entitled
to tender any minutes, internal memos or other
records of the CHRC which came into existence
before that crucial date as being produced from
her custody and control, but in such a case the
documents would have merely to speak for them
selves without any gloss or explanation on the
respondent's part. Equally, this and every other
deponent must abstain from expressing any gloss
or explanations on the interpretation of the law.
The respondents' counsel may do that in submis
sions to, and discussions with, the Court, which is
the proper ultimate interpreter of the law. An
attempt to cross-examine a deponent on this
matter would end up being an improper canvassing
of the deponent's opinion about the meaning of
records and the interpretation of law.
So, the kind of examination to be performed by
the Court in this case, is well exemplified by that
performed by Mr. Justice Teitelbaum of this Court
in Gingras v. Cdn. Security & Intelligence Service
(1987), 11 C.I.P.R. 327, where he examined all of
the affidavit's impugned paragraphs against the
standard promulgated in Rule 332(1). A further
glimpse of this present sort of adjudication is
revealed in the unanimous decision of this Court's
Appeal Division rendered by Mr. Justice Heald in
Foodcorp Ltd. v. Hardee's Food Systems, Inc.,
[1982] 1 F.C. 821, at page 824, thus:
A perusal of the affidavits made a part of the expungement
record by paragraph 3 of the Trial Division order makes it clear
that they do not comply with Rule 332(1). They are replete
with statements made on information and belief, with hearsay
and, with opinions not based on personal knowledge. In my
view, it would not be possible to separate the admissible from
the non-admissible portions. For the same reason, it is my
opinion that the cross-examinations on the affidavits and any
admissions arising thereon, are equally inadmissible and should
not be filed in the expungement proceeding.
Among the many individual paragraphs sought
to be struck out by the applicant, as an alternative
to striking out the entire affidavit, are paragraphs
2 and 3 which are set forth under the headline
MANDATE OF THE CANADIAN HUMAN RIGHTS
COMMISSION, thus:
2. In 1977, the Parliament of Canada passed the Canadian
Human Rights Act and codified the principle that every
individual should enjoy equality of opportunity in the public
arena, without discrimination, based on factors enumerated in
the Act. The Canadian Human Rights Commission was created
to give effect to this principle and was provided with a variety
of instruments described in the statute.
3. These instruments include:
(a) The duty and authority to investigate complaints;
(b) The authority to initiate its own complaints;
(c) The authority to seek adjudication of complaints where
warranted and to advance the public interest;
(d) The authority to establish guidelines binding on itself and
Tribunals, defining compliance with the Act;
(e) The duty to develop and conduct information programs and
other activities to discourage and reduce discriminatory prac
tices and to foster public understanding of basic human rights
principles;
(f) The authority to provide advice and assistance to employers
waiting to establish special programs to rectify discriminatory
practices and their effects;
(g) The authority to make recommendations directly to Parlia
ment on matters pertaining to its broad mandate.
Now those paragraphs border a trifle too much
on the chatty, but one cannot foresee them scut-
tling the applicant's position in this litigation. On
the other hand, from a purist's point of view, those
paragraphs do purport to give the respondent's
own interpretation of the statute law when the
statute speaks for itself. The respondents may
instruct their counsel to posit such interpretations
of the statute in oral or written argument, but the
respondent qua deponent and qua witness upon
viva voce cross-examination on her affidavit
cannot be permitted to give "evidence" or "tes-
timony" of her interpretation of the statute law.
The applicant's counsel objects that the deponent
"very cleverly transposes certain words of the Act
into other words giving them an entirely different
meaning". Whether or not that be so, these para
graphs ought therefore to be struck out.
Further, under the headline COMMISSION
INITIATIVES UNDER SECTION 10, the same obser
vations can readily be verified. Paragraphs 4 and 5
are clearly objectionable in that they contain the
deponent's own interpretation of the law and hear
say. Paragraph 6 runs:
6. To facilitate compliance with the broad policy objectives of
the Act as well as with specific sections of the legislation
(sections 10 and 15 in particular) [all very interpretive of the
legislation which speaks for itself], the Commission issued a
publication in 1981 titled "Special Programs of Employment:
Criteria for Compliance" [factual assertion] which included the
following statement:
[Also, a factual statement of what was included.]
This analysis was adopted and articulated by the Supreme
Court of Canada in the case of Action Travail des Femmes v.
CN Railway Company.
The applicant's counsel has no objection to the
factual assertions whose relevance can be deter
mined later in the proceedings, but he asserts that
he is very familiar with the Action Travail [Action
Travail des Femmes v. Canadian National Rail
way Co., [1987] 1 S.C.R. 1114] case having even
written an article on it, but that it says no such
things as the deponent states. He insists that the
deponent Falardeau-Ramsay improperly states her
view of the history of the Action Travail case, and
he is further aggrieved at what he describes as
"revisionist history". The applicant's counsel
asserts that he must object and muve to strike out
such paragraphs lest the applicant be fixed with
the deponent's view of a judgment of the Supreme
Court of Canada merely for failure to object. The
paragraph must be struck out.
Where, in paragraph 7, the deponent Falardeau-
Ramsay swears that "the Commission also recog
nized", she gives a conclusion without a document
ed minute of the CHRC or the depositions of its
members in attendance at the time, or even inter
office memoranda. It is a small point perhaps but
the deponent's assertion is of the Commission's
having "recognized" this, or having been "con-
cerned" about that, and it is entirely without
reference to place, date, time or personal knowl
edge, but expresses personal opinions and further
interpretations of the law including what "human
rights enforcement was intended to be". That is a
defective deposition which must be struck out.
Much historical speculation about the 1978 initia
tive and subordinate mandate of the CEIC and the
consequent establishment of a commission of
enquiry surfaces in paragraph 8, which has not the
ring of personal knowledge at all. It must be struck
out.
Perusal of the other impugned paragraphs in the
respondent Falardeau-Ramsay's affidavit reveals
them to be non-complying and for the reasons
expressed by the applicant's counsel. Not least in
objectionability is, for example, paragraph 48
which is hearsay upon hearsay:
48. 1 am informed by Mr. Yalden and verily believe that on
June 23, 1989, he spoke to Bell's Executive Vice-President,
Legal and Environmental Affairs, Roger Tassé. Mr. Yalden
explained the importance of having a written agreement for the
joint review. He stressed that it was urgent that the matter be
resolved, because the Commission had authorized the initiation
of a complaint if agreement had not been reached by July 14,
1989. Now shown to me and marked as Exhibit 8 to this
Affidavit is a copy of Mr. Yalden's note regarding this conver
sation. Now shown to me and marked as Exhibit 9 to this
Affidavit is Mr. Yalden's letter of the same date, enclosing a
revised version of the MOU ....
This indicates that perhaps the Chief Commission
er Max Yalden ought to have sworn an affidavit,
thereby exposing himself to cross-examination on
it, if the alleged conversation with Mr. Tassé be
important to the respondents' case. Paragraph 48,
to the point above recited, must be struck, along
with the others impugned by the applicant.
In a sense, it is a pity to have so to gut the
affidavit. The respondents' counsel argued lucidly
for the desirability of permitting the respondents'
whole story in response to be placed before the
Court. It will be now quite inconvenient for the
respondents to "fill in" with proper depositions
what now needs expression and elaboration. Some
will see the Court as being unduly rigid and hard
on these respondents, and others in similar circum
stances, in applying Rule 332(1) in its most literal
"black-letter" manner. Such a point of view is not
without merit. However the applicant is entitled to
induce the Court to exact compliance with its
Rule. The applicant has justifiably in mind the
problems of cross-examination of the deponent
and, although the respondents' counsel waived the
advantage, the possibility of seeming to ratify and
adopt such of what counsel called "revisionist"
expressions upon which cross-examination would
be non-factual and perhaps inconclusive.
So, with some hesitation regarding the Rule's
ultimate utility here, but with no doubt about the
Rule's application here, the Court considers that
such application leaves the respondent's misbegot
ten affidavit in such tatters that what is left of it
ought mercifully to be struck out in its entirety.
Such striking out will, obviously, inflict an emer
gency situation on the respondents in terms of this
litigation. The respondents are challenged by the
applicant to explain their posture, to defend their
powers and jurisdiction and to defend against the
applicant's allegations of bad faith or arbitrary
aggrandizement of their jurisdiction vis-Ã -vis the
applicant in particular, but really in regard to all
big employers at large. Now, the respondent Falar-
deau-Ramsay's affidavit is gone. Therefore the
respondents will be permitted a period of 15 days
after the date of the order giving effect to the
Court's conclusions herein, in which to file a
re-cast affidavit on the part of the respondent
Falardeau-Ramsay, or some other officer or ser-
vant, past or present, of the CHRC. It would be
highly preferable that only one such affidavit be
filed, but if, in response to the applicant's objec
tions to the now-struck affidavit, it appears neces
sary to identify and file considerably more exhibits
in response, a second affidavit by the same depo-
nent or another, for that purpose, will not be out of
order.
The costs of this proceeding, on a party-and-par
ty basis, shall be costs in the cause.
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.