Canada ( Minister of Citizenship and Immigration ) v. Dueck

T-938-95

Noël J.

7/4/98

Applicant filing motion to take commission evidence in Ukraine, affidavit of documents-Respondent contesting adequacy of affidavit of documents, opposing motion to take commission evidence on grounds material filed in support of motion establishing neither cooperation of Ukrainian authorities with conduct of commission nor relevance of evidence-(1) Affidavit of documents, Schedule II listing relevant documents for which applicant claiming privilege-Documents segregated into seven bundles-R. 448(3) allowing party to treat bundle of documents as single document provided (i) documents of same "nature"; (ii) bundle described in sufficient detail to enable clear understanding of contents-Six bundles not meeting either condition-No apparent commonality amongst documents within each bundle-That all subject to claim of privilege only common thread-As documents not of same nature, attempt to describe them in bulk not allowing respondent to clearly understand contents of each bundle as required by R. 448(3)-Where documents of same class, nature organized in bundles, not necessary to identify each individual document as would defeat advantage of bundling-But less closely related constituent documents requiring greater degree of detail to adequately describe bundle's contents-No manner of detail could compensate for dissimilarity in documents comprising each bundle herein-Counsel for applicant not meeting standard of due diligence in preparing Schedule II-Applicant directed to file, serve revised list of documents in Schedule II-(2) Case law requiring Court be satisfied as to likelihood of foreign state's collaboration in conduct of commission-Court taking judicial notice of fact two commissions dispatched to Ukraine in past year, both of which enjoyed full cooperation of authorities, notwithstanding arising out of citizenship references-No reason to believe Ukrainian authorities will not lend support in this case as well-Court must be satisfied witnesses to be examined can give evidence material to issues before authorizing commission-Although respondent in possession of witness statements, not relying on them to establish lack of relevance-Court satisfied witnesses in respect of which applicant seeking to take commission evidence can give material testimony-As to timing of commission, although preferable for commission to follow resolution of all pre-trial matters, R. 477 clearly contemplating striking of commission in advance of actual proceedings-Real possibility key witnesses may die before all pre-trial matters resolved-Issuance of commission now neither oppressive nor unfair-Respondent in possession of certified transcript of testimony of witnesses to be examined-Knows questions to be asked, answers-Prior to commission setting out, respondent having benefit of discovery of applicant arising out of documents listed in Schedule I of applicant's list of documents, but not arising out of better affidavit of documents for which privilege claimed-Unlikely this potential shortfall in information could prejudice respondent's ability to examine announced witnesses during course of commission, as testimony relating to events experienced in Ukraine during, shortly after World War II-As possibility of prejudice not eliminated applicant formally undertaking to assume costs incidental to second commission if necessary-Commission issued-Federal Court Rules, C.R.C., c. 663, RR. 447 (as am. by SOR/90-846, s. 15), 448(3) (as am. idem).