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John Doe
(G.E.B. #36) v. Roman Catholic Episcopal Appeal from judgment of the Supreme Court of Newfoundland, Trial Division, [2003] N.J. No. 235. Counsel:
Reasons for judgment by: Wells C.J.N.L. Concurred in by: Welsh and Rowe JJ.A. ¶ 1 WELLS C.J.N.L.:— This is an appeal from an interlocutory order made preliminary to the hearing of an application to vacate an order for service and set aside the ex juris service of a statement of claim. The order appealed contains two directions. First, that cross-examination on the affidavit of a non-resident deponent be allowed. Second, that the deponent, resident in the United States of America, attend at the hearing in St. John's in which his affidavit is to be relied upon in support of the application to set aside service. ¶ 2 The first respondent, named by pseudonym as John Doe (G.E.B. #36), is one of 40 plaintiffs, each of whom commenced a separate action against the second respondent, Roman Catholic Episcopal Corporation of St. John's, as first defendant, and against the appellant, Christian Brothers Institute Inc., as second defendant, alleging sexual and physical abuse by persons for whose actions the defendants were alleged to be directly or vicariously liable, and claiming damages. The statement of claim alleges involvement by each of the Episcopal Corporation and the Institute in the operation of a residential education institution in St. John's known as Mount Cashel Orphanage. ¶ 3 Preliminary proceedings, intended to apply to all 40 actions were taken in the name of John Doe (G.E.B. #36). In an ex parte application, G.E.B. #36 applied for and was granted an order authorizing service ex juris of his statement of claim on the Institute, a corporation incorporated under the laws of, and having its offices in, the state of New York, United States of America. ¶ 4 The Institute then brought an interlocutory application, pursuant to Rule 10.05 of the Rules of the Supreme Court, 1986, seeking to set aside the service and discharge the order granting leave for service ex juris. The application set out in some detail the history of the Institute, its constitutional structure, the extent of its connection with this province, and its legal position with respect to the order for service ex juris. The application expressly stated that "In support of this Application the [Institute] will file additional affidavits and probably seek leave to call viva voce evidence". ¶ 5 On filing, that interlocutory application was supported by an affidavit of counsel attesting that he had "knowledge of all matters herein deposed", that he had read the application and that the facts were true to the best of his "knowledge, information and belief". Some weeks later a further extensive and very detailed affidavit, sworn by James B. Moffatt as President of the Institute, was filed in support of the interlocutory application to set aside service ex juris of the statement of claim. Numerous other preliminary procedures have been taken and other applications have been heard. ¶ 6 Some time prior to the scheduled hearing of the Institute's application to set aside the order for service ex juris, G.E.B. #36 brought an interlocutory application seeking an order directing the Institute to have James B. Moffatt "in attendance on (and after) the [scheduled date] to be cross examined on his affidavit and, generally, on the matters before this Court" and directing that failing such attendance the appellant's application be dismissed. After determining that cross-examination should be allowed, the applications judge ordered that: "James B. Moffatt attend at the hearing of the application by [the Institute] to vacate the order for service ex juris ...". The Institute sought leave to appeal that order and leave has been granted. The Episcopal Corporation took no part in the interlocutory application to set aside service ex juris, and is taking no part in this appeal. Issues on Appeal (a) View of the Institute ¶ 7 The Institute makes three arguments. First, it argues that the applications judge was in error because he made an order requiring action to be taken when that action can only be taken outside of the territorial jurisdiction of this province, indeed, outside the territorial jurisdiction of the country. ¶ 8 Second, the Institute argues that compliance with such an order would result in the Institute being deprived of its right, under Rule 10.05, to challenge the ex parte granting of the order for service ex juris without, by so doing, submitting to the jurisdiction of the court. Counsel submits that, if the deponent of the affidavit, who is the President of the Institute, appears for cross examination, service could be effected on the Institute by serving the statement of claim on its president who would then be within the jurisdiction of the court. ¶ 9 Third, the Institute argues that the applications judge erred in determining that G.E.B. #36 was entitled to cross examine the deponent on the affidavit. The Institute further argues that even if entitlement to cross examination is found, it must be carried out through the letters rogatory process provided for in Rule 47. (b) View of G.E.B. #36 ¶ 10 G.E.B. #36 submits that there are only two issues. First, whether the applications judge erred in determining that cross examination should be allowed in the circumstances of this case. Second, having determined that cross examination should be allowed, whether the applications judge erred in specifically ordering James B. Moffatt to attend at the hearing. ¶ 11 With respect to the first issue GEB #36 argues that the applications judge has jurisdiction to allow cross-examination of any deponent. G.E.B. #36 also argues that the applications judge properly exercised a discretion as to whether or not to allow cross examination on the affidavit and there is no basis for challenging the propriety of his exercise of discretion. ¶ 12 With respect to the second issue, whether the applications judge had jurisdiction to order a resident of New York state to attend here for purposes of cross examination, G.E.B. #36 argues that the jurisdiction of the court to make such an order stems from the fact that the Institute has submitted that party as a witness. It is also argued that the Institute's application was supported by an affidavit of its counsel when it was filed and this met the requirement of the rules. If the Institute chose to have its president file an additional affidavit, it accepted the consequences that necessarily flow, which include attendance of the deponent for cross-examination. ¶ 13 The issues have been correctly framed by G.E.B. #36. They are:
Analysis
¶ 14 The applications judge based his determination, that he had the discretionary power to allow cross-examination, primarily on the decision of Goodridge J. (as he then was) in Province of Newfoundland v. Churchill Falls (Labrador) Corporation Limited and Quebec Hydro Electric Commission (NLSCTD) (1977), 13 Nfld. & P.E.I.R. 421 and the appeal from that decision to this Court, (1978), 15 Nfld. & P.E.I.R. 77. In that case, in reliance upon an affidavit, an ex parte order for service out of the jurisdiction had been granted. Because the application to discharge the order for service ex juris had not yet been made, when Goodridge J. was dealing with the application for an order that the deponent be cross-examined, he determined that he could not, at that point, make the order for cross-examination. In the process, however, he did, at paragraph 52, observe:
On appeal of that decision to this Court, Gushue J.A. (as he then was) after concluding that Goodridge J. was correct in refusing leave, at paragraph 14 also observed:
¶ 15 It should be noted, however, that Goodridge J. was there dealing with an explicit provision of the Rules as they existed prior to the 1986 revision. This is clear from his comment at paragraph 46:
¶ 16 While the old Rule 1 of Order XXXIV does not find specifically comparable expression in the 1986 version of the Rules, I am satisfied that the specific rules identified by the applications judge produce the same effect. Sub-rule (1) of Rule 29.09 provides for evidence by way of affidavit and otherwise on the hearing of an application. Sub-rules (2) and (3) of Rule 29.09 make further explicit provision, namely:
In addition Rule 29.10 specifically provides that on the hearing of an application
Clearly, Rules 29.09 and 29.10 confer as much jurisdiction on the Court to order cross-examination and attendance for cross-examination as Rule 1 of the old Order XXXIV did. As well, as the applications judge also noted, Rule 48.10 specifically provides for cross-examination of the deponent on an affidavit whether the affidavit is to be used on a trial or at a hearing. ¶ 17 Relying on Corsaire Snowboard Inc. v. Nazerali-Walji (1998), 55 B.C.L.R. (3d) 243 (BCSC), the Institute also argues that:
I am unable to conclude that Corsaire is authority for the proposition put forward by the Institute. In Corsaire the issue involved allegations of fraudulent activity arising out of agreements respecting the sale of shares and intermediate transactions involving purchase and sale of blocks of those shares which resulted in allegations of fraud and conspiracy. ¶ 18 It is correct that Loo J. decided:
However, those comments specifically followed the excerpts she quoted from J. Michael Jenson Boat Sales Ltd. v. McAfee (1997), 12 C.P.C. (4th) 210 (BCSC). Those excerpts include:
¶ 19 That is not support for the proposition that a foreign defendant, seeking to challenge service ex juris of pleadings in a matter in respect of which there has been no challenge to the court's jurisdiction simpliciter, can reasonably expect the court to allow it to submit and rely upon an affidavit without cross-examination if cross-examination is otherwise warranted. Rather, it supports the proposition that a foreign defendant challenging the service of pleadings on it should not be expected to have to make a deponent available for cross-examination unless "jurisdiction over the case (referred to as jurisdiction simpliciter)" [Emphasis added] has been established. Nothing in the record, the factum of the Institute, or the argument of counsel indicates that the jurisdiction of the court over the case has been challenged. I would therefore reject the Institute's argument that, on the basis of the principle expressed in Corsaire, it is inappropriate to allow cross-examination on the affidavit of a foreign deponent on an affidavit relied upon to set aside an order for service ex juris. ¶ 20 On examination of the Rules and the authorities I am satisfied that the applications judge made no error in determining that he had the jurisdiction to allow cross-examination if, in his discretion, he determined that the circumstances of this case warranted such cross-examination. ¶ 21 I am also satisfied that the applications judge exercised his discretion in a judicial manner. He decided the test to be applied was that expressed by this Court in Beanland v. Beanland (1997), 151 Nfld. & P.E.I.R. 51. He quoted Green J.A. as indicating, even though the right to cross-examine on affidavits may be subject to the discretion of the court, generally it should be permitted where it is necessary to challenge facts deposed. That conclusion is quite consistent with the decision of the Alberta Court of Appeal in Reference re Firearms Act (Canada) (1998), 86 Alta. L.R. (3d) 59. There the court decided that while the right to cross-examine is not absolute, unusual circumstances are required to justify its refusal. The court was applying a rule which provided that a deponent "may be cross-examined on an affidavit without order". Our Rule 48.10 uses essentially similar words: "The deponent of an affidavit to be used on a trial or hearing may be cross-examined and re-examined ...". ¶ 22 The applications judge did an assessment of specific components of the affidavit and reviewed what counsel for G.E.B. #36 described as apparent contradictions within the affidavit and as conflicts between the content of that affidavit and the sworn evidence and affidavit of another deponent. While carefully reserving his own judgment as to the issue, he concluded that the Beanland test had been met and, therefore, cross-examination on the affidavit should be allowed. ¶ 23 Considering the foregoing, it must be concluded that the applications judge made no error in determining that cross-examination on the affidavit of James B. Moffatt should be allowed in the circumstances of this case. That ground of appeal therefore fails.
¶ 24 The reasons of the trial judge contain no discussion of the limitations, if any, on his ability to order attendance, for cross-examination, of that specific deponent in the circumstances of this case. He simply decided:
And, ultimately he ordered:
¶ 25 The Institute argues that:
¶ 26 The Institute argues that "normal practices and procedures applicable in purely domestic cases may have to give way in respect of international law principles ...", because the Rules of the Supreme Court 1986 can have no application beyond the boundaries of the province. It is further argued that the order of the applications judge amounts to an international subpoena, and the Interprovincial Subpoena Act, RSNL 1990, c. I-20 extends only to persons resident in other provinces of Canada. ¶ 27 In support of that argument, counsel for the Institute cites Hunt v. T&N plc, [1993] 4 S.C.R. 289. He quotes LaForest J. as saying, at p. 316:
In its factum the Institute invites the Court to draw the inference that:
¶ 28 The quotation from Hunt does not reflect the views expressed by LaForest J. that are most apposite on these issues. Those views are more accurately reflected in his comments, at pages 313-14, where he writes:
Hunt does not, therefore, support the inference the Institute asks this Court to draw. ¶ 29 The Institute also argues that:
I agree. It is trite law that, absent some treaty arrangement coupled with the necessary reciprocal statutory authorization, courts in this province have no right to order a person resident in another country to perform a specific action. Ordering James B. Moffatt to attend the hearing scheduled to take place before the applications judge necessarily directs him to take action in New York to initiate travel arrangements that would result in his attendance at the hearing in St. John's. That clearly exceeds the jurisdiction of the court. ¶ 30 The Institute then argues:
Counsel submits that Rule 47 provides a method for obtaining such evidence in a manner in keeping with international law: letters rogatory. He argues that since it is G.E.B. #36 who is seeking cross-examination, he has the burden of initiating the letters rogatory procedure. ¶ 31 I disagree. It is the Institute that is seeking to rely on the evidence of James B. Moffatt. That evidence, like all evidence submitted to a court, may consist of two parts: the direct examination and the cross-examination. The Institute cannot assert a right to have the direct portion of the evidence of a witness, resident in a foreign country, accepted by affidavit, and impose on its adversary the burden of initiating letters rogatory procedure in order to ensure that the court hears the second part of a witness' evidence, that part normally obtained by cross-examination. Such an assertion so offends the principle of procedural fairness, essential to every judicial proceeding, that it must be rejected. It would, of course, be an entirely different matter were G.E.B. #36 seeking to place before the court evidence from James B. Moffatt, rather than, as here, seeking to test, by cross-examination, evidence of James B. Moffatt that the Institute seeks to place before the court. Only if G.E.B. #36 were seeking to lead such evidence from James B. Moffatt would he have the burden of initiating a letters rogatory process, or some alternate means of getting such evidence before the court. ¶ 32 The applications judge, having determined that he had jurisdiction to allow cross-examination, and determined that in the circumstances of this case he ought to exercise his discretion to allow the cross-examination of James B. Moffatt on his affidavit, could have proceeded in one of at least two ways:
However, the applications judge had no jurisdiction, in the circumstances of this case, to specifically order a person resident outside this country to attend for purposes of cross-examination on an affidavit. The Institute, therefore, succeeds on that ground of appeal. Conclusion ¶ 33 The appeal against the decision of the applications judge that the Court had jurisdiction to allow cross-examination on the affidavit of James B. Moffatt, and his decision that in the circumstances of this case such cross-examination should be allowed, is dismissed. However, it is for the applications judge, not this Court, to decide what consequences, if any, should follow any failure by the Institute to have James B. Moffatt available for cross-examination when the hearing resumes. The appeal against the order of the applications judge that James B. Moffatt attend at the hearing of the application by the Institute to vacate the order for service ex juris is allowed. ¶ 34 Accordingly, the order of the applications judge is varied by deleting the paragraph numbered 1 and substituting therefor:
¶ 35 Success on the appeal being mixed, there will be no order as to costs. WELLS C.J.N.L.
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