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PRACTICE AND PROCEDURE

THE APPLICABLE RULES OF IN : A SHORT PRIMER ON A TRICKY QUESTION

Whether at trial or during interlocutory proceedings, litigators need to know the applicable rules of evidence, since there are import- ant variations in provincial evidence . The largest difference, of course, is between the of Que´bec and of the nine common-law provinces. Yet significant differences exist even between the provinces themselves. Admissions made during discovery can be contradicted at trial in , but not in Saskatchewan.1 Spoliation of evidence requires intentional conduct in before remedies will be granted, but not in .2 Evidence obtained through an invasion of privacy is inadmissible in Manitoba, while the other provinces have yet to legislate on this issue.3

1. Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 43 C.P.C. (5th) 65, 51 O.R. (3d) 97, 138 O.A.C. 201 (Ont. C.A.) at paras. 72-86, leave to appeal refused [2001] 2 S.C.R. x, 156 O.A.C. 358 (note), 282 N.R. 397 (note) (S.C.C.); Branco v. American Home Assur- ance Co., 2013 SKQB 98, 6 C.C.E.L. (4th) 175, 20 C.C.L.I. (5th) 22 (Sask. Q.B.) at paras. 96-101, additional reasons 2013 SKQB 442, 13 C.C.E.L. (4th) 323, [2014] I.L.R. I-5534, varied on other issues without comment on this point 2015 SKCA 71, 24 C.C.E.L. (4th) 173, 51 C.C.L.I. (5th) 1 (Sask. C.A.), leave to appeal refused 2016 CarswellSask 243, 2016 CarswellSask 244 (S.C.C.). Admissions made during discovery in cannot be contra- dicted either: art. 2852 CCQ. 2. Chow-Hidasi v. Hidasi, 2013 BCCA 73, 98 C.C.L.T. (3d) 177, 42 M.V.R. (6th) 189 (B.C. C.A.) at para. 29 (“On the present state of the law, it is clear that spoliation requires intentional conduct”); Spencer v. Quadco Equipment Inc., 2005 NBQB 2, 6 C.P.C. (6th) 152, 748 A.P.R. 314 (N.B. Q.B.) at para. 32; and Elliott v. Trane Inc., 2008 NBQB 79, 333 N.B.R. (2d) 1, 855 A.P.R. 1 (N.B. Q.B.) at paras. 224-227 (both cases holding that evidence was destroyed unintentionally, yet still applying spoliation sanctions). 3. , C.C.S.M., c. P125, s. 7. Quebec also excludes evidence obtained in breach of privacy: art. 2858 CCQ read together with s. 5 of the Charter of Human Rights and Freedoms, CQLR, c. C-12; Tobin v. De Lanauze, REJB 2000-20219, [2000] R.J.Q. 2596, [2000] Q.J. No. 3137 (C.S. Que.), affirmed without comment on this point 2001 CarswellQue 2887, REJB 2001-27380 (C.A. Que.). For an excellent summary of the law on this point see Erin

252 2016] Practice and Procedure 253

The extent of these divergences makes it important to know which province’s rules of evidence apply to a given proceeding. In superior and provincial courts, this is a simple matter – the applicable rules of evidence are the laws of that province.4 However, the issue is much less clear when a case is brought in the . Consider the following scenario: patent infringement is occurring in New Brunswick. Your client, the patent owner, is based in Ontario, so you file your infringement action with the Federal Court’s Toronto registry. The defendant hires a Quebec law firm, which files a defence and counterclaim at the Montreal registry. With discovery well underway, you bring a motion, which the parties agree will be heard in . To make things interesting, suppose that your motion was filed with the Vancouver registry, since a snafu at the printer meant that you missed the 4:30 filing deadline in Ontario. If a problem of evidence law arises during the motion, what is the applicable law? Based on the above facts, the answer is not obvious, and may ultimately depend on whether your motion is being heard by a judge or a Prothonotary. Does this surprise you? It probably should. But it’s a result of the sometimes subtle interaction between the Canada Evidence Act (CEA) on the one hand, and Federal Courts Act (FCA) on the other. Although the example above involves patent infringement, identical issues could arise in copyright, trade-mark, or industrial design cases, since all of these proceedings will be governed by the Canada Evidence Act. Nor are these evidentiary concerns limited to intellectual matters. As illustrated by the decisions cited later in this article, the same kinds of issues arise in maritime cases, judicial review, or in claims against the Crown brought in Federal Court. Indeed, these kinds of evidentiary problems are almost guar- anteed when the Federal Court exercises its divorce jurisdiction.5

Pleet, “The Use of Wrongfully Obtained Evidence in Civil Proceedings” (2016), 35:2 Advocates’ J. 11. 4. Where provincial or superior courts try provincial law matters, that province’s evidence law applies as a matter of course (see e.g., Coles v. Takata Corp., 2016 ONSC 4885, 2016 CarswellOnt 12423 (Ont. S.C.J.) at paras. 26-32; art. 3130 CCQ). Where these same courts try federal matters, s. 40 of the Canada Evidence Act makes local provincial law applicable. 5. , R.S.C. 1985 (2nd Supp), c. 3, ss. 4(3) and 5(3) (granting the Federal Court exclusive jurisdiction over divorce cases in which the spouses filed proceedings on the same day in different provinces). See text surrounding footnote 22 infra for more details on this issue. 254 The Advocates’Quarterly [Vol. 46

The Paramount – but Narrow – Role of Federal Law Section 2 of the CEA specifies that the Act applies “to all civil pro- ceedings and other matters whatever respecting which Parliament has jurisdiction”. This phrase refers to all litigation brought under federal statutes,6 which includes actions and applications, as well as all accessory proceedings (motions, appeals, references, etc.).7 Since the Federal Court’s jurisdiction covers only issues which fall under federal legislative jurisdiction,8 and since the CEA applies to all proceedings within federal legislative jurisdiction, it follows that the CEA applies to all proceedings brought in Federal Court. Where the CEA or another federal Act (although probably not a federal regulation9) provides a rule of evidence, that federal rule will override all inconsistent provincial rules.10 However, the CEA does not purport to be a complete code of evidence law, and generally addresses only specific issues. Where federal law is silent, s. 40 of the CEA adopts provincial law.11

6. See e.g. R. v. Geransky, 2005 SKQB 429, 24 M.V.R. (5th) 258, 268 Sask. R. 256 (Sask. Q.B.) at para. 6; Awasis Agency of Northern Manitoba v. B. (B.D.), 2009 MBQB 316, 248 Man. R. (2d) 8, 183 A.C.W.S. (3d) 682 (Man. Q.B.) at paras. 10-11; R. v. Gladue, 2015 ABPC 187, 88 M.V.R. (6th) 336, 26 Alta. L.R. (6th) 333 (Alta. Prov. Ct.) at paras. 15-16. On the definition of “other matters” see Christidis v. L. (P.L.) (2000), 95 A.C.W.S. (3d) 103, 45 W.C.B. (2d) 370, [2000] O.J. No. 554 (Ont. S.C.J.) at paras. 16-22. 7. See by analogy Bank of Credit & Commerce International S.A. v. Haque (1996), 42 C.B.R. (3d) 95, 30 O.R. (3d) 477, [1996] O.J. No. 3275 (Ont. Gen. Div.) at para. 4. 8. ITO - International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, 28 D.L.R. (4th) 641, 34 B.L.R. 251 (S.C.C.). 9. This would follow from the reference to “acts” rather than “enactments” in s. 40, since the Supreme Court has ruled that where Parliament refers to “acts” rather than “enactments”, this excludes regulations: Reference re Broadcasting Act, S.C. 1991 (Canada), 2012 SCC 68, [2012] 3 S.C.R. 489, 352 D.L.R. (4th) 433 (S.C.C.) at para. 80, applying Interpretation Act, R.S.C. 1985, c. I-21, s. 2 definition “act”, “enactment”. However, this view could easily lead to absurd results, since the Federal Courts Rules are themselves a regulation. 10. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 40; Ravagnolo c. R. (2001), [2003] 1 C.T.C. 2592, 2001 D.T.C. 365 (Fr.), [2001] T.C.J. No. 165 (T.C.C. [General Procedure]) at para. 77; R. v. Ducharme (1999), 182 Sask. R. 138, 43 W.C.B. (2d) 317, [1999] S.J. No. 552 (Sask. Q.B.) at paras. 13-14. See also Farmer Construction Ltd. v. R. (1983), 83 D.T.C. 5272, 48 N.R. 315, [1983] F.C.J. No. 417 (Fed. C.A.) (commenting in obiter on the possibility of applying provincial laws with modification in cases where they conflict only in part with federal law), adopted as ratio in Anderson v Canada (1997), 130 F.T.R. 100, 69 A.C.W.S. (3d) 1080, [1997] F.C.J. No. 270 (Fed. T.D.) at paras. 2-3. 2016] Practice and Procedure 255

The Suppletive – but Broad – Role of Provincial Evidence Law Although theoretically relegated to a suppletive role by the CEA, the narrow scope of federal evidence law in civil matters means that recourse to provincial evidence law is the norm, rather than the exception, in the Federal Court.12 “Provincial law” in this context includes both statute law (e.g. provincial Evidence Acts and Book 7 of the Civil Code of Que´bec), as well as common-law rules of evidence and uncodified civil law rules of evidence in Que´bec.13 It also includes evidentiary provisions contained in provincial procedural enactments like the Rules of Civil Procedure.14 Of course, even if the Federal Court applies “provincial law”, it is not bound by the decisions of provincial courts15 (so if the differed with a provincial appellate court on a matter of evidence law, the Federal Court must follow the Federal Court of Appeal). Which province’s law applies? Section 40 of the CEA designates the applicable provincial law as that “in force in the province in which those proceedings are taken”. One decision holds that this 11. Canada Evidence Act, R.S.C. 1985, c. C-5, s. 40. See also Interpretation Act, R.S.C. 1985, c. I-21, s. 8.1. 12. Porto Seguro Companhia de Seguros Gerais v. Belcan S.A., [1996] 2 F.C. 751, 111 F.T.R. 239 (note), [1996] F.C.J. No. 422 (Fed. C.A.) at para. 7, rev’d on other grounds without comment on this point [1997] 3 S.C.R. 1278, 153 D.L.R. (4th) 577, 1 Admin. L.R. (3d) 272 (S.C.C.) (“Generally, the admis- sibility of evidence in the Federal Court is governed by s. 40 of the Canada Evidence Act and s. 53(2) of the Federal Court Act”). 13. See e.g. Mercure v. R., 2013 FCA 102, (sub nom. Mercure v. Minister of National Revenue) 454 N.R. 212, [2014] G.S.T.C. 68 (F.C.A.) at para. 18 (applying the Civil Code of Que´bec); Kemanord AB v. P.P.G. Industries Inc. (1980), 49 C.P.R. (2d) 29, [1981] 1 F.C. 567, 1980 CarswellNat 114 (Fed. T.D.) at para. 28 (applying Ontario Evidence Act); Cornforth v. R. (1981), [1982] C.T.C. 45, 82 D.T.C. 6058, [1981] F.C.J. No. 1128 (Fed. T.D.) at paras. 53-56 (applying common-law rules of evidence). Kemanord and Conforth both relied on FCA s. 53(2), but the definition of what constitutes a “provincial law of evidence” is the same under both FCA, s. 53(2) and CEA s. 40. For an example of an uncodified civil law rule of evidence, see Bombardier inc. v. Union Carbide Canada inc., 2014 SCC 35, [2014] 1 S.C.R. 800, 373 D.L.R. (4th) 626 (S.C.C.) at para. 37 (settlement privilege). See also at L. (J.D.) v. L. (R.J.J.), 2012 NBQB 378, 31 R.F.L. (7th) 116, 398 N.B.R. (2d) 1 (N.B. Q.B.), additional reasons 2013 NBQB 23, 400 N.B.R. (2d) 374, 31 R.F.L. (7th) 210 at para. 89 (applying common law rules of evidence pursuant to s. 23 of the Divorce Act, which is identical to CEA s. 40). 14. Anderson v. Canada, supra, footnote 10, at paras. 2-3 (commenting on application of CEA s. 40 to evidentiary rules found in the Manitoba Rules of Court, as well as the interplay between CEA s. 40 and the “gap rule” of the Federal Courts Rules). 15. Merchant Law Group v. Canada Revenue Agency, 2008 FC 1371, 338 F.T.R. 181 (Eng.), 174 A.C.W.S. (3d) 949 (F.C.) at para. 19. 256 The Advocates’Quarterly [Vol. 46 refers to the place where the hearing is held,16 but the weight of authority is that the province in which “proceedings are taken” means the province where the originating document for the litigation was filed.17 This interpretation is confirmed by how the same phrase is used in numerous federal statutes, all of which equate the time or place at which “proceedings are taken” to mean the filing of an originating document, rather than the hearing on the merits.18 As a result of this interpretation, the plaintiff in a Federal Court proceeding effectively chooses the applicable laws of evidence by filing in one registry rather than another. While plaintiffs might be tempted to file strategically in order to choose the evidence law most beneficial to their case, any unfairness flowing from the plaintiff’s choice of registry can probably be mitigated by the discretionary application of other provinces’ laws of evidence under FCA, s. 53(2) (see next section). Section 40 may appear simple at first glance, but it becomes difficult to apply in even moderately complex litigation.19 For example, do counterclaims filed in a different province from the principal claim have separate rules of evidence? If an issue is relevant to both the claim and counterclaim (e.g. patent invalidity raised as a defence to the claim, and to support impeachment in the counter- 16. Kemanord AB v. P.P.G. Industries Inc. (1980), 49 C.P.R. (2d) 29, [1981] 1 F.C. 567, 1980 CarswellNat 114 (Fed. T.D.) at para. 21. This approach has many disadvantages, not the least of which is the question of how it would apply to hearings which are split between multiple provinces or which take place over telephone/video link with participants scattered across in multiple jurisdictions. 17. Canada (Ministre de la Citoyennete´ et de l’Immigration) v. Halindintwali, 2015 FC 390, 34 Imm. L.R. (4th) 182, 259 A.C.W.S. (3d) 736 (F.C.) at para. 96; Desroches v. R., 2013 TCC 81, 2013 D.T.C. 1184 (Eng.), 2013 D.T.C. 1085 (Fr.) (T.C.C. [General Procedure]) at para. 33; Jewish Rehabilitation Hospital v. Minister of National Revenue, 2005 TCC 260, 2005 CarswellNat 6444 (T.C.C. [Employment Ins.]) at para. 78; Anderson v. Canada, supra, footnote 10; Victoriaville (Commission scolaire) c. R. (2002), [2003] G.S.T.C. 122, [2002] G.S.T.C. 49, 2002 G.T.C. 196 (Fr.) (T.C.C. [General Procedure]) at para. 48; Anderson v. Canada (1997), 130 F.T.R. 100, 69 A.C.W.S. (3d) 1080, [1997] F.C.J. No. 270 (Fed. T.D.) at para. 3. 18. See e.g. Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, ss. 21(2), 23, 27; Trade-marks Act, R.S.C. 1985, c. T-13, s. 11.19(1); Copyright Act, R.S.C. 1985, c. C-42, s. 38(1)(b); , R.S.C. 1985, c. P-4, s. 66(2); Customs Act, R.S.C. 1985, c. 1 (2nd Supp), s. 97.58(2); Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), ss. 2(3), 23. 19. See e.g. Walden v. Social Development Canada, 2008 CHRT 35, 2008 TCDP 35, 2008 CarswellNat 6989 at paras. 7-11 (holding that there was no province in which “proceedings were taken” in the context of a multi-complainant human rights case). Respectfully, this approach must be wrong, because s. 40 must always apply, otherwise there would be no applicable evidence law. 2016] Practice and Procedure 257 claim), which law applies? If two actions are filed in different provinces and later consolidated under Rule 105 of the Federal Courts Rules, do they retain separate laws of evidence, and if not, which provincial law prevails? Which rules of evidence should apply when the Federal Court exercises its divorce jurisdiction, since this jurisdiction depends on the existence of proceedings filed simultaneously in different provinces?20 The CEA is silent on these issues, and there does not seem to be any relevant case law. Presumably though, these kinds of problems could also be resolved through the application of FCA, s. 53(2), as discussed in the next section.

The Federal Court’s Discretionary Power to Admit Evidence Under Any Province’s Evidence Laws Section 53(2) of the FCA grants the Federal Court a discretionary power to admit any evidence that would be admissible before the superior court of any province, even if that province’s law is not the applicable law under CEA s. 40. Note that section creates a discretionary power to admit evidence, not to exclude evidence.21 There is very little case law on when or how the Federal Court should exercise its power under s. 53(2). The cases that do exist rarely explain the reasoning behind their results. However, based on the information that can be gleaned from this case law, and on the scheme of the FCA and the CEA, the following situations are ones in which the Federal Court might use s. 53(2) to apply evidence laws different from that chosen by CEA, s. 40: (1) In order to ensure that evidence is admitted according to the law of the province where the hearing is held.22

20. See Divorce Act, R.S.C. 1985 (2nd Supp), c. 3, ss. 4(3), 5(3). 21. The existence of a residual common-law discretion to exclude otherwise admissible evidence was recognized by the in R. v. Wray (1970), [1971] S.C.R. 272, 11 D.L.R. (3d) 673, [1970] 4 C.C.C. 1 (S.C.C.); R. v. Corbett, [1988] 1 S.C.R. 670, 41 C.C.C. (3d) 385, 64 C.R. (3d) 1 (S.C.C.). The British House of Lords has expressly rejected the idea that there is a residual common-law discretion to admit otherwise inadmissible evidence: Myers v. Director of Public Prosecutions (1964), [1965] A.C. 1001, [1964] 2 All E.R. 881 at p. 887, 48 Cr. App. R. 348 (U.K. H.L.). 22. Kemanord AB v. P.P.G. Industries Inc. (1980), 49 C.P.R. (2d) 29, [1981] 1 F.C. 567, 1980 CarswellNat 114 (Fed. T.D.) at paras. 24-28; Cooper & Beatty v. Alpha Graphics Ltd. (1980), 49 C.P.R. (2d) 145, 4 A.C.W.S. (2d) 360, [1980] F.C.J. No. 616 (Fed. T.D.) at para. 70. 258 The Advocates’Quarterly [Vol. 46

(2) In order to ensure that a document is admitted according to the law of the province in which that document was created. (3) The court might apply the evidence law of any province, in order to maintain consistent application of federal law.23 (4) The court might apply the evidence law of any province, in order to prevent unfairness or prejudice caused by the plaintiff’s choice of provincial law under CEA, s. 40. (5) The court might apply the evidence law of any province, if it facilitates the orderly presentation of evidence or trial fairness in complex proceedings. The discretionary power created by s. 53(2) is available only to the Federal Court and Federal Court of Appeal. Thus, the has recognized it cannot rely on FCA s. 53(2) and is bound by the law chosen under CEA s. 40.24 This raises the question of whether a prothonotary can apply s. 53(2), since, in contrast to the Federal Courts Rules, the FCA does not include prothonotaries within the definition of the “Federal Court”. No decided case has explicitly considered this issue, and there does not seem to be any reported case in which a prothonotary has applied FCA s. 53(2). However, applying general principles, existing case law suggests that a prothonotary would not be able to invoke FCA, s. 53(2), since prothonotaries are not the “Federal Court” for the purposes of the Federal Courts Act. For example, in the celebrated Aqua-Gem case, the dissenting reasons of Isaac C.J. expressly recognized that: “in New South Wales, unlike in England . . . a master was the Court, rather than merely an officer of the Court ... this is not as clearly the case with this Court.”25 The majority did not disagree with this statement. Similarly, the Federal Court has recently held that a decision rendered by a prothonotary is not a decision by “the Federal Court” for the purposes of appeal routes created by the Federal 23. Cornforth v. R. (1981), [1982] C.T.C. 45, 82 D.T.C. 6058, [1981] F.C.J. No. 1128 (Fed. T.D.) at paras. 53-56. 24. Victoriaville (Commission scolaire) v. R. (2002), [2003] G.S.T.C. 122, [2002] G.S.T.C. 49, 2002 G.T.C. 196 (Fr.) (T.C.C. [General Procedure]) at para. 46. Interesting, a member of the Trademarks Opposition Board purported to apply s. 53(2) in Panzani Milliat fre`res S.A. v. Vago’s Importers & Distrib- utors Ltd. (1988), 19 C.P.R. (3d) 463, 18 C.I.P.R. 161, 1988 CarswellNat 548 (T.M. Opp. Bd.) at para. 5. 25. Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425, (sub nom. Aqua- Gem Investments Ltd. v. Minister of National Revenue) [1993] 1 C.T.C. 186, [1993] F.C.J. No. 103 (Fed. C.A.) at para. 70 and footnote 13, Isaac C.J. dissenting (C.A.). 2016] Practice and Procedure 259

Courts Act.26 If a prothonotary is an officer of the court, rather than the court itself, and if a prothonotary’s decisions are not decisions by the Federal Court, then these authorities suggest that a prothonotary does not fall within the phrase “the Federal Court” for the purposes of the FCA, and thus a prothonotary cannot invoke s. 53(2). On the other hand, denying prothonotaries recourse to FCA, s. 53(2) could undermine their ability to fairly and efficiently exercise their jurisdiction over many types of interlocutory proceedings. It also results in anomalous results where prothonotaries hear cases on the merits under rule 50(2)-50(5). Either way, the issue has yet to be squarely addressed and should be considered unsettled law.

CONCLUSION Returning to the example which began this article, two possibilities can be discarded immediately. New Brunswick and British Columbia are red herrings, since neither the location where the cause of action arose, nor the place where an interlocutory proceeding is filed, affects the law chosen by the CEA. The fact that the hearing is held in Ottawa is also irrelevant. That leaves Ontario and Quebec as possible sources of evidence law, since the claim was filed in the former, and the counterclaim in the latter. If the motion dealt with only the claim or the counterclaim, the law of either Ontario or Quebec would likely apply, since the relevant proceeding was taken in that province. If the motion was relevant to both, or if other difficulties arose, a presiding judge would probably be tempted to rely on FCA, s. 53(2); whether a protho- notary in the same situation could take the same course appears to be an open question.

Michael Shortt*

26. Vaughan v. Canada (2000), 184 F.T.R. 197, 2000 CarswellNat 5273, 96 A.C.W.S. (3d) 4 (Fed. T.D.) at para. 21. * Michael Shortt is an associate at Fasken Martineau DuMoulin’s Montreal office. His practice focuses on litigation. The author would like to thank (in chronological order) Kang Lee, Joanie Lapalme, Marc James Tacheji, Marie Lafleur, Michael Le Huynh, Tara Mrejen and Sarah P. Lavoie for their insightful comments and suggestions.