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Practice and Procedure the Applicable Rules Of PRACTICE AND PROCEDURE THE APPLICABLE RULES OF EVIDENCE IN FEDERAL COURT: 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 law. The largest difference, of course, is between the civil law of QueÂbec and laws of the nine common-law provinces. Yet significant differences exist even between the common law provinces themselves. Admissions made during discovery can be contradicted at trial in Ontario, but not in Saskatchewan.1 Spoliation of evidence requires intentional conduct in British Columbia before remedies will be granted, but not in New Brunswick.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 Quebec 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 (ªOn the present state of the law, it is clear that spoliation requires intentional conductº); 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 Canada 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. Privacy Act, 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 Federal Court of Canada. 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 Ottawa. 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 property 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, ªThe Use of Wrongfully Obtained Evidence in Civil Proceedingsº (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. Divorce Act, 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 ªto all civil pro- ceedings and other matters whatever respecting which Parliament has jurisdictionº. 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 ªother mattersº 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 ªactsº rather than ªenactmentsº in s. 40, since the Supreme Court has ruled that where Parliament refers to ªactsº rather than ªenactmentsº, 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 ªactº, ªenactmentº. 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 ªProvincial lawº in this context includes both statute law (e.g.
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