COURT FILE NO.: 05-CV-287428 CP
DATE: 2020/12/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FLYING E RANCHE LTD.
Plaintiff
- and -
THE ATTORNEY GENERAL OF CANADA on behalf of
HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by
THE MINISTER OF AGRICULTURE
Defendant
Malcolm N. Ruby, Duncan C. Boswell, Adam Bazak and Andrew Locatelli for the Plaintiff
Victor Paolone for the Defendant
HEARD: December 23, 2020
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] Pursuant to s. 5(1) of the Interprovincial Summonses Act,[^1] the Plaintiff Flying E Ranche Ltd. ("Flying E") requests the court to sign a certificate for a summons requiring the attendance of the Honourable Ralph Goodale as witnesses at a trial scheduled to start in February 2021.
[2] For the reasons that follow, I dismiss the motion.
B. Compelling a Witness to Attend at Trial and the Interprovincial Summonses Act
[3] Mr. Goodale is not a resident of Ontario, and to obtain the attendance of a witness outside Ontario for a trial in Ontario, the applicable statutory provision is s. 5(1) of the Interprovincial Summonses Act and the applicable rules are rules 34.04(7), 53.04(1), and 53.05 of the *Rules of Civil Procedure*,[^2] which state:
Interprovincial Summonses Act
- (1) Where a party to a proceeding in Ontario causes a summons to be issued for service in another province, the party may attend upon a judge of the Superior Court of Justice, who shall hear and examine the party or the party's counsel if any, and, upon being satisfied that
(a) the attendance in Ontario of the person required in Ontario as a witness is necessary for the due adjudication of the proceeding in which the summons or other document has been issued; and
(b) in relation to the nature and importance of the proceeding, is reasonable and essential to the due administration of justice in Ontario,
shall sign a certificate which may be in the form set out in Schedule 2 and shall cause the certificate to be impressed with the seal of the court.
Person outside Ontario
34.04 (7) Rule 53.05 (summons to a witness outside Ontario) applies to the securing of the attendance for examination of a person outside Ontario and the attendance money paid or tendered to the person shall be calculated in accordance with the Interprovincial Summonses Act.
COMPELLING ATTENDANCE AT TRIAL
By Summons to Witness
53.04 (1) A party who requires the attendance of a person in Ontario as a witness at a trial may serve the person with a summons to witness (Form 53A) requiring him or her to attend the trial at the time and place stated in the summons, and the summons may also require the person to produce at the trial the documents or other things in his or her possession, control or power relating to the matters in question in the action that are specified in the summons.
INTERPROVINCIAL SUBPOENA
53.05 - A summons to a witness outside Ontario to compel his or her attendance under the Interprovincial Summonses Act shall be in Form 53C.
[4] A witness can only be required to testify at trial where the evidence sought to be elicited is relevant, and the court has an inherent jurisdiction to set aside a summons where a witness has no relevant evidence to offer.[^3] When a summons to a witness is challenged, the onus is on the person seeking to summons the witness to demonstrate on a reasonable evidentiary basis that the witness may have relevant evidence to offer and that he or she is in a position to provide the evidence.[^4]
[5] Before an order may be made under s. 5(1) of the Interprovincial Summonses Act, the court must be satisfied that the attendance of the witness in Ontario is: (a) necessary for the due adjudication of the proceeding in question; and (b) reasonable and essential to the due administration of justice in Ontario.[^5] Under s. 5(1) of the Interprovincial Summonses Act, that a witness may have relevant evidence does not, by itself and without more, make the evidence necessary nor essential to the administration of justice.[^6] The interests sought to be protected by the conditions in the Interprovincial Summonses Act include fairness to both parties as well as to protecting the witness from unreasonable attempts to be examined.[^7] Relevant to the determination of whether evidence is necessary and essential to the administration of justice is whether there are other sources for the evidence.[^8] The determination of whether to make an order is a highly fact-specific matter of judicial discretion.[^9]
C. Factual and Procedural Background
[6] The following description of the factual background is made solely for the purposes of this interlocutory motion.
[7] In 1986, Bovine Spongiform Encephalopathy ("BSE"), also known as "Mad Cow Disease" was diagnosed in cattle in the United Kingdom. BSE is a feed-borne disease. The agent that transmits BSE is found within the brain, spinal cord, spleen, and certain other parts of animals like cattle and sheep. BSE transmission occurs when infected parts of the animal are converted into RMBM ("Rendered Beef Meat and Bone Meal") and fed to calves as protein supplements.
[8] In July 1988, after the mode, or vector, of BSE transmission was recognized, the UK instituted a feed ban, prohibiting the feeding of RMBM protein to cattle or sheep.
[9] The number of diagnosed cases in the UK grew exponentially and there were over 13,000 confirmed cases by May 1990.
[10] In 1990, the Canadian Federal Government realized that the disease was a major problem that could adversely affect Canada's cattle industry if the disease gained entry into Canada.
[11] In 1990, in response to the BSE threat, Agriculture Canada of the Federal Government: (a) refused import permits for cattle and other ruminants from the UK; (b) ordered destruction of some UK imports at points of entry into Canada; and (c) implemented a monitoring program for about 168 UK cattle imported into Canada between 1982 and 1990.
[12] Notably, in 1990, the Federal Government did not institute a feed ban as had been introduced in the UK. And, although it implemented a monitoring program, Agriculture Canada did not identify, trace, and monitor all UK imports into Canada.
[13] Mr. Goodale was the federal Minister of Agriculture between 1993 and 1996.
[14] By 1993, due to the long incubation period of BSE, the UK had over 91,000 confirmed cases found in over 24,000 cattle. In 1993, one of the cattle imported into Canada from the UK was diagnosed with BSE.
[15] The BSE diagnosis of the imported cow prompted Agriculture Canada to order that all remaining imported cattle from the UK in Canada be destroyed. When the decision to destroy remaining UK imports was made, Agriculture Canada was aware that despite implementation of the monitoring program, at least 68 of the UK imports had already died and their remnants had entered the Canadian feed chain and that it was a statistical certainty that at least one of those cattle had BSE.
[16] Even though Agriculture Canada knew that an infected UK cow had entered the feed chain it did not implement a feed ban to prohibit ruminant meat and bone meal from being fed to Canadian calves and cattle until late 1997.
[17] On May 20, 2003, a Canadian-born cow was diagnosed with Mad Cow Disease. That day, the export markets for Canadian cattle were closed, and the value of Canadian cattle plummeted.
[18] Flying E is the Representative Plaintiff in this certified class action under the Class Proceedings Act, 1992. The Class Members are Canadian beef and dairy farmers. Flying E sues the Federal Government for alleged negligence in failing to prevent imported UK cattle. The alleged negligence is associated with the acts and omissions with what was then known as Agriculture Canada. The national class action has a class of about 115,000 Canadian dairy and beef cattle farmers who incurred economic losses following the BSE outbreak in Canada.
[19] Flying E alleges that the introduction of Mad Cow Disease into Canada, and the loss of Canada's lucrative cattle export market, was a direct result of the Federal Government's failure to properly assess risks and to act accordingly. Flying E alleges that Agriculture Canada was negligent in failing to design and operate an effective monitoring program. Flying E further alleges that the Federal Government was negligent in failing to implement a feed ban by at least 1994, after it became aware that UK cattle known to be at risk of the disease had been slaughtered and their remains had entered the Canadian animal food chain. Flying E alleges that late-arriving food ban was ineffective.
[20] Extensive examinations for discovery in Flying E's action have been completed, and the action is scheduled to be tried beginning in February 2021 for 77 days. Two now-retired civil servants, who were at Agriculture Canada at the relevant time were examined for discovery as representatives of the Federal Government. Those witnesses were Dr. Douglas Hedley and Dr. John Kellar.
[21] In addition to calling Drs. Hedley and Kellar as witnesses at trial, in addition to calling expert evidence about the acts and omissions of Agriculture Canada, the Federal Government plans to call as witnesses fourteen civil servants who were at Agriculture Canada during the relevant time; namely: (1) Dr. William Bulmer; (2) Graham Clarke; (3) Dr. Brian Evans; (4) Dr. Penny Greenwood; (5) Billy Hewett; (6) Dr. Cheryl James; (7) Dr. Claude Lavigne; (8) Dr. Bruce McNab; (9) Linda Morrison; (10) Dr. Ron Rogers; (11) Dr. Barry Stemshorn; (12) Judy Thompson; (13) Sergio Tolusso; (14) Dr. Ingrid Van der Linden.
[22] Notwithstanding sixteen witness about what was happening at Agricultural Canada, Flying E submits that the attendance of Mr. Goodale as the witness in Ontario is: (a) necessary for the due adjudication of the class action; and (b) reasonable and essential to the due administration of justice in Ontario.
[23] Flying E seeks to have Mr. Goodale be served a summons to appear as a witness at trial to testify about the Federal Government's alleged failure to implement a feed ban that would have prevented feeding RMBM to Canadian cattle between 1993 and 1996. Flying E wishes to examine Mr. Goodale to obtain evidence about: (a) the Federal Government's assessment of the risk of Mad Cow Disease in Canada; (b) the Federal Government's acts or omissions in response to the threat of BSE in Canada; and (c) the implementation of an RMBM feed ban introduced in 1997, shortly before Mr. Goodale left his position as Minister of Agriculture. Flying E submits that Mr. Goodale's testimony, based on his unique knowledge, experience, and authority, is required to determine whether the Federal Government breached the applicable standard of care.
D. Discussion and Analysis
[24] Mr. Goodale's evidence would be relevant, and he is in a position to provide the evidence. There is no suggestion that summonsing Mr. Goodale would be an abuse of process.
[25] However, Flying E does not satisfy the test under the Interprovincial Summonses Act for compelling Mr. Goodale, a witness from outside Ontario, to attend a trial in Ontario.
[26] While Mr. Goodale may have evidence that is relevant or that may assist Flying E in the presentation of its case, his evidence is neither necessary nor essential to the administration of justice. Necessity cannot be made out because Flying E has had copious documentary discovery and extensive oral discovery about the acts and omissions of Agriculture Canada.
[27] There will be sixteen Agriculture Canada witnesses at trial who will give evidence in chief and expose themselves to a cross-examination about what Agriculture Canada did and did not do. Mr. Goodale's evidence is not essential, and the court will have abundant evidence to determine whether Agriculture Canada's acts and omissions were negligent or even grossly negligent.
[28] It is manifestly apparent that Flying E through the discovery process and from facts that may rise to the quality of being capable of proof by judicial notice, given the public notoriety of them, that Flying E has abundant evidentiary material for those cross-examinations and to make its case, and there is abundant evidence for the court to administer justice. In my opinion, it cannot be said that Mr. Goodale's evidence is necessary or essential to the administration of justice. The test under s. 5(1) of the Interprovincial Summonses Act is not made out.
E. Conclusion
[29] For the above reasons, the motion is dismissed. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of the Federal Government within twenty days of the release of these Reasons for Decision followed by Flying E's submissions within a further twenty days.
Perell, J.
Released: December 24, 2020
[^1]: R.S.O. 1990, c. I.12. [^2]: R.R.O 1990, Reg. 194. [^3]: Dunphy v. Peel Living, a Division of Peel Housing Corp., [2009] O.J. No. 1792 (S.C.J.); Williams v. Mendez, [2003] O.J. No. 473 at para. 15-16 (S.C.J.); Colville-Reeves v. Canadian Home Publishers Inc., [2002] O.J. No. 598 at para. 19 (S.C.J.). [^4]: Seelster Farms Inc. v. Ontario 2017 ONSC 4756; Fontaine v. Canada (Attorney General), 2015 ONSC 1435; Siegel v. Mulvihill Capital, [2009] O.J. No. 265 (Ont. S.C.J.); Schreiber v. Mulroney (2007), 2007 CanLII 82797 (ON SC), 87 O.R. (3d) 643 (S.C.J.); Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources), 2002 CanLII 41606 (ON CA), [2002] O.J. No. 1445 (C.A.); Heslin v. Verbeeten, [2001] O.J. No. 1602 (S.C.J.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7258 (ON SC), 27 O.R. (3d) 291 (Gen. Div.); Canada Metal Co. v. Heap (1975), 1975 CanLII 675 (ON CA), 7 O.R. (2d) 185 (C.A.). [^5]: 1632842 Ontario Ltd. v. Great Canadian Gaming Corp., [2008] O.J. No. 3079 (S.C.J.). [^6]: CanWest MediaWorks Inc. v. Canada (Attorney General) 2007 ONCA 567. [^7]: 1632842 Ontario Ltd. v. Great Canadian Gaming Corp., [2008] O.J. No. 3079 at para. 28 (S.C.J.). [^8]: CanWest MediaWorks Inc. v. Canada (Attorney General) 2007 ONCA 567. [^9]: 1632842 Ontario Ltd. v. Great Canadian Gaming Corp., [2008] O.J. No. 3079 (S.C.J.).