COURT FILE NO.: CV-05-287428-00CP

DATE: 20210615

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 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

BEFORE: Paul B. Schabas J.

COUNSEL: Malcolm Ruby, Duncan Boswell, Rachel McMillan, Andrew Locatelli and Cameron Pallett for the Plaintiff

William Knights, Cynthia Koller, Victor Paolone and Adam Gilani for the Defendant

HEARD: June 14, 2021

Ruling on DEfendant’s Read-ins

[1] This ruling addresses issues relating to evidence that may be read into the record pursuant to Rule 31.11 of the Rules of Civil Procedure at a trial of common issues in a class action.

[2] The case arises from the impact of the discovery, in 2003, of a Canadian-born cow suffering from Bovine Spongiform Encephalopathy (“BSE”), known as “mad cow disease.” Farmers producing cattle at that time are suing the federal government which, it is alleged, was negligent in failing to prevent BSE from entering Canada and infecting Canadian cattle, causing losses in the billions of dollars.

[3] The common issues are as follows:

(1) Does section 9 of the Crown Liability and Proceedings Act bar the Class members’ claims against the federal Crown?

(2) Were the defendants negligent and if so, when and how?

(3) Can the amount of compensatory damages, if any, be reasonably determined on an individual basis? If so, how should individual damages be determined?

(4) If the answer to question 4 [sic] is no, can the amount of compensatory damages, if any, be determined on an aggregate basis? If so, what is the amount of damages and how should they be distributed?

[4] The action has a long history, having been commenced in 2005. At that time the representative plaintiff was Bill Sauer.

[5] The late Justice Lax certified the action as a class proceeding in 2008, and there has been a long history of motions, discovery and case management directions and agreements overseen by Justices Lax, Conway, Perell and Glustein, leading to the trial which commenced before me on February 16, 2021. Some of this history is set out in my Reasons on Motion for Adjournment dated December 24, 2020: Flying E. Ranche Ltd. v. Attorney General of Canada, 2020 ONSC 8072.

[6] Mr. Sauer died in March 2017. A new representative plaintiff has taken over, Flying E Ranche Inc. The principal of Flying E Ranche is Lawrence Sears.

[7] The trial, which commenced in mid-February, is nearing its conclusion. One more witness is to be called by the defendant, Robert Low, an expert on damages.

[8] Prior to calling Mr. Low the defendant proposed to read into the record three categories of evidence, pursuant to Rule 31.11 of the Rules of Civil Procedure:

(a) evidence given on the examination for discovery of Lawrence Sears;

(b) evidence given on the examination for discovery of Bill Sauer; and

(c) evidence obtained from class members who were produced by the plaintiff for examination for discovery on issues relating to different sectors of the cattle industry.

[9] Counsel for the plaintiff objected to all of the proposed “read-ins.” I consider each issue below.

Discovery evidence of Lawrence Sears

[10] The defendant sought to read in four passages from the discovery of the current representative plaintiff, Mr. Sears. During the course of argument, the defendant withdrew three of those passages. However, the defendant continued to seek to read in one passage from Mr. Sears’ evidence which, it was said, filled a gap in the evidence and was not being adduced for the purpose of contradicting or impeaching Mr Sears’ evidence given at this trial many weeks ago.

[11] I ruled against the defendant in a brief oral decision at the conclusion of submissions on this issue. However, I discuss it below as it provides some context to my rulings on the second and third issues.

[12] In a trial it is uncommon for the defendant to read in discovery evidence of a plaintiff, usually because the plaintiff has testified and the defendant has already had the opportunity to cross-examine the plaintiff at the trial. The cross-examination provides the defendant with the opportunity to obtain admissions that may have been given on discovery, and to confront and contradict the plaintiff if he or she attempts to resile from an admission or gives contradictory evidence at trial.

[13] Rules 31.11(1) and (2) set out the permitted use of evidence provided on discovery, including for impeachment, as follows:

31.11 (1) At the trial of an action, a party may read into evidence as part of the party's own case against an adverse party any part of the evidence given on the examination for discovery of,

(a) the adverse party; or

(b) a person examined for discovery on behalf or in place of, or in addition to the adverse party, unless the trial judge orders otherwise,

if the evidence is otherwise admissible, whether the party or other person has already given evidence or not.

(2) The evidence given on an examination for discovery may be used for the purpose of impeaching the testimony of the deponent as a witness in the same manner as any previous inconsistent statement by that witness.

[14] Although the rule permits read-ins “whether the party or other person has already given evidence,” the evidence to be read in must be “otherwise admissible.” And this is where the problem lies for the defendant.

[15] The long-established “Rule in Browne v. Dunn”[^1] requires that if prior evidence of a witness is to be introduced, the witness must be given an opportunity to address it. As McEwen J. stated in Austin v. Bubela, 2011 ONSC 3287:

In my opinion, the defendant cannot introduce the plaintiff's transcript evidence since it violates the rule in Browne v. Dunn. This rule requires the defendant to give the plaintiff an opportunity to comment upon the evidence being introduced.

While the Rules of Civil Procedure allow a party to read in evidence as part of his or her own case against an adverse party, I cannot conclude that this procedural step overrides the substantive legal rule in Browne v. Dunn.

In my view, while the defendant, at the end of his case can introduce excerpts from the plaintiff's examination for discovery transcript, as evidence, he can only do so if he has first complied with the rule in Browne v. Dunn and has previously put the transcript excerpts to the plaintiff. This was not done in this case.

[16] The reasoning above also accords with the requirements of sections 20 and 21 of the Evidence Act, RSO 1990, c. E.23, which set out specific requirements for the contradiction of a witness using a prior statement. See also: International Corona Resources Ltd. v. LAC Minerals Ltd., [1986] O. J. No. 68 (Ont. Gen. Div.); Morrison v. Greig, 2006 ONSC 37597).

[17] The defendant, however, relies on the ruling of Mew J. in Chandra v. CBC, 2015 ONSC 8140. There, in the course of a lengthy trial, after referring to the Austin v. Bubela decision, Mew J. permitted certain passages to be read in which, he concluded, were not for impeachment purposes but for “filling gaps with detail that it was felt unnecessary to explore at trial because of the evidence that had already been given at discovery; and to the extent that the read-ins consist of admissions, to record those admissions.” Mew J. stated that the fundamental question is fairness to the plaintiff in having an opportunity to respond, and fairness to the defendant which appeared to rely upon the “presumptive ability” to read in evidence under Rule 31.11 in structuring its defence. However, Mew J. said as well that he would be prepared to consider a request by the plaintiff to give evidence in reply to address whatever was read in.

[18] The passage of Mr. Sears’ discovery evidence the defendant seeks to read in is quite brief, about a page and half in length. It deals with when Mr. Sears viewed a British video of a Holstein cow experiencing symptoms of BSE. He said he could not recall whether it was before or after 1993, a year of some significance in this action. He is then asked whether the video was raised by him at meetings of the Canadian Cattlemen’s Association (“CCA”), the Alberta Cattle Association (“ACA”), or any other organization, to which Mr Sears responded, in summary, that there was “minimal discussion on it” as there were other diseases of cattle that were of higher priority at the time, such as tuberculosis and brucellosis.

[19] In this trial, during cross-examination arising from a paragraph of his affidavit (which formed part of his evidence-in-chief) which addressed discussions in 1993 at the CCA and the ACA, Mr. Sears confirmed that he had seen videos of cows showing symptoms of BSE, though he stated he was unsure if that was in the late 1980s or early 1990s. He was also asked if he recalled any discussion of BSE at the Alberta Cattle Commission about BSE, to which he said “nothing serious that would raise a red flag, no.”

[20] I ruled orally that the proposed read-in does not fill a gap, to use the terminology of Justice Mew in Chandra, as the issue was raised in cross-examination and the proposed read-in arguably expanded on the evidence already given, raising fairness concerns. Accordingly, it was ruled inadmissible.

[21] I take this opportunity to observe that, if there is a role for Rule 31.11 to read in discovery evidence to “fill a gap,” those circumstances will be rare. Further, even in Chandra, Mew J. noted that fairness might have required him to permit reply evidence, leading to longer and perhaps less fair trials, which should be avoided if possible.

Discovery evidence of Bill Sauer

[22] The plaintiff objects to the defendant reading in evidence of Mr. Sauer on the basis that he is no longer the representative plaintiff and, since a new representative plaintiff has been appointed and examined for discovery at length, Mr. Sauer’s answers no longer bind the class. It appears that this issue has not arisen in any other class action, perhaps because trials of class action matters are relatively rare.

[23] The plaintiff also submits, in the alternative, that the evidence of Mr Sauer, who is deceased, should only be relied on if it is necessary, alluding to the principled exception to the hearsay rule requiring that evidence be necessary and reliable, and if it meets the requirements of Rules 31.11(6) and (7), which state:

(6) Where a person examined for discovery

(a) has died;

... any party may, with leave of the trial judge, read into evidence all or part of the evidence given on the examination for discovery as the evidence of the person examined, to the extent that it would be admissible if the person were testifying in court.

(7) In deciding whether to grant leave under subrule (6), the trial judge shall consider,

(a) the extent to which the person was cross-examined on the examination for discovery;

(b) the importance of the evidence in the proceeding;

(c) the general principle that evidence should be presented orally in court; and

(d) any other relevant factor.

[24] The hearsay exception is often considered where a party seeks to lead evidence of a witness who has died; indeed it has been addressed in this case in my ruling on the admissibility of evidence from Mel McCrea, a cattle farmer who gave evidence on the certification motion in 2006, but died in 2010: Flying E. Ranche Ltd. v. Attorney General of Canada, 2021 ONSC 1554. The plaintiff submits that the evidence of Mr. Sauer is not necessary because the defendants have the evidence of the new representative plaintiff, Mr. Sears, who was examined over several days, and that it is not fair to now selectively rely on portions of Mr. Sauer’s discovery transcript when he is no longer alive to speak to it.

[25] The defendant argues that it is entitled to read in Mr. Sauer’s evidence under Rule 31.11(1), and that it is not necessary to consider sub-rules (6) and (7), although it submits in the alternative that it should also be permitted to read in the evidence based on a proper interpretation of sub-rules (6) and (7). The defendant states that there was no agreement that Mr. Sears’ evidence would replace that of Mr. Sauer, nor has the plaintiff sought to withdraw any of Mr. Sauer’s admissions.

[26] Following the conclusion of argument on this issue, counsel for the defendant provided me with an excerpt from the transcript of Mr. Sears’ discovery where this issue was briefly addressed, as follows:

MR. KNIGHTS: I guess we have never discussed the issue of the use of Sauer's transcripts. I'm assuming, in the normal course, they would just continue to be in place.

MR. PALLETT: I would assume that we would operate according to the appropriate statutes and regulations and the rules.

MR. KNIGHTS: Thank you.

[27] Counsel for the plaintiff states that this adds nothing to the analysis, and that the defendant still requires leave to introduce Mr. Sauer’s discovery extracts.

[28] It is an overstatement to say that this exchange adds nothing, as it confirms that no agreement was reached on the use of Mr. Sauer’s evidence, or whether Mr. Sears’ evidence would replace it. The matter was simply left to be addressed in accordance with the Rules.

[29] In my view, the fact that Mr. Sauer is no longer the representative plaintiff does not resolve the issue. While it is true that he has been replaced by Mr. Sears who was discovered at length, in the absence of an agreement that Mr. Sears’ evidence was to replace that of Mr. Sauer, it seems unfair and somewhat arbitrary to say Mr. Sauer’s evidence no longer binds the class. On the other hand, I do not agree that the defendant has a right to read it in under subrule (1) of Rule 31.11, which states only that a party “may” read in discovery evidence of an adverse party, and which must be read in conjunction with subrule (6) which deals explicitly with the situation when a deponent has died, and requires leave of the trial judge.

[30] Consequently, I conclude that this issue must be resolved by applying Rules 31.11(6) and (7).

[31] The factors in subrule (7) are somewhat analogous to the considerations to be applied in a hearsay analysis. The extent of cross-examination goes to the reliability of the evidence. The “importance” of the evidence is not, however, the same as “necessity” under the hearsay analysis. Importance suggests there is more discretion to assess the value of the read-in and whether the evidence will assist the trier of fact in deciding the case. Further, the court is reminded by subrule (7)(c) that oral testimony, in court, is the preferred method of receiving evidence at a trial, though this does not mean that oral testimony should always be preferred over evidence read in from a transcript. On the other hand, the reference to “any other relevant factor” in subrule (7)(d) highlights that other factors may also be considered, and that the trial judge has considerable discretion to do what seems to be fair and just in the circumstances: Aujla v. Hayes, 1997 ONCA 4459, at paras. 19 - 22.

[32] The proposed passages from Mr. Sauer’s discovery are very brief and few in number. The excerpts relate that Mr. Sauer’s farm appears to have had very few beef cattle, and that during the relevant time between 2003 and 2007 he shifted into growing soybeans. He stopped his very limited beef cattle operation in 2009 as there wasn’t any money in it. He refers to challenges other than BSE faced in his operations, including weather, pests and the impact of the fluctuating Canadian dollar, and offers a comment on the impact on sales of Canadian beef due to US country of origin labelling rules. The excerpts briefly address his use of animal feed and that his knowledge of it, and of BSE, came from feed companies, farming magazines and the mainstream media, not the Government of Canada. Mr. Sauer also confirmed that he did not suffer psychological or emotional harm that would support the claim, made in the action, for damages for such harm.

[33] I do not have material before me to address the extent to which Mr. Sauer was cross-examined, as the proposed read-ins are very brief.

[34] As to the “importance” of the evidence, I acknowledge that parties to an action often differ on the importance of each other‘s evidence, and it may not be until the conclusion of a trial that the importance of certain evidence becomes apparent.

[35] I have heard very little evidence about factors other than BSE affecting farm operations between 2003 and 2007, which is the period for which damages are sought. The class in this case consists of thousands of farmers across Canada, working in huge variety of farm operations in different provinces, with different climates and different challenges. Mr. Sauer’s evidence, at least in the extracts put before me, is very brief and vague; a reference to a worm and caterpillar issue in Mr. Sauer’s wheat crop in one of those years, without more, is of little help to me.

[36] Similarly, a mention of the exchange rate, on which I have expert evidence, and of US labelling laws, about which I have heard nothing from any other witness, has no value to me in deciding the case. The fact that Mr. Sauer did not suffer psychological or emotional harm sufficient to seek help is relevant to an issue pleaded in the claim, but is also of very limited value in addressing whether the class should be entitled to damages. Similarly, a few lines on how Mr. Sauer obtained information about animal feed and BSE is of limited importance, when he was just one of over 100,000 members of the plaintiff class.

[37] Rule 31.11(7) also places importance on the preference for live oral testimony at a trial. I have already heard evidence from Mr. Sears, and admitted a complete transcript and affidavit of Mr. Mel McCrea, both farmers who have discussed some of these issues. It was open to the defendant to call live evidence at trial about any of these issues. This could, for example, have included evidence about weather, pests, and other factors affecting farm operations in various parts of the country and what, if any, information, the Government of Canada sent directly, or indirectly, to farmers about feed and BSE during the relevant years.

[38] The extracts are very brief and anecdotal, of limited value, and therefore of limited importance. Without more, the proposed read-ins can be given very little weight. There is no cross-examination in the proposed extracts. Admitting them may simply invite the introduction of more extracts from the plaintiff in an attempt to put the evidence in a different light. Considering the factors in subrule (7) of Rule 33.11, I decline leave to submit the proposed read-ins of Mr. Sauer.

Evidence from other class members.

[39] The defendant also seeks to read in evidence from examinations for discovery of three class members. The purpose of those examinations was to provide the defendant with information from a range of cattle producers in order to understand the differing financial impact BSE may have had on different operations.

[40] The plaintiff objects on the ground that the deponents were “volunteers” who did not testify pursuant to any court order, and whose answers cannot bind the class, or sectors of cattle farmers. The plaintiff also argues that these deponents would not have given evidence at all had counsel not been misled into thinking that the examinations of them was necessary for the defendant to understand the circumstances of the various subclasses, and that in these circumstances it would be unfair to permit the defendant to rely on the evidence obtained.

[41] According to an affidavit sworn in June 2020 by Mr. Pallett, counsel for the plaintiff, in 2013 he agreed to produce the deponents after being told by the former counsel for the defendant they were necessary for the defendant to understand damages issues for the range of class members in different regions. However, in October 2017 the defendant produced a report prepared by Agriculture and Agri-Food Canada in 2008 that contained “case studies” on the impact of BSE on a range of producers. The report was among approximately 6,700 documents produced by the defendant in October 2017.

[42] The production of these deponents was raised at case conferences with the various case management judges between 2013 and 2020 and their examinations were contained in litigation plans reviewed by the judges. The deponents had produced records in 2013, but were not examined until 2017 and 2018. In 2020, when the defendant sought to compel answers to undertakings from these deponents, Mr. Pallett objected and stated that he would never have produced them at all if he had been aware of the information already in the hands of the defendant on the different types of operations in different parts of the country.

[43] The dispute over undertakings was resolved, I am advised, along with a number of other issues in the summer of 2020, but the issue of whether, and how, the evidence might be used at trial was not addressed.

[44] Regardless of whether they were initially volunteered, the defendant examined a number of class members in addition to the representative plaintiff. This is contemplated in s. 15 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (“CPA”) which provides:

15 (1) Parties to a class proceeding have the same rights of discovery under the rules of court against one another as they would have in any other proceeding. 1992, c. 6, s. 15 (1).

Discovery of class members with leave

(2) After discovery of the representative party, a party may move for discovery under the rules of court against other class members.

[45] Further, Rule 12.03(1) contemplates that such evidence may be read in under Rule 31.11(1):

12.03 (1) For the purpose of subrule 31.11 (1) (reading in examination), a class member who is examined for discovery under subsection 15 (2) of the Act is examined in addition to the party.

[46] Although the deponents were not examined following a motion under s. 15(2) of the CPA, that was because no motion was necessary due to the agreement of the parties. While I appreciate that Mr. Pallett asserted in 2020 that he would not have made the agreement had he known of the 2008 report, much time has passed since that agreement was made with previous counsel in 2013 and since the 2008 report was disclosed in 2017. Revisiting that issue would be a time-consuming and unnecessary diversion, perhaps requiring additional evidence. The time for addressing that dispute between counsel was in 2020, if at all. Further, having reviewed the 2008 report, which was entered as an exhibit by the plaintiff, it is not clear that such evidence would be a comparable substitute for what could be obtained on discovery.

[47] The excerpts proposed to be read in from the class members who were produced for examination for discovery are limited in scope and length. The evidence provides some, albeit limited, insight into the financial issues faced by cattle producers in different sectors, in much the same way Mr. Sears’ evidence addressed circumstances and financial challenges he faced. Having reviewed the extracts, they provide some limited, real world evidence, and in that regard may be helpful to the court and shall be admitted.

Paul B. Schabas J.

Date: June 15, 2021

[^1]: (1893), 1893 FOREP 65, 6 R. 67 (H.L.) at pp. 70-71.