PRACTICE |
Evidence |
Animal Alliance of Canada v. Canada (Attorney General)
A-310-99
Sharlow J.A.
7/9/00
16 pp.
Motion for leave to adduce as evidence affidavit of Bill Erasmus, National Chief of appellant Dene Nation--Appeal from decision of Gibson J. ([1999] 4 F.C. 72) dismissing appellants' challenge to validity of Regulations Amending the Migratory Birds Regulations--Respondents opposed motion--However, if motion successful, sought order striking parts of affidavit of Mr. Erasmus, order permitting them to cross-examine Mr. Erasmus, to file reply affidavit--Appellants relying on r. 351 to support motion to adduce evidence--Starting point for application of r. 351 decision of MacGuigan J.A. in Frank Brunckhorst Co. v. Gainers Inc., [1993] F.C.J. No. 874 (C.A.) (QL)--Court should be satisfied evidence (1) must not have been discoverable before end of hearing appealed from by reasonable diligence, (2) must be credible and (3) must be practically conclusive on appeal--Last two conditions met but first condition not met--Affidavit of Mr. Erasmus not prepared in time for hearing because it took too long to achieve degree of consensus within Dene Nation organization--Not reasonable excuse for failing to adduce relevant evidence at hearing--No suggestion Mr. Erasmus only possible source of evidence now sought to be adduced--In so far as Dene Nation as corporate entity concerned, open to Court in future to hold issue of sufficiency of advance consultation res judicata--Interests of justice not requiring order permitting affidavit of Mr. Erasmus to be adduced in appeal--Appellants' motion dismissed--Respondents' motion also dismissed--Regulations Amending the Migratory Birds Regulations, SOR/99-147--Federal Court Rules, 1998, SOR/98-106, r. 351.