Date: 20010713
Docket: T-1294-99
Neutral citation: 2001 FCT 794
BETWEEN:
ROBERT MONDAVI WINERY
Applicant
- and -
SPAGNOL'S WINE & BEER MAKING SUPPLIES LTD.
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant hereby moves for an order granting leave pursuant to Rule 84 of the Federal Court Rules, 1998 to serve and file the additional affidavits of Michael Beyer and Ellice Sanguinetti and setting a schedule for the completion of outstanding matters.
[2] The Applicant seeks leave to file the two affidavits following the completion of cross-examination on affidavits and after an attempt to introduce similar evidence on re-examination proved unsuccessful. The proposed affidavits are found at Schedule A and B of the Applicant's motion record.
[3] Mr. Beyer was the only deponent to speak to the issue of pre-1991 usage of the Woodbridge mark in the affidavit material filed in support of the Applicant's application back in December 1999. The Respondent filed two affidavits in response which challenged Mr. Beyers' admittedly weak evidence that the Applicant had sold wine with the Woodbridge name prior to 1992.
[4] Shortly after receipt of the Respondent's affidavits, counsel for the Applicant requested that a further search be conducted by the Applicant for evidence to buttress its case. Within a few days, Mr. Beyer reported to his counsel that copies of labels which had been used on the Applicants's bottles and sold in Canada prior to 1991 had been located.
[5] Rather than seek leave at the time to adduce the newly-discovered evidence, the Applicant elected to retain it until cross-examination on affidavits. The rationale of Applicant's counsel was that if Mr. Beyer's evidence were challenged on cross-examination, corroboration could be provided with the new documents. If however Mr. Beyer's evidence remained unchallenged, the affidavit material would be sufficient on its face to prove prior use. Counsel for the Applicant now acknowledges that the strategy was ill-conceived.
[6] The Respondent opposes the present motion on the grounds that it represents an abuse of the Court's process or, alternatively, that the Applicant has failed to meet the test for filing evidence after having conducted cross-examinations pursuant to Rule 84(2) of the Federal Court Rules, 1998.
[7] Dealing first with abuse of process argument, the Respondent has failed to establish that the Applicant is seeking to re-litigate a matter which has already been decided or that this proceeding has become "unnecessarily clogged with repetitious litigation". Granted, the evidence contained in the two proposed affidavits is essentially the same as that expunged from the re-examination of Mr. Beyer. However, the evidence was expunged because it was not the proper subject of re-examination. No determination was made as to whether the evidence could be admitted by other means. The Applicant acted promptly after the evidence was expunged with leave of the Court.
[8] Turning then to Rule 84(2), the parties are agreed that there are three factors which the Court must consider when deciding whether to grant leave to a party to file additional evidence after having conducted cross-examination:
(1) Are the facts established by the supplementary affidavit relevant to the case and helpful to the Court ?
(2) Was the material in the proposed affidavit available prior to the cross-examination ?
(3) Will the filing of the affidavit cause serious prejudice to the other party ?
[9] With respect to the first factor, the Respondent does not dispute that the proposed evidence is relevant to the central issue in the application and that it would assist the trial judge in disposing of this application.
[10] As for the second factor, procedural fairness is the primary concern, as explained by Justice Lemieux in Salton Appliances (1985) Corp. v. Salton Inc.:
As I view the law on the point in this court, there is the additional requirement as to the non-availability of the material in the proposed affidavit prior to cross-examination; a supplementary affidavit cannot be a substitute for putting available information to a deponent on cross-examination. A further affidavit is not designed to repair answers which cross-examining counsel wishes he did not get. Moreover, normally parties are obliged to disclose all available information before cross-examination so as to avoid splitting the evidence.
[11] The Applicant acknowledges that the supplementary affidavits contain evidence which was available prior to cross-examination. Clearly the decision by counsel to withhold the information, on the expectation that it could possibly come out on cross-examination, was wrong. This is a significant factor which militates against granting the relief sought by the Applicant.
[12] Dealing next with the third factor, the parties have yet to file their respective records in this proceeding. Any procedural unfairness that the Respondent may have suffered can be addressed by allowing the Respondent to conduct further cross-examination and to adduce further evidence, coupled by an appropriate allowance for costs thrown away.
[13] To begin with there was no attempt by the Applicant to conceal information from the start for strategic purposes. The Applicant located the relevant labels only after its affidavit material in support of the application was filed and following receipt of the Respondent's affidavit material which undermined the Applicant's evidence. Although one could question the diligence of the initial search, there is no suggestion that the Applicant had acted recklessly or in bad faith.
[14] Moreover, the Respondent elected to file affidavit material in the main application challenging Mr. Beyer's claim of use of the trademark prior to 1992. The Applicant was therefore entitled to cross-examination as of right. One of the Respondent's affiants was cross-examined by reference to the labels which have since been expunged from the record. The evidence in Mr. Beyer's supplementary affidavit, which is limited to matters already at issue between the parties, will remove some confusion from the court record and will assist the trial judge in making crucial findings of fact in this application.
[15] Having weighed all three factors in the exercise of my discretion under Rule 84(2), I conclude that it would serve the interests of justice to allow the Applicant to file the supplementary affidavit of Michael Beyer, subject to appropriate safeguards being put into place to ensure the Respondent is able to fully respond to the application.
[16] Finally, the Applicant has failed to establish that the evidence of Ellice Sanguinetti should be admitted at this late stage. Although the evidence is relevant, it is mostly corroborative of the evidence of Mr. Beyer. Rule 84(2) should not be viewed as a tool to buttress one's case.
ORDER
[17] The Applicant is granted leave to serve and file the additional affidavit of Mr. Michael Beyer, attached as Schedule A to the Notice of Motion.
[18] The Respondent is granted leave:
(a) to file further affidavit evidence in response to the additional affidavit of Mr. Michael Beyer referred to in paragraph 1 above; and
(b) to cross-examine Mr. Beyer in respect of such affidavit.
[19] Costs incurred in respect of:
(a) the preparation for, conduct of, any travel expenses and other reasonable and related expenses and disbursements incurred in respect of the cross-examination of Mr. Beyer;
(b) the preparation and filing of additional affidavit evidence including, if deemed appropriate by the Respondent, additional expert evidence and all other reasonable and related expenses and disbursements; and related expenses and disbursements; and
(c) the preparation of the Respondent's affiants for and attendance at cross examination, if any, and any other reasonable and related expenses and disbursements;
shall be payable to the Respondent on a solicitor and client basis in any event of the cause.
[20] Costs of this motion are fixed at $3,000.00, inclusive of disbursements, payable to the Respondent in any event of the cause.
[21] This order shall be effective as of the date it is signed.
[22] The parties shall file with the Registry of the Court, either jointly or separately and no later than July 30, 2001, a draft order outlining the steps remaining to be taken in the proceeding, together with a timetable for completion of the necessary steps up to and including the filing of a requisition for hearing in accordance with Rule 314.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
July 13, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1294-99
STYLE OF CAUSE: ROBERT MONDAVI WINERY
Applicant
- and -
SPAGNOL'S WINE & BEER MAKING SUPPLIES LTD.
Respondent
DATE OF HEARING: THURSDAY, APRIL 26, 2001
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF TELECONFERENCE: TUESDAY, JULY 10, 2001
REASONS FOR ORDER
AND ORDER BY: LAFRENIÈRE P.
DATED: FRIDAY, JULY 13, 2001
APPEARANCES:
Hearing: April 26, 2001: Mr. Robert MacFarlane
For the Applicant
Mr. Andrew Brodkin, and
Ms. Julie Rosenthal
For the Respondent
Teleconference: July 10, 2001: Mr. Robert MacFarlane
For the Applicant
Mr. Andrew Brodkin, and
For the Respondent
SOLICITORS OF RECORD: Bereskin & Parr
Barristers & Solicitors
Scotia Plaza, 40th Floor
40 King Street West
Toronto, Ontario
M5H 3Y2
For the Applicant
Goodmans LLP
Barristers & Solicitors
250 Yonge Street, Suite 2400
Toronto, Ontario
M5B 2M6
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010713
Docket: T-1294-99
BETWEEN:
ROBERT MONDAVI WINERY
Applicant
- and -
SPAGNOL'S WINE & BEER MAKING SUPPLIES LTD.
Respondent
REASONS FOR ORDER AND ORDER