Date: 20000605 Docket: T-393-98
BETWEEN:
A. LASSONDE INC.
Plaintiff
-and -
SUN PAC FOODS LIMITED
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.:
[1] This motion is brought to set aside the decision of Richard Morneau, Prothonotary, dated April 12, 2000, and to order that the defendant appear to answer to a charge of contempt of court on Monday, May 29, 2000, at 9:30 a.m., at the Federal Court of Canada, 30 McGill St., Montr6al, on the ground that it has violated the order of the Prothonotary dated February 22, 2000, as more specifically described in paragraph 10 of the amended notice of motion.
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THE FACTS
[2] On February 22, 2000, Prothonotary Morneau, sitting as case management judge, made an order enjoining counsel for the defendant to comply with the undertakings made by his client during examination of the client on May 6, 1999, by March 31, 2000.
[3] On March 31, 2000, the defendant did not provide any of the documents it had undertaken to provide during examination of the defendant on May 6, 2000.
[4] Between February 22, 2000 and March 31, 2000, several letters were exchanged by the parties with the aim of reaching an agreement as to the filing of a confidentiality agreement regarding the documents to be produced.
[5] According to a letter dated March 24, 2000, and another letter dated March 31, 2000, counsel for the plaintiff A. Lassonde Inc. informed counsel for the defendant of his intention of proceeding by way of contempt of court if the documents were not filed in accordance with the timetable established, that is, by March 31, 2000.
[6] Counsel for the defendant informed the Court and the plaintiff of his intention of making a motion to have the question of the confidentiality
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agreement disposed of, on April 17, 2000, April 17 being a date when counsel for the plaintiff had agreed to be present.
[7] Counsel for the defendant, by letter dated March 31, 2000, asked that a telephone conference call be held prior to the hearing on the confidentiality order, and proposing April 5, 6 and 7, 2000, as possible dates.
[8] In accordance with a direction given on April 7, 2000, Prothonotary Morneau denied the request for a conference call, since he was not available, and also added that any unresolved question would have to be submitted to the Court by way of motion. That direction was communicated to counsel for the parties orally on April 7, 2000, and by mail on April 10, 2000.
[9] On April 6, 2000, the plaintiff A. Lassonde Inc. brought an ex parte motion asking this Court to order that the defendant appear before the Court in Montreal on April 17, 2000, on a charge of contempt of court.
[10] On April 12, 2000, in the absence of the parties, Prothonotary Morneau made a decision dismissing the motion to have the defendant appear on a charge of contempt of court, on the basis of the record submitted, under Rule 369 of the Federal Court Rules (1998).
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[11] Ultimately, the defendant learned, at the end of the day on April 12, that the ex parte motion presented by the plaintiff had been dismissed by Prothonotary Morneau.
[12] Lastly, no motion in relation to a confidentiality agreement was presented on April 17, 2000, at Toronto.
ARGUMENT OF THE PLAINTIFF
[13] The plaintiff contends that the Prothonotary Morneau erred in fact and in law by not ordering the defendant to appear on a charge of contempt of court, particularly in that he ought not to have evaluated the reasons justifying the violation of the order and should simply have satisfied himself that there was prima facie evidence of the contempt alleged.
[14] The plaintiff suggests that Prothonotary Morneau had complete jurisdiction to determine whether there was prima facie evidence of the contempt alleged, by virtue of the jurisdiction given to him by Rule 50 of the Federal Court Rules, but that the responsibility for determining whether valid reasons could be cited to justify the violation of the order itself lies solely with the judge, under the provisions of Rule 59(1)(d) of the Federal Court Rules.
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[15] The plaintiff further argues that Prothonotary Morneau erred in fact and in law by assuming that the information to be produced in accordance with his order of February 22, 2000, was confidential, when there was no evidence at that time, nor is there today, from which such a conclusion could be reached.
ARGUMENTS OF THE DEFENDANT
[16] For its part, the defendant suggests that, as pointed out by Prothonotary Morneau, it seemed that a motion regarding a confidentiality order was about to be presented to the Court.
[17] Counsel for the defendant also suggests that he had already informed the Court and counsel for the plaintiff that he intended to request an extension of time in relation to the order of February 22, 2000, and that Rule 8 of the Federal Court Rules permits periods already allowed to be varied.
[18] Counsel for the defendant also contends that Prothonotary Morneau had sufficient discretion to dismiss the plaintiff's motion and that he himself could have varied the timetable established earlier.
ANALYSIS
[19] At the outset, it seems to be important for the Court to remind the parties the specific reference by Prothonotary Morneau, in his decision on February 22,
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2000, the obvious lack of mutual cooperation between the parties in terms of the harmonious progress of the case seemed to be a problem at that time. Clearly, counsel were doing little to follow the advice given them by Prothonotary Morneau on that date, and instead of improving, relations between the parties have deteriorated further between February 22, 2000 and today.
[20] Quite apart from a simple decision on contempt of court, it seems clear that the parties appear to have adopted a confrontational attitude, the only consequence of which is to increase costs and prevent the case from moving in a direction that might be beneficial to both parties.
[21] That being said, it must be acknowledged that both parties bear a portion of the responsibility in the present situation.
[22] The defendant could have made arrangements, even if not before March 31, 2000 at least during the five weeks following that date, to present a motion to have the Court dispose of the question of the confidentiality of the documents to be filed, which are the subject of the order made by Mr. Morneau on February 22, 2000.
[23] The conduct of counsel for the plaintiff, for his part, has been curious, to say the least, in that on the one hand he confirmed his availability for April 17,
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2000, at Toronto, for the hearing to be held on the motion regarding the confidentiality of the documents to be filed, and on the other hand he initiated contempt of court proceedings ex parte, something that could only lead to another ambiguous situation in that the date requested from the Court for the hearing of the contempt of court motion was also April 17, 2000, in Montreal.
[24] This kind of situation would have meant that two judges would have heard two different motions in the same case, on the same day, relating to the filing of the same documents.
[25] The new Federal Court Rules in force since 1998 specifically provide for case management Rules, to avoid circumstances of this sort arising.
[26] In making his decision on April 12, 2000, Prothonotary Morneau clearly understood from reading the documents that were submitted to him, and based on his understanding of the case as the case management judge, that the question of the confidentiality of the documents to be filed was the stumbling block in this case.
[27] He even made direct reference to the fact that a motion regarding that aspect was about to be presented to the Court.
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[28] It was undoubtedly this matter that guided him in his decision to dismiss the motion at this stage of procedures.
[29] In cases subject to case management, which are now very common in the Federal Court, the judges and prothonotaries responsible for case management, in accordance with the provisions of Rules 383 et seq. give directions and make orders in which the time allowed under the Rules is often extended, to allow the parties to proceed in the most just, most expeditious and least expensive manner, as specifically indicated in the provisions set out in Rule 385(1)(a) and (b).
[30] While, in The Queen v. Perry, [1982] 2 F.C. 519, the Federal Court of Appeal, at page 525, laid down strict parameters regarding how to interpret the establishment of prima facie evidence by the plaintiff in a contempt of court case, it is extremely difficult to compare the decision in The Queen v. Perry, in which the issue was the violation of an injunction by air traffic controllers, to the present situation, which involves an order by Prothonotary Morneau establishing a timetable and providing for documents to be filed, in response to an as yet not completed examination by one of the parties.
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[31] Orders relating to time are interlocutory, and are made for the evident purpose of allowing the case to progress in accordance with the provisions of Rule 385 of the Federal Court Rules (1998).
[32] Frequently, the parties, for various reasons, are unable to comply with the pre-established timetables, and accordingly it is common for the parties to come back before the case management judge to have the timetables varied, if not by mutual consent, at least after having presented the reasons for doing so to the Court.
[33] In the instant case, the defendant had indicated its intention to obtain an extension of time by motion and, also by motion, to obtain an order regarding the confidentiality of the documents to be filed, within a relatively short time, this would lead to a 17 days delay in relation to the timetable already established by Prothonotary Morneau, which is not considerable in the circumstances.
[34] This delay was also due in part to the fact that counsel for the plaintiff, who had been informed by letter on February 21, 2000, of a draft order relating to the confidentiality of the documents, had not yet replied, by March 21, 2000, one month later. It was after counsel for the defendant called counsel for the plaintiff that the latter ultimately informed him that he did not intend to consent to
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the draft order, and it appeared that he did not want to consent to any draft order.
[35] There was in fact only one day left for complying with the Federal Court Rules, March 22, by preparing the necessary affidavit or affidavits and the motion and filing them at the Registry so that it could be heard on the last available date prior to March 31, 2000, being March 27, 2000, in either Toronto or Montreal.
[36] We might wonder about the fact that counsel failed to reply to a letter for at least thirty days, when counsel for applicant informed the Court that upon receiving the letter, he knew that it was absolutely impossible for his client to comply with the draft order that had been submitted to him. It would then have been a very easy matter to communicate his refusal at that time to the other party, who would have had several weeks to present a motion before the deadline, March 31, 2000.
[37] I find it hard to believe that Parliament intended to make a Rule for the Federal Court, Rule 467, regarding contempt of court, and give it an effect that was so procedural that it made another Rule, Rule 385, inoperative.
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[38] The factors to be considered in reviewing a prothonotary's decision, as laid down by the Court in Canada v. Aqua-Gem Investment Ltd., [1993] 2 F.C. 425 state:
...discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
b) they raise questions vital to the final issue of the case.
[39] I therefore conclude that this application to review the decision of Prothonotary Morneau dated April 12, 2000, must be dismissed, since in any event it has not been demonstrated to me that Prothonotary Morneau erred in fact or in law in any way.
[40] On the question of costs, and whether they might in some way be justified in the circumstances, neither of the parties was able to persuade me of this. The motion will therefore be dismissed without costs.
Pierre Blais
Judge
OTTAWA, ONTARIO June 5, 2000
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-393-98
STYLE OF CAUSE: A. LASSONDE INC. v. SUNPAC FOODS LTD.
PLACE OF HEARING: MONTREAL, QUÉBEC
DATE OF HEARING: 8 MAY, 2000
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS DATED: 5 JUNE, 2000
APPEARANCES
ME BRUNO BARRETTE FOR PLAINTIFF MRS. KERI JOHNSTON
FOR DEFENDANT
SOLICITORS OF RECORD:
BROUILLETTE CHARPENTIER FORTIN FOR PLAINTIFF MONTREAL, QUEBEC
JOHNSTON AVISAR FOR DEFENDANT TORONTO, ONTARIO