Docket: T-1158-99
Toronto, Ontario, March 14th, 2005
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ANCHOR BREWING COMPANY
Plaintiff
and
THE SLEEMAN BREWING & MALTING CO. LTD.
Defendant
REASONS FOR ORDER AND ORDER
[1] The Defendants is appealing an order of Prothonotary Aronovitch, dated February 14, 2005.
[2] Although the Notice of Motion did not state how Prothonotary Aronovitch erred in her decision, the parties before me agreed that this motion should proceed on the basis that the Defendant alleges that Prothonotary Aronovitch misinterpreted or incorrectly applied Rule 240.
[3] By order, dated April 8, 2004, Prothonotary Aronovitch ordered inter alia the Defendant to answer eight (8) questions arising out of discovery. This order was not appealed. Following a teleconference, on November 18, 2005, Prothonotary Aronovitch issued an scheduling order on which, inter alia, reaffirmed the need for Defendant to comply with the April 8, 2004 order.
[4] Upon motion by Plaintiff that the Defendant is in breach of the orders of April 8, 2004 and November 29, 2004, Prothonotary Aronovitch, on February 14, 2005, ordered the Defendant to provide answers to all outstanding questions (other than question 4846) from the examination of Defendant's representative, Mr. Daniel Fox referred to in her orders of April 8, 2004 and November 29, 2004, as well as, ordering Mr. Fox to re-attend for examination of discovery no later than March 31, 2005.
[5] The Defendant is now appealing from that order arguing that Prothonotary Aronovitch misinterpreted Rule 240. He alleges that all the questions have been answered and can be found in the voluminous records of discovery. It is his obligation to answer questions related to any unadmitted allegations of facts set out in his pleadings but not to provide specific reference where those answers can be found in the discovery record. Or, to put it differently, he has the obligation to provide answers in respect of unadmitted facts not to marshal such answers and state where they can be found.
[6] For support of his position, the Defendant relies on Taylor v. Canada (T.D.), 46 F.T.R. 53 particularly paragraph 15 where Jerome A.C.J. stated:
The questions in categories (a), (b) and (d) essentially concern what the defendant has termed "reliance questions". In Can-Air Services Ltd. v. British Aviation Insurance Co. Ltd. (1988), 91 A.R. 258 (C.A.), Côté J.A., for the Court, considered the propriety of what he also termed "reliance questions" such as, [at page 259] "Can you tell sir what facts you rely on to support that allegation, in paragraph 9(a) of the Statement of Defence?" He concluded that it is always improper to ask the witness "On what facts do you rely to support that allegation?"and [at pages 259-260] he explained the impropriety of questions phrased in that manner:
On what facts do you rely ..." does not ask for facts which the witness knows or can learn. Nor does it ask for facts which may exist. Instead it makes the witness choose from some set of facts, discarding those upon which he does not "rely" and naming only those on which he does "rely".
...
Because the question demands a selection, it demands a product of the witness' planning.... The question really asks how his lawyer will prove the plea. That may well be based on trial strategy.
...
Another fundamental rule is that an examination for discovery may seek only facts, not law: ... These questions try to evade that rule by forcing the witness to think of the law applicable or relied upon, then use it to perform some operation (selecting facts), and then announce the result. The result looks on the surface like a mere collection of facts, but it really is not: The witness cannot know what facts will help him in court until he knows the law. So what facts he relies on must be based upon his view of the law.
...
[7] It is established that appeals from Prothonotaries are governed by the test set out in Merck & Co., Inc. v. Apotex Inc.(F.C.A.), [2003] F.C.J. No. 1925 at para. 19 (F.C.A.), where Décary J.A. stated:
Discretionary orders of Prothonotaries ought not be disturbed on appeal to a judge unless:
a) the questions raised in the motion are vital to the final issue of the case, or
b) the orders 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.
If the order meets one of the above criteria, the discretion of the reviewing judge must be exercised de novo.
[8] It is also well established that case management prothonotaries are in the best position to deal with the interlocutory aspects of the cases they manage, that they should be allowed plenty of elbow room when exercising their difficult tasks and that courts should be reluctant to interfere with their decisions ( See Sawridge Band v. Canada (C.A.), [2002] 2 F.C. 346).
[9] In this case the Defendant cannot succeed for two reasons. First, he is really taking issue with the decision of April 8, 2004 when relying on Taylor, supra. I take no position on that submission. If the Defendant finds fault with that decision he should have appealed the April 8, 2004 order. As he did not, he is obliged to honour its terms.
[10] Second, as far as the order, of February 14, 2005 is concerned, I fail to see what error Prothonotary Aronovitch committed when she reaffirmed her earlier order. Obviously, this is not a question vital to the final issue of the case, and thus the Defendant has not met the test in Merck, supra. Finally, reaffirming her own order is surely part of the 'elbow room' required by prothonotaries to discharge their case management duties.
[11] Accordingly, this appeal cannot succeed.
ORDER
THIS COURT ORDERS that this appeal be dismissed. The costs of this appeal, fixed in the amount of $2,500.00 shall be paid by the Defendant to the Plaintiff, forthwith in any event of the cause.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1158-99
STYLE OF CAUSE: ANCHOR BREWING COMPANY
Plaintiff
and
THE SLEEMAN BREWING & MALT CO. LTD.
Defendant
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 14, 2005
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
APPEARANCES:
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FOR THE PLAINTIFF
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FOR THE DEFENDANT |
SOLICITORS OF RECORD:
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Smart & Biggar Barrister & Solicitor Ottawa, Ontario
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FOR THE PLAINTIFF |
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Kenneth D. McKay Sim, Hughes, Ashton & McKay Toronto, Ontario |
FOR THE DEFENDANT |