Federal Court Decisions

                                                                                                                                  Date: 20050823

                                                                                                                               Docket: T-393-98

Citation: 2005 FC 1142

BETWEEN:

SUN PAC FOODS LIMITED

Plaintiff by counterclaim

and

A. LASSONDE INC.

Defendant by counterclaim

REASONS FOR ORDER

MR. RICHARD MORNEAU, PROTHONOTARY:

[1]         These are two motions by the plaintiff by counterclaim Sun Pac Foods Limited (hereinafter Sun Pac).

[2]         One of the motions, which we will assess first, is to make Industries Lassonde Inc. (hereinafter Industries) a defendant by counterclaim in the present proceeding pursuant to paragraph 104(1)(b) of the Federal Courts Rules (the Rules). Industries happens to be the parent corporation of A. Lassonde Inc., the present defendant by counterclaim (hereinafter Lassonde).

[3]         The second motion by Sun Pac is for rulings on the objections that were raised on the continuation, on January 13 and 14, 2005, of the examination for discovery of Lassonde's representative, Mr. Gattuso. The first phase of Mr. Gattuso's examination took place in 1999.

[4]         The latter motion also seeks to obtain the right to examine Mr. Gattuso further concerning the Lassonde documents that were produced or discovered since January 12, 2005. Finally, the motion seeks to have the trial of the counterclaim and the hearing of any future motion held in Toronto.

General context of the Sun Pac motions

[5]         By virtue of my orders of March 10, 2004 and June 1, 2004, I had concluded that the examinations for discovery in this case were concluded on both sides and that the parties were to go to the stage of the pre-trial conference.

[6]         However, Sun Pac appealed my order of June 1, 2004. By an order dated September 14, 2004, Mr. Justice Shore allowed this appeal and gave Sun Pac leave to continue Lassonde's examination on the documents that Lassonde had produced since March 21, 2000. The Court ruled in part as follows:

THEREFORE, THE COURT ORDERS that

1.              The appeal of Sun Pac be allowed;

2.              Sun Pac continue its examinations for discovery of the Plaintiff, Lassonde, based on documents that have been produced by Lassonde from March 21, 2000 to April 23, 2004, and additional documents that may be produced by Lassonde, if any;

3.              further steps be stayed in this proceeding pending completion of Sun Pac's examinations for discovery;

[7]         It should of course be understood that the Court, by allowing Sun Pac to continue the examination for discovery of Lassonde, had in mind that this opening would be a limited and reasonable exercise that should not result in a derailment of any previously established schedule or step.

[8]         As proof of the Court's great wisdom, Shore J. began his reasons for order of September 14, 2004, by indicating, primarily to Sun Pac, since it was its appeal, as follows:

OVERVIEW

[1]            How much information to make its case must any party have before it becomes a dilatory measure, or an unwarranted intrusion, based on nothing but a fishing expedition?

After a most significant number of important rulings were made to move the file forward, in a deluge of paper, one Order is signalled out of many, simply due to a possible inadvertence but which has enough bearing, due to a party's need to know to make its case, to necessitate having it set aside; yet, it would be remiss not to notably recognize past thorough, meticulous and insightful judicial management work which gave progress to the issues with due deliberation, thus, having cleared many stumbling blocks.

[9]         In the body of his order itself, Shore J. took the trouble to add the following comments, which appeal to the principles of co-operation between the parties, avoidance of any dilatory measures and timely resolution of the matter:

To ensure that the above Order is forward-looking, not only addressing the situation for which it is rendered, this Order is subject to review in six months.

The reason for review is to ensure that the parties will cooperate with each other, and, thus, avoid dilatory measures. The original schedule, which has been formulated, previous to this Order, should simply be moved ahead, by six months, unless a valid exceptional reasons, accepted by this Court, arises.

As a preliminary step, for the timetable of six months to be met, and for a timely resolution of the overall matter between the parties, a new schedule should be drawn within the next month (by October 30, 2004) by the author of the previous schedule, who is best suited to do so, due to in-depth knowledge of all the issues which have arisen between the parties.

[10]       Apart from these parameters, and an order made on April 24, 2001, which should not be forgotten in the assessment of the Sun Pac motions now under review, a further major dimension of the case has evolved since the decision of Shore J. of September 14, 2004.

[11]       Since - and in part because of - this decision of September 14, 2004, according to Lassonde, the latter abandoned its principal action in the case on January 12, 2005. This means that the only action now being pursued is the Sun Pac counterclaim, which is why the style of cause now differs from the one that existed, for example, as of September 14, 2004. (It will be noted that the question of the costs to award to Sun Pac as a result of this abandonment by Lassonde is a different question in itself, still pending, which is not as such before us in the context of the examination of the present two motions by Sun Pac.)

[12]       For the purposes herein, as context for this main action now abandoned by Lassonde and the still existing counterclaim by Sun Pac, the following facts must be recalled.

[13]       Lassonde obtained a certificate of registration under the Trade-marks Act, R.S.C. 1985, c. T-13 (the Act) for the mark FRUITÉ and design (hereinafter FRUITÉ).           

[14]       Sun Pac, itself, holds a certificate under the Act for the mark FRUIT RHAPSODY.

[15]       The parties collided over the fact that Sun Pac uses the expression RHAPSODIE FRUITÉE (my emphasis) as an equivalent in French of its mark FRUIT RHAPSODY.

[16]       Lassonde claimed in its main action, now abandoned, it will be recalled, that such use by Sun Pac as a trade-mark violated, under section 20 of the Act, its exclusive right to the use of FRUITÉ and design in association with fruit juices and fruit drinks. This very use depreciated the value of the goodwill associated with this trade-mark (section 22 of the Act) and amounted to unfair competition (sections 7(b) and 7(c) of the Act).

[17]       As to Sun Pac's counterclaim, I think, for our purposes in the context of the present motions, that it can be said that this counterclaim is of some relevance to the following two major issues:

(a)         the questions aimed at discovering the notoriety of the FRUITÉ mark and design prior to February 28, 1994, the date of filing of the registration, in order to [translation] "assess the accuracy of the registration" under subsection 12(2) of the Act; and

(b)         the questions addressed to compliance with section 50 of the Act, a section that affects licences to use a trade-mark.

[18]       The aforementioned provisions of the Act read as follows:

[19]       On the strength of this information, it is necessary now to look at each of the Sun Pac motions, starting with its motion to join Industries as defendant by counterclaim in this case.

I.           Sun Pac motion to add Industries

[20]       As I assess it, the Sun Pac motion in this regard under paragraph 104(1)(b) of the Rules is essentially based on two major premises which, at the end of the day, are unjustified, although Lassonde and its counsel may not have helped to ensure that the clarifications in regard to these premises would be made with the greatest speed, as we will attempt to see in short order.

[21]       Sun Pac's premises are that:

1.          There is ambiguity as to which of Lassonde or Industries is the true owner of the FRUITÉ mark;

2.          Lassonde assigned to Industries its right to sue and be sued in this case.

[22]       As to whether Lassonde or Industries is the owner of the mark, I think it is now clear from the evidence on the record as a whole that until July 19, 2000, Lassonde was the said owner.

[23]       On July 19, 2000, by a deed of assignment, Lassonde assigned its rights in this mark to Industrie. This change in title was registered on January 17, 2001. This information thus became public as of that date, as is evidenced by the true copy of the official registration of the disputed mark produced by Lassonde.

[24]       This deed of assignment of July 19, 2000 and its registration in January 2001 (a deed of assignment which was not produced until January 13, 2005, the very day of the continuation of Mr. Gattuso's examination), clarifies the terms of an agreement to licence the use of the mark. This licensing agreement provides that a licence for the use of the mark is granted by Industries in favour of Lassonde. This licensing agreement, however, is dated December 24, 1999, and indicates at the very beginning that it comes into force on that date. By comparing this licencing agreement that Sun Pac obtained on December 10, 2003 with the deed of assignment of July 19, 2000, which Sun Pac obtained on January 13, 2005, Sun Pac became somewhat confused.

[25]       Sun Pac asks how, on December 24, 1999, could Industrie grant a licence to Lassonde when Industries did not become the owner of the mark until July 19, 2000.

[26]       The whole matter is sorted out when our attention is brought to bear on the scope of the licensing agreement of December 24, 1999 and on clause 4.1 of this agreement.

[27]       It must be realized, in connection with its scope, that the licensing agreement concerns not only the disputed mark but also an extensive range of trade-marks, all owned by Industries, and that concerning some of these marks the date on which the agreement came into force was indeed December 24, 1999, as is stated at the beginning of this agreement.

[28]       However, clause 4.1 of this agreement must be borne in mind. It provides:

[translation]

4.1            This agreement is executed for an initial term of five (5) years. It shall take effect, in relation to each Trade Mark, on the later of the date herein and the date on which the registration of Industries as owner of the Trade Mark has been completed by the Canadian Registrar of Trade-marks or his foreign counterpart, as the case may be.

[29]       Concerning the disputed mark, FRUITÉ, therefore, this clause 4.1 means that the later of the dates referred to therein is in this case January 17, 2001.

[30]       As a consequence of all that, Industries has been the owner of the mark since July 19, 2000, and could, as of January 17, 2001, grant Lassonde a licence to use this mark.

[31]       The ownership or certification of the mark is therefore clearly established and any ambiguity in regard to this question is not strictly in itself, therefore, a ground or premise to add Industries to this case.

[32]       As to the second premise invoked by Sun Pac to add Industries to the litigation, it is based on the fact that by the deed of assignment of July 19, 2000, Industries and Lassonde placed themselves within the framework of the procedure contemplated by rules 117 and 118. These rules read:

[Emphasis added]

[33]       A combined reading of both versions of these rules - and especially a reading of the English version - clearly indicates that the assignment that is contemplated by these rules is the assignment, from one party to the other, of the right to sue and be sued.

[34]       However, there is no evidence in the record that the right to sue and be sued, still less in regard to this case, has ceased to be the property of Lassonde and become that of Industries. The deed of assignment is addressed to the transfer of ownership in the mark and not to the assignment of litigation rights in this case.

[35]       The licensing agreement does refer in clause 7.4 to the right of Industries to sue in connection with the mark.

[36]       This clause reads:

[translation]

7.4            Should Industries refuse or fail to launch an infringement action when required by the Licensee, the latter may by itself sue for infringement at its own expense. To this effect, and if necessary in order to sue, Industries shall provide authority to the Licensee. Any recovery obtained as a result of such an action shall belong to the Licensee. Industries undertakes to provide any reasonable assistance that may be required by the Licensee provided that all of the direct costs inherent to such assistance are borne by the Licensee.

[37]       However, as worded, this clause clearly contemplates a future situation. This was further established in Mr. Gattuso's examination, in the January 2005 session. Mr. Gattuso then completed this licensing agreement, saying that as far as the present case was concerned the right of litigation had remained in Lassonde's hands.

[38]       Sun Pac's second premise for adding Industries falls as well, therefore.

[39]       It remains to assess the possibility of adding Industries within the context of the case law dealing with paragraph 104(1)(b) of the Rules. This paragraph reads:

104.(1) At any time, the Court may [...] (b) order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined be added as a party, but no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Court may order.

04.(1) La Cour peut, à tout moment, ordonner : [...] b) que soit constituée comme partie à l'instance toute personne qui aurait dû l'être ou dont la présence devant la Cour est nécessaire pour assurer une instruction complète et le règlement des questions en litige dans l'instance; toutefois, nul ne peut être constitué codemandeur sans son consentement, lequel est notifié par écrit ou de telle autre manière que la Cour ordonne.

[40]       My colleague Hargrave, in Early Recovered Resources v. Gulf Log Salvage Co-operative Assn., [2003] F.C.J. No. 716, summarizes as follows, in paragraph 6 of his reasons, the ultimate aspect that must be looked at under this paragraph:

[...] To round out the law on this point, even though it is in a sense repeating what was said in The Elton, I will refer to Stevens v. Canada (Commissioner, Commission of Inquiry), [1998] 4 F.C. 125 (F.C.A.) and to Havana House Cigar & Tobacco Merchants Ltd. v. Jane Doe (1998), 80 C.P.R. (3d) 443 (F.C.T.D.). In the Stevens case the Court of Appeal noted, at page 137, there adopting a passage from Amon v. Raphael Tuck & Sons Ltd. [1956] 1 Q.B. 357 at 380 that:

The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.

[41]       In its counterclaim, Sun Pac formulates its conclusions as follows:

Wherefore, Sun Pac, Plaintiff by way of Counterclaim, pray for:

(a)      an Order:

(i)       declaring Registration No. 485,575 is and always has been invalid; and

(ii)      directing the Registrar of Trade-Marks to expunge Registration No. 485,575 from the Register of Trade-marks; [...]

[42]       As Lassonde argues, the fact that Industries would officially be the defendant by counterclaim in this case has no effect on the enforcement of any potential judgment that is favourable to Sun Pac on the merits of its counterclaim since, as is apparent from the actual text of Sun Pac's conclusions, the latter is not making any direct claim (for monetary compensation or an injunction) against the holder of the registration; any decision will be enforced against the Registrar of Trade-marks only.

[43]       Furthermore, in the affidavit of Ms. Caroline Lemoine, dated May 26, 2005, and filed by Lassonde, she establishes the following at paragraphs 1 and 6 to 9 concerning the practical utility of adding Industries to the litigation and the fact that Industries will recognize any decision of this Court in relation to the disputed mark:

[translation]

I, Caroline Lemoine, an attorney, residing and domiciled at 273 De Champagne, Boucherville, Quebec J4B 8K4, SOLEMNLY AFFIRM THAT:

1.        I have been director of legal affairs for Industries Lassonde Inc. (hereinafter "Industries Lassonde"), the parent company of the defendant by counterclaim A. Lassonde Inc. (hereinafter "A. Lassonde"), since April 19, 2004.

...

6.        Industries Lassonde is a holding company and does not participate in any commercial activity as such. It is the owner, for example, of several trade-marks, including the mark FRUITÉ (TMA 485,757) [sic], which are used under licence.

7.        A. Lassonde is the exclusive licensee of the mark FRUITÉ (TMA 485,757) [sic].

8.        In the event that Industries Lassonde were to be a party to this proceeding, it would not be able to provide any firsthand information concerning the use of the mark FRUITÉ (TMA 485,757) [sic] since it does not itself use the mark, which was instead used exclusively by A. Lassonde. Consequently, Industries Lassonde would have to make inquiries of A. Lassonde concerning almost all if not all relevant questions that might be asked by Sun Pac's counsel in relation to the claim and counterclaim.

9.        Finally, even if Industries Lassonde is not officially a party to this litigation, it would recognize any decision of this Honourable Court in relation to its mark FRUITÉ (TMA 485,757) [sic], A. Lassonde having all the necessary powers to defend its validity.

[44]       As for Weight Watchers International, Inc. v. Vale Printing Ltd. (2000), 7 C.P.R. (4th) 92, cited by Sun Pac, the dynamics confronted by the Court on the facts of that judgment were quite different from those in the present proceeding.

[45]       In Weight Watchers, the Court acted in response to the plaintiff's fears that the transfer of ownership in the Web sites to third parties might have been done to elude any potential judgment by the Court. At paragraphs 4 to 7, the Court stated:

[4]        ... However, the Plaintiff now brings this motion because, as a result of the transfer of ownership and control of the Web sites to OntarioStar and Humphries, the Plaintiff fears they will display the WEIGHT WATCHERS trade-mark when they recommence operation of the Web site. The Plaintiff also fears that the transfer of ownership of the Web site and the domain names was executed in order to avoid the effect of any court order to be issued against ICA CANADA in the action initiated against ICA CANADA for trade-mark infringement, passing off and depreciation of goodwill.

[5]       The Plaintiff claims that since the time of the transfer on January 27, 2000, OntarioStar and Humphries have refused to undertake not to commence the acts which the Plaintiff contends violate its trade-mark rights. OntarioStar and Humphries also refuse to undertake not to transfer ownership of the Web site and the domain names to another party.

...

[7]        ... Based on this transfer it would seem logical to add OntarioStar and Humphries as parties given that their presence is necessary to ensure that the matters in dispute are effectually and completely determined.

[46]       None of the reasons for apprehension present in the Weight Watchers case is present in the case at bar.

[47]       As for Ziprint Ltd. v. Zippy Print Franchise Ltd. (1987), 15 C.P.R. (3d) 55 (Ziprint), the facts likewise differ from those that concern us. In Ziprint, on the examination for discovery of the defendant being sued, it emerged that one week before the action was taken this defendant had assigned the disputed mark to a third party, which itself subsequently assigned it to another third party. At the outset of the action, therefore, the wrong defendant had been sued. Furthermore, in Ziprint, there was no licence in favour of the initial defendant and the Court, in contrast to the situation here, had no clear undertaking from the new owner of the mark that any decision of the Court would be recognized by it. The Court therefore agreed to add these third parties as parties to the litigation.

[48]       In the spirit of the principles that Shore J. has left to us, i.e. to move ahead without delay or unnecessary steps (see paragraph 9, supra), a further fact should be noted in opposition to adding Industries to the litigation.

[49] On the most recent amendment to the schedule in this case, my colleague Tabib (probably acting in my absence) provided in her order dated March 24, 2005 a number of deadlines pertaining to some stages that had been submitted to her on consent of the parties. This order does not refer to the presentation by Sun Pac, over and above its motion for rulings on some objections, of a motion to add Industries. But as early as January 31, 2005, Sun Pac adverted in a letter to the possibility of adding Industries as a party. With that in mind, it is hard to understand why Sun Pac did not raise this aspect before my colleague Tabib, so it would be part of a step in the schedule of March 24, 2005.

[50] For all of these reasons, I do not see how the addition of Industries is necessary to the complete resolution of Sun Pac's counterclaim. On the contrary, as the manager of the proceeding for many years, I fear that the belated addition of this entity to the litigation will result in many additional interlocutory proceedings for no essential purpose. In that sense, as the manager of the proceeding, and on the strength of Mr. Justice Shore's principles, I will dismiss this motion by Sun Pac to join Industries as defendant by counterclaim in this case.

[51] This motion by Sun Pac will therefore be dismissed in its entirety, but without costs, since I consider that even if, strictly speaking, Lassonde, when examined on discovery in 1999, and when conveying information to Sun Pac in March 2000 and June 2001, could deny the existence of any licensing agreement, given that it had never itself granted any licence for the mark, the fact that it was using such a licence, however, and the preparation of the deed of assignment of July 19, 2000 should have led Lassonde to transmit these documents to Sun Pac well before December 2003 or January 2005.

[52] Having settled this aspect of the matter, it is now necessary to go to Sun Pac's motion, inter alia, to obtain rulings on some objections raised on the continuation of the examination for discovery of Lassonde's representative, Mr. Gattuso, on January 13 and 14, 2005.

II.     Sun Pac motion for rulings on objections and other remedies

[53] Sun Pac has grouped the items on which it wishes to receive a reply by Lassonde under seven categories. Although Sun Pac has listed these items either as undertakings or as objections, it seems more to me that they are all objections and it is under the latter term, using a reference number provided by Sun Pac in its categorization tables, that I will approach the various categories established by Sun Pac.

[54] Unless I add below some specific comments, whether or not an objection is allowed will depend on the positions of the parties as expressed and developed at length in their written submissions.

Replies to some objections and documents to be produced on an examination for discovery: applicable general principles

[55] In Reading & Bates Construction Co. et al v. Baker Energy Resources Corp. et al (1988), 24 C.P.R. (3rd) 66, at paragraphs 70-72 (Reading & Bates), Mr. Justice McNair, in a general six-point reminder, initially defines, at points 1 to 3, the parameters that make a question or document relevant, and then sets out in points 4 to 6 a series of circumstances or exceptions that may mean that at the end of the day a question need not be answered or a document need not be produced.

[56] At pages 70 to 72, the Court states:

1.        The test as to what documents are required to be produced is simply relevance. The test of relevance is not a matter for the exercise of the discretion. What documents parties are entitled to is a matter of law, not a matter of discretion. The principle for determining what document properly relates to the matters in issue is that it must be one which might reasonably be supposed to contain information which may directly or indirectly enable the party requiring production to advance his own case or to damage the case of his adversary, or which might fairly lead him to a train of inquiry that could have either of these consequences: Trigg v. MI Movers Int'l Transport Services Ltd. (1986), 13 C.P.C. (2d) 150 (Ont. H.C.); Canex Placer Ltd. v. A.G. B.C. (1975), 63 D.L.R. (3d) 282, [1976] 1 W.W.R. 644 (B.C.S.C.); and Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.).

2.        On an examination for discovery prior to the commencement of a reference that has been directed, the party being examined need only answer questions directed to the actual issues raised by the reference. Conversely, questions relating to information which has already been produced and questions which are too general or ask for an opinion or are outside the scope of the reference need not be answered by a witness: Algonquin Mercantile Corp. v. Dart Industries Canada Ltd. (1984), 82 C.P.R. (2d) 36 (F.C.T.D.); affirmed 1 C.P.R. (3d) 242 (F.C.A).

3.        The propriety of any question on discovery must be determined on the basis of its relevance to the facts pleaded in the statement of claim as constituting the cause of action ¼

4.       The court should not compel answers to questions which, although they might be considered relevant, are not at all likely to advance in any way the questioning party's legal position: Canex Placer Ltd. v. A.G.B.C., supra; and Smith, Kline & French Laboratories Ltd. v. A.-G. Can. (1982), 67 C.P.R. (2d) 103 at p. 108, 29 C.P.C. 117 (F.C.T.D.).

5.        Before compelling an answer to any question on an examination for discovery, the court must weigh the probability of the usefulness of the answer to the party seeking the information, with the time, trouble, expense and difficulty involved in obtaining it. Where on the one hand both the probative value and the usefulness of the answer to the examining party would appear to be, at the most, minimal and where, on the other hand, obtaining the answer would involve great difficulty and a considerable expenditure of time and effort to the party being examined, the court should not compel an answer. One must look at what is reasonable and fair under the circumstances: Smith, Kline & French Ltd. v. A.-G. Can., per Addy J. at p. 109.

6.        The ambit of questions on discovery must be restricted to unadmitted allegations of fact in the pleadings, and fishing expeditions by way of a vague, far-reaching or an irrelevant line of questioning are to be discouraged: Carnation Foods Co. Ltd. v. Amfac Foods Inc. (1982), 63 C.P.R. (2d) 203 (F.C.A.) and Beloit Canada Ltee/Ltd. v. Valmet Oy (1981), 60 C.P.R. (2d) 145 (F.C.T.D.).

[Emphasis added]

[57]       Furthermore, as mentioned in Faulding Canada Inc. v. Pharmacia S.p.A. (1999), 3 C.P.R. (4th) 126, at page 128:

¼ the general tendency of the courts to grant broad discovery must be balanced against the tendency, particularly in industrial property cases, of parties to attempt to engage in fishing expeditions which should not be encouraged.

[58]       I think this principle is much more appropriate in this case than the more general comments that the Court may have expressed in such judgments as Liebman v. Canada (Minister of National Defence) (1995), 87 F.T.R. 154, para. 15 and Havana House Cigar & Tobacco Merchants Ltd. v. Neime (1998), 80 C.P.R. (3d) 132, para. 23.

[59]       Rule 242 contains a warning to this effect. Indeed, paragraphs 242(1)(b) to (d) of the Rules read:

242.(1) A person may object to a question asked in an examination for discovery on the ground that [...]

242.(1) Une personne peut soulever une objection au sujet de toute question posée lors d'un interrogatoire préalable au motif que, selon le cas : [...]

(b) the question is not relevant to any unadmitted allegation of fact in a pleading filed by the party being examined or by the examining party; (c) the question is unreasonable or unnecessary; or (d) it would be unduly onerous to require the person to make the inquiries referred to in rule 241.

b) la question ne se rapporte pas à un fait allégué et non admis dans un acte de procédure déposé par la partie soumise à l'interrogatoire ou par la partie qui l'interroge; c) la question est déraisonnable ou inutile; d) il serait trop onéreux de se renseigner auprès d'une personne visée à la règle 241.

[60]       It is necessary to go now to the adjudication of the objections still pending.

[61]       No objection under categories 1 to 3 need be answered.

[62]       In regard to category 4, the parties agreed not to argue it.

[63]       Under category 5, no objection need be answered.

[64]       Under category 6, only objection no. 52, concerning the royalties, will have to be answered. It will be sufficient for Lassonde to convey in writing, via its counsel, the information that is sought, within ten days of the order accompanying these reasons.

[65] Under category 7, no objection need be answered.

[66] There is no reason, therefore, to provide for the continuation of Mr. Gattuso's examination owing to the above objections, since only objection 52 need be answered and it will be in writing.

[67] Moreover, the documents produced by Lassonde or discovered since January 12, 2005, are not actually in the nature of documents the contents of which precluded Sun Pac's counsel from asking all their relevant questions either on January 13, 2005 or at least on January 14, 2005. Specifically, in regard to the licensing agreement and the deed of assignment, it is the licensing agreement that is the most voluminous and it was produced on December 10, 2003. On January 13 and 14, 2005, Sun Pac was therefore able to ask all of its relevant questions. The fact that the deed of assignment of one paragraph in length was produced on January 13, 2005 is not really reason enough to think that Sun Pac was caught short on January 13 and 14, 2005.

[68] Consequently, there is no reason either to allow Mr. Gattuso's examination for discovery to continue owing to the documents produced or discovered since January 12, 2005, and this includes the few documents produced in February and March 2005.

[69] Concerning Sun Pac's request that any future motion in this case be heard in Toronto, this request is rejected for the following reasons.

[70] First, this case should be considered ripe for the few remaining stages surrounding the holding of the trial (see to this effect the stages contained in points 4 to 6 of the order of this Court dated March 24, 2005). Apart from the motion by Sun Pac that is still pending, affecting rule 402, it is hard to envisage what other motion might arise in future if we really want to comply with rule 3 and Mr. Justice Shore's principles. In any case, in the event that there is cause to rule on a motion, that motion may be moved under rule 369 or heard by conference call, since it will necessarily and logically have to be short, simple and addressed to a specific point.

[71] Second, this case and the hearing of the motions in this case have for years now been managed from Montréal and I see no valid reason why this should be changed.

[72] Insofar as the holding of the trial on the merits in Toronto is affected, that is a question that should be raised and discussed at an eventual pretrial conference.

[73] For these reasons, Sun Pac's motion for rulings on the objections and other remedies is dismissed in its entirety subject to the fact that under category 6, only objection no. 52 concerning royalties will have to be answered. As mentioned previously, it will be sufficient for Lassonde to convey in writing, via its counsel, the information that is sought therein, within ten days of the order accompanying these reasons.

[74] This motion will, however, be dismissed without costs, since in this case as well Lassonde could have avoided producing its documents one by one.

[75] An order shall issue accordingly in relation to both motions by Sun Pac.

Richard Morneau

Prothonotary

Montréal, Quebec

August 23, 2005

Certified true translation

K.A. Harvey

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            T-393-98         

STYLE:                                    SUN PAC FOODS LIMITED

Plaintiff by counterclaim

and

A. LASSONDE INC.

Defendant by counterclaim

PLACE OF HEARING:                      Montréal, Quebec

DATE OF HEARING:                        May 30, 2005

REASONS FOR ORDER:                RICHARD MORNEAU, PROTHONOTARY

DATED:                                              August 23, 2005

APPEARANCES:

Stephanie Chong                                  

FOR THE PLAINTIFF

BY COUNTERCLAIM           

Pascal Lauzon

Jean-Nicolas Delage

FOR THE DEFENDANT BY COUNTERCLAIM

SOLICITORS OF RECORD:

Johnston Wassenaar

Toronto, Ontario

FOR THE PLAINTIFF

BY COUNTERCLAIM

BCF LLP

Montréal, Quebec

FOR THE DEFENDANT BY COUNTERCLAIM