Date: 20040914
Docket: T-393-98
Citation: 2004 FC 1240
Ottawa, Ontario, the 14th day of September 2004
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
A. LASSONDE INC.
Plaintiff
(Defendant by Counterclaim)
and
SUN PAC FOODS LIMITED
Defendant
(Plaintiff by Counterclaim)
REASONS FOR ORDER AND ORDER
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.
JUDICIAL PROCEDURE
[2] The Motion is for an Order:
(a) to allow Sun Pac's appeal from a Order dated June 1, 2004;
(b) to permit Sun Pac to continue its examinations for discovery of the Plaintiff, A. Lassonde Inc. ("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;
(c) to stay further steps in this proceeding, pending completion of Sun Pac's examinations for discovery, including any follow-up steps that may be necessitated as a result of conducting the examinations for discovery;
(d) to grant costs in favour of Sun Pac;
(e) to grant such further and other relief as the Court deems fit.
BACKGROUND
[3] The main proceedings in this action are set out below:
1. On March 9, 1998, the Plaintiff A. Lassonde Inc. ("Lassonde") commenced the present action, alleging, inter alia, trade mark infringement and passing off.
Statement of Claim dated March 9, 1998 (Affidavit of Kathrine Harris sworn June 10, 2004 ("Harris Affidavit"), Ex. "A")
2. On April 20, 1998, the Sun Pac filed its Statement of Defence and Counterclaim. The Counterclaim alleges, inter alia, that the trade mark in question is invalid.
Statement of Defence and Counterclaim dated April 20, 1998 (Harris Affidavit, Ex. "B")
3. On May 12, 1998, Lassonde brought a motion to strike certain paragraphs of the Statement of Defence, or in the alternative, for particulars. This motion was heard on June 8, 1998. The Order of June 19, 1998, resolved the motion largely in favour of Sun Pac.
Order of June 19, 1998 (Harris Affidavit, Ex. "C")
4. On or about June 29, 1998, Lassonde filed an appeal of the above Order. By Order dated September 9, 1998, Lassonde's appeal was dismissed and Sun Pac was provided 30 days from the date of that Order to amend its Statement of Defence and Counterclaim.
Order of September 9, 1998 (Harris Affidavit, Ex. "D")
5. On September 29, 1998, Sun Pac filed its Amended Statement of Defence and Counterclaim.
Amended Statement of Defence and Counterclaim dated September 29, 1998 (Harris Affidavit, Ex. "E")
6. On October 16, 1998, Lassonde filed its Reply and Defence to Counterclaim.
Reply and Defence to Counterclaim dated October 16, 1998 (Harris Affidavit, Ex. "F")
7. On October 26, 1998, Sun Pac filed its Answer to Reply and Reply to Defence to Counterclaim.
Answer to Reply and Reply to defence to Counterclaim dated October 26, 1998 (Harris Affidavit, Ex. "G")
8. On May 6, 1999, Ms. Lisanne Oneschuk was examined for discovery on behalf of Sun Pac.
Harris Affidavit, para. 9
9. On May 12, 1999, Mr. Jean Gattuso was examined for discovery on behalf of Lassonde. Counsel for Sun Pac adjourned the discovery subject to the production of documents which Lassonde had undertaken to produce. The examination for discovery of Mr. Jean Gattuso was continued on November 9, 1999. The defendant reserved the right to continue its examination and to ask follow-up questions on the record; it remains the case that no discovery has been conducted by the defendant on any of the documents subsequently produced by the Plaintiff until April 2004.
Excerpt from transcript of examination for discovery of Jean Gattuso dated May 12, 1999 (Harris Affidavit, Ex. "H" and para. 11)
10. On November 3, 1999, Lassonde brought a motion to compel answers to questions refused on the examination for discovery of Ms. Oneschuk. By Order of November 4, 1999, this motion was adjourned sine die subject to the filing of amended motion materials by Lassonde to conform with established practice governing motions for refusals.
Order of November 4, 1999 (Harris Affidavit, Ex. "I")
11. On November 29, 1999, Lassonde filed its amended motion materials. This motion was heard on February 14, 2000. By Order dated February 22, 2000, Lassonde's motion was granted in part. The Order also specified that Sun Pac would provide answers to the undertakings which it had given by March 31, 2000.
Order of February 22, 2000 (Harris Affidavit, Ex. "J")
12. In the interim, on February 21, 2000, counsel for Sun Pac wrote to counsel for Lassonde requesting his consent to a draft Protective Order, as had been discussed during the examinations for discovery. On March 21, 2000, counsel for Lassonde advised counsel for Sun Pac that he would not consent to the granting of a Protective Order.
Letters from counsel for Sun Pac to counsel for Lassonde dated February 21, 2000 and March 23, 2000 (Harris Affidavit, Ex. "K")
13. In the interim, on February 28, 2000, Lassonde had filed an Amended Statement of Claim which contained allegations based on privileged settlement discussions.
Amended Statement of Claim dated February 28, 2000 (Harris Affidavit, Ex. "L")
14. On April 6, 2000, Lassonde brought an ex parte motion for contempt of court on the basis that Sun Pac had not provided its answers to undertakings by March 31, 2000, the deadline stipulated in the Order of February 22, 2000. By Order dated April 12, 2000, Lassonde's ex parte motion was dismissed.
Order of April 12, 2000 (Harris Affidavit, Ex. "M")
15. On April 18, 2000, Lassonde filed an appeal of the above Order. The Order dated June 5, 2000, dismissed Lassonde's appeal.
Order dated June 5, 2000 (Harris Affidavit, Ex. "N")
16. On November 30, 2000, Sun Pac brought a motion to compel answers to questions refused on the examination for discovery of Mr. Gattuso. This motion was heard on February 22, 2001. By Order dated April 24, 2001, certain of the questions to be answered were required. (Therefore further discoveries were contemplated).
Order of April 24, 2001 (Harris Affidavit, Ex. "O")
17. In the interim, on December 11, 2000, a Protective Order had been issued further to a written motion brought by the defendant after having been unable to obtain the consent of the Plaintiff.
Order of December 11, 2000 (Harris Affidavit Ex. "P")
18. On October 4, 2001, Sun Pac brought a motion to strike those portions of Lassonde's Amended Statement of Claim filed on February 28, 2000 which referred to privileged settlement discussions. This motion was heard on December 12, 2001, together with a motion by Lassonde to file its Amended Statement of Claim. By Order dated January 16, 2002, the impugned paragraphs of the Amended Statement of Claim were struck and Lassonde's motion to amend was dismissed. The following was stated in paragraph 23 of the Order:
The decision disposing of this motion will stipulate the next stage to be completed in the case, likely a motion by the defendant seeking leave to force "Lassonde to provide answers to undertakings and questions ordered to be answered in the April 24, 2001 Reasons for Order and Order".
Order of January 16, 2002 (Harris Affidavit, Ex. "Q")
19. In the meantime, on November 27, 2001, Lassonde had brought a motion to compel Sun Pac to provide answers to undertakings and questions refused. This motion was adjourned by Direction dated November 30, 2001. The scheduling of the motion was eventually addressed in the Order of January 16, 2002, in which Lassonde was given 30 days from the date of the Order to place its motion on the general list. As outlined below, the Order was stayed when a appeal was filed. The appeal was eventually disposed of on April 2, 2003, meaning that Lassonde had until May 2, 2003 to bring its motion to compel back on. It did not do so, and was precluded from doing so by the Order of October 15, 2003.
Direction of November 30, 2001 (Harris Affidavit, Ex. "R")
Order of January 16, 2002 (Harris Affidavit, Exs. "Q. and "V")
20. On January 25, 2002, Lassonde brought a motion to appeal the Order dated January 16, 2002, and also sought a stay of execution of the Order. The stay was granted by Order dated February 4, 2002.
Order dated February 4, 2002 (Harris Affidavit, Ex. "S")
21. On February 1, 2002, Lassonde brought a motion for a dispute resolution conference. This motion was done in writing. By Order dated April 4, 2002, it was ordered that a mediation session be held on July 17, 2002, and also ordered that the proceeding be stayed pending disposition of the mediation session.
Order dated April 4, 2002 (Harris Affidavit, Ex. "T")
22. On July 17, 2002, a mediation session was held between the parties and their counsel. No settlement was reached.
Harris Affidavit, para. 24
23. Lassonde's appeal of the Order dated January 16, 2002, referred to above, was heard on March 6, 2003. By Order dated April 2, 2003, Lassonde's appeal was dismissed;
Order of April 2, 2003 (Harris Affidavit, Ex. "U")
24. On November 19, 2003, Sun Pac brought a motion to compel answers to undertakings. This motion was heard on January 26, 2004. By Order dated March 10, 2004, the motion was allowed in part. In particular, the Order stipulated that Lassonde would deliver documents in answer to certain undertakings within 30 days of the date of the Order, i.e. by April 13, 2004 (taking into account dies non).
Order of March 10, 2004 (Harris Affidavit, Ex. "W")
25. On April 13, 2004, counsel for Lassonde wrote to counsel for Sun Pac and indicated that "several hundreds of documents and invoices related to various matters" had been located, and that Lassonde needed to review these in order to comply with the undertaking that had been given in relation to these documents. Counsel for Sun Pac indicated that the relevant documents would be provided "within the following week".
Letter from counsel for Lassonde to counsel for Sun Pac dated April 13, 2004 (Harris Affidavit, Ex. "X")
26. On April 23, 2004, counsel for Lassonde provided counsel for Sun Pac with "all backup documents relating directly or indirectly, partially or completely to amounts spent in promotion and advertising of the FRUITÉ trade-mark since 1987 to 1998 that are still available ... [S]ome of the material does not relate to FRUITÉ; it has been included nonetheless since it relates to FRUITÉ expenses in that the cheques made out to pay the FRUITÉ expenses also covered other expenses in some cases." This letter was received by counsel for Sun Pac on April 26, 2004.
Letter from counsel for Lassonde to counsel for Sun Pac dated April 23, 2004 (Harris Affidavit, Ex. "Y")
27. On May 10, 2004, counsel for Lassonde wrote to counsel for Sun Pac further to a telephone conversation between them. Counsel for Lassonde wished to file a requisition for pre-trial conference, whereas counsel for Sun Pac was of the view that this would be premature, since Sun Pac required further discovery of Lassonde.
Letter from counsel for Lassonde to counsel for Sun Pac dated May 10, 2004 (Harris Affidavit, Ex. "Z")
28. On May 17, 2004, counsel for Sun Pac replied to the above letter, indicating that further discovery was required on the voluminous additional documents produced by Lassonde during the first round of discovery. Counsel for Sun Pac also requested dates for the second round of discovery to take place.
Letter from counsel for Sun Pac to counsel for Lassonde dated May 17, 2004 (Harris Affidavit, Ex. "AA")
29. On May 26, 2004, counsel for Lassonde wrote to the Federal Court seeking directions with respect to the matter of further discoveries and the requisition for a pre-trial conference.
Letter from counsel for Lassonde to the Federal Court dated May 26, 2004 (Harris Affidavit, Ex. "BB")
30. On May 27, 2004, counsel for Sun Pac wrote to the Federal Court setting out its position with respect to this issue.
Letter from counsel for sun Pac to the Federal Court dated May 27, 2004 (Harris Affidavit, Ex. "CC")
31. On May 28, 2004, counsel for Lassonde wrote a further letter to the Federal Court in response to a factual matter raised in counsel for Sun Pac's letter of May 27.
Letter from counsel for Lassonde to the Federal Court dated May 28, 2004 (Harris Affidavit, Ex. "DD")
32. On June 1, 2004, an Order was issued precluding further discoveries in this action, and stating that it is in order for Lassonde to file a requisition for pre-trial conference. It is this Order that is being appealed by Sun Pac in the present motion.
Order of June 1, 2004
33. On June 7, 2004, counsel for sun Pac wrote to counsel for Lassonde reiterating its position that the pre-trial conference is premature.
Letter from counsel for Sun Pac to counsel for Lassonde dated June 7, 2004 (Harris Affidavit, Ex. "EE")
34. On June 8, 2004, counsel for Lassonde served counsel for Sun Pac with a requisition for pre-trial conference.
Harris Affidavit, para. 36
35. Answers to undertakings, have been provided by counsel for Lassonde to counsel for Sun Pac on the following dates:
· March 31, 2000
· June 8, 2001
· December 10, 2003
· December 18, 2003
· April 13, 2004
· April 23, 2004
36. As stated above, no further examinations for discovery have been conducted in respect of these additional documents, which number in the hundreds of pages.
Letters from counsel for Lassonde to counsel for Sun Pac dated as above (Harris Affidavit, Exs. "X", "Y" and "FF" and paras. 11, 29 and 37)
ISSUES
[4] The issues which are inherent to the Motion itself are:
(a) What is the appropriate standard of review to apply to the appealed Order?
(b) Was the Order one where inadvertently an error of law and principle was made, or a misapprehension of the facts, based on an inadvertent consideration of the pleadings?
ANALYSIS
[5] When no questions vital to the final issue of the case are involved, the reviewing judge can only exercise discretion, if the exercise of discretion in regard to the Order which is appealed, was "based upon a wrong principle or upon a misapprehension of facts..." (Canada v. Aqua-Gem Investments Ltd. (C.A.), [1993] 2 F.C. 425 F.C.A. at para. 95).
[6] In this appeal, the Court is asked to determine whether an error took place by the application of a wrong principle of law to the facts, and whether a misapprehension of facts or an error in the consideration of the pleading is manifested.
[7] The reason for the appeal is that Sun Pac contends that the impugned Order demonstrates a misunderstanding and a misapplication of the principle of "relevance" and an inadvertent consideration of the role of the discovery process, particularly in regard to the exercise of case management.
[8] The Order exemplifies the perspective that consideration of issues is composed of the inherent relevance of questions for examination and the practical reality, necessity, of moving the case forward expeditiously.
[9] The jurisprudence of this Court indicates that, in determining whether a question should be answered, a general and flexible standard of relevance must be applied. If a question may fairly lead the examining party to a train of inquiry that may directly or inadvertently advance its case, or damage that of its adversary, it is a proper question for discovery and must be answered.
[10] A document is relevant if the party intends to rely on it, or if it tends to adversely affect the case of one party over that of another. A document is also relevant if it fairly leads to a train of inquiry, needed for such a purpose.
[11] The issue of which documents should be produced, or which questions should be answered, is a matter of relevance.
[12] Significant understanding on the issue, raised on appeal, has been provided by the Federal Court of Appeal in Apotex Inc. v. Merck & Co., Inc., [2003] F.C.J. No. 1725, 2003 FCA 438 (Q.L.)
12. In appeals from the decisions of motions judges reviewing the decisions of prothonotaries, this Court is very reluctant to interfere. This is particularly true in respect of decisions of case management judges and prothonotaries where it has been said that this Court will interfere "only in the clearest case of a misuse of judicial discretion" (Sawridge Band v. Canada , [2002] 2 F.C. 346 at 354).
13. In my view, however, in the present case there has been an error of principle which has fettered the exercise of discretion by the prothonotary, and his decision has been confirmed by the motions judge. I do not understand Rule 385 to authorize a case management judge or prothonotary, in giving directions that are necessary for the "just, most expeditious and least expensive determination of the proceeding on its merits" to enable them to deny a party the legal right to have questions answered on examination for discovery which are relevant to the issues in the pleadings. That right is not merely "theoretical" (as the prothonotary put it) but is clearly spelled out in Rule 240 and I do not take the general words of Rule 385(1)(a) or of Rule 3 to be sufficient to override that specific right. I would also observe that the word "just" which appears in both these rules relied on by the respondents and the decision-makers below confirms that justice is not to be subordinated to expedition. A person who is a party to a civil action is entitled to ask any question on discovery that is relevant to the issue: that is a matter of justice to him, subject of course to the discretionary power of the prothonotary or a judge to disallow the question where it is abusive for one of the reasons mentioned above. No such findings have been made in this case.
14. I would also observe that limiting the scope of questions for the sake of speed may in some cases be counterproductive. One of the purposes of discovery is to simplify proof at trial and another is to narrow the issues which remain in dispute. Both of these purposes are fully consistent with "expedition", so it is wrong to assume that completeness of discovery will always be an obstruction to the "most expeditious ... termination of the proceeding on its merit ...".
[13] The reasoning in this matter follows the above specified jurisprudence.
[14] The considerations are identical and therefore the disposition should reflect the guidance given by the Federal Court of Appeal.
ORDER
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;
4. the costs of this motion be awarded to Sun Pac without regard to the final disposition of the case.
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 had been formulated, previous to this Order, should simply be moved ahead, by six months, unless a valid exceptional reason, 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.
"Michel M.J. Shore"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-393-98
STYLE OF CAUSE: A. LASSONDE INC.
v. SUN PAC FOODS LIMITED
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 23, 2004
REASONS FOR JUDGMENT
AND JUDGMENT: The Honourable Mr. Justice Shore
DATED: September 14, 2004
Me. Pascal Lauzon FOR THE PLAINTIFF
Ms. Stephanie Chong
Ms. Keri Johnston FOR THE DEFENDANT
SOLICITORS OF RECORD:
BROUILLETTE CHARPENTIER FORTIN
Montreal, Quebec FOR THE PLAINTIFF
JOHNSTON WASSENAAR LLP
Toronto, Ontario FOR THE DEFENDANT