Federal Court Decisions

Date: 19990423

Docket: T-1712-97

OTTAWA, ONTARIO, THIS 23^RD DAY OF APRIL, 1999.

PRESENT: THE HONOURABLE MR. JUSTICE EVANS

BETWEEN:

     AIC LIMITED

     Plaintiff

     - and -

     INFINITY INVESTMENT COUNSEL LTD.,

     INFINITY FUNDS MANAGEMENT INC.,

     RICHARD CHARLTON, DAVID SINGH,

     JEFFREY LIPTON and GRANT JUNG

     Defendants

     REASONS FOR ORDER AND ORDER

     UPON motion dated the 27^th day of January, 1999, on behalf of the plaintiff for:

1.      An order for the production of the defendants" financial statements;

2.      An order that the defendants number each of the documents in their affidavit of documents;

3.      Leave to amend the statement of claim in accordance with Schedule A to the motion; and

4.      Costs of $199.02 in respect of AIC Ltd."s costs of the aborted examination for discovery.

     AND UPON motion dated the 13th day of January, 1999, on behalf of the defendants for:

1.      An order that an accurate or complete affidavit of documents of AIC Limited be served and filed;

2.      In the alternative to 1 above, an order that Michael Lee-Chin, being the deponent of the affidavit of documents of AIC Limited, be cross-examined;

3.      An order that Michael Lee-Chin be examined for discovery prior to the examinations for discovery of the defendants; and

4.      Costs of the motion on a solicitor and client scale.

     IT IS HEREBY ORDERED THAT:

1.      The defendants produce their financial statements so that the means of the defendants may be determined for the purpose of quantifying the appropriate amount of any award of punitive damages that may be made against the defendants. Since the assessment of a defendant"s means for this purpose calls for a much less detailed examination than that required for an account of profits, and is only one of the factors that may be taken into consideration, there is no need to postpone this issue until after the question of liability has been decided at trial.

2.      Despite the absence of an express requirement in the Federal Court Rules, 1998 requiring a party to number its documents, and despite the description of each document provided by the defendants, and in view of the volume of documents concerned, the fact that many may be similarly described and that numbering will therefore facilitate ease of reference at the examinations for discovery and at trial, the defendants" documents shall be numbered individually.

3.      Leave to amend plaintiff"s statement of claim granted with the exception of striking out the words "all to be determined on a Reference following a trial on the merits" from paragraph 37(f). To remove these words would be contrary to the order of McKeown J. dated February 1, 1999 and no reason was advanced at the hearing for varying this order.

4.      In the interest of expeditiousness, Michael Lee-Chin shall be cross-examined as the deponent of the affidavit of documents of AIC Ltd.

5.      Michael Lee-Chin shall be examined for no more than three days before examination for discovery of the defendants is commenced, and there shall be no more than five days between the first and third days of Mr. Lee-Chin"s examination.

6.      Costs of these motions shall be in the cause; the defendants shall pay forthwith $199.02 as AIC Ltd."s costs of the aborted examination for discovery.

     John M. Evans

    

     J.F.C.C.