BETWEEN:
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
REASONS FOR ORDER AND ORDER
HUGESSEN J.
[1] By his motion pursuant to Rule 369 the plaintiff seeks:
a. to appeal an order of the case management prothonotary refusing his motion for documentary production;
b. to compel production of the same documents; and
c. to take this case out of case management.
[2] The second prayer for relief is clearly unnecessary: if the plaintiff wins his present appeal he will get the relief he seeks; if he looses it there is issue estoppel.
[3] No valid grounds have been advanced in support of the third prayer and, indeed, a simple perusal of the file and of the various tortuous tactical manoeuvres undertaken by the plaintiff (who is unrepresented) demonstrates, beyond doubt, that case management is not only desirable but necessary.
[4] This brings me to the appeal of the prothonotary's order. The standard of review in such matters was recently re-affirmed by the Federal Court of Appeal in Merck & Co Inc. v. Apotex Inc., [2004] 2 F.C.R. 459 (FCA), which confirmed the Court's earlier judgment in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.).
[5] There are two branches to the test: is the decision clearly wrong and does it dispose of issues vital to the final outcome of the case? The plaintiff meets neither branch.
[6] The documents which the plaintiff says he needs have not been shown to exist or, if they do, to be in the possession or control of the defendant. The fact that a document is referred to in a document listed in the defendant's affidavit does not show that such document is still available or that it is in the defendant's power. In many cases, the plaintiff does not seek a document at all but rather the answer to some question supposedly relating to it. The plaintiff has exhausted his rights to oral discovery and has not taken up the prothonotary's sensible invitation to him to ask questions in cross-examinations on the affidavits which had been produced in the then pending motion for summary judgment (since disposed of). It has not been shown that discretion has been wrongly exercised by the prothonotary.
[7] As to the other branch of the test, it will be a rare case when it can be shown that the denial of further discovery or further documents will be vital to the final outcome. There is no such showing here.
[8] The motion will be dismissed with costs to be assessed.
ORDER
The motion is dismissed with costs to be assessed.
"James K. Hugessen"
Judge
Ottawa, Ontario
April 13, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1067-00
STYLE OF CAUSE: ROBERT A. RUMAN
v.
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
MOTION IN WRITING PURSUANT TO RULE 369
WRITTEN SUBMISSIONS BY:
Barry Benkendorf FOR DEFENDANT
SOLICITORS OF RECORD:
Edmonton, Alberta
John H. Sims, Q.C.