Date: 20020617
Docket: T-686-99
Neutral citation: 2002 FCT 685
BETWEEN:
WIC PREMIUM TELEVISION LTD.
Plaintiff
-and-
ROY LEVIN a.k.a. ROY LEVINE, JOHN DOE, JANE DOE
and ANY OTHER PERSON OR PERSONS FOUND ON THE
PREMISES OR IDENTIFIED AS WORKING AT THE PREMISES
AT 1830 DUBLIN AVENUE, WINNIPEG, MANITOBA WHO
OPERATE OR WORK FOR BUSINESSES CARRYING ON
BUSINESS UNDER THE NAME AND STYLE OR ‘STARLINK'
‘STARLINK INC.', ‘STARLINK CANADA', ‘STARLINK MANITOBA',
OR ONE OR MORE OF THEM,
ROY LEVINE a.k.a. STAR*LINK CANADA (1998), STARLINK INC., 3563716 MANITOBA LTD. a.k.a. STAR*LINK MANITOBA, and 3942121 MANITOBA LTD. a.k.a. STAR*LINK CANADA SATELLITE SERVICE
Defendants
REASONS FOR ORDER AND ORDER
[1] The Plaintiff has filed a Notice of Motion in writing pursuant to the Federal Court Rules, 1998, rule 369, seeking an order concerning the disposition of the human and machine readable documents presently held by the law firm of Thompson, Dorfman, Sweatman of Winnipeg, Manitoba, pursuant to the order of Justice Sharlow made in these proceedings on July 5, 1999.
[2] The Plaintiff brings this motion in response to a letter written by Ms. Grande, of Thompson, Dorfman, Sweatman, on April 1, 2002. In her letter, Ms. Grande seeks direction from the Court concerning the role of her law firm in this matter and the disposition of certain materials now in the custody of Ms. Grande.
[3] In her letter of April 1, Ms. Grande identified the documents in her possession as being copies of documents copied from Manitoba Taxation, copies of documents which she deemed to be subject to solicitor-client privilege and certain hard drives.
[4] Ms. Grande wishes to be relieved of custodianship of these articles and since it appears that this action is concluded, for all practical purposes, it is appropriate that direction be given to Ms. Grande concerning the disposition of the documents and materials which she has in her possession. It is also appropriate that some time limits be imposed on the Defendants within which they are to retrieve their documents and materials. In her letter of April 1, 2002, Ms. Grande notes that, to date, Mr. Levin has made no arrangements to pick up the documents copied at the Manitoba Taxation.
[5] The Plaintiff filed a Motion Record that includes the Affidavit of Bette Elliott, a legal assistant in the offices of Crawford, McKenzie, McLean, Wilford, Anderson and Duncan LLP, solicitors for the Plaintiff in this proceeding, together with written representations. The position, on the totality of the material filed by the Plaintiff, is that the Defendants should be given a thirty day period within which to retrieve the documents now in the custody of Thompson, Dorfman, Sweatman and should they fail to do so, that Thompson, Dorfman, Sweatman be at liberty to destroy the documents.
[6] The Plaintiff takes this position having regard to the current state of the action. Following disclosure of the bankruptcy of Mr. Levin, Prothonotary Lafreniere made an order on December 18, 2001 in which he ordered that the action be stayed against Mr. Levin. In light of the failure of the two corporate parties, Starlink Inc. and 3942212 Manitoba Limited, to comply with the order dated September 19, 2001, the action was dismissed against the corporate Defendants.
[7] In these circumstances, the Plaintiff takes the position that the Defendants are unlikely to do anything to retrieve the documents or deal with them in any way.
[8] Mr. Levin filed written submissions on behalf of the Defendants. He states a desire to retrieve the human and machine readable documents stored with the law firm of Thompson, Dorfman, Sweatman, relying on the Order of Justice Sharlow. He also expresses a desire to retrieve the human and machine readable documents held by counsel for the Plaintiff, again relying on the Order of Justice Sharlow.
[9] The Defendant takes the same stance as the Plaintiff in this regard, saying that since the matter is no longer proceeding to trial the Plaintiff does not require this material. Mr. Levin does not identify any particular Order of Justice Sharlow upon which he relies.
[10] No representations have been made by Ms. Grande in connection with the present motion before me, but her position is clear from the letter she wrote on April 1, 2002.
[11] The Plaintiff seeks the following relief in this motion:
1. An Order that the Defendants shall be at liberty to retrieve the human and machine readable documents stored as a result of the Order of the Honourable Madam Justice Sharlow at the law firm of Thomson Dorfman Sweatman, Barristers and Solicitors, Toronto Dominion Centre, 2200-201 Portage Avenue, Winnipeg, Manitoba R3B 3L3, Attention: Ms. Maria L. Grande, Telephone (204) 934-2573, Facsimile: (204) 943-6445, within 30 days of the date of the Order;
2. An Order that if the Defendants fail to retrieve the documents within the 30 day period, then the law firm of Thomson Dorfman Sweatman may, at the Plaintiff's option, either forward the documents to counsel for the Plaintiff, or dispose of the documents by shredding and deletion.
3. An Order that In any event once the documents have been retrieved or dealt with according to clause 2 above that the computer hard drives in the possession of Thomson Dorfman Sweatman which stored the copies of the machine readable files seized from Defendants shall be returned to Plaintiff's counsel.
4. In the event that the Defendants fail to retrieve the documents within the 30 day period the costs of transporting the documents to the offices of counsel for the Plaintiff or shredding and deleting them shall be borne by the Plaintiff and shall form be a disbursement which the Defendants shall pay the Plaintiff as part of the costs payable to the Plaintiff in this action.
5. An Order that the law firm of Thomson Dorfman Sweatman shall be considered to have discharged all of its duties to the parties and the Court within 10 days after the documents are retrieved by the Defendants, or alternatively, on the day that the documents are conveyed to the Plaintiff or shredded, and thereafter no parties shall have any recourse against the law firm of Thomson Dorfman Sweatman, the Plaintiffs, or their lawyers, servants or agents, for their participation in any aspect of this matter or action.
[12] Two of the Orders issued by Justice Sharlow are included in the motion material filed by the Plaintiff. The first, dated July 5, 1999, addresses the appointment of Thompson, Dorfman, Sweatman as an independent law firm to act as an independent party relative to making copies of documents obtained from the Defendants and providing copies of those documents to the Plaintiff. The role of that law firm is set out in paragraphs 8 through 12 of the order of July 5.
[13] The Order made on July 28, 1999 addresses the role of the independent law firm and in that regard I refer to paragraphs 3(c) and (d).
[14] According to the Order made on July 5, 1999, Thompson, Dorfman, Sweatman were acting on behalf of the court and not for the Plaintiff or any Defendant.
[15] In its motion materials, the Plaintiff does not refer to the Order of December 9, 1999, which provides in part, as follows:
The solution proposed by counsel for the Plaintiff, and assented to by Mr. Levin, makes sense to me. It is this: Ms. Grande will make two copies of the six hard drives in her possession, one for the Plaintiff and one for Mr. Levin, subject to the following conditions:
(a) Mr. Levin must first provide Ms. Grande with a release that she in her sole discretion finds satisfactory in all respects;
(b) the costs of the copying both sets of the six hard drives will be borne by the Plaintiff.
Ms. Grande will keep in her possession the hard drives from which those two copies are made.
[16] The real issue arising from the present motion is to terminate the involvement of Ms. Grande and her law firm, Thompson, Dorfman, Sweatman, in this proceeding and to facilitate the return of documents and materials held by her, to the Defendants.
[17] The Plaintiff has not squarely addressed that issue and its representations concerning the value of these materials to the Defendants are irrelevant to accomplish that end.
[18] The Orders made by Justice Sharlow on July 5, 1999, July 28, 1999 and December 9, 1999 make it clear that Thompson, Dorfman, Sweatman, acting as agents of the court, are to hold the materials in question until further order of the court or until the matter is completed and upon the provision of a release by the Defendants in a form acceptable to Ms. Grande.
[19] I reject the Plaintiff's submissions insofar as they relate to the purpose for which the Defendants may want the materials. In my opinion, the Plaintiff really has no say about the disposition of the paper materials in the hands of Ms. Grande. The Plaintiff's position with respect to the materials on the hard drives seems to be that since the Plaintiff paid for those hard drives, it is entitled to get them back.
[20] Furthermore, I see no basis upon which to grant the Plaintiff's motion that any release in favour of Thompson, Dorfman, Sweatman should also apply to the Plaintiff. There is nothing in the Orders of Justice Sharlow to support this.
[21] The issue of return of hard drives purchased by the Plaintiff to accommodate the Orders made by Justice Sharlow was not specifically addressed by her. At the same time, her Orders make it clear that the costs of copying any of the copies for the Defendants were to be borne by the Plaintiff. In my opinion, those costs include the purchase of the hard drives. See paragraph 4 of the Order made on December 9, 1999.
[22] The hard drives must be returned to either the Plaintiff or the Defendants in order to conclude the involvement of Ms. Grande and her law firm in this matter. In light of the sometimes strained relationship between the Plaintiff and the Defendants throughout this action, the prudent solution is to order the delivery of the hard drives to the Defendants. While this results in a cost to the Plaintiff, in my opinion the Orders of Justice Sharlow clearly anticipate that the Plaintiff would bear certain costs, relative to reproducing documents, in any event of the cause.
[23] The Order of July 5, 1999 contemplates the making of copies of documents and of materials stored on computers. It appears that the material stored in the computer could not be copied without the purchase of hard drives. It is clear that Justice Sharlow contemplated that the Plaintiff would bear the costs of buying any materials required for such copying. It appears that she also contemplated the purchase of hard drives when she provided that these were to remain in the possession of Ms. Grande.
[24] In the interests of concluding Ms. Grande's involvement with this action, it is necessary to order the disposal of the materials still in her possession. The materials should be delivered to Mr. Levin on behalf of the Defendants. Such delivery should be made with the need to bring this issue to a final resolution. Accordingly, I make the following order:
ORDER
1. Ms. Grande shall deliver all paper documents, including documents copied from Manitoba Taxation; to the Defendant, Roy Levin, upon execution of a release by the Defendant Roy Levin in a form satisfactory to Ms. Grande;
2. Ms. Grande shall deliver up to the Defendant Roy Levin, copies of documents which she has deemed to be subject to solicitor-client privilege against execution of a release by the Defendant Roy Levin, in a form satisfactory to Ms. Grande;
3. Ms. Grande shall deliver up to the Defendant Roy Levin all hard drives which were copied pursuant to the Orders of Justice Sharlow in this matter, against the delivery by Mr. Levin of a release in a form satisfactory to Ms. Grande;
4. Mr. Levin shall take delivery of all documents, copies and hard drives referred to above within thirty (30) days of the date of this order, failing which Ms. Grande is at liberty to remit all such material in her possession except the hard drives, to counsel for the Plaintiff. In that eventuality, counsel for the Plaintiff is ordered to destroy the paper and machine-readable documents and provide proof to the Court that such destruction has taken place. In the event that the Defendant Roy Levin fails to take delivery of the hard drives now in the possession of Ms. Grande as outlined above, she shall retain possession of the hard drives.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
June 17, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-686-99
STYLE OF CAUSE: WIC PREMIUM TELEVISION LTD. v. ROY LEVIN
ET AL.
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER AND ORDER : HENEGHAN, J.
DATED: JUNE 17, 2002
WRITTEN REPRESENTATIONS BY:
K. WILLIAM McKENZIE FOR THE PLAINTIFF
ROY LEVIN FOR THE DEFENDANT ON HIS OWN BEHALF
SOLICITORS OF RECORD:
CRAWFORD, McKENZIE, McLEAN, FOR THE PLAINTIFF
WILFORD, ANDERSON & DUNCAN LLP
ORILLIA
THOMPSON DORFMAN SWEATMAN AGENT FOR THE COURT
WINNIPEG