Date: 20020107
Docket: T-426-00
Neutral citation: 2002 FCT 14
Toronto, Ontario, Monday the 7th day of January, 2002
Present: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
TAMKO ROOFING PRODUCTS, INC.
Plaintiff
and
IDEAL ROOFING COMPANY LTD.
Defendant
REASONS FOR ORDER AND ORDER
[1] Upon motion, dated the 4th day of December, 2001 on behalf of the Plaintiff, for:
a) An Order granting leave to the Plaintiff to videotape the examination for discovery of René Laplante, on behalf of the Defendant, scheduled for January 10 and 11, 2001 in Ottawa, Ontario, at the Plaintiff's expense, without prejudice to the Plaintiff's right to claim such costs as part of its costs at trial
b) Costs of this motion payable forthwith, in any event of the cause; and
c) Such further and other relief as to this Honourable Court seems just.
[2] By the motion before me, the Plaintiff seeks an order of the Court granting the Plaintiff leave to videotape the examination for discovery of René Laplante who is being discovered as the representative of the Defendant. The Defendant opposes the motion.
[3] The principal ground in favour of the motion is that a videotape would be the best evidence of the examination for discovery that the Plaintiff could bring before the Court. In support of the motion Plaintiff's counsel cited American journals which on perusal did appear to be based on a number of reported cases.
[4] Video recording has been used in our Courts to provide the best possible evidence on those occasions when evidence de bene esse or commission evidence has been necessary. That is to say, when the witness cannot conveniently be brought before the Court to give his evidence, his evidence may be obtained by video recording and brought before the Court in that form.
[5] In support of the motion the Plaintiff tendered a long video tape which contained a large segment of the video recording of a discovery in a related case in the United States and also a shorter tape which contained segments of the larger tape which segments had been read at the trial in the United States. Presuming the applicable American law to be the same as that of the Federal Court, I ordered the larger tape to be struck as it appeared to be subject to the implied undertaking. The shorter tape having been played in open court at the trial in the United States was in my view, no longer subject to the implied undertaking.
[6] It is to me patent that a fairly produced video tape with a written transcript provides better evidence before the Court than a written transcript of evidence alone. However, the purpose of discovery is not to provide evidence to bring before the Court. The purpose of discovery is to enable a party to discover before trial the case he will have to meet at trial and to enable a party to secure admissions which will save him from having to offer formal proof of those facts and also to secure admissions which will tend to destroy the opponent's case (see Modriski v. Arnold, [1947] O.W.N. 483.)
[7] The purpose of discovery is not to produce evidence to be placed before the Court. Answers to discovery questions can of course be used to discredit witnesses at trial. But such use of discovery is not often necessary and is not the primary purpose of discovery.
[8] The fact that video recorded evidence would be better evidence than the transcript alone if the discovery answers had to be used at trial to discredit a witness, must be measured against the probability that the video recorded evidence would never be used at trial. The efficacy of admissions made on discovery would not be increased by their appearance as well on a video recording.
[9] Evidence from the United States was that video recording of discoveries is now the rule rather than the exception for discoveries in intellectual property cases. It appeared from journals filed that a change to the rules of civil procedure in the U.S. court had made what were described as "revolutionary changes in discovery practice". It may be that in a country founded by revolution a revolutionary change is seen as a good thing. In Canada a revolution is not considered a good thing and a revolutionary change requires even greater justification because of its character.
[10] Discovery while useful to delineate and simplify the issues to be tried is one of the most onerous aspects of litigation and may be a principal force in favour of arbitration and other alternative dispute resolution procedures. It is my view that no step should be taken which increase the burden of discovery if no definite need would be satisfied. No need for videotape evidence has been shown here and therefore the motion will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The motion is dismissed.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
January 7, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-426-00
STYLE OF CAUSE: TAMKO ROOFING PRODUCTS, INC.
Plaintiff
-and-
IDEAL ROOFING COMPANY LTD.
Defendant
CONSIDERED AT TORONTO, ONTARIO BY TELECONFERENCE
REASONS FOR ORDER AND
ORDER BY: GILES A.S.P.
DATED: MONDAY, JANUARY 7, 2002
APPEARANCE BY TELECONFRENCE:
Mr. Donald Cameron, and
Ms. Jane Caskey
For the Plaintiff
Mr. Tom Wallis
For the Defendant
SOLICITORS OF RECORD: Aird & Berlis
Barristers & Solicitors
BCE Place, Box 754
1800-181 Bay Street
Toronto, Ontario
M5J 2T9
For the Plaintiff
Page: 2
Vincent Dagenais Gibson LLP
Barristers & Solicitors
600-325 Dalhousie Street
Ottawa, Ontario
K1N 7G2
For the Defendant
FEDERAL COURT OF CANADA
Date: 20020107
Docket: T-426-00
Between:
TAMKO ROOFING PRODUCTS, INC.
Plaintiff
-and-
IDEAL ROOFING COMPANY LTD.
Defendant
REASONS FOR ORDER
AND ORDER
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