Date:
20100323
Docket:
T-722-07
Citation:
2010 FC 327
Montréal, Quebec, March 23, 2010
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
GALERIE
AU CHOCOLAT inc.
Plaintiff
and
ORIENT OVERSEAS CONTAINER
LINE
LTD.
Defendant
REASONS FOR ORDER AND ORDER
[1]
This is an appeal, pursuant to section 51
of the Federal Courts Rules, S.O.R./98‑106 (the Rules), by Orient Overseas Container
Line Ltd. (the defendant) against an order of Prothonotary Richard Morneau,
date January 22, 2010, dismissing the defendant’s request for a case management
conference and ordering it to produce its pre-trial conference memorandum.
[2]
On April 27, 2007, the plaintiff filed a
statement of claim for damages of $115,599.95 for the loss of a cargo of
decorative boxes (the cargo), manufactured by Balasi Exports and carried by the
defendant from the Philippines
to Montréal. The plaintiff alleges that the cargo was in good condition when
shipped; the defendant alleges that it was not.
[3]
The defendant began examinations on discovery of
the plaintiff’s representative, Gerson Vineberg, on September 9, 2008. The
examinations continued until February 18, 2009. A number of objections were
formulated and undertakings given and refused. On June 19, 2009, the defendant
moved for an order to adjudicate objections and compel the plaintiff to give
effect to its undertakings.
[4]
On July 2, 2009, Prothonotary Morneau issued an
order (July 2 Order) requiring the plaintiff to answer the questions to which
it objected and comply with the undertakings at issue. The plaintiff was
required, inter alia, to request information from third parties.
[5]
The plaintiff provided answers to the questions
and undertakings that were subject to Prothonotary Morneau’s order, but the
defendant deemed some of them unsatisfactory. There ensued, between September
and December 2009, an exchange of correspondence between the parties as to the
completeness of the plaintiff’s answers. The plaintiff’s position was, and remains,
that its answers are complete; the defendant’s was, and remains, that they are
not.
[6]
On January 6, 2010, the plaintiff filed its
Requisition for a Pre-Trial Conference. The next day, Prothonotary Morneau
issued a Direction requesting that the parties jointly submit a schedule for
the completion of the case. The parties have not agreed on one.
[7]
The defendant responded by requesting a case
management conference in order to deal with the unresolved issues related to
discovery, and in particular with the evidence the plaintiff intends to file on
the issue of the condition of the cargo at the time of loading.
[8]
On January 22, 2010, Prothonotary Morneau issued
an order (January 22 Order) dismissing this request, and requiring the
defendant to produce its pre-trial conference memorandum before March 5, 2010.
[9]
The defendant now appeals this order.
[10]
It is trite law that a discretionary
order of a prothonotary ought not to be disturbed unless the issues it raises
are vital to the final disposition of the case or the prothonotary exercised
his or her discretion on the basis of a wrong principle or of a misapprehension
of the facts (Canada v. Aqua-Gem Investments Ltd.,
[1993] 2 F.C. 425 (C.A.), Merck
& Co., Inc. v. Apotex Inc., 2003 FCA 488, [2004] 2 F.C.R. 459). Furthermore,
in Montana Indian Band v. Canada, 2002 FCA 331,
the Federal Court of Appeal
emphasize[d] … the
heavy burden upon litigants seeking to overturn an interlocutory order by a
case management judge. This Court is loathe to interfere with interlocutory
orders in any case due to the delay and expense which such appeals add to any
proceeding. This is all the more so where an appeal is taken from an
interlocutory decision of a case management judge who is intimately familiar
with the history and details of a complex matter. Case management cannot be
effective if this Court intervenes in any but the “clearest case of a misuse of
judicial discretion” to echo the words of Mr. Justice Rothstein in Sawridge
Indian Band et al. v. Canada, 2001 FCA 339, (2001) 283 N.R. 112.
[11]
The defendant submits that the issues raised by its appeal
are vital to the final disposition of the case, because the January 22 Order
prevents it from obtaining key evidence and from commissioning and filing
within the proper timelines essential expert reports.
[12]
The plaintiff, however, disputes this qualification, and
submits that issues related to discovery of evidence are not vital to the final
disposition of the case. It adds that because Prothonotary Morneau was acting
as a case management judge in the context of a specially managed proceeding,
his order deserves an even greater deference. I agree.
[13]
In Ruman v. Canada, 2005 FC 474, at para. 7, Justice
James Hugessen cautioned that “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” (see also Stevens v. Canada
(Attorney General), 2002 FCT 2). I do not think that this is one such “rare
case.”
[14]
Justice Luc Martineau’s decision in Campbell v.
Electoral Officer of Canada, 2008 FC 1080, on which the defendant relies,
is distinguishable. Justice Martineau held that the question whether the
plaintiffs could produce additional evidence in support of their application
for judicial review was of vital importance to that case because the
prothonotary’s answer thereto affected the applicants’ ability to pursue an
essential part of the remedy they sought. The prothonotary’s order had the
effect of pre-judging a question which should have been left to the judge
hearing the matter on the merits. That is not the case here. The issues
raised by the defendant are not vital to the final disposition of the case, and
this Court will not interfere with the January 22 Order unless it “was based
upon a wrong principle or upon a misapprehension of the facts,” and constituted
a “clearest case of a misuse of judicial discretion.”
[15]
The defendant further submits that the plaintiff
has not complied with all its obligations following from the July 2 Order. It
notes that the Rules provide that a person subject to examination on
discovery may be required to become better informed with respect to a question
which he or she is unable to answer during the examination. It argues that the
plaintiff has failed to request the information it was ordered to provide, or
at least to provide evidence that it made such requests and an undertaking not
to use at trial any information other than that which it has provided the
defendant. It also submits that the January 22 Order “fails to take into
account the possibility that the Defendant will want to seek leave … to examine
representatives” of third parties. Therefore Prothonotary Morneau erred in
stating that the plaintiff has already provided the defendant with “all that
could be discoverable” under the Rules.
[16]
I disagree. The
defendant does not point to any mistake of Prothonotary Morneau that could be
qualified as a misapprehension of facts. Prothonotary Morneau studied the
correspondence addressed to him by both parties. As a case-management judge, he
is perfectly acquainted with the circumstances of this case, including the July
2 Order, which he had issued. His conclusion that the plaintiff has complied
with its obligations under that order is not a “clearest case of a misuse of
judicial discretion” and ought not to be disturbed.
[17]
For these reasons, defendant’s
appeal is dismissed with costs in accordance with Tariff B.
ORDER
THIS COURT ORDERS that:
1.
This motion is dismissed;
2.
The defendant shall serve and file within 10
days of this Order a Pre-Trial Conference Memorandum in accordance with the Rules,
including any expertise in chief the defendant intends to rely on at trial;
3.
Prothonotary Morneau shall provide the parties with revised
availabilities to conduct the pre-trial conference in this matter; and
4.
The costs of this motion shall be
calculated in accordance with Tariff B.
“Danièle
Tremblay-Lamer”
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