Date: 20090504
Docket: T-1236-01
Citation: 2009
FC 449
Toronto, Ontario, May 4, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
WEATHERFORD CANADA LTD.,
WEATHERFORD CANADA PARTNERSHIP,
EDWARD GRENKE AND GRENCO
INDUSTRIES LTD.
Plaintiffs
(Defendants by Counterclaim)
and
CORLAC INC., NATIONAL-OILWELL
CANADA LTD.
AND NATIONAL OILWELL
INCORPORATED
Defendants
(Plaintiffs by Counterclaim)
REASONS FOR ORDER AND ORDER
[1]
The
Defendants have brought a motion under Rule 289 to require the Plaintiffs to introduce
into evidence, through read-ins, other parts of the discovery evidence of the
Defendants’ witnesses.
[2]
The basic
principle of Rule 289 is not disputed – to ensure that the answers to questions
fairly reflect the true response given. Justice Pelletier (as he then was) in Canada
(Minister of Citizenship and Immigration v. Fast), 2002 FCT 542, summarized
the approach to the issue succinctly – whether the additional material showed
either that the witness did not understand the particular question or that the
portion being read in was misleading in the sense of suggesting that the
witness, at that point, was saying one thing when in fact he/she was saying
another.
[3]
Justice
Gibson, in Almecon Industries Ltd. v. Anchortek Ltd. (2002), 17 C.P.R.
(4th) 74, gave a slightly broader meaning to the Rule and referred
to contextualization. I do not take from that decision anything more than that
the question and answer must be seen in the context. For example, a simple
affirmative response to a question “Did you do it?” lacks context or subject
matter.
[4]
However, I
do not understand Justice Gibson to mean that other questions and answers on
the same subject matter had to be added beyond making clear to what the
specific answer related.
[5]
It is
recognized that the read-ins and the additions thereto, in particular, are a
variation of the usual procedure of a trial to have viva voce evidence.
The party requesting additions to read-ins has the option of calling the
witness to explain, clarify or amplify the read-ins. The Court must always be
concerned about fairness and prejudice to the parties and to the trial process.
[6]
With those
principles in mind, I turn to the specifics. The parties have organized the
Defendants’ proposed read-ins by tab in the motion material. For ease of
reference, the Court will use the same tab numbering.
[7]
Tab 1
Transcript from Examination of Anthony
Moore dated February 27, 2008 Pg. 367, Lines 14-25):
List of Further Answers to Outstanding
Questions – Follow Up Examination of Tony Moore, February 27-28, 2008 (Item 92,
Pg. 368: 13-20)
If the discovery Exhibit 27 is
to form part of the record of the trial, the answer is necessary to give the
source of the document and meaning to the identification of the document.
It is to be included in the
Plaintiffs’ read-ins.
Conclusion: Added
[8]
Tab 2
Exhibit 1 to the Examination for
Discovery of Anthony Moore dated November 20, 2006:
List of unanswered questions taken from
Derek Twidale’s examination that touch on actions and issues at the corporate
level of the following Defendants: Corlac Inc., Corlac Industries (1998) Ltd.,
National Oilwell Canada Ltd., and National Oilwell Incorporated (the “National
Defendant”) (Items 20 and 26)
In a written answer to a written question, the
Defendants answered the question by reference to two other answers, questions
23 and 26. The Plaintiffs read in only part of the answer.
The whole answer to the specific question relied
on must be read in.
Conclusion: Added
[9]
Tab 3
Confidential Transcript from Examination
of Anthony Moore dated February 27, 2008 (Pgs. 11-12)
The Defendants seek to add in a series of
questions and answers well beyond any notion of ensuring that the witness’
response is an accurate reflection of the true answer to the specific question.
If the Defendants wish to elaborate on the
answer, they will need to call a witness.
Conclusion: Not added
[10]
Tab 4
Transcript from Examination for Discovery
of Derek Twidale dated June 21, 2006 (Pgs. 298:8-298:24 and 306:11-306:16)
The parties agreed that this item will be
included.
Conclusion: Added
[11]
Tab 5
Transcript from Examination for Discovery
of Derek Twidale dated June 20, 2006 (Pg. 7:4-8:25)
The parties agreed that Questions and Answers
52-55 will be added to the read-ins.
Conclusion: Added
[12]
Tab 6
Transcript from Examination for Discovery
of Derek Twidale dated June 20, 2006 (Pgs. 17:18-18:2)
The parties have agreed to include this matter.
Conclusion: Added
[13]
Tab 7
Transcript from Examination for Discovery
of Derek Twidale dated June 20, 2006 (Pgs. 21:10-25)
The parties agreed that this item is included.
Conclusion: Added
[14]
Tab 8
Transcript from Examination for Discovery
of Derek Twidale dated June 20, 2006 (Pgs. 89:13-91:14)
The Defendants wish to require the Plaintiffs to
include evidence from another witness to explain the first witness’ answer.
This goes well beyond ensuring fair and accurate responses to specific
questions of a witness.
As the case law indicates, this is the very type
of matter which requires viva voce evidence.
Conclusion: Not added
[15]
Tab 9
Transcript from Examination for Discovery
of Derek Twidale dated June 20, 2006 (Pgs. 219:18-220:5)
This is a new and different question and the
Plaintiffs are not required to include it.
Conclusion: Not added
[16]
Tab 10
Motion 116, Schedule A, Item 52: “List of
Questions Arising from Discovery of the Defendants (Derek Twidale)”
This is an answer to an undertaking which the
Plaintiffs are not required to read-in. The Plaintiffs would otherwise be
denied the ability to cross-examine on an answer on which it had no intention
to rely. The Defendants remain free to call a witness to explain the alleged
mistake.
Conclusion: Not added
[17]
Tab 11
Motion 116, Schedule A, Item 208: “List
of Questions Arising from Discovery of the Defendants (Derek Twidale)”
The Defendants seek to add a completely separate
question to the read-ins. This is not permitted and in any event, as Mr.
Britton will be a witness, it is unnecessary.
Conclusion: Not added
[18]
Tab 12
Motion 116, Schedule A, Item 301: “List
of Questions Arising from Discovery of the Defendants (Derek Twidale)”
Again, this is a separate question from the one
being read in which related to names and addresses. The Defendants allege that
it explains corporate information; however, that is better done through a
witness.
Conclusion: Not added
[19]
Tab 13
Motion 114, Schedule A, Item 65: “List of
Questions Arising from the Discoveries of Christopher Carr, Derek Twidale and
Anthony Moore”
The parties have agreed to its inclusion.
Conclusion: Added
[20]
Tab 14
Motion 114, Schedule A, Item 148: “List
of Questions Arising from the Discoveries of Christopher Carr, Derek Twidale
and Anthony Moore”
The additions proposed are well beyond any
concept of ensuring inclusion of a fair and accurate response to a question.
The item is a question about facts relied on to support a pleading and is not
evidence of those facts.
Conclusion: Not added
[21]
Tab 15
Motion 114, Schedule A, Item 164: “List
of Questions Arising from the Discoveries of Christopher Carr, Derek Twidale
and Anthony Moore”
Withdrawn
[22]
Tab 16
Motion 114, Schedule A, Item 168: “List
of Questions Arising from the Discoveries of Christopher Carr, Derek Twidale
and Anthony Moore”
The item relates to Mr. Britton and for the same
reasons as for Tab 11, it is not to be included.
Conclusion: Not added
[23]
Tabs 17
and 18
Motion 114, Schedule A, Item 193: “List
of Questions Arising from the Discoveries of Christopher Carr, Derek Twidale
and Anthony Moore”
Moore, January 5, 2009, Item 63 – Follow-Up
Examination for Discovery of Tony Moore – Phoenix, Arizona – February 27-28, 2008 – List of Further
Answers to Outstanding Questions
These items are no longer in issue.
ORDER
THIS COURT ORDERS that:
1.
Tabs 1, 2,
4, 5, 6, 7 and 13 are added
2.
Tabs 3, 8,
9, 10, 11, 12, 14 and 16 are not added.
“Michael
L. Phelan”
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