Date: 19981117
Docket: T-1164-97
BETWEEN:
CANADIAN COUNCIL OF PROFESSIONAL
ENGINEERS and THE ASSOCIATION OF
PROFESSIONAL ENGINEERS AND GEOSCIENTISTS
OF NEWFOUNDLAND
Plaintiffs
- and -
MEMORIAL UNIVERSITY OF NEWFOUNDLAND
Defendant
REASONS FOR ORDER
Defendant's Motion for Answers
[Delivered from the Bench at Ottawa, Ontario
on November 9, 1998, as edited]
ROTHSTEIN J.:
[1] The defendant moves for answers to seven questions asked on discovery. Question 1 asks for draft survey reports and correspondence in relation to a survey that was disclosed. I do not think there is an entitlement to correspondence and draft reports of experts at the discovery stage, although such material might be required at trial (see Vancouver Community College v. Phillips, Barratt et al. (1987), 20 B.C.L.R. (2d) 289 at 298). Vancouver Community College stands for the proposition that production from experts of matters going to substance or credibility may have to be produced at trial when the expert is called. There is no right at the discovery stage to such documents. Such a right would be tantamount to discovery of the expert. There is no provision in the Federal Court Rules or in any authority cited to this effect.
[2] Question 2 asks for confirmation as to the plaintiffs' position that the reference in paragraph 11 of the statement of claim refers only to programs in the Faculty of Engineering. At the present time, the plaintiffs say that is precisely to what paragraph 11 refers. However, the plaintiffs say that through further investigation, this answer might change. The defendant must know the case it has to meet. The plaintiffs shall not change its position or introduce new evidence on this issue without leave of the Court. Ample notice shall be given to the defendant for any proposed change. The plaintiffs are cautioned that the closer the trial, the less likelihood that leave to make changes will be granted.
[3] Question 3 has been withdrawn.
[4] Questions 4, 5 and 6 ask for factual information that would show public confusion or deception outside of Newfoundland. The plaintiffs have answered that they are not aware of any facts other than the survey conducted in Newfoundland at the present time. This answer is satisfactory to the defendant.
[5] Question 7 requires inquiry of a third party. Both the plaintiffs and defendant have a member on the Board of Directors of the third party. There is no reason why information from the third party is not as easily obtainable by the plaintiffs as by the defendant.
[6] The defendant's motion in respect of questions 1 and 7 is dismissed. The motion with respect to question 3 is withdrawn. The disposition with respect to questions 2, 4, 5 and 6 are as set forth in these reasons.
[7] The plaintiffs shall be entitled to costs of this motion in the sum of $300 inclusive of disbursements payable in any event of the cause.
Marshall Rothstein
J U D G E
OTTAWA, ONTARIO
NOVEMBER 1998
[November 17, 1998]
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