Date: 20030905
Docket: T-697-02
Citation: 2003 FC 1036
Ottawa, Ontario, September 5, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
OSMOSE-PENTOX INC.
Plaintiff
and
SOCIÉTÉ LAURENTIDE INC.
Defendant
REASONS FOR ORDER AND ORDER
[1] This is a motion by the plaintiff for review of a decision by the prothonotary Richard Morneau on July 16, 2003.
[2] It will be helpful to recall from the outset that the case law clearly sets out the tests to be applied where review of a prothonotary's decision is sought.
[3] In Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (F.C.A.), at 454, it states:
I am of the opinion that such orders ought to be disturbed on appeal only where it has been made to appear that
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) in making them, the prothonotary improperly exercised his discretion on a question vital to the final issue of the case.
In each of these classes of cases, the Motions Judge will not be bound by the opinion of the prothonotary; but will hear the matter de novo and exercise his or her own discretion.
[4] Essentially, the plaintiff is not satisfied by the affidavit of documents entered in the record and asked the prothonotary to oblige the defendant to submit further documents so it could have all the evidence necessary to prepare fully for the hearing.
[5] On its face, the prothonotary's decision recognized the need to have a more accurate and complete affidavit of documents and it recognized that the defendant's reply record was deficient.
[6] To this end the prothonotary ordered in his decision that several other documents be filed which had not thus far been available, indicating clearly that if any of the said documents could not be filed [TRANSLATION] "the deponent to the defendant's amended affidavit of documents will have to state the reasons why these documents are not accessible or available".
[7] Paragraph (4)3 of the disposition of his order clearly established that he could conclude from his analysis of the facts and documents sought that the plaintiff would be in a position to reasonably establish the defendant's sales, profits and market shares, which could eventually allow it to prepare fully for the hearing on the merits of the case.
[8] I have no difficulty in concluding that the plaintiff has failed on the motion at bar in its attempt to show that the prothonotary's order was clearly wrong and that the prothonotary's exercise of his discretion was based on a wrong principle or a misapprehension of the facts.
[9] Counsel for the plaintiff suggested that a more recent analysis of the presumed sales figures and approximate inventories held at various selling points in Canada could lead the Court to conclude that the figures submitted in the defendant's documents were misleading, and hence the need to establish the sales figures in greater detail and even to conclude that there had been fraud and forgery of documents. No satisfactory evidence leading to such a conclusion was submitted either to the prothonotary or in this Court, and there is nothing to justify such allegations at this stage.
[10] The prothonotary also noted that there will be an examination for discovery, and this led him to conclude, like myself, that further information and clarifications could be produced by the said examination, and it might eventually even lead to the filing of other documents if necessary, which could provide the Court with more complete evidence.
[11] Despite his efforts, counsel for the plaintiff was not able to persuade the Court that the prothonotary's decision, ordering the defendant to file an entire series of documents from which the sales, profits and part of the turnover of the business could be established, would be unable to give a proper overview of the possible profits realized by the defendant and more precisely establish the plaintiff's claim for damages, and finally that by rendering his decision the prothonotary had improperly exercised his discretion on a question vital to the final issue of the case, in particular determining the profits made by the defendant.
[12] Clearly, it is the prothonotary who has the power to determine which relevant documents should be presented in such circumstances. It is true that the motions judge is not bound by the prothonotary's opinion, but the motions judge must nevertheless arrive at the conclusion that the prothonotary falls within one or other of the situations mentioned in Canada v. Aqua-Gem Investments Ltd., supra, and that is not the case here.
[13] Counsel for the defendant properly noted that the affidavit by Mr. Gabanski, representing the plaintiff, puts new facts before the Federal Court that were not before the prothonotary and that in any case could not justify intervention by the Court in this matter. In fact, these were calculations made by the witness based on the affidavit filed by Mr. Buisson, representing the defendant, in February 2003.
[14] For all these reasons, the Court concludes that the motion should not be allowed.
ORDER
THE COURT ORDERS THAT:
- this motion for review of the prothonotary's decision be dismissed;
- with costs to the defendant.
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"Pierre Blais"
Judge
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Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
FILE: T-697-02
STYLE OF CAUSE: OSMOSE-PENTOX INC.
v.
SOCIÉTÉ LAURENTIDE INC.
PLACE OF HEARING: Montréal
DATE OF HEARING: August 18, 2003
REASONS: Blais J.
DATE OF REASONS: September 5, 2003
APPEARANCES:
Nadia Sabik FOR THE PLAINTIFF
Patrick Goudreau and Kevin O'Brien FOR THE DEFENDANT
SOLICITORS OF RECORD:
Dagenais et Associés FOR THE PLAINTIFF
Montréal, Quebec
Dunton, Rainville FOR THE DEFENDANT
Montréal, Quebec
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