Date: 20040609
Docket: T-633-92
Citation: 2004 FC 824
Ottawa, Ontario, this 9th day of June, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
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LANDMARK CINEMAS OF CANADA LTD., BRIAN MCINTOSH,
TOWNE CINEMA THEATRES (1975) LTD., ROKEMAY THEATRES LTD.,
COSMOPOLITAN CINEMAS LTD.
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TOWN CINEMA THEATRES (1975) LTD., CEECO INVESTMENTS INC., and
PLACID DEVELOPMENTS LIMITED, CARRYING ON BUSINESS AS
THE BANFF CINEMA PARTNERSHIP
Defendants
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is a motion brought by the defendant, Brian McIntosh ("McIntosh") appealing the decision of the Prothonotary dated October 28, 2003. The Prothonotary's order stated in part, as follows:
2. The defendants Brian McIntosh, Towne Cinema Theatres (1975) Ltd., Rokeway Theatres Ltd., Cosmopolitan Cinemas Ltd., Ceeco Investments Inc. and Placid Developments Limited are to deliver further and better affidavits of documents, as requested by the plaintiff, by no later than fifteen (15) days from the date of this Order. In particular, an item of bundled documents, shall provide sufficient detail to enable the party reading the list of documents to understand its contents, generally, when and where the documents originated, and identify the number of documents in the group.
3. Elevated costs of the motion, fixed in the amount of $1,210.00, are payable to the plaintiff, forthwith.
Factual Background
[2] On January 7, 2003, the Prothonotary ordered all defendants to produce affidavits of documents no later than 15 days from the disposition of the defendants' appeal of the order adding the new defendants to this action. The appeal was dismissed on April 10, 2003. The defendant, McIntosh, did not comply with this order.
[3] On April 28, 2003, the Prothonotary directed compliance with the January 7, 2003 order and directed that affidavits of documents be filed no later than seven days from the time set out in the January 7, 2003 order. The defendant, McIntosh, did not comply.
[4] The Prothonotary issued a further order on June 30, 2003 ordering that the exchange of documents was to be completed by July 26, 2003. The affidavit of documents of the defendant, McIntosh, was filed within the time limit.
[5] The defendant, McIntosh's affidavit of documents did not list any documents under Schedules 1, 2, 3 or 4.
[6] On August 25, 2003, the plaintiff brought a motion for an order striking out the statement of defence of McIntosh and the other defendants for failing to provide meaningful disclosure of their documents, and therefore being in default of the Prothonotary's June 30, 2003 order. In the alternative, the plaintiff sought an order that the defendant, McIntosh, and the other defendants deliver further and better affidavits of documents.
[7] The Prothonotary's October 28, 2003 order granted the alternative relief requested by the plaintiff, namely an order compelling the defendant, McIntosh, to deliver a further and better affidavit of documents.
[8] This is McIntosh's appeal of that order.
Issue
[9] Should the appeal of the Prothonotary's order be allowed?
Relevant Statutory Provisions
[10] The relevant rules in the Federal Court Rules, 1998, S.O.R./98-106 state:
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51. (1) An order of a prothonotary may be appealed by a motion to a judge of the Trial Division.
223. (1) Every party shall serve an affidavit of documents on every other party within 30 days after the close of pleadings.
223(2) An affidavit of documents shall be in Form 223 and shall contain
(a) separate lists and descriptions of all relevant documents that
(i) are in the possession, power or control of the party and for which no privilege is claimed,
(ii) are or were in the possession, power or control of the party and for which privilege is claimed,
(iii) were but are no longer in the possession, power or control of the party and for which no privilege is claimed, and
(iv) the party believes are in the possession, power or control of a person who is not a party to the action;
(b) a statement of the grounds for each claim of privilege in respect of a document;
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51. (1) L'ordonnance du protonotaire peut être portée en appel par voie de requête présentée à un juge de la Section de première instance.
223. (1) Chaque partie signifie un affidavit de documents aux autres parties dans les 30 jours suivant la clôture des actes de procédure.
223(2) L'affidavit de documents est établi selon la formule 223 et contient:
a) des listes séparées et des descriptions de tous les documents pertinents:
(i) qui sont en la possession, sous l'autorité ou sous la garde de la partie et à l'égard desquels aucun privilège de non-divulgation n'est revendiqué,
(ii) qui sont ou étaient en la possession, sous l'autorité ou sous la garde de la partie et à l'égard desquels un privilège de non-divulgation est revendiqué,
(iii) qui étaient mais ne sont plus en la possession, sous l'autorité ou sous la garde de la partie et à l'égard desquels aucun privilège de non-divulgation n'est revendiqué,
(iv) que la partie croit être en la possession, sous l'autorité ou sous la garde d'une personne qui n'est pas partie à l'action;
b) un exposé des motifs de chaque revendication de privilège de non-divulgation à l'égard d'un document;
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(c) a description of how the party lost possession, power or control of any document and its current location, as far as the party can determine;
(d) the identity of each person referred to in subparagraph (a)(iv), including the person's name and address, if known;
(e) a statement that the party is not aware of any relevant document, other than those that are listed in the affidavit or are or were in the possession, power or control of another party to the action; and
(f) an indication of the time and place at which the documents referred to in subparagraph (a)(i) may be inspected.
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c) un énoncé expliquant comment un document a cessé d'être en la possession, sous l'autorité ou sous la garde de la partie et indiquant où le document se trouve actuellement, dans la mesure où il lui est possible de le déterminer;
d) les renseignements permettant d'identifier toute personne visée au sous-alinéa a)(iv), y compris ses nom et adresse s'ils sont connus;
e) une déclaration attestant que la partie n'a pas connaissance de l'existence de documents pertinents autres que ceux qui sont énumérés dans l'affidavit ou ceux qui sont ou étaient en la possession, sous l'autorité ou sous la garde d'une autre partie à l'action;
f) une mention précisant les dates, heures et lieux où les documents visés au sous-alinéa a)(i) peuvent être examinés.
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Analysis and Decision
[11] The standard of review to be applied on an appeal of a prothonotary's decision has been defined in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.), where MacGuigan J.A. held at page 463 that:
. . . discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(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) they raise questions vital to the final issue of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
[12] The Prothonotary ordered the defendant, McIntosh, to file a further and better affidavit of documents. The defendant, McIntosh's filed affidavit of documents stated that he did not have any documents to list under Schedules 1, 3 or 4 and included a blanket statement claiming privilege over documents in Schedule 2. He submitted that he has no more documents to file.
[13] Relying on the transcript of McIntosh's cross-examination conducted May 17, 2000, the plaintiff points to notes of conversations that were prepared by the defendant, McIntosh, and his secretary. Those notes were made when a lawyer from the plaintiff's firm telephoned the defendant, McIntosh, to make inquiries about the action before the Court. As a result of these conversations, the defendant, McIntosh, made a motion to the Court to have the plaintiff's law firm removed as counsel for the plaintiff. In this motion, the defendant, McIntosh, filed an affidavit and was cross-examined on the affidavit. The plaintiff has included part of the defendant's cross-examination from the earlier motion in its motion record for this appeal. The transcript of this cross-examination reveals the existence of the notes made by the defendant, McIntosh, and his secretary.
[14] The plaintiff states that the notes should have been included under Schedule 1 or Schedule 2 of McIntosh's affidavit of documents and that their absence is proof of the affidavit's insufficiency. The plaintiff submits that therefore, the Prothonotary was correct in ordering the defendant, McIntosh, to provide the further and better affidavit of documents.
[15] The defendant, McIntosh, submits that the transcript of his cross-examination from the earlier motion was not before the Prothonotary for the motion for the October 28, 2003 order and that the notes are not relevant to the action.
[16] The plaintiff in turn submits that since the Prothonotary was the case management Prothonotary, the Prothonotary would have knowledge of the whole file, including the transcript of the cross-examination on the affidavit.
[17] I cannot determine from the order or other material filed before me whether the Prothonotary had the transcript of the cross-examination present at the hearing of the motion for the October 28, 2003 order.
[18] This Court has decided that prior orders and motion records, but not affidavits from prior motions, can be made part of an application record (see Merck Frosst Canada Inc. et. al. v. Canada (Minister of National Health and Welfare) (1994), 88 F.T.R. 31 (T.D.)). If the affidavit cannot be part of the record, neither can the cross-examination on that affidavit. It would seem to me that the same principle would apply to a motion record.
[19] Even if the deference that is outlined in Sawridge Indian Band et. al. v. Canada (2001), 283 N.R. 107 (F.C.A.) is afforded to the Prothonotary based on her case management of this matter, it does not appear that she could properly make reference to the cross-examination transcript from the earlier motion. This would seem logical as the parties should have notice of what the issues are on the motion and what materials will be used by the Prothonotary so as to be able to fairly and properly address the matter before the Court.
[20] Accordingly, I am of the view that the plaintiff cannot make reference to the cross-examination transcript on this appeal in an effort to buttress its view that McIntosh's affidavit of documents is insufficient. That being the case and since there was no evidence before the Prothonotary of the notes by the defendant, McIntosh, and his secretary, the Prothonotary was not justified in ordering a further and better affidavit of documents by the defendant, McIntosh. As the record stood before the Prothonotary, the only evidence was that the defendant, McIntosh, did not have any documents to list in his affidavit of documents. I am therefore of the opinion that the Prothonotary's decision was clearly wrong in that the Prothonotary's exercise of discretion was based upon a misapprehension of the facts. I must therefore exercise my discretion de novo and find that the order of the Prothonotary must be set aside.
[21] The motion of the defendant, McIntosh, is therefore allowed.
[22] The defendant, McIntosh, shall have his costs of the motion.
ORDER
[23] IT IS ORDERED that:
1. The motion of the defendant, McIntosh, is allowed and the order of the Prothonotary dated October 28, 2003 is set aside as it applies to the defendant, McIntosh.
2. The defendant, McIntosh, shall have his costs of the motion.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
June 9, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-633-92
STYLE OF CAUSE: SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
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LANDMARK CINEMAS OF CANADA LTD.,
BRIAN MCINTOSH, et al
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: December 15, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: June 9, 2004
APPEARANCES:
Charles Beall
FOR PLAINTIFF
Mark Lindskoog
FOR DEFENDANT, Landmark
Cinemas of Canada Ltd.
George Akers, Q.C.
FOR DEFENDANT,
Brian McIntosh
SOLICITORS OF RECORD:
Gowling LaFleur Henderson LLP
Toronto, Ontario
FOR PLAINTIFF
Nicholl and Akers
Edmonton, Alberta
FOR DEFENDANT, Landmark
Cinemas of Canada Ltd.
Nicholl and Akers
Edmonton, Alberta
FOR DEFENDANT,
Brian McIntosh
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