Montague Industries Inc. v. Canmec Ltée., 2001 FCT 72

Date: 20010214

Docket: T-169-99

Neutral Citation: 2001 FCT 72

     MONTAGUE INDUSTRIES INC.

                                     Plaintiff

     - and -

     CANMEC LTÉE., CANMEC LA BAIE INC.,

     CANMEC CHICOUTIMI INC., INDUSTRIES COUTURE LTD.,

     GERALD BRISSON, LAURENT MIMEAULT, AND HERBERT BROWN

                                     Defendants

AND BETWEEN:

     CANMEC LTÉE., CANMEC INC., CANMEC LA BAIE INC.,

     CANMEC CHICOUTIMI INC., GERALD BRISSON, LAURENT MIMEAULT

                                 Plaintiffs by Counterclaim

     - and -

     MONTAGUE INDUSTRIES INC. AND JEAN-PAUL PARADIS

                             Defendants by Counterclaim

     REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]      These reasons arise out of an application by Montague Industries Inc. (the "plaintiff") and the plaintiff's co-defendant by counterclaim, Jean-Paul Paradis, that is in the nature of an appeal from a decision of Madam Prothonotary Aronovitch (the "prothonotary"), dated the 6^th of July 2000, in which the prothonotary granted in part two motions that were before her on behalf of the plaintiff, with costs of those motions in the cause, and dismissed a cross-motion on behalf of the defendants that was before her, with costs to the plaintiff fixed in the amount of $1,500.

THE MATTERS BEFORE THE PROTHONOTARY AND THE PROTHONOTARY'S ORDER

(1)      The Motions Before the Prothonotary

[2]      In the first motion on behalf of the plaintiff and its co-defendant by counterclaim, the applicants sought:

1.      An Order striking the Affidavit of Mr. Gerald Marquis sworn March 25, 1999;

2.      An Order requiring Mr. Gerald Marquis to re-attend for cross-examination at the expense of the Defendants and to produce at the cross-examination the following documents:

a)      the microfiche provided to Canmec by former Montague employee Patrick Doyle, which microfiche was in the possession of Canmec prior to and during some or all of the morning of February 11, 1999

b)      copies of microfiche of pulpwood grinder engineering drawings which, from time to time, were used by Canmec since February 11, 1999.

3.      An Order requiring Mr. Gerald Marquis to re-attend for cross-examination at the expense of the Defendants and to advise of the Defendants best information of the current whereabouts of the documents referred to in paragraph 2 herein if they are not within the possession, power and/or control, and how the Defendants lost possession, power or control over these documents.

4.      Costs of this motion, on a solicitor and client scale.

5.      Such other relief as this Honourable Court deems just.

[3]      In the second motion that was before the prothonotary on behalf of the plaintiff and its co-defendant by counterclaim, the applicants sought:

1.      An Order that the Notice of Motion filed by Montague Industries Inc. on June 12, 2000 requesting amongst other things, an Order requiring Mr. Gerald Marquis to re-attend for cross-examination, be heard with this motion.

2.      An Order striking the Affidavit of Laurent Mimeault sworn March 4, 1999, March 25, 1999 and March 31, 1999;

3.      An Order requiring Laurent Mimeault to re-attend for cross-examination at the expense of the Defendants and to produce at the cross-examination the following documents:

a)      the microfiche provided to Canmec by former Montague employee Patrick Doyle, which microfiche was in the possession of Canmec prior to and during some or all of the morning of February 11, 1999

b)      copies of microfiche of pulpwood grinder engineering drawings which, from time to time, were used by Canmec since February 11, 1999

4.      An Order requiring Laurent Mimeault to re-attend for cross-examination at the expense of the Defendants and to advise of the Defendants best information of the current whereabouts of the documents referred to in paragraph 3 herein if they are not within the possession, power and/or control, and how the Defendants lost possession, power or control over these documents.

5.      An Order granting leave of the Court directing the Administrator to issue a subpoena for the attendance of Daniel Bouchard and Alain Delisle for oral examination in Chicoutimi, Quebec and to produce or advise of the whereabouts of any microfiche provided to Canmec by former Montague employee Patrick Doyle, which microfiche was in the possession of Canmec prior to and during some or all of the morning of February 11, 1999 and copies of microfiche of pulpwood grinder engineering drawings which, from time to time, were used by Canmec since February 11, 1999.

6.      Costs of this motion , on a solicitor and client scale.

7.      Such other relief as this Honourable Court deems just.

[4]      The motion that was before the prothonotary on behalf of the defendants is not relevant for the purposes of these reasons since no appeal from the prothonotary's order in respect of that motion was before the Court.

(2)      The Endorsement Incorporated in the Prothonotary's Order

[5]      The prothonotary's order that was under appeal before me set forth the following endorsement:

ENDORSEMENT

While there is no doubt that the Doyle microfiche is relevant to the main action, the plaintiff has not demonstrated its relevance to the Compel or Conflict motions in respect of which they have leave to cross-examine in that, "its existence or non-existence will not assist in determining whether the remedy sought will be granted" (Merck Frosst Canada Inc. et al v. Minister of Health et al. (1997) 80 C.P.R. (3d) 550, at page 5).

I conclude therefore that the "microfiche" is not compellable in the context of these cross-examinations. This finding is without prejudice to the right of the plaintiff to seek leave to file additional affidavits and further cross-examine Messrs. Mimeault and Marquis for the purposes of the return of the Anton Pillar.

Questions going to credibility, need not be relevant. The defendants argue that there is no basis on which to test the credibility of the affiants on conflict as the facts alleged by them have essentially been admitted in affidavits filed in the context of the Compel and Conflict motions.

I do not have these affidavits before me and cannot judge the contiguity of the allegations on one hand and the admissions on the other. I leave it to the motions' judge or prothonotary who will be called upon to hear the Compel or Conflict motions, to determine the credibility issue if any, in the context of the relevant motion. Accordingly, I would allow questions relating to the Doyle microfiche to be put to the affiants as going to credibility on the following basis.

Questions with respect to the microfiche, as they are being asked solely to impugn credibility, may be posed by reference to any fact or information including the affidavits of Messrs. Paradis and Audet relied upon in the context of this motion. The plaintiff did not require leave to either produce them in the context of this motion [the Compel and Conflict motion]. The plaintiff did not require leave to either produce them in the context of this motion or to put them to the affiants for the purpose of impugning their credibility. However, this merely gives a right to pose questions but no further right to require the production of documents or seek further inquiries to be made. A party seeking to impugn credibility in a cross-examination by asking questions that are not relevant to the matters at issue in the affidavit, cannot conduct a trial within a trial.

...

As the plaintiff was successful in part only, costs of the plaintiff's motions shall be in the cause. I do not accept that the submissions or conduct of the defendants in respect of these motions is so egregious as to warrant solicitor-client costs. As to the defendants' cross-motion, the basis on which they seek solicitor-costs cannot be sustained. The plaintiff having been successful in that regard, costs of the cross-motion are awarded to the plaintiff to be fixed by reference to the mid-point of Column III of Tariff B.

(3)      The Substance of the Prothonotary's Order

[6]      As earlier indicated, the prothonotary granted the plaintiff's two motions in part only. She ordered that cross-examinations of Messrs. Mimeault and Marquis should resume for the strict and narrow purpose for which they were ordered by the Court, that the plaintiff could put questions to Messrs. Mimeault and Marquis to challenge their credibility on the basis stated in the above-quoted endorsement and that costs of the plaintiff's motions would be in the cause.

[7]      As previously indicated, a cross-motion by the defendants was dismissed with fixed costs awarded to the plaintiff but, once again, the portion of the prothonotary's order relating to the cross-motion and related costs was not before me.

[8]      Implicitly, the prothonotary dismissed the requests to strike an affidavit of Gerald Marquis and affidavits of Laurent Mimeault, the request that both Mr. Marquis and Mr. Mimeault produce certain microfiche and the request that both Mr. Marquis and Mr. Mimeault advise as to the current whereabouts of those microfiche.

[9]      It is notable that neither in her endorsement nor in the substance of her order did the prothonotary deal with the requested relief directing that a subpoena issue for the attendance of two persons for oral examination in Chicoutimi, Québec and directing those persons also to produce the relevant microfiche.

[10]      Finally, Prothonotary Aronovitch granted costs on the plaintiff's motions in the cause rather than on the basis proposed in the motions.

THE MOTION BEFORE THE COURT

[11]      On the motion before me, the plaintiff and its co-defendant by counterclaim sought the following relief:

1.      An Order reversing paragraphs 1, 2, 3, and 4 of Order of Madam Prothonotary Roza Aronovitch dated July 6, 2000 to the extent the said Order places limitations upon and does not grant the relief requested in the Notices of Motion filed by Montague Industries Inc. on June 12, 2000 and June 14, 2000.

2.      An Order reversing paragraphs 6 of Order of Madam Prothonotary Roza Aronovitch dated July 6, 2000 to the extent that it does not grant costs of the Defendants' cross-motion on a solicitor-client scale to the Plaintiff.

...

5.      An Order on costs of a solicitor and client scale in respect of the motion filed by the Defendants on June 27, 2000.

6.      An Order that the material referred to in the "the following documentary evidence is presented" portion of this motion be collected and presented to Court from the existing Court file and not be re-filed by the Plaintiff.

7.      An Order that the material referred to in the "the following documentary evidence is presented" portion of this motion not be served on the Defendants herein.

Paragraphs 3 and 4 which have been omitted from the foregoing recitation of the reliefs sought repeat the reliefs sought in the two plaintiff's motions that were before the prothonotary and that are quoted earlier in these reasons. They are simply elaborations of paragraphs 1 and 2. In essence, the applicants/appellants sought all of the relief that they were unsuccessful in obtaining from Prothonotary Aronovitch, costs on a solicitor and client scale on the defendants' cross-motion that was dismissed by the prothonotary, and costs of the motion/appeal before me on a solicitor and client scale.

[12]      Paragraphs 6 and 7 of the requested reliefs are purely technical in nature and were granted by oral direction of this judge given before any material was filed on behalf of the applicants/appellants and the defendants on the appeal before me.

[13]      While I have already quoted more than enough of the material that forms a background to these reasons, I repeat in an annex to these reasons the grounds for the motion/appeal verbatim as they appear in the motion itself. I do so because this action, taken as a whole, is quite complex, particularly in a procedural sense, and I am not satisfied that I could do justice to the plaintiff and its co-defendant by counterclaim in attempting to summarize the grounds.

THE ISSUES

[14]      In summary form, the issues argued before the Court were first, standard of review on an appeal such as this, second, whether against that standard the prothonotary committed reviewable error that would justify my intervention, and finally, costs of the appeal.

ANALYSIS

1)      Standard of Review

[15]      On the question of standard of review as well as on the issue of reviewable error, the submissions to the Court divided themselves into three separate subject matter areas: first, failure to order production of the microfiche and related relief; second, failure to order issuance of a subpoena; and third, failure to grant costs on the plaintiff's and its co-defendant by counterclaim's motions to them, or at least to the plaintiff, on the scale requested. On the first and third elements, the starting point as to standard of review is Canada v. Aqua-Gem Investments Ltd.¹ where Mr. Justice MacGuigan wrote at page 463:

...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.

[16]      Counsel for the plaintiff and its co-defendant by counterclaim added an element to the foregoing by reference to Barrigar & Oyen v. Citipage Ltd.² where Mr. Justice Strayer wrote at page 4:

I am not unaware of a statement by my brother MacGuigan J.A. in the recent decision of this Court in Canada v. Aqua-Gem Investments Ltd. ... . At p. 6 of the majority reasons in Aqua-Gem ..., Mr. Justice MacGuigan stated:

"The motions judge having exercised his discretion, this Court cannot intervene in the absence of an error of law." By itself and without further explanation it might be suggested that such a test would represent a departure from this Court's earlier jurisprudence cited supra. However, later in those reasons, MacGuigan J.A. also referred to a "slightly more complete

formulation" of the test as set out by Mr. Justice Urie in C.N.R. v. "Norango" (The), ... at p. 268. In that decision, Urie J.A. reaffirmed the earlier test, supra, which included as a basis for appellate interference "because ...the decision would result in some injustice being done." Accordingly, I do not consider that the Aqua-Gem decision alters in any way the accepted jurisprudence of the Court upon which I rely. [citations omitted]

2)      Reviewable Error

[17]      As noted earlier, the learned prothonotary, in her endorsement, wrote:

While there is no doubt that the Doyle microfiche is relevant to the main action, the plaintiff has not demonstrated its relevance to the Compel or Conflict motions in respect of which they have leave to cross-examine in that, "its existence or non-existence will not assist in determining whether the remedy sought will be granted"... .

I conclude therefore that the "microfiche" is not compellable in the context of these cross-examinations. [citation omitted]

[18]      Counsel for the applicants/appellants urged that the foregoing conclusion on the part of the prothonotary amounted to an error of law and would result in an injustice being done to the plaintiff and that I should therefore reconsider the request for an order compelling production of the microfiche de novo. As a basis for the allegation of error of law, counsel cited R. v. Mohan³ where Mr. Justice Sopinka wrote at page 20:

Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decided by a judge as a question of law.

It is worthy of note that Mr. Justice Sopinka was there speaking of evidence and more particularly, expert evidence, before a Court and not of relevance in the context of a cross-examination.

[19]      I feel compelled to weigh the submissions on behalf of the applicants/appellants with some degree of caution. If every discretionary decision of a prothonotary, or even most such decisions, were determined to fall within the criteria for review de novo on an appeal to a judge, the following concern of Richard J., as he then was, in Scott Steel Ltd. v. Alarissa (The)⁴, would be realized:

Otherwise, the hearing before the Prothonotary would be nothing more than an expensive preliminary rest stop along the procedural route to a motions judge.

[20]      Against the foregoing, I am influenced by the fact that, by order dated the 10^th of February, 1999, my colleague Mr. Justice Denault, in an Anton Piller Order required the defendants, to deliver into the interim custody of a designated solicitor all "Designated Material" which is defined in that order to include microfiche located at any place of business of the corporate defendants at which the Anton Piller Order was executed. Presumably, the microfiche here in question fell within the ambit of that order, which has been executed at the premises of the corporate defendants, and despite that fact the relevant microfiche have not been delivered up. The foregoing begs the question then of what useful purpose a further order for delivery up of the microfiche in question might be expected to serve.⁵

[21]      In the result then, even on a review de novo of the aspect of the order of the prothonotary that is before me relating to production of microfiche, and certainly where deference is due to that order, and I find that on the facts before me, deference is due on this aspect, I find no basis to intervene.

[22]      I turn to the issue of what would appear to be a failure of the prothonotary, disclosed on the face of her order, to deal with the requested relief regarding the issuance of a subpoena.

[23]      Federal Court Rule 397(1)(b)⁶ provides as follows:

397. (1) Within 10 days after the making of an order, or within such other time as the Court may allow, a party may serve and file a notice of motion to request that the Court, as constituted at the time the order was made, reconsider its terms on the ground that

...

(b) a matter that should have been dealt with has been overlooked or accidentally omitted. [emphasis added]

397. (1) Dans les 10 jours après qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour, une partie peut signifier et déposer un avis de requête demandant à la Cour qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en examiner de nouveau les termes, mais seulement pour l'une ou l'autre des raisons suivantes :

...

b) une question qui aurait dû être traitée a été oubliée ou omise involontairement. [je souligne]

[24]      Given the lack of any reference to the requested relief of issuance of a subpoena in the endorsement to her order and in the substance of her order itself, it would seem reasonable to suspect, particularly in circumstances where the motions before her resulting in the order at issue were as complex as they were here, that the failure to even mention that requested relief, other than by way of recital, might have been nothing more than an accidental omission or something that was overlooked by the learned prothonotary. No relief was sought by the plaintiff and its co-defendant by counterclaim under Rule 397. But that alternative method of seeking relief remains open if I were to order an extension of time to seek the relief. I will so order. I advised counsel before me that I was not prepared to deal with this aspect of the matter on appeal in the absence of it first being raised under Rule 397, a much more cost and time efficient method of seeking relief and one that, if unsuccessful, might reasonably lead to the possibility of an appeal from a further order.

[25]      Finally, on the question of the costs aspects of the learned prothonotary's order, I am satisfied that those aspects are purely discretionary and that, under the extended Aqua-Gem test referred to above, there is no basis on which I ought reasonably to review those aspects of the order de novo. I find no basis whatsoever to grant relief to the applicants/appellants on this aspect of their application.

CONCLUSION

[26]      In the result, an order will go extending the time for the plaintiff or the plaintiff and his co-defendant by counterclaim to apply under Rule 397 with respect to the "subpoena" aspect of the relief sought before the learned prothonotary for ten (10) days from the date of my order.

[27]      In all other respects, this application/appeal will be dismissed.

COSTS

[28]      Given that the defendants have been largely successful in this matter, costs of this application will go in their favour. I will fix those costs at $1,500.

                             ______________________

                             J.F.C.C.

Ottawa, Ontario

February 14, 2001

---

ANNEX

(See paragraph [13] of the reasons]

Background: Relevance

1.      For the purposes of this motion/appeal, it is not in dispute that:

(i)      a set of microfiche (between 100 and 200 in number) which are the subject of the present motion, display the Plaintiff's engineering drawings;

(ii)      the present lawsuit relates to the copyright in these very engineering drawings;

(iii)      the microfiche themselves are also the property of the Plaintiff;

(iv)      the microfiche were stolen from the Plaintiff when Patrick Doyle left the employ of the Plaintiff and went to work for the Defendant Canmec in 1995;

2.      It is the uncontradicted evidence of Gilles Savard, a former Canmec employee and engineer that during the execution of the Anton Pillar Order on February 11, 1999, these microfiche were secretly removed from the offices of the Defendant.

3.      For the purposes of this motion/appeal, it is also not in dispute that:

(i)      the firm of Heenan Blaikie (or its predecessor Aubut Chabot), at one time represented one or more of the Defendants (or their predecessors);

(ii)      the Defendants have alleged that there is an overlap between the subject matter of the previous files handled by Heenan Blaikie for the Defendants, and the subject matter of the present litigation (allegedly giving rise to a conflict of interest);

(iii)      to establish this alleged conflict, the Defendants rely on the affidavits of Gerald Marquis sworn March 25, 1999, and Laurent Mimeault sworn March 4, 1999;

(iv)      the Defendants also rely on three files of Heenan Blaikie in support of this allegation;

(v)      the three files of Heenan Blaikie that the Defendants rely upon to support their allegation of conflict of interest include:

a)      a variety of engineering drawings,

b)      technical specifications regarding various machinery;

c)      various transactional documents related to engineering drawings and other matters.

(vi)      the Plaintiff disputes that there is any overlap between the subject matter of any of the previous Heenan Blaikie files and the subject matter of the present case;

4.      In order to rebut the allegation of conflict of interest, it is imperative that the Plaintiff prove, on a balance of probabilities, that there is no overlap between:

(i)      the subject matter (including various engineering drawings) of the previous files worked on by Heenan Blaikie on the one hand, and

(ii)      the engineering drawings displayed on the Patrick Doyle microfiche, on the other.

5.      Absent such a comparison, the Plaintiff will be unduly limited in its ability to challenge the Defendants' allegations of conflict of interest.

6.      Without production of the microfiche at the cross-examination of Gerald Marquis and Laurent Mimeault, the Plaintiff will be unable to effectively cross-examine these witnesses, and will be unable to ask the Defendants' witnesses relevant questions such as:

(i)      "Does the engineering drawing shown in this microfiche [the microfiche being shown to the witness] relate in any way to the subject matter of any previous Heenan Blaikie mandate?"

(ii)      "Does the engineering drawing shown in this microfiche [the microfiche being shown to the witness] relate in any way to the engineering drawings located in the Heenan Blaikie files [already produced for this comparison]?"

(iii)      "Was the engineering drawing shown in the microfiche [the microfiche being shown to the witness] ever shown to any lawyer or other individual at Heenan Blaikie?"

(iv)      "Were these microfiche [the microfiche being shown to the witness] ever shown to any lawyer or other individual at Heenan Blaikie?"

7.      It was to enable the asking of relevant questions that the Directions to Attend required the witnesses to produce at the cross-examination, the microfiche in issue.

8.      The Patrick Doyle microfiche are required at the cross-examinations of Gerald Marquis and Laurent Mimeault so that the Plaintiff may ask questions of these witnesses to establish that there is no overlap between the engineering drawings depicted on the Patrick Doyle microfiche and, for example, the engineering drawings of the previous files handled by Heenan Blaikie for the various Defendants.

Background: Credibility

9.      The production of the microfiche and the questions in relation thereto will unequivocally prove the falsehood of the testimony given by Laurent Mimeault and Gerald Marquis.

10.      The uncontradicted evidence of the Plaintiff that the Patrick Doyle microfiche exist, were not seized during the execution of the Anton Pillar Order and were secretly removed from Canmec during the execution of the Anton Pillar Order.

11.      During the cross-examination of Laurent Mimeault on May 11, 1999, Laurent Mimeault falsely claimed that the Patrick Doyle microfiche were seized by the Plaintiff during the execution of the Anton Pillar Order.

12.      During the cross-examination of Gerald Marquis' on June 11, 1999, counsel for the Defendants indicated that the Patrick Doyle microfiche `do not exist'.

background: Subpoena

13.      During the execution of the Anton Pillar Order Daniel Bouchard was in charge of the microfiche for the pulpwood grinder business. Prior to Daniel Bouchard having this responsibility, it was the task of Alain Delisle. Both Daniel Bouchard and Alain Delisle were present during the execution of the Anton Pillar Order.

14.      The uncontradicted affidavit of Gilles Savard sworn June 9, 2000 is that he was advised by Daniel Bouchard that Daniel Bouchard during the execution of the Anton Pillar Order on February 11, 1999, secretly removed the microfiche from the offices of the Defendant.

15.      Although being asked (not under oath), Daniel Bouchard and Alain Delisle have not denied the existence of the microfiche or that these microfiche were secretly removed from the offices of the Defendant by Daniel Bouchard during the execution of the Anton Pillar Order.

Background: Previous Orders of this Court

16.      By Order of the Honourable Mr. Justice Denault dated February 10, 1999 and the Honourable Madame Justice Tremblay-Lamer dated February 23, 1999, the Defendants continue to have an obligation to advise as to the whereabouts of the Patrick Doyle microfiche and to produce the microfiche to the Plaintiff.

17.      The Patrick Doyle microfiche are the physical property of the Plaintiff in the unlawful possession of the Defendants contrary to Orders of this Court dated February 10, 1999 and February 23, 1999.

Background: Costs

18.      The written representations of the Defendants dated June 27, 2000 falsely accuse the Plaintiff and Plaintiff counsel of `abusing the process of this Court', acting `vexatious', and deliberately delaying the proceeding.

Basis for the Appeal

19.      The Prothonotary erred in fact and in law in concluding that the Patrick Doyle microfiche are not relevant to the Compel and Conflict motions.

20.      The Prothonotary erred in fact or in law in concluding that the Plaintiff had not demonstrate the relevance of the Patrick Doyle microfiche to the Compel and Conflict motions.

21.      The Prothonotary erred in fact and in law in failing to properly assess the Plaintiff and Defendants' evidence that the Patrick Doyle microfiche is relevant to the Compel and Conflict motions.

22.      The Prothonotary erred in law in applying the test set out in Merck Frost Canada Inc. et al. v. Minister of Health (1997) 80 C.P.R. (3d) 550.

23.      The Prothonotary erred in fact and in law in concluding that in relation to the impugning of the credibility of Messrs. Marquis and Mimeault, the microfiche need not be produced.

24.      The Prothonotary erred in fact and in law in concluding that the Patrick Doyle microfiche is not compellable in the context of the cross-examination of Laurent Mimeault and Gerald Marquis for the Compel and Conflict motions.

25.      The Prothonotary erred in law in failing to properly consider each of the requests for relief made in the Notices of Motion filed June 12, 2000, namely:

(i)      the request for subpoenas of former Canmec employees Daniel Bouchard and Alain Delisle was not considered and was not adjudicated upon;

(ii)      the request for subpoenas of Daniel Bouchard and Alain Delisle was not merely for an Order "directing a subpoena for the attendance of Daniel Bouchard and Alain Delisle for oral examination in Chicoutimi, Quebec to produce certain microfiche described therein", but rather, the request had two parts, namely

(a)      directing the Administrator to issue a subpoena for the attendance of Daniel Bouchard and Alain Delisle for oral examination in Chicoutimi, Quebec; and

(b)      to produce any microfiche provided by Canmec by former Montague employee Patrick Doyle, which microfiche was in the possession of Canmec prior to and during some or all of the morning of February 11, 1999 and copies of microfiche of pulpwood grinder engineering drawings which, from time to time, were used by Canmec since February 11, 1999.

26.      The Prothonotary erred in fact and in law in failing to consider that the granting of the subpoenas of former Canmec employees Daniel Bouchard and Alain Delisle would show, amongst other things that the witnesses put forward by the Defendants, Gerald Marquis and Laurent Mimeault are wholly lacking in credibility.

27.      The Prothonotary erred by refusing to hear argument from the Plaintiff in respect of the request for subpoena's of former Canmec employees Daniel Bouchard and Alain Delisle.

28.      The Prothonotary erred in fact and in law in failing to properly consider the Orders of the Honourable Mr. Justice Denault dated February 10, 1999 and the Honourable Madame Justice Tremblay-Lamer dated February 23, 1999.

29.      The Prothonotary erred in fact and in law in failing to strike the affidavits of Laurent Mimeault and Gerald Marquis.

30.      The Prothonotary erred in failing to awarding the Plaintiff costs on a solicitor and client basis or costs in any event for the Plaintiff motions dated June 12 and 14, 2000 and for costs on a solicitor and client basis for the cross-motion of the Defendant dated June 27, 2000 such that:

a.      the Prothonotary erred by not properly assessing the submissions and conduct of the Defendants in finding that the Defendants submissions and conduct were not so egregious as to warrant solicitor-client costs;

b.      the Prothonotary erred by not properly assessing the amount of work unnecessarily required of the Plaintiff in responding to the false allegations of the Defendants as against the Plaintiff and Plaintiff counsel.

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:      T-169-99

STYLE OF CAUSE:      MONTAGUE INDUSTRIES INC. v. CANMEC LTÉE ET AL.

PLACE OF HEARING:      OTTAWA

DATE OF HEARING:      FEBRUARY 8, 2001

REASONS FOR ORDER OF GIBSON, J.

DATED:      FEBRUARY 14, 2001

APPEARANCES:

SCOTT MILLER          FOR PLAINTIFF

PHILIP KERR

MICHAEL HEBERT          FOR DEFENDANTS

PAUL MARSHALL

LOUIS CHARETTE          FOR HEENAN BLAIKIE AUBUS

SOLICITORS OF RECORD:

MARUSYK MILLER & SWAIN          FOR PLAINTIFF

OTTAWA

BEAMENT GREEN          FOR DEFENDANT

OTTAWA

LAVERY, DE BILLY          FOR HEENAN BLAIKIE

MONTRÉAL          AUBUS

__________________

¹      [1993] 2 F.C. 425 (C.A.).

²      (1993), 49 C.P.R. (3d) 1 (F.C.A.).

³      [1994] 2 S.C.R. 9.

⁴      (1997), 125 F.T.R. 284 (F.C.T.D.).

⁵      See paragraph 16 of the annex to these reasons. By paragraph 2 of an order of Madame Justice Tremblay-Lamer herein dated the 23^rd of February, 1999, it would appear that the Anton Piller Order issued by Mr. Justice Denault remains in full force and effect.

⁶      SOR/98-106.