724763 Ontario Inc. v. Robin Burns Enterprises Ltd., docket T-360-98

Date: 19991001

Docket: T-360-98

MONTREAL, QUEBEC, THIS 1^st DAY OF OCTOBER 1999

PRESENT: RICHARD MORNEAU, ESQ., PROTHONOTARY

BETWEEN:

     724763 ONTARIO INC.

     EUREKA MARKETING CONCEPTS INC.

     Plaintiffs

     AND

     ROBIN BURNS ENTERPRISES LTD.

     I-TECH SPORT PRODUCTS INC.

     Defendants

     _____________________________________________________

BETWEEN:      I-TECH SPORT PRODUCTS INC.

     Plaintiff by counterclaim

     AND

     724763 ONTARIO INC.

    

     Defendant by counterclaim

     _____________________________________________________

     Motion on behalf of the Defendants for:

1.      An Order directing the Plaintiffs to provide Replies to those questions objected to during the examination for discovery of Mr. Paul Regan held on April 27, 1999, within such delay as will be fixed by this Court.

2.      Such further and other Order as this Court may deem just.

3.      The whole with costs against the Plaintiffs.

     [Rules 240, 241 and 244 of the Federal Court Rules, 1998]

     REASONS FOR ORDER AND ORDER

RICHARD MORNEAU, ESQ., PROTHONOTARY:

[1]      This motion pertains in reality to whether or not some of the Plaintiffs' documents can be withheld from disclosure to the Defendants pursuant to a solicitor-client privilege. There does not seem to be much dispute between counsel that to claim solicitor-client privilege, each document or communication must be examined to determine whether it meets the criteria for privilege:

(a)      a communication between solicitor and client,

(b)      which entails the seeking or giving of legal advice, and

(c)      which is intended to be confidential by the parties.

(Solosky v. The Queen, (1980) 1 S.C.R. 821 at 837)

[2]      With these criteria in mind, I have examined each outstanding document and the results of my examination are as follows.

[3]      With respect to the only document in dispute under Schedule B, to wit a letter dated October 19, 1989 from David H. Tsubouchi to Paul Regan, I find this letter not subject to a solicitor-client privilege as it does not entail the giving of a legal advice. Therefore, subject to any appeal from the instant order, the said letter shall be disclosed by the Plaintiffs to the Defendants at the end of the appeal period applicable to the instant order.

[4]      As to the documents sought under Schedule C, they consist of seven (7) documents in total. Except for one document, to wit a letter dated October 30, 1987 from Mirek Waraksa to Robert Mowforth, I am of the view that they are all subject to a valid solicitor-client privilege.

[5]      As to question 421, upon continuation of his examination for discovery the Defendants' representative shall answer the question whether he ever received for approval a copy of the fourteen (14) page response to the first office action of May 3, 1988 and at the same time he shall indicate whether he ever authorized the filing of this response to anyone.

[6]      Consequently, in due course, the following documents shall be disclosed by the Plaintiffs: a letter dated October 19, 1989 from David H. Tsubouchi to Paul Regan, and a letter dated October 30, 1987 from Mirek Waraksa to Robert Mowforth.

[7]      All other documents arising from Schedule C shall not be disclosed.

[8]      However, despite my conclusion regarding the disclosure of two documents, all documents contained in the sealed envelope provided to the Court shall be put back in the same envelope and retained by the Registry until the expiration of the time for filing a notice of appeal or until the appeal is disposed of, as the case may be, whereupon they will be returned to Plaintiffs' counsel without further order of the Court.

[9]      Costs shall be in the cause.

Richard Morneau

     Prothonotary

     FEDERAL COURT OF CANADA

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:

STYLE OF CAUSE:

T-360-98

724763 ONTARIO INC.

EUREKA MARKETING CONCEPTS INC.

     Plaintiffs

AND

ROBIN BURNS ENTERPRISES LTD.

I-TECH SPORT PRODUCTS INC.

     Defendants

__________________________________________

BETWEEN:

I-TECH SPORT PRODUCTS INC.

     Plaintiff by counterclaim

AND

724763 ONTARIO INC.

     Defendant by counterclaim

PLACE OF HEARING:Montreal, Quebec

DATE OF HEARING:September 22, 1999

REASONS FOR ORDER BY RICHARD MORNEAU, ESQ., PROTHONOTARY

DATE OF REASONS FOR ORDER:October 1^st, 1999

APPEARANCES:

Mr. Gregory Piasetzki

for the Plaintiffs

Mr. Richard Uditsky

for the Defendants

SOLICITORS OF RECORD:

Piasetzki & Nenniger Mr. Gregory Piasetzki Toronto, Ontario

for the Plaintiffs

Mendelsohn Rosentzveig Shacter Mr. Richard Uditsky Montreal, Québec

for the Defendants