Nash v. Sanjel Cementers Ltd., docket T-2827-96

Date: 19990909

Docket: T-2827-96

BETWEEN:

     LYLE NASH,

     Plaintiff,

     - and -

     SANJEL CEMENTERS LTD.,

     Defendant.

     REASONS FOR ORDER

MR. JOHN A. HARGRAVE,

PROTHONOTARY     

THE MOTIONS

[1]      The motions of the Plaintiff and of the Defendant are in a sense mirror images. The Plaintiff wishes examinations for discovery to be held back to back on the same day, or on consecutive days, but in any event with no appreciable time between the first discovery, that of the Defendant"s Mr. Thompson with cross-examination by the Plaintiff and the second discovery, that of the Plaintiff, Mr. Nash, with cross-examination by the Defendant. The Defendant, in its motion, wishes either to have the patent agent who is familiar with the file present at the examinations or, in the alternative, a break following the discovery of the Defendant so that counsel may obtain a transcript and seek professional advice from the patent agent before the Defendant"s examination of the Plaintiff takes place.

[2]      There was a preliminary procedural issue. The Plaintiff"s initial motion record and case book miss the critical issue, the involvement of the patent agent. The Plaintiff"s second motion record, containing a response to the Defendant"s motion and the Plaintiff"s second case book, contain some relevant material that perhaps ought to have been argued initially. But that is one of the difficulties with motions that approach the same problem from different view points. In this instance it prejudiced no one.

SCHEDULING OF DISCOVERIES

[3]      The scheduling of discoveries and the debating over who may reasonably attend is an area which the Chief Justice of British Columbia, the Honourable Allan McEachern, dealt with, in part, in Boxer v. Reesor (1983), 43 B.C.L.R. 352. In commenting upon the scheduling of examinations for discovery the Chief Justice said "except in rare circumstances a Court should not be expected to intrude into such matters which more properly fall within the responsibility of counsel.". This a comment that perhaps also applies, within reason, to the issue of who may attend on an examination for discovery. In certain circumstances, an expert may attend to advise on a discovery, but there are other categories of people who often, by agreement or by order, may attend to facilitate a smooth running and efficient discovery. If one tries to draw a line as to who might properly attend, on which side of the line do article students, legal assistants, various helpful professionals and patent agents fall? All such persons may know more about the file than does counsel, who would otherwise have to spend many costly and un-necessary hours with the file in order to gain adequate familiarity.

[4]      In any event, this is not an easy area with which to deal. All that one can do is exercise discretion as to the Court"s process, consider the issue of who may attend and then direct or order what seems most just and most fair. It is not an easy task to so intrude upon the affairs of counsel: to all concerned it is an embarrassment. This task is exacerbated by the procedural dispute as to whether a party might file last minute argument or perhaps re-argument, or perhaps new material under the guise of a reply. Moreover, when neither motion is, contrary to Rule 363, supported by one whit of affidavit material (and by not much law) decreeing schedules and attendance rosters for discovery is a damnably difficult and unrewarding task. Yet counsel for the Plaintiff refers to Rule 54. Litigants are allowed, by new Rule 54, to seek procedural directions. Directions do not deal with an issue, but rather with the conduct of a proceeding or a step in a proceeding: see the comment of Roger Hughes, Q.C. on Rule 54 in 1998-99 Annotated Federal Court Act and Rules , Butterworths, 1948. Here the questions are mixed. There is, on the one hand, the procedural question as to the practice of back to back discovery versus spaced discovery so that counsel might obtain a transcript and then seek advice from a patent agent knowledgeable about the file, all clearly within the scope of a direction under Rule 54. On the other hand, there is the issue of who might attend the discovery: in a specially managed case such as the present there must be jurisdiction by implication to solve an issue arising out of the Court"s rules as to discovery.

SOME ASSUMED FACTS

[5]      I turn first to what facts I have been able to determine, not from any affidavit material, but rather from the pleadings and from the unsworn submissions, written and oral, of counsel.

[6]      As I understand it this action is a dispute over a pressure sensing guage used in well-drilling which measures pressure not by direct measurement of the liquid under pressure but by interposing a piston between the liquid and the measuring mechanism of the guage in order to prevent contamination and plugging up of the guage. The Defendant says the Plaintiff"s guage operates on a principle which has always been known and used, particularly when the fluid was drilling mud which would contaminate and plug up a conventional pressure guage and that such a device was obvious and non-inventive. One is reminded of the operation of various pressure indicators used at one time and perhaps still used today in order to measure operating combustion pressures and high fuel injection pressures on heavy duty marine diesels, in which the pressure to be measured operated on one end of a piston.

[7]      The background to the present dispute is that counsel for the Defendant attended at a scheduled examination for discovery with the Defendant"s witness, Mr. Thompson, the person to be examined. Counsel also brought along Ms. Caldwell, a long-standing patent agent to the Defendant and an employee of Defendant"s counsel"s law firm.

[8]      Plaintiff"s counsel objected to the presence of Ms. Caldwell on the basis that she was not a lawyer. Defendant"s counsel submits the case involves technical problems and difficulties upon which he needs Ms. Caldwell"s advice and further that such technical advice would shorten the discovery, for Ms. Caldwell is apparently familiar with the Defendant"s business and with the Defendant"s file.

[9]      Counsel for the Plaintiff submits, again without any affidavit material, that while experts are allowed to attend on a discovery, Ms. Caldwell has not been qualified as an expert and is not an expert "... in the technical aspects of field cementing and fracing pumping unit pressure sensors and regulators." (here counsel goes beyond the patent, for the Plaintiff"s patented device has nothing to do with regulating pressures and everything to do with sensing pressures). As a result counsel for the Plaintiff was not prepared to examine the Defendant"s Mr. Thompson.

[10]      Counsel for the Defendant suggested, as a compromise, that there be an adjournment between the discovery of Mr. Thompson and the discovery of the Plaintiff, Mr. Nash, so Defendant"s counsel might obtain a discovery transcript and in due course the advice of Ms. Caldwell as patent agent and as his employee, on the basis of that transcript. This suggestion was rejected. Thus the present impass.

ANALYSIS

Motion for back to back discoveries

[11]      Dealing first with the Plaintiff"s motion for a direction under Rule 54 for consecutive or back to back discovery with no break between, counsel for the Plaintiff submits, although without any authority, that there is a certain norm: "... once a party has been examined, it is trite procedure to state that the other party is expected to be examined immediately following.". This perhaps, if it is the norm in some areas of practice, it is in many areas of litigation practice a custom more honoured in the breach than the observance.

[12]      At best counsel for the Plaintiff puts in case law to the effect that the rules governing discovery are designed to secure a just, speedy, inexpensive and expeditious discovery process, citing B.C. Ferry Corporation v. The Royal Vancouver (1995), 94 F.T.R. 265 at 268, there referring to Hanke v. Francis (1982), 37 B.C.L.R. 108 at 110 and Trusthouse Forte California Inc. v. Gateway Soap & Chemical Co. (1995), 63 C.P.R. (3d) 346. From here counsel for the Plaintiff moves to the concept that by wishing to examine the Plaintiff at a later date the Defendant is seeking a second discovery, which is granted only in unusual circumstances. This is a non-sequitur and a non-starter for there has not yet been a first discovery.

[13]      By Rule 236(2) a defendant may have discovery at any time after the Statement of Claim is filed by merely serving a Rule 91(1) direction to attend. There is no hampering of this discretion to set discovery anywhere in the Rules, expect to the extent that if the privilege of setting discovery is abused, that may be remedied, including by costs. The Defendant is not bound by any convention or Rule to hold discoveries back to back. Within reason and keeping in mind the convenience of the witness and of opposing counsel, the Defendant may schedule discovery as it wishes.

Special Adviser on Discoveries

[14]      The Defendant"s characterization of the situation and law is that in the case of technical matters and this includes circumstances in which technical difficulties are involved, counsel may bring a special adviser to an examination for discovery in order to provide assistance. The grounds for allowing such an adviser are that it will assist in shortening the length of the examination thus insuring a process that is as efficient as is possible, counsel for the Defendant here referring to Tridici v. M.E.P.C. Canadian Properties Ltd. (1978), 8 C.P.C. 212, as set out in the headnote and at page 213 (Ont.S.C.), International Chemalloy Corporation v. Friedman (1983), 33 C.P.C. 264 at 269 (Ont. Master), Leesona Corporation v. Montreal Throwing Co. Ltd. (1975), 19 C.P.R. (2d) 72 at 73-74 (F.C.T.D.) and Green v. The Queen (1979), 107 D.L.R. (3d) 690 at 691-692 (F.C.T.D.). The concept is perhaps best put in Tridici (supra) at page 213:

Where neither the plaintiff or his counsel may be assumed to have any training in the matter to be examined, such presence of an expert may be helpful and may shorten the discovery.      [Page 213]

All of these cases refer to the special adviser as an expert. Here I do not have sufficient affidavit material to determine whether or not Ms. Caldwell is an expert in the sense that a court might call her to assist or to give opinion as in the traditional sense of an expert. Certainly a person with no professional qualifications in the subject matter in question would not, in most fields of endeavour, be considered by the court as an expert qualified to give evidence at trial: see for example Cooper & Beatty v. Alpha Graphics Ltd. (1980), 49 C.P.R. (2d) 145 (F.C.T.D.):

The evidence of the patent agent tendered in respect of the ultimate issue is rejected in that his expertise does not lie in the area of the subject matter of the patent in issue. The expertise of the patent agent lies in the construction of patents.      (Headnote, page 146)

However, in International Chemalloy (supra) the plaintiff was held entitled to have an accountant present at the discovery in order to assist, not with accounting, but with keeping track of and advising counsel as to the documents, with which he was familiar. This is summed up by Master Sandler at page 269:

Because of the complexity of the issues in the present case and the knowledge and expertise of Mr. Holmes gained through his exposure to the issues raised in this connection, he will be of great assistance to plaintiff"s counsel. I am satisfied his presence will ensure that the plaintiff obtains the best discovery to which it is entitled and thus his presence will secure the ends of justice.

[15]      Counsel for the Plaintiff says he relies on International Chemalloy merely for the concept that there should be a technical element requiring an expert"s assistance before the expert is allowed to attend the discovery. Counsel also notes that the expert must be qualified, and here Plaintiff"s counsel refers to Cooper & Beatty (supra) at page 146 for the concept that the evidence of a patent agent will be rejected where his or her expertise does not lie in the area of the subject matter of the patent. The difficulty that I have with this application of Cooper & Beatty is that the expert evidence which the defendant sought to obtain from the patent agent was in the context of a testimony at trial, not in the context of technical advice to counsel at a discovery as is the case here.

[16]      The present situation is certainly, if not similar to, at least analogous to the situation in International Chemalloy, where a professional accountant attended to assist counsel with document management. International Chemalloy, a decision of an Ontario Master, is not binding, yet this Court has also, on occasion, allowed the attendance of an expert to assist on discovery without apparently going into any analysis as to whether that person would in fact qualify as an expert at trial: see for example Green v. The Queen (supra) in which one of the defendants, against whom the action had been dismissed, was allowed to stay on and advise in the capacity of an expert assistant, despite the fact that he might and indeed would likely be a witness at trial. From the context of Green v. The Queen I take it that the expert assistant allowed to attend on discovery was not someone with the qualifications of a free-standing expert. It would thus seem that the Federal Court looks upon an expert, in the context of a free-standing expert at a trial, and an expert assistant, in the context of attending to assist on discovery, as two different things. The Ontario courts in some instances have taken a similar approach. For example, in Merchants Bank of Canada v. Ketchum (1895), 16 P.R. 366 (Ont. H.C.) the former partner of a defendant was allowed to attend as an adviser to the examining counsel for the plaintiff.

[17]      Similarly, in Smith v. Walnut Dairy Limited and Brown (1945), O.W.N. 801, the High Court of Justice upheld a Master of that Court who had confirmed that an insurance adjuster, whom counsel wished to have present to assist and instruct him, might attend on discovery.

[18]      This line of cases seems to differentiate between what I have called a free-standing expert at trial and an expert assistant on discovery. I believe that they are two different things and might only be, coincidentally, the same thing, if the expert attending on discovery also intended to be qualified as an expert at trial. Moreover, as pointed out by the editors of Sopinka on the Law of Evidence in Canada, Butterworths, 1999, at page 617, the definition of an expert is continually in a state of flux for there are many topics on which a court will admit both lay and expert opinion evidence.

[19]      Counsel for the Plaintiff submits that it is for the Defendant to qualify Ms. Caldwell as some form of an expert. There is no affidavit evidence as to what was or was not done in this regard. It also leaves the question of how Ms. Caldwell ought to have been qualified and the answer there seems to be that she was, in fact, qualified as a representative of and the long-standing patent agent to the Defendant, not only in matters relating to this particular patent litigation which has been going on since 1996, but in other patent matters. As such she is said to be of substantial assistance to Defendant"s counsel who, while experienced counsel, has not been on this particular file for any length of time.

[20]      Counsel for the Plaintiff says that the inclusion in the discovery process of the patent agent, Ms. Caldwell, or alternatively the holding of discoveries at separate times in order to allow Ms. Caldwell to peruse transcript and advise, is somehow unfair and indeed prejudicial, yet counsel provided neither evidence nor particulars of the prejudice during argument. Counsel for the Plaintiff also suggests that Ms. Caldwell might consider the discovery transcripts at the conclusion of the discovery process and advise at that point.

[21]      In contrast, counsel for the Defendant at least gave arguable examples of how the total exclusion of Ms. Caldwell from the ongoing discovery process would prejudice the Plaintiff. Indeed, where a discovery can be made more efficient, more useful and more thorough by contemporaneously drawing on the knowledge of someone familiar with the intricacies of a matter, that knowledge ought to be available at a time when it is useful.

[22]      The Defendant succeeds in having Ms. Caldwell attend on discovery. Yet, as I have already indicated, the Defendant"s other alternative, of a break between discoveries so Ms. Caldwell might consider transcript, offered as a compromise to the Plaintiff, is also reasonable and proper.

CONCLUSION

[23]      In contrast to a trial, discovery is a private procedure. Yet one must keep in mind that the rules and procedures applying to discovery are designed to provide an efficient and effective procedure. In addition, an end of discovery is to avoid any ambush at trial. Finally, the discovery process must be fair to both sides.

[24]      To accomplish these ends, counsel may wish to bring to the discovery a resource person, a specialist, or an expert assistant in some relevant area. The specialty may be that of a free-standing expert of the sort that counsel might call at trial, but in other instances the specialist may be a document manager, a technical expert, or merely someone familiar with the file and who, by applying their knowledge, yet without intruding, is both essential to counsel and to making the discovery process run more smoothly. Such an expect assistant, be it an articled student, a legal assistant, a technician, or someone valuable because of particular skill or knowledge, cannot help but contribute to a just, speedy and expeditious discovery, a discovery which will secure the ends of justice. Moreover the use of such an expert assistant will undoubtedly save the client money.

[25]      The Defendant may have either remedy, be it the attendance of Ms. Caldwell during back to back discoveries, or discovery of Plaintiff at a convenient time chosen by the Defendant with a view to allowing the Defendant"s patent agent an opportunity to review transcript of the earlier discovery and advise counsel. These remedies are mutually exclusive.

[26]      Costs shall be to the Defendant in any event.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

September 9, 1999

Vancouver, British Columbia

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS ON THE RECORD

COURT FILE NO.:      T-2827-96

STYLE OF CAUSE:      LYLE NASH

     v.

     SANJEL CEMENTERS LTD.

PLACE OF HEARING:      VANCOUVER, B.C.

DATE OF HEARING:      September 8, 1999

REASONS FOR ORDER OF      MR. JOHN A. HARGRAVE, PROTHONOTARY

DATED:      September 9, 1999

APPEARANCES:

Mr. R. Donick      for the Plaintiff

Mr. T. R. Kerr      for the Defendant

SOLICITORS OF RECORD:

Whitt & Co.

Calgary, AB      for the Plaintiff

Bennett, Jones

Calgary, AB      for the Defendant