Jodoin v. Yenzer, docket T-3055-93

     T-3055-93

Between:

     RAYMOND H. JODOIN, IAN McLEAN, TRANSMISSION

     ENERGY AERIAL MAINTENANCE (TEAM) INC. and

     CANADA POWER HOLDING (CPH) LTD.,

     Plaintiffs,

     - and -

     SCOTT H. YENZER,

     Defendant,

     - and -

     SCOTT H. YENZER and

     HAVERFIELD CANADA ENGINEERING LTD.,

     Plaintiffs by Counterclaim,

     - and -

     RAYMOND H. JODOIN, IAN McLEAN, TRANSMISSION

     ENERGY AERIAL MAINTENANCE (TEAM) INC. and

     CANADA POWER HOLDING (CPH) LTD.,

     Defendants by Counterclaim.

     REASONS FOR ORDER

JOHN A. HARGRAVE

PROTHONOTARY

     These reasons arise out of the Plaintiffs' Rule 324 motion in writing to require that the Defendant, Scott Yenzer, make available for inspection the documents listed as relevant and producible in Schedule I of his Affidavit of Documents.

     The present action was begun in December of 1993. A defence and counterclaim were filed in June of 1994. The defence to counterclaim followed, also in June of 1994. The parties filed affidavits of documents between early September and mid-November of 1994: in particular the affidavit of Scott Yenzer, on his own behalf and on behalf of his co-Plaintiff by counterclaim, Haverfield Canada Engineering Ltd., was filed on September 30, 1994.

     Schedule I of Mr. Yenzer's Affidavit of Documents lists eighteen items which range from a copy of the first two pages of Mr. Yenzer's passport through a group of videotapes, briefs, depositions, files and binders, about 185 items in total, not counting various catchall categories, including pleadings, proceedings and documents produced in three sets of court proceedings where the documents are not separately set out. Indeed, many of the 185 items specifically set out in Schedule I consist not of single or several page items, but rather of manuals, briefs and depositions. It is no wonder that the first letter from counsel for the Plaintiffs to counsel for the Defendant, as to inspection of documents, March 16, 1995, asks for an estimate of the cost of copying and also inquires as to how many boxes the documents occupy. To that March 16, 1995, inquiry, counsel for the Defendant responded, in short order, to advise that the documents were in the possession of his client and his American counsel, but that the request for inspection had been forwarded to them. Counsel for the Plaintiffs again wrote on May 27, 1995, as to inspection of documents and on receiving no response, wrote on June 13, 1995, to ask for inspection of documents, failing which the Plaintiffs would be setting down an application to compel production. This triggered a quick response to the effect that the request had been forwarded to the Defendant and that counsel would respond as soon as instructions were received.

     It is apparent from the material attached to the Plaintiffs' affidavit in support of the motion that some settlement negotiations intervened, but came to nothing. On July 17, 1996, counsel for the Plaintiffs again wrote to counsel for the Defendant requesting inspection of documents, noting that the Plaintiffs might have to bring an application to compel production and suggested discoveries in Edmonton in November of 1996. Again there was a quick response from counsel for the Defendant by letter of July 24, 1996, to say they were seeking instructions from Mr. Yenzer and would advise as to his position as soon as they were able. The Plaintiff, Raymond Jodoin, in his affidavit in support of this motion sworn December 6, 1996, sets out that there has been no further correspondence from counsel for the Defendant since the letter of July 24, 1996.

     In response to the motion, the solicitor for the Defendant, who sets out that he is primarily responsible for the conduct of the action, has filed his own affidavit. It sets out that his law firm assembled all of the relevant documents in possession both of Mr. Yenzer and of the Plaintiff by counterclaim, Haverfield Canada Engineering Ltd., but that he forwarded to Mr. Yenzer all of the documents that were eventually listed as items 1 through 15 of the 18 categories of documents listed in Schedule I of the Defendant's Affidavit of Documents. He retained only copies of three Canadian patents, documents 8, 9 and 10 of Schedule I. He then goes on to say that he was advised by Mr. Yenzer that the documents which he had forwarded to Mr. Yenzer, August 24, 1994, were subsequently lost or misplaced. To further explain, the solicitor for the Defendant attaches to his affidavit an affidavit of Mr. Yenzer sworn December 15, 1995, in some American proceedings. Now the best that one can make from the affidavit which, as I say, is in an unrelated American proceeding, is that the pleadings, briefs and 17 depositions, which are listed as item 14 in the Defendant's Affidavit of Documents (likely a substantial mass of material) together with some unspecified documents went missing in November of 1994, during a move between offices in Miami. In the result, Mr. Yenzer deposes that he was not in possession of the documents, referred to in item 14 of Schedule I of his Affidavit of Documents in this present action, as of December, 1995.

     There is nothing current and firsthand as to the whereabouts of the balance of the 17 categories of documents, that is documents other than the three of which counsel for the Defendants retained copies and the 32 documents lost by the Defendant which together make up item 14 of the Affidavit of Documents. The Defendant does not set out what further effort has been made, if any, either to locate the documents or to replace them, many of which appear to be documents which might be found elsewhere, for example various publications, papers, newspaper articles, manuals, videotape presentations and court documents in other proceedings. It would seem that the Defendant and the Plaintiff by counterclaim do not take this Federal Court litigation seriously. This is not good enough.

     The Defendant will have forty-five days within which to provide full inspection of documents to the Plaintiff, failing which the defence of Scott H. Yenzer and the counterclaim of Scott H. Yenzer and Haverfield Canada Engineering Ltd. shall be deemed struck out.

                             (Sgd.) "John A. Hargrave"

                                 Prothonotary

February 24, 1997

Vancouver, British Columbia