Date: 20100427
Docket: T-1647-07
Citation: 2010 FC 455
BETWEEN:
T-MOBILE
USA, INC.
Plaintiff
and
TELUS CORPORATION, TELE-MOBILE
COMPANY,
TELUS COMMUNICATIONS COMPANY
AND TELUS COMMUNICATIONS INC.
Defendants
REASONS FOR
ORDER
GIBSON D.J.
Introduction
[1]
These
reasons follow the hearing of an appeal by motion under Rule 51 of the Federal
Courts Rules
from an Order of Madam Prothonotary Milczynski dated the 15th of
April, 2010, insofar as the Order dismissed the Plaintiff’s application seeking
that the representative of the Defendants, Mr. J. J. Hochrein, be required to
re-attend on his examination for discovery on behalf of the Defendants and
answer questions 187, 210, 212, 213, 217, 218, 219, 225, 226, 227, 229, 234, 238,
270, 273 and 276, (the “discovery questions at issue”) as posed to him on
behalf of the Plaintiff on his examination for discovery on the 11th
and 12th of August, 2009.
[2]
In
the written representations on behalf of the Plaintiff, the issues on the motion
were described in the following terms: first, what is the appropriate standard
of review on an appeal from the order at issue; second, are the discovery
questions at issue vital to the final issue in the case; third, if so, are the
discovery questions at issue relevant to an unadmitted allegation of fact in
the pleading filed by the Defendants or by the Plaintiff; and finally, if the
discovery questions at issue are not vital to the final issue in the case, is
the order appealed from clearly wrong in the sense that the exercise of
discretion by the Prothonotary in declining to order the questions answered, is
based on a wrong principle.
Background
[3]
The
original statement of claim herein was filed on the 11th of
September, 2007. The third amended statement of claim was received by the
Court on the 9th of February, 2009. Prothonotary Milczynski has, in
effect, been case-managing this proceeding since October, 2007, notwithstanding
the fact that she was only formally appointed as case-manager on the 23rd
of March, 2009. Prothonotary Milczynski has been active in her role as
case-manager. She has heard and decided two pleadings motions and, prior to
the 17th of February last, she had presided over three
case-management conferences. Prothonotary Milczynski presided over the motion
giving rise to the Order here under appeal for almost a full day on the 17th
of February, 2010. Thus, it is fair to say that Prothonotary Milczynski is
much more familiar with this action than is this Deputy Judge.
Analysis, Deference and
the Standard of Review
[4]
In Apotex
Inc. v. The Wellcome Foundation Limited et. al.,
Justice Evans of the Court wrote:
Despite
the apparently mandatory nature of Rule 240 of the Federal Courts Rules, 1998,
[the Rule dealing with the scope of examination for discovery,] ordering
questions to be answered on discovery involves an exercise of discretion. A
party is not entitled to discovery merely by showing that the answer might be
relevant to prove material facts. The generality and breadth of a question,
the extent of the burden that would be imposed by requiring an answer, the
degree of relevance of the requested information and the availability of other
potential evidence of the facts in question, are among the factors to be
considered in the exercise of discretion. …
As
the case management prothonotary of this complex and protracted litigation,
including an extensive discovery involving thousands of questions, Prothonotary
Lafrenière was best placed to determine whether, in all the circumstances, it
was appropriate to require the question in dispute to be answered.
Accordingly, despite the absence of reasons (and we note here that the
Prothonotary was asked to rule on 225 questions in this and related motions), the
Prothonotary’s decision is entitled to considerable deference: …and should be
set aside on appeal only if it was based on an erroneous principle of law or
was plainly wrong on the facts. Justice Hugessen regarded the broad and
general nature of the question as a sufficient basis for upholding the exercise
of the Prothonotary’s discretion. [Citations omitted, underlining added.]
I am satisfied that much the same might be said
here. In particular, Justice Evans’ reference to the fact that Justice
Hugessen regarded the broad and general nature of the question there at issue
as a sufficient basis for upholding the exercise of the Prothonotary’s
discretion is equally applicable here. The discovery questions here at issue, taken
generally, can be described as indeed broad and general in their nature.
[5]
In Astrazeneca
Canada Inc. et. al. v. Apotex Inc.,
Justice Hughes restated the position taken by Justice Evans in the following
terms:
Prothonotaries
of this Court are burdened, to a large extent, with motions seeking to compel
answers to questions put on discovery. Often hundreds of questions must be
considered. Hours and often days are spent on such motions. It appears that
in many cases the parties and counsel have lost sight of the real purpose of
discovery, which is directed to what a party truly requires for trial. They
should not slip into the “autopsy” form of discovery nor consider
discovery to be an end in itself.
A
determination made by a Prothonotary following this arduous process ought not
to be disturbed unless a clear error as to law or as to the facts has been
made, or the matter is vital to an issue for trial. Where there has been an
exercise of discretion, such as weighing relevance against onerousness, that
discretion should not be disturbed. The process is not endless. The parties
should move expeditiously to trial.
Once again, I am satisfied that the same might
be said here. Counsel for the Plaintiff Applicant failed to satisfy me that
there was here a clear error as to law or as to the facts, or that the answers
that he urged be required are vital to an issue for trial. Rather, the
discovery questions at issue demonstrate all of the characteristics fundamental
to a discovery in the nature of a “fishing expedition”.
Conclusion
[6]
For
the foregoing brief reasons, the Plaintiff’s motion will be dismissed.
Costs
[7]
I
am satisfied that it is appropriate that costs should follow the event.
Counsel for the Defendants urged that costs be fixed at $1,500 and be paid to
the Defendants forthwith and in any event of the cause. My order will provide
that the Defendants are entitled to their costs in the sum of $1,500, all
inclusive, payable in any event of the cause, but not forthwith.
“Frederick
E. Gibson”
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