Docket: T-1876-14
Citation:
2015 FC 1404
Ottawa, Ontario, December 21, 2015
PRESENT: The Honourable Madam Justice Strickland
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BETWEEN:
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STRATHEARN
CONSULTING INC.
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Plaintiff
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and
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BARBRA ANN KIRSHENBLATT, KIRKOR ARCHITECTS AND PLANNERS, STEVEN
KIRSHENBLATT, RKS BUILDING GROUP LTD., ERIC KIRSHENBLATT A.K.A. RICKY
KIRSHENBLATT, KING MASONRY YARD LTD., FOREST HILL REAL ESTATE INC., JULIE
GOFMAN, JOHN DOE, AND JANE DOE
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Defendants
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and
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BARBRA ANN
KIRSHENBLATT
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Third Party
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ORDER AND REASONS
[1]
This is an appeal brought by motion of the
Appellant herein, Strathearn Consulting Inc. (“Appellant”), pursuant to Rule 51
of the Federal Courts Rules, SOR/98-106 (“Rules”), of an order of
Prothonotary Tabib, as Case Management Judge, dated October 16, 2015. The
Prothonotary granted a motion of the Respondent, Kirkor Architects and Planners
(“Respondent”), seeking an order, pursuant to Rule 249 of the Rules, for
inspection of property.
[2]
For the reasons stated below, the appeal is
dismissed.
Background
[3]
The Appellant claims that it is the owner of the
copyright in the design of a renovation to a residential property located at 33
Strathearn Road, Toronto, Ontario (“33 Strathearn”). On August 28, 2014, the
Appellant commenced an action, pursuant to the Copyright Act, RSC 1985,
c C-42 alleging infringement of that copyright interest by the Respondent,
among other defendants. The Respondent was the architect retained to design
and draft architectural plans for a residential property built at 21 Vesta
Drive, Toronto, Ontario (“21 Vesta”), which the Appellant claims is an
infringing copy of 33 Strathearn. The Strathearn property is owned by a
private third party, not named in the present proceeding.
[4]
Parties have exchanged affidavits of documents,
but no examinations for discovery have yet been conducted.
[5]
In February 2015, the Respondent brought a
motion for inspection of 33 Strathearn. The supporting affidavit filed and
sworn by counsel for the Respondent stated that the Respondent had retained an
expert, Carson Woods Architects & Planners (“Woods”), to inspect the two
homes in order to provide its opinion on the allegations related to the
exterior architectural features of 33 Strathearn as compared to 21 Vesta. The
affiant also stated that he had been advised by Woods that it required a
close-up view of the property in order to carry out a meaningful inspection
because 33 Strathearn is gated off from the street and substantially set back
from the curb.
[6]
Prothonotary Tabib granted the Respondent’s
motion and issued an order for inspection under Rule 249 (“Inspection Order” or
“Order”).
Issue
[7]
This appeal raises the issue of whether the
Prothonotary erred in granting the Respondent’s motion for inspection,
including the awarding of costs.
Standard of Review
[8]
The parties agree that in an appeal from a
prothonotary’s order, this Court should conduct a de novo assessment
only where:
i.
the order is 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
ii.
the prothonotary improperly exercised his or her
discretion on a question vital to the final issue of the case (Apotex Inc v
Eli Lilly Canada Inc, 2013 FCA 45 at para 4 [Apotex FCA 2013];
Merck & Co Inc v Apotex Inc, 2003 FCA 488 at para 19; AstraZeneca
Canada Inc v Apotex Inc, 2008 FC 1301 at para 21).
Decision of the Prothonotary
[9]
The Inspection Order states that:
1. The owners of the property municipally known as 33 Strathearn
Road in Toronto, Ontario, shall permit access to the said property by the
Defendants’ experts and representatives for the purpose of carrying out a
visual inspection of the said property, at a time agreeable to all parties and
to the occupants of the property.
2. The inspection shall take no more than one half day, and shall
be limited to the exterior of the house.
3. The inspector(s) may record photographs or video, but shall
avoid any photography or videography of the interior of the house.
4. Use of a ladder or stepladder during the inspection shall be
permitted provided that no damage is likely to be caused to the house or the
property grounds by the use of the ladder or stepladder, and provided that
direct views inside the house are avoided when using the ladder.
5. Costs in the amount of $1,750.00 shall be payable by the
Plaintiff to the Defendant/Third Party Kirkor Architects and Planners.
[10]
The Prothonotary stated that “it was fair that there be an inspection of this house at
some point” noting that the Appellant (Plaintiff in the action) alleged
that the design of 33 Strathearn was copied through visits to the property.
She also stated that “there was a cogent argument that,
because the house is an adaptation of a previously built, original house, it is
not unreasonable that a site visit would be better to inform as to what is
original, what is new, and how the two work together than would a series of
photographs”.
[11]
The Prothonotary found that the inspection in
this case was not unduly invasive as it was comprised of a walking tour of the
exterior, restricted to half a day and that neither samples nor destruction of
the property would be required. She also considered the fact that the
Respondent requested the inspection prior to discoveries and found that it was
neither the Court’s nor the Respondent’s (Defendant in the action)
contemplation that there would be a need for a site visit after discoveries.
Further, as to timing, the Prothonotary found that the Respondent’s choice
about when they wanted to hold the inspection was not unreasonable.
[12]
As to her award of costs, the Prothonotary
stated that she ordered costs because they were requested and because the
Appellant conceded that the winner in the motion should have its costs. Were
it not for the Appellant’s concession, she would have awarded no costs, as a
motion was required in any event. She went on to say:
The Plaintiff is also correct that the
motion record was deficient: particularly, the parameters of the desired
inspection were not expressed and there was no undertaking or suggestion that
this should be the only inspection that would be made. A motion would have had
to be brought, but it might not have been disputed if the record had been more
fulsome and if all the parties had picked up the phone, assumed good faith on
the part of one another, and had discussions in which each was willing to
understand and address the concerns of the other side. This is why, had the
Plaintiff not conceded that the winner should have its costs, I would have
awarded no costs.
Relevant Legislation
Federal Courts Rules, SOR/98-106
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Order for
inspection
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Ordonnance
d’examen
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249. (1) On
motion, where the Court is satisfied that it is necessary or expedient for
the purpose of obtaining information or evidence in full, the Court may
order, in respect of any property that is the subject-matter of an action or
as to which a question may arise therein, that
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249. (1) La
Cour peut, sur requête, si elle l’estime nécessaire ou opportun pour obtenir
des renseignements complets ou une preuve complète, ordonner à l’égard des biens
qui font l’objet de l’action ou au sujet desquels une question peut y être
soulevée :
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(a) a sample
be taken of the property;
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a) que des
échantillons de ces biens soient prélevés;
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(b) an
inspection be made of the property; or
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b) que
l’examen de ces biens soit effectué;
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(c) an
experiment be tried on or with the property.
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c) que des
expériences soient effectuées sur ces biens ou à l’aide de ceux-ci.
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Entry on
land or building
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Autorisation
d’entrée
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(2) An order
made under subsection (1) may authorize a person to enter any land or
building where the property is located for the purpose of enabling the order
to be carried out.
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(2) Dans
l’ordonnance rendue en vertu du paragraphe (1), la Cour peut, pour en
permettre l’exécution, autoriser une personne à entrer sur le terrain ou dans
le bâtiment où se trouvent les biens.
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Personal
service on non-party
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Signification
à personne
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(3) Where a
motion is brought under subsection (1) for an order in respect of property
that is in the possession of a person who is not a party to the action, that
person shall be personally served with notice of the motion.
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(3)
Lorsqu’une requête présentée en vue de l’obtention d’une ordonnance aux
termes du paragraphe (1) vise des biens qui sont en la possession d’une
personne qui n’est pas une partie à l’action, l’avis de requête est signifié
à personne à cette dernière.
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Submissions
of the Parties
The Appellant’s Position
[13]
The Appellant submits that the Prothonotary’s
order should be reviewed de novo and set aside because it is clearly wrong.
This is because the Inspection Order was made in the absence of a proper
evidentiary foundation, the inspection motion was premature, and, the
Prothonotary erred in the exercise of her discretion in awarding costs.
[14]
As to Rule 249, the words “necessary or expedient” are intended to provide broad
discretion to the Court. However, the facts of a particular case are important
and the Court must balance all applicable factors which are relevant to the
interests of the parties, the property owners and the trier of fact.
[15]
The Appellant submits that in granting the Inspection
Order on the basis of an evidentiary record which she recognized was “deficient”, the Prothonotary’s exercise of discretion
was based on a wrong principle and in the absence of a suitable factual basis.
[16]
In that regard, the only evidence brought by the
Respondent was a solicitor’s affidavit advising that an expert had been
retained and containing the hearsay statement of an unnamed individual of the
retained firm. No qualifications of the expert were provided nor any
explanation given as to what was hoped to be gained by an inspection at this
early stage. This precluded testing of the expert on cross examination. Thus,
in granting the Inspection Order, the Prothonotary relied on vague, inadequate
and improper hearsay evidence and proceeded in the absence of evidence from the
Respondent’s expert that the inspection was necessary or expedient as required
by Rule 249.
[17]
The Appellant also submits that an order for
inspection represents a serious intrusion on the rights of the property owner,
particularly where the property is privately owned (Apotex FCA 2013 at
para 14). Inspection of third-party private property is an extraordinary and
intrusive remedy and should be granted only based on evidence allowing the
trier-of-fact to be satisfied that an inspection would serve a useful,
non-speculative purpose. By granting the Order without supporting evidence,
the Prothonotary acted contrary to the principles set out in Rule 249, the
jurisprudence and was clearly wrong.
[18]
The Appellant further submits that the motion
for inspection was premature. In concluding that the inspection was justified
at a pre-discovery stage of the proceeding because there should be an
inspection “at some time”, the Prothonotary’s
exercise of her discretion in granting the Order was based on a wrong
principle.
[19]
The Court has recognized that information that
might be available through an inspection can usually be readily obtained
through discovery (Apotex FCA 2013 at para 15). The Respondent has not
demonstrated that an inspection is the only means of obtaining the information
or that it is necessary at this stage “for any
immediate purpose” (PJ Wallbank Manufacturing Co Limited v Kuhlman
Corporation, [1981] 1 FC 645 at 146 (FCA) [Wallbank]; Posi-Slope
Enterprises Inc v Sibo Inc, [1984] FCJ no 507 at 141 (FCA)). The
Appellant’s affidavit of documents includes numerous photographs and
architectural plans about which further details will likely be revealed during
discoveries. The Respondent’s expert has not stated that these are
insufficient such that an inspection is necessary or expedient.
[20]
Finally, the Appellant submits that the
Prothonotary has opened the door to the possibility of a multiplicity of
inspections by the numerous Defendants in this case, some of which are
currently unknown. To the extent that an inspection may be necessary or
expedient, it should occur only after discoveries to prevent multiple
inspections being sought. Thus, the granting of the Order at the pre-discovery
stage does not fulfil the objective of proportionality, is likely to result in
prejudice to the Appellant and is clearly wrong.
[21]
On the costs award, the Appellant submits that
it was clearly wrong for the Prothonotary to award costs in the face of the
Respondent’s deficient evidentiary record in the motion. The Respondent took
no steps to cure those deficiencies despite knowing of the Appellant’s
objections.
The Respondent’s Position
[22]
The Respondent submits that in appeals from a
case management judge, he or she should be given latitude to manage cases and
the Court should only interfere in the clearest cases of misuse of judicial
discretion (Sawridge Band v R, 2001 FCA 338; Novopharm Ltd v Eli
Lilly Canada Inc, 2008 FCA 287 at para 59 [Elli Lilly FCA 2008]). Litigants
face a heavy burden when seeking to overturn an interlocutory case management
order (Eli Lilly FCA 2008 at para 28; Bard Peripheral Vascular Inc v
WL Gore & Associates Inc, 2015 FC 1176 at para 13; Apotex Inc v
Sanofi-Aventis Canada Inc, 2011 FC 52 at para 15; Apotex FCA 2013 at
para 5). Prothonotaries are to be afforded ample scope in the exercise of their
discretion when managing cases (J2 Global Communications Inc v Protus IP Solutions
Inc, 2009 FCA 41 at para 16).
[23]
The motion for inspection was not vital to the
final issue. The Prothonotary’s Order also was not based on a misapprehension
of the facts, nor was this alleged by the Appellant.
[24]
The Respondent submits that, contrary to the
Appellant’s submissions, the Prothonotary was entitled to rely on the motion
materials, the pleadings, the submissions of counsel at the motion and her
familiarity with the history and details of the case, not just the Respondent’s
written submissions. As seen from her reasons, the Order was a matter of
common sense based on the fact that copyright infringement was alleged.
[25]
The motion record provided the ground for
requesting the inspection and in oral submissions, the Respondent further
explained the relevance of an inspection, its proposed length and identified the
expert retained to conduct the inspection. Pursuant to Rule 81(1), affidavits
on motions, other than summary judgment or trial, can include statements as to
the deponent’s belief. Failure to provide the best evidence may go to weight,
but the Respondent’s affidavit evidence in the motion was not improper hearsay
as the Appellant submits. This is not a fundamental error of law or principle.
[26]
Further, in the Respondent’s view, the
Prothonotary was able to assess whether an inspection would be necessary or
expedient in this case without evidence from the Respondent’s expert and
explained in her reasons how an inspection would serve a useful purpose that
would assist the trier of fact. The Appellant’s contention that there was
insufficient evidence provided to the Prothonotary is unfounded and, in any
event, it is not an error of law or principle to grant an order on the merits
where it would advance an understanding of the issues in the circumstances.
[27]
The Respondent submits that the Prothonotary
properly applied Rule 249. There is no principle mandating that discoveries
take place prior to an inspection. The Prothonotary exercised her discretion
in determining what was appropriate in the circumstances and specifically
addressed timing in her reasons. This furthers the purpose of the Rules in
securing the just, most expeditious and least expensive determination in
accordance with Rule 3.
[28]
An order for inspection is not by its nature
extraordinary or intrusive. The term “necessary”
in Rule 249 means that there is a reasonable possibility that the proposed test
or inspection would reveal something useful for the trier of fact (Apotex
FCA 2013 at paras 8 and 10). The words “necessary
or expedient” broadens the discretion available to the Court. The
Prothonotary balanced the interests of those involved: the parties, the owners
of the property and the trier of fact, ultimately concluding that the level of
intrusion or invasiveness was relatively low. Her Order also ensures that
there will be no serious intrusion or irreparable harm for the owners of 33
Strathearn resulting from the inspection. The requirements of Rule 249 have
been met.
[29]
The Respondent also submits that the
Prothonotary exercised the discretion given to the Court by Rule 400(1) in
awarding costs in the motion and explained her reasons. She did not rely on
any wrong principle in awarding costs and, therefore, her discretionary
decision should not be decided de novo.
Analysis
[30]
The Appellant’s position is almost entirely
premised on its view that the Prothonotary erred in granting the Inspection Order
on the basis of a deficient evidentiary record. In that regard, I would first
note that the Prothonotary’s comment as to the deficient motion record was made
in the context of her award for costs. She explained that the Rules require
that a motion be brought when an order for an inspection is sought thus, to
obtain the order, a motion was unavoidable. She also stated that, had the
Respondent’s motion record been more fulsome and had the parties been willing
to discuss the matter in good faith, then it was possible that the motion may
not have been contested. That was why, but for the Appellant’s concession that
the winner should have its costs, the Prothonotary would have made no order as
to costs.
[31]
Further, the deficiencies that the Prothonotary noted
were not evidentiary in nature, they were concerned with the scope of the
requested inspection. Specifically, she noted the absence of parameters for the
desired inspection and an undertaking or suggestion that this would be the only
inspection. The Prothonotary addressed both of these concerns in the terms of
her Order.
[32]
I also agree with the Respondent that Rule 81(1)
permits the filing of affidavits on motions of this type which can include
statements of the deponent’s belief, together with the ground for that belief (Twentieth
Century Fox Home Entertainment Canada Ltd v Canada (Attorney General), 2012
FC 823 at para 22). Accepting the solicitor’s affidavit was, therefore, not a fundamental
error of law or principle. The affidavit identified the architectural firm that
was retained as an expert, Woods, and that the purpose of the retainer was to
compare the two homes in order to provide an opinion. The affidavit states
that 33 Strathearn is substantially set back from the curb and that the affiant
was advised by Woods that it requires access to a close up view in order to
carry out a meaningful inspection. Thus, the deponent set out the source of
his belief and the basis for the requested inspection. This was
straightforward and non-technical. The Prothonotary was entitled to and did,
in my view, weigh this evidence in considering the motion for inspection.
[33]
As to Rule 249, the Federal Court of Appeal addressed
its interpretation in Apotex FCA 2013. That decision is of particular
relevance to this matter:
[8] The parties have provided us with
case law indicating that the word “necessary” used in these various provincial
Rules appears to have been consistently understood to mean that there is “a
reasonable possibility that the proposed test will reveal something useful for
the trier of fact (that is something which will assist the trier of fact in
determining an issue in the proceeding)”...
…
[10] Read in the context of Rule 3, which
was added in the 1998 revision of the Rules, the test set out in Rule 249 is
clear and does not require that this Court provide more detailed and strict
guidelines in respect of its application. In fact, it would be unwise to try to
do so as it is evident that the use of the words “necessary or
expedient” was intended to give a broad discretion to the Court. As always,
facts do matter and they are particularly important when dealing with motions
such as those under Rule 249 which require the Court to balance any number of
factors relevant to the three main interests at play: those of the party
requesting the inspection or samples, those of the party in possession of the
property concerned and those of the trier of fact. It is because of this
need to balance all the relevant factors that a party must move to get an order
under Rule 249, contrary to other discovery Rules. In our view, this is exactly
how the Prothonotary approached her task when she set out to determine the
motions before her.
[11] We do not accept Apotex’s
submission that our Court set out a strict test in P.J. Wallbank
Manufacturing. Co. Limited v. Kuhlman Corporation, [1981] 1 F.C. 645, 50
C.P.R. (2d) 145 at 146 (F.C.A.) (Wallbank) and in Posi-Slope
Enterprises Inc. v. Sibo Inc., 1 C.P.R. (3d) 140, [1984] F.C.J. no. 507
(QL) at 141 (F.C.A.) (Posi-Slope) and that the Prothonotary and the
Judge were bound to require evidence that the proposed tests were “the only
means” for the Respondents to establish their case or at least that this was an
“exceptional case” where such testing was the solution of “last resort” as
mentioned in Gerber GarmentTechnology Inc. v. Lectra Systems of Canada,
66 C.P.R. (3d) 24, [1996] F.C.J. no. 41 (QL) at paragraph 3 (F.C.A.) (Gerber).
[12] In Wallbank, this Court overturned
the decision of Cattanach J. on the basis that he was wrong when he found that
the inspection of the premises was the only means available to the plaintiff.
That being so and considering the irreparable harm (prejudice) that could
result from the said inspection, this Court found that the Judge should not
have issued the Order. This conclusion was based on the balancing of the
relevant factors in the particular facts of that case.
[13] It is also clear from the decision
of this Court in Posi-Slope, above, that the motion was dismissed as “it
was not necessary for either the purpose of pleading or for any immediate
purpose” expressly leaving the door open for the applicant to bring a further
motion at a later stage. Posi-Slope cannot be read as construing the
full scope of Rule 249 (as it then read) when the very language of the Rule is
absent from the Court’s reasons.
[14] The Court agrees with Apotex that
the same test applies to all orders pursuant to Rule 249. But once again, facts
matter. We understand that the balancing of the relevant factors may well weigh
more in favour of dismissing a motion for the inspection of private premises,
as it was the case in Wallbank and Posi-Slope, as it often
involves a serious intrusion and possibly irreparable harm for the party whose
property is concerned.
[15] Usually, the information that is
available through discovery (for example, a full and detailed description of
the property or machinery or photographs thereof) is sufficient to satisfy all
the interests at play. However, in complex pharmaceutical patent cases like the
present ones, the usual mechanisms of discovery may well not suffice and
parties will often have to rely on Rule 249. Of course, orders will still only
issue upon the Federal Court being satisfied that the requirements of Rule 249
have been met.
[16] In such cases, “expediency” may
well be a major factor for the Court in exercising its discretion (Richter
Gedeon Vegyészeti Gyar RT v. Apotex Inc., Order of Lutfy, A.C.J. dated 4
December 2000, Docket T-2520-93; Richter Gedeon Vegyészeti Gyar RT v. Apotex
Inc., 2002FCT 1284, affirmed 2003 FCA 221; Glaxo Group Ltd. v. Novopharm Ltd,
87 A.C.W.S. (3d) 356, [1999] F.C.J. no. 381 (QL) (F.C.T.D.)).
…
[18] In concluding as we do, we are
reminded of the principle set out in previous decisions of this Court that one
should be particularly reluctant to interfere with discretionary decisions made
on non-vital issues such as those raised in the current appeal by
Prothonotaries or Federal Court Judges in the course of case managing a matter
(See Sawbridge Indian Band v. Canada (Minister of Indian Affairs and
Northern Development, 2001 FCA 338 at paragraph 11; j2 Global
Communications Inc. v. Protus IP Solutions, 2009 FCA 41 at paragraph 16; Mushkegowuk
Council v. Canada (Attorney General), 2011 FCA 133 at paragraph 5).
(emphasis in bold added)
[34]
In my view, it is evident from the Inspection
Order that the Prothonotary understood the balancing requirements of Rule 249
and applied them to the evidence and facts before her. She did not exercise
her discretion based on a wrong principle. The Prothonotary’s reasons demonstrate
that she was of the view that the inspection was necessary and that there was a
reasonable possibility that it would reveal something useful for the trier of fact.
In other words, she did not accept the Appellant’s contention that the series
of photographs that it produced was sufficient, she was clearly of the opinion that
the site visit might produce something more stating that “because the house is an adaptation of a previously built,
original house, it is not unreasonable that a site visit would be better to
inform as to what is original, what is new, and how the two work together than
would a series of photographs”. I find no issue or error with this
conclusion and note that when taking photographs of the house the Appellant may
have focused on similarities with the other house while the Respondent’s expert
might focus on differences. Further, the stated immediate purpose of the
inspection is to inform the expert’s opinion, not merely to provide further
photographs. And, as seen from Apotex FCA 2013, the proposed inspection
need not be the only means available to the Respondent, nor must an inspection
order be premised on an exceptional case.
[35]
The Prothonotary also noted that the owner of
the property had been served with the motion but did not directly oppose it.
She found that the proposed inspection was not unduly invasive, it was an
exterior walking tour of a half day duration, samples were not to be taken nor
destructive testing undertaken. Her Inspection Order also specifically
prohibited direct viewing or photographing of the interior of the house through
its windows. That is, she balanced the interests of the party requesting the
inspection, the property owner and the trier of fact. This was not a situation
such as Wallbank where there was a serious intrusion upon the premises and
a danger of irreparable harm.
[36]
As stated by the Federal Court of Appeal in Apotex
FCA 2013, the test in Rule 249 is clear and was intended to give broad
discretion to the Court. Thus, I do not agree with the Appellant that the
Prothonotary was required to base her analysis on the evidence of the intended
architecture expert. Nor do I agree that it was necessary for that expert to
file an affidavit in support of the motion so that he could be cross examined
on it prior to the inspection. This was a straight forward visual inspection.
Any issues as to the expert’s qualifications and the use of his or her report
can be addressed at the discovery stage and at trial.
[37]
As to prematurity of the inspection, the
Appellant submits that if an inspection should ultimately prove to be necessary
or expedient then it should only be after discoveries to avoid a multiplicity
of inspections. The Prothonotary dealt with the pre-discovery timing of the
inspection. She indicated that there was no contemplation of further site
visits. Further, counsel for the Respondent advised me at the hearing of this
appeal that all of the named Defendants were served with its motion for an
inspection order and none opposed it. It is true that there are John and Jane
Doe Defendants, however, their participation at a future date is speculative.
And, in any event, given the high level of discretion available to case
management judges, the Prothonotary would be in a position to take the prior
inspection into account when assessing any future motions for inspection,
including the usefulness of such information to the trier of fact.
[38]
Rule 249 contains no requirement that an
inspection order be granted only after discoveries are conducted. It may well
be that conducting the inspection and obtaining an expert report prior to
discoveries will allow the discoveries to be more focused and proceed more
expediently as the Respondent suggests. The Prothonotary exercised her
discretion in deciding that a pre-discovery inspection was appropriate in this
case. She did not proceed on a wrong principle.
[39]
Finally, given the circumstances described
above, I do not agree that the Prothonotary relied on any wrong principle in
awarding costs to the Respondent. Rule 400 grants full discretionary power
over the awarding of costs. The Appellant sought costs at the motion, agreed
that the successful party should have its costs and further agreed to the
amount of these costs. To now argue that the Prothonotary’s costs order was
based on a wrong principle because she proceeded on a deficient record, is
without merit. This falls just short of an argument that because the Appellant
was not successful, an award of costs is based on a wrong principle.
[40]
In summary, the Inspection Order was not clearly
wrong as the Prothonotary did not exercise her discretion based upon a wrong
principle or upon a misapprehension of the facts. A de novo assessment
is therefore not required and the appeal is dismissed.
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