Thurlow, J:
1 This is an application under section 67 of the Supreme Court Act for an order settling the contents of the case on appeal, the parties having failed to reach an agreement thereon.
2 The material placed in evidence at the trial is exceedingly bulky, consisting of some 2,300 pages of transcript, some 4,600 pages of exhibits which were reproduced for the appeal to this Court, and an even larger bulk of exhibits which were not reproduced for that appeal. Of the last mentioned group a few were referred to on the hearing of the appeal.
3 The position of counsel for the appellant is that a very large part of the testimony and most of the exhibits are irrelevant to the issues to which the appeal to the Supreme Court has been limited and that they should therefore be excluded from the case. The position of the respondent is that with the exception of one witness, whose evidence is quite unimportant and insignificant in extent, and one exhibit, viz Exhibit A-349, the testimony of all the witnesses and the exhibits which they produced are in one way or another relevant to issues that will arise on the appeal and that, while prepared to consent—when the time comes—to an order dispensing with the printing of many of the exhibits and to consider consenting as well to dispensing with the printing of portions of the oral testimony, the whole of the testimony and exhibits should form part of the case on appeal.
4 I do not think I can say that the testimony and the documents which the appellant seeks to have excluded are entirely irrelevant to the issues to be raised on the appeal. It appears to me that they present the background situation in which the more important events occurred and against which these events may be judged. While a great part of this material will quite probably turn out to be of little use, I am unable to say that it, or some of it, will not assume importance in the course of the appeal. It appears to me, therefore, that counsel ought to be in a position to refer to it, or any of it, if the need to do so should arise and that for this reason it should form part of the case. The question of how much of it ought to be printed is, of course, an entirely different question which it is not for me to decide.
5 Accordingly I shall direct that the case on appeal include the transcript of the proceedings in the Trial Division consisting of volumes 1 to 21 inclusive and volume 22 to the end of page 2204. I shall direct that pages 2226 to 2230 of volume 22 be included, as well, as they show the position taken at trial by counsel for the appellant with respect to issues to be raised on the appeal. I shall also direct that the case on appeal include the exhibits tendered and received at the trial with the exception of the volume identified as Exhibit A-349.
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