Date: 19991217
Docket: T-3049-92
BETWEEN:
THE BUSINESS DEPOT LTD.
Plaintiff
-and-
THE CANADIAN OFFICE DEPOT INC., OD INTERNATIONAL,
INC., OFFICE DEPOT, INC. and DAVID FUENTE
Defendants
-and-
JACK BINGLEMAN, STAPLES, INC.,
and THOMAS G. STEMBERG
Defendants by Counterclaim
REASONS FOR ORDER AND ORDER
O"KEEFE J.:
[1] This is an appeal of part of the decision of Prothonotary Lafrenière made on December 3, 1999. The Defendants are appealing that part of the decision which struck paragraphs 46 through 73 of the affidavit of Ruth Corbin sworn November 27, 1999.
Brief History
[2] Office Depot was enjoined from using the name "Office Depot" in Ontario on an interim basis in February, 1993 and from May, 1993 until now on an interlocutory basis.
[3] In April 1999, Office Depot filed a motion to have the interlocutory injunction lifted or in the alternative an injunction preventing Business Depot from using the trade name "Business Depot" in Western Canada.
[4] On August 27, 1999 the Defendants served the affidavit of Dr. Chuck Chakrapani (sworn August 26, 1999) and the affidavit of Ruth Corbin (sworn August 27, 1999). (Chakrapani No. 1 and Corbin No. 1 respectively).
[5] On October 22, 1999 the Plaintiff filed the responding affidavit of Angus Reid which criticized Chakrapani No. 1 and Corbin No. 1 in so far as Corbin No. 1 reviewed the design validity of the survey questionnaire contained in Chakrapani No. 1.
[6] The Court ordered that the Defendants could file Reply evidence to the Reid affidavit.
[7] The Defendants filed the affidavit of Chuck Chakrapani (Chakrapani No. 2) sworn on November 25, 1999 and the affidavit of Ruth Corbin (Corbin No. 2) sworn on November 26, 1999, in reply to the Reid affidavit.
[8] The Plaintiff applied to strike Chakrapani No. 2 and Corbin No. 2 and the Motion was heard via teleconference with Prothonotary Lafrenière on December 3, 1999.
[9] The Prothonotary denied the Motion to strike Chakrapani No. 2 but partly allowed the Motion in respect of Corbin No. 2 by striking paragraphs 4(b), 4(c), 5(b), 5(d) and 46-73 inclusive.
[10] The decision of the Prothonotary was appealed to the trial division of this Court on December 8, 1999.
[11] At the commencement of the hearing the parties agreed that:
| (1) The portion of the Written Submissions of the Plaintiff dated November 22, 1999 that applied to paragraphs 46-73 of Corbin No. 2 would constitute the reasons for the Prothonotary"s December 3, 1999 decision. |
| (2) The appeal concerned paragraphs 46-73 of Corbin No. 2. |
Issue
[12] Should that portion of the decision of Prothonotary Lafrenière which struck paragraphs 46-73 of Corbin No. 2 be overturned.
Law
[13] The standard of review for a Prothonotary"s discretionary decision was stated by McGuigan, J. in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (.C.A.) at pp. 462-63.:
| I also agree with the Chief Justice in part as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following a particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) At page 484, and Lacourcière J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless: |
| (a) they are 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 |
| (b) they raise questions vital to the final issue of the case. |
| Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo. |
[14] In this case the Defendants were granted permission to file evidence in reply to the Reid affidavit.
[15] J. Sopinka, S.N. Lederman, and Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) in their terms comment on Reply evidence as follows at pages 958-959:
| "16.153 There are important restraints on the right of a party to call evidence to rebut the testimony of a previous witness. The primary restrictions are: |
| (1) the limits of permissible reply evidence; |
| (2) the effect of the failure to cross-examine; and |
| (3) the collateral of fact rule. |
| A. Limits on Reply Evidence |
| "16.154 At the close of the defendant"s case, the plaintiff or Crown has the right to adduce rebuttal evidence to contradict or qualify new fact issues raised in defence. The general rule in civil cases is that matters which might properly be considered to form part of the plaintiff"s case in chief are to be excluded. [footnotes omitted] |
| ... |
| Two very practical rationales for this rule were articulated by Wigmore: |
| ...first, the possible unfairness of an opponent who has unjustly supposed that the case in chief was the entire case which he had to meet, and, second, the interminable confusion that would be created by an unending alternation of successive fragments of each case which could have been put in at once in the beginning. [footnotes omitted] |
| ... |
| The Ontario Court of Appeal held in Allock, Laight & Westwood Ltd. v. Patten, that the trial judge had erred in permitting the plaintiff to adduce evidence, ostensibly as rebuttal, when the evidence was, in effect, confirmatory only of the plaintiff"s case. Shroeder J.A., noting with approval an earlier decision of the Court of Appeal, R. v. Michael , stated: |
| It is well settled that where there is a single issue only to be tried, the party beginning must exhaust his evidence in the first instance and may not split his case by relying on prima facie proof, and when this has been shaken by his adversary, adducing confirmatory evidence: Jacobs v. Tarleton (1848), 11 Q.B. 421, 116 E.R. 534 ... The rule is now so well settled that it requires no further elaboration. It is important in the trial of actions, whether before a jury or a Judge alone, that this rule should be observed. A defendant is entitled to know the case which he has to meet when he presents his defence and it is not open to a plaintiff under the guise of replying to reconfirm the case which he was required to make out in the first instance or take the risk of non-persuasion. |
| [footnotes omitted] |
[16] I have reviewed Paragraphs 46-73 of Corbin No. 2 and I agree with the findings of the Prothonotary that these paragraphs should be struck as the paragraphs are not replying to any new matters raised by Dr. Reid but are merely confirming the evidence of Chuck Chakrapani. As stated by the Prothonotary, in adopting the Plaintiff"s argument as his decision, "This evidence is not replying to any new matters raised by the Reid affidavit, but merely attempting to bolster the validity of the Chakrapani survey". I agree with this statement and note that paragraph 46 of Corbin No. 2 states:
| 46. The remainder of the affidavit deals with the legitimacy of Dr. Reid"s criticisms raised against the Chakrapani survey. |
[17] By way of a further example paragraph 60 reads as follows:
| Finally, in paragraph 23, Dr. Reid refers to a transcription error by Dr. Chakrapani, and comments, "I don"t know how many of these types of errors are found" This comment is curious, because Dr. Reid had all of the Chakrapani material, and his very mandate was to evaluate the survey report. There was no reason "not to know". The comment reinforces the impression, gained from the above list of other inaccuracies, that perhaps Dr. Reid did not have time to carefully and sufficiently review the Chakrapani survey. |
This is certainly not reply evidence in the sense reply evidence has been defined by the courts.
[18] I would therefore deny the appeal of the December 3, 1999 decision of Prothonotary Lafrenière with respect to paragraphs 46-73 of the Corbin No. 2 affidavit.
[19] Costs may be spoken to by the Parties.
ORDER
[20] It is hereby ordered that the appeal of the December 3, 1999 decision of Prothonotary Lafrenière with respect to paragraphs 46 - 73 of the Corbin No. 2 affidavit is dismissed.
[21] It is further ordered that costs may be spoken to by the Parties.
"John A. O"Keefe"
J.F.C.C.
TORONTO, ONTARIO
December 17, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-3049-92 |
| STYLE OF CAUSE: THE BUSINESS DEPOT LTD. |
and
| THE CANADIAN OFFICE DEPOT INC., OD INTERNATIONAL, INC., OFFICE DEPOT, INC. and DAVID FUENTE |
and
JACK BINGLEMAN, STAPLES, INC.,
and THOMAS G. STEMBERG
| DATE OF HEARING: TUESDAY, DECEMBER 14, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: O"KEEFE J. |
| DATED: FRIDAY, DECEMBER 17, 1999 |
APPEARANCES: Mr. Neil Belmore
| For the Defendants |
| Mr. Harvey T. Strosberg, Q.C. |
| For the Plaintiff/Defendants by Counterclaim |
| SOLICITORS OF RECORD: Gignac, Sutts |
Barristers & Solicitors
600 Westcourt Place
251 Goyeau Street
Windsor, Ontario
N9A 6V4
| For the Plaintiff/Defendants by Counterclaim |
| Gowling, Strathy & Henderson |
Barristers & Solicitors
Suite 4900
Commerce Court West
Toronto, Ontario
M5J 1J3
| For the Defendants |
FEDERAL COURT OF CANADA
Date: 19991217
Docket: T-3049-92
Between:
| THE BUSINESS DEPOT LTD. |
Plaintiff
-and-
| THE CANADIAN OFFICE DEPOT INC., OD INTERNATIONAL, INC., OFFICE DEPOT, INC. and DAVID FUENTE |
Defendants
-and-
JACK BINGLEMAN, STAPLES, INC.,
and THOMAS G. STEMBERG
Defendants by Counterclaim
REASONS FOR ORDER
AND ORDER