Date : 20001110
Docket : T-1836-90
BETWEEN:
ELDERS GRAIN COMPANY LIMITED,
- and -
CARLING O'KEEFE BREWERIES OF CANADA LIMITED
Plaintiffs
- AND -
THE VESSEL M/V RALPH MISENER AND THE OWNERS AND ALL
OTHERS INTERESTED IN THE VESSEL M/V RALPH MISENER
- and -
MISENER HOLDINGS LIMITED
- and/or -
MISENER SHIPPING
Defendants
REASONS FOR ORDER
JUSTICE ROULEAU
[1] This action was commenced in June of 1990 and after a long and complicated history; an amended statement of defence and counterclaim was filed in June of 1997; a notice of status review issued in June of 1998.
[2] Justice Pinard was appointed Case Management Judge on October 30th of 1998 and a pre-trial conference has been set for December 1st.
[3] Discoveries of the first plaintiffs' representative one Peter Boucher was held in late 1997 during which a number of objections were raised and answers were either refused or were not within the knowledge of the representative. As well, a number of undertakings were to be subsequently furnished.
[4] In a document entitled "Written Representations of Plaintiffs outlining steps remaining to be taken in the present proceedings" dated November 11, 1998 it is indicated that Elder's Grain Company had conveyed it's interest in the company to Carling O'Keefe Breweries as of October 1990 and there remained but one former employee with the company; as a result, obtaining answers and fulfilling undertakings was complicated and difficult.
[5] The document continues that hundreds of boxes of documents have been forwarded to plaintiffs' counsel at Montreal and they were in the process of reviewing them in order to find answers to questions and undertakings.
[6] It was subsequently agreed by the parties that another individual would be provided by the plaintiff to attend at oral discoveries, one Ms Oslund. By letter dated January 7, 1999 counsel for the plaintiffs indicates that all objections raised in the discovery of Mr. Boucher were to be set aside in light of the fact that a new representative would be put forward.
[7] The letter also confirms that a motion filed with the Court by the defendant seeking answers to certain questions objected to and undertakings given during the Boucher discovery would be withdrawn.
[8] Ms Oslund attended for discoveries at Montreal on the 24th of February 2000 and put forward as having knowledge of the plaintiffs companies affairs. During this phase of the discovery questions were again objected to and undertakings were given.
[9] It is obvious to this writer that even though the files of Elders Grain were in the possession of counsel for the plaintiffs, no efforts were made by Ms Oslund or her counsel to search the records or better inform their witness.
[10] Counsel for the defendants filed a motion with the Court on October 6th of 2000 seeking answers to outstanding questions and undertakings.
[11] The Case Management Judge advised that he was not available until late November and the parties could bring the matter before the Court at anytime before any other judge or prothonotary.
[12] Attempts were made to have the matter heard sooner but to no avail; it finally came before the Court of Quebec City on November 10, 2000.
[13] Counsel for the plaintiffs throughout the discovery objected to certain questions being put to Ms Oslund on the basis that she need not answer since she is no longer an employee of the company.
[14] Before the Court on November 10, counsel for the plaintiffs persists that she need not answer since she is no longer an employee and further suggests she was under no obligation under Rule 241 of the Federal Court Rules "to become informed"; that pursuant to Rule 242 (1) d) it had become too onerous to require the person to make inquiries referred to in Rule 241; that pursuant to Rule 244(1), Ms Oslund does not represent the plaintiff and is not required to become better informed "person".
[15] It was submitted by counsel for the plaintiffs that Ms Oslund resided in Regina and she would be required to take time off from work in order to attend at their offices to go through the boxes and it would be expensive to bring her east for 3 or 4 days.
[16] It is obvious to me that counsel are responsible to provide a person on behalf the plaintiff companies to attend and provide answers on discovery. To suggest that she is not bound to answer the questions and if unable to do so, has no obligation to inform herself. The fact that she must be away from work would cause an onerous situation for her or the plaintiffs' counsel does not excuse the failure to provide answers to questions and produce some insight to the undertakings.
[17] To suggest that she may testify at trial is even more ludicrous. If she is to be available at trial for the plaintiffs she or someone else should have been made available for the discovery to which the defendants are entitled under the rules.
[18] Rule 91 of the Federal Court Rules provides that the direction to attend to be examined, the individual should produce for discovery all documents and other material in his or her possession.
[19] Rule 94 of the Federal Court Rules further provides that a person being examined shall produce for inspection at the examination all documents which are not privileged.
[20] Il may be suggested that Ms Oslund does not have control of the documents but her counsel does and should make them available to her.
[21] This Court will not entertain a trial by ambush.
[22] A pre-trial conference was requested by the plaintiffs on September 11, 2000 indicating pleadings were complete and it did not require further discoveries. A meeting has been set by the Case Management Judge to take place on December 1st, 2000.
[23] It is suggested by counsel for the plaintiffs that the defendant's motion for answers to questions and a request to fulfill undertakings is late and suggests it is a stalling action.
[24] In Control Data Can. v. Senstar Corp. (1987), 13 C.P.R. (3d) 546, the Court confirmed that a deponent on discovery has a duty to inform himself and to seek information even if it is in the hands of a third party. If unable to do so the deponent should file an affidavit that they are unable to obtain the information requested. The case also stands for the proposition that a person no longer employed by a party does not excuse the party from attempting to obtain information.
Paul U.C. Rouleau
Judge
Quebec, Quebec
November 10, 2000
FEDERAL COURT OF TRIAL
Date: 20001110
Docket: T-1836-90
Between:
ELDERS GRAIN COMPANY LIMITED
- and -
CARLING O'KEEFE BREWERIES
OF CANADA LIMITED
Plaintiffs
- AND -
THE VESSEL M/V RALPH MISENER AND
THE OWNERS AND ALL OTHERS
INTERESTED IN THE VESSEL
M/V RALPH MISENER
- and -
MISENER HOLDINGS LIMITED
- and -
MISENER SHIPPING
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA - TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT NUMBER: T-1836-90 |
| BETWEEN: ELDERS GRAIN COMPANY LIMITED, and |
CARLING O'KEEFE BREWERIES
OF CANADA LIMITED
Plaintiffs
AND:
THE VESSEL M/V RALPH MISENER, and
OTHERS INTERESTED IN THE VESSEL
M/V RALPH MISENER, and
MISENER HOLDINGS LIMITED, and
MISENER SHIPPING
Defendants
PLACE OF HEARING: Quebec, Quebec
DATE OF HEARING: November 10, 2000
REASONS FOR ORDER BY: The Honourable Mr. Justice Rouleau
| DATED: November 10, 2000 |
APPEARANCE: Mr. Normand Laurendeau For Plaintiffs
Mr. John G. O'Connor For Defendants
SOLICOTORS OF RECORD:
ROBINSON SHEPPARD SHAPIRO
Montreal, Quebec For Plaintiffs
LANGLOIS GAUDREAU O'CONNOR
Quebec, Quebec For Defendants