Digests

Montague Industries Inc. v. Canmec Ltée

T-169-99

2001 FCT 72, Gibson J.

14/2/01

20 pp.

Application by way of appeal from Prothonotary's decision ordering resumption of cross-examination on affidavits for purpose of challenging credibility--Implicitly Prothonotary dismissed requests to strike affidavits, request for production of microfiche displaying engineering drawings to which copyright infringement action relating, and request for advice as to current whereabouts of microfiche--Microfiche property of plaintiff, but stolen--During execution of Anton Piller order microfiche secretly removed from defendant's offices--Without production of microfiche plaintiff unable to cross-examine witnesses--On question of standard of review, submissions divided into three subject-matter areas: failure to order production of microfiche, related relief; failure to order issuance of subpoena; failure to grant costs on motions on scale requested--Discretionary orders of prothonotaries should not be disturbed on appeal to judge unless clearly wrong or raising questions vital to final issue of case: Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)--Appellate interference also justified where decision would result in some injustice being done: Citipage Ltd. v. Barrigar & Oyen (1993), 49 C.P.R. (3d) 1 (F.C.A.)--Prothonotary holding plaintiff not demonstrating relevance of microfiche to motions in respect of which have leave to cross-examine, microfiche not compellable--Applicants submitting this conclusion error of law, resulting in injustice, and request for order compelling production should be considered de novo--If every discretionary decision of prothonotary determined to fall within criteria for review de novo on appeal to judge, hearing before prothonotary would be no more than expensive preliminary rest stop along procedural route to motions judge--Against foregoing, that Anton Piller order required defendants to deliver into interim custody of designated solicitor all designated material, including microfiche located at any place of business of corporate defendants, considered--Presumably microfiche in question herein within ambit of order, and not delivered up--Foregoing begs question of what useful purpose further order for delivery up of microfiche might serve--Thus, even on review de novo of aspect of order of Prothonotary relating to production of microfiche, and where deference owed to that order, on facts, no basis to intervene--As to failure to deal with request for issuance of subpoena, Federal Court Rules, 1998, r. 397(1)(b) permitting party to file notice of motion to request Court, as constituted at time order made, to reconsider terms on ground matter that should have been dealt with overlooked or accidentally omitted--Given lack of any reference to request for issuance of subpoena in order, reasonable to suspect failure to even mention requested relief accidental omission--Although plaintiff, co-defendant by counterclaim not requesting relief under r. 397, that method of seeking relief still open--Extension of time to seek relief under r. 397 ordered--Costs aspect of order purely discretionary, and under Aqua-Gem test no basis on which Court ought reasonably to review those aspects of order de novo--Federal Court Rules, 1998, SOR/98-106, r. 397.