PRACTICE |
Affidavits |
Society of Composers, Authors and Music Publishers of Canada v. Landmark Cinemas of Canada Ltd.
T-633-92
2004 FC 824, O'Keefe J.
9/6/04
9 pp.
Defendant Brian McIntosh (McIntosh) appealing Prothonotary's order compelling him to deliver further and better affidavit of documents--McIntosh's filed affidavit of documents stating did not have any documents to list under Schedule 1, 3 or 4, claiming privilege over documents in Schedule 2, and stating no more documents to file--Transcript of cross-examination revealing existence of notes of conversations made by McIntosh, his secretary--Plaintiff arguing notes should have been included under Schedule 1 or 2 of McIntosh's affidavit of documents and their absence proof of affidavit's insufficiency--Prior orders and motion records, but not affidavits from prior motions, can be made part of application record (Merck Frosst Canada Inc. et. al. v. Canada (Minister of National Health and Welfare) (1994), 88 F.T.R. 31 (T.D.))--If affidavit cannot be part of record, neither can cross-examination on that affidavit--Same principle applying to motion record--Prothonotary could not properly make reference to cross-examination transcript from earlier motion--Logical as parties should have notice of issues to be addressed on motion and what materials will be used by Prothonotary--Plaintiff cannot make reference to cross-examination transcript on this appeal--Motion allowed.