Weight Watchers International Inc. (Plaintiff)
v.
Adelaide Daniels, Harold Daniels, Bernard C.
Kurtz, Morray Burns, Sam Kwinter, Weight
Watchers of Ontario Limited, Adelaide Daniels
Enterprises Limited, Counterweight Limited,
Weight Watchers (Atlantic) Limited, Weight
Watchers of New Brunswick Limited, Weight
Watchers of Newfoundland Limited, Canadian
Association of Organizations for Weight Watch
ers, and Bernard C. Kurtz Limited (Defendants)
Trial Division, Kerr J.—Ottawa, April 3 and 4,
1973.
Discovery—Oral discovery of plaintiff by several defend-
ants—Practice.
COUNSEL:
G. Henderson, Q.C., K. Plumley and D.
French for plaintiff.
C. Robinson, Q.C., J. Kokonis and B.
Sischy, Q.C., for Adelaide Daniels, Harold
Daniels, Morray Burns, Sam Kwinter, Weight
Watchers of Ontario Limited and Adelaide
Daniels Enterprises Limited.
C. Robinson, Q.C., and J. Kokonis for
Counterweight Limited, Weight Watchers
(Atlantic) Limited, Weight Watchers of New
Brunswick Limited, Weight Watchers of
Newfoundland Limited and Canadian Associ
ation of Organizations for Weight Watchers.
D. Sim, Q.C., for Bernard C. Kurtz and
Bernard C. Kurtz Limited.
SOLICITORS:
Gowling and Henderson, Ottawa, for
plaintiff.
Hanson, Gilbert and Hashey, Fredericton,
for Weight Watchers of New Brunswick
Limited.
R. M. Bromstein, Toronto, for Canadian
Association of Organizations for Weight
Watchers.
D. Sim, Q.C., Toronto, for Bernard C.
Kurtz and Bernard C. Kurtz Limited.
Goodman and Carr, Toronto, for Adelaide
Daniels, Harold Daniels, Morray Burns, Sam
Kwinter, Weight Watchers of Ontario Limit
ed, Adelaide Daniels Enterprises Limited and
Counterweight Limited.
KERR J.—On September 29, 1972, the plain
tiff commenced an action in this Court claiming,
inter alia, an injunction restraining the defend
ants from using the trade mark "Weight
Watchers".
On March 23, 1973, the plaintiff filed a notice
of motion for an order for an interlocutory
injunction against the defendants until trial of
the action, and in support thereof filed an
affidavit of Albert Lippert, Chief Executive
Officer of the plaintiff.
On March 27 the plaintiff filed a notice of
motion for an order directing that any cross-
examination of Mr. Lippert by the defendants
take place before a judge of this Court.
Mr. Lippert's affidavit is somewhat lengthy,
running to 31 pages, with 49 exhibits.
During the hearing of the latter motion all
parties indicated a desire to bring the action on
for trial as soon as reasonably possible, and
with commendable cooperation they agreed
that, in lieu of the plaintiff proceeding with its
application for the interlocutory injunction, the
trial of the action be fixed for September 25,
1973, in Toronto, and that certain directions be
given by the Court in respect of proceedings
anterior to the trial. Directions are consequently
incorporated in an order of the Court of even
date herewith.
There was disagreement between Mr. Hen-
derson, counsel for the plaintiff, and Mr. Sim,
counsel for Bernard C. Kurtz and Bernard C.
Kurtz Limited, on the question whether there
should be only one examination for discovery of
Albert Lippert, as urged by Mr. Henderson. Mr.
Sim urged that he should not be restricted in his
examination of Mr. Lippert and that his right to
examine be preserved.
The examination for discovery of Lippert
probably will be extensive, having regard to the
length of his affidavit, the issues and operations
involved, and the number of defendants.
In Graydon v. Graydon (1921-22) 51 O.L.R.
301, Mr. Justice Middleton dealt with a case
where the plaintiff sued 2 daughters and a son,
and the daughters were represented by one
solicitor and the son by another. The plaintiff
was examined for discovery by counsel repre
senting the daughters. Counsel representing the
son endeavoured to cover the whole ground
again in his examination of the plaintiff.
Mr. Justice Middleton said, in part [pages
302-304], in his judgment as follows:
I have, therefore, to face the question whether, where an
action is brought against several defendants, and these
defendants sever in their defences, the plaintiff is liable to
be examined for discovery, not once, but many times.
It is of course obvious that there may be some things
which relate to one defendant alone, and which would in no
sense be covered by or be adequately dealt with in an
examination had at the instance of the co-defendants. On
the other hand, where a plaintiff is under cross-examination
at a trial, and there are several defendants separately repre
sented, it is not the practice to allow each counsel to go over
all the ground which is common to the defendants. The
counsel who first cross-examines, examines at large, and if
his cross-examination covers the whole field another coun
sel in the same interest is not allowed to traverse it again,
but must confine himself to new matter or matter which
relates particularly to the client whom he represents.
I think I am on solid ground when I say that the Rules
contemplate only one examination for discovery of any
party in the action. Any party adverse in interest may
initiate such examination. Notice of it should be given to all
the parties adverse in interest to the party to be examined,
so that they may be present upon the examination. The
counsel who first examines will then cover the common
ground and deal with all matters which relate particularly to
his client. Other counsel should then be permitted to deal
with matters that have not yet been touched upon and
matters that relate solely to their own client. In this way, I
think, justice will be done. The idea that there should be
many examinations all covering the same ground is quite
erroneous, and such a course is an abuse of the practice of
the Court.
No notice having been given to the solicitor for the son at
the time of the examination at the instance of the daughters,
I do not think it would be desirable to preclude him from
now examining, but I think the examination should be
strictly confined within the limits that I have indicated, and
that the order of the Master requiring the re-attendance of
the father for re-examination should be varied by providing
that at such re-examination the examining counsel shall not
be at liberty to examine upon any matters dealt with upon
the former examination, but shall only be at liberty to
examine as to new matters and as to any matter which may
be set up, or intended to be set up, as against the son, and
the son alone.
I agree with the views expressed by Middle-
ton J., and the directions to be given in the order
in this case in respect of the examination of Mr.
Lippert will follow that precedent.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.