T-1582-72
Moore Dry Kiln of Canada Limited (Plaintiff)
v.
U.S. Natural Resources, Inc. (Defendant)
Trial Division, Mahoney J.—Ottawa, April 3 and
4, 1975.
Practice—Trade marks—Defendant seeking leave to file
and serve "supplementary affidavit of documents or... list of
documents"—Defendant changing solicitors—Forwarding ad
ditional lists of documents—Plaintiff aware of implied request
for consent to file, and not misled—Plaintiff refusing to
consent—Federal Court Rules 447, 448, 461.
After examinations for discovery had been held, defendant
forwarded additional lists of documents to plaintiff. Plaintiff
acknowledges that, while defendant did not formally request
plaintiff's consent to the filing or service of these supplemen
tary lists, it was not misled and was aware of the implied
request, but it refuses to give consent.
Held, defendant must be granted leave to file a supplemen
tary list verified by affidavit as required by Rule 448. Rule 461
appears to give the parties the right to agree to the filing and
service of a bare supplementary list, but to limit the order
which the Court must grant to a list verified by affidavit. The
Court has discretion as to the terms upon which leave will be
granted. Plaintiff is entitled to further examination for discov
ery in respect of the additional documents; defendant is not.
APPLICATION.
COUNSEL:
A. M. Butler for plaintiff.
L. Turlock for defendant.
SOLICITORS:
Gowling and Henderson, Ottawa, for
plaintiff.
Barrigar and Oyen, Ottawa, for defendant.
The following are the reason for judgment ren
dered in English by
MAHONEY J.: This is a trade mark case. The
allegations of fact on which the action is based are
set forth in the reasons for judgment of my brother
Kerr, dealing with another interlocutory applica
tion herein, rendered February 20, 1975. The
defendant now seeks, under Rule 461, leave to file
and serve "a supplementary affidavit of documents
or supplementary list of documents". That Rule
provides:
Rule 461. Where, at any time after a list or an affidavit has
been made under Rules 447 to 458,
(a) it comes to the attention of the party or his solicitor that
the list or affidavit was inaccurate or incomplete, or
(b) any document comes into the party's possession, custody
or power that was not in his possession, custody or power at
the time when the original affidavit was made,
a request shall be made to the other parties for consent to file
and serve a supplementary list or affidavit, and, if such consent
is refused, an application shall be made to the Court for leave
to file and serve a supplementary affidavit, which leave shall be
granted on such terms, if any, as the circumstances of the
matter may require; and when any such consent or leave is
obtained a supplementary list or affidavit shall be filed and
served accordingly.'
The action was commenced June 7, 1972. The
statement of claim was served ex juris during that
summer and, after an unsuccessful effort to strike
out a substantial portion of the statement of claim,
the statement of defence and counterclaim was
filed March 12, 1973 and the reply, defence to
counterclaim and joinder of issue was filed
March 20.
The defendant filed its list of documents pursu
ant to Rule 447 on June 29, 1973; the plaintiff had
filed its list of documents earlier. Examinations for
discovery ensued. Following the examinations for
discovery, the defendant changed its solicitors. On
each of January 10, February 6, March 21 and
March 26, 1975, the defendant's new solicitors
forwarded additional lists of documents to the
plaintiffs solicitors accompanied, it appears, by
copies of most of the documents therein referred
to. Each successive list covered documents not
comprised in the list of documents duly filed under
Rule 447 nor in any of the preceding lists deliv
ered. There are something in the order of 150
individual documents and bundles of documents
enumerated in the four lists.
' The emphasis is mine.
The defendant did not formally request the
plaintiff's consent to the filing or service of these
supplementary lists; however, the plaintiff
acknowledges that it was in no way misled by that
failure and was aware of the implied request,
which it refuses. It is therefore unnecessary for me
to deal with the question of whether the bare
delivery by one party to another of a formally
drawn document bearing the style of cause and
entitled "Supplementary List of Documents which
may be relied upon by Defendant in accordance
with Rule 447" constitutes the request for consent
prerequisite to an application to the Court under
Rule 461.
The defendant filed the notice of motion herein
on March 27, 1975 and, on April 2, the parties
filed a joint application for an order fixing a time
and place for the trial of this matter. That applica
tion indicates a ten day trial comprised of five days
in each of Vancouver and Ottawa. While this
application will not be dealt with until discovery is
complete, I have ascertained that, from the point
of view of the Court, the commencement date of
June 9 proposed by the parties is presently
convenient.
I am satisfied that it had come to the attention
of the defendant's solicitor that the list of docu
ments filed and served under Rule 447 was incom
plete and that, under Rule 461, I have no discre
tion but to grant leave to the defendant to file a
supplementary list of documents verified by affida
vit as provided by Rule 448. Rule 461 appears
clearly to give the parties the right to agree to the
filing and service of a bare supplementary list but
to limit the order which the Court must grant to a
list verified by affidavit. I do, however, have dis
cretion as to the terms upon which that leave will
be granted.
The plaintiff is manifestly entitled to further
examination for discovery in respect of the addi
tional documents and I do not see how, properly or
practically, I can limit that right in any of the
ways suggested by the plaintiff. 2 As long as the
further examination relates to the additional docu
ments and to the issues in the action to which
those documents relate, the plaintiff may pursue it
notwithstanding that it may be largely repetitious
of the earlier examination. It is for the plaintiff to
decide whether it wishes to take the time in such
an exercise. On the other hand, I cannot accept the
plaintiff's submission that, in order to avoid the
necessity of further examination, I should order
the defendant either to admit the documents or to
limit itself in any way in the use which it may
make thereof at the trial. I see no way, in the
circumstances, that I could make such an order
with any confidence that it would be both mean
ingful and fair. I could perhaps make it meaning
ful and arbitrary, or fair and fatuous, but if addi
tional examination for discovery is to be avoided
and the price of that is a limitation on the freedom
that the defendant would otherwise have in the use
of the additional documents in the presentation of
its case, that result will have to be achieved by
agreement between the parties.
I reject the defendant's submission that, if the
plaintiff exercises its right to further examination
for discovery, the defendant should likewise have a
right to further examination for discovery.
In the circumstances, the plaintiffs request that
the affidavit be filed and served on or before April
14, 1975 is reasonable. The plaintiffs further
request that the affidavit be accompanied by leg
ible copies of the additional documents adequately
indexed to relate them to the affidavit to be filed
and served is also reasonable to the extent that the
plaintiff does not already have them in that gener
al form. In stipulating that such copies be so
delivered, I rely on responsible counsel not to
demand a duplication of material, already in hand
and properly identified in relation to the affidavit,
to be delivered.
2 The fact that the Court must grant leave to file a list
verified by affidavit and not a bare list of documents would
appear to confirm the intention that further examination is to
follow such order since there is a right, in any case, to examine
on the affidavit.
While tempted in the circumstances to accede to
the plaintiff's request that the defendant undertake
that the documents disclosed by the affidavit,
along with those disclosed in the list duly filed, will
be exhaustive of the documents the defendant
proposes to rely on, I do not think I can properly
do so. That will be a matter for the Trial Judge or
another application if additional documents are
tendered.
One of the documents on the list dated March
26, 1975 is designated:
52) Certificate of Merger, Moore Dry Kiln Company—U.S.
Natural Resources, Inc., 31 December, 1969.
It is said that that is a document issued by a public
authority of the State of Florida. As a. condition of
the production of that document, I direct that the
defendant also produce copies of all other docu
ments on the public records of the issuing author
ity of the certificate leading to its issuance and all
other documents in the plaintiff's possession rele
vant to establish the true nature and substance of
the "merger" so certified in so far as that true
nature and substance is, in turn, relevant to the
issues of this action. The defendant may, if it
properly objects to the production of any of the
latter documents, disclose the same and state its
objection.
Finally, the plaintiff is entitled to its costs in any
event of the cause.
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.