T-5189-73
Paul D. Bowlen (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Smith D.J.—Calgary, July 20 and
August 19, 1976.
Income tax—Practice—Motion by defendant under Rule
464 for order to produce documents in possession of Royal
Bank of Canada with respect to plaintiff and others for
inspection by defendant and to prepare certified copies of said
documents--Plaintiff seeking declaration that no portion of
additional income of $2,406,814.92 added to taxable income
for taxation years 1963-70 is or should be included in his
income—Defendant claiming amounts properly added and
action should be dismissed Jurisdiction to order Canadian
resident to produce documents situated outside Canada
Whether 'fishing expedition" or attempt to obtain discovery,
from stranger to action—Previous decisions difficult to
reconcile—Motion maintained—Federal Court Rule 464—
Bank Act, R.S.C. 1970, c. B-1.
The statement of claim seeks a declaration that no portion of
additional income of $2,406,814.92 assessed for taxation years
1963-70 is or should be included in plaintiff's income. Defence
claims that the sums are properly added thereto and the action
should be dismissed. In issue are three transactions that took
place on May 9, 1963 in which: (a) plaintiff purchased $6,891,-
647.59 in demand debentures from R. Ltd.; (b) R. Ltd. pur
chased a debenture from H. Ltd. in same amount; and (c) H.
Ltd. purchased securities from plaintiff having total market
value of $6,891,647.59. All transactions were paid for by
cheque. Both R. Ltd. and H. Ltd. were incorporated in the
Bahamas. Defence claims that the purpose of incorporation of
these companies by plaintiff was to have offshore companies to
which he could legally divert his personal income and capital.
Pleadings show that plaintiff controlled R. Ltd., its shares being
held by Trust Corporation of Bahamas Limited in trust for his
wife and children. Substantial ownership or control of H. Ltd.,
alleged by defendant, was denied by plaintiff. Defence alleges
that all three transactions were shams and that none of pur
chasers had sufficient funds to cover the cheques involved. All
three transactions took place at the New York Branch of Royal
Bank of Canada which has or has had possession of documents
relevant to issues in dispute. The question is whether the order
asked for may be made and if so whether it should be limited.
Jurisdiction to order production of documents situated out
side Canada for use in litigation in a Canadian Court by a
resident of Canada is well settled. Royal Bank of Canada is
domiciled in Canada and special relationship with customers or
inconvenience to bank is no bar. The present motion was
brought under Rule 464(1) of the Federal Court Rules. The
provinces have similar Rules. It is generally agreed they are not
intended to authorize obtaining discovery from a stranger to an
action nor engaging in a "fishing expedition". Distinction as to
intention has resulted in decisions difficult to reconcile. Recent
cases hold that orders for discovery are not limited to docu
ments admissible at trial but the general rule remains as stated
in McCurdy v. Oak Tire & Rubber Co. Limited: the rule is not
intended to be used as means of obtaining discovery from a
stranger to an action but merely to simplify procuring of
evidence for presentation at trial.
Held, the application is granted. Production may be of all
documents in possession of a stranger to an action providing
they are sufficiently described and relevant to the issues be
tween the parties to the extent that it is likely their production
would be compellable at trial. Some documents have not been
seen by defendants but alleged purposes of incorporation of R.
Ltd. and H. Ltd. and relationship between them and plaintiff
suggests they are likely relevant and no "fishing expedition" is
involved.
Robertson v. St. John City Railway Company (No. 1)
[1892] New Brunswick Equity Cases 462 and Hannum v.
McRae (1898) 28 O.R. 185 (Ont. C.A.), followed.
McCurdy v. Oak Tire & Rubber Co. Limited (1918) 44
O.L.R. 235; Trustee of the Property of Lang Shirt Co. v.
London Life Insurance Co. (1926) 31 O.W.N. 285; Doig v.
Hemphill [1942] O.W.N. 391; Weber v. Czerevko [1962]
O.W.N. 245; McGilly v. Cushing [1964] 2 O.R. 544;
Markowitz v. Toronto Transit Commission [1965] 2 O.R.
215; Kokan v. Dales [1970] 1 O.R. 465; Coderque v.
Mutual of Omaha Insurance Co. [1970] 1 O.R. 473 and
Rhoades v. Occidental Life Insurance Company of Cali-
fornia [1973] 3 W.W.R. 625, applied. Elder v. Carter
(1890) 25 Q.B.D. 194, distinguished.
MOTION.
COUNSEL:
H. S. Prowse, Q. C., for plaintiff.
M. R. V. Storrow for defendant.
J. Chipman, Q.C., for Royal Bank of Canada.
SOLICITORS:
Fenerty, Robertson, Brennan, Prowse, Fraser,
Bell & Hatch, Calgary, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is a motion by the defendant
for an order
(1) directing the Royal Bank of Canada to produce and allow
the inspection by officers of the Defendant all ledgers, records,
memoranda, correspondence, documents and other records in
the possession of the Royal Bank of Canada with respect to
Paul D. Bowlen, the Plaintiff herein, Regent Tower Estates
Limited, Hambeldon Estates Limited, Tico Estates S.A. and
Bowlen Investments Ltd., wheresoever found including, without
restricting the generality of the foregoing, the documents set
out in Schedule A hereto which documents were sent, received,
prepared or originated by the Royal Bank of Canada, its agents
or servants in the course of carrying on its business.
(2) directing the preparation of certified copies of the said
documents.
On the hearing of the motion counsel for the
defendant stated that the defendant was not, at
this time, seeking production of documents with
respect to Tico Estates S.A.
Schedule A to the motion contains a list of 319
documents.
The statement of claim in the action states that
the Minister of National Revenue has re-assessed
the plaintiff in respect of each of his 1963 to 1970
taxation years, adding to his income as previously
assessed substantial amounts for each year, totall
ing in all the sum of $2,406,814.92. It asks for a
declaration that no portion of this sum is the
plaintiffs income and that no portion thereof
should be included in his income.
The statement of defence states that the
amounts added to the plaintiffs income by the
notices of re-assessment were properly added
thereto and asks that the action be dismissed.
The true nature, purpose and effect of three
transactions all of which took place on the 9th day
of May 1963 are very much in issue in the action.
According to the statement of claim these were as
follows:
1. On or about the 9th day of May 1963 the
plaintiff purchased from Regent Tower Estates
Limited (hereinafter called Regent) demand
debentures of that company in the total amount
of $6,891,647.59 Canadian funds and paid that
sum to Regent by cheque.
2. On or about the 9th day of May 1963 after
completion of transaction number 1, Regent
purchased a debenture of Hambeldon Estates
Limited (hereinafter called Hambeldon) in the
same amount and paid that sum to Hambeldon
by cheque.
3. On or about the 9th day of May 1963 Ham-
beldon purchased from the plaintiff securities
consisting of shares, bonds and debentures
having a total market value of the same amount,
$6,891,647.59, and paid that sum to the plaintiff
by cheque.
Both Regent and Hambeldon were incorporated
under the Companies Act of the Bahama Islands.
The statement of defence says that the purpose
of the plaintiff in causing these two companies to
be incorporated was to have offshore companies
available to him so that he would be able to give
the "appearance" of legally diverting income and
capital which was properly his personal income
and capital to either or both of Regent and
Hambeldon.
From the pleadings it seems clear that the plain
tiff controlled Regent at all material times, its
shares being held by Trust Corporation of Baha-
mas Limited in trust for his wife and children. The
statement of defence states that at all material
times the plaintiff owned substantially or other
wise controlled all the shares of Hambeldon. This
is denied by the plaintiff.
The statement of defence then says that all three
transactions of May 9, 1963 were shams or similar
transactions and that none of the purchasers had,
at any material times sufficient funds to cover
their respective cheques.
At the hearing of this motion it was stated by
counsel for the defendant, and not denied, that all
three of the foregoing transactions took place at
the New York branch of the Royal Bank of
Canada.
There can be no doubt that the Royal Bank has
or has had in its possession documents relevant to
the issues in this action. In fact, most if not all, of
the 319 documents listed in Schedule A to the
notice of motion have been seen at the New York
branch of the Bank, by representatives of the
defendant.
Counsel for the defendant submits that the
availability of the said 319 documents and of other
documents in the possession of the bank relating to
the matters in issue in the action, for presentation
to the Court at the trial, is vital to the defendant's
case. The question before me is whether the order
asked for may properly be made, and if so, should
it be limited in its application.
The jurisdiction of the Court to order a person
resident in Canada to produce documents situated
outside Canada for use in litigation in a Canadian
court, though that person is not a party to the
action, is well settled. The Royal Bank of Canada
is a banking corporation created under the Bank
Act', having its head office at the City of Mont-
real. It is domiciled in Canada. The fact that the
documents whose production is asked for, or most
of them, are situate at the Bank's branch in the
City of New York, U.S.A., is no bar to the Court
making an order of the kind sought (Robertson v.
St. John City Railway Company (No. 1) 2 ). Nei
ther is the special relationship of a bank to its
customers nor the fact that compliance with such
an order may occasion inconvenience to the bank.
(Hannum v. McRae 3 .)
The present motion is brought under Rule 464
of the Federal Court Rules. Subsection (1) of this
Rule reads:
Rule 464. (1) When a document is in the possession of a
person not a party to the action and the production of such
document at a trial might be compelled, the Court may at the
instance of any party, on notice to such person and to the other
parties to the action, direct the production and inspection
thereof, and may give directions respecting the preparation of a
' R.S.C. 1970, c. B-1.
2 [ 1892] New Brunswick Equity Cases 462 at p. 467.
3 (1898) 28 O.R. 185 (Ontario Court of Appeal).
certified copy which may be used for all purposes in lieu of the
original.
Ontario Rule 349, formerly 350, is in identical
terms except that it has the words "opposite party"
instead of "other parties to the action", which
difference has no significance for our purposes. In
British Columbia and probably other provinces a
Rule in very similar terms exists. There has been a
good deal of controversy as to the true meaning
and application of the Rule, which controversy has
not yet been fully resolved. There has, however,
been general judicial agreement that the Rule is
not intended to authorize obtaining discovery from
a stranger to the action nor engaging in a fishing
expedition. Much of the controversy that has
arisen is due to the fact that the distinction be
tween what is and what is not a fishing expedition
and likewise the distinction between what is and
what is not seeking discovery from a stranger to
the action seem to be affected by the facts and
circumstances of each case. The result is, at least
to my mind, that some of the decisions are difficult
to reconcile.
The case of McCurdy y. Oak Tire & Rubber
Co. Limited 4 has frequently been cited and fol
lowed, as one that lays down the general rule. In it
Middleton J. said [at page 235]:
I am clear that Rule 350 [now 349] was intended to simplify
the procuring of evidence, and to avoid the taking of a witness
who is the custodian of documents to a trial, and was not
intended to be a means of obtaining discovery from strangers to
an action.
A few years later, in Trustee of the Property of
Lang Shirt Co. v. London Life Insurance Co.' the
Master (Darrow) stated the matter more explicit
ly. He said [at page 286]:
The Rule applies not to discovery at all, but to the production
and inspection for the purposes of the trial, including the
making of certified copies, of documents shewn to be in the
possession of a stranger to the action, the production of which
might be compelled at the trial. Before any order can be made
under it it must be made to appear that the stranger to the
action has in his possession certain specific documents which
the Court would in all probability admit at the trial as evidence
in respect of some of the issues in the action.
4 (1918) 44 O.L.R. 235.
5 (1926) 31 O.W.N. 285.
Doig v. Hemphill 6 is another case frequently
cited as indicating limits to the production of
documents under Ontario Rule 350. In that case
the defendant had acted for the plaintiffs and also
for a number of other persons, as agent in dealings
on the grain market. All purchases and sales were
made through Parrish & Heimbecker Limited,
brokers, and all of them were made in the defend
ant's own name. The plaintiffs applied for an order
that the brokers should produce for inspection
their records of all orders for sales and purchases
given by the plaintiffs during a specified period.
The Master, F. H. Barlow, K.C., said, at page 392:
The dealings of the defendant with the brokers, Parrish &
Heimbecker Limited were in his own name on behalf of the
plaintiffs and several other persons and it, therefore, follows
that a production and inspection of the brokers' books and even
a certified copy thereof, will not be of any assistance to the
plaintiffs at the trial without calling as a witness someone from
the brokers' office. It is clear that the purpose of this applica
tion is to obtain discovery from Parrish & Heimbecker Lim
ited, a stranger to the action. This is contrary to the proper
interpretation of Rule 350.
Twenty years later, in Weber v. Czerevko 7 in the
Ontario High Court of Justice, the Master
(Kimber) gave a similar opinion. In that case a
nurse's aide claimed that she had been assaulted
and injured by the defendant, who with others
operated the small hospital where the plaintiff
worked. The plaintiff had suffered from a nervous
disorder prior to the occurrence complained of.
The defendant applied for an order directing the
St. Catharines General Hospital and the Hotel
Dieu Hospital to produce all of the medical
records and history in any way pertaining to the
treatment of the plaintiff. The Master referred [at
page 246] to Doig v. Hemphill, saying:
In the last mentioned case the master (Barlow) makes it
clear that Rule 349 is not designed to give the right to discovery
from a third person. That, in fact, is what the defendant is
asking for in this case. The defendant does not know whether
there are any records that would be of assistance to him, nor
what those records will disclose if they in fact do exist. He will
6 [1942] O.W.N. 391.
[1962] O.W.N. 245.
• be embarking upon a fishing expedition to see if he may
discover something which will be of assistance to him at the
trial. In fact, what he is asking for is no different from asking
for the right to examine a potential trial witness.
While it might have facilitated the administration of justice
had this Rule been given a wider interpretation, the authorities
are quite to the contrary and this application must be
dismissed.
We now turn to a more recent case which had a
different result: McGilly v. Cushing$. This was an
appeal by the defendant from an order of the
Master refusing production by the plaintiff of
medical records. The defendant asked leave to
amend her application by asking in the alternative
for an order under Rule 349 directing the produc
tion and inspection of the medical reports of the
Toronto General Hospital upon the plaintiff in
respect of her hospitalization and treatment for the
injuries which were the subject matter of the
action. Haines J. said, at the bottom of page 544
and continuing on page 545:
It is apparent that the medical record contains important
information that ought to be before the Court ... and that the
production of this medical record might be compelled by either
party at the trial through the simple expedient of a subpoena
duces tecum.
The applicant submits that the medical record should be
produced now and I am inclined to agree. A properly compiled
medical record is a team effort containing the reports of
doctors, technicians, nurses and other members of the staff.
When its production is obtained for the first time at the trial
through the medium of a subpoena much of the important
information cannot be admitted in evidence since its introduc
tion offends the hearsay rule. A party desiring to introduce this
evidence is then compelled either to ask for an adjournment
which causes great loss of time of the Court, counsel and
witnesses or to endeavour hastily to locate those who have made
the reports and place them under subpoena. This results in
great inconvenience to witnesses who are summoned peremp
torily to appear on a few hours notice, and furthermore causes
disruption to the work of the witness and those members of the
community served by him. It seems to me that it is the duty of
this Court so to direct the use of its processes that there will be
timely disclosure to the parties of material facts in the posses
sion of persons not parties to the litigation and thereby an
opportunity be afforded the parties to arrange for the attend
ance of witnesses with some regard to the other commitments
of the witnesses. In this respect I take especial cognizance of
the demands of the community on the medical and paramedical
services.
On page 546 he said, in part:
8 [1964] 2 O.R. 544.
An order will go directing the proper officers of the Toronto
General Hospital to permit the applicant, or his solicitors, to
inspect and receive information from the medical record of the
plaintiff....
In Markowitz v. Toronto Transit Commission 9
Thompson J. agreed with Haines J.'s opinion in
the McGilly case that previous inspection, i.e.,
before trial, should be ordered for the purpose of
facilitating proof at trial of the information therein
contained.
Then in Kokan v. Dales 10 , Lacourciere J. agreed
with both Haines J.'s and Thompson J.'s view. At
page 468 he said:
It seems to me that Rule 349 by its terms is not restricted
only to documents admissible at trial....
The fact that some medical records are compellable at trial
by subpoena but are not admissible at trial as being statements
of opinion, diagnosis, impression, or of events which occurred
outside of the hospital prior to admission, dictates that such
medical records should be produced for inspection prior to trial
so as to facilitate proof of the information therein contained at
trial.
And at page 470 he said:
While the order [under Rule 349], if made, may indirectly be a
discovery of documents in the hands of the third party, the
application is not brought for the purposes of discovery, but
rather to facilitate proof of information at trial, and therefore
there is no more an element of discovery present in this case
than was present in McGilly v. Cushing and the many cases
that followed it. Some documents and entries in the record
might be quite irrelevant to the action and perhaps embarrass
ing to the plaintiff and even scandalous and as such cannot be
used at trial. I agree with counsel, however, that it is impossible
to determine if these qualities exist without first seeing the
documents and records, and their admissibility at trial will have
to be determined by the trial Judge.
Coderque v. Mutual of Omaha Insurance Co."
is another case in which production of medical
documents and reports in the possession of a
doctor was ordered on the application of the
defendant. Keith J. said, at page 477:
9 [1965] 20.R.215.
1 ° [1970] 1 O.R. 465.
" [1970] 1 O.R. 473.
This is not a question of obtaining discovery from a third
party. It is perfectly apparent, both from the affidavit of Mr.
Cornwall in his cross-examination on it that the defendant is
well aware of the fact that Dr. Will is in possession of docu
ments, specifically electrocardiograph reports and others, that
have a most direct bearing on the very issue which is between
the parties in this case. This is no fishing expedition.
Keith J. did not, however, agree with the argu
ment of defendant's counsel that a whole new line
of authority had developed with the case of
McGilly v. Cushing. He said [at page 477]:
I do not agree. In my opinion Haines, J., in the McGilly v.
Cushing case, above referred to, did not depart from the
principles laid down in the original case of McCurdy v. Oak
Tire Co. from which this controversy stems and, indeed,
Thompson, J., in the Markowitz case expressly found that there
was no deviation in principle.
There is one further case I wish to refer to,
namely, Rhoades v. Occidental Life Insurance
Company of California 12 . This was a decision of
the British Columbia Court of Appeal. Like the
Coderque case it was a claim under a life insur
ance policy. The defendant insurance company
pleaded that the insured died by suicide within two
years of the issue of the policy, and, further, that
the policy had been rendered void or voidable by
misrepresentation or failure to disclose suicidal
tendencies. The defendant applied under O. 31, R.
20A (M.R. 362A) of the Rules of the Supreme
Court of British Columbia for the production,
inspection and copying of all documents in the
possession of Dr. James E. Miles and University of
British Columbia Health Sciences Hospital rele
vant to the death of the insured, including docu
ments outlining her medical history and all notes,
records and tests related to her mental or physical
health.
McFarlane J.A. (in whose judgment Robertson
J.A. concurred) referred to Ontario cases, e.g.:
McCurdy v. Oak Tire and Doig y, Hemphill
(supra) as holding that the comparable Ontario
Rule was intended merely to simplify the procur
ing of evidence for presentation at trial and was
not intended to be used for the purpose of compell
ing discovery by a person not a party to the action.
He stated that in Doig v. Hemphill, Barlow
(Master) had quoted from Lindley L.J. in Elder v.
12 [1973] 3 W.W.R. 625.
Carter 13 and had said, "This is clearly applicable
to our Rule 350."
McFarlane J.A. then pointed out that the Eng-
lish Rule 14 under which Elder v. Carter was decid
ed dealt only with production of documents, and
not with their inspection as did British Columbia
Rule O. 31, R. 20A. Further the English Rule was
directed to enforcing the attendance of a person,
while the British Columbia Rule was directed to
production and inspection. The British Columbia
Rule in effect before 1970 had been identical with
the English Rule under which Elder v. Carter was
decided. The learned Judge of Appeal could not
accept the idea that the introduction of the new
British Columbia Rule, O. 31, R. 20A in 1970 left
matters virtually unchanged. For these reasons he
said the reasoning based on Elder v. Carter was
not applicable in British Columbia.
McFarlane J.A. then quoted Middleton J.'s
short statement in McCurdy v. Oak Tire about the
intended effect of Ontario Rule 350 (supra), and
noted that Middleton J.'s statement gave no
apparent effect to the word "inspection". He con
cluded by saying he did not feel he "should apply
McCurdy v. Oak Tire here" and noted that later
decisions in the Ontario courts had given a less
restricted meaning to Rule 350 than had been
given in that case.
McFarlane J.A. at page 628, agreed that the
Rule should not
... be used for the mere purpose of obtaining discovery from a
person not a party. This would be a "fishing expedition", i.e.,
an attempt to discover whether or not that person is in posses
sion of a document, the production of which might be compel-
lable at trial and if so, the nature of the document. The reason
why a fishing expedition is not permissible is that the Rule
envisages an application being made with respect to a particu
lar document and an order for the production and inspection of
that document. It must therefore be shown to the court or judge
that such a document is in the possession of a person who is not
a party to the action before an order can be made for the
13 (1890) 25 Q.B.D. 194 at 198.
14 Order XXXVII, r. 7.
production of the document by him. I do not, however, think
that the description of the document sought must be so specific
that it could be picked out from among any number of other
documents.
In the case before him he thought the descrip
tion of the documents in the notice of motion
launching the application was sufficient.
Branca J.A., the third judge sitting on the
appeal, wrote a separate judgment, agreeing in the
result.
In my opinion, after a careful study of all the
cases referred to above, and of others cited to me,
the limitations contained in Middleton J.'s state
ment in McCurdy v. Oak Tire & Rubber Co.
(supra) of the purpose of Rule 350 has been
broadened to some extent by the recent decisions
mentioned and others to a similar effect. This
broadened purpose first appeared in McGilly v.
Cushing. Its application in particular circum
stances has been explained in cases subsequent to
it.
It is true that all the recent cases referred to
above were cases in which the documents of which
production was ordered were medical or hospital
documents, records and reports, but I see no
reason why the result should be different in other
kinds of cases, provided the conditions are right. It
is clear that the production sought need not be of
one particular document only, but may be of all
the documents in the possession of a person not a
party to the action, provided they are sufficiently
described as to indicate their relevance to the
issues between the parties, more particularly to the
applicant's case. They must thus be documents of
which it is likely that production would be com
pelled at the trial. This does not mean that they
must be admissible as evidence at the trial, at
which time their admissibility will be determined
by the trial judge.
In the present case the defendant's representa
tives have seen 319 of the documents of which her
counsel is seeking production, inspection and
preparation of certified copies at the New York
Branch of the Royal Bank of Canada. Counsel
submits that he cannot prove these documents
unless the application is granted. These 319 are
specific documents which are sufficiently
described by names and dates and in some cases by
subject matter. Counsel is also seeking production,
inspection and certified copies of all other docu
ments in the possession of the Royal Bank of
Canada with respect to the plaintiff Paul D.
Bowlen, Regent, Hambeldon and Bowlen Invest
ments Ltd. In view of the purposes for which the
defendant alleges Mr. Bowlen had Regent and
Hambeldon incorporated in the Bahamas, the rela
tionship alleged to exist between the plaintiff and
these two corporations, and particularly in view of
the allegation that the three transactions, each
involving a cheque for $6,891,647.59, all made on
the 9th day of May 1963 and involving the plain
tiff and Regent and Hambeldon, were all carried
out at the New York branch of the Royal Bank of
Canada, it appears to be certain that the Royal
Bank has in its possession a number of documents
relevant to the defendant's case. From what was
said by counsel at the hearing it seems more than
likely that some of such documents have not been
seen by representatives of the defendant. I do not
consider that asking for all documents in the
possession of the Bank is any more a fishing
expedition than was asking for the production of
all documents in the possession of the doctor or
hospital in the medical cases. The purpose alleged
to have led to the incorporation of Regent and
Hambeldon and the relationship alleged to exist
between the plaintiff and those companies indi
cates that almost every transaction between them
or between him and one or both of them is highly
likely to be relevant to the defendant's case, as will
the documents relating to all such transactions.
On this point I agree with the words of Lacour-
ciere J. in Kokan v. Dales (supra) at page 470 of
the report and hold them applicable to the present
case. He said:
While the order [under Rule 349], if made, may indirectly be a
discovery of documents in the hands of the third party, the
application is not brought for the purposes of discovery, but
rather to facilitate proof of information at trial, and therefore
there is no more an element of discovery present in this case
than was present in McGilly v. Cushing and the many cases
that followed it.
The application is granted. There will be an
order directing the Royal Bank of Canada,
through its proper officers, to arrange for the
production to and permit the inspection by officers
of the defendant of all ledgers, records, memoran
da, correspondence, documents and other records
in the possession of the Royal Bank of Canada
with respect to Paul D. Bowlen, the plaintiff
herein, Regent Tower Estates Limited, Hambel-
don Estates Limited and Bowlen Investments Ltd.,
wheresoever found, including, without restricting
the generality of the foregoing, the documents, 319
in number, set out in Schedule A to the notice of
motion herein, which documents were sent,
received, prepared or originated by the Royal
Bank of Canada, its agents or servants in the
course of carrying on its business.
Since it seems that most if not all of the above
described documents are located at the New York
Branch of the Royal Bank of Canada it will prob
ably be convenient for all parties to have the
production and inspection, at least of the docu
ments located in New York, take place there.
Unless the parties otherwise agree the production
and inspection shall begin not later than three
weeks from the date of delivery of this order to the
plaintiffs solicitors and the Bank's solicitors. The
production and inspection shall be at the cost of
the defendant. The plaintiff's solicitors shall have
the right to be present at the production, to inspect
the documents and make copies thereof.
The order will further direct that the Bank
arrange that a copy be prepared for certifying of
all documents indicated by the defendant's offi
cers. If the defendant and the Bank agree, the
copies may be prepared by the Bank and certified
by one of its proper officers, at the cost of the
defendant. Otherwise the copies shall be prepared
by or under the direction of the defendant's offi
cers and certified either by one of them or by one
of the Bank's proper officers.
As between the defendant and the plaintiff the
final allocation of the costs of the production,
inspection, copying and certifying will be left for
the decision of the trial judge. The costs of this
motion will be costs in 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.