T-171-77
Peter Rasins (Plaintiff)
v.
Foodcorp Limited and Wilf Johnsen (Defendants)
Trial Division, Mahoney J.—Toronto, January 21;
Ottawa, January 25, 1980.
Practice — Examination for discovery — Corporate defend
ant — Order sought to compel attendance of appropriate
corporate officer for examination for discovery — Appropriate
officer now living abroad — Whether or not Court has author
ity to make order sought — Whether or not defendant must
produce this officer for examination — Federal Court Rules
447, 465.
Lido Industrial Products Ltd. v. Teledyne Industries, Inc.
[1979] 1 F.C. 310, distinguished.
APPLICATION.
COUNSEL:
P. H. Mandell for plaintiff.
C. L. Sarginson for defendants.
SOLICITORS:
Mandell, James, Toronto, for plaintiff.
Rogers, Bereskin & Parr, Toronto, for
defendants.
The following are the reasons for order ren
dered in English by
MAHONEY J.: When this matter first came
before the Court, the plaintiff's application was
dismissed without prejudice to its right to reapply
when it had complied with the requirements of
Rule 447, which is, under Rule 465(3), a prerequi
site to any order requiring an adverse party to
attend for examination for discovery. The plaintiff
now reapplies for an order requiring the corporate
defendant to produce its Chairman of the Board,
Richard Maurin.
I am entirely satisfied that Maurin is the proper
officer to be examined. The problem is that since
the action was commenced, Maurin has moved
from Canada to Great Britain. The corporate
defendant cites the Court of Appeal decision in
Lido Industrial Products Limited v. Teledyne
Industries, Inc.' in support of its position that the
Court has no authority to make the order sought.
That case dealt with the particular situation of
assignors of patents sought to be examined under
Rule 465(5). Such persons are not parties to the
action and, while the Rule refers to their examina
tion as "examination for discovery" it does not, as
the then Chief Justice observed commencing at
page 313, "fall within what is ordinarily thought
of as an examination for discovery". He went on
[at pages 313-314]:
It is not an examination for discovery of one party by another;
it is a pre-trial questioning of a potential witness, and the only
person who can be questioned thereunder is the assignor of the
property right that is the subject of the litigation, who is subject
to being questioned whether or not he is an officer or other
employee of the opposing party.
The mode of enforcing attendance for examination of a
person subject to questioning by virtue of Rule 465(5) is a
subpoena (Rule 465(9)); as such a person is not necessarily
under the control of the opposing party, that party does not
become subject to having his defence struck out or to having his
action dismissed by reason of such person failing to attend and
answer as required. (Rule 465(20).) Presumably, Rule 465(12)
contemplates the Court authorizing such an examination taking
place outside Canada but one does not find anything in the
Rules authorizing the Court to order such a person to appear
for examination inside or outside Canada; and any such author
ity would not be expected having regard to the provision for a
subpoena in Canada and the Court's inability to issue orders or
other process having effect outside its geographical jurisdiction.
(See McGuire v. McGuire [1953] O.R. 328.) In other words,
there is an implied limitation, as far as Rule 465 is concerned,
on the ambit of Rule 465(5) in that it cannot operate where the
person to be examined is outside Canada and cannot be made
the subject of a subpoena issued out of a Canadian Court.
This is quite a different situation. Its only
unusual aspect is Maurin now resides outside
Canada. This application does involve the exami
nation of a party to the action which, because it is
a corporation, must, of necessity, be examined,
under Rule 465(1)(b), through the medium of an
officer. Such a person is, in this context, "under
the control" of the corporation and, if it does not
produce him, it is subject to having its defence
struck out pursuant to Rule 465(20).
I [1979] 1 F.C. 310.
The attendance of an assignor for examination
under Rule 465(5) can only be enforced by a
subpoena under Rule 465(9). However, Rule
465(8) expressly contemplates that the attendance
of an officer for examination under Rule
465(1)(b) may be enforced by service of an
appointment issued under Rule 465(7) and that,
by leave, service of the appointment may be effect
ed upon the corporate party's solicitor, rather than
the officer himself.
ORDER
The plaintiff may issue an appointment for the
examination for discovery of the corporate defend
ant under Rule 465(7), naming Richard Maurin as
the individual to be questioned. The place of the
examination will be located at or near Toronto,
Ontario, and the date not earlier than April 1,
1980. The appointment may be served on the
corporate defendant's solicitor under Rule 465(8).
Appropriate conduct money will include the cost
of a round trip economy air fare between London,
England and Toronto, Ontario, via Air Canada,
and the sum of $100 per day for each day it is
estimated Maurin will necessarily be in Toronto
for the examination including a clear day before
the date upon which the examination is to com
mence. The plaintiff will be entitled to an account
ing for the conduct money paid upon taxation of
costs of the action.
The plaintiff is entitled to costs of this
application.
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.