A-565-82
Polylok Corporation (Appellant) (Defendant)
v.
Montreal Fast Print (1975) Ltd. (Respondent)
(Plaintiff)
Court of Appeal, Thurlow C.J., Heald J. and
McQuaid D.J.—Toronto, November 21; Ottawa,
December 15, 1983.
Practice — Judgments and orders — Order of Trial Judge
granting application for examination for discovery of named
person — Whether jurisdiction in Trial Judge, on motion for
reconsideration and correction, to amend order by substituting
another for person originally designated — Scope to be given
slip Rule — On facts, amendment authorized as failure to
name other person error arising from "accidental slip or
omission" — However, on merits, Court of Appeal justified in
interfering with exercise of discretion by Trial Judge as mat
ters not considered or not given adequate weight — Amending
order set aside — Appeal allowed — Federal Court Rules,
C.R.C., c. 663, RR. 337(1),(2),(4),(5),(6),(7), 465(1),(7),(8),(9),
(12),(13),(15),(17),(19), 494(9).
In an order made in the course of an action for the impeach
ment of a Canadian patent, the Trial Judge granted an applica
tion to examine for discovery the president of the respondent
company. There was nothing ambiguous or uncertain about the
order.
On a motion for reconsideration and correction of that order,
the Trial Judge, saying he had, by inadvertence, omitted to
include his finding regarding who should be examined for
discovery, amended his first order by substituting another
officer for the president. The effect of the amendment was to
completely reverse what had been ordered. The issues involved
in this appeal are whether the Trial Judge had authority to
make such an amendment and whether the order as amended
should be sustained on the merits.
Held, the appeal should be allowed.
Per Thurlow C.J. (Heald J. concurring): Rule 337(6) should
be given a scope which is broad enough to enable the Court to
amend so as to make a judgment conform to what was intended
when it was pronounced, but it cannot be used to authorize a
judge to alter his judgment so as to reflect a change of mind as
to what the judgment should have been. On the facts of this
case, it appears that the Trial Judge had, on the earlier
occasion, decided who the person to be examined was to be, but
had inadvertently omitted to make the order reflect the finding
he intended to include. It was thus an error arising from an
"accidental slip or omission" within the meaning of the Rule
and the Judge therefore had authority to make the amendment.
As to whether the amendment itself should be sustained, the
rule is that the Judge may exercise his discretion to substitute a
more appropriate officer for the one chosen by the examining
party only if there is a compelling reason to do so. In this case,
the Court is justified in interfering with the Trial Judge's
exercise of his discretion because certain matters were either
not considered or not given adequate weight. The amending
order, therefore, should not have been made.
Per McQuaid D.J.: The essence of the initial order was the
determination of precisely who should be examined for discov
ery. Any "accidental slip or omission" must be on the face of it
inherent and rationally accountable for. In this case, the Trial
Judge appears to have reconsidered the arguments and effec
tively reversed himself, as though he were sitting on appeal in
review of his own earlier decision. He therefore acted without
authority or jurisdiction. The second issue, then, need not be
considered.
CASES JUDICIALLY CONSIDERED
APPLIED:
Crabbe v. The Honourable Donald C. Jamieson, Minister
of Transport, [1973] F.C. 1091 (C.A.); Ainsworth v.
Wilding, [1896] 1 Ch. 673; Firm of R.M.K.R.M. v. Firm
of M.R.M.V.L., [1926] A.C. 761 (P.C.); Evans v. Bart-
lam, [1937] A.C. 473 (H.L.); Charles Osenton and Com
pany v. Johnston, [1942] A.C. 130 (H.L.); Ward v.
James, [1966] 1 Q.B. 273 (C.A.).
DISTINGUISHED:
Paper Machinery Limited et al. v. J. O. Ross Engineering
Corporation et al., [1934] S.C.R. 186; Adidas Sport-
schuhfabriken Adi Dassler K.G. et al. v. Kinney Shoes of
Canada Ltd. (1971), 2 C.P.R. (2d) 227 (Ex. Ct.).
REFERRED TO:
International Business Machines Corporation v. Xerox of
Canada Limited et al. (1977), 16 N.R. 355 (F.C.A.).
COUNSEL:
Ronald Dimock and Gordon Zimmerman for
appellant (defendant).
G. A. Macklin, Q.C. for respondent (plain-
tiff).
SOLICITORS:
Sim, Hughes, Toronto, for appellant (defend-
ant).
Gowling & Henderson, Ottawa, for respond
ent (plaintiff).
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This appeal is from an order of
the Trial Division which amended a previous order
made by the same Judge in an action for impeach
ment of Canadian patent number 1,097,488 held
by the appellant. Two issues are involved in the
appeal: the first, whether the Judge had authority
to make such an amendment; the second, whether
the order as amended should be sustained on the
merits.
The first of the two orders was made on May
17, 1982, on an application on behalf of the appel
lant for several orders in the action, including an
order:
(c) that the President of the Plaintiff, Mr. J.S. Fryml,
present himself for examination for discovery as an officer of
the Plaintiff at the Federal Court Offices in the City of
Toronto at a date to be agreed upon by counsel and that the
appointment for said examination for discovery may be
served upon the solicitors for the Plaintiff pursuant to Rule
465(7);
Having heard argument, the learned Judge
reserved his decision and later in the day, by a
document which recited the several orders applied
for, ordered, inter alia:
3. Paragraph (c) is granted.
No reasons for the order appear in the record.
It may be as well to note at this point that, while
under Rule 465(8) [Federal Court Rules, C.R.C.,
c. 663] an order giving leave to serve a notice of
appointment for examination for discovery by
delivering the notice to the respondent's solicitor
would be required if the parties could not agree,
the only matter of substance requiring a decision
by the learned Judge on the application of para
graph (c) was that of deciding who should be
examined for discovery to be given by the
respondent.
Of the material filed by the appellant in support
of the application, the only statement relevant to
that question was that in paragraph 5 of the
affidavit of Paul Sutton, a New York lawyer
acting on behalf of the appellant in the United
States and as instructing counsel to Canadian
counsel in the action. The paragraph says:
5. As stated in the affidavit of Geoffrey I. Hollings herein
sworn the 24th day of March, 1982, I am also informed that
Mr. J.S. Fryml is the president of the Plaintiff herein.
An affidavit of Geoffrey I. Hollings, filed on
behalf of the respondent, is somewhat more infor
mative. It says:
1. I am the General Manager for Les Créations Lydia, a
division of Montreal Fast Print (1975) Ltd., the Plaintiff
herein, and as such have knowledge of the matters hereinafter
deposed to except where stated to be based on information and
belief.
2. The head office and principal place of business of the
Plaintiff is at 9500 St. Lawrence Blvd. in the City of Montreal.
The Plaintiff has no place of business in Toronto, aside from
the offices of agents and representatives of the Plaintiff.
3. I am the general manager of the Plaintiff in charge of the
Plaintiffs operations in Canada and my duties include being in
charge of all the activities of Les Créations Lydia, including
manufacturing, sales and development of the malimo opera
tions of the Plaintiff. Furthermore, I have been assigned the
responsibility of looking after the Plaintiffs interests in the
self-lined malimo field, including direct control and authority
over the prosecution of the within impeachment action of
Canadian Letters Patent No. 1,097,488.
4. I am also general manager of the Plaintiffs sister corpora
tion, American Fast Print in Spartanburg, South Carolina.
5. Mr. J.S. Fryml, the President of the Plaintiff, lives outside of
Canada and visits the plant in Montreal only occasionally and
is not involved in its day-to-day operation. I have kept Mr.
Fryml informed in respect of this action, but only as to the
general progress of the action and he is not aware in detail of
the issues involved in this action. Nearly all of his information
with respect to this action was conveyed to him by me.
6. I am informed by Anthony G. Creber of the offices of
Messrs. Gowling & Henderson, solicitors for the Plaintiff, and
verily believe that the original solicitors for the Defendant,
Messrs. Herridge, Tolmie, were advised at least as early as
February, 1982, that I could be made available for discovery as
a representative of the Plaintiff immediately following the
examination of Daniel Duhl and that I was the person within
the Plaintiff company who was most knowledgeable concerning
the issues in this case. I am also informed by Anthony G.
Creber and verily believe that at no time did either Messrs.
Herridge, Tolmie or the Defendant's new solicitors, Sim,
Hughes, indicate that I was not acceptable as a representative
of the Plaintiff. Furthermore, at no time did the Defendant's
solicitors indicate that they wished to take advantage of the
offer to examine me following the discovery of the Defendant.
7. The Plaintiff since at least as early as 1979 and through to
April 1981 manufactured and sold to the public in Canada,
self-lined Malimo fabrics similar to those described and
claimed in Canadian Letters Patent 1,097,488. In April of 1981
the Plaintiffs production was substantially reduced following
receipt by it and its customers of a letter written by Daniel
Duhl, President of the Defendant. The Plaintiff continued to
manufacture and sell through July 1981 self-lined Malimo
fabric, however, at a much reduced volume. Since July 1981,
the Plaintiff has not manufactured or sold any self-lined
Malimo fabric on a commercial basis and this has resulted in a
shut down of a very substantial portion of the Plaintiffs
operation in Montreal and in the laying off of employees.
Neither deponent had been cross-examined.
On June 17, 1982, the respondent brought a
motion before the Judge, seeking inter alia:
(a) reconsideration under Rule 337(5) of the Federal Court
Rules, of Parts 1 and 3 of the Order of His Lordship in this
cause dated May 17, 1982, namely:
(iii) whether it was the intention of the Court to order Mr.
J.S. Fryml or Mr. G. Hollings to present himself for
examination for discovery on behalf of the Plaintiff;
(b) for correction under Rule 337(6) of the Federal Court
Rules of parts 1 and 3 of the said Order of clerical mistakes
in the said Order or errors arising therein from an accidental
slip or omission, namely:
(iii) whether it was the intention of the Court to order Mr.
J.S. Fryml or Mr. G. Hollings to present himself for
examination for discovery on behalf of the Plaintiff;
(c) for an Order under Rule 337(5) extending the time for
moving before this Court;
The application was supported by an affidavit
which was relevant to the request for an extension
of time to bring the application and resulted in an
order reading:
1. Leave is granted extending time to bring this motion.
2. My order of May 17, 1982, is amended and corrected as
follows:
(b) It appearing that by inadvertence, I omitted to include
my finding regarding the submissions advanced at some
length by counsel for the Plaintiff regarding who should be
examined for discovery, I hereby amend paragraph 3 of the
aforesaid order by adding the words: "except that the officer
to be examined on behalf of the Plaintiff shall be Mr. G.
Hollings in lieu of Mr. J.S. Fryml."
No reasons, or no further reasons, for the order
were given or filed. On the hearing of the appeal it
was common ground that the only point argued
before the learned Judge with respect to the
amendment made by paragraph (b) was whether
the learned Judge had authority to make the
amendment and we were informed by counsel that
the learned Judge, after hearing the argument,
said he would check or consult his notes.
Two points should be noted. First, on the face of
it there was no ambiguity or uncertainty as to
what the original order meant. Nor was there
anything about it that was incomplete. Further, it
was not an order that was unreasonable on its face
or such as would cause one to think it had been
made inadvertently. On the facts as described and
having regard to the nature of the action and other
considerations to be taken into account, it was not
an order that would be regarded as unlikely. The
other point to be observed is that, having regard to
what it was that needed to be decided, the effect of
the amendment was to completely reverse what
had been ordered.
Under the title Judgments and Orders, the
Rules contain inter alia the following:
Rule 337. (1) The Court may dispose of any matter that has
been the subject-matter of a hearing
(a) by delivering judgment from the bench before the hear
ing of the case has been concluded, or
(b) after having reserved judgment at the conclusion of the
hearing, by depositing the necessary document in the
Registry,
in the manner provided by paragraph (2).
(2) When the Court has reached a conclusion as to the
judgment to be pronounced, it shall, in addition to giving
reasons for judgment, if any,
(a) by a separate document signed by the presiding judge,
pronounce the judgment (Form 14); or
(4) A judgment pronounced under paragraph (2)(a) or para
graph (3) will, subject to paragraphs (5) and (6), be in final
form.
(5) Within 10 days of the pronouncement of judgment under
paragraph (2)(a), or such further time as the Court may allow,
either before or after the expiration of that time, either party
may move the Court, as constituted at the time of the pro
nouncement, to reconsider the terms of the pronouncement, on
one or both of the following grounds, and no others:
(a) that the pronouncement does not accord with the reasons,
if any, that may have been given therefor;
(b) that some matter that should have been dealt with has
been overlooked or accidentally omitted.
(6) Clerical mistakes in judgments, or errors arising therein
from any accidental slip or omission, may at any time be
corrected by the Court without an appeal.
(7) This Rule applies, with necessary changes, to the pro
nouncement of interlocutory judgments or orders by the Court,
a judge or a prothonotary except that, in any such case, a
judgment or order under paragraph (2)(a) need not be made by
a separate document but may be endorsed by the presiding
judge or the prothonotary, as the case may be, on the notice of
motion or some other convenient document on the Court file.
These and the other sub-rules of Rule 337 which
I have not repeated make up, as it appears to me, a
code of rules relating to judgments and orders that
deals comprehensively with the subject of their
finality.
In Crabbe v. The Honourable Donald C. Jamie-
son, Minister of Transport,' Jackett C.J., when
dealing with an award of costs, put the matter thus
[at pages 1091-1092]:
In the first place, the limits within which the Court can vary
its own judgment by substituting an award of a lump sum for
costs for the award of costs to be taxed are very narrow. A
judgment must always be in the form of a separate document
signed by the presiding judge (Rule 337(2)(a) and (3)) or, in
the case of an interlocutory judgment, endorsed by the judge on
some other document. Such a judgment is final (Rule 337(4))
except that
(a) its terms may be reconsidered on the ground that they do
not accord with the reasons or that there has been an
accidental omission (Rule 337(5)), and
(b) clerical mistakes and accidental slips, etc., may be cor
rected (Rule 337(6)).
It is thus only under and in accordance with the
provisions of these Rules that a judge has author
ity to amend an order once it has been made.
Cases such as Paper Machinery Limited et al. v. J.
O. Ross Engineering Corporation et al. 2 and
others referred to therein which arose under a
different system or systems of rules are thus of
limited assistance in determining the point in issue
in the present case. Moreover, while Adidas
Sportschuhfabriken Adi Dassler K.G. et al. v.
Kinney Shoes of Canada Ltd. 3 arose under rules
similar to those in Rule 337(5) and (6), the case
' [1973] F.C. 1091 (C.A.).
2 [1934] S.C.R. 186.
3 (1971), 2 C.P.R. (2d) 227 (Ex. Ct.).
was one of a judgment which, on its face, required
correction because in the way it was expressed it
could be and was being used in a sense broader
than what had been applied for or intended by the
Court. The change made in the wording merely
clarified its effect.
In the present instance it seems to me to be
obvious that, as no reasons for the initial order had
been given, paragraph 337(5)(a) could have no
application and that, as the order was comprehen
sive on its face, paragraph 337(5)(b) was also
inapplicable. Further, there is on the facts no
reason to think that there was any "Clerical mis
take" in the order within the meaning of Rule
337(6).
That leaves for consideration only the wording
"errors arising therein from any accidental slip or
omission" in Rule 337(6). Having regard to the
broad inherent authority exercised in times past by
Courts to correct formal judgments or orders to
make them accord with the judgment as pro
nounced or intended, it appears to me that this
portion of the Rule should be given a scope which
is broad enough to enable the Court to amend so
as to make a judgment conform to what was
intended when it was pronounced, but that it
cannot and should not be used to authorize a judge
to review or rescind his judgment or to alter it so
as to reflect a change of mind as to what the
judgment should have been.
The distinction is well put in a passage from the
judgment of Romer J., in Ainsworth v. Wilding 4
which was cited by the Privy Council in Firm of
R.M.K.R.M. v. Firm of M.R.M.V.L.: 5
The Court has no jurisdiction, after the judgment at the trial
has been passed and entered, to rehear the case.... Formerly
the Court of Chancery had power to rehear cases which had
been tried before it even after the decree had been entered; but
that is not so since the Judicature Acts. So far as I am aware,
the only cases in which the Court can interfere after the passing
and entering of the judgment are these: (1.) where there has
been an accidental slip in the judgment as drawn up—in which
case the Court has power to rectify it under Order XXVIII., r.
2; (2.) when the Court itself finds the judgment as drawn up
does not correctly state what the Court actually decided and
intended.
4 [1896] 1 Ch. 673, at p. 676.
5 [1926] A.C. 761 (P.C.), at p. 771.
On the facts of this case, in making the order
under appeal, the learned Judge recited that "by
inadvertence" he had "omitted to include" in the
earlier order his "finding regarding the submis
sions advanced at some length by ... the Plaintiff
regarding who should be examined for discovery".
I interpret that as meaning that the learned Judge
had, on the earlier occasion, decided who the
person to be examined was to be but had inadver
tently omitted to make the order reflect the finding
he intended to include. That, as it seems to me,
shows that the failure of the order to name Mr.
Hollings as the person to be examined was in fact
an error arising from an "accidental slip or omis
sion" within the meaning of the Rule. The fact
that the merits were not reargued on the second
application is consistent with and, I think, lends
support to the view that what occurred was not a
reconsideration on the merits of which of the two
persons proposed should be the person to be
examined.
On the first point, therefore, the appeal cannot
succeed.
The remaining question is whether on the ma
terial before the Court the nomination of Mr.
Fryml by the appellant should have been displaced
by naming Mr. Hollings as the person to be
examined.
The rules relating to discovery provide:
Rule 465. (1) For the purpose of this Rule, a party may be
examined for discovery, as hereinafter in this Rule provided,
(b) if the party is a corporation or any body or group of
persons empowered by law to sue or to be sued, either in its
own name or in the name of any officer or other person, by
questioning any member or officer of such corporation, body
or group,
(7) Upon request of the party who proposes to exercise a
right under this Rule to examine for discovery, a person who is
qualified by paragraph (6) to be the examiner and who has
agreed so to act for the particular examination shall issue an
appointment signed by him fixing the time when, and the place
where, the examination is to be conducted (Such appointment
shall indicate the names of the examining party, the party to be
examined for discovery and the individual to be questioned).
(8) An appointment issued under paragraph (7), together
with appropriate conduct money, shall be served upon the
attorney or solicitor for the party to be examined in the case of
any examination for discovery other than one falling under
paragraph (1)(b) or paragraph (5); and it shall be so served in
the case of an examination for discovery falling under para
graph (1)(b) if the Court so orders before the service is
effected; and, in any case to which this paragraph applies, no
notification other than service of the appointment on the attor
ney or solicitor for the party to be examined is necessary.
(9) In any case to which paragraph (8) does not apply, the
attendance of the individual to be questioned may be enforced
by subpoena (which may be a subpoena ad testificandum or a
subpoena duces tecum) in the same manner as the attendance
of a witness at the trial of an action. In any such case, the
appointment issued under paragraph (7) shall be served on the
attorney or solicitor for the party to be examined or the party
adverse in interest to the examining party, as the case may be.
(12) Where an individual to be questioned on an examination
for discovery is temporarily or permanently out of the jurisdic
tion, it may be ordered by the Court, or the parties may agree,
that the examination for discovery be at such place, and take
place in such manner, as may be deemed just and convenient.
(13) Service of the order, if any, and of all papers necessary
to obtain an examination for discovery under paragraph (12)
may be made upon the attorney or solicitor for the party to be
examined, together with conduct money for the individual to be
questioned.
(15) Upon examination for discovery otherwise than under
paragraph (5), the individual being questioned shall answer any
question as to any fact within the knowledge or means of
knowledge of the party being examined for discovery that may
prove or tend to prove or disprove or tend to disprove any
unadmitted allegation of fact in any pleading filed by the party
being examined for discovery or the examining party.
(17) In order to comply with paragraph (15), the individual
being questioned may be required to inform himself and for
that purpose the examination may be adjourned if necessary.
(19) The Court may, for special reason in an exceptional
case, in its discretion, order a further examination for discovery
after a party or assignor has been examined for discovery under
this Rule.
Under Rule 494(9) the answers given on discov
ery may be put in evidence by an adverse party.
It appears to me that the combined effect of
Rule 465(1), (7), (8) and (9) is to leave it to the
party examining to choose in the first instance the
officer or member of a corporation or body he
wishes to examine but that because of the need for
an order of the Court under sub-rule (8) to author
ize service of the appointment on the solicitor or
attorney for the party to be examined where the
party is a corporation or body, the Court is in a
position before granting such an order to exercise a
discretion to require the examining party to substi
tute a more appropriate officer or member of the
corporation or body to give discovery on its behalf.
That should be ordered, however, only when the
material before the Court discloses some reason to
think either that the person chosen by the examin
ing party is not a proper person to give the discov
ery or is for some compelling reason unavailable
and that some other officer or member of the
corporation or body should be substituted. In my
opinion, the examining party's choice of the person
to give the discovery should not be lightly dis
placed. The party or his solicitor should know best
what is required to support his case, what it is that
he is interested in discovering and who among the
officers or members referred to in the Rule is most
likely to be able to give the discovery he requires.
To displace the choice at the request of an adverse
party represents an interference with his conduct
of his case. A corollary of this is that when choos
ing the person to be examined he takes and must
accept the risk that the choice may not be a good
one.
As in the present instance the learned Judge has
intervened and substituted a person not chosen by
the examining party in place of that party's choice,
the question arises whether the case is one in
which this Court should interfere with the excer-
cise by the learned Judge of his discretion.
That question was addressed and discussed by
the House of Lords in Evans v. Bartlam. 6 In the
course of his speech, Lord Wright put the matter
thus:
6 [1937] A.C. 473 (H.L.), at p. 486.
It is clear that the Court of Appeal should not interfere with
the discretion of a judge acting within his jurisdiction unless the
Court is clearly satisfied that he was wrong. But the Court is
not entitled simply to say that if the judge had jurisdiction and
had all the facts before him, the Court of Appeal cannot review
his order unless he is shown to have applied a wrong principle.
The Court must if necessary examine anew the relevant facts
and circumstances in order to exercise a discretion by way of
review which may reverse or vary the order. Otherwise in
interlocutory matters the judge might be regarded as independ
ent of supervision. Yet an interlocutory order of the judge may
often be of decisive importance on the final issue of the case,
and one which requires a careful examination by the Court of
Appeal.
The point arose again in the House of Lords in
Charles Osenton and Company v. Johnston' Vis
count Simon L.C., said:
The law as to the reversal by a court of appeal of an order
made by the judge below in the exercise of his discretion is
well-established, and any difficulty that arises is due only to the
application of well-settled principles in an individual case. The
appellate tribunal is not at liberty merely to substitute its own
exercise of discretion for the discretion already exercised by the
judge. In other words, appellate authorities ought not to reverse
the order merely because they would themselves have exercised
the original discretion, had it attached to them, in a different
way. But if the appellate tribunal reaches the clear conclusion
that there has been a wrongful exercise of discretion in that no
weight, or no sufficient weight, has been given to relevant
considerations such as those urged before us by the appellant,
then the reversal of the order on appeal may be justified. This
matter was elaborately discussed in the decision of this House
in Evans v. Bartlam ([1937] A.C. 473), where the proposition
was stated by my noble and learned friend, Lord Wright, as
follows:
He then cited the foregoing excerpt from Lord
Wright's reasons in the earlier case.
More recently, in Ward v. James, 8 Lord Den-
ning M.R., in useful summary of the law, said:
Reviewing Discretion. This brings me to the question: in
what circumstances will the Court of Appeal interfere with the
discretion of the judge? At one time it was said that it would
interfere only if he had gone wrong in principle. But since
Evans v. Bartlam, that idea has been exploded. The true
proposition was stated by Lord Wright in Charles Osenton &
Co. v. Johnson [sic]. This court can and will, interfere if it is
satisfied that the judge was wrong. Thus it will interfere if it
can see that the judge has given no weight (or no sufficient
weight) to those considerations which ought to have weighed
with him. A good example is Charles Osenton & Co. v.
' [1942] A.C. 130 (H.L.), at p. 138.
8 [1966] 1 Q.B. 273 (C.A.), at p. 293.
Johnson [sic] itself, where Tucker J. in his discretion ordered
trial by an official referee, and the House of Lords reversed it
because he had not given due weight to the fact that the
professional reputation of surveyors was at stake. Conversely it
will interfere if it can see that he has been influenced by other
considerations which ought not to have weighed with him, or
not weighed so much with him, as in Hennell v. Ranaboldo
([1963] 1 W.L.R. 1391). It sometime happens that the judge
has given reasons which enable this court to know the consider
ations which have weighed with him; but even if he has given
no reasons, the court may infer, simply from the way he has
decided, that the judge must have gone wrong in one respect or
the other, and will thereupon reverse his decision: see Grim-
show v. Dunbar ([1953] 1 Q.B. 408; [1953] 2 W.L.R. 332;
[1953] 1 All E.R. 350, C.A.).
I do not read the reasons for judgment of this
Court in International Business Machines Corpo
ration v. Xerox of Canada Limited et a1. 9 as
differing from or as being at variance with the rule
as stated in these English cases.
In the present case the material discloses little
about Mr. Fryml beyond the fact that he is the
president of the respondent company. But that at
least suggests that he is in a position to give
answers on behalf of the company and in a position
to get from the company information which may
properly be required of the company but of which
he may have no personal knowledge. On the other
hand, nothing in the material establishes that he is
not a suitable or sufficiently informed person to be
examined for discovery on behalf of the company
or that he is for any reason not available or cannot
be available for that purpose. He has given no
evidence on either point.
Further, apart from the fact that Mr. Hollings
had been suggested by the respondent as a suitable
person to give the discovery some months before
the appellant chose Mr. Fryml, which, in my view,
should have no weight in the scale, there is really
nothing in the Hollings affidavit which establishes
a reason why he should be selected or preferred. It
was said that because he was conducting the action
on behalf of the respondent he was more knowl
edgeable, that he knew more about the issues than
Mr. Fryml and that on that account should be
preferred. In my view, the fact he is giving the
9 (1977), 16 N.R. 355 (F.C.A.).
instructions for the conduct of the action, if any
thing, is likely to make him less satisfactory from
the point of view of the appellant as the person to
give discovery. Moreover, while the Hollings
affidavit indicates that he is familiar with opera
tions of the company in Canada, which might bear
on an issue of infringement, there is, as it seems to
me, little reason to think that he is knowledgeable
or more knowledgeable than Mr. Fryml on the
matters raised by the statement of claim as objec
tions to the validity of the patent in suit.
On the whole I am of the opinion that the
matters I have mentioned were either not con
sidered or not given adequate weight by the
learned Judge and that the order displacing the
appellant's nomination of Mr. Fryml should not
have been made. I would allow the appeal with
costs, set aside paragraph 3 of the order as amend
ed on June 17, 1982, and make an order in the
terms of paragraph 3 as pronounced on May 17,
1982, with such costs of the motion of June 17,
1982, as are applicable to that part of the applica
tion made on that day.
HEALD J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
MCQUAID D.J.: I have had the opportunity of
reading the draft reasons for judgment prepared
by the Chief Justice. With respect, I view the
matter somewhat differently, and, accordingly,
arrive at a somewhat different conclusion.
The issue before the Court, I perceive to be as
follows: did the learned Trial Judge have the au
thority to make the amendment which he did? If
this question is to be answered in the negative,
that, then, disposes of the appeal. On the other
hand, if that question is to be answered in the
affirmative, the Court must then address itself to
the supplementary question: whether the order, as
amended, should be sustained on its merits?
The initial order made by the Trial Judge arose
out of an application on behalf of the appellant
before him, on May 4, 1982, for an order, inter
alia,
(c) that the President of the Plaintiff, Mr. J.S. Fryml,
present himself for examination for discovery as an officer of
the Plaintiff at the Federal Court Offices in the City of
Toronto at a date to be agreed upon by counsel and that the
appointment for said examination for discovery may be
served upon the solicitors for the Plaintiff pursuant to Rule
465(7);
Following argument, the learned Trial Judge
reserved his decision, presumably to review the
arguments made before him, and to consider what
disposition he should make. Later that same day,
by a document filed, he ordered, inter alia, but
without giving reasons:
3. Paragraph (c) is granted.
Clearly, these terse words are but judicial short
hand for what might otherwise have been a more
formally structured order in somewhat of the fol
lowing terms:
I DO ORDER that the President of the Plaintiff firm, Montreal
Fast Print (1975) Ltd., Mr. J.S. Fryml, do present himself for
examination for discovery in his capacity as an officer of the
Plaintiff at the Federal Court Offices in the City of Toronto at
a date to be agreed upon by Counsel, AND I DO FURTHER
ORDER that the appointment for said examination for discovery
be served upon the solicitor for the Plaintiff pursuant to Rule
465(7).
In my view, the order of the learned Trial Judge,
even in its abbreviated form was not only clear and
unambiguous, but was, in fact, made after due
consideration, and after having considered the
available options and alternatives. The essence of
the order was the determination of precisely who
should be examined for discovery.
It is of some significance to note that with
respect to the application then before him, the
learned Trial Judge had before him, and no doubt
took into consideration in his pre-judgment delib
erations, a rather extensive affidavit, filed on
behalf of the respondent, setting forth the reasons
why, instead of Fryml, one G. I. Hollings should
be considered as the appropriate person to be
examined. Notwithstanding this affidavit, and
whatever arguments may have been pressed upon
him in support thereof, he made the order in
question, that the relief sought by the applicant,
the appellant herein, as outlined by him in para
graph (c) be granted, that is to say, that Fryml be
the subject of examination for discovery.
Subsequently, on June 17, 1982, the respondent
brought a motion before that same Judge for the
following relief, inter alia:
(a) reconsideration under Rule 337(5) of the Federal Court
Rules, of Parts 1 and 3 of the Order of His Lordship in this
cause dated May 17, 1982, namely:
(iii) whether it was the intention of the Court to order Mr.
J.S. Fryml or Mr. G. Hollings to present himself for
examination for discovery on behalf of the Plaintiff;
(b) for correction under Rule 337(6) of the Federal Court
Rules of parts 1 and 3 of the said Order of clerical mistakes
in the said Order or errors arising therein from an accidental
slip or omission, namely:
(iii) whether it was the intention of the Court to order Mr.
J.S. Fryml or Mr. G. Hollings to present himself for
examination for discovery on behalf of the Plaintiff;
(c) for an Order under Rule 337(5) extending the time for
moving before this Court;
This application resulted in an amending order,
without reasons given or filed, in the following
terms:
1. Leave is granted extending time to bring this motion.
2. My order of May 17, 1982, is amended and corrected as
follows:
(b) It appearing that by inadvertence, I omitted to include
my finding regarding the submissions advanced at some
length by counsel for the Plaintiff regarding who should be
examined for discovery, I hereby amend paragraph 3 of the
aforesaid order by adding the words: "except that the officer
to be examined on behalf of the Plaintiff shall be Mr. G.
Hollings in lieu of Mr. J.S. Fryml."
I think it important to revert to the original
hearing, of May 17, 1982, and to review what was
then before him; whether, on the basis of the
arguments advanced, and other materials before
him, including the affidavits, Fryml or Hollings
should be the party to be discovered. Without
giving written reasons therefore, but clearly upon
consideration, and for reasons which remained in
pectore, he determined the sole issue which was
before him for determination, that the appropriate
person to be discovered was Fryml.
By his subsequent, and what purports to be his
amending order, the learned Trial Judge, has com
pletely reversed himself.
The relevant portions of Rule 337 are recited
below:
Rule 337. (1) The Court may dispose of any matter that has
been the subject-matter of a hearing
(a) by delivering judgment from the bench before the hear
ing of the case has been concluded, or
(b) after having reserved judgment at the conclusion of the
hearing, by depositing the necessary document in the
Registry,
in the manner provided by paragraph (2).
(2) When the Court has reached a conclusion as to the
judgment to be pronounced, it shall, in addition to giving
reasons for judgment, if any,
(a) by a separate document signed by the presiding judge,
pronounce the judgment (Form 14); or
(4) A judgment pronounced under paragraph (2)(a) or para
graph (3) will, subject to paragraphs (5) and (6), be in final
form.
(5) Within 10 days of the pronouncement of judgment under
paragraph (2)(a), or such further time as the Court may allow,
either before or after the expiration of that time, either party
may move the Court, as constituted at the time of the pro
nouncement, to reconsider the terms of the pronouncement, on
one or both of the following grounds, and no others:
(a)'that the pronouncement does not accord with the reasons,
if any, that may have been given therefor;
(b) that some matter that should have been dealt with has
been overlooked or accidentally omitted.
(6) Clerical mistakes in judgments, or errors arising therein
from any accidental slip or omission, may at any time be
corrected by the Court without an appeal.
(7) This Rule applies, with necessary changes, to the pro
nouncement of interlocutory judgments or orders by the Court,
a judge or a prothonotary except that, in any such case, a
judgment or order under paragraph (2)(a) need not be made by
a separate document but may be endorsed by the presiding
judge or the prothonotary, as the case may be, on the notice of
motion or some other convenient document on the Court file.
If authority exists to amend, that authority must
be found within this Rule, and, more specifically
within either paragraph (5) or paragraph (6), as
same may be relevant to the factual situation here
existing. That is to say that, on motion, the Court
may reconsider the terms of its pronouncement for
one of two reasons, and for no other reason,
(a) that the pronouncement does not accord with the reasons,
if any, that may have been given therefor;
(b) that some other matter should have been dealt with that
has been overlooked or accidentally omitted.
or alternatively, that
Clerical mistakes in judgments, or errors arising therein from
any accidental slip or omission, may at any time be corrected
by the Court without an appeal.
The rationale of (a) above is to ensure that the
hand of the judge is in accord with the mind of the
judge as divined by the reasons stated. Here, of
course, there were no reasons stated, and hence it
cannot be said that there was no such accord. That
being the case, (a) cannot apply.
Nor has (b) application, inasmuch as there was
but one issue before the Trial Judge: should it be
Fryml or should it be Hollings who would be the
subject of discovery? The Trial Judge clearly faced
that issue.
Neither can it be said that there was any "Cleri-
cal mistake".
If the amendment is to stand, it must find
justification in the sense that there was, in the
original order, some error "arising therein from
any accidental slip or omission", and, it would
appear to me that any such "accidental slip or
omission" must be on the face of it inherent and
rationally accountable for.
At the risk of repeating particulars to which I
have already alluded, I think it important to
appreciate precisely what was before the learned
Trial Judge, and the deliberate manner in which
he quite correctly appears to have dealt with it,
when examining the justification given for what
purports to be an amendment, that by "inadvert-
ence" he omitted to include his finding regarding
the submissions advanced by counsel regarding the
person to be discovered.
On the basis of the arguments advanced by
counsel, as supported by the relevant law, he was
to determine which of two, Fryml or Hollings, was
to be discovered. Not only did he hear these
arguments, he recessed to consider the implica
tions of these arguments, and, no doubt, the appli
cable law. He arrived at what can only be pre
sumed to be a considered opinion and conclusion,
founded upon his review of the arguments and law,
that is to say, that the application should be
granted, the application, of course, being that
Fryml was the individual to be discovered.
With respect, for me to arrive at any other
conclusion I must assume that the Trial Judge
wholly misunderstood the nature of the application
before him, and this I cannot conceive to be the
case.
What, in effect, appears to have happened was
that on the subsequent application the Trial Judge
then reconsidered the arguments and effectively
reversed himself, just as though he were sitting on
appeal in review of his own earlier decision.
In my view, this does not fall within the context
of "errors arising ... from any accidental slip or
omission", and in acting as he did, the Trial Judge
acted without authority or jurisdiction.
Accordingly, I would allow this appeal, and set
aside the order of June 17, 1982.
Having arrived at that conclusion, I therefore do
not consider it necessary to determine whether the
order as amended should be sustained in its merits,
viewing it as I do, in any event, as a nullity.
The appellant will be entitled to his costs arising
out of the motion of June 17, 1982, as the same
may be applicable to the issue herein, as well as his
costs of this appeal.
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.