Date: 20030905
Docket: T-99-01
Citation: 2003 FC 1035
Ottawa, Ontario, September 5, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
S & M BRANDS, INC.
d.b.a. BAILEY'S CIGARETTES
Plaintiff
and
ALAIN PAUL, DONALD PAUL, LUC PAUL
and GESTION A.D.L. TOBACCO ENR.
Defendants
and
ALAIN PAUL, DONALD PAUL, LUC PAUL
and GESTION A.D.L. TOBACCO ENR.
Plaintiffs by Counterclaim
and
S & M BRANDS, INC.
d.b.a. BAILEY'S CIGARETTES
Defendant to Counterclaim
REASONS FOR ORDER AND ORDER
[1] This is a motion by the defendants to allow Normand Gobeil and Christine Gobeil to represent them and assist their counsel at the out-of-court discovery of Steven Bailey.
[2] In the order dated July 30, 2003, Simpson J. set the discovery of the plaintiff's representative Steven Bailey down for August 12 and 13, 2003.
[3] As they were unable to follow the discovery in English the defendants Alain Paul, Donald Paul and Luc Paul asked Normand Gobeil and Christine Gobeil, the former owners of the business, to be present at the discovery to assist the counsel of record. Further, by paragraph 11 of Alain Paul's affidavit dated August 13, 2003, Mr. Paul, as president of Gestion A.D.L. Tobacco Enr., appointed Mr. and Mrs. Gobeil as representatives of Gestion A.D.L. Tobacco Enr. to be present at the discovery.
[4] It seems clear from the evidence submitted to the Court that the inability of the defendants Alain Paul, Donald Paul and Luc Paul to understand English when the discovery of the plaintiff's representative will take place in English is a serious handicap which could cause the defendants some injury.
[5] It was suggested that Mr. and Mrs. Gobeil represent the defendants: they had extensive knowledge of the events that occurred between the parties, as at the time of the events they acted as representatives of the co-defendant Gestion A.D.L. Tobacco Enr. in its discussions with the plaintiff S & M Brands Inc., and this could result in a more efficient discovery.
[6] The parties on either side also raised the possibility, or indeed probability, that Normand Gobeil and Christine Gobeil would be witnesses at the hearing of this case on the merits.
[7] Counsel for the plaintiff suggested that Mr. and Mrs. Gobeil were third parties with an interest in the case, since they were the former owners of the business, and as such they should not be authorized to represent the parties in the discovery.
[8] The question has already come before the Federal Court as well as other jurisdictions, of whether third parties may be authorized to assist counsel at an out-of-court discovery.
[9] In Nash v. Sanjel Cementers Ltd., 2 C.P.R. (4th) 528, the prothonotary Hargrave said:
[3] . . . In certain circumstances, an expert may attend to advise on a discovery, but there are other categories of people who often, by agreement or by order, may attend to facilitate a smooth running and efficient discovery . . .
[21] . . . Indeed, where a discovery can be made more efficient, more useful and more thorough by contemporaneously drawing on the knowledge of someone familiar with the intricacies of a matter, that knowledge ought to be available at a time when it is useful.
[10] The prothonotary Hargrave went on to add:
[23] In contrast to a trial, discovery is a private procedure. Yet one must keep in mind that the rules and procedures applying to discovery are designed to provide an efficient and effective procedure. In addition, an end of discovery is to avoid any ambush at trial. Finally, the discovery process must be fair to both sides.
[24] To accomplish these ends, counsel may wish to bring to the discovery a resource person, a specialist, or an expert assistant in some relevant area. The specialty may be that of a free-standing expert of the sort that counsel might call at trial, but in other instances the specialist may be a document manager, a technical expert, or merely someone familiar with the file and who, by applying their knowledge, yet without intruding, is both essential to counsel and to making the discovery process run more smoothly.
[11] I have no hesitation in concluding that Mr. and Mrs. Gobeil definitely fall into this category.
[12] Additionally, in Ormiston v. Matrix Financial Corp., [2002] S.J. No. 383, 2002 SKQB 257, Q.B.G. No. 2298 of 2000, J.S.C., Klebuc J., after reviewing several precedents, including Nash, supra, set out various general principles applicable to the presence of third parties at discovery. At paragraph 16, he said:
[16] From the aforementioned and other authorities reviewed, I have extracted the following general principles applicable to the presence of nonparties at examinations for discovery:
1. Only the parties and their respective counsel, or in the case of the corporation, its agent, may attend an examination for discovery unless the parties have consented to the presence of a non-party, or the examining officer has granted the non-party leave to be present. In this jurisdiction, the local registrar or deputy registrar would normally be the examining officer, and failing them, a judge of this Court.
2. The examining officer and/or judge may exercise his or her discretion by granting leave for a non-party to assist at an examination in any of the following circumstances, which are not intended to constitute an exclusive list or to limit the discretion of aforementioned persons:
(a) where the level of expert knowledge, technical, scientific or otherwise, relevant to the issues in an action is beyond counsel and therefore legal counsel may be unable to conduct a proper examination without the assistance of an expert, specialist or technician. For example, the calculation of damages in a personal injury action is a matter that counsel should be able to address and therefore the presence of an accountant normally would not be permitted at an examination. The qualification of the expert assistant need not meet the thresholds applicable to experts testifying at trial;
(b) a non-party who is not a professional expert concerning a particular complex issue before the court but who has the knowledge or abilities that will make the discovery process run smoothly and expeditiously, usually will be allowed to attend an examination for discovery in the capacity of an expert assistant. The ability to manage documents in an action involving a substantial number of documents, or familiarity with financial records, may be sufficient to warrant such person being given leave to assist at an examination;
(c) where a party requires the assistance of a non-party in special circumstances; for example, an aged mother might be accompanied by her son or daughter.
3. The burden of establishing that a specific non-party should be allowed to attend at an examination for discovery rests with the party seeking the non-party's assistance. In most circumstances and affidavit setting out the applicant's needs, counsel's concerns and how the non-party can assist will be essential.
4. Where the applying party has met the requirements set forth in paragraphs 2 and 3, the burden of proving prejudice or other ground for excluding the non-party rests with the party opposing his or her inclusion from the examination for discovery process.
[13] Counsel for the plaintiff cited certain precedents which should be disregarded, since in most cases these were either third parties directly connected with the case in question, who could suffer some detriment as a result of the discovery or who were trying to become involved in a proceeding without being requested to do so. In the case at bar it is clear that this is not an attempt by Mr. and Mrs. Gobeil to interfere in a case that does not concern them, but instead to respond favourably to a request by one of the parties to assist counsel with their consent.
[14] Counsel for the plaintiff properly noted that an examination for discovery remains a private matter between the parties and it would not be reasonable for the attendance of third parties to be authorized at such discoveries as a matter of course. I agree with counsel for the plaintiff, but I have to say that the particular situation in this case and the persuasive arguments that the presence of Normand Gobeil and Christine Gobeil will expedite the discovery process, with the defendants' consent, are arguments which carry weight.
[15] Finally, although it was not established in this Court that Gestion A.D.L. Tobacco Enr. is a corporation, but it actually appears to be a "general partnership", it appears that the president of this "general partnership", Alain Paul, decided to appoint Mr. and Mrs. Gobeil to represent him at the discovery. This is a completely legitimate thing to do, since the president of the said partnership is undoubtedly in a better position than anyone else to decide who is best able to represent the group by assisting counsel at the discovery.
[16] Consequently, the defendants' motion seems to be valid.
ORDER
THE COURT ORDERS THAT:
- Normand Gobeil and Christine Gobeil be authorized to assist counsel for the defendants at the discovery of the plaintiff's representative Steven Bailey;
- as the date of the discovery has been set down by Simpson J. for August 12 and 13, 2003, the parties shall have to make the necessary arrangements for the said discovery to be held within 30 days of this order;
- the whole with costs to the defendants.
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"Pierre Blais"
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
FILE: T-99-01
STYLE OF CAUSE: S & M BRANDS, INC. ET AL.
v.
ALAIN PAUL ET AL.
PLACE OF HEARING: Montréal
DATE OF HEARING: August 18, 2003
REASONS: Blais J.
DATE OF REASONS: September 5, 2003
APPEARANCES:
Francis Rouleau FOR THE PLAINTIFF
Daniel Artola and Olivier Kaade FOR THE DEFENDANT
SOLICITORS OF RECORD:
Blake, Cassels & Graydon FOR THE PLAINTIFF
Toronto, Ontario
McCarthy, Tétrault FOR THE DEFENDANT
Montréal, Quebec