Date: 20000124
Docket: T-2161-98
MONTRÉAL, QUEBEC, JANUARY 24, 2000
BEFORE: RICHARD MORNEAU, PROTHONOTARY
Between:
JAMES FISHER & SONS PLC,
Plaintiff,
AND
PEGASUS LINES LIMITED S.A.,
Defendant.
REASONS FOR ORDER AND ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] The instant case concerns a motion by the plaintiff for an order of this Court to compel James Karathanos -- who was examined in September 1999 as an officer of the defendant pursuant to Rule 426 -- to comply more fully with the undertakings he gave at that examination.
[2] By its motion the plaintiff further sought to resolve certain objections raised at the cross-examination on affidavits of James Karathanos and David Charity in connection with the application filed by James Karathonos to be subject to no further examinations.
Undertakings
[3] To comply with the undertakings given on September 10 and 21, 1999 the defendant on October 26, 1999 sent the plaintiff a number of documents which were bound in two volumes (Exhibit F).
[4] In the plaintiff's submission, Exhibit F did not in any way comply, or did not fully comply, with the undertakings given and this Court should accordingly direct James Karathanos to obtain from his bank and his accountants, basically, all the documents which those bodies might have regarding the business relations between Amican and Pegasus so that the undertakings given could be properly fulfilled.
[5] However, in his cross-examination of December 16, 1999 James Karathanos several times maintained that he had been through all the documents at his workplace, including the accounting documents and possibly bank documents, so as to comply with the undertakings, and that finally Exhibit F represented the result of these efforts.
[6] Strictly speaking, the undertakings given did not apply to review of the banking and accounting entries from 1990 to 1997. Further, it was not clearly established that the documents the plaintiff is now seeking would provide a relevant complementary response to the undertakings given.
[7] Accordingly, for the purposes of Appendices I and III of the plaintiff's motion, it must be assumed that James Karathanos complied with the undertakings given and that there is no basis for requiring a search for or filing of the banking or accounting documents mentioned by the plaintiff (the parties in fact agreed on Appendix II of the application).
Objections
[8] As to the objections contained in Appendix IV, the plaintiff did not persuade the Court in the circumstances that James Karathanos, as an officer of Pegasus, waived or gave up solicitor-client privilege. The questions regarding these objections therefore do not have to be answered. Nevertheless, since undertaking U-34 to this appendix was not really met with a sustainable objection, a response must be given to this undertaking.
[9] As to the objection raised at the cross-examination of James Karathanos on December 16, 1999, namely the refusal to provide the plaintiff with the original of the accounts appearing at tabs 13 to 15 of the motion record filed on December 8, 1999, it is hereby dismissed.
[10] In connection with his motion James Karathanos argued that he had incurred more than $25,000 in costs following this Court's decision on August 13, 1999, including $13,000 between the hearing on July 19, 1999 and the date of the decision. He claimed payment of these costs from the plaintiff. In his application James Karathanos simply included a very partial photocopy of these bills. However, I consider that by this inclusion and his allegations James Karathanos waived or gave up solicitor-client privilege in respect of these invoices. Further, these invoices seemed to me to be relevant to the claim for expenses by James Karathanos and the latter's credibility.
[11] Accordingly, the complete original of the invoices appearing in tabs 13 to 15 of the motion record filed by James Karathanos on December 8, 1999 will have to be produced.
[12] As to the objection raised in connection with Mr. Charity's cross-examination on December 17, 1999, relating to a letter of instructions he allegedly received on June 7, 1996, it is also hereby dismissed.
[13] The identity of the person who gave Mr. Charity instructions appears to be one of the Court's concerns in its decision of August 13, 1999. It is thus relevant to know this information. Further, I do not consider that this letter could be protected by solicitor-client privilege since from a combined assessment of the two parties' submissions it was less than clear who was the client giving the instructions. Accordingly, since the client was not clearly defined solicitor-client privilege for this letter cannot stand.
[14] To summarize, it is hereby ordered that by February 3, 2000 at the latest James Karathanos and the defendant shall provide the plaintiff with:
| -. undertaking U-34 of Appendix IV of the motion under review; |
| -. the complete originals of the invoices appearing at tabs 13 to 15 of the motion record filed by James Karathanos on December 8, 1999; |
| -. the letter of instructions received by David Charity on June 7, 1996 from the present counsel of James Karathanos. |
[15] The plaintiff's motion is otherwise dismissed. As there was only partial success on the instant motion, no award of costs will be made on the motion.
| Richard Morneau Prothonotary |
Certified true translation
Martine Brunet, LL. B.
| Federal Court of Canada Trial Division Date: 20000124 Docket: T-2161-98 Between: JAMES FISHER & SONS PLC, Plaintiff, AND PEGASUS LINES LIMITED S.A., Defendant. REASONS FOR ORDER AND ORDER |
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT FILE No.: T-2161-98 |
| STYLE OF CAUSE: JAMES FISHER & SONS PLC, |
Plaintiff,
AND
PEGASUS LINES LIMITED S.A.,
Defendant.
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: January 17, 2000 |
REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY
| DATE OF REASONS FOR ORDER: January 24, 2000 |
APPEARANCES:
| Mireille Tabib for the plaintiff |
| George J. Pollack for the defendant |
Elyse Rosen
SOLICITORS OF RECORD:
| Stikeman, Elliott for the plaintiff |
Montréal, Quebec
| Sproule, Castonguay, Pollack for the defendant |
Montréal, Quebec