FEDERAL COURT OF CANADA
TRIAL DIVISION
B E T W E E N:
DOLOMITE SVENSKA AKTIEBOLAG,
Plaintiff
and
DANA DOUGLAS MEDICAL INC.,
Defendant
Before The Honourable Mr. Justice Teitelbaum,
in the Federal Court of Canada, Courtroom No. 5, 330 University Avenue, Toronto, Ontario, on
Monday, 22 September 1997, at 10:00 a.m.
REASONS FOR JUDGMENT
[Delivered Orally from the Bench
at Toronto on 22 September 1997, as edited]
A P P E A R A N C E S:
J. SHEARN counsel for the Plaintiff
D.W. AITKEN counsel for the Defendant
A. Gutierrez Registrar
Nethercut & Company Limited
Official Reporters
Suite 2304, 180 Dundas Street West
Toronto, Ontario M5G 1Z8
per: Roberta Colombo, c.v.r.
--- 10:18 a.m.
....
HIS LORDSHIP: The application made by the Plaintiff that all documents be without a protective order is denied. The application that the documents be presented with a protective order is allowed. I would strongly suggest that the parties get together and determine the context of the protective order.
The reasons for my decision are as follows:
The decision of Mr. Giles that counsel for the Plaintiff is constantly referring to was given by Mr. Giles and if the Plaintiff was unhappy with the decision, that decision should have been brought to appeal. That decision was not brought to appeal and, therefore, stands.
I am satisfied that sensitive commercial documents are entitled to be protected by a protective order. I have not, of course, seen the documents that the Defendant wishes to protect. If the Plaintiff feels that these documents should not be protected by a protective order, or a confidential order, then those particular documents can be brought before the Court and the Court will determine whether or not they should be granted protection.
I understand that all documents should be open for all to see, not only the client but everybody else in the public who is interested in seeing documents, but when documents specifically refer to profits, to costs, generally speaking, those documents should be protected. The Plaintiff obviously feels the same way because the Plaintiff gave up its right to claim damages because it did not want to disclose certain information in its own documents. The fact that the Plaintiff did so does not mean that the Defendant has to make that same decision.
Therefore, for these reasons, the application made by the Plaintiff is dismissed, the application made by the Defendant is allowed and, as I stated, the parties should get together within the next fifteen days to produce a document that they are satisfied with. In the event that that cannot be done, then the Court will do so, if necessary.
MR. AITKEN: I would ask as to costs.
HIS LORDSHIP: There will be no costs. The costs are in the cause, for both applications.
MR. AITKEN: Thank you, my lord.
MR. SHEARN: Thank you, my lord.
HIS LORDSHIP: You will, both of you, submit the draft order within fifteen days.
MR. AITKEN: Thank you, my lord.
HIS LORDSHIP: Thank you.
MR. SHEARN: Thank you, my lord.
--- 10:59 a.m.
CERTIFIED CORRECT:
Roberta Colombo, c.v.r.
FEDERAL COURT OF CANADA
TRIAL DIVISION
B E T W E E N:
PROCTER & GAMBLE INC. et al,
Plaintiffs
and
JOHN DOE et al,
Defendants
Before The Honourable Mr. Justice Teitelbaum,
in the Federal Court of Canada, Courtroom No. 5,
330 University Avenue, Toronto, Ontario, on
Monday, 22 September 1997, at 10:00 a.m.
A P P E A R A N C E S:
B. STRATTON counsel for the Plaintiffs
E. MORGAN counsel for Defendant M. Usher
A. Gutierrez Registrar
Nethercut & Company Limited
Official Reporters
Suite 2304, 180 Dundas Street West
Toronto, Ontario M5G 1Z8
per: Roberta Colombo, c.v.r.
Reporter's Note:
A/R at the lefthand margin denotes cited material
was not confirmed but transcribed as read
--- commencing at 11:00 a.m.
MR. STRATTON: Good morning, my lord.
HIS LORDSHIP: Good morning.
MR. STRATTON: My lord, there were some materials --
HIS LORDSHIP: Explain what we are here for. I don't quite understand. I've read everything but -- well, obviously, I didn't read everything.
MR. STRATTON: I understand.
HIS LORDSHIP: What are you here for?
MR. STRATTON: We're here, my lord, because in May of 1996, the Honourable Mr. Justice Dubé made an order, an Anton Piller type order, and --
HIS LORDSHIP: And one of the parties is...
MR. STRATTON: Marty Usher. And we're here only with respect to Mr. Usher.
HIS LORDSHIP: Yes.
MR. STRATTON: And the order, my lord, said, in paragraph 16 -- this is found in a number of places --
HIS LORDSHIP: Has to be reviewed.
MR. STRATTON: It has to be reviewed.
HIS LORDSHIP: And I am trying to understand what that means.
MR. STRATTON: Well, I understand these Anton Piller orders -- and this is an example of the type of order that's been granted in different circumstances. But in this type of order is included a requirement that the Plaintiff, when serving the order itself, also serve the Notice of Motion with a fixed date to allow respondents - as they're identified in the order - to come to the court and make representations, or to do something. On the date when this order was to come back by way of this review, there was a representative - I believe, it was Mr. Morgan, my friend here - who did appear on behalf of Mr. Usher and an affidavit was filed and, at that point, there was a request that there be an adjournment of that review possibility to a later date. The injunction was continued, however, and that's in the terms of the order of the Honourable Associate Chief Justice.
Now --
HIS LORDSHIP: The injunction against Mr. Usher was continued by the Associate Chief Justice?
MR. STRATTON: Yes. On consent.
There was then some other material filed, there'd be some other motions brought for various things, but there was no attempt by Mr. Usher or his counsel to bring the matter back. I spoke to counsel for Mr. Usher and told him that, in my view, it was not really Mr. Usher's motion because it was apparently his attack on the order. My friend's position was, in fact, that it was the Plaintiff who had to bring this review motion back on and that none of the evidence that was delivered up under the terms of the Anton Piller order from his client could be used in the proceedings until the Plaintiff brought this review motion back. That's why I have brought it back, and I filed this Notice of Return Motion.
The Plaintiffs here, of course, take the view that things were done correctly and the order was granted properly, that there is no difficulty with it, and we ought to proceed to trial now. My friend now, I understand, has concerns, although there has been nothing formally filed to attack the order in any way, but he does apparently have some concerns about the way the order was obtained.
HIS LORDSHIP: All right. Let me hear what your friend has to say.
MR. MORGAN: I'm going to address a preliminary point first. I came today prepared to argue the motion. I'm happy to do so, with one caveat --
HIS LORDSHIP: What? The motion to review?
MR. MORGAN: Yes.
HIS LORDSHIP: All right. So argue it.
MR. MORGAN: Well, my friend gave me a very recent case from the Federal Court of Appeal, which I was unaware of until this morning, in which the Court says --
MR. STRATTON: If I may hand it up to you.
MR. MORGAN: This is the Indian Manufacturing case. I don't need to go into the details of the case. It's on page 5 of the case, the last paragraph. The Court says:
| ...the authorities are clear that, save in exceptional circumstances, an ex parte order is to be reviewed, varied or rescinded by the judge who makes it. |
They've turned their minds to this very issue - whether we should be before a different judge or the judge who originally granted it - and they say that, save for exceptional circumstances, it should be before the judge who makes it. They then cite for that proposition the Supreme Court of Canada case that dealt with wiretaps. That's the Wilson case.
HIS LORDSHIP: Yes.
MR. MORGAN: I would simply read to you one or two sentences from Wilson. Wilson cites a previous British Columbia Court of Appeal case in which they say as follows - and I believe this is what my friend would want to point out. It's what he pointed out to me and I'll point it out to the Court:
| A/R After considering the case, I am of the opinion that the weight of authority supports the following propositions as to one judge's dealings with another judge's ex parte order: (1) he has the power to discharge the order or dissolve the injunction... |
I should say, by the way, this is a quote from the British Columbia court. It's preceded -- I should have given it to you in context. It's preceded by a short passage by Justice McIntyre, in the majority here, in the Supreme Court, in which he says that, in ordinary cases, the judge who granted the ex parte order must be the one who reviews or rescinds or varies it; however, the exigencies of court administration do not always allow for that - the judge might take ill or the judge may die or something unforseen may happen. Then he adopts this quote of the British Columbia court as to one judge's dealing with another judge's ex parte order:
| A/R ... (1) he has the power to discharge the order or dissolve the injunction; (2) he ought not exercise this power but ought to refer the motion to the first judge, except in special circumstances; e.g., where he acts by consent or by leave of the first judge or where the judge is not available to hear the motion; (3) if the second judge hears the motion, he hear it de novo as to both the law and the facts involved. |
The Court then goes on to say:
| A/R I would accept these words in the case of review of the wiretap authorization, with one reservation: the reviewing judge must not substitute his discretion for that of the authorizing judge. Only if the facts upon which the authori-zation were granted are found to be different from the facts proved on the ex parte review should the authorization be disturbed. |
HIS LORDSHIP: So do I understand correctly that you came here to argue that Mr. Justice Dubé had no right to issue the order?
MR. MORGAN: Yes.
HIS LORDSHIP: And notwithstanding the fact that you consented at the review before the Associate Chief Justice to continue the injunction? Is that what happened?
MR. MORGAN: No. I said that, on that interim/interim basis, I don't oppose. For the time of the adjournment I didn't oppose.
HIS LORDSHIP: If that's the case, then I don't have jurisdiction here because Mr. Justice Dubé is still around. Fortunately!
MR. MORGAN: I agree with you!
HIS LORDSHIP: Is that what you're saying? So I'm going to leave it. Until you get a date before Mr. Justice Dubé, I'll leave things to stand as they are.
MR. STRATTON: Well, my lord, I think --
HIS LORDSHIP: And then, I don't know, if that's what you -- you gave the case to your friend.
MR. STRATTON: My lord, I think if we look at the actual order that this motion is brought under --
HIS LORDSHIP: Justice Dubé's order.
MR. STRATTON: Yes. Exactly.
HIS LORDSHIP: I have it here.
MR. STRATTON: Paragraph 16. It's on page 6.
HIS LORDSHIP: Yes. I read that. "A person serving the summons shall also serve..."
Yes.
MR. STRATTON: So, my lord, I brought this INDIAN MOTORCYCLE Federal Court case forward to my friend because I want to make sure that we didn't have some kind of procedural roadblock after going through the entire argument on this review motion. This case, the Federal Court of Appeal is considering whether or not they can deal with an appeal, first of all - that's one of the issues they deal with - from an ex parte order. And the Court says that, in that circumstance, you don't go to the Court of Appeal before the initial judge, or perhaps another judge of the same court, reviews that order. The second thing they were looking at in this case, the facts of the INDIAN MOTORCYCLE case, is that there was a review procedure in place and there was a fixed date, but prior to that fixed date review, another judge made an order. In other words, there's a judgment that was interposed before the scheduled review. So, although INDIAN MOTORCYCLE is like our case in that it involves an Anton Piller order and so forth, the review procedure contemplated by that initial judge was not carried out, or not followed. That is, I say, why that is distin-guishable from the facts here.
Here, we have an order where, clearly, Mr. Justice Dubé contemplated that there would be a review motion at the sittings of the court in Toronto - which is the last sentence or two of his paragraph 16 - and that such a review motion may be brought on short notice. I submit that this brings it squarely within the Wilson scenario, where there is leave from the judge making the original ex parte order. And that's what this is, I submit - leave to have the matter heard at the sittings in Toronto by way of this Notice of Motion to review in terms of the ex parte order. So I submit that this is the kind of 'special circumstances' that is contemplated by the Supreme Court case and that it is to go back before the sittings in Toronto. And I submit that the burden on this Court, if this INDIAN MOTORCYCLE case is held to mean that every time a judge of the court makes an Anton Piller order, that specific judge must return to the scene of the order and deal with it within the ten days, it is going to make the administration of these orders practically impossible. And what the Supreme Court said was, in special circumstances; i.e., where the judge puts into the order that there be a review like this, that is a special circumstance where there is consent or leave from the granting judge to have it dealt with.
My friend -- if I may just read a bit from this case that I pulled out of the library - and I apologize for not having it photocopied for you, my lord - what the Court actually said here was:
| A/R The exigencies of court administration as well as the death or illness of the authorizing judge do not always make it practical or possible to apply for a review to the same judge who made the order. |
Then it goes on - this is the Supreme Court speaking:
| A/R There is support for the proposition that another judge of the same court can review an ex parte order... |
They go through, looking at some U.K. Court of Appeal case law, and then they turn to this Gulf Islands British Columbia Court of Appeal case. There, that Court said it's a three-step process, saying that the original judge has the power to discharge the order or dissolve the injunction, the ex parte; secondly, that there ought to be no exercise of the power but he ought to refer the motion to the first judge, except in special circumstances, and then they say:
| A/R ...e.g., where he acts by consent or by leave of the first judge or where the first judge is not available to take the motion. |
And that is what the Supreme Court of Canada adopted.
So I submit, my lord, here, clearly, Mr. Justice Dubé contemplated this matter coming back before the sittings in Toronto of the Federal Court to review it as he contemplated and gave leave in his order to do that. In fact, he was more than giving leave; he required that the motion be brought back here, and that brings it fully within what was considered in the British Columbia Court of Appeal and adopted --
HIS LORDSHIP: What is that case, please?
MR. STRATTON: It's the case that's referred to, my lord, at --
HIS LORDSHIP: The Supreme Court case is where?
MR. STRATTON: It's referred to on page 5 of this Court of Appeal decision, my lord. The cite is there at --
HIS LORDSHIP: The decision of our Court of Appeal?
MR. STRATTON: Yes, that's right, Mr. Justice Stone's decision at page 5, the first case that is cited there, Wilson v. The Queen.
HIS LORDSHIP: Wilson v. The Queen. Yes.
MR. STRATTON: And I've been reading from page 608, which is referred to there as being the operative paragraph the Court of Appeal is following. In that special set of circumstances, which I say is different than this because there was no -- they didn't get to that review motion. If they'd got to that review motion, I submit, my lord, they would have gone within the Seafarers' exception.
HIS LORDSHIP: I think that the administration of justice with regard to Anton Piller matters would become impossible to follow if the same judge had to hear a review of an Anton Piller request; so I am satisfied that, in this particular case and relying on paragraph 16 of the order of Mr. Justice Dubé of May 23, 1996, I would have the jurisdiction to review this matter. So, if you are prepared to proceed with it, I am prepared to hear it. I don't know what else I can say.
MR. STRATTON: I am prepared to proceed, certainly, and my friend said he is.
MR. MORGAN: Yes, I am.
HIS LORDSHIP: Before going on, you have my decision. Rather than going through now the whole review, are you satisfied with it or do you intend to take -- I understand you have time to take it to appeal, but I don't want to waste everyone's time if you are not satisfied with it and you think that I am incorrect as to whether or not you want to take that to appeal, because I don't want to go ahead and then hear the review.
MR. MORGAN: Yes. I understand.
HIS LORDSHIP: It is important for me to know that. And I personally wouldn't mind if the Court of Appeal, in circumstances such as this, say, you don't have the jurisdiction. I don't feel hurt there in any way, if you understand what I mean. If you are even thinking about it, then I would prefer giving you a decision on it, deciding whether you want to go to appeal, as long as you haven't delayed legally, and then if you don't, it will come back and that's all.
MR. MORGAN: I'm thinking on my feet because, as I say, my friend pointed this case out to me only this morning.
HIS LORDSHIP: Well, I don't want to put you in an awkward position.
MR. MORGAN: I'm wondering if we can stand it down for five or ten minutes. I would like to call my client as well.
HIS LORDSHIP: Absolutely.
I think it would be interesting to get a final decision saying that in cases such as Anton Pillers, it has to be reviewed only by the judge that issued it. As I said, I would think that the administration of this court would have a problem.
We will recess for ten minutes.
--- recess at 11:20 a.m.
--- on resuming at 11:35 a.m.
MR. MORGAN: Thank you, my lord. I have now had a chance to confer with my client. Explain-ing the intricacies of procedure isn't always easy, but we've decided we're happy with your ruling and we'll continue today.
MR. KEARNS: My lord, if I may, my name is Kearns and I think I am at the bottom of the list.
HIS LORDSHIP: You're at the bottom of the list, Mr. Kearns, because when your application was filed, it was filed very late and the last one to have been filed.
MR. KEARNS: Yes, I understand, my lord.
My friends tell me that they expect to be some time; so I was wondering if the Court then wouldn't be prepared to release me to return at 2:00, or something of that nature. I am at the convenience of the Court.
HIS LORDSHIP: How long do you figure, gentlemen, you will take?
MR. MORGAN: I'd have to estimate two hours.
HIS LORDSHIP: Two hours!
MR. STRATTON: My lord, I'd have to hear the details of my friend's argument.
HIS LORDSHIP: Do you estimate two hours for yourself?
MR. MORGAN: No. Altogether.
HIS LORDSHIP: What do you estimate for yourself?
MR. MORGAN: Somewhere between an hour and an hour and a half.
HIS LORDSHIP: I think you'd better ask for a day to have this heard, because I don't want to restrict you to half an hour.
MR. STRATTON: No. And if my friend is going to be an hour and a half, I can't see that I'm going to respond within half an hour.
I canvassed this with my friend on Friday. I'd asked my friend to provide some kind of indication as to what issues he was going to go ahead with. He gave me some indication. I said, well, it looks like my estimate of one hour might be wrong and he responded to say, yes, it does appear to be wrong.
HIS LORDSHIP: Being wrong in...?
MR. STRATTON: It was too short.
So, if my friend is going to raise the objections and I can only respond to them -- I put an estimate of one hour originally on the motion because I thought we could go through it, but if my friend is going to be an hour and half with his side, I think I'm going to be at least an hour, probably the same, to respond.
HIS LORDSHIP: In that case, we'll put the whole thing off to another date and you'll have to ask for a special hearing day.
Now, do you want me to write a judgment on the first issue, or can we just leave that to the side?
MR. STRATTON: I would suggest, my lord, that it be included in the order adjourning it to --
HIS LORDSHIP: Then I'll put that into the order adjourning it.
MR. MORGAN: Thank you, my lord.
Let me just say for the record, then, as to your preliminary ruling, whatever appeal period applies, applies. If my client changes his mind, of course, I haven't put anything on the record for the purposes of the appeal.
HIS LORDSHIP: Then I won't write my decision right away; I will just give some brief reasons later on. My decision stands, obviously, but I'll date it whenever I date it and then you can decide to take it to appeal if you wish. You can do whatever you'd like.
MR. MORGAN: Thank you, my lord.
MR. STRATTON: My lord, the only other matter is, because this is being adjourned, in essence, it's --
HIS LORDSHIP: But the injunction stays in effect until the hearing.
MR. STRATTON: Yes.
HIS LORDSHIP: I don't think there is a problem with that.
MR. STRATTON: The only other matter, my lord, is that this is without prejudice to the parties to commence discovery in this action. I don't want to be met with my friend saying that we cannot go to discovery because we're waiting for this review motion to be dealt with. I don't know what the court schedule is for a one-day hearing in Toronto and I'd hate to wait for months when we're hoping to get to discovery shortly.
MR. MORGAN: Well, on that point, we haven't had any discussion about when to schedule discoveries. Although -- my friend's right, I took the position that the onus is on him to seek the review, and the matter should not proceed until he does get his Anton Piller order reviewed. He's had a form of discovery which is quite extraordinary in the sense that he's been able to search my client's premises. In my view, the review is to be taken seriously and if that was improper in the first place, that has to be determined before discoveries take place; otherwise, he's using information that he shouldn't have.
HIS LORDSHIP: Your friend may have a point.
MR. STRATTON: Well, my lord, I don't see how relevant material could be excluded from a discovery and I can tell you --
HIS LORDSHIP: I think what I'm going to do, Mr. Stratton, is, I am going to leave the injunction in place. That stays. And it is going to stay in place until such time as the review process has taken place. We'll leave matters as they are today, particularly since, Mr. Stratton, you said to me that it's now a year, or something like that, and nothing has been done and you haven't gone ahead with discoveries or anything like that. The next month or so won't prejudice your client too much.
MR. STRATTON: Well, if it is a month or so. It's just I've been hearing of some very long delays.
HIS LORDSHIP: No. You know that there is always a judge available here. The most you need, anyway, is three hours.
MR. STRATTON: Perhaps, then, my lord, if you could say that there's some --
HIS LORDSHIP: No. I can't say anything because I don't set scheduling.
MR. STRATTON: But as far as the discoveries, if, due to the court's scheduling, we don't --
HIS LORDSHIP: You can always come back.
MR. STRATTON: Thank you, my lord.
HIS LORDSHIP: Because I don't want to speculate.
MR. STRATTON: Certainly. As long as it's without prejudice to returning to discuss that.
HIS LORDSHIP: Well, everything is without -- all right. Without prejudice with regard to discovery.
MR. MORGAN: Well --
HIS LORDSHIP: That means that you are not going to proceed with discoveries until the review has taken place. After the review has taken place, you cannot then say, hey, he didn't proceed before with discovery; so, therefore, it's too late now.
MR. MORGAN: That's fair. Fine.
HIS LORDSHIP: Do we understand each other?
MR. STRATTON: Yes, my lord.
MR. MORGAN: Thank you.
HIS LORDSHIP: Thank you both.
I will write some very brief reasons with regard to the issue that I think that I have the jurisdiction to review the ex parte order, in these particular circumstances. I won't make them related to anything else.
MR. STRATTON: Thank you, my lord.
MR. MORGAN: Thank you, my lord.
HIS LORDSHIP: Thank you very, very much.
--- whereupon the matter was concluded at 11:45 a.m.
CERTIFIED CORRECT:
Roberta Colombo, c.v.r.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1368-94
STYLE OF CAUSE: DOLOMITE SVENSKA AKTIEBOLAG v. DANA DOUGLAS
MEDICAL INC.
PLACE OF HEARING: TORONTO
DATE OF HEARING: SEPTEMBER 22, 1997 REASONS FOR JUDGMENT OF TEITELBAUM J. DATED: SEPTEMBER 22, 1997
APPEARANCES
JAMES SHEARN FOR PLAINTIFF
DAVID W. AITKEN FOR DEFENDANT
SOLICITORS OF RECORD:
BORDEN, ELLIOT, FOR PLAINTIFF TORONTO
OSLER, HOSKIN & HARCOURT, FOR DEFENDANT OTTAWA