Date: 20030925
Docket: T-2908-94
Citation: 2003 FC 1106
BETWEEN:
ITAL-PRESS LTD.
Plaintiff
- and -
GIUSEPPINA SICOLI and all others
unknown to the Plaintiff who sell, advertise
or distribute the Alberta Italian
Telephone Directory 1994, 656501 ALBERTA LTD.
and IL NUOVO MONDO PUBLISHING INC.
Defendants
REASONS FOR ORDER AND ORDER
[1] By orders made May 28 and July 2, 2003, during the course of a pre-trial conference, I authorised the defendants to bring a motion pursuant to Rule 369, if necessary, for the purpose of having the plaintiff answer certain undertakings given at the discovery of the plaintiff conducted on April 30, 2003. The present motion is in purported compliance with that order and seeks:
1. Staying the continuation of the Trial of this action until such time as the Plaintiff complies with the Order of Justice Gibson dated July 20, 2001;
2. Requiring the Plaintiff to comply with the Order of Justice Gibson dated July 20, 2001 and abandon its motion for confidentiality in accordance with the rules.
3. Requiring the Plaintiff to provide a further and better Affidavit of Documents setting out the documents it intends to rely on in its claim for damages with a proper Certificate of Solicitor after the Notice of Motion for Confidentiality has been abandoned.
4. Allowing the Defendants the opportunity to review the documents contained in the further and better Affidavit of Documents before the continuation of the Examination for Discovery of the officer of the Plaintiff.
5. Allowing the Defendant to examine the deponent on any Affidavit of Documents filed prior to the continuation of the Examination for Discovery of the Plaintiff.
6. Requiring the Plaintiff to comply with all outstanding undertakings from the Discovery of April 30, 2003.
7. For costs of this Application on a solicitor and his own client basis.
[2] Clearly, all but paragraphs 6 and 7 of the quoted prayer for relief go beyond the terms of the orders permitting the motion to be made. That would not normally be a ground for objection since leave of the Court is not generally required to bring a motion. However, the fact that the orders were made in the context of a pre-trial conference at which the defendants were opposing the setting down of the case for the the second (damages) portion of the trial explains both why leave was sought and why it was granted in limited terms. It appeared to me then, as it does to me now, that the defendants, having been found liable, were attempting to delay the final day of reckoning.
[3] Paragraphs 1 and 2 of the prayer for relief demonstrate a clear misunderstanding of the order of Gibson J. dated July 20, 2001. The relevant part of that order reads:
The plaintiff's motion for an order cancelling its motion for a protective order is dismissed. The plaintiff's attention is drawn to Federal Court Rules 370, 402 and 411 regarding abandonment of a motion.
[4] Clearly the plaintiff cannot be in default of that order for it did not oblige him to do anything ; it simply dismissed his motion for an order "cancelling" his previous motion for a protective order and drew his counsel's attention to the relevant provisions of the Rules relating to abandonment of motions.
[5] Paragraphs 3 and 4 of the prayer for relief are equally misbegotten. Not only do they go beyond the terms of my orders authorizing the bringing of preliminary motions at this late stage, they also relate to affidavits of documents produced years ago prior to the trial of the liability portion of the case and the judgment thereon rendered on May 31, 1999. The "evidence" that the said affidavits are inadequate is to be found in the affidavit of an officer of the defendants and is clearly inadmissible as being opinion and argument by an unqualified witness. There is evidence that most of plaintiff's documents have been destroyed by fire and the alleged inadequacy of the affidavits of documents has not been established.
[6] Paragraph 5 of the prayer for relief seeks leave to (cross) examine the deponent of the affidavit of documents. Examination on an affidavit of documents is the exception and no reason has been shown why it should be ordered whether or not the affidavits given to date are adequate.
[7] This brings me finally to paragraph 6 of the prayer for relief which seeks to have the plaintiff fulfil his undertakings given during the examination held on April 30, 2003. The affidavit in support of the motion has this to say on the subject:
76. The answer to undertaking number 1 is satisfactory.
77. The Answer to Undertaking Number 2 is not an answer at all, but an explanation of generally acceptable accounting principles. We require a proper answer to this question and the opportunity to question on all matters arising from the answer.
78. Undertaking Number 4 has been properly answered. We have some questions arising from this answer.
79. Undertaking Number 4 has not been answered at all. Some broad generalizations have been given, but no answers as to actual numbers have been provided. The Defendant requires a proper breakdown of expenses relating to the Edmonton and Calgary sales and will have questions arising.
80. Undertaking Number 5 has not been answered at all. If it is impossible for the Plaintiff to break out its portion of Income for Alberta from its own financial statement how does the Plaintiff expect the Court to figure out its loss.
[Presumably the reference in paragraph 78 is a misprint and should be to undertaking 3.]
[8] Apart from being wholly unacceptable as argument rather than evidence, this last passage of the defendant's affidavit makes it clear that what he is really objecting to with regard to both the documents and the answers furnished by the plaintiff is that the latter is unable to provide detailed documents showing his revenues and expenditures and as a result is proposing an unconventional, and in defendant's view, illegal method of proving his damages. I have no comment on the defendant's legal position which will have to be determined by the judge at trial. I do say, however, that the present motion is not the proper forum for that determination. A party's obligation to produce documents does not extend to documents which are not (or no longer) in his possession or control, no matter how useful they may be to his or his opponent's case. Likewise, a party's obligation to answer relevant questions does not require him to do the impossible and give information which he does not have. A party being examined for discovery has the duty to inform himself of relevant facts within his knowledge but if he cannot swear to such facts, as in this case because of the records containing them having been lost or destroyed, that is an end of the matter and the case must go to trial on such secondary evidence as the Court is prepared to accept. The result will no doubt be more unfortunate for one party than the other but will depend on the quality and admissibility of the secondary evidence which will be made at trial.
[9] To put the matter another way, on the plaintiff's own showing, it is clear that he will have considerable difficulty in proving the amount of his loss. It is possible that he will fail to do so, in which case he will lose. But that is no reason to non-suit him at this stage. Likewise, the defendant's task in contesting the amount of damages will also be more difficult but that does not entitle him to force the plaintiff to invent facts and figures out of thin air. In the end, both parties and the judge will have to deal with the case as it is and do the best they can with what they have got.
[10] The motion will be dismissed. It should not have been brought. The plaintiff is entitled to his costs to be assessed in the ordinary way and payable forthwith and in any event of the cause.
ORDER
The motion is dismissed with costs to be assessed and paid to plaintiff forthwith and in any event of the cause.
The parties will attend a continuation of the pre-trial conference to be held by teleconference on October 8, 2003 at 2:00 p.m., Ottawa time.
Judge
Ottawa, Ontario
September 25, 2003
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2908-94
STYLE OF CAUSE: Ital-Press Ltd. V. Giuseppina Sicoli et al
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: September 25, 2003
WRITTEN SUBMISSIONS BY:
Neil F. Kathol FOR PLAINTIFF
W. Murray Smith FOR DEFENDANTS
SOLICITORS ON THE RECORD:
Brownlee Fryett
Calgary, Alberta FOR PLAINTIFF
W. Murray Smith
Calgary, Alberta FOR DEFENDANTS