Date: 19980430
Docket: T-2685-95
BETWEEN:
COCA COLA LTD. and COCA COLA BOTTLING LTD.
Plaintiffs
- and -
MUSADIQ PARDHAN c.o.b. as UNIVERSAL EXPORTERS, 1106729 ONTARIO
LIMITED c.o.b. as UNIVERSAL EXPORTERS and MUSTAFA PARDHAN, and
JOHN DOE and JANE DOE and OTHER PERSONS UNKNOWN TO THE
PLAINTIFFS WHO OFFER FOR SALE, SELL, EXPORT, OR DEAL IN
TRANSSHIPPED COCA-COLA PRODUCTS
Defendants
REASONS FOR ORDER
(Delivered orally at Toronto, Ontario
on Monday April 27, 1998, as edited.)
LUTFY, J.:
[1] The defendants seek an order staying these contempt proceedings, or in the alternative, an order excluding all of the evidence and findings of the investigators retained by the plaintiffs to investigate the defendants or, in the further alternative, the adjournment of this trial to allow the defendants to prepare properly their defence in light of the disclosure received on the eve of trial. This motion will be dismissed.
[2] On the basis of the evidence disclosed in the affidavits filed on behalf of the plaintiffs and the defendants, I am not satisfied, at least at this stage of the proceedings, that there has been a lack of disclosure of the kind necessary to afford the defendants the relief they seek. The documents delivered to the defendants on April 23, 1998 were in response to their recent request and, in any event, are not ones upon which the plaintiffs presently intend to rely.
[3] In reaching this conclusion I have considered the comments of Madame Justice Reed in Frank v. Bottle (1994), 74 F.T.R. 241 at 243 where she states:
| I was not prepared to find that the specific procedural steps and the mechanisms of disclosure which were mandated in Stinchcombe were required in the present proceeding. It is sufficient to say that there was ample indeed exhaustive disclosure to the defendants. There is no doubt that the requirements of s. 7 were met. |
| In dismissing counsel for the defendants' application, I noted that if evidence was subsequently adduced which might in any way surprise or prejudice the defendants, they would be given time by the court to respond thereto. It is within the power of the court to control the proceeding to ensure that surprise and prejudice do not arise by the calling of unexpected evidence. |
[4] For these reasons, the defendants' motion is dismissed. If circumstances develop during the course of this hearing concerning timely disclosure, which are not
presently known to the defendants, this decision will be without prejudice to whatever rights the defendants may have at that time.
"Allan Lutfy"
Judge
Toronto, Ontario
April 30, 1998
FEDERAL COURT OF CANADA
Date: 19980430
Docket: T-2685-95
BETWEEN:
COCA COLA LTD. and
COCA COLA BOTTLING LTD.
Plaintiffs
- and -
MUSADIQ PARDHAN c.o.b. as UNIVERSAL
EXPORTERS, 1106729 ONTARIO
LIMITED c.o.b. as UNIVERSAL EXPORTERS and
MUSTAFA PARDHAN, and
JOHN DOE and JANE DOE and OTHER PERSONS
UNKNOWN TO THE PLAINTIFFS WHO OFFER FOR SALE, SELL, EXPORT, OR DEAL IN
TRANSSHIPPED COCA-COLA PRODUCTS
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-2685-95
| STYLE OF CAUSE: COCA COLA LTD. and |
| COCA COLA BOTTLING LTD. |
-and-
| MUSADIQ PARDHAN c.o.b. as |
| UNIVERSAL EXPORTERS, et al. |
DATE OF HEARING: APRIL 27, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LUTFY, J.
DATED: APRIL 30, 1998
APPEARANCES: James Buchan
Chris Pibus
For the Plaintiffs
David Seed
Jay Chauhan
Robert Liang
For the Defendants
Page 2
SOLICITORS OF RECORD: Chris Pibus
GOWLING, STRATHY & HENDERSON
Barristers and Solicitors
Suite 4900
Commerce Court West
Toronto, Ontario
M5L 1J3
For the Plaintiffs
Jay Chauhan
CHAUHAN & ASSOCIATES
Barristers and Solicitors
Hong Kong Bank Centre
309-330 Highway No. 7 East
Richmond, Ontario
L4B 3P8
For the Defendants