Federal Court Decisions

     T-199-91

Vancouver, British Columbia, Monday, the 16th day of June, 1997

Present:      Mr. John A. Hargrave, Prothonotary

Between:

     4013 ENTERPRISES LTD.,

     Plaintiff,

     - and -

     HER MAJESTY THE QUEEN,

     Defendant.

     REASONS FOR ORDER AND ORDER

     This application, for the continued examination for discovery of Mr. Kenneth Lowe, is allowed on certain terms.

     To-date there have been far too many adjournments of the discovery of Mr. Lowe, the auditor employed by the Defendant. As a result he has spent unnecessary time preparing and re-preparing for cancelled examinations. However, I am not convinced that examination for discovery was closed off on 26 June 1995 merely because the court reporter saw fit to write, at the end of the transcript "EXAMINATION FOR DISCOVERY CONCLUDED": it is reasonably clear from the transcript that the discovery was left open. Nevertheless, the Defendant and the Defendant's witness had every right to expect that the discovery would be reconvened and concluded within a reasonable time.

    

     At this point the litigation is far too stale. It is essential that the Plaintiff get on with its case.

     While I am allowing further examination for discovery by the Plaintiff of the Defendant, the Plaintiff should keep in mind that discoveries are "not a never ending process that knows no boundaries", but should come to a timely conclusion: John Labatt Ltd. v. Molson Breweries, A Partnership (1997), 69 C.P.R. (3d) 126 at page 128 (F.C.T.D.).

     The terms on which the further discovery of Mr. Lowe will take place are as follows:

1.      The Plaintiff will provide, by 27 June 1997, as a precondition to any further examination for discovery of Mr. Lowe:

a)      The outstanding undertakings from the defendant's examination for discovery of the Plaintiffs which took place 12 September 1995;

b)      A letter setting out the additional areas on which the Plaintiff wishes to examine Mr. Lowe, together with counsel's best estimate of the time the examination will take; and

c)      The Plaintiffs Affidavit of Documents;

2.      The discovery will take place at Mr. Lowe's convenience, on consecutive days, to be completed by 29 August 1997;

3.      Undertakings arising out of the discovery will be completed within 30 days of the last discovery: there shall be no further discovery, arising out of those undertakings, except by the leave of the Court;

4.      The Plaintiff will provide appropriate conduct money, with the cost of all further discoveries of Mr. Lowe at the Plaintiff's cost in any event; and

5.      The costs of this motion shall be in the cause.

                                                

                         (Sgd.) "John A. Hargrave"

                             Prothonotary