Toronto, Ontario, August 23, 2005
PRESENT: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
Plaintiff
and
CONROS CORPORATION
Defendant
REASONS FOR ORDER AND ORDER
[1] This is an appeal from the order of Prothonotary Milczynski dated July 7, 2005 in which she refused to alter the terms of a confidentiality order.
[2] As case managing Prothonotary, Madam Milczynski had made on consent a confidentiality order on April 14, 2004. Among the terms of that order was that one representative of each party was to have access to the confidential information. The Party nominated by the Defendant was Joe Nunes, its general manager.
[3] An amending confidentiality order was issued on consent on August 13, 2004 allowing Navin Chandaria, the President of the Defendant to receive confidential information "solely for the purpose of reviewing and responding to the materials found in Plaintiff=s summary Judgment Motion Record."
[4] On June 9, 2005 the Defendant sought a further amending order asking that Navin Chandria, its President be also deemed an authorized recipient of any confidential information or be substituted in lieu of Mr. Nunes.
[5] Prothonotary Milczynski denied that motion for the following reasons:
Having reviewed the material filed, I find that the Defendant has not provided sufficient evidence as to why Mr. Chandaria ought to be added as an authorized recipient of confidential information or why, at this stage, he ought to replace Mr. Nunes. There is little or no basis for me to conclude that the variance sought is warranted. As noted above, Mr. Nunes was determined by the Defendant itself to be the appropriate authorized representative in April, 2004, and again in August, 2004 by virtue of the restricted and limited scope of the disclosure that was made available to Mr. Chandaria on the motion for summary judgment. There is also no evidence of prejudice to the Defendant or any indication that the Defendant is or would be unable to instruct counsel.
[6] Defendant is appealing this order arguing that the Prothonotary made an error and that the following pertains:
The compelling circumstance which requires and justifies an amendment to the Confidentiality Order is that this action is now proceeding to the stages of
(a) the examination for discovery of the Plaintiff,
(b) the pre-trial conference and
(c) the trial.
At these stages of the action it is just as critical, that Navin Chandaria, the President of Conros be fully informed as to all relevant factual and legal matters so that Navin Chandaria can properly instruct Conros' counsel on all issues, be they liability issues, damage issues or settlement issues, and so that Conros can thereby fully and completely defend the Plaintiff's claim.
[7] To be successful on an appeal from a Prothonotary, an appellant has to meet the test set out in R. v. Aqua -Gem Investments, [1993] 2 FC 425 where MacGuigan stated at para. 95:
Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.) at page 484, and Lacourciere J.A. in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issue of the case.
...
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
[8] The order here raises no questions vital to the final issue of the case. Thus to succeed the Defendant has to establish that Prothonotary Milczynski's reasons "are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts."
[9] Here Prothonotary Milczynski applied the standard for issuing change orders set out in Smith Kline v. Canada (A.G.), [1998] F.C.J. No. 223 which was approved by the Court of Appeal in Apotex Inc v. Astra Zeneca Canada Inc 2004 FCA 226, namely Awhether the facts establish some change in circumstances or compelling reasons to vary."
[10] The facts before Prothonotary Milczynski did not establish either. The affidavit of Hothi Keshvala relied upon merely recites the facts in this case. The key paragraph relied upon states:
At present Joe Nunes, the general manager of Conros, is the authorized recipient on behalf of Conros for Confidential Information pursuant to paragraph 2 of the Confidentiality Order dated April 14, 2004. However, Conros believes that it is important that is President, Navin Chandaria, now be an authorized recipient for Confidential Information together with Mr. Nunes so that both persons, who occupy key positions within Conros, can provide necessary information and instructions to Conros' solicitors.
However, if this Honourable Court determines that only one person is to be the authorized recipient for Confidential Information pursuant to paragraph 2 of the Confidentiality Order then Conros believes that it is in the best interests of Conros that is President, Navin Chandaria, be that authorized recipient for Confidential Information pursuant to paragraph 2 of the Confidentiality Order dated April 14, 2004.
[11] This is an assertion or an expression of belief but it does not amount to a "change in circumstances or compelling reasons to vary." The proceedings in this case are merely progressing to the next stage.
[12] Accordingly the Defendant fails to meet the test in Agua-Gem, supra and thus this appeal cannot succeed.
ORDER
THIS COURT ORDERS that this appeal be dismissed with costs to the Plaintiff.
"K. von Finckenstein"
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-30-03
STYLE OF CAUSE: HENKEL CANADA CORPORATION
Plaintiff
and
CONROS CORPORATION
Defendant
DATE OF HEARING: AUGUST 22, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: AUGUST 23, 2005
APPEARANCES BY:
James H. Buchan FOR THE PLAINTIFF
Ross Morrison FOR THE DEFENDANT
SOLICITORS OF RECORD:
James H. Buchan
Barrister and Solicitor
Toronto, Ontario FOR THE PLAINTIFF
Ross Morrison
Barrister and Solicitor
Toronto, Ontario FOR THE DEFENDANT