Date: 20040310
Docket: T-393-98
Citation: 2004 FC 368
BETWEEN:
A. LASSONDE
Plaintiff
(Defendant to Counterclaim)
and
SUN PAC FOODS LIMITED
Defendant
(Plaintiff by Counterclaim)
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the defendant asking the Court to order the plaintiff to comply with the order made by this Court on April 24, 2001, in respect of questions and undertakings to be answered.
[2] However, as we shall see later, the exercise in which the Court and the parties are engaged here must be limited to determining whether certain undertakings that were the subject of the order made on April 24, 2001, have not yet been satisfactorily met.
[3] The time that has passed since the order of April 2001 and the laborious process of perfecting this case are some of the factors to be considered in understanding the limited exercise that the Court must engage in here in the very sincere hope that the parties will try to advance the case and move forward to the pre-trial conference stage.
[4] In this respect, what was said below in a decision of this Court in this case on January 16, 2002, must certainly not be simply consigned to the dustbin of history:
[2] These two motions are the most recent ones in a trade-marks dispute dating back to March 1998 that has since been the subject of a series of tiresome interlocutory motions. One after the other, each of the parties has appeared in Court on motions that have almost invariably resulted in lengthy and acrimonious debates between counsel in addition to occupying a great deal of the Court's time both in analyzing the motions and the voluminous correspondence they have generated and in hearing the motions.
[3] To all intents and purposes, it appears that at all relevant times no steps have been taken or progress achieved in this matter so far on the basis of a consent between the parties' respective counsel.
[4] The result is that, almost four years after the filing of the statement of claim, we are still looking at the language of the written pleadings and settling -- which seems to be the next stage in the future -- the outcome of undertakings made or objections raised during the examinations for discovery held in May and November 1999. Once these difficulties have been settled, parties propose to undertake a second round of examinations for discovery!
[5] Some major direction is in order so that we can consider that the written pleadings between the parties are definitively ended, that the examinations for discovery that have already been held are completed and concluded in short order, and that the parties are finally directed toward the request for a pre-trial conference in a matter that is beginning to assume the trappings of a complex case. It seems clear in this regard that the Federal Court of Appeal recognizes that the person responsible for case management enjoys a fairly extensive discretion to get a case moving ahead; in Sawridge Band v. Canada, [2001] F.C.J. No. 1684, at paragraph 11, the Court adopts the following position expressed by the Alberta Court of Appeal:
We would take this opportunity to state the position of this Court on appeals from orders of case management judges. Case management judges must be given latitude to manage cases. This Court will interfere only in the clearest case of a misuse of judicial discretion. This approach was well stated by the Alberta Court of Appeal in Korte v. Deloitte, Haskins and Sells (1995), 36 Alta. L.R. (3d) 56, at 58, and is applicable in these appeals. We adopt these words as our own.
[...] This is a very complicated lawsuit. It is the subject of case management and has been since 1993. The orders made here are discretionary. We have said before, and we repeat, that case management judges in those complex matters must be given some "elbow room" to resolve endless interlocutory matters and to move these cases on to trial. In some cases, the case management judge will have to be innovative to avoid having the case bog down in a morass of technical matters. Only in the clearest cases of misuse of judicial discretion will we interfere. [...]
(See also the decision of Gibson J. in Microfibres Inc. v. Annabel Canada Inc. et al., 2001 FCT 1336, December 5, 2001.)
[6] We should keep this approach in mind when looking at the motions under review.
[5] In paragraphs 21 to 23 of the decision of January 16, 2002, the Court referred to its decision of April 2001, as follows:
[21] In regard to the remaining stages to be completed in this case, here again of course the parties are unable to agree. I must decide, then, and to that end I find that notwithstanding the decisions of this Court of February 22, 2000 and April 24, 2001, there are still, apparently, some problems in regard to the parties' examinations for discovery.
[22] In order to resolve these problems -- and to bring the examinations for discovery to an end -- it will be necessary to rule first on the plaintiff's motion filed November 28, 2001 (document no. 137) since it refers primarily to the decision of February 22, 2000. Since the plaintiff assured the Court that it could argue this motion in one hour, the plaintiff shall place this motion on the roll for a general motions sitting of this Court in Montréal within thirty (30) days of the order accompanying these reasons. The hearing on this motion will be limited to two (2) hours in which each party shall have a total of one hour in which to submit all of its arguments.
[23] The decision disposing of this motion will stipulate the next stage to be completed in the case, likely a motion by the defendant seeking to force "Lassonde to provide answers to undertakings and answers to the questions ordered to be answered in the April 24, 2001 Reasons for Order and Order".
[6] The outcome of the motion filed by the plaintiff on November 28, 2001, document no. 137, was decided by the order of this Court dated October 15, 2003, the relevant portion of which reads as follows:
Lassonde's motion (doc.#137) originally returnable November 27, 2001 shall not be heard on October 20, 2003 or at a later date since it is obvious that by virtue of the combined effect of the orders of this Court dated January 16, 2002, February 4, 2002 and April 2, 2003, the Plaintiff had to move the Court on or before May 2, 2003 with said motion. The Plaintiff is now precluded from trying to move the Court with that motion.
In order to comply with paragraph 23 of the Reasons for Order dated January 16, 2002, the parties shall submit on a joint basis and within ten (10) days of the date of this order a concise proposed schedule so that the Defendant's motion referred to in said paragraph 23 is brought to a state of readiness to be heard.
[7] In theory, the motion before us could, in principle, be meant to compel Lassonde, as noted in paragraph 23, quoted supra in paragraph [5] of these reasons, "to provide answers to undertakings and answers to the questions ordered to be answered in the April 24, 2001 Reasons for Order and Order".
[8] However, the attitude taken by the defendant subsequent to the decision of January 16, 2002, clearly suggests that the only matters to be resolved in respect of the order of April 24, 2001, are certain undertakings not answered by the plaintiff. I find, for the reasons that follow, that this is the appropriate substance of the motion before us, and that, accordingly, the Court should not, either today or in future, consider the possibility that the plaintiff has also not answered certain questions that it was required by the order of this Court dated April 24, 2001, to answer.
[9] First, it appears that on the day after the decision made by Blais J. on April 2, 2003, dismissing the plaintiff's appeal of the decision I made on January 16, 2002, neither the plaintiff nor the defendant seemed to have taken much interest in the possible motions discussed in paragraphs 21 to 23 of the decision of January 16, 2002. It appears that the defendant did not really try to urge the plaintiff to pursue its motion so that it could then bring the motion that is now before us. That lack of interest must be noted.
[10] Second, it appears that on August 22, 2001, to all intents and purposes immediately after the decision of this Court on April 24, 2001, in correspondence addressed to counsel for the plaintiff, counsel for the defence focused only on the list of undertakings and made no reference to any unanswered questions. That correspondence says:
On a similar note to your letter of July 27, 2001, a number of answers to undertakings ordered to be answered by the Plaintiff by Prothonotary Morneau's order of April 24, 2001, were either non-responsive or not provided as noted below.
[No emphasis in the original.]
[11] The defendant continued to focus on certain unanswered undertakings, and reiterated its interest in them, in November 2003, when it tried to set the process in motion regarding the motion now before us. In a letter dated November 18, 2003, the defendant said:
This is further to your letter and our telephone conversation of last Friday, November 4, 2003, with respect to our proposed motion regarding answers to undertakings and provision of marked exhibits.
As you know, we wrote to the Court on October 23, 2003, setting out a joint proposed schedule with respect to this motion. The schedule provides for our Motion Record to be served and filed by no later than this Friday, November 21. In view of our discussions, please advise whether you would be prepared to consent to a two-week extension of the current schedule. We would appreciate hearing from you in this regard by no later than 5:00 pm today in order to facilitate the preparation of our materials. [Italicized passage is underlined in the original.]
We wish to inform that the following undertakings given on behalf of the Plaintiff are still outstanding. The numbers refer back to the original list of undertakings that was attached as Exhibit "A" to the Affidavit of Ena Chaitram, sworn in support of the Defendant's motion to compel dated November 30, 2000. This motion resulted in the Order of Prothonotary Morneau dated April 24, 2001, in which the Plaintiff was ordered to answer all the undertakings listed in Exhibit "A". A further copy of Exhibit "A" is attached for your reference. Answers to some of the undertakings were provided in your letter of June 8, 2001, but the following undertakings remain unanswered.
[Not underlined in the original.]
[12] Subsequently, the letter from the defendant dated December 16, 2003, the notice of motion filed by it on November 21, 2003, the affidavit in support of that motion and the written submissions attached by the defendant all referred or related to the unanswered undertakings only.
[13] It was not until the days leading up to the hearing of the motion that is before us, in the cross-examination of the plaintiff's witness on his affidavit, that counsel for the defendant attempted to raise the aspect of the unanswered questions in addition to the undertakings (see page 37 of the defendant's supplementary motion record).
[14] At the hearing of the motion, it was apparent that the reason for the defendant's failure to raise the aspect of the unanswered questions previously was that it had forgotten. However, I cannot accept that explanation, which was advanced orally at the hearing by counsel for the defendant, as grounds for changing the substance of the defendant's motion, since the explanation advanced was not supported by an affidavit and the forgetfulness asserted is inconsistent with a course of conduct that continued for more than two years in which the defendant focused on only certain undertakings.
[15] That is therefore why, at the hearing of the motion before us, I held that only the undertakings discussed by the parties in the defendant's correspondence of December 16, 2003, remained from the order of April 24, 2001, and that only those undertakings, and not any question that was apparently unanswered, would be considered by the Court in the context of the defendant's motion.
[16] As well, before or during the hearing, the parties informed the Court that certain undertakings that were still disputed at the time the motion before the Court was filed no longer required a decision from the Court in their regard.
[17] As a result of the foregoing, only the following undertakings actually remain before the Court, and they will be disposed of as follows:
- 5 and 6;
- 15;
- 16, 17, 19, 21;
- 22 to 25 and 46;
- 28.
Undertakings 5 and 6
[18] After discussing it in Court, counsel for the plaintiff undertook to do the research requested by the defendant in paragraph 7 of its additional written submissions dated January 19, 2004. They will have to comply, and answer counsel for the defendant within thirty (30) days of the order that is issued with these reasons.
Undertaking 15
[19] Strictly speaking, the plaintiff has answered this undertaking. No update to the information provided in the past may be required, having regard to the fact, inter alia, that the defendant has apparently not itself offered to update the information provided in the past. As well, I do not believe that rule 226 of the Federal Court Rules, 1998 contemplates the situation raised by the defendant here.
[20] That undertaking may therefore be regarded as having been met, and requires no further answer.
Undertakings 16, 17, 19 and 21
[21] The purpose of undertakings 16, 17 and 19 is essentially to have the plaintiff provide a breakdown of the advertising dollars it has spent on advertising to consumers and to the industry.
[22] However, the real substance of those undertakings is that the plaintiff undertook to provide the information in the form in which it was available (see page 128 of the cross-examination of Mr. Gattuso, the page reproduced at page 75 of the defendant's motion record). In this regard, I find that the plaintiff has already provided the defendant with the information that was available to it at the time, and that, in the circumstances, it is not required to answer these undertakings further.
[23] Undertaking 21 relates to the backup documents for the answer given to undertakings 16, 17 and 19, discussed earlier. After discussing it in Court, counsel for the plaintiff undertook to do research to determine whether documents of this kind (most probably invoices) would not be available. They will have to comply and answer counsel for the defendant within thirty (30) days of the order that is issued with these reasons.
Undertakings 22 to 25 and 46
[24] These undertakings relate to a breakdown of the plaintiff's sales figures under various headings. However, these undertakings were limited to the information available at the time. I find that these undertakings have been adequately met to date by the answer set out in the letter from counsel for the plaintiff dated December 10, 2003 (see the bottom of page 4 of Exhibit RL-1 to the affidavit of Roxane Laperrière dated December 18, 2003, tab 1, of the plaintiff's reply memorandum) and by the table delivered to the defendant in the past (see pages 240 to 242 of the defendant's motion record). Those undertakings therefore require no further answer.
Undertaking 28
[25] The purpose of this undertaking is to obtain information concerning the launch of the plaintiff's various products involved in this case.
[26] In this respect, it appears that the real substance of this undertaking is that the plaintiff undertook to provide the information in the form in which it was available (see page 187 of the cross-examination of Mr. Gattuso, the page reproduced at page 90 of the defendant's motion record). In this regard, I find that the plaintiff has already provided the defendant with the information that was available to it at the time, and that, in the circumstances, it is not required to answer these undertakings further, since it is apparent at page 88 (page 31 of the defendant's supplementary motion record) of the cross-examination of Mr. Gattuso held on January 12, 2004, that any additional research in this regard would be excessive.
[27] As success is divided on this motion, no costs are awarded.
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Richard Morneau |
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Prothonotary |
Montréal, Quebec
March 10, 2004
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-393-98
A. LASSONDE INC.
Plaintiff
(Defendant to counterclaim)
and
SUN PAC FOODS LIMITED
Defendant
(Plaintiff by counterclaim)
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 26, 2004
REASONS FOR ORDER: RICHARD MORNEAU, PROTHONOTARY
DATE OF REASONS: MARCH 10, 2004
APPEARANCES:
| Pascal Lauzon Robert Brouillette |
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FOR THE PLAINTIFF (DEFENDANT TO COUNTERCLAIM) |
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| Stephanie Chong Michelle Nelles |
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FOR THE DEFENDANT (PLAINTIFF BY COUNTERCLAIM) |
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SOLICITORS OF RECORD:
| Brouillette Charpentier Fortin Montréal, Quebec |
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FOR THE PLAINTIFF (DEFENDANT TO COUNTERCLAIM) |
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| Johnston Avisar Wassenaar Toronto, Ontario |
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FOR THE DEFENDANT (PLAINTIFF BY COUNTERCLAIM) |
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