Direction to Attend Not to be Used as a Discovery Mechanism
Simpson Strong-Tie Co. v. Peak Innovations Inc., 2009 FCA 266 (Sexton, Blais and Layden-Stevenson JJ.A.)

September 14, 2009

Kenneth D. McKay for the Appellant, Simpson Strong-Tie Co. (“Simpson”)
Paul Smith for the Respondent, Peak Innovations Inc. (“Peak”)

Simpson brought an application for production of documents by Peak on a direction to attend (“DTA”) and for answers to questions refused in cross-examination on Peak’s affidavit. The prothonotary dismissed the application; Simpson’s appeal to a motions judge of the Federal Court was dismissed. This appeal, to the Federal Court of Appeal, also failed.

The prothonotary’s reasons focused on the fact that, in cross-examination on an affidavit, Rule 91(2)(c) of the Federal Courts Rules requires the examinee served with a DTA to produce the documents “in that person’s possession, power or control” that are relevant to the application. This was contrasted with rule 91(2)(a), which deals with examinations for discovery, and refers to documents “in the possession, power or control of the party on behalf of whom the person is being examined”.

The prothonotary found that Simpson’s DTA, which sought “all documents” in Peak’s corporate files, overreached the requirements of Rule 91(2)(c) because such documents were not necessarily in the possession, power or control of the affiants, and therefore Peak could not be required to produce the documents. The purpose of cross-examination on an affidavit is to obtain the direct testimonial evidence of the witness, not discovery of the opposing party. The prothonotary noted that the underlying proceeding was an application, not an action, and it would be contrary to the restricted and summary procedural nature of applications to allow Simpson to use the DTA essentially as a discovery mechanism.

Pursuant to Merck & Co., Ltd. v. Apotex Inc., 2003 FCA 488, Mandamin J. of the Federal Court reviewed the prothonotary’s discretionary order, which related to an interlocutory matter and was not vital to the outcome of the case, on a “not clearly wrong” standard. Mandamin J. found that the order was not clearly wrong.  Sexton, Blais and Layden-Stevenson JJ.A. upheld this finding, citing j2 Global Communications, Inc. v. Protus IP Solutions Inc., 2009 FCA 41, for the proposition that prothonotaries and trial judges should be “afforded ample scope in the exercise of their discretion when managing cases” and that the Court of Appeal “should only intervene in order to prevent undoubted injustices and to correct clear material errors”, none of which were present here.

By: Eugene Derenyi, Stikeman Elliott