Motion for Production of Documents and Answers to Refused Questions Dismissed
Simpson Strong-Tie Company Inc. v. Peak Innovations 2009 FC 392 (Mandamin, J.)

April 21, 2009

Kenneth D. McKay for the Applicant, Simpson Strong-Tie Company Inc. (“Simpson Strong-Tie”)
Paul Smith for the Respondent, Peak Innovations
 
This was a motion before the case management Prothonotary for production of documents and re-attendance of affiants to answer refused questions, alone in the context of an appeal from a decision of the Registrar of Trade-marks with respect to trade-mark application No. 1, 205, 529.

The affiants and Respondents refused to provide documents they considered beyond the scope of the affidavits, and at the cross examination the affiants refused to answer questions pertaining to documents requested in the Notice to Attend which was filed by Simpson Strong-Tie.

The Prothonotary had held, based on Rule 91 of the Federal Court Rules, that the Direction to Attend seeking “all documents” in the Respondent corporations’ files was overreaching as such documents were not necessarily in the possession, power or control of the affiants. There was no foundation in the Applicant’s cross-examinations to demonstrate that the documents were in the possession of the affiants. The Prothonotary dismissed the Applicant’s motion for production of documents sought in the Direction to Attend and for answers to the questions refused in the cross examination on the basis that the questions were either not proper, were questions to which argument was not recited or dealt with matters that were not relevant, were privileged or exceeded the scope of the affidavits.

The standard of review of a discretionary order of a Prothonotary is where the decision was “clearly wrong, in the sense that the exercise of discretion was based on a wrong principle or misapprehension of the facts or that they raise questions vital to the final issue of the case”. The Prothonotary’s interpretation of Rule 91(2)(c) was held directly applicable. The Applicant was directed to return to the case management Prothonotary for direction in respect of those matters raised by the Applicant which assumed success in the application and dealt with case management questions.

By: Andrea Rush, Heenan Blaikie LLP