T-2586-75
Look International Surgical Implants Incorpo
rated (Plaintiff)
v.
Hair Unlimited International (Canada) Limited
(Defendant)
Trial Division, Mahoney J.—Ottawa, January 11
and 13, 1977.
Practice—Motion for order to strike out or amend plain
tiffs list of documents—Documents insufficiently described
for the purposes of Rule 449(1) List of documents not plead-
ings and cannot be dealt with under Rule 419 as abusive of
process Other remedies—Federal Court Rules 419, 447(2),
448, 449(1), 451.
Defendant seeks an order declaring that the plaintiff's list of
documents does not comply with the Rules and should be
struck out or amended.
Held, the defendant is entitled to the declaration sought with
respect to Schedule II of the plaintiff's list except as it refers to
"incorporation documents" and "annual returns". Schedule II
falls well short of complying with the requirements as to
description in Rule 449(1). However, the list of documents is
not a pleading to be dealt with under Rule 419 and the
defendant's fears as to the consequences of his inability to come
to grips with Schedule II are illusory: it is the responsibility of
the party wanting to use documents to disclose them in a
manner that complies with the Rules or to risk their exclusion
from evidence.
MOTION.
COUNSEL:
B. E. Morgan for plaintiff.
L. A. Turlock for defendant.
SOLICITORS:
Gowling & Henderson, Ottawa, for plaintiff.
Barrigar & Oyen, Ottawa, for defendant.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The defendant seeks an order
declaring that the list of documents filed by the
plaintiff does not comply with the Rules, that it be
struck out and that a new list be filed within 20
days or, alternatively, that it be amended within
20 days. While the notice of motion refers to the
whole list of documents, the defendant's complaint
is directed only to Schedule II:
1. Correspondence, agreements, reports, specifications, photo
graphs, instructions, procedure manuals, Customs Documents,
invoices, customer lists, employment contracts, relating to the
business of the Defendant or its parent company Hair Replace
ment Centres of Boston and Hair Replacement Centres all of
which may be in the possession, custody or power of the
Defendant or its parent company.
2. Incorporation documents, corporate documents and annual
returns to the Corporations Branch, all of which may be in the
possession, custody or power of the Defendant or its parent
company, or in the possession custody or power of the Depart
ment of Consumer and Corporate Affairs.
Schedule II is supposed to set out the documents,
not in the plaintiff's custody, possession or power,
of which the plaintiff has knowledge, that might be
used as evidence in support of his case or in
rebutting the defendant's case.
Rule 447(2) requires that each party, within 20
days after the close of pleadings, file and serve on
the opposing party a list of the documents of which
he knows, and which might be used in evidence as
aforesaid. Rule 449(1) requires that the docu
ments or bundles of documents be enumerated in a
convenient order, describing each as briefly as
possible but, nevertheless, "sufficiently to enable it
to be identified".
Except for "incorporation documents" and
"annual returns" as described in paragraph 2,
Schedule II falls well short of complying with the
requirement of Rule 449(1) as to sufficient
description. The ordinary meaning of the verbiage
of paragraph 1, taken with "corporate documents"
as described in paragraph 2, is so extensive as to
embrace almost all of the documentation likely to
exist in the files of a subsidiary corporation and its
parent, with the possible exception of books of
account.
That said, the Rules make no provision for the
granting of the substantive order sought or any
thing like it, and for good reason. The list of
documents is not a pleading to be dealt with under
Rule 419 as abusive of the process of the Court
because of serious deviation from the requirements
of the Rules. Where the list of documents is
deficient as to documents in the possession, cus
tody or control of the party filing it, the other
party may seek an order under either Rule 448 or
451 for general or special discovery as may be
appropriate. But where the list is deficient, as in
this case, as to documents said to be in the posses
sion custody or control of another, there is no
remedy for the simple reason that there is no
injury.
To the extent that material documents are in the
possession, custody or control of a party, his obli
gation to disclose them arises if he wishes to use
them in his own interest or if an order for general
or special discovery extending to them is made, not
when an opposing party includes them in his list.
To the extent that a third party has them, it
remains the responsibility of the party wanting to
use them, whether in support of his own case or in
rebuttal of his opponent's case, to disclose them in
a manner that complies with the Rules or to risk
their exclusion from evidence.
While I have considerable sympathy for the
defendant in his frustration in attempting to come
to grips with Schedule II, his fears as to the
consequences of his inability to do so are illusory.
He is entitled to the declaration sought with
respect to Schedule II, except as it refers, in
paragraph 2, to the "incorporation documents"
and "annual returns" as described and to his costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.