A-394-81
Brandlake Products Limited (Appellant) (Defen-
dant)
v.
Adidas (Canada) Limited (Respondent) (Plain-
tiff)
Court of Appeal, Heald, Ryan JJ. and Hyde
D.J.—Toronto, March 31 and April 2, 1982.
Practice — Discovery — Written interrogatories — Appeal
from judgment of Trial Division refusing request for
examination for discovery of plaintiff's officer and
substituting therefor an order for written interrogatories — No
interrogatories were before Court and none sought by either
party — Whether Rule 466.1 precludes order for
interrogatories in such case — Whether Rule 2(2) gives Court
jurisdiction to order interrogatories on own motion where no
jurisdiction to do so found in Rules or substantive law —
Possible equitable jurisdiction of Court to order
interrogatories not properly invoked in this case — Appeal
allowed — Federal Court Rules 2(2) and 466.1.
APPEAL.
COUNSEL:
A. David Morrow for appellant (defendant).
Robert T. Hughes for respondent (plaintiff).
SOLICITORS:
Smart & Biggar, Ottawa, for appellant.
Donald F. Sim, Q.C., Toronto, for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal from a judgment of
the Trial Division dated June 29, 1981 pursuant to
an application made by this appellant for an order,
inter alia, that the plaintiff attend by its officer
Mr. Thomas S. Nease for examination for
discovery of the plaintiff on the issue raised by
paragraphs 10(e) through (i) of the statement of
defence as amended on April 23, 1981. The
learned Motions Judge refused the appellant's
request for examination for discovery but ordered
instead "... that written interrogatories be had in
this matter, the questions to be formulated and
given to counsel for the plaintiff within seven days
and completed by 31 July, 1981".
The appellant's notice of motion did not ask for
written interrogatories nor was there any
subsequent request by it for interrogatories. The
appellant submitted that the Court has no
jurisdiction to order interrogatories ex proprio
motu and that interrogatories may only be ordered
if applied for by a party, and in support of this
submission, referred the Court to Federal Court
Rule 466.1 which reads as follows:
Rule 466.1 (1) A party to any proceeding in the Court may
apply to the Court for an order
(a) giving him leave to serve on any other party
interrogatories relating to any matter of fact in question
between those two parties; and
(b) requiring that other party to answer the interrogatories
on affidavit within such period as may be specified in the
order.
(2) A copy of the proposed interrogatories shall be served
with the notice of the motion for an order under paragraph (1).
(3) Leave shall only be granted pursuant to an application
under paragraph (1) for such interrogatories as, in the opinion
of the Court, are necessary
(a) to dispose fairly of the matter; or
(b) to save costs.
(4) Interrogatories, together with a copy of the order
granting leave to serve them, shall be served by personal service
on the attorney or solicitor on the record for the party to be
served if there is one, and, otherwise, shall be served on that
party by personal service, or in such other way as the Court
may specially authorize.
(5) An affidavit answering interrogatories as required under
this Rule may, subject to paragraph (6), be made by an
appropriate responsible officer of a corporation or the Crown or
by a responsible person who has the management of the
appropriate part of the party's affairs.
(6) An order granting leave to serve interrogatories may
provide that the party have all or some of the interrogatories
answered by an affidavit of one or more specified agents,
officers or servants.
(7) Where a person objects to answering any interrogatories
on the ground of privilege or public policy, he may take the
objection in his affidavit in answer.
(8) If any party, or any person whom the party has been
required under paragraph (6) to have answer interrogatories,
answers any of them insufficiently, the Court may make an
order requiring him to make a further answer either by
affidavit or by oral examination as the Court may direct.
(9) If a party against whom an order has been made under
this Rule fails to comply with it, the Court may make such
order as it thinks just including, in particular, an order that the
action be dismissed or, as the case may be, an order that the
defence be struck out and that judgment be entered
accordingly.
(10) If a person against whom an order has been made under
this Rule fails to comply with it, he is, without prejudice to
paragraph (9), liable to attachment and committal under Rule
2500.
(11) Service of an order to answer interrogatories on the
attorney or solicitor on the record for the party is sufficient
service to found an application under Rule 2500 for disobeying
the order, but the party may show in answer to the application
that he had no notice or knowledge of the order.
(12) Any order made under this Rule (including an order
made on appeal) may, on sufficient cause being shown, be
revoked or varied by a subsequent order of the Court.
It will be seen that Rule 466.1 contemplates an
application to the Court by a party and also
contemplates that the proposed interrogatories will
be before the Court and the parties when the
application is considered by the Court.
It is thus clear that Rule 466.1 was not complied
with. Accordingly, the learned Motions Judge did
not derive his authority to issue the impeached
order from that Rule. The respondent submitted,
however, that Rule 466.1 does not preclude the
Court from ordering interrogatories on its own
initiative and in support of this submission, relied
on Federal Court Rule 2(2) which reads as
follows:
Rule 2. ...
(2) These Rules are intended to render effective the substan
tive law and to ensure that it is carried out; and they are to be
so interpreted and applied as to facilitate rather than to delay
or to end prematurely the normal advancement of cases.
In my view, Rule 2(2) does not operate so as to
confer jurisdiction upon the Court per se. Rule 2
provides guidelines for the interpretation of the
subsequent Rules. It is to be applied in the inter
pretation of all the other Rules of Court including
Rule 466.1.
However, it does not, in itself, change the sub
stantive law or confer jurisdiction on the Court in
circumstances where jurisdiction cannot be found
elsewhere in the Rules or the substantive law. As I
read Rule 2, as applied to the circumstances of this
case, it requires an interpretation of Rule 466.1
which will facilitate rather than delay the normal
advancement of the case but it does not extend or
add to the Court's jurisdiction so as to entitle the
Court to order interrogatories in cases not encom
passed by Rule 466.1.
Since the Federal Court of Canada is a court of
equity, and since interrogatories were originally an
equitable device for obtaining not only oral discov
ery of facts but testimony for trial as well, I have
considered the possibility that this Court possesses
equitable jurisdiction to order interrogatories quite
apart from the specific authority given to it pursu
ant to Rule 466.1. However, even assuming such
jurisdiction, it is my view that the Court should
not order interrogatories in situations such as this
where they have not been requested by any of the
parties and where specific interrogatories are not
before the Court for approval or rejection at the
time the order is made. In my opinion, a blanket
order for interrogatories is not proper.
Accordingly, and for the above reasons, I would
allow the appeal with costs and set aside the order
of the Trial Division dated June 29, 1981. Since
the learned Motions Judge, in ordering inter
rogatories, obviously considered that some discov
ery was justified, I would refer the matter back to
the Trial Division for reconsideration on the basis
that in the circumstances of this case, an order for
interrogatories in lieu of examination for discovery
is not proper.
RYAN J.: I agree.
HYDE D.J.: I agree.
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.