T-1032-86
Champion Truck Bodies Limited (Plaintiff)
v.
The Queen in right of Canada (Defendant)
INDEXED AS: CHAMPION TRUCK BODIES LTD. V. CANADA
Trial Division, Reed J.—Ottawa, December 9 and
11, 1986.
Practice — Discovery — Production of documents — Rule
448 motion to compel filing list of documents and certifying
affidavit — Granting order would not constitute indirect dis
covery of ex-Minister as ex-ministers cannot be examined on
discovery — Not necessary to prove Rule 447 list incomplete
to obtain Rule 448 order — Claims of privilege premature
where list of documents, not production thereof, sought —
Federal Court Rules, C.R.C., c. 663, RR. 447, 448, 449 —
Industrial and Regional Development Act, S.C. 1980-81-82-
83, c. 160.
In the main action, the plaintiff claims damages for the
rescinding of a $400,000 grant awarded to it under the Indus
trial Regional Development Programme, or specific perform
ance of the grant agreement.
This is a motion to compel the defendant, pursuant to Rule
448, to file a list of documents and an affidavit certifying such
list.
Held, the motion should be allowed.
The plaintiff is not seeking to do indirectly what cannot be
done directly: to obtain discovery of the ex-Minister, Sinclair
Stevens. That is because an ex-minister cannot be examined on
discovery. He can neither speak for nor make admissions on
behalf of his former department because he is no longer part of
it. Furthermore, a minister usually does not have the most
complete knowledge of the matters in issue.
In arguing that the motion should be denied because the
plaintiff has failed to identify documents which have not been
produced but which, allegedly, are in the possession of the
defendant, the latter, in effect, is saying that in order to be able
to obtain a Rule 448 order a party must prove that the list of
documents filed by the opposing side pursuant to Rule 447 is
incomplete. Neither the Rules nor the case law requires this
proof. It would be an intolerable burden to require a party to
prove the existence of documents of which he could have no
precise knowledge.
Claims of privilege may be justified but they are premature
at this point. The plaintiff is not seeking the production of
documents but merely a list of documents. Reasons of privilege
do not justify omitting those documents from a Rule 448 list,
nor do they justify the refusal to file one.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. CAE Industries Ltd. et al., [1977] 2 S.C.R. 566.
DISTINGUISHED:
Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860;
(1982), 44 N.R. 462; Bell et al. v. Smith et al., [1968]
S.C.R. 664; Solosky v. The Queen, [1980] 1 S.C.R. 821.
COUNSEL:
Richard P. Bowles for plaintiff.
Michel H. Duchesne and Patrick Jetté for
defendant.
SOLICITORS:
Hough & Bowles, Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
REED J.: The plaintiff brings a motion to
compel the defendant to file a list of documents
and an affidavit certifying such list, pursuant to
Rule 448 of the Federal Court Rules [C.R.C.,
c. 663]. This request must be put in context.
The plaintiff's claim is for damages arising out
of the rescinding of a $400,000 grant awarded to
the plaintiff under the Industrial Regional De
velopment Programme' or specific performance of
the grant agreement. On August 13, 1986 counsel
for the plaintiff wrote to counsel for the defendant
forwarding a copy of the plaintiff's reply and
suggesting that there be a timely exchange of
affidavits of documents and the holding of discov
eries in September. Counsel for the plaintiff
' A program established pursuant to the Industrial and
Regional Development Act, S.C. 1980-81-82-83, c. 160.
anticipated having his affidavit of documents
ready by August 25, 1986.
Tentative arrangements were, subsequently,
made to allow discoveries to proceed on October
20, 1986 and while lists of documents pursuant to
Rule 447 had not been exchanged there seems to
have been some sort of mutual assumption as of
September 9, 1986 at least, that each party would
allow the other inspection of their respective docu
ments prior to the date of discovery. The plaintiff
sought to have Mr. Sinclair Stevens named as the
appropriate person to be produced by the defen
dant for discovery. The defendant resisted this
request on the ground that the Minister was not
the person most knowledgeable and in any event
could not be produced for discovery since he no
longer held the position of Minister. It is unclear
as to exactly when the defendant provided the
plaintiff with its Rule 447 list of documents. On
October 15 the plaintiff complained about the
incompleteness of the defendant's production of
documents. The discoveries scheduled for October
20 never took place. On November 4, 1986 the
plaintiff forwarded its 447 list of documents to the
defendant, although not in proper format as
required by the Rules. (Counsel for the plaintiff
has undertaken to provide a revised document to so
comply.)
I would note in passing that much of the above
"context" was provided by counsel for the defen
dant by way of argument before me and by hand
ing to the Court various pieces of correspondence.
Technically, none of this evidence is on the record.
If there are facts counsel consider relevant to a
motion and which the Court is asked to consider in
coming to its decision these should be properly
adduced, that is, by way of affidavit. In this case
the affidavit in support of the plaintiff's motion
was filed on November 17, 1986. There was ample
time within which an affidavit in reply could have
been filed. While I have taken into account the
facts referred to by counsel for the defendant it
must be recognized that the record is deficient
with respect to a proper underpinning therefor.
The plaintiff now seeks a Rule 448 order. It
should first of all be noted that Rule 447(2)
provides:
Rule 447. .. .
(2) ... a party shall, within 20 days after the pleadings in the
action are deemed to be closed ... file and serve on ... [the]
other party a list of the documents of which he has knowledge
at that time that might be used in evidence
(a) to establish or to assist in establishing any allegation of
fact in any pleading filed by him; or
(b) to rebut or to assist in rebutting any allegation of fact in
any pleading filed by any other party .... [Emphasis added.]
Rule 448 (1) provides:
Rule 448. (I) The Court may order any party to an action to
make and file and serve on any other party a list of the
documents that are or have been in his possession, custody of
power relating to any matter in question in the cause or
matter. ...[Emphasis added.]
Counsel for the defendant resists the plaintiffs
motion for a Rule 448 order on the ground that:
(1) it is really seeking to do indirectly what cannot
be done directly and that is obtain discovery of the
ex-Minister, Sinclair Stevens; (2) the affidavit
filed by the plaintiff in support of its motion does
not adequately identify any document which either
has not already been produced to the plaintiff or
about which the plaintiff knows but for which the
defendant claims privilege (except one); (3) that
the request sought by the plaintiff is too vaguely
framed in that it asks the defendant for a listing of
documents which could exist respecting delibera
tions of DRIE officers, Regional Executives, the
Economic Development Board and others, relating
to the approval of the original grant, the cancella-
xion of the original grant, approval of the second
grant, etc.
With respect to counsel for the defendant's first
argument, the compelling of the making of a list of
documents in the possession of, or formerly in the
possession of the Crown, which relate to a question
or matter in issue is not accomplishing indirectly
the production of an ex-minister as the officer of
the defendant to be examined on discovery. An
ex-minister cannot be examined on discovery,
because under the Federal Court Rules it is the
party who is examined, not individuals who might
be called as witnesses at trial. Accordingly, the
individual called on discovery must be someone
who can speak for the defendant, someone within
the control of the defendant, someone who can
make admissions for the defendant: R. v. CAE
Industries Ltd. et al., [1977] 2 S.C.R. 566, at page
567. An ex-minister is not in that position because
he is no longer part of the defendant's "organiza-
tion". (In the same way, an ex-employee of a
corporation is not the appropriate person to speak
for a corporation on discovery.) A second reason
why ministers are not generally appropriate
individuals to appear on discovery is that they
usually do not have the most complete knowledge
of the matters in issue. Usually, there will be
someone else in the department, of lesser rank
than minister, who has the detailed knowledge
required for purposes of discovery.
Thus, the reasons for declining to require a
minister or an ex-minister to appear as a person to
be examined as the officer of a party on discovery
has nothing to do with protecting from disclosure
information which he or she might be able to
provide or protecting from disclosure information
in the form of documents in the hands of the
department which pertains to the matters in issue.
Accordingly, the compelling of the making of a list
of documents cannot be said to constitute indirect
discovery of the Minister.
With respect to the defendant's second argu
ment, that the plaintiff has not succeeded in iden
tifying any document, save one, which has not
been produced but which is in the possession of the
defendant, this is true. To so conclude it must be
noted that I must take into account the documents
handed to the Court informally by counsel for the
defendant at the hearing of the motion and which
are not embodied in an affidavit. Counsel for the
defendant is right, also, when he says that the
statement made by the president of the plaintiff
that there must be at least 40 files in possession of
the defendant dealing with the matter is not of
much weight. This statement is purely speculative
and relates to information which could not be
within the knowledge of the plaintiff.
The defendant's argument, in essence however,
on this point amounts to a proposition that in order
to be able to obtain a Rule 448 order a party must
prove that the list of documents filed by the oppos
ing side pursuant to Rule 447 is incomplete. I do
not find that requirement in the Rules, nor in the
jurisprudence. The list filed pursuant to Rule 447
is one relating to documents of which the party has
knowledge at the time of close of pleadings, or
within 20 days thereafter. It relates to documents
which might establish or assist in establishing alle
gations of fact in the pleadings or rebutting such
facts. There is no requirement that it be accom
panied by an affidavit. Rule 448 is framed differ
ently. It relates to all documents which are or have
been in the possession, custody or control of the
party and which relate to any matter in question in
the cause. An affidavit verifying the list is required
to be filed. It may be that if a party is satisfied
that all documents have been disclosed in a 447 list
no motion for a 448 order will be sought, but in my
view that does not mean that a party seeking such
order has to prove that the 447 list is incomplete.
The identity or existence of the documents sought
are all within the knowledge of the party refusing
to disclose. It would be an intolerable burden to
require the party seeking a Rule 448 order to
prove the existence of documents of which he or
she could have no precise knowledge.
With respect to the defendant's third argument,
that the claim is too vaguely framed, the wording
to which counsel for the defendant refers is that
found in a letter counsel for the plaintiff received
from his client and which is appended as an annex
to the affidavit filed in support of the plaintiff's
motion. The client advised his counsel that in his
view documents "which could exist" but had not
yet been made available were those relating to
Deliberation of DRIE Officers, Internal Board, Regional
Executives, Economic Development Board, Associate Deputy
Minister, Ministers for Small Business related to:
1. Approval of original Grant
2. Cancellation of original Grant
3. Approval of second Grant
4. Cancellation of second Grant
5. Approval of third Grant
6. Cancellation of third Grant.
But counsel for the plaintiff has not couched his
motion in his clients' words. The defendant is not
being asked to list documents which "could exist".
Counsel's motion is framed in the wording of Rule
448 (refer text of the notice of motion):
... make, file and serve a list of the documents that are or have
been in its possession, custody or power relating to all matters
in question in this cause or matter ..
It is that request to which the defendant is being
asked to reply.
One last point remains to be considered. The
defendant claims that some of the documents, of
which the plaintiff has knowledge but which have
not been produced, are privileged—for reasons of
solicitor-client privilege. Copies of the documents
in question were handed to the Court and the
relevant jurisprudence cited: Descôteaux et al. v.
Mierzwinski, [1982] 1 S.C.R. 860, at pages 876,
881; (1982), 44 N.R. 462, at pages 521, 526; Bell
et al. v. Smith et al., [1968] S.C.R. 664, at page
671; Solosky v. The Queen, [1980] 1 S.C.R. 821,
at pages 834, 836, 837. The claims of privilege
made with respect to the documents may indeed be
justified but they are premature at this point. The
plaintiff, at the moment, is not seeking the produc
tion of documents. All that is being sought is a list
of documents by reference to their title, date,
sender, addressee or other description identifying
the document. Such list may appropriately identify
which documents are considered to fall into the
privileged category and which for that reason the
party is not prepared to produce. Rule 449 sets out
the requirement in this regard. If the opposing
party subsequently seeks production of documents
for which privilege is claimed, then, the issue of
privilege becomes relevant. But reasons of privilege
do not justify omitting those documents from a
Rule 448 list, nor do they justify the non-filing of a
list.
For the reasons given the plaintiff is entitled to
the order sought.
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.