Radio Corporation of America (Plaintiff)
v.
Hazeltine Corporation (Defendant)
Trial Division, Heald J.—Toronto, February 7;
Ottawa, February 11, 1972.
Practice—Production of documents—Application for
order to compel—No supporting affidavit—Application dis-
missed—Rule 455(2) and (3).
An application for an order for production of documents
made under Rule 455(2) was dismissed because it was not
supported by an affidavit deposing to the matters required
by paragraph (3) of the Rule.
MOTION.
R. Smart for plaintiff.
D. S. Johnson, Q.C. for defendant.
HEALD J.—This is an application by the
plaintiff under Federal Court Rule 455(2) for an
order of the Court requiring production and
inspection of a large number of documents
which the plaintiff alleges are relevant to the
issues in this action. The documents, in respect
of which production and inspection is required,
are set out in the plaintiff's notice of motion
dated February 1, 1972.
Federal Court Rule 455(3) provides as
follows:
Rule 455. (3) An application for an order under para
graph (2) must be supported by an affidavit specifying or
describing the documents of which inspection is sought,
stating the belief of the deponent that they are in the
possession, custody or power of the other party and that
they relate to a matter in question in the action, and the
grounds for such belief.
In this application, the plaintiff filed no
affidavit as required by Rule 455(3). Plaintiff
was content to rely on the details set out in its
notice of motion. It should be noted that Rule
455(3) is mandatory. The Rule uses the word
"must".
Rule 455(3) specifies that the required affida
vit must contain the following information:
(a) a description of the documents of which
production and inspection is sought;
(b) the deponent's belief that they are in the
possession, custody or power of the other
party; and
(c) the deponent's belief that they relate to a
matter in question in the action.
The affidavit must also state the grounds for
deponent's belief.
Looking at the notice of motion, I think it can
fairly be said that (a) and (c) are partially cov
ered, but there is nothing in the notice of
motion to cover (b).
The reason why (b) is required is self-evident.
The Court could hardly order a party to pro
duce documents, no matter how relevant, if
they are not in the possession, custody or
power of that party. Rule 464 enables a party to
compel relevant documents in the possession of
some person other than a party.
I am aware of the provisions of Federal Court
Rule 302 which empower the Court to waive
non-compliance with the Rules. However, I do
not think the ends of justice would be served
were Ito do so in this case.
Rule 319(2) requires that motions shall (ital-
ics mine) be supported by affidavit and that an
adverse party may file an affidavit in reply.
Cross-examination on affidavits is also permit
ted pursuant to Rule 332(5).
There could very well develop a contest
between the parties on the question of whether
all the documents sought herein are within the
possession, custody or power of the defendant.
To waive the provisions of Rule 455(3) at this
time, for the benefit of the plaintiff, would
deprive the defendant of the right to cross-
examine on the plaintiff's affidavit and of the
right to file his own affidavit in reply as is
permitted by the Rules.
There is the additional circumstance here that
counsel for the defendant specifically men
tioned in argument that plaintiff had not filed
the customary affidavit and his submission was
that this was sufficient reason, in itself, for
denial of plaintiff's motion. I am therefore not
faced with a situation where the opposing party
is prepared to waive any and all irregularities.
Giving this matter the fairest possible consid
eration, I have concluded that plaintiff's motion
must be dismissed. Plaintiff will have leave to
re-apply to the Court. In the circumstances, the
defendant is entitled to its costs of the motion
in any event of the cause.
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.