T-1417-75
Main Fisheries Ltd., Northland Fisheries Ltd.,
Northern Lakes Fisheries Co. Ltd., and Sam
Badner, carrying on business under the firm name
and style of Mid-Central Fish Company (Plain-
tiffs)
v.
The Queen (Defendant)
T-1731-75
Keystone Fisheries Ltd. (Plaintiff)
v.
The Queen (Defendant)
T-1419-75
Canadian Fish Producers Ltd. (Plaintiff)
v.
The Queen (Defendant)
T-358-75
Manitoba Fisheries Limited, Harry Gordon
Marder and Sophia Marder (Plaintiffs)
v.
The Queen (Defendant)
Trial Division, Smith D.J.—Winnipeg, April 27
and June 27, 1979.
Practice — Discovery — Production of documents —
Application pursuant to Rule 464 for order directing chartered
accounting firm (not a party to the action) to produce all
documents and papers in its possession relating to proposed
merger of various firms in fish production business — Docu
ments of importance in determining fair market value of
companies as of date legislation effectively put them out of
business — Individual who paid part of cost of accounting
study denied accounting firm permission to release documents
until he was reimbursed — Refusal to produce documents led
to bringing of this application — Federal Court Rule 464.
Following the Supreme Court of Canada's decision in the
Manitoba Fisheries case, private fishing companies, effectively
put out of business by legislation effective May 1, 1969, were
entitled to judgment for the fair market value of their busi
nesses as of that date. It was provided that, failing agreement,
application be made to this Court to determine the amount
payable. Plaintiffs apply for an order pursuant to Rule 464
directing a firm of chartered accountants and one of its mem-
bers—not parties to the action—to produce for inspection by
plaintiffs' representatives all documents and papers in their
possession relating to a proposed merger in 1964 of various
firms in the fish production business in Manitoba. The files and
records of work done by a predecessor firm of chartered
accountants, especially with respect to forward projections
made for the businesses of the several companies, would be of
prime importance in seeking to establish the fair market value
of those companies' businesses as going concerns at May 1,
1969. An individual who had paid for part of the study refused
the chartered accounting firm permission to release the docu
ments until he was reimbursed for the amount paid for the
assembly and preparation of the information. This refusal led
to the present applications.
Held, the applications are allowed. The notices of motion
describe the documents sufficiently to identify them; they are
not fishing expeditions. The information sought from the files
of the chartered accounting firm is important to enable the
determination of a definite unqualified opinion as to quantum.
There is no basis for holding that the orders asked for in these
applications should be refused on the ground that an individual
objects to the documents being made available to the applicants
until he is paid a substantial sum of money. Rule 464 does not
deprive anyone of ownership or possession of any documents
and says nothing about money being paid for the production of
documents. It is designed merely to make documents containing
information relevant to one or more of the issues being litigated
available for litigation. Rule 464, furthermore, does not state
that the documents must be sought, by the application, for use
at trial, but simply that they must be documents production of
which at a trial might be compelled. The amounts to be paid by
the Crown to the applicants and others who are in the same
position are still in issue, and will come back to the Court for
determination if the parties do not reach agreement concerning
them.
The Central News Co. v. The Eastern News Telegraph Co.
(1884) 53 L.J.Q.B. 236, distinguished. Elder v. Carter
(1890) 25 Q.B.D. 194, distinguished. Doig v. Hemphill
[1942] O.W.N. 391, distinguished. Trustee of the Prop
erty of Lang Shirt Co. Ltd. v. London Life Insurance Co.
(1926-27) 31 O. W.N. 285, distinguished.
APPLICATION.
COUNSEL:
J. S. Lamont, Q.C. for plaintiff Main Fisher
ies Ltd. et al.
D. C. H. McCaffrey, Q.C. and Ken M. Aren-
son for plaintiffs Manitoba Fisheries Limited,
Canadian Fish Producers Ltd. and Keystone
Fisheries Ltd.
A. Maclnnes for Samuel Werier.
R. McNicol for Coopers & Lybrand and
Christopher H. Flintoft.
C. Williamson for defendant the Queen.
SOLICITORS:
Aikins, MacAulay & Thorvaldson,,. Win-
nipeg, for plaintiff Main Fisheries Ltd. et al.
McCaffrey, Akman, Carr, Starr & Prober,
Winnipeg, for plaintiffs Canadian Fish Pro
ducers Ltd. and Keystone Fisheries Ltd.
Arenson, Miles & Allen, Winnipeg, for plain
tiff Manitoba Fisheries Limited et al.
Thompson, Dorfman, Sweatman, Winnipeg,
for Samuel Werier.
Fillmore & Riley, Winnipeg, for Coopers &
Lybrand.
Deputy Attorney General of Canada for
defendant the Queen.
The following are the reasons for order ren
dered in English by
SMITH D.J.: This was originally an application
by the plaintiff Northland Fisheries Ltd., for an
order pursuant to Rule 464 directing Coopers &
Lybrand, Chartered Accountants, and Christopher
Henry Flintoft, a member of the said firm of
chartered accountants, to produce for inspection
by the plaintiffs' representatives all documents and
papers in their possession relating to a proposed
merger of various firms in the fish production
business in Manitoba with respect to which a
predecessor firm of said Coopers & Lybrand,
namely McDonald, Currie & Company, were
employed by the firm of Pitblado, Hoskin & Com
pany on behalf of Samuel Werier and Northland
Fisheries Ltd., during the year 1964, and permit
ting the preparation of certified copies of such of
said documents and papers as may be required by
the said plaintiffs' representatives.
In addition to the application by Northland
Fisheries Ltd., similar applications have been filed
by three other companies, namely: Keystone Fish
eries Ltd., Canadian Fish Producers Ltd., and
Manitoba Fisheries Limited.
Since, with the exception of one point that
applied only to Northland, the basis for all the
applications is the same, I decided to hear all of
them together.
All the parties were represented by counsel, as
were Samuel Werier, Coopers & Lybrand and
Christopher H. Flintoft.
The work done by McDonald, Currie & Com
pany in 1964 included studies, covering several
preceding years, of the business operations of each
of the companies that Werier and Northland were
proposing to merge, and also projections of their
businesses for a period of years in the future,
extending beyond 1969. The firm did not make a
formal detailed report to Werier and Northland.
During the course of the merger proposals the
Manitoba Development Fund was approached for
a loan to finance the merger, and included in the
material supplied to the Fund were the projections
made by McDonald, Currie & Company. These
projections are available to Northland and the
other fishing companies that are parties to, or have
an interest in the outcome of, the present
application.
The proposed merger was eventually abandoned.
The bill of costs of Pitblado, Hoskin & Com
pany and the bill of McDonald, Currie & Com
pany were eventually settled at $17,500, of which
Werier paid $10,500 and Northland $7,000.
In 1969 Parliament enacted the Freshwater Fish
Marketing Act, R.S.C. 1970, c. F-13, by which it
was provided that fish caught in several provinces,
including Manitoba, could be sold only to the
Freshwater Fish Marketing Board established by
the Act. As there was nobody from whom the
privately owned fishing companies could buy fish
they were effectively put out of business from the
operative date of the Act, May 1, 1969.
Actions were commenced against the Crown by
at least eight companies, claiming compensation
for the loss of their businesses. The action by
Manitoba Fisheries Limited was treated as a test
case. It ended in the Supreme Court of Canada
[[1979] 1 S.C.R. 101], which on October 3, 1978,
reversing the decisions in the Courts below, held
that the company was entitled to judgment for the
fair market value of its business as a going concern
at the first day of May 1969, with interest.
Following the Supreme Court judgment in the
Manitoba Fisheries Limited case, others of the
affected companies were awarded similar judg
ments in this Court.
None of the judgments attached a money figure
to the value of the companies' businesses. It was
left to the parties in each case to agree upon the
amount to be paid and failing agreement being
reached in any case it was provided that an
application be made to this Court to determine the
amount payable.
Counsel for Northland, with whom counsel for
the other companies agreed, submitted that the
files and record of the work done by McDonald,
Currie & Company in 1964, and more particularly
of the work done in connection with the forward
projections made by that firm for the businesses of
the several companies, would be of prime impor
tance in seeking to establish the fair market value
of those companies' businesses as going concerns
at May 1, 1969.
Northland's counsel and its president, Peter
Lazarenko had asked Coopers & Lybrand for
access to the files in question, of which there are
some nine or ten. Mr. Flintoft, of the accounting
firm, who had been a member of McDonald,
Currie & Company, and had done much of the
work for Werier and Northland in 1964, had
informed Lazarenko and his counsel that under
the rules of the Institute of Chartered Accountants
he could not make the documents available to
them unless Werier agreed. Werier did not agree,
claiming that the work done by Pitblado, Hoskin
& Company and McDonald, Currie & Company
in 1964 had cost him about $20,000 and stating
that he expected to be reimbursed for the amount
he had paid for the assembly and preparation of
the information by those two firms. He confirmed
his refusal in his affidavit dated April 25, 1979.
His refusal led to the present applications.
The applications are made under Federal Court
Rule 464, the relevant portion of which reads:
Rule 464. (1) When a document is in the possession of a
person not a party to the action and the production of such
document at a trial might be compelled, the Court may at the
instance of any party, on notice to such person and to the other
parties to the action, direct the production and inspection
thereof, and may give directions respecting the preparation of a
certified copy which may be used for all purposes in lieu of the
original.
The circumstances in which these applications
are made conform to the conditions which must
exist, as stated in Rule 464, in order that the Court
may make an order of the kind described in the
Rule. Coopers & Lybrand, in whose possession the
documents in question are held, is not a party to
any of the actions, mentioned supra, brought by
any of the companies. For that matter there is no
evidence to indicate that Werier has any interest in
any of those actions or their outcome. If the Court
decides that this is a proper case to so order, the
production of the documents at trial can be com
pelled by subpoena duces tecum. An order for
their production of course does not mean that they
are admissible in evidence.
In addition to what is provided in Rule 464,
certain other rules have long been well established
by judicial decisions. One important rule is that an
order for production and inspection of documents
in the possession of a person who is not a party to
the action will not be made where the application
is really designed to obtain discovery from a non-
party. The application must not be a fishing expe
dition. The purpose must be to secure the produc
tion of documents relevant to the case, which the
applicant expects to prove as evidence. The docu
ments must be described sufficiently to identify
them, but it seems not with such particularity as to
distinguish them from all others of the same kind.
In the present case the nature of the documents
is clear, though many of the details of what is
contained in them are not known to the applicants.
They are the working papers developed by Mc-
Donald, Currie & Company in 1964 in the course
of their studies of the business and financial affairs
of the several companies whose merger was con
templated. McDonald, Currie & Company exam
ined the books and records of each of the compa
nies for a number of years prior to and including
1964, and then made projections for the business
of each of them for a number of years ahead, down
to and beyond 1969. The purpose of their work
was obviously to arrive at the value at which each
company would be taken into the proposed merger.
In my view each of the notices of motion
describes the documents sufficiently to identify
them. In my view also they are not fishing expedi
tions. The applicants have access to the projections
made by McDonald, Currie & Company, but the
working papers, the background material on which]
those projections rest, will not be available to them
unless these applications are granted. Without the
background material they do not know many of
the facts found by McDonald, Currie & Company.
facts which influenced that firm's conclusions, nor
do they know what assumptions the firm made
when considering projections for the respective
futures of the companies. The applicants, knowing
the nature and purpose of the work done by the
accountants, submit that these matters are dealt
with in the working papers, and that with the
details of facts contained therein both they and the
Court will be much better informed to determine
how far the projections may be considered valid.
The period covered by the work done by McDon-
ald, Currie & Company is precisely the period for
which the information obtained as a result of that
work will be most valuable for the purpose of
determining the value as a going concern, of each
of the companies studied, at May 1, 1969. Counsel
submit that there is no other source from which
the information can be obtained.
Walter Dubowec, a chartered accountant and
partner in the firm of Touche, Ross & Company,
has been engaged for a considerable period of time
by most of the fishing companies that were put out
of business by the Freshwater Fish Marketing Act.
Since the judgment of the Supreme Court, on
October 3, 1978, which established the liability of
the Crown to these companies, his task has been to
prepare evaluations of the business of each of the
companies. On March 20, 1979, he took an affida
vit in connection with the present motion. Para
graph 4 of that affidavit reads, in part, as follows:
4. That I am of the opinion that this financial information (the
documents of which production is being sought from Coopers
& Lybrand and Mr. Flintoft) will be extremely valuable to
myself and the firm of Touche, Ross & Company in connection
with the preparation of evaluations of the Plaintiffs, because it
will contain detailed financial information and projections
relating thereto not available from other sources ....
On April 6, 1979, he was cross-examined on his
affidavit by counsel for Samuel Werier. He was
questioned about the financial information pre
pared by McDonald, Currie & Company and sub
mitted to the Manitoba Development Fund in
connection with loan applications made to the
Fund in 1964 for assistance in financing the pro
posed merger of fishing companies.
59. Q. Have you obtained that financial information?
A. I said earlier that I do have that sort of information, but I
do not have the back-up that was prepared by the firm of
accountants setting out all the methodology and all of the
information that was used in order to arrive at the
projections which no one else has except the accountants.
It's only obtainable from them.
60. Q. You have the conclusions?
A. Yes.
61. Q. You have the projections?
A. Yes.
62. Q. You don't have the working papers, the back-up?
A. Exactly. And in preparing the projections they would
make certain assumptions and use certain information
which I would have to see what material they have based
their conclusions on.
Earlier, in response to question 38 he said:
A. I have some information that summarizes McDonald
Curries' final conclusion. What I need now from McDon-
ald Currie is the back-up information that will indicate to
me the basis for the various decisions that were made in
arriving at the conclusions.
And in response to question 39:
A. No. I need to determine how they arrived at their conclu
sions, and I need the supporting information to their
conclusions.
He admitted that on the information he had
obtained from his clients and from other sources
he would be able to submit to his clients and the
Court an opinion as to quantum of value for the
several companies, even without having access to
the Coopers & Lybrand (McDonald, Currie &
Company) files, but that the information on those
files, if they were made available to him, could
alter that opinion, and if they were not made
available to him, he would have to qualify his
opinion by stating that he had not been able to
obtain some information that he knew existed but
was in the hands of another party.
It is clear that Mr. Dubowec believes the infor
mation in the Coopers & Lybrand files is impor-
tant to enable him to come to a definite unquali
fied opinion as to quantum. On the evidence before
me that belief, in my opinion, is justified.
On behalf of Mr. Werier it was submitted that
as he had paid a large sum of money for the work
done in 1964 by Pitblado, Hoskin & Company,
and by McDonald, Currie & Company, which
work produced the documents in question, the
documents should not be made available to other
persons for use in legal proceedings. He claims a
proprietary interest in the documents. In this
respect he is in precisely the same position as
Northland Fisheries Ltd., for which company, to
gether with Werier, the work was done, and by
which company 40% of the final costs were paid.
The fact is, of course, that the documents belong
to Coopers & Lybrand, as successors to McDon-
ald, Currie & Company. Having been brought into
existence as a result of work done for Werier and
Northland and paid for by them, one would expect
that normally the information contained in them
would be available to either or both of them. The
rule of the Institute of Chartered Accountants
would seem to be designed, mainly if not entirely,
to prevent an accounting firm which has carried
out a professional task for two or more partners or
joint enterprisers, from being put in the position,
where disputes have arisen between the parties for
whom the work was done, of taking sides and
favouring one of those parties against the other or
others. Such action would be unprofessional
conduct.
Rule 464 of the Federal Court does not deprive
anyone of ownership or possession of any docu
ments. It is designed simply to make available for
use in litigation documents that contain informa
tion relevant to one or more of the issues being
litigated. In the present case, if production is
ordered the documents will either remain in the
hands of Coopers & Lybrand or they will be
returned to them after certified copies have been
made. Similarly, Werier's position with relation to
the documents will remain unchanged. There is
nothing which even suggests that Werier has any
interest in any of the actions in question, or that
the production and use of the documents in these
cases would prejudice him in any way. I am unable
to agree with the contention of Werier's counsel
that to require the production of these documents
would be unfair to Werier.
The Rule says nothing about money being paid
for the production of documents, I think for very
good reasons. One such reason, which to my mind
is decisive, is that such a provision, in effect
requiring a litigant to buy the right to see and to
use in evidence, documents which are in the
possession of a non-party, would open the door to
what might become almost a kind of legal
blackmail.
I cannot see any basis for holding that the
orders asked for in these applications should be
refused on the ground that Mr. Werier objects to
the documents being made available to the appli
cants unless he is paid a substantial sum of money.
The defendant has taken a neutral position with
respect to these applications and has submitted no
argument concerning them. Coopers & Lybrand
and Christopher Henry Flintoft have simply stated
that they are acting in accordance with the rules of
the Institute of Chartered Accountants and will
abide by the order of the Court. Their counsel did
submit, however, that Rule 464 does not cover this
kind of case. His submission was that the docu
ments are not being sought for use at trial, but to
further the case as to valuation. I do not agree.
The Rule does not state that the documents must
be sought, by the application, for use at trial, but
simply that they must be documents production of
which at a trial might be compelled. Further, the
amounts to be paid by the Crown to the applicants
and others who are in the same position are still in
issue, and will come back to the Court for determi
nation if the parties do not reach agreements
concerning them. In such event there will be a trial
or trials on the issue of quantum.
In summary, my findings are as follows:
1. The documents of which production for inspec
tion is sought in these applications are in the
possession of Coopers & Lybrand, a firm of char
tered accountants, of which firm Christopher
Henry Flintoft is a member.
2. The work which brought the documents into
existence was performed in 1964 by Coopers &
Lybrand's predecessor firm, McDonald, Currie &
Company.
3. The work was done for Samuel Werier and
Northland Fisheries Ltd. and paid for partly by
Northland, the balance by Werier.
4. All of the work was directed solely to ascertain
ing the value, as going concerns, of a number of
fishing companies which Werier and Northland
were proposing to merge. The documents are
therefore assumed to be related to that objective.
5. In consequence of the enactment of the Fresh
water Fish Marketing Act of 1969, the applicants
and a number of other fish companies were put out
of business on May 1, 1969.
6. On October 3, 1978, in a test action brought by
Manitoba Fisheries Limited, the Supreme Court
rendered judgment finding that the defendant was
liable to compensate Manitoba Fisheries Limited
in the amount of its value as a going concern on
May 1, 1969. Subsequently, other companies that
had been similarly put out of business, including
the other applicants herein, obtained judgments in
similar terms. None of the judgments determined
the amount of compensation to be paid.
7. Since the judgment of October 3, 1978, was
pronounced, the applicants have been gathering
evidence for the purpose of establishing the value,
as going concerns, of their respective companies at
May 1, 1969.
8. McDonald, Currie & Company did not make a
formal report of their work done in 1964, to
Werier or Northland. They did come to a final
conclusion and they did prepare projections of the
anticipated operations of the companies for several
years in the future, extending beyond the year
1969. The final conclusion and the projections are
available to the applicants.
9. What the applicants have not had access to and
are now seeking to see and inspect are the working
papers or back-up material compiled by McDon-
ald, Currie & Company in the course of their
work.
10. The information contained in the working
papers, relating as it does to the relevant period
and to the date at which the values of the compa
nies as going concerns must be determined, would
help the companies considerably in establishing
those values. They surely must indicate the proce
dure adopted and steps taken by McDonald,
Currie & Company in carrying out the project,
also the facts and reasons on which they reached
their conclusions and the assumptions they made
in preparing their projections. Information on any
of these matters must assist in confirming the
accuracy or doubtfulness of their conclusions and
the validity or otherwise of their projections.
11. These documents are clearly relevant. They
relate directly to the specific question whose
answer will determine the amount of compensation
each company is entitled to receive. They are
contained in 10 specific files. Their nature, though
not the detailed facts and figures they contain, is
known.
On consideration of the foregoing my conclu
sion, as stated earlier, is that the applicants are not
engaged in fishing expeditions. They are not
asking for discovery from a stranger to the litiga
tion. Some facts previously unknown to the appli
cants may incidentally come to light, but the pur
pose of the applications is not discovery but to gain
access to these documents so that they may be
used to assist in determining the question of value
and therefore the amount of compensation to be
paid to each company. In my view the documents
should be before the parties as they endeavour to
reach agreements on value and compensation, and
should be before the Court if the parties do not
reach agreement and the matter is therefore
referred back to the Court for decision.
Counsel for Werier cited several legal decisions
in support of his contention that the orders asked
for should not be granted. The first of these was
The Central News Company v. The Eastern News
Telegraph Company, an English case reported in
(1884) 53 L.J.Q.B. 236. In that case an applica
tion was made by the defendants, under English
Order XXXVII, Rule 7, which is somewhat simi
lar to our Federal Court Rule 464, for an order
that a telegraph company, not a party to the action
should produce to the Master and the defendants
their tapes of all news transmitted by them to their
subscribers on September 9, 12 and 13, 1882, and
also all books and papers showing the receipt on
those days of messages from the plaintiffs and the
times of receipt and publication of such messages.
Lord Coleridge C.J. said, with regard to the power
of the Court under Rule 7, that the power to make
an order of this kind compelling a person not a
party to produce his private and secret papers
should be exercised with the most watchful jeal
ousy, and that an application for such an order
should not be granted on the ground that it might
tend to the convenience of one of the parties or
saving of expense. As for the application before
him he said [at page 238]:
It is a mere attempt on the part of the defendants to obtain,
through the process of the Court, the production of private
documents which may or may not contain information benefi
cial to the defendants. There ought, in my judgment, to be a
very strong case made out to justify the exercise of such a
power, and no such case has been made out here.
That case is distinguishable from the present
one. The order asked for cast a wide net, e.g.: the
tapes of all news transmitted by the telegraph
company to their subscribers on the three stated
days. In my view it cannot be said that, at least as
against Northland Fisheries Ltd., the documents
sought in the present case are secret and private
papers of Coopers & Lybrand. Finally, as has been
clearly indicated supra, in my opinion a strong
case has been made out for granting the order.
The second case cited was Elder v. Carter
(1890) 25 Q.B.D. 194, which was another English
case under Rule 7. In that case Lindley L.J. said,
at page 199:
it cannot be said that that purpose [of the Rule] was to give
a litigant a right to discovery which he did not previously
possess against persons not parties to the action .... The object
of it was to remove the difficulties which existed in compelling
production of documents at various stages of the proceedings,
both before and after the trial, at the hearing of motions,
petitions, summonses and examinations of witnesses, and the
like;
The law is clear that an order of this kind is not
to be granted where the purpose is merely to
obtain discovery from a person who is not a party
to the action. With regard to the latter part of the
above quotation from Lord Justice Lindley's judg
ment, I think the language of our Rule 464 indi
cates a somewhat broader meaning than he states.
Our Rule says the Court "may ... direct the
production and inspection . .. [of the document],
and may give directions respecting the preparation
of a certified copy which may be used for all
purposes in lieu of the original." It is not limited to
production only, nor only to production at the
hearing of motions, petitions, summonses and
examinations of witnesses. Nor is it limited to
production before the Court. The word "inspec-
tion" as there used means, to me, inspection by the
party who obtains the order or his agent or
representative.
The third case cited was Trustee of the Property
of Lang Shirt Co. Ltd. v. London Life Insurance
Co. (1926-27) 31 O.W.N. 285. This was an
Ontario case under then Ontario Rule 350, which
is, practically speaking, on all fours with our Rule
464. At page 286 of the report, the Master
(Garrow) said:
The Rule applies not to discovery at all, but to the production
and inspection for the purposes of the trial, including the
making of certified copies, of documents shewn to be in the
possession of a stranger to the action, the production of which
might be compelled at the trial. Before any order can be made
under it, it must be made to appear that the stranger to the
action has in his possession certain specific documents which
the Court would in all probability admit at the trial as evidence
in respect of some of the issues in the action.
I have no criticism of the Master's statement of
the law, but I differ with the interpretation of
those words by counsel for Werier, because in my
view, unlike his, I consider that the present
applications comply with the conditions which
must exist for an order to be made. The documents
whose production and inspection are sought are
described with sufficient specificity to identify
them. They are the working papers, (contained in
specific files), developed by McDonald, Currie &
Company in carrying out their task of evaluating
the worth, as going concerns, of the several fish
companies that Werier and Northland Fisheries
Ltd. were proposing to merge. As such they have a
definite relationship to the final conclusion and
future projections arrived at by McDonald, Currie
& Company. They are clearly relevant to the issue
of the value of the applicant companies, as going
concerns, at May 1, 1969. Their production could
be compelled at trial, if a trial on that issue
becomes necessary. But before any question of
trial arises, the applicants and any others who have
obtained judgments in like terms to those pro
nounced by the Supreme Court in the Manitoba
Fisheries Limited case, must negotiate with the
representatives of Her Majesty with a view to
reaching agreements on value and consequently on
the quantum of compensation to be paid to each
company. The working papers are needed for this
purpose, and therefore the order should be made
now.
The fourth case cited was Doig v. Hemphill
[1942] O.W.N. 391. This was another case under
Ontario Rule 350. The Master, F. H. Barlow,
K.C., came to the conclusion, on the facts, at page
392, that:
It is clear that the purpose of this application is to obtain
discovery from Parrish & Heimbecker Limited, a stranger to
the action. This is contrary to the proper interpretation of Rule
350.
The facts in Doig v. Hemphill are materially
different from those in the present case. In my
view, the reasoning and decision in it cannot prop
erly be applied to defeat the applications before
me.
The final case cited was Jameson v. Margetson
(1975) 11 O.R. (2d) 175. This was a county court
decision under Ontario Rule 349 (formerly 350).
The application was for the production and exami
nation of a very large number of documents and
records in the possession of Ontario Health Insur
ance Plan (OHIP). The judge said there was evi
dence that to locate and produce all the documents
would cost OHIP $6,179. He said [at page 176]:
"It is usually preferable to have these matters
disposed of before trial," but decided this was not
a case in which the order sought should be grant-
ed. He referred to two unanswered questions, viz.:
1. Could the plaintiff obtain the information from
his own records? 2. Was the relevancy of the
information of greater weight than the cost there
of? That answers to these questions had not been
forthcoming clearly had some effect on his
decision.
Other counsel referred the Court to the follow
ing cases:
1. Abel v. Stone (1968) 63 W.W.R. 420.
2. In re Smith. Williams v. Frere [1891] 1 Ch. 323.
3. Bowlen v. The Queen [1977] 1 F.C. 589.
4. Bowlen v. The Queen [ 1978] 1 F.C. 798.
5. Bevan v. Webb [1901] 1 Ch. 724.
6. In re Burnand [1904] C.A. 68.
I have read all of the judgments in these cases
and in several others referred to therein. They
confirm me in my opinion of the applications
before me.
There will be an order granting the applications
as requested. As the defendant is in no way respon
sible for these applications becoming necessary
and has not taken a position either for or against
the application being granted there will be no costs
awarded against Her Majesty. Mr. Werier's refus
al to consent to the production of the documents
was, on the evidence, the sole cause of these
applications being brought. However, he was not
made a third party or intervener on the applica
tions. I find nothing in the Rules that authorizes
costs being assessed against him.
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.