T-1583-84
Control Data Canada, Ltd. (Plaintiff)
v.
Senstar Corporation (Defendant)
INDEXED AS: CONTROL DATA CANADA, LTD. V. SENSTAR
CORP.
Trial Division, Cullen J.—Toronto, February 17;
Ottawa, February 20, 1986.
Practice — Discovery — Examination for discovery —
Meaning of "officer" or "member" in R. 465(1)(b) — Defen
dant seeking to examine Vice-President of Research and En
gineering for Computing Devices Division of plaintiff
'Examining party entitled to choose party to be examined, and
choice set aside only for compelling reasons: Polylok Corpora
tion v. Montreal Fast Print (1975) Ltd. — Title implies control
— Person to be examined here more than "employee" while
not designated as an officer — Either `officer" or "member"
within meaning of Rule — Liberal interpretation of `officer"
necessary to give effect to Rule and to use of "member" to
broaden scope of persons who can be examined — Federal
Court Rules, C.R.C., c. 663, R. 465(1)(b),(5),(19).
CASES JUDICIALLY CONSIDERED
APPLIED:
Polylok Corporation v. Montreal Fast Print (1975) Ltd.,
[1984] 1 F.C. 713; (1983), 76 C.P.R. (2d) 151 (C.A.);
Leitch v. Grand Trunk R.W. Co. (1890), 13 P.R. 369
(Ont. C.A.).
DISTINGUISHED:
Sperry Corporation v. John Deere Ltd. et al. (1984), 82
C.P.R. (2d) 1 (F.C.T.D.); Corning Glass Works v.
Canada Wire & Cable Company Limited, [1984] 2 F.C.
42; (1983), 77 C.P.R. (2d) 76 (T.D.).
CONSIDERED:
Neon Products Ltd. v. Wiebe et al., [1974] 3 W.W.R.
567 (Man. Co. Ct.).
COUNSEL:
Donald M. Cameron for plaintiff.
G. A. Piasetzki for defendant.
SOLICITORS:
Sim, Hughes, Toronto, for plaintiff.
Rogers, Bereskin & Parr, Toronto, for
defendant.
The following are the reasons for order ren
dered in English by
CULLEN J.: The Federal Court Rules [C.R.C.,
c. 663] do not define "officer" and/or "member",
and there has not been a great deal of jurispru
dence on the subject save and except decisions
from provincial courts usually based upon provin
cial rules.
One thing, however, is quite clear, namely, the
examining party is entitled to choose the party to
be examined and that choice should not be lightly
set aside and only for compelling reasons: Polylok
Corporation v. Montreal Fast Print (1975) Ltd.,
[1984] 1 F.C. 713; (1983), 76 C.P.R. (2d) 151
(C.A.). Counsel for the plaintiff cited Sperry Cor
poration v. John Deere Ltd. et al. (1984), 82
C.P.R. (2d) 1 (F.C.T.D.), where McNair J. deci
ded [at page 6]:
The authority for examination for discovery in any particular
case must be found within the four corners of the rules
themselves.
In my opinion, there is no right under Rule 465(1)(b) to
examine for discovery the employee of a corporation or body or
group of persons in the absence of an agreement between the
parties to that effect and with the consent of the person to be
examined. The word "member" can only be taken in proper
context to comprehend a member or officer of such corporation
or body of persons. It cannot be extended to include an
employee.
In my view, the person sought to be examined
here is certainly more than an "employee".
Although not designated as an officer by the plain
tiff for purposes of structuring its operation,
Robert Patton is the Vice-President of Research
and Engineering for the Computing Devices Com
pany Division of the plaintiff. The defendant's
submission makes the points:
Robert J. Patton is the Vice-President, Research and Engineer
ing, for the Computing Devices Division of the Plaintiff, a
position he has held continuously from a date preceding the
development of the Plaintiff's perimeter security system and the
filing of the application for the patent in suit.
The Computing Devices Division of the Plaintiff is the division
which developed, and now manufactures and sells, the Plain
tiffs perimeter security system and is the division where the
work was done leading to the application for the patent in suit.
Surely it must be clear that the title alone
implies certain control, and as the defendant points
out, "has action, control and authority and accord
ingly is either an `officer' or a `member' within the
meaning of Rule 465(1)(b)."
In my view, Corning Glass Works v. Canada
Wire & Cable Company Limited, [ 1984] 2 F.C.
42; (1983), 77 C.P.R. (2d) 76 (T.D.), is signifi
cantly different to the case here. In that case the
defendant had already examined for discovery a
Dr. Schultz on behalf of the plaintiff, and was
seeking an order under Rules 465(5) and (19) that
a co-inventor of the patent in suit, Dr. Maurer, an
employee of the plaintiff, be questioned on discov
ery. Clearly, the defendant had exhausted his au
thority for the right to choose the party to be
examined, and had to take the consequences of
that choice. As Thurlow C.J., said in Polylok
Corporation v. Montreal Fast Print (1975) Ltd.,
supra, at pages 722-723 F.C.; 159 C.P.R.:
It appears to me that the combined effect of Rule 465(1),
(7), (8) and (9) is to leave it to the party examining to choose
in the first instance the officer or member of a corporation or
body he wishes to examine but that because of the need for an
order of the Court under sub-rule (8) to authorize service of the
appointment on the solicitor or attorney for the party to be
examined where the party is a corporation or body, the Court is
in a position before granting such an order to exercise a
discretion to require the examining party to substitute a more
appropriate officer or member of the corporation or body to
give discovery on its behalf. That should be ordered, however,
only when the material before the Court discloses some reason
to think either that the person chosen by the examining party is
not a proper person to give the discovery or is for some
compelling reason unavailable and that some other officer or
member of the corporation or body should be substituted. In
my opinion, the examining party's choice of the person to give
the discovery should not be lightly displaced. The party or his
solicitor should know best what is required to support his case,
what it is that he is interested in discovering and who among
the officers or members referred to in the Rule is most likely to
be able to give the discovery he requires. To displace the choice
at the request of an adverse party represents an interference
with his conduct of his case. A corollary of this is that when
choosing the person to be examined he takes and must accept
the risk that the choice may not be a good one. [Underlining is
mine.]
f
Almost without exception the provincial courts
have been prepared to grant a liberal interpreta
tion to the meaning of the word "officer". I agree
with the defendant that,
The term "officer", for the purpose of an examination for
discovery, has, in other jurisdictions, been liberally construed to
include persons who either have "some control or authority"
within the corporation, or whose title implies they have some
control or authority, or who have some particular knowledge of
events relating to the action.
Shou Yin Mar v. The Royal Bank of Canada, 15 B.C.R. 76
(B.C. Court of Appeal)
Bank of Montreal v. Buckle, 20 Sask. R. 166 (Queen's Bench)
Neon Products Ltd. v. Wiebe and Sports Shop Ltd., [1974] 3
W.W.R. 567
Although provincial decisions are not binding, it
seems to me appropriate that the word "officer"
should be given the widest possible interpretation.
If not, then, as Osler J.A. stated in Leitch v. Grand
Trunk R.W. Co. (1890), 13 P.R. 369 (Ont. C.A.),
at page 380:
... if these words are cut down to mean general manager,
director, president, or other principal officer, who in actions of
this kind are precisely the officers who know the least, and who
usually know nothing useful of the matters in question in the
cause, I can only say that, in my humble opinion, we practically
repeal the section as regards such cases.
In the same case Maclennan J.A. said [at page
386],
... the Rule should be applied to every case to which it can be
applied beneficially, irrespective of the greater or less impor
tance of the office filled by the person proposed to be examined.
Also, our Rules suggest a further category of
"member", and it seems to me to broaden the
scope of people who can be examined, otherwise
the word would be redundant.
I am taken with the words of Molloy J. in Neon
Products Ltd. v. Wiebe et al. [[1974] 3 W.W.R.
567 (Man. Co. Ct.)] who felt the applicable rule in
Manitoba should be interpreted broadly so as to
include within the meaning of the word "officer"
any servant of a corporation who has a unique or
extensive knowledge relative to the issues arising in
the action against the corporation. At page 570, he
states:
Consideration of the Manitoba decisions brings me to the
conclusion that any servant of a corporation who has unique or
extensive knowledge relevant to the issues arising in an action
by or against the corporation should be subject to examination
as an officer of the corporation within the meaning of R. 286.
Although my reasons were delivered from the
Bench, I believe this issue is significant enough to
warrant written reasons for order.
The appeal is therefore dismissed with costs to
the defendant.
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.