J. Holloway

The plaintiff appealed a Master's order requiring it to answer certain undertakings and refusals arising from cross-examinations on affidavits filed in support of a motion for partial summary judgment.

The questions concerned matters including production and packaging arrangements, trademark ownership and assignments, damages evidence, product pricing, and complaints to federal authorities relating to alleged grey market goods.

The plaintiff argued the questions were irrelevant, exceeded the proper scope of cross-examination on affidavits, and were disproportionate.

The court held that the questions were relevant to issues raised by the defendants’ restraint of trade and trademark defences and that proportionality determinations by the Master were entitled to deference.

The Master did not err in concluding that the plaintiff bore an initial obligation to explain if requested information was not readily available or would be unduly onerous to obtain.

The defendants brought a motion seeking answers to undertakings and responses to questions refused during cross‑examinations of affiants whose affidavits were filed by the plaintiff in support of a motion for summary judgment.

The court applied the governing test for refusals in documentary and oral discovery on motions, considering relevance, breadth of the request, and claims of privilege.

Numerous refusals relating to corporate relationships, website issues, production agreements, trademark assignments, damages, pricing, and regulatory compliance were found relevant and ordered answered, while others were denied as overly broad or irrelevant.

The court also ordered the listing of documents claimed to be privileged to permit further consideration of privilege claims.

A re‑attendance for further cross‑examination was permitted following the provision of answers.