CITATION: j2 Global Communications, Inc. v. M.A., 2010 ONCA 594

DATE: 20100915

DOCKET: C51743

COURT OF APPEAL FOR ONTARIO

MacPherson, Gillese and MacFarland JJ.A.

BETWEEN

j2 Global Communications, Inc.

Applicant (Appellant)

and

B.C., G.T., R.C.I., M.A., T.E., R.L., S.L.C., R.H., C.M., H.V.S., D.M.W., and G.W.

Respondents (Respondents in Appeal)

Ian R. Stauffer and Sabina J. Veltri, for the appellant

Peter Mantas and Alexandra Logvin, for the respondents

Heard and released orally: September 13, 2010

On appeal from the order of Regional Senior Justice Charles T. Hackland of the Superior Court of Justice, dated February 2, 2010, with reasons reported at 2010 ONSC 760.

ENDORSEMENT

[1] The appellant j2 Global Communications Inc. appeals the order of Regional Senior Justice Hackland dated February 2, 2010 refusing to enforce a request pursuant to letters rogatory to require that the respondents be examined under oath in Ontario to provide evidence for a civil action proceeding in California.

[2] The appellant contends that the application judge misapprehended the evidence before him, failed to appreciate relevant evidence, and relied upon irrelevant evidence.

[3] We disagree. The application judge engaged in a comprehensive and careful analysis and application of the six factors relevant to the determination of whether letters rogatory from a foreign jurisdiction should be enforced in Ontario, as set out by this court in Presbyterian Church of Sudan v. Rybiak (2006), 2006 CanLII 32746 (ON CA), 275 D.L.R. (4th) 512. He concluded that the appellant had not established at least two of those factors – whether the evidence was otherwise obtainable and necessity.

[4] The theme of the application judge’s reasons is, in our view, a fair and balanced one and is captured in this passage, with which we agree:

To reiterate, there is no demonstrated need to conduct depositions on the issues raised in j2’s Claim in the American litigation from individuals beyond the Protus corporate representatives examined, or to be examined, keeping in mind that these senior executives can and should, if necessary, inform themselves from those of the respondents who continue to be employed by Protus.

[5] We also note that a companion application in Quebec was dismissed for similar reasons by Dallaire J.S.C. in j2 Global Communications Inc. v. Protus IP Solutions Inc., (2010) QCCS1052.

[6] The appellant has filed voluminous material, most of it about steps taken in the California litigation after the application judge’s decision was released on February 2, 2010, and seeks to have it admitted as fresh evidence. In our view, there is nothing in it to cast doubt on the correctness of the application judge’s reasons. The tendered fresh evidence is simply not capable of bearing on a potentially decisive issue in the application: see R. v. Palmer, [1980] S.C.R. 759 at paras. 24-27.

[7] The respondent also submitted one item of post-decision material relating to a new event in the California litigation and seeks to have it admitted as fresh evidence. It too strikes us as peripheral to the appeal and we decline to admit it.

[8] The appeal is dismissed.

[9] The appellant seeks leave to appeal Hackland R.S.J.’s costs order. In our view, there is no basis for granting leave on this issue.

[10] The respondents are entitled to their costs of the appeal fixed at $35,000, inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“E. E. Gillese J.A.”

“MacFarland J.A.”