Court File and Parties

CITATION: Bell Expressvu Limited v. Heeren, 2010 ONSC 1929

DIVISIONAL COURT FILE NO.: 64/10

COURT FILE NO.: 07-CL-6981

DATE: 2010/03/31

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: BELL EXPRESSVU LIMITED v. HEEREN et al

BEFORE: H. Sachs J

COUNSEL: Christopher D. Bredt and Denise Bambrough, for the Plaintiff/Moving Party

Charles Wagman, for the Defendants / Responding Parties

DATE HEARD: March 30, 2010 at Toronto

E N D O R S E M E N T

[1] On this motion the Plaintiff seeks leave to appeal from the Order of Marrocco J. made January 27, 2010 dismissing the Plaintiff’s motion for an order compelling the Defendant, William Heeran, to deliver a further and better Affidavit of Documents.

[2] The Plaintiff’s first submission is that the Order conflicts with the rules and case law governing discovery of documents. I disagree. The case law relied upon in support of this submission turned on different facts. Most particularly, in Zurich Insurance Co. v Paveco Road Builders Corp., 2007 CarswellOnt. 9175, (2007) C.P.C. (6th) 354 (S.C.J.) Newbould J. was dealing with a situation where the documents in question were under the control of an interim receiver who had laid down conditions for others to have access to the documents. That is not the situation here. There is no question that the Plaintiff is entitled to access to the documents.

[3] The Plaintiff also argued that there was good reason to doubt the correctness of the decision, which misapprehended the nature of Anton Piller orders. Specifically, the purpose of Anton Piller orders are to seize and preserve evidence. They are not to be used to “foist” onto a party who obtains such an order the obligation to review the documents seized and to list them in their own Affidavit of Documents. In my view, the Order was made in a very particular factual matrix. Specifically, the Defendant had produced an Affidavit of Documents in which he said that he had listed all relevant documents. The Plaintiff maintained that this was not so and that there were relevant documents that had not been listed. All of these documents were available to the Plaintiff. Further, the Plaintiff was not suggesting that without the Defendant first listing these documents they would be unable to conduct their discoveries or to access the documents. In fact, arguably, given the forensic expert they had retained, the Plaintiff was in a better position to access the documents that they saw as relevant than the Defendant was. Therefore, the motion judge concluded that, practically, rather than continuing to argue about whether the Defendant had listed all of the documents that the Plaintiff saw as being “relevant”, the Plaintiff could access and list those documents for themselves.

[4] In my view, this is not a situation where the obligations of one party were being foisted on the other party. Rather, it was a recognition of the fact that the Rules are there to serve a purpose, not to create make-work projects. The decision makes no comment on the nature of Anton Piller orders. In this case, by virtue of the wording of the Anton Piller order (which was different than the model Anton Piller order promulgated by the Commercial Court) the Plaintiff had access prior to the production of the Defendant’s Affidavit of Documents to the documents in question.

[5] Finally, the Plaintiff submitted that the proposed appeal involves matters of such importance that leave to appeal should be granted. Again, I disagree. The decision is a discretionary one that turns on the particular facts of the case in question. It does not involve matters of general importance that relate to matters of public importance and matters relevant to the development of the law and the administration of justice.

[6] For these reasons the motion for leave to appeal is dismissed. The Respondents are entitled to their costs of this motion, which I fix in the amount of $2300.00.

H. Sachs J.

DATE: March 31, 2010