Court File and Parties

CITATION: Echostar Communications v. Heeren, 2010 ONSC 1934

DIVISIONAL COURT FILE NO.: 65/10

COURT FILE NO.: 07-CL-6982

DATE: 2010/03/31

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ECHOSTAR COMMUNICATIONS et al v. HEEREN et al

BEFORE: H. Sachs J.

COUNSEL: Christopher D. Bredt and Denise Bambrough, for the Plaintiffs / Moving Parties

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] This is a motion for leave to appeal the Order of Marrocco J. made January 27, 2010, which dismissed the Plaintiffs’ motion for an order compelling the Defendant Heeran to deliver a further and better Affidavit of Documents.

[2] The facts of this case are much the same as the facts surrounding the Bell Expressvu motion for leave to appeal. There is one key difference and that is that the Plaintiffs do not have access to the documents in question by virtue of an Anton Piller Order. Rather, they have access to these documents because their lawyers, who are the same as the lawyers for Bell Expressvu, will be going through these documents for that case. Further the Defendants have given those lawyers permission to access any documents that they see as relevant to the Echostar Communications case.

[3] On these facts the motion judge determined that there was no need to exercise his discretion to order the Defendants to produce a further and better Affidavit of Documents. Again, this was not a situation where the Plaintiffs were alleging that they would not be able to meaningfully access or sort these documents unless the Defendants did so first.

[4] I find that the decision of the motion judge was a practical solution to the situation at hand. Further, it was made in a unique factual matrix – namely both Plaintiffs had similar actions against the same named Defendants and had retained the same lawyers. Further, the Defendants had granted those lawyers permission to access the documents for both sets of Plaintiffs. Given the uniqueness of the situation, the proposed appeal does not involve matters of general or public importance that transcends the interest of the parties, warranting resolution by a higher level of judicial authority.

[5] For these reasons, the motion for leave to appeal is dismissed. The Respondents are entitled to their costs of the motion, which I fix in the amount of $2000.00.

H. Sachs J.

DATE: March 31, 2010