DATE: 20060706

DOCKET: C45391

COURT OF APPEAL FOR ONTARIO

RE:

ALAN M. RIDDELL (Applicant/Respondent on appeal)

– and – THE CONSERVATIVE PARTY OF CANADA

(Respondent/Respondent on appeal)

BEFORE:

SIMMONS, ARMSTRONG AND LAFORME JJ.A.

COUNSEL:

Paul K. Lepsoe

for the appellant Ian Brodie

Thomas G. Conway

for the respondent Alan M. Riddell

No one appearing

for the respondent The Conservative Party of Canada

HEARD:

June 29, 2006

On appeal from the order of Justice Charles T. Hackland of the Superior Court of Justice dated May 11, 2006.

E N D O R S E M E N T

[1] On January 27, 2006, the respondent, Mr. Riddell, commenced an application against the Conservative Party of Canada ("CPC") for a declaration that the parties had entered into a binding agreement and for the appointment of an arbitrator in relation to that agreement. On April 4, 2006, Mr. Riddell issued four summonses to witnesses in order to examine the witnesses in connection with a pending motion in the application and in connection with the underlying application. One of the summonses was issued to the appellant, Mr. Brodie.

[2] In an endorsement dated May 3, 2006, Power J. dismissed a motion by the CPC to quash the summonses. In his endorsement, Power J. found that the four witnesses may have evidence to give that would be relevant both on the pending motion and on the underlying application. He also held that examining counsel should not use the examination as an opportunity to conduct a fishing expedition with respect to other pending litigation.

[3] Subsequently, on May 11, 2006, Hackland J. made the order under appeal in which he directed that that the appellant attend for examination.

[4] In our view, Hackland J. made no error in ordering the appellant to attend for examination. As of May 11, 2006, the court record in this proceeding included an affidavit filed by the CPC that referred to information received from the appellant and appended, as an exhibit, a document prepared by the appellant. The record also indicated that, in April 2006, the CPC disputed Mr. Riddell’s position that the paragraph that referred to information received from the appellant should be removed. In addition, the arguments relating to abuse of process relied on by the appellant before Hackland J. had already been considered and rejected by Power J. No appeal of the order of Power J. had been taken; nor had the appellant brought a motion on his own behalf seeking to quash his summons.

[5] We reject the appellant's contention that an appeal of Power J.'s order is subsumed in this appeal. On a plain reading of the appellant's notice of appeal, it does not include an appeal of Power J.'s order. During the appeal hearing, counsel for the appellant requested that, if necessary, we grant him leave to treat this appeal as including an appeal of Power J.'s order. In our view, we have no jurisdiction to do so. The appellant was not a party to the motion before Power J., he did not apply to be joined as a party for the purpose of appealing and, as already noted, he has never brought a motion to quash the summons issued to him.

[6] However, even if we had jurisdiction to consider an appeal from Power J.'s order, we would find no error in the order that was made.

[7] As already noted, as of the date of the motion before Hackland J. (and as of the date of the motion before Power J.), an affidavit filed by the CPC included a paragraph containing information received from the appellant and appended, as an exhibit, a document prepared by the appellant. The record also indicated that, in April 2006, the CPC disputed Mr. Riddell’s position that the paragraph that referred to information received from the appellant should be removed.

[8] Although both parties made submissions on appeal concerning matters that were not in evidence before either Hackland J. or Power J. that bear on the potential relevance of the appellant's evidence, there was no admissible evidence before us supporting either party's submissions. Accordingly, on the record before us, we are not persuaded that Power J. erred in his conclusion concerning relevance. Finally, as was noted by Power J., the right to conduct an examination does not include the right to conduct a fishing expedition relating to other litigation.

[9] In all of the circumstances, the appellant has not demonstrated that the examination that was ordered amounts to an abuse of process.

[10] As alternative relief, the appellant asked that we stay the order of Hackland J. pending the hearing and determination of a pending motion brought by the CPC to stay Mr. Riddell’s application as an abuse of process. In our view, particularly since the CPC’s motion is scheduled to be heard together with Mr. Riddell’s application, the appellant has not demonstrated that such relief would be appropriate.

[11] Accordingly, the appeal is dismissed. Costs of the appeal and stay motion are to Mr. Riddell on a partial indemnity scale fixed at $7,500 inclusive of disbursements and applicable G.S.T.

Signed: “Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“H.S. LaForme J.A.”