COURT FILE AND PARTIES

COURT FILE NO.: 09-46882
MOTION HEARD: 2012/02/21
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN IN RIGHT OF CANADA, Applicant

AND:

THE CANADIAN TRANSIT COMPANY, et. al., Respondents

BEFORE: Master MacLeod

COUNSEL:
William C. McDowell for the Applicant

Larry P. Lowenstein & Kevin O’Brien for Respondent CTC

John B. Laskin & Nicole Mantini for Respondents DIBC & CCCD
(moving parties)

HEARD: February 21, 2012

REASONS FOR DECISION

[1] This is a motion for directions scheduled by the Respondents, DIBC and CCCD, seeking rulings on the documentary production made by the Applicant. This is pursuant inter alia to a case conference order originally made in April of 2010 and most recently revised in November of 2011.

[2] The parties are the Canadian federal government as Applicant and three related corporations as Respondents. Those corporations control and operate the Ambassador Bridge between Windsor and Detroit. The Respondents are The Canadian Transit Company (CTC), a Canadian corporation which owns and operates the Canadian end of the bridge, The Detroit International Bridge Company (DIBC), an American corporation which owns and operates the American end (and also owns CTC), and The Central Cartage Company of Detroit (CCCD), also an American corporation, which owns DIBC. Ultimately all three are owned and controlled by the Moroun family of Detroit. Notwithstanding the common ownership and control of those companies, CTC and the American corporations are represented by separate legal counsel.

[3] As outlined in earlier reasons [1], the application is essentially pre-emptive litigation in which the government asks the court to declare that there is no substance to certain positions taken by the Respondents in the press and before other political and adjudicative bodies. At stake is on the one hand the desire of the operators of the Bridge to construct a second span and on the other the desire of a public sector consortium (including an agency of the Applicant) to construct a new bridge under public ownership; the so called DRIC (Detroit River International Crossing).

[4] In the context of case managing this application, I had directed the parties to consider how to streamline the potentially cumbersome process of disputed documentary production in an application (as distinct from an action). Documents may be compelled at three different stages: firstly through a request to inspect documents mentioned in affidavits; secondly by way of a notice of examination or a summons to witness; and, thirdly by requiring production of relevant documents that a witness admits are in the possession or power of the party being examined. [2] Obviously disputes can arise at each of these stages and if delay and cost are to be minimized then counsel should be seeking consensus on the scope of production. If there are legitimate disputes they should be considering procedures to proactively resolve them rather than having to argue motions after the fact and then to have witnesses reattend. Use of foresight will be even more important when government is involved since there may be documents that engage questions of executive privilege. In the case of the federal government, resolution of privilege issues may require direction from the Clerk of the Privy Council or the responsible minister.

[5] In this regard, I had directed counsel to confer and to try to reach agreement on the scope of relevance and on claims of privilege. This is not as simple as it may seem because in an application there are no pleadings as such. The Applicant serves a Notice of Application setting out the relief claimed and the basis for it but the Respondents need only serve a Notice of Appearance and it is not until the factums are exchanged that the precise parameters of argument must be defined by the Respondents. Relevance for purpose of an application therefore falls to be determined by the Notice of Application and the facts set out in the applicant’s and respondents’ affidavits. [3] Failing agreement I had suggested that a case conference or a motion for directions might be appropriate. The former is useful for giving orders or directions if there is no significant factual dispute. The latter is more appropriate if the parties have to rely on affidavits and require a more structured forum.

[6] Eventually a Motion for Directions was brought by the Respondents, DIBC and CCCD. At the same time for reasons I will come to, the moving parties also proposed that the motion should be adjourned. The adjournment request was opposed by the Applicant who requested that the court proceed to give appropriate direction concerning the disputed categories of documents and then to put in place a timetable for cross examinations and hearing of the application.

Request for Adjournment

[7] Counsel for CTC seeks an adjournment of this motion because, despite this application having been pending since 2009, CTC commenced an action in Toronto against the Attorney General of Canada on February 15th, 2012. Though it is much broader and far reaching, the action is said to encompass the issues which are raised by this application. CTC has advised it will be seeking to consolidate the action with the application. It is argued that it is inefficient to try to determine the scope of production in the application or to schedule events in the application when there will now be a parallel action and the necessity for full formal production.

[8] Because of this potential change in the litigation landscape, and despite being the moving party, counsel for DIBC and CCCD (which are not parties to the action brought by CTC) concurs in the request for adjournment.

[9] The Applicant opposes the request for an adjournment and asks that the court continue to rule on the production issues as well as setting out a timetable. The Applicant advises that the Attorney General will be moving to stay the new action as an abuse of process and on other grounds and in any event will likely oppose consolidation. In his submission it is premature to presume that the action should interfere with the progress of the application.

[10] The only real argument against giving directions today is their potential futility if they are overtaken and superseded by the needs of the action.

[11] I agree that it is premature to assume that the action and the application will both continue or if they both proceed that they will necessarily be consolidated. It is possible the action will be stayed or that the action and the application will be allowed to continue separately. Though duplication and proliferation of proceedings are discouraged by the rules, it is by no means certain that an application and a parallel action must always be consolidated. [4] Even if the motion for a stay is unsuccessful the court may refuse consolidation. The court might for example consider that the application is more advanced and is an appropriate vehicle for binding determination of an issue that is central to the litigation.

[12] The request for adjournment of the motion was refused.

(Decision continues with full text preserved.)

Master MacLeod

Date: February 24, 2012