SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-CV-414270

MOTION HEARD: August 7, 2013

Parties

Re: TNT Holdings, LLC

Applicant

v.

Blake Medical Distribution Inc.

Respondent

BEFORE: Master Thomas Hawkins

APPEARANCES:

Ruzbeh Hosseini
for moving applicant
F: (289) 293-0318

Renata Kis for responding respondent
Blake Medical Distribution Inc., and
proposed respondents Craig Alexander and
Fred Buzzelli
F: (905) 526-0732

REASONS FOR DECISION

Nature of Motion

[1] In this application, brought pursuant to section 60 of the Evidence Act, R.S.O. 1990 c. E.23 and sections 46 and 47 of the Canada Evidence Act, R.S.C. 1985 c. E-10 for an order giving effect to a letter rogatory issued in an action pending in the Third Judicial District Court in Salt Lake County in the State of Utah, one of the United States of America, (the “Utah action”) the applicant TNT Holdings LLC moves for several forms of relief.

[2] First, TNT Holdings LLC moves for an order substituting a new applicant for this proceeding, namely EdiZONE LLC for TNT Holdings LLC. EdiZONE LLC is currently the plaintiff in the Utah action. This part of the present motion is not opposed. An order will therefore issue substituting EdiZONE LLC (“EdiZONE”) as the applicant for TNT Holdings LLC and amending the title of proceeding in this application accordingly.

[3] The body of the Notice of Application should be amended to make it clear that EdiZONE and not TNT Holdings Inc. is now the applicant.

[4] Next, EdiZONE moves for an order adding Craig Alexander (“Alexander”) and Fred Buzzelli (“Buzzelli”) as additional respondents to this application. Subrule 5.03(4) is relevant to this part of the present motion. Subrule 5.03(4) provides as follows.

The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.

[5] Alexander is the president and a director of the respondent Blake Medical Distribution Inc. (“Blake Medical”). Buzzelli was Blake Medical’s accountant from January 2010 to about April 2012.

Position of Alexander and Buzzelli

[6] Alexander and Buzzelli oppose being added as respondents for a variety of reasons. However, in my view, with one partial exception all these reasons go to the merits of the underlying application by EdiZONE. In accordance with rule 38.02, that application is pending before a judge.

[7] Rule 38.02 provides as follows.

An application shall be made to a judge.

[8] That application is not and should not be pending before or decided by me. That application should be decided by the application judge who will determine whether to issue an order giving effect to the letter rogatory in question, and, if so, on what terms if any.

[9] Rule 1.05 provides as follows.

When making an order under these rules the court may impose such terms and give such directions as are just.

[10] I have mentioned there is one partial exception to the fact that the submissions of Alexander and Buzzelli opposing this motion all go to the merits of the underlying application. That partial exception is as follows.

[11] In an affidavit supporting his position Alexander has stated that he has suffered two strokes resulting from stress and that he has been careful to avoid situations of heightened stress. He says that he finds giving sworn oral testimony in front of lawyers extremely stressful.

[12] It is open to the application judge to make an order giving effect to the letter rogatory as regards Alexander, subject to a term (for example) that his examination take the form of written questions and answers and to give appropriate directions. However, that is a matter for the application judge to decide, not me.

[13] It seems to me that an order adding Alexander and Buzzelli as respondent parties is proper because their presence as respondent parties to the underlying EdiZONE application is necessary to enable the application judge to adjudicate effectively and completely on the issues in that application, within the meaning of subrule 5.03(4).

Result

[14] An order will therefore issue adding Alexander and Buzzelli as respondent parties to the EdiZONE application.

[15] I have declined to give effect to the submissions of Alexander and Buzzelli. However, nothing in these reasons for decision should be taken as limiting the right of Alexander and Buzzelli to make submissions and present evidence before the application judge.

Costs

[16] This motion is decidedly ancilliary to the underlying application. I have therefore decided to reserve the costs of this motion to the application judge.

(original signed)_____

Master Thomas Hawkins

DATE: November 8, 2013