SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-00406342
DATES HEARD: 20130423, 20130523, 20130930
ENDORSEMENT RELEASED: 20131211

RE: Mars Canada Inc. v. Bemco Cash & Carry Inc., GPAE Trading Corp. and
Aizic Ebert

BEFORE: Master B. McAfee

COUNSEL:
P. Summers for the Moving Parties, the Defendants
J. Holloway and E. Fordyce for the Responding Parties, the Plaintiff

REASONS FOR DECISION

[1] Pursuant to the long motion assignment of Master Glustein dated October 31, 2012, I was assigned to hear the defendants’ long motion for answers to undertakings and questions refused on the cross-examination of affiants on affidavits filed by the plaintiff in support of the plaintiff’s motion for summary judgment.

[2] Pursuant to my endorsement dated November 22, 2012, the defendants’ long motion was scheduled for April 23, 2013 for the agreed upon length of one day. The defendants’ long motion proceeded before me on April 23, 2013, but was not completed in the time booked. The defendants’ long motion continued before me on May 23, 2013 and was completed on September 30, 2013.

[3] What follows are my rulings.

Undertakings from the cross-examination of Sally-Anne Hinton held on September 25, 2012

[4] Undertaking nos. 1, 2, 3, 4, 6, 7, 10, 11, 13, 15 and 16: The defendants agree that these undertakings have now been answered (see para. 5 of the defendants' factum).

[5] Undertaking no. 5: The parties agree that this undertaking remains outstanding. The undertaking shall be answered.

[6] Undertaking nos. 8 and 9: The undertakings were not limited to “the purposes of the motion.” In addition, undertaking no. 9 was not limited to documentation the plaintiff intends to rely upon. The undertakings have not been answered. The undertakings shall be answered.

[7] Undertaking no. 12: The parties agree that the undertaking has been answered and that there may be relevant follow up questions arising from the answer given.

[8] Undertaking no. 14: The parties agree that the undertaking has been answered and that there may be relevant follow up questions arising from the answer given.

Undertakings from the cross-examination of Don Colbourn held on September 18, 2012

[9] Undertaking no. 1: The parties agree that the undertaking has been answered and that there may be relevant follow up questions arising from the answer given.

[10] Undertaking nos. 2 and 3: The defendants agree that these undertakings have now been answered (see para. 5 of the defendants’ factum).

Undertakings from the cross-examination of Theodore Sorokopas held on September 18, 2012

[11] Undertaking no. 1: The defendants agree that this undertaking has now been answered (see para. 5 of the defendants’ factum).

Refusals – the Test

[12] The test to be applied is set out in Ontario v. Rothmans Inc., 2011 ONSC 2504, [2011] O.J. No. 1896 (Ont.S.C.J.) at paras 130-137, 142-143, 151-153 and 160, Shibish v. Honda Canada Inc., [2008] O.J. No. 4881 (Ont. Master) at para 2 and Romspen Investment Corporation v. Woods, 2010 ONSC 30005 (Ont. Master) at paras 15-16. Any reference in the cases to “semblance of relevance” is no longer applicable.

Refusals from the cross-examination of Sally-Anne Hinton held on September 25, 2012

Category No. 1 – Relationship of Mars to Mars International, Refusal Nos. 1, 2, 3, 4, 5 and 6

[13] I am satisfied that refusal no. 1 is relevant to the motion based on the grounds for the motion at paragraph 8 of the notice of motion and based on paragraph 5 of the Hinton reply affidavit. See also Smith & Nephew Inc. v. Glen Oak Inc., 1996 4065 (FCA), [1996] 3 FC 565 (FCA) at p. 5 and 85 Revlon Inc. and Others v. Cripps & Lee Ltd., [1980] F.S.R. 85 (HCJ-Chancery Div.) at p. 9, 11, 16-18, 21. The question shall be answered.

[14] To the extent that refusal nos. 2, 3 and 4 have not been answered, I am not satisfied that the questions are relevant or proper questions. In any event the defendants are at liberty to search the court files (see Allison v. Duffus, [2006] O.J. No. 4312 (Ont. Master) at para 14 and Wilkieson-Valiente v. Wilkieson, 1994 7486 (ON SC), [1994] O.J. No. 148 (Ont.Gen.Div.) at para 12). The questions need not be answered.

[15] Refusal no. 6 is overly broad. The question need not be answered.

Category No. 2 – Website Issues, Refusal Nos. 7, 8, 10 and 11

[16] I am satisfied that the questions in this category are relevant to the motion on the same basis as refusal no. 1 in category no. 1. In addition, with respect to refusal no. 11, I am satisfied that the question is relevant based on paragraphs 5 to 11 of the Hinton affidavit and document no. 5 in cross-examination document brief. With respect to the plaintiff’s objection on the basis that the witness has no personal knowledge, I was not referred to evidence that the information is not readily available or that it is unduly onerous to obtain the information. The questions shall be answered.

Category No. 3 – Copyright/Licence Issue, Refusal No. 9

[17] I not satisfied that the question in this category is relevant to the motion. The question need not be answered.

Category No. 4 – Packaging Issue, Refusal Nos. 12 and 13

[18] I am not satisfied that the questions in this category are relevant to the motion. The questions need not be answered.

Category No. 5 – Production Agreement Issues, Refusal Nos. 14, 15, 16 and 17

[19] I am satisfied that the questions in this category, save for refusal no. 14, are relevant to the motion based on paragraph 8 of the notice of motion and paragraphs 2, 3, 4, 5, 6 and 12 of the Hinton affidavit. See also paragraphs 8, 27, 28 and 29 of the Ebert affidavit. The questions, save for refusal no. 14, shall be answered.

[20] I am not satisfied that refusal no. 14 is relevant to the motion. The question need not be answered.

Category No. 6 – Assignment of Trademark Issues, Refusal Nos. 18, 19, 20, 21, 22, 23, 24 and 25

[21] I am satisfied that the questions in this category, save for refusal nos. 18 and 25, are relevant to the motion based on paragraph 3 of Hinton affidavit and paragraph 8 of notice of motion. With respect to the objection on the basis that the witness does not have personal knowledge, I was not referred to evidence that the information is not readily available or that it is unduly onerous to obtain the information.

[22] With respect to refusal no. 18, the defendants are at liberty to investigate the files themselves. The question need not be answered.

[23] With respect to refusal no. 25, the question is overly broad. The question need not be answered.

Category No. 7 – Damages Issues, Refusal Nos. 26, 27, 28, 29, 30, 31 and 32

[24] The questions in this category are relevant to the motion. The relief in the notice of motion at paragraph (a) includes punitive damages with a reference to determine the quantum of further damages/profits. The questions shall be answered.

Category No. 8 – Tier 1, Tier 2 Issue, Refusal No. 33

[25] The question in this category is withdrawn.

Category No. 9 – Specific Hinton Affidavit Issues, Refusal Nos. 34, 35 and 36

[26] The questions in this category are relevant to the motion based on the notice of motion at paragraph (a) of the relief requested and paragraphs 1 and 3 of the grounds for the motion and paragraphs 13-21, 29, 34-36 of the Hinton affidavit. With respect to the plaintiff’s objection to refusal no. 36 on the basis of privilege, the material referred to on the motion does not satisfy me that the answer to refusal no. 36 is subject to privilege. The questions shall be answered.

Category No. 10 – Pricing Issues, Refusals Nos. 37 and 40

[27] The defendants confirm that they are only seeking documentation for Mars Canada.

[28] Refusal no. 37 is overly broad and need not be answered.

[29] I am satisfied that refusal no. 40 is relevant to the motion based on the last sentence of paragraph 8 of the grounds in the notice of motion. With respect to the plaintiff’s objection that the witness has no knowledge, I was not referred to evidence that the information is not readily available or that it is unduly onerous to obtain the information. To the extent that a confidentiality order is requested, the defendants indicated that they had no issue agreeing to same. The question shall be answered, subject to any confidentiality order that may be agreed to.

Category No. 11 – Federal Packaging Compliant Issues, Refusals Nos. 38 and 39

[30] The questions in this category are relevant to the motion based on paragraph 8 of the notice of motion and paragraphs 4, 5, 6, 7, 8, 9, 10 and exhibits E and K of the Hinton affidavit. The material referred to on the motion does not satisfy me that the questions are subject to privilege. The questions shall be answered.

Category No. 12 – Grey Market Policy Issues, Refusal Nos. 41, 42

[31] I am not satisfied that the questions in this category are relevant to the motion. The questions need not be answered.

Category No. 13 - Refusal No. 43

[32] This question has been withdrawn.

Refusals from the cross-examination of Don Colbourn held on September 18, 2012

[33] The plaintiff objects to the questions on the basis of privilege and in part on the basis of relevancy and on the basis that the questions are overly broad. I am satisfied that the questions are relevant to the motion based on paragraph (a) of the notice of motion. The questions are not overly broad. With respect to the issue of privilege, at this time the defendants request an itemization of the documents in existence and the basis for privilege over the documents. Once this information has been provided the defendants will consider whether they wish to pursue the questions further. In my view this is a reasonable approach (see Smith v. London Life Insurance Company, 2007 745 (ON SCDC) at para 25). An order shall go that the documents, if any, in response to the questions shall be listed and the basis for any privilege asserted shall be stated. The motion may be renewed before me in this regard if necessary after the information has been provided.

Refusals from the cross-examination of Theodore Sorokopas held on September 18, 2012

[34] The same ruling with respect to the refusals from the cross-examination of Don Colbourn applies.

Timing

[35] Any questions ordered answered shall be answered on or before February 28, 2014.

Re-Attendance

[36] Having regard to the undertakings answered and the questions ordered to be answered, I am satisfied that a re-attendance will serve a useful purpose. The re-attendance of the affiants shall proceed on a mutually convenient date to the affiants and counsel.

Costs

[37] If any party seeks costs and if after reasonable attempts have been made to agree to costs, costs cannot be agreed upon, any party seeking costs shall serve and file brief written submissions on costs of three pages or less in length together with a costs outline on or before January 31, 2014. Any responding submissions shall also be three pages or less in length and served and filed on or before February 14, 2014. Any reply submissions shall be one page or less in length and served and filed on or before February 21, 2014. The submissions shall be filed with assistant trial coordinator, Conrad Diamante, 6th floor and shall be accompanied by an affidavit of service.

Master B. McAfee

DATE: December 11, 2013