SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: Jack Alan Long, Jr., Plaintiff

AND:

Reprodux Limited, 1208168 Ontario Ltd., 2234303 Ontario Inc., 1176558 Ontario Limited, Jack Alan Long, Sr. and Kimberley Long-Suwary, Defendants

BEFORE: D. M. Brown J.

COUNSEL: J. Woycheshyn and J. Maslen, for the Plaintiff/Respondent

B. Prentice, for the Defendants/Appellants

HEARD: Appeal in writing: submissions dated April 11, April 30 and June 12, 2014.

REASONS FOR DECISION

Appeal from a decision of a Master on the issue of the selection of the representative for discovery of the defendant, Reprodux Limited.

[1] The Defendants appeal from the order of Master Short made March 6, 2014, dismissing their motion under Rule 31.03(2)(a) of the Rules of Civil Procedure to substitute a representative for examination for discovery other than the one selected by the plaintiff – i.e. to substitute a named defendant, Kim Long-Suwary, for the plaintiff’s choice, a Reprodux employee, Mr. Jim Haden, whom Bellamy J., in an earlier trial, had described as “Jack Long [Sr]’s trusted assistant, his right-hand man…and [who] is so close to Mr. Long that his co-workers refer to Mr. Long as ‘his father’”.

[2] The standard of review was set out in Zeitoun v. Economical Insurance Group, 2008 20996 (ON SCDC), [2008] O.J. No. 1771 (Div. Ct.), affirmed 2009 ONCA 415, [2009] O.J. No. 2003 (C.A.).

[3] The Master properly informed himself as to the law: Reasons of Master Short, paras. 23 to 31. Indeed, he provided a text-book quality summary of the applicable legal principles. The Master set out the evidence and arguments relied on by each party in support of their positions. He dealt specifically with the circumstance of putting one person forward – i.e. Kim - for examination in two different capacities. I see no error in the way the Master exercised his discretion. In fact, I think he was correct.

[4] Accordingly, I dismiss the appeal. I query why our Rules of Civil Procedure continue to permit appeals such as this from interlocutory decisions on discovery and production issues. The parties need to hunker-down, complete their discoveries and get on to trial, and the defendants should stop trying to stall this action.

[5] As to the costs of this appeal, having reviewed the costs order made by Master Short and the Costs Outline submitted by the respondent, and having taken into account the factors set out in Rule 57.01, I conclude that the fair and reasonable partial indemnity costs for this most simple of appeals should be fixed at $5,000, all-in, payable by the Defendants to the Plaintiff within 15 days of the date of this Order.

D. M. Brown J.

Date: July 4, 2014