ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-45382
DATE: 2014-07-28
B E T W E E N:
CIN-Q Automobiles Inc.
Matthew Sokolsky and Adam Brunswick, for the Applicant
Applicant
- and -
James Fleming and Stefani Pelowich
Adam Huff, for the Respondents
Respondents
HEARD: May 23rd, 2014
RULING
PARAYESKI, J.
[1] Before me was an application whereby the applicant asked for an order giving effect to and enforcing Letters Rogatory issued by a judge of a US district court in Florida. Those Letters Rogatory request the cooperation of this court to compel “the video testimony” of the respondents, both of whom reside in the province of Ontario, specifically Hamilton in respect of Mr. Fleming and Burlington in respect of Ms. Pelowich.
[2] A detailed description of the underlying Florida action is not necessary for the purposes of this ruling. Very briefly, however, it involves the applicant suing a number of defendants for allegedly sending or causing to be sent unsolicited advertisements by facsimile transmission. That, I am told, is a tortious act in the State of Florida. I am further informed that the alleged sending of the facsimilie transmissions was sub-subcontracted to a company registered in Nevis, that being 127 High Street Inc.
[3] The applicant alleges that information and documents it needs to prosecute its civil action in Florida can only be had, if at all, from the respondents as they appear to have some connection to 127 High Street Inc.
[4] Again, briefly, 127 High Street Inc. owned a website called 127highstreet.com. That website was registered by J. Fleming at JCFDATA.com. That entity is a federally registered company here in Canada with its sole director recorded as the respondent Mr. Fleming.
[5] The applicant located a fax service agreement between 127 High Street Inc. and a customer which contained a contact telephone number. That telephone number is described as being registered to an apparently dissolved company named Burlington Technical Service Canada Inc. A corporate search reveals that its sole office and director was the respondent Ms. Pelowich.
[6] The appellant wishes to examine the respondents, with regard to their knowledge, if any, of the identity of the officers, directors and employees of 127 High Street Inc. and the location of its facsimile transmission records, if any.
[7] The applicant further “suspects” that the respondents may be officers, directors or employees of 127 High Street Inc., and that they may possess its facsimile transmission records.
[8] I pause at this point to note that the alleged sub-subcontracting appears to have been done by 127 High Street Inc., whereas the corporate search provided by the applicant in its materials indicates that it searched 127 High Street LLP. I see nothing practical turning on this point.
[9] The respondents have advised the applicant as follows:
in respect of Mr. Fleming: that he “simply” registered the website 127highstreet.com and provided “some limited technical support” for “127 High Street” through Ms. Pelowich’s former company. Mr. Fleming denies having been an officer or director “of any High Street company”, and stated that he has no knowledge of any directors, officers, or employees. He stated that he had no knowledge of any facsimile transmissions in issue and that he “has no access” to any records pertaining “to High Street …”.
in respect of Ms. Pelowich: that she has never been an officer or director of “any High Street company” and has no information relating to directors or officers or employees and that she “has no access to transmission reports”. She stated that she has no knowledge of any facsimile transmission that might be relevant. Her role was limited to her now dissolved company having “done some back office support for 127 High Street LLC”. She stated as well that “to her knowledge, all equipment for 127 High Street LLC had been decommissioned and disposed of”.
[10] The applicant is not satisfied with the information summarized above, either by way of letter or sworn affidavit, and instead, seeks oral examination under oath.
[11] The respondents raised the fact that there is “a stay order” in the underlying action relative to discovery “on all issues except that of vicarious liability”. It also a fact that the stay order does not apply specifically to this application. While it may well be that the information being sought by means of the Letters Rogatory may become moot based upon resolution of the vicarious liability issue, I am not prepared to await that potential eventuality. In my view, that possibility alone is not an appropriate basis upon which to decline the request of the Florida court.
[12] The granting of the request being made is not automatic. At the same time, however, this court should recognize that it may need the cooperation of foreign courts as well.
[13] In the Ontario Court of Appeal decision of Presbytarian Church of Sudan v. Taylor, reported at 2006 32746 (ON CA), 2006 CarswellOnt 5781, the test which the applicant must meet is to satisfy the court that:
the evidence sought is relevant;
the evidence sought is necessary for trial and will be adduced at trial, if available;
the evidence is not otherwise obtainable;
the order sought is not contrary to public policy;
the documents sought are identified with reasonable specificity; and
the order sought is not unduly burdensome, bearing in mind what the witness could be required to do, and produce, were the action to be tried in Ontario.
As with any six factor test, it is not surprising that there is both case law which gives effect to Letters Rogatory and that which does not.
[14] Notwithstanding the vigorous opposition of the respondents, I am not prepared to accept their assertion that what the applicant is seeking here is nothing than more than “a fishing expedition”. The evidence shows some connection between the respondents and some form of a “127 High Street” company.
[15] While it is possible that some other person may have the information or documentation, no such person is identified. It is interesting, in my opinion, to note that despite what the respondents have voluntarily disclosed, no effort appears to have been made by them to provide the names of the contacts they had with 127 High Street company for which they provided services. Nothing may turn on that, but under the circumstances it is not appropriate for the respondents to claim that someone else should be the only source of information.
[16] The evidence shows some kind of subcontracting trail to a 127 High Street company. That which is being sought is likely relevant, and I see no reason why it would not likely be adduced at trial. Despite the broad wording of the request, I do not see this as being contrary to public policy, or materially different from what a witness under subpoena is likely to be asked and be required to produce here in Ontario.
[17] Of course, the applicant may have to be satisfied with a near repetition under oath of the information, or non information, already provided by the respondents. That is the applicant’s choice and the chance it may well be taking. Given that the respondents have already gone to considerable lengths to avoid being examined as requested, they are likely to continue to be represented by counsel when examined, and should therefore be well protected throughout.
[18] The application motion is granted.
[19] If the parties are not able to agree upon costs, they may make brief written submissions to me in that regard. Each set of submissions, if any, should be no more than three type written pages in length, not including a costs outline. The applicant’s costs submissions, if any, are due on or before August 31st, 2014. Those of the respondents are due on or before September 15th, 2014. The applicant shall have a further 15 days to reply. Costs submissions are to be forwarded to my attention at the John Sopinka Courthouse at Hamilton.
PARAYESKI J.
DATE: July 28, 2014
FILE NO.: 14-45382
DATE: 2014-07-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CIN-Q Automobiles Inc.
Applicant
- and –
James Fleming and Stefani Pelowich
Respondents
RULING
PARAYESKI J.
MDP:vt
Released: July 28, 2014