COURT FILE NO.: CV-15-53057
DATE: 20150916
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
INTELSAT USA SALES LLC
Applicant
– and –
KENNETH HYDE and SANDRA MAJIC
Respondents
Nicholas Robar, for the Applicant
Sandra Majic, on her own behalf
No one appearing for Kenneth Hyde
HEARD: September 8, 2015
M. D. FAIETA, j
REASONS FOR DECISION
INTRODUCTION
[1] The Applicant, Intelsat USA Sales LLC, commenced an action in the United States District Court for the District of Columbia (“USDC”) against Juch-Tech, Inc., a company based in Ontario, for monies owed under various agreements. One of the invoices relates to an agreement executed on March 27, 2009 (“Agreement”). In response, Juch-Tech alleged that the Agreement should be rescinded as Intelsat made misrepresentations prior to the Agreement that were relied upon by Juch-Tech and that, as a result, it suffered damages.
[2] At Intelsat’s request, and with Juch-Tech’s consent, the USDC issued Letters Rogatory to compel the examination of Sandra Majic (Juch-Tech’s former In-house Counsel), Kenneth Hyde (Juch-Tech’s former Chief Financial Officer) and Chester Szkarlat (Juch-Tech’s former Chief Operating Officer).
[3] Intelsat commenced this Application for an Order to give effect to the Letters Rogatory in relation to Majic and Hyde but not Szkarlat.
[4] Hyde consents to this Application.
[5] Majic opposes this Application on the basis that: 1) she has no relevant evidence and thus her evidence is not necessary for trial; 2) the evidence sought can be obtained from Hyde and Szkarlat, as the former senior executives; 3) the evidence would be contrary to public policy as she is obliged by the Rules of the Law Society of Upper Canada to keep confidential all information concerning the business and affairs of Juch-Tech; 4) the examination would be burdensome given that she is a sole practitioner in Hamilton, Ontario and will suffer a loss of income to attend this examination which is scheduled for one day in Toronto, Ontario.
[6] I order that the Letters Rogatory be enforced against Hyde but not Majic.
[7] In my view, Intelsat has not demonstrated that Majic has relevant evidence that is necessary for trial. Further, the evidence sought from Majic is obtainable from Hyde and Szkarlat. For reasons not disclosed by Intelsat, it has not chosen to enforce the Letters Rogatory against Szkarlat when its own evidence indicates that he has specific knowledge of a broader range of matters at issue than Majic.
[8] In light of my assessment of the relevant considerations it is my view that the request for enforcement of the Letters Rogatory as against Majic should be refused as it would impose an undue burden on her.
[9] This decision is without prejudice to a further application by Intelsat to enforce the Letters Rogatory against Majic after it has examined Hyde and Szkarlat if the circumstances demonstrate that such Application is appropriate.
BACKGROUND
[10] The Applicant relies on the affidavits of David I. Bledsoe, sworn June 17, 2015 and August 26, 2015. Bledsoe is the attorney for the Applicant in the action against Juch-Tech, pending before the USDC. His affidavits explain why the Letters Rogatory should be enforced in Ontario against both Majic and Hyde. Bledsoe was not cross-examined on his affidavits.
[11] On March 26, 2015 the USDC issued Letters Rogatory at Intelsat’s request, with Juch-Tech’s consent, to compel the attendance at depositions de bene esse and the production of relevant documents of three former employees of Juch-Tech who are Canadian citizens: Sandra Majic, Kenneth Hyde and Chester Szkarlat.
[12] The “Letters Rogatory for Deposition Subpoena to Sandra Majic” was issued on the following terms:
TO: THE ONTARIO SUPERIOR COURT OF JUSTICE (and/or all proper authorities in the Province of Ontario):
GREETINGS:
The action described above is pending in the United States District Court for the District of Columbia. It has been suggested to this Court that justice cannot be completely done between the parties without the oral deposition testimony and document production from Ms. Sandra Majic, Esq., whose business address is located in your jurisdiction at 29 Tannery Street, Suite 300, Mississauga, ON L5M 1V1, CANADA (and/or all proper addresses within the Province of Ontario.) Ms. Majic may be served at her business address 29 Tannery Street, Suite 300, Mississauga, ON L5M IVI, CANADA, which is in your jurisdiction.
Ms. Majic is the former in-house counsel of Juch-Tech, Inc., ("Juch-Tech") the defendant and counterplaintiff in this litigation. The instant litigation concerns an agreement between Juch-Tech and plaintiff/Counterdefendant Intelsat USA Sales LLC ("Intelsat") for satellite services. Juch-Tech has alleged, among other things, that Intelsat defrauded Juch-Tech in connection with this agreement, executed by the parties in 2009, by withholding certain information about the transaction, that Juch-Tech relied on these omissions, and that it has suffered damages as a result.
Plaintiff/Counterdefendant Intelsat requests that Ms. Majic appear for deposition to be examined under oath and to produce documents in this case, as she participated in the negotiation of the agreement and in Juch-Tech's decision to enter into the agreement. As the in-house counsel for Juch-Tech at the times of the negotiation and execution of the agreement, she possesses knowledge concerning the veracity of Juch-Tech's allegations in this case and Juch-Tech's decision to enter into the agreement and its due diligence concerning the agreement.
It is the opinion of this Court that justice will be served by allowing for service of a subpoena (known as a summons to witness in Canada) on Ms. Majic, seeking her testimony at a deposition in Toronto, Ontario, Canada, as the parties believe that Ms. Majic has relevant information that is necessary for trial, that will be adduced at trial, and that is not otherwise obtainable in this lawsuit. Further, this request is not contrary to Canadian public policy, identifies with reasonable specificity the evidence and documents sought, and is not unduly burdensome on Ms. Majic.
As a result, this Court requests that, in the interest of justice, you issue, or allow for the issuance of, a summons to witness or other process that would require Sandra Majic to give deposition testimony before an Examiner duly appointed by Ontario Court, under oath or solemn affirmation, on July 1, 2015 at ASAP Reporting Services Inc., 333 Bay St., Suite 900, Toronto, ON M5H 2T4 beginning at 9:30 am, or on such other date or location agreed upon by the parties, pursuant to Section 60 of the Ontario Evidence Act, R.S.O 1990, C. E. 23, Section 46 of the Canada Evidence Act, R.S.C. 1985, c. C-5, and Rule 34 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Plaintiff's counsel is prepared to travel to Ontario to depose Ms. Majic, to reimburse Ms. Majic for any reasonable costs she incurs for her attendance at deposition, and to provide Ms. Majic with attendance money pursuant to Rule 34 of the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
This Court also requests that Ms. Majic be compelled to produce documents pursuant to the federal subpoena attached as Exhibit A to the Notice of Deposition attached hereto as Exhibit 1 on or before June 8, 2015 at Fasken Martineau, Attention: Kimberly Potter, 333 Bay Street, Suite 2400, Toronto, Ontario, Canada M5H 2T6.
This Court further requests that the Ontario Superior Court of Justice require the testimony of Ms. Majic to be transcribed and recorded by videotape, and that such documents or copies thereof be returned to David I. Bledsoe, 600 Cameron Street, Suite 203, Alexandria, VA 22314.
This Court further requests that the Court permit the examination to be conducted in accordance with the laws and procedural rules of the United States with respect of the taking of deposition evidence and production of documents. Any summons to witness or other process issued and/or served by the Ontario Superior Court of Justice shall have the force and authority of the United States as vested in this Court pursuant to Federal Rule of Civil Procedure 45 (b), in addition to the powers granted to such person by Ontario and Canada. This Court shall be ready and willing to provide similar assistance to the judicial authorities in Canada.
Proof that the notice to take a deposition has been given as provided by Rules 30 and 45 of the Federal Rules of Civil Procedure has been provided as evidenced in the Notice attached hereto as Exhibit 1.
[13] The Notice of Deposition De Bene Esse and Subpoena Duces Tecum for Ms. Majic (referenced as Exhibit 1 in the Letters Rogatory) states:
PLEASE TAKE NOTICE THAT Plaintiff Intelsat USA Sales LLC (“Intelsat”), by counsel, will take the deposition de bene esse of Sandra Majic, Esq. 29 Tannery Street, Suite 300, Mississauga, ON L5M 1V1, CANADA, pursuant to F.R. Civ. P. 30 and 45, to be held on July 1, 2015 at ASAP Reporting Services Inc., 333 Bay Street, Suite 900, Toronto, ON M5H 2T6, beginning at 9:30 am, or at such time and place as the witness and counsel for the parties may agree. The deposition will be recorded by digital audio and videotape as well as stenographic means. This deposition is being taken for the purposes of discovery, for use at trial, and for all other purposes, as permitted under the rules of this Court and all applicable statutes and laws. You are invited to attend and cross-examine.
On or before June 8, 2015, Ms. Majic shall produce at the offices of Fasken Martineau, 333 Bay Street, Suite 2400, Bay Adelaide Centre, Box 20, Toronto, above a copy of the documents listed in the attached Schedule A.
Schedule A
All documents, including emails, created between November 1, 2008 and December 31, 2009 relating to the Transition Agreement dated March 27, 2009 between Juch-Tech Inc. and Intelsat Corporation, or relating to Service Order No. 22165 between Juch-Tech, Inc. and Intelsat USA Sales Corporation.
[14] Intelsat’s Memorandum in Support of the Motion before the USDC sets out the reasons for the issuance of the three Letters Rogatory as follows:
The three witnesses that lntelsat seeks to depose are Sandra Majic, Kenneth Hyde, and Chester Szkarlat. Each witness is a former Juch-Tech employee who possesses knowledge, and perhaps documents, critical to the case. Given that their employment with Juch-Tech has been terminated, Juch-Tech does not have the power to require their appearance, nor are they required to appear voluntarily absent a subpoena or court order from the appropriate Canadian court. In order to obtain such a court order, the Canadian court requires a letter rogatory be issued by the Court, in the form attached hereto, requesting the Canadian court’s assistance in compelling the witness to testify. The requested letters rogatory are attached as Exhibit A hereto.
Mr. Hyde is the former, and apparently last, Chief Financial Officer of Juch-Tech. As he served as Chief Financial Officer of Juch-Tech during times relevant to this litigation, he possesses knowledge concerning the veracity of Juch-Tech's allegations in this case, and in particular concerning Juch-Tech's alleged damages.
Mr. Szkarlat is the former Vice President and Chief Operating Officer of Juch-Tech. As the Vice President and Chief Operating Officer of Juch-Tech at the times of the events relevant to this litigation, he possesses knowledge concerning the veracity of Juch-Tech's allegations in this case, and in particular concerning the negotiation of the agreements at issue, Juch-Tech's decision to enter into the agreements and its due diligence concerning the agreements, Juch-Tech's use of the satellite bandwidth, and Juch-Tech's alleged damages.
Ms. Majic is the former in-house counsel of Juch-Tech. As the in-house counsel for Juch-Tech at the times of the negotiation and execution of the agreement, she possesses knowledge concerning the veracity of Juch-Tech’s allegations in this case and in particular concerning Juch-Tech's decision to enter into the agreement and its due diligence concerning the agreement.
Counsel for Intelsat has contacted these witnesses in an attempt to seek their voluntary appearance and cooperation. Mr. Hyde and Mr. Szkarlat have indicated that they will require a summons to witness (the Canadian version of a subpoena) in order to appear. Ms. Majic has declined to respond to numerous telephone calls and emails in an attempt to obtain her cooperation. … [emphasis added]
ANALYSIS
[15] This Court has the authority to order the examination of a witness to aid in the adjudication of a proceeding in a foreign jurisdiction under section 60 of the Evidence Act, R.S.O. 1990, c. E-34 as well as section 46 of the Canada Evidence Act, R.S.C. 1985, c. C-5.
[16] Section 2 of the Evidence Act provides that it applies to all actions and other matters whatsoever respecting which the Legislature has jurisdiction. Given that the Applicant’s claim in the USDC is for the collection of money owed under a contract, it is it my view that section 60 of the Evidence Act is applicable, not section 46 of the Canada Evidence Act, as the proceeding relates to property and civil rights, which is a matter within the jurisdiction of the provincial legislature.
[17] Under s. 60(1) of the Evidence Act the court, in addition to ordering the examination of the witness in accordance with the Letters Rogatory may also “…give all such directions as to the time and place of the examination, and all other matters connected therewith as seem proper…”
Statutory Pre-Conditions
[18] The following statutory pre-conditions must be satisfied under section 60 of the Evidence Act before the Court may consider whether it should exercise its discretion to require the examination of a witness:
the obtaining of testimony from a witness outside its jurisdiction has been authorized by commission, order or other process of a court or tribunal in a foreign country;
such authorization must be for a purpose for which a letter of request could be issued under the rules of court (see Rule 34.07 of the Rules of Civil Procedure);
the witness whose evidence is sought must be within the jurisdiction of the court which is asked to make the order;
the evidence sought from the witness must be in relation to an action, suit or proceeding pending before the foreign court or tribunal;
the foreign court or tribunal must be of competent jurisdiction.
[19] Ms. Majic did not argue that the statutory pre-conditions had not been satisfied. Her submissions focused on whether this Court should exercise its discretion to require her examination. Based on the evidence provided, it is my view that these pre-conditions have been satisfied.
Framework and Guideposts for Exercise of Discretion under the Evidence Act
[20] The framework for the exercise of this discretion was described by the Supreme Court of Canada in R.v. Zingre,[^1] at para. 18, as follows:
It is upon the comity of nations that international legal assistance rests. Thus the courts of one jurisdiction will give effect to the laws and judicial decisions of another jurisdiction, not as a matter of obligation, but out of mutual deference and respect. A foreign request is given full force and effect unless it be contrary to the public policy of the jurisdiction to which the request is directed…or otherwise prejudicial to the sovereignty or the citizens of the latter jurisdiction.
[21] In Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd.,[^2] at para. 59, the Ontario Court of Appeal adopted the approach that the court must:
…consider whether the request imposes any limitation or infringement on Canadian sovereignty and whether justice requires an order for the taking of commission evidence. The considerations encompassed by the phrase “Canadian sovereignty”…include an assessment of whether the request would give extra-territorial authority to foreign laws which violate relevant Canadian or provincial laws…whether granting the request would infringe on recognized Canadian moral or legal principles…and whether the request would impose an undue burden on, or do prejudice to, the individual whose evidence is requested.
[22] As well, in Lantheus, at paras. 60-65, the Ontario Court of Appeal adopted the following six “guideposts”, as opposed to “rigid preconditions”, for the exercise of a judge’s discretion:
Is the evidence sought relevant?
Is the evidence sought necessary for trial and will it be adduced at trial, if admissible?
Is the evidence not otherwise attainable?
Is the order sought contrary to public policy or inconsistent with the laws of Ontario?
Are the documents sought identified with reasonable specificity?
Is the order sought unduly burdensome, having in mind what the witness would be required to do, and produce, were the action to be tried in Ontario?
[23] The application of these guideposts is considered below, although not in the order described above.
Is the evidence sought relevant?
[24] Intelsat commenced an action in the USDC for Juch-Tech’s failure to pay more than $30 million for satellite and telecommunication services in accordance with invoices issued by Intelsat pursuant to a Non-Exclusive Service Agreement dated January 7, 2005 (“NESA”) and various Service Contracts issued under the NESA. Juch-Tech denies any liability to pay this claim.
[25] Juch-Tech, in response to Intelsat’s claim, makes the following allegations. Juch-Tech admits that since 2005 it leased satellite capacity from Intelsat on two satellites to provide communication services to its customers. In September 2008, Juch-Tech’s CEO, Walt Juchniewicz, met with several senior managers of Intelsat, including Alicia Schwarz. Arising from that meeting Juch-Tech entered into discussions to acquire a business unit and a Linkstar HUB that provided service to six “good customers” in West Africa in exchange for Juch-Tech acquiring additional satellite capacity from Intelsat. The discussions led to a Non-Disclosure Agreement that was executed by Juch-Tech on November 17, 2008. Juch-Tech states that its personnel including Juchniewicz were diligent in requesting more information from Intelsat regarding the customers to be assigned. Reference is made to an email from Majic to Schwarz requesting information, such as customer contracts. These contracts were not provided until March 12, 2009.
[26] Intelsat and Juch-Tech entered into an agreement in March 27, 2009 for the additional satellite capacity as well as the transfer of customers and the Linkstar HUB. Amongst other things, Juch-Tech alleges that Intelsat misrepresented the status of the assigned customers and revenue streams. It also alleges that Intelsat withheld from them longstanding service problems and customer complaints. Juch-Tech also alleges that Intelsat made several false representations including the representation that it was assigning six “good customers”. Juch-Tech seeks rescission of the Agreement and damages.
[27] Paragraph 15 of Bledsoe’s first affidavit states that Intelsat seeks to examine Majic and Hyde in relation to the following categories of information:
• the fraudulent misrepresentations and omissions allegedly made by Intelsat, including the time, date, facts misrepresented or omitted, and the persons who made and received each such misrepresentation or omission;
• Juch-Tech’s business plans;
• Juch-Tech’s decision to enter into the Agreement;
• invoices from Intelsat and payments made by Juch-Tech under various service orders;
• Juch-Tech’s efforts to rescind any of its agreements with Intelsat;
• the communications between Juch-Tech and Intelsat relating to the Agreement;
• Juch-Tech’s alleged damages;
• Juch-Tech’s finances and the financial documents produced in the U.S. action;
• Juch-Tech’s communications with its customers related to the Agreement.
[28] Majic did not dispute that the evidence sought is relevant to the issue raised by Juch-Tech. In my view, it appears that the evidence sought by Intelsat is relevant to the issues raised by the action.
Are the documents sought identified with reasonable specificity?
[29] Intelsat no longer seeks to have Majic produce any documents related to the Agreement. In any event, Majic states that she does not have any such documents.
Is the evidence sought necessary for trial and will be adduced at trial, if admissible?
[30] While the areas of examination proposed by Intelsat may be relevant to the issues raised by Juch-Tech’s answer to its claim, the question remains whether Majic’s examination is necessary. In other words, has Intelsat demonstrated that Majic is a necessary witness?
[31] Intelsat submits that Majic was a lead participant in the negotiations of the Agreement. This is disputed by Majic.
[32] Paragraph 13 of the first Bledsoe affidavit states:
Juch-Tech is a small, closely-held corporation. The respondents are key witnesses to the events Juch-Tech alleges took place. As one of the lead participants in negotiating the Agreement, Ms. Majic’s testimony concerning the negotiations, and about Juch-Tech’s decision to enter into the Agreement, is important for trial. [emphasis added]
[33] Similarly, at paragraphs 9 and 11 of his first affidavit, Bledsoe further explains why he believes that Majic is a necessary witness:
The Agreement at issue was the subject of negotiation from late 2008 to its execution in March 2009. Ms. Majic was at all times during the negotiation of the Agreement acting as Juch-Tech’s sole in-house counsel and took a significant role in the negotiations. According to the documents and emails related to the negotiation of the Agreement, Ms. Majic participated at almost all stages in negotiating the terms of the Agreement and was involved in several of the conversations in which Juch-Tech now alleges that misrepresentations were made by Intelsat. It is anticipated that Ms. Majic can give evidence regarding whether in fact those representations were made and what weight, if any, Juch-Tech placed upon them. It is further anticipated that Ms. Majic can give evidence as to what due diligence, if any, Juch-Tech conducted to investigate the Agreement prior to its execution.
As part of the U. S. action, Juch-Tech also seeks to rescind the Agreement between it and Intelsat. Of critical importance under relevant United States law to the issue of whether Juch-Tech may rescind the Agreement is whether Juch-Tech later ratified the Agreement through its conduct, and whether Juch-Tech acted promptly to rescind the Agreement upon discovery of the alleged misrepresentations. The respondents [Majic and Hyde] are expected to have knowledge concerning Juch-Tech’s discovery of the alleged misrepresentations and what actions, if any, Juch-Tech took after discovery of the alleged misrepresentations. [emphasis added]
[34] On the other hand, Majic relied upon the Affidavit of Erika Chan, her law clerk, which states that Majic has no documents, no recollection nor any knowledge in relation to the matters for which she is to be examined as her employment with Juch-Tech ended on December 31, 2008 and has provided no services to Juch-Tech since that time. Intelsat objected to this affidavit on the basis that it did not comply with the Rules of Civil Procedure. Rule 4.06(2) provides that an affidavit should be confined to statements of fact within the personal knowledge of the deponent. An affidavit for use on an application may contain statements of the deponent’s information and belief with respect to facts that are not contentious, if the source of the information and the fact of the belief are specified in the affidavit. I agree, and as a result, this affidavit evidence must be disregarded.
[35] However, the Bledsoe affidavits are also flawed.
[36] The first Bledsoe affidavit relies upon unspecified “documents and emails” as the basis for stating that Majic participated in almost all stages of the negotiation of the terms of the Agreement and was involved in several conversations in which alleged misrepresentations were made by Intelsat. These documents were not appended to the Bledsoe affidavits. Further, there appears to be no basis for Bledsoe’s bald assertion that Majic is “expected to have knowledge concerning Juch-Tech’s discovery of the alleged misrepresentations and what actions, if any, Juch-Tech took after discovery of the alleged misrepresentations” especially given that Majic’s employment with Juch-Tech ended on December 31, 2008. If Bledsoe has personal knowledge that Majic participated in negotiations and conversations with Intelsat, or that she has knowledge of the discovery of the alleged misrepresentations and the actions taken by Juch-Tech after such discovery, then he could have easily said so.
[37] From the language that Bledsoe employs in his affidavit, it appears both that he relies upon the information of other persons without stating the source of such information, and that he does not necessarily believe such information himself. Ms. Schwarz and others from Intelsat who participated in these negotiations have personal knowledge of who was involved in the negotiations on behalf of Juch-Tech; however, their affidavit evidence was not provided nor was their information relied upon in the Bledsoe affidavit.
[38] Similarly, I disregard paragraph 6 of the second Bledsoe affidavit, described below, which relates to a contentious matter that is not within his personal knowledge.
[39] Given that the Chan and Bledsoe affidavits violate Rules 4.06(2) and 39.01(5), and given that such violations cannot be cured or waived, then such evidence in relation to contentious matters must be ignored.[^3]
[40] The only other evidence regarding Majic’s involvement in the events surrounding the Agreement is referenced in Juch-Tech’s Second Amended Answer and Counterclaim which states that Majic sent an email on November 12, 2008 to Intelsat requesting detailed information regarding the proposed transaction. In my view, that is a weak basis for finding that Majic has relevant evidence of the breadth suggested by Intelsat and, accordingly, Intelsat has not demonstrated that Majic’s examination is necessary for trial.
Is the evidence not otherwise obtainable?
[41] Whether the evidence is not otherwise obtainable raises the question of whether Majic alone possesses the evidence sought from her.[^4]
[42] Paragraph 6 of the second Bledsoe affidavit states:
To my knowledge, there is no other person who can provide the evidence that Intelsat seeks to obtain from Ms. Majic pursuant to the Letters Rogatory.
[43] However, no basis is given for this bald assertion. No reference is made to the evidence that can be provided by Hyde or Szkarlat according to the materials that Intelsat filed before the USDC.
[44] As noted earlier, Intelsat’s submission to the USDC was that Szkarlat, as the former Chief Operating Officer of Intelsat, has a greater breadth of knowledge than Majic, not just knowledge of Juch-Tech’s decision to enter into the agreement and its due diligence efforts but also knowledge of the negotiation of the Agreement, Juch-Tech’s use of satellite bandwidth and Juch-Tech’s alleged damages.
[45] Bledsoe’s statement is also inconsistent with his first affidavit which he states that Hyde is better suited than Majic to answer certain questions related to financial matters:
The evidence sought is not otherwise obtainable because the respondents engaged in key communications with Intelsat critical to the legal issues in the U.S. action, and possess specialized knowledge relating to the Agreement and to Intelsat’s and Juch-Tech’s allegations. Ms. Majic is anticipated to have knowledge of any due diligence she conducted as Juch-Tech’s in-house counsel to investigate the terms of the Agreement, the importance of Intelsat’s representations to Juch-Tech, and the extent to which Juch-Tech relied on any representations made by Intelsat. Mr. Hyde, as Juch-Tech’s former CFO during the terms of the Agreement, will have the most specific knowledge concerning Juch-Tech’s claimed financial damages and its financial dealings with Intelsat. [emphasis added]
[46] In addition to the above concerns, Intelsat has not explained why it is necessary to enforce the Letters Rogatory against Majic given that: (1) Hyde has agreed to be examined; (2) Intelsat has chosen not enforce the Letters Rogatory against Szkarlat in order to examine him.
[47] In my view, Intelsat has not shown that the evidence that it seeks to obtain from Majic is not otherwise obtainable.
Is the order sought contrary to public policy or inconsistent with the laws of Ontario?
[48] Intelsat submits that is not contrary to public policy or the law in Ontario to examine in-house counsel.
[49] Majic sent the following email to counsel for Intelsat on July 8, 2015:
As I have already advised you, I cannot voluntarily agree to testify against a former client, as doing same would contravene the licence and Rules which govern you and I both as lawyers. That said, I have referred this matter to LawPRO also and am awaiting to hear from them….
[50] Majic relies upon Section 3.3-1 of the Law Society of Upper Canada’s Rules of Professional Conduct which states:
A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless
(a) expressly or impliedly authorized by the client;
(b) required by law or by order of a tribunal of competent jurisdiction to do so;
(c) required to provide the information to the Law Society; or
(d) otherwise permitted by rules 3.3-2 to 3.3-6.
[51] Majic also expresses concern that she may be asked questions which seek information protected by solicitor-client privilege.
[52] I agree with Intelsat that Juch-Tech’s consent to the Letters Rogatory implicitly authorizes Majic to disclose confidential matters and matters protected by solicitor-client privilege. However, given Majic’s professional obligations it is my view that Juch-Tech should have expressly waived any limitations on her answers to any questions at the examination.
Will the order sought be unduly burdensome, having in mind what the witness would be required to do, and produce, were the action to be tried in Ontario?
[53] Intelsat submits that it will conduct the examination in one day at a time and at a location convenient to Majic. It agrees to reimburse Majic for any reasonable costs that she incurs as a result of her attendance at the examination but it will not compensate her for lost income.
[54] Majic contends that she should be compensated for her lost income as a result of the examination, however no case law was provided in support of this proposition. In my opinion section 60 of the Evidence Act does not provide this Court with authority to direct the payment of lost income despite authorizing the Court to “…give all such directions as to the time and place of the examination, and all other matters connected therewith as seem proper”.
Conclusions
[55] In summary I have found that the Letters Rogatory should not be enforced against Majic pursuant to section 60 of the Evidence Act. In my view, the enforcement of the Letters Rogatory at this point would impose an undue burden on her, and thus be prejudicial to “Canadian sovereignty”. Intelsat has not demonstrated that Majic’s evidence is necessary for trial. Further, the evidence that Intelsat seeks from Majic (namely, “knowledge concerning the veracity of Juch-Tech’s allegations”) is obtainable from Hyde and Szkarlat according to Intelsat. This decision is without prejudice to a further application by Intelsat to enforce the Letters Rogatory against Majic if the circumstances, after it has examined Hyde, demonstrate that such Application would satisfy the test described in Lantheus.
[56] Further, if I had granted the Application to enforce the Letters Rogatory against Majic, then I would not have permitted the examination to proceed unless: (1) Juch-Tech or Intelsat retained independent counsel to provide advice to Majic at the examination with respect to what questions she should not answer due to reasons of confidentiality or solicitor-client privilege; or (2) Juch-Tech confirmed in writing to Majic at least 14 days prior to the examination that it authorized Majic to disclose matters protected by solicitor-client privilege or that were otherwise confidential.
[57] Majic seeks her costs of this motion on a substantial indemnity basis in the amount of $8,758.19. In my view, substantial indemnity costs are not justified as Intelsat’s conduct has not been reprehensible. I order that Intelsat pay costs of this motion in the amount of $4,000.00 to Majic forthwith.
Mr. Justice M. D. Faieta
Released: September 16, 2015
COURT FILE NO.: CV-15-53057
DATE: 20150916
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
INTELSAT USA SALES LLC
Applicant
– and –
KENNETH HYDE and SANDRA MAJIC
Respondents
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: September 16, 2015
[^1]: 1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392
[^2]: (2013), 115 O.R. (3d) 161, 2013 ONCA 264
[^3]: Aker Biomarine AS v. KGK Synergize Inc. [2013] O.J. No. 5048, 2013 ONSC 4897, paras. 9-12.
[^4]: Re Presbyterian Church of Sudan 2006 CanLII 32746 (ON CA), [2006] O.J. No. 3822, at para. 41 (C.A.)