Superior Court of Justice - Ontario
RE: Bingham Group Services Corp., Applicant
AND:
Brock Campbell, Respondent
BEFORE: S. F. Dunphy J.
COUNSEL: M. Hassell, for the Applicant
Ex parte
HEARD: April 21, 2016
ENDORSEMENT
1The applicant brought this as an ex parte application seeking an order that the respondent Brock Campbell be examined before trial in Montreal in connection with an action pending before the Quebec Superior Court.
2This application is deficient and is denied without prejudice to the applicant bringing the application back on with further and better materials and upon proper notice to Mr. Campbell. The materials do not demonstrate compliance with any of the conditions set forth in s. 2 of the Interprovincial Summonses Act, R.S.O. 1990, c. I.12. The application does not contain a certificate signed by a judge and there is no evidence that the summons has been accompanied by witness fees. The question of whether a Quebec-issued pre-trial examination summons may be enforced given the lack of compliance with s. 3 and s. 6 of the Interprovincial Summonses Act is a matter than I am expressly not ruling upon without notice to the intended witness and proper argument.
3If the applicant brings this application back for a hearing, it must be on notice. There is no basis to proceed ex parte in this case.
Facts
4The applicant Bingham Group Services Corp. is plaintiff in an action pending before the Superior Court of Quebec in Montreal against Robert Proteau and RP Communications Inc. as defendants.
5The plaintiff is “in the business of creating, marketing and administering insurance products”. The claim alleges, among other things, that the defendants (as former agents/distributors) defamed the plaintiff and unlawfully entered into contractual negotiations with competitors of the plaintiff prior to the termination of their relationship with the plaintiff.
6The respondent on this application is Mr. Brock Campbell – a resident of Ontario. It is alleged that Mr. Cambell and his business “Quest International Marketing Inc.” were one of the alleged competitors who engaged in such pre-termination negotiations with the defendants and may also have information about the allegedly defamatory statements imputed to the defendants. The foregoing is, of course, merely a summary of the Montreal action at the very highest level intended only to place the facts relevant to this application in some context.
7On January 26, 2016, Legris J. of the Quebec Superior Court issued an order authorizing the plaintiff to examine Mr. Brock Campbell before trial and to require him to produce certain documents. The order is silent as to the location of the examination, its timing or the process for securing the attendance of Mr. Campbell. There is nothing on the face of the order to indicate that the Court was even made aware that Mr. Campbell resided outside of Montreal or Quebec. The applicant has filed a copy of the motion before Legris J. on the basis of which the order was obtained. The motion does not mention the residence of Mr. Campbell, although this might have been discoverable by reviewing some of the attachments to the motion.
8On the strength of the authorization granted by Legris J., the plaintiff proceeded to prepare a subpoena dated February 5, 2016 requiring Mr. Brock Campbell to attend to be examined in Montreal on March 16, 2016 at 10:00am. The subpoena was prepared and signed by counsel for the plaintiff. It was not submitted to the Superior Court for signature of a judge. The subpoena was addressed to “Brock Campbell, representative of Quest International Marketing Inc.”
9The affidavit of service of this summons dated February 24, 2016 evidences two unsuccessful attempts at personal service of the subpoena after which the materials were left in a sealed envelope at the door. The affidavit of service does not suggest that attendance money was also left. The affidavit of service also recites an order of the Superior Court dated February 15, 2016 that has not been produced in the materials before me. That may have been a clerical error or there may be an order I have not been made aware of.
10Mr. Campbell did not appear as summoned on March 16, 2016 as the plaintiff’s summons requested.
11The plaintiff then proceeded to prepare a motion for an order requiring the appearance of Mr. Campbell. The attachments to that motion have not been produced before me although the text of the motion has. The motion itself was stamped and endorsed as “approved” by the Registrar of the Superior Court on March 22, 2016. The plaintiff’s motion recites:
That the plaintiff had filed its subpoena with the court;
That the appearance of Mr. Campbell “representative of Quest International Marketing Inc.” and in his capacity as director and sole shareholder of Quest was required pursuant to an order of Legris J. – the materials before me omit the attachment to the motion before the Registrar;
That Mr. Campbell resides in Thornhill, Ontario;
That “the physical presence of the said witness for the examination is necessary to give full effect to the judgment”; and
“It is in the interest of the plaintiff to require the summons of the said witness”.
The plaintiff has issued a second subpoena returnable on April 29, 2016 in Montreal. It has not been approved or signed by a judge.
12The Notice of Application herein was issued April 14, 2016 and scheduled for an urgent hearing ex parte this morning following an attendance before CPC. The relief sought includes an order “receiving and adopting” a subpoena issued by the Superior Court of Quebec compelling the Respondent to attend in Montreal to testify and produce documents or ordering the respondent to comply, alternatively, an order for examination out of court in Ontario and relief from the deemed undertaking rule and anticipatory relief to secure the attendance of the proposed witness at trial.
Issues to be Decided
13This application raises three issues:
a. Ought the applicant to be permitted to proceed with this application ex parte?
b. Has the applicant satisfied the requirements of the Interprovincial Summons Act, R.S.O. 1990, c. I.12?
c. Is there any other basis on which the applicant might be entitled to the relief sought?
Analysis and Discussion
(i) Ought this be heard ex parte?
14The applicant has not served the respondent with the Application Record. The Notice of Application does not give any reason why notice has not been given beyond alleging urgency due to the proposed date of examination of the witness and the claim that “summonses in Ontario are routinely issued on an ex parte basis”.
15That was an unfortunate decision on the part of the applicant. Summonses to witness are routinely issued on an ex parte basis because summonses to witnesses are not issued by a judge or master after a hearing. The rules authorize them to be issued as of right (c.f. Rule 53.04(2) of the Rules of Civil Procedure). This is an application. Absent extraordinary circumstances, this court does not hear motions or applications ex parte. This is case is not one that can or should be heard ex parte.
16The urgency alleged is quite relative. The plaintiff has been seeking the attendance of this witness for several months and selected the April 29 itself as the date for the proposed examination. The plaintiff received the Registrar’s order on March 22 and did not proceed in Ontario until April 14, 2016 and then made the choice of proceeding ex parte. There was adequate time available to deal with these issues on notice – the lack of sufficient time to start this process over before the plaintiff’s own deadline is at least partly a result of choices made by the plaintiff/applicant. I cannot allow time pressures resulting from those choices to preclude a proper inquiry into the matter on notice.
17There are no allegations of attempted service of this application. There is no allegation of anticipated harm that would result from the provision of notice. Even where a hearing is alleged to be a matter of urgency, it is almost always possible to give some notice, even if abbreviated.
18This is not a case for holding hearing an ex parte application and I decline to proceed in that fashion.
19However, since I have reviewed the application materials and concluded that they are on their face deficient, there would be little point in requiring service upon the respondent before making such a finding and giving the applicant an opportunity to address those deficiencies. The most efficient and expeditious way of resolving this matter is to dismiss the application as it presently stands without prejudice to the application being brought back on with notice and on more complete materials. I am not however to be taken as deciding any matter of substance without having heard from the respondent. My description of identified deficiencies is necessarily preliminary and implies no predisposition for or against making an order when the matter is presented again, on notice and allowing for a debate on the merits.
(ii) Compliance with Interprovincial Summonses Act
20Section 2-3 and s. 6 of the Interprovincial Summonses Act provides as follows:
2.(1)A court in Ontario shall receive and adopt as an order of the court a summons issued in another province if,
(a) the summons is accompanied by a certificate signed by a judge of a superior, county or district court of the issuing province and impressed with the seal of that court, signifying that, upon hearing and examining the applicant, the judge is satisfied that the attendance in the issuing province of the person subpoenaed,
(i) is necessary for the due adjudication of the proceeding in which the summons is issued, and
(ii) in relation to the nature and importance of the cause or proceeding, is reasonable and essential to the due administration of justice in that province; and
(b) the summons is accompanied by the witness fees and travelling expenses in accordance with Schedule1.
(2)The certificate to which reference is made in clause (1)(a) may be in the form set out in Schedule 2 or in a form to the like effect.
A court in Ontario shall not receive a summons from another province under section 2 unless the law of that other province has a provision similar to section 6 providing absolute immunity to a person in Ontario who is required to attend as a witness in the other province from all proceedings of the nature set out in section 6 and within the jurisdiction of the Legislature of that other province except only those proceedings grounded on events occurring during or after the required attendance of the person in the other province.
(1) A person required, by a summons adopted by a court outside Ontario, to attend in Ontario before a court, an agency, board or commission, or another person authorized to issue summonses shall be deemed, while within Ontario for the purposes for which the summons was issued, not to have submitted to the jurisdiction of the issuing body or person in Ontario other than as a witness in the proceedings in which the person is summonsed.
21The enforcement of a summons is intended by the legislation to be automatic: the language of s. 2(1) stipulates court “shall receive and adopt” a summons. In order to be entitled to that mandatory enforcement, however, a judge from the requesting jurisdiction must certify the necessity and reasonableness of the attendance and the requesting jurisdiction must offer immunity to the witness summoned similar to that accorded witnesses summoned into Ontario under s. 6.
22I have before me no certificate of a judge of the Quebec Superior Court attesting to any of the matters required by s. 2(1)(a) or (b). The Registrar has endorsed approval of a motion of the plaintiff that carries conclusions at least partly responsive to the requirements of s. 2 of the Interprovincial Summonses Act. However, even if I were to consider that to be a certificate of the matters required, it is not signed by a Judge of the Superior Court but by a Registrar and is not under seal of the Court.
23The plaintiff does not appear to have tendered the conduct money required by s. 2(b) of the Interprovincial Summonses Act in its first attempt to secure the attendance of Mr. Campbell. This last point at least can be remedied as part of any order I might eventually be asked to grant, but serves to highlight the utility of notice since the witness may well have submissions to make as to what travel allowance is appropriate in the circumstances ($60 hotel rooms in Montreal are, for example, rather hard to find).
24My examination of the record demonstrates a number of other deficiencies.
25The only order of a judge that has been obtained – that of Legris J. – does not require Mr. Campbell to attend in his capacity as director and sole shareholder of Quest. He was authorized to be examined in his own right. What difference that makes I cannot say, but the subpoena issued by the plaintiff was other than what Legris J. actually authorized.
26There is no indication that Legris J. had evidence before him from which he could have made any of the determinations required by s. 2 of the Interprovincial Summonses Act. A deep enough dive in the motion materials might have revealed the residence of Mr. Campbell, but the motion itself made no mention of his residence nor of the two criteria of necessity “for the due adjudication of the proceeding in which the summons is issued” or that, having regard to “the nature and importance of the cause or proceeding, [it] is reasonable and essential to the due administration of justice in the province that the summons should be issued”. The requesting judge is required to consider those criteria and make findings. That has not occurred in this case.
27The applicant acknowledges that Quebec is not a jurisdiction with a provision similar to s. 6 of the Interprovincial Summonses Act. As such, s. 3 precludes at least the automatic application of s. 2.
28There was a time when submission to the jurisdiction of another court – even another court in Canada – was a matter to which greater significance attached than is now the case. Canadian courts have a much smoother path to the assertion of jurisdiction over litigants and claims with out-of-province elements since the Supreme Court of Canada issued its decision in Club Resorts Ltd. v. Van Breda, [2012] 1 SCR 572, 2012 SCC 17. Submission to jurisdiction remains a factor, but no is no longer as significant an issue as it once was. Whether that would be a controlling factor in any subsequent application to compel Mr. Campbell’s attendance, be it for purposes of discovery or trial, I cannot say until proper notice is given and argument directed to the point.
29I shall reserve consideration of that question, if needed, should the application return on notice to the proposed witness.
(iii) Other Basis for Relief
30The application before me does not comply with the Interprovincial Summonses Act. It appears that any application out of Quebec will fail to satisfy s. 3 and s. 6. Is there any other basis on which I might entertain it?
31The applicant has cited a variety of rules and principles to establish the principle that this Court has broad equitable jurisdiction to issue the sort of order it requests. That may be so, but the logical starting point for any application seeking to enforce a subpoena issued from the court of another province in Canada is the statute that deals with the precise subject-matter.
32Section 2 of the Interprovincial Summonses Act stipulates the conditions where this court shall enforce a summons issued by a fellow Canadian court - it does not necessarily preclude this court exercising discretion to do so on grounds of comity. The grounds for enforcing a summons issued outside of Canada should not be looser than the grounds applied to one emanating from within. The factors listed in s. 2 are relevant issues to be examined in determining whether discretion exists and, if so, whether it should be exercised as would the practice of Ontario courts that generally seek to accommodate the convenience of the witness ahead of the lawyers when determining the location of an examination: Rule 34.03 of the Rules of Civil Procedure.
Disposition
33I am accordingly dismissing this application without prejudice to it being brought back on with a better record and on notice to the respondent.
S. F. Dunphy J.
Date: April 21, 2016