CITATION: Mancinelli v. Royal Bank of Canada, 2017 ONSC 87

COURT FILE NO.: CV-15-536174

DATE: 20170105

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, LUIGI CARROZZI, MANUEL BASTOS and JACK OLIVEIRA in their capacity as THE TRUSTEES OF THE LABOURERS’ PENSION FUND OF CENTRAL AND EASTERN CANADA, and CHRISTOPHER STAINES

Plaintiffs

– and –

ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BANK OF AMERICA CANADA, BANK OF AMERICA NATIONAL ASSOCIATION, THE BANK OF TOKYO MITSUBISHI UFJ LTD., BANK OF TOKYO-MITSUBISHI UFJ (CANADA), BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., BARCLAYS CAPITAL CANADA INC., BNP PARIBAS GROUP, BNP PARIBAS NORTH AMERICA INC., BNP PARIBAS (CANADA), BNP PARIBAS, CITIGROUP, INC., CITIBANK, N.A., CITIBANK CANADA, CITIGROUP GLOBAL MARKETS CANADA INC., CREDIT SUISSE GROUP AG, CREDIT SUISSE SECURITIES (USA) LLC, CREDIT SUISSE AG, CREDIT SUISSE SECURITIES (CANADA), INC., DEUTSCHE BANK AG, THE GOLDMAN SACHS GROUP, INC., GOLDMAN, SACHS & CO., GOLDMAN SACHS CANADA INC., HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC BANK USA, N.A., HSBC BANK CANADA, JPMORGAN CHASE & CO., J.P.MORGAN BANK CANADA, J.P.MORGAN CANADA, JPMORGAN CHASE BANK NATIONAL ASSOCIATION, MORGAN STANLEY, MORGAN STANLEY CANADA LIMITED, ROYAL BANK OF SCOTLAND GROUP PLC, RBS SECURITIES, INC., ROYAL BANK OF SCOTLAND N.V., ROYAL BANK OF SCOTLAND PLC, SOCIÉTÉ GÉNÉRALE S.A., SOCIÉTÉ GÉNÉRALE (CANADA), SOCIÉTÉ GÉNÉRALE, STANDARD CHARTERED PLC, UBS AG, UBS SECURITIES LLC and UBS BANK (CANADA)

Defendants

Ronald Podolny for the Plaintiffs

Eric R. Hoaken, Ian C. Matthews and Fahad Siddiqui for the Defendant Standard Chartered PLC

Allan Coleman for the Defendants, Royal Bank of Canada and RBC Capital Markets LLC

Aria Laskin for the Defendants, Barclays Bank PLC, Barclays Capital Inc., and Barclays Capital Canada Inc.

Daniel Cohen for the Defendants, The Bank of Tokyo Mitsubishi UFJ Ltd., and Bank of Tokyo-Mitsubishi UFJ (Canada)

Donald B. Houston and Shane C. D’Souza for the Defendants Credit Suisse Group AG, Credit Suisse Securities (USA) LLC, Credit Suisse AG, and Credit Suisse Securities (Canada), Inc.

Subrata Bhattacharjee, Tim Buckley, and Pierre Gemson for the Defendant Deutsche Bank AG

Matthew Milne-Smith and Anisah Hassan for the Defendants Morgan Stanley Canada Limited and Morgan Stanley

Adam D.M. Chisholm and Samantha Gordon for the Defendants Royal Bank of Scotland Group PLC, RBS Securities, Inc., Royal Bank of Scotland N.V., and Royal Bank of Scotland PLC

Chris Hunter for the Defendants Société Générale S.A., Société Générale (Canada), and Société Générale

Proceeding under the Class Proceedings Act, 1992

HEARD: December 20, 2016

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] This is a proposed national class action under Ontario’s Class Proceedings Act, 1992, S.O. 1992, c. 6, and pre-certification, one of the Plaintiffs, Christopher Staines, brought an ex parte application in the United States District Court for the Southern District of New York and obtained a subpoena for the purposes of the Ontario class action to compel non-party discovery from Bloomberg LP, the well-known media enterprise that delivers business and market news, data, and analysis.

[2] This is a motion by the Defendants: (1) Standard Chartered PLC; (2) Credit Suisse AG and Credit Suisse Securities (Canada), Inc.; (3) Morgan Stanley Canada Limited and Morgan Stanley; (4) Royal Bank of Canada and RBC Capital Markets LLC; (5) The Bank of Tokyo Mitsubishi UFJ, Ltd. and Bank of Tokyo-Mitsubishi UFJ (Canada); (6) Société Générale S.A., Société Générale (Canada) and Société Générale; and (7) Deutsche Bank AG. The Moving Defendants request the following relief:

(a) an order directing that the Plaintiffs, before they or their agents or representatives, or any other person acting at the Plaintiffs’ request or on the Plaintiffs’ behalf, take any act or step effecting or in furtherance of the Bloomberg Subpoena, seek and obtain authorization from this Court pursuant to Rules 30.10 and/or 31.10 of the Rules of Civil Procedure;

(b) an order directing that the Plaintiffs, before they or their agents or representatives, or any other person acting at the Plaintiffs’ request or on the Plaintiffs’ behalf, take any step to acquire documents or any other evidence from non-parties through extra-jurisdictional procedures for use in this proceeding, take the following steps:

(i) the provision of notice to all named Defendants of any proposed effort to obtain such documents, or other evidence;

(ii) the obtaining from this Court of the appropriate order(s) under Rules 30.10 and/or 31.10 of the Rules of Civil Procedure; and

(iii) the obtaining of a letter of request issued by this Court seeking the assistance of a foreign court in the enforcement of any order(s) issued by this Court pursuant to (ii) above;

(c) in the alternative to (a), an order declaring that:

(i) any evidence obtained from Bloomberg in connection with or pursuant to the Bloomberg Subpoena is presumed to be inadmissible in this proceeding; and

(ii) any documents produced by Bloomberg in response to the Bloomberg Subpoena are presumed to be inadmissible in this proceeding;

(d) in the alternative to (b), an order declaring that any documents or testimony obtained from third parties by way of compelled third-party production or discovery, other than in accordance with an order or orders issued by this Court pursuant to Rules 30.10 and/or 31.10 of the Rules of Civil Procedure, shall be presumptively inadmissible in this proceeding;

[3] The Moving Defendants’ motion is supported by the Defendants: (1) Barclays Bank PLC, Barclays Capital Inc., and Barclays Capital Canada Inc.; and (2) Royal Bank of Scotland Group PLC, RBS Securities, Inc., Royal Bank of Scotland N.V., and Royal Bank of Scotland PLC.

[4] For the reasons that follow, I grant the Moving Defendants’ motion, and I order that the Plaintiffs: (a) may not take any step in furtherance of the Bloomberg LP subpoena; and, (b) may not take any steps to acquire documents or any other evidence from non-parties through extra-jurisdictional procedures without further order of this court.

B. Factual Background

[5] In an action commenced on September 11, 2015, the Plaintiffs, Joseph S. Mancinelli, Carmen Principato, Douglas Serroul, Luigi Carrozzi, Manuel Bastos, and Jack Oliveira, in their capacity as The Trustees of the Labourers’ Pension Fund of Central and Eastern Canada, and Mr. Staines, sue 16 groups of financial institutions. The Defendants carry on business in Canada, the United States, the United Kingdom, France, Switzerland, Germany, and Japan.

[6] The Defendants are: (1) Royal Bank of Canada, RBC Capital Markets LLC; (2) Bank of America Corporation, Bank of America, N.A., Bank of America Canada, Bank of America National Association; (3) The Bank of Tokyo Mitsubishi UFJ Ltd., Bank of Tokyo-Mitusubishi UFJ (Canada); (4) Barclays Bank PLC, Barclays Capital Inc., Barclays Capital Canada Inc.; (5) BNP Paribas, BNP Paribas (Canada), BNP Paribas Group, BNP Paribas North America Inc.; (6) Citibank, N.A., Citibank Canada, Citigroup Global Markets Canada Inc., Citigroup, Inc.; (7) Credit Suisse Group AG, Credit Suisse Securities (USA) LLC, Credit Suisse AG, Credit Suisse Securities (Canada), Inc.; (8) Deutsche Bank AG; (9) The Goldman Sachs Group, Inc., Goldman, Sachs & Co., Goldman Sachs Canada Inc.; (10) HSBC Holdings PLC, HSBC Bank PLC, HSBC North America Holdings Inc., HSBC Bank USA, N.A., HSBC Bank Canada; (11) J.P. Morgan Canada, JPMorgan Chase Bank National Association, JPMorgan Chase & Co., J.P. Morgan Bank Canada; (12) Morgan Stanley, Morgan Stanley Canada Limited; (13) Royal Bank of Scotland Group PLC, RBS Securities, Inc., Royal Bank of Scotland N.V., Royal Bank of Scotland PLC; (14) Société Générale S.A., Société Générale (Canada), Société Générale; (15) Standard Chartered PLC; and (16) UBS AG, UBS Securities LLC and UBS Bank (Canada).

[7] The Plaintiffs allege that the Defendants conspired with each other to fix prices in the FX Market; that is, the market for foreign exchange instruments. The Plaintiffs allege that the Defendants’ conspiracy affected all manner of FX instruments, including those trading both over-the-counter and on exchanges. The Statement of Claim pleads several causes of action including a statutory right of action for contraventions of Part VI of the Competition Act, R.S.C., 1985, c. C-34, civil conspiracy, and unjust enrichment. The Plaintiffs claim damages of $1 billion.

[8] The Plaintiffs allege that to carry out their conspiracy, the Defendants, through the use of multiple chat rooms at Bloomberg LP with names such as “The Cartel,” “The Bandits’ Club,” and “The Mafia,” communicated directly with each other to coordinate their: (a) fixing of spot prices; (b) controlling or manipulating FX benchmark rates; and (c) exchanging key confidential customer information to trigger client stop loss orders and limit orders.

[9] The Plaintiffs have reached settlements with six groups of defendants: (1) UBS AG, UBS Securities LLC and UBS Bank (Canada); (2) BNP Paribas Group, BNP Paribas North America Inc., BNP Paribas (Canada), and BNP Paribas; and (3) Bank of America Corporation, Bank of America, N.A., Bank of America Canada and Bank of America National Association; (4) The Goldman Sachs Group, Inc., Goldman, Sachs & Co., and Goldman Sachs Canada Inc.; (5) JPMorgan Chase & Co., J.P. Morgan Bank Canada, J.P. Morgan Canada, and JPMorgan Chase Bank National Association; and (6) Citigroup, Inc., Citibank, N.A., Citibank Canada, and Citigroup Global Markets Canada Inc. The balance of the Defendants contest certification.

[10] On September 27, 2016, without notice to the Defendants and without having sought or obtained letters of request from this court, Mr. Staines commenced an ex parte application in the United States District Court for the Southern District of New York seeking an Order pursuant to 28 U.S.C. §1782 (United States Code) to take discovery for use in the Ontario action from Bloomberg LP.

[11] It shall be important to keep in mind that the Plaintiffs were expressly seeking discovery for the purposes of an existing class action in Ontario against multiple groups of Defendants, some of whom were contesting certification and some of whom were challenging the Ontario court’s jurisdiction over them.

[12] Section 1782 of Title 28 of the U.S. Code, which is entitled Assistance To Foreign And International Tribunals And To Litigants Before Such Tribunals, provides as follows:

(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him.

[13] Mr. Staines’ ex parte application in New York stated that he seeks the discovery in good faith and is not attempting to circumvent any procedures or policies of the Ontario court.

[14] The application was supported by the declaration of Daniel E.H. Bach, a member of Siskinds LLP, which is counsel to the Plaintiffs in the Ontario action. In his declaration, Mr. Bach stated that Mr. Staines sought to use discovery obtained from Bloomberg LP to prove his claims in the Ontario action and that Bloomberg LP is not subject to the jurisdiction of the Ontario court. In his declaration, Mr. Bach stated that he is not aware of any rule or policy that would preclude Mr. Staines from submitting evidence obtained in the U.S. pursuant to 28 U.S.C. §1782 to the Ontario court in the Ontario action and that Ontario courts generally welcome the assistance of United States’ courts.

[15] In Mr. Staines’ application under 28 U.S.C. §1782, there was no disclosure that: (a) a judge in Ontario was case managing Mr. Staines’ proposed class action; (b) a case management judge in Ontario is empowered to control the carriage of a proposed class action including having considerable powers under the Rules of Civil Procedure and under the Class Proceedings Act, 1992; (c) Canadian class action procedure has substantial differences from American class action procedure; (d) there is case law in Ontario about the scope of discovery before a proposed class action is certified and, generally speaking, pre-certification discovery is narrow and focused on matters relevant to the criteria for certification; (e) Ontario’s Rules of Civil Procedure expressly address the matter of discovery from non-parties and the procedure in Ontario differs substantially from the procedure in the United States Federal Court about the availability of depositions from non-parties.

[16] Further, in Mr. Staines’ application there was no explanation for the bald statement that Bloomberg LP is not subject to the jurisdiction of the Ontario court. I can take judicial notice that there is a Bloomberg Canada TV station operating in Toronto, Ontario and its relationship with Bloomberg LP is not explained.

[17] In my opinion, Mr. Bach’s declaration was misleading and his declaration to the American court was not full and fair disclosure of the policies and procedures under Ontario’s Rules of Civil Procedure with respect to discovery of non-parties in general and in particular with respect to the discovery of non-parties in the context of a class action that had not yet been certified.

[18] The application was also supported by a Memorandum of Law by Ralph Stone and Susan M. Davies of Stone, Bonner & Rocco LLP. Mr. Stone and Ms. Davies are Mr. Staines’ New York counsel. In the Memorandum of Law, Mr. Stone and Ms. Davies submitted that Mr. Staines met all of the necessary elements to obtain discovery pursuant to 28 U.S.C. §1782 and that all relevant discretionary considerations weighed in favour of granting the application, including the receptivity of the foreign court to U.S. federal court judicial assistance and the absence of an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States. The Memorandum of Law asserted that the Ontario court will not be offended by this Court’s judicial assistance and stated that Canadian courts routinely seek discovery assistance from U.S. courts through letters rogatory or letters of request.

[19] In my opinion, the Memorandum of Law by Mr. Stone and Ms. Davies misleadingly described the policies and procedures under Ontario’s Rules of Civil Procedure with respect to the discovery of non-parties, like Bloomberg LP.

[20] On September 27, 2016, Judge Keenan granted the ex parte application and signed the proposed Order in the form submitted by Mr. Staines. No reasons were given. The Order authorized Mr. Staines to:

… take the discovery identified in his application from Bloomberg LP in accordance with the Federal Rules of Civil Procedure and the Rules of this Court including by: (a) serving on Bloomberg LP a subpoena for production of documents listed at Exhibit J to the Declaration of Daniel E.H. Bach; and (b) serving on Bloomberg LP a subpoena for deposition testimony concerning the authenticity of documents produced in response to the document subpoena.

[21] The next day, the subpoena was issued. It required Bloomberg LP to attend a deposition in New York on November 3, 2016 to give testimony authenticating the documents whose production is compelled by the subpoena.

[22] The subpoena appended a six-page schedule requesting documents that Bloomberg LP is instructed to produce to Mr. Staines, including: (a) all transcripts of Instant Bloomberg LP chats in 12 named chat rooms for the period January 1, 2003 to December 31, 2013; (b) all transcripts of any Instant Bloomberg chat rooms known to Bloomberg LP between January 1, 2003 and December 31, 2013 involving any of 60 named individuals; (c) all transcripts of any Instant Bloomberg chat rooms known to Bloomberg LP between January 1, 2003 and December 31, 2013 involving any employee of any of the 50 Defendants named in the Ontario action where foreign exchange transactions were discussed (if those transcripts have previously been produced or provided by Bloomberg LP in connection with any foreign exchange regulatory investigation or proceeding in the United States or the United Kingdom, or in connection with an ongoing foreign exchange class action in the United States).

[23] On September 28, 2016, counsel for the Plaintiffs in the Ontario action sent an email to counsel for the Defendants advising that Judge Keenan had issued the Order authorizing the subpoena. The email attached the Order and the Bloomberg LP subpoena, and the email advised the Defendants that they were receiving this material as a courtesy.

[24] The Defendants immediately corresponded to object to what they described as the Plaintiffs’ attempt to obtain pre-certification discovery of a non-party. In responding correspondence, counsel for the Plaintiffs took the position that the Moving Defendants’ objections had no basis in Canadian law, but the Plaintiffs’ counsel agreed that the discovery of Bloomberg LP would not proceed until the Ontario court had the opportunity to hear and address the Defendants’ concerns.

[25] In subsequent correspondence, the Moving Defendants advised Plaintiffs’ counsel that they should be given advance notice of future efforts to obtain production or discovery from non-parties, so that they could seek the intervention of the Ontario court. This demand was rejected by the Plaintiffs’ counsel, who responded that no prior notification was required and the Plaintiffs would continue to pursue inquiries and investigations as they felt appropriate.

[26] On November 9, 2016, I was advised of these developments at a case management conference. I indicated that I could not deal with the matter save by a formal motion, and the motion now before the court was scheduled.

[27] The Moving Defendants supported their motion with an affidavit from Jessica Zhi, a law clerk at Lax O’Sullivan Lisus Gottlieb LLP, lawyers for the Defendant Standard Chartered PLC sworn on November 21, 2016. Ms. Zhi was not cross-examined.

[28] The Plaintiffs delivered a Responding Motion Record that included a report dated November 28, 2016, from Dr. Michael Halberstam, a Senior Research Fellow at Columbia Law School entitled: U.S. Legal Proceedings Under 28 U.S.C. §1782 To Obtain Witness Testimony, Documents, Or Other Forms of Evidence In The United States For Use In A Foreign Proceeding. Dr. Halberstam was cross-examined.

[29] Dr. Halberstam testified that the target of a §1782 Order; i.e., in the immediate case, Bloomberg LP, may move to vacate the order and quash the subpoena and or appeal the order. In addition, he said that other persons affected by the order; i.e., in the immediate case, the Moving Defendants, could apply to intervene and they could bring a motion to quash and or to appeal the order made under 28 U.S.C. §1782 to the United States Court of Appeals for the Second Circuit.

[30] In his report, referring to the 2004 decision of the United States Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, Dr. Halberstam delineated the discretionary factors on a §1782 application including: (1) whether the discovery from whom the person is sought is a party to the foreign proceeding; (2) the nature of the foreign tribunal; (3) the character of the proceedings underway abroad, (4) the receptivity of the foreign government or the court or agency abroad to the U.S. federal court judicial assistance; (5) whether the §1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (6) whether the request was unduly intrusive or burdensome.

[31] On cross-examination, Dr. Halberstam was directed to re Microsoft Corporation, 428 F. Supp. 2d. 188 (S.D.N.Y, April 20, 2006), where a subpoena issued pursuant to 28 U.S.C. §1782, had been quashed. In that case, the Court indicated that it had not found a single case where a court has granted a §1782 discovery in the face of express objection by the foreign court with carriage of the underlying proceeding. Dr. Halberstam acknowledged that he was not aware of any authority to the contrary.

[32] During the course of argument of this motion, I was referred to several United States decisions in which applications pursuant to 28 U.S.C. §1782 had been refused because the court where the underlying proceeding was pending expressly declined any assistance from the American court.

C. Discussion and Analysis

1. Introduction

[33] With the exception of one Québec decision, Catucci v. Valeant Pharmaceuticals International Inc., 2016 QCCS 3431, leave to appeal refused 2016 QCCA 1349, discussed below, the case at bar is a case of first instance for Canadian and Ontario jurisprudence.

[34] Therefore, in the discussion and analysis that follows, after describing the arguments of the parties and the law in Ontario about the discovery of non-parties as a matter of class action practice and procedure, I shall explain my decision for ordering that the Plaintiffs may not take any step in to examine non-parties for discovery without further order of this court: first, by analyzing the case at bar as a matter of first instance; and second by analyzing the case at bar jurisprudentially having regard to the Canadian case law, including Catucci v. Valeant Pharmaceuticals International Inc., about 28 U.S.C. §1782, and about the discovery of non-parties.

2. The Arguments of the Parties

[35] The Moving Defendants argue that what the Plaintiffs have done is improper. The Moving Defendants submit that the Plaintiffs chose to litigate in Ontario and are bound to follow the laws and procedures of the Ontario Superior Court and not to circumvent those rules. The Moving Defendants take umbrage over the fact that the Plaintiffs moved without notice to them and they accuse the Plaintiffs of, in effect, duping the American court into thinking that the Superior Court, which had not made orders under rules 30.10 and 31.10 and which had not issued a letter of request (letters rogatory), would welcome the foreign court’s ex parte order. The Moving Defendants submit that the Plaintiffs have disturbed the fair adjudication of class actions by stepping outside the case management regime that governs the carriage of class actions.

[36] In response, the Plaintiffs deny they did anything wrong, and they derisively reject the Moving Defendants’ objections as tactical posturing and delaying access to justice and behaviour modification for their conspiratorial activities. The Plaintiffs submit they were entitled to take advantage of a procedure available to them in the United States, which would allow them to discover facts, the admissibility of which in a Canadian court can and will be determined at some later time. They say that they are just gathering evidence which they are entitled to do. Further, the Plaintiffs submit that the Moving Defendants are challenging the propriety of the Bloomberg LP subpoena and that this is a collateral attack on a United States Court’s Order and that the Defendants should take their complaints to the American court where they could intervene or appeal Judge Keenan’s Order.

[37] Further still, the Plaintiffs argue that what the Moving Defendants are attempting to do is to obtain an anti-suit injunction but that they are unable to satisfy the criteria for this extraordinary and rare equitable remedy. The Plaintiffs submit that: (a) there is no Canadian case law that would preclude them for proceeding as they have; and (b) such case law as there is about the intersection of Canadian civil practice and procedure and 28 U.S.C. §1782 supports what they did as being proper. Indeed, the Plaintiffs submit that proceeding as they have is salutary and advances access to justice and the efficient administration of justice. They submit that the Moving Defendants’ motion should be dismissed.

3. Relevant Procedural Provisions

[38] In order to understand my reasons for ordering that the Plaintiffs may not: (a) take any step in furtherance of the Bloomberg subpoena; and, (b) take any steps to acquire documents or any other evidence from non-parties through extra-jurisdictional procedures without further order of this court, it is necessary to describe the law in Ontario about documentary and oral examinations for discovery from parties and from non-parties. It is necessary to describe this law of civil procedure in the particular context of a class action under the Class Proceedings Act, 1992.

[39] Section 35 of the Class Proceedings Act, 1992 stipulates that the rules of court; i.e., the Rules of Civil Procedure, apply to class proceedings. In class proceedings, the court’s powers pursuant to the Rules of Civil Procedure are supplemented by s. 12 of the Class Proceedings Act, 1992, which states:

12. The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.

[40] In Endean v. British Columbia, 2016 SCC 42, the Supreme Court recently endorsed an interpretation of s. 12 that equips case management judges with “wide” and “broad powers” that can be deployed as “a flexible tool for adapting procedures on a case specific basis” and used to fashion “creative solutions” to issues that arise in the course of a class action.

[41] Generally speaking, the first motion in a contested class action is the certification motion, which is a procedural motion and not the occasion to determine the merits of the plaintiff’s case. In class actions in Ontario, courts limit or restrict pre-certification discovery and require the production of documents and examinations to be focused on the criteria for certification. The law in Ontario is that pre-certification, there should be a focused and limited production of those documents that are shown to be relevant to the issues on certification. The law in Ontario for pre-certification discovery is that the onus is on the party seeking documents for the certification motion to explain why the requested documents are relevant to the issues on certification: Brown v. Janssen Inc., 2015 ONSC 1434, Dine v. Biomet Inc. 2015 ONSC 1911, and Batten v. Boehringer Ingelheim (Canada) Ltd, 2015 ONSC 7821. Pre-certification discovery is only available where the moving party shows that the discovery is necessary to inform the certification process: Tetefsky v. General Motors Corp., 2010 ONSC 1675, affd [2011] O.J. No. 1390 (C.A.).

[42] Under the Rules of Civil Procedure, documentary and oral discovery follows the close of pleadings. In class actions, documentary and oral discovery follow the certification of the action as a class proceeding.

[43] Rules 30.10 and 31.10 of the Rules of Civil Procedure prescribe the process for obtaining production of documents and discovery evidence from non-parties to an Ontario proceeding:

PRODUCTION FROM NON-PARTIES WITH LEAVE

Order for Inspection

30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

Notice of Motion

(2) A motion for an order under subrule (1) shall be made on notice,

(a) to every other party; and

(b) to the person not a party, served personally or by an alternative to personal service under rule 16.03.

Court may Inspect Document

(3) Where privilege is claimed for a document referred to in subrule (1), or where the court is uncertain of the relevance of or necessity for discovery of the document, the court may inspect the document to determine the issue.

Preparation of Certified Copy

(4) The court may give directions respecting the preparation of a certified copy of a document referred to in subrule (1) and the certified copy may be used for all purposes in place of the original.

Cost of Producing Document

(5) The moving party is responsible for the reasonable cost incurred or to be incurred by the person not a party to produce a document referred to in subrule (1), unless the court orders otherwise.

DISCOVERY OF NON-PARTIES WITH LEAVE

General

31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.

Test for Granting Leave

(2) An order under subrule (1) shall not be made unless the court is satisfied that,

(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;

(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

(c) the examination will not,

(i) unduly delay the commencement of the trial of the action,

(ii) entail unreasonable expense for other parties, or

(iii) result in unfairness to the person the moving party seeks to examine.

Costs Consequences for Examining Party

(3) A party who examines a person orally under this rule shall serve every party who attended or was represented on the examination with the transcript free of charge, unless the court orders otherwise.

(4) The examining party is not entitled to recover the costs of the examination from another party unless the court expressly orders otherwise.

Limitation on Use at Trial

(5) The evidence of a person examined under this rule may not be read into evidence at trial under subrule 31.11 (1).

[44] An order for discovery of a non-party is an exceptional order that is predicated on the principle that non-parties are not to be subject to the discovery unless the criteria of the Rules of Civil Procedure have been satisfied: Reichmann v. Vered, [1998] O.J. No. 3751 (C.A.) at para. 8; Kerr v. McLeod, [2002] O.J. No. 788 (Div. Ct.) at para. 2.

[45] The rule for the production of documents from a non-party requires that the information sought is relevant to a “material issue” in the action. This test of relevancy is higher than the “any matter in issue” standard for obtaining production from a party to the action: Lowe v. Motolanez (1996), 1996 37 (ON CA), 30 O.R. (3d) 408 (C.A.) at p. 413; Tribax Management Ltd. v. Laswind Investment Ltd., [2006] O.J. No. 3439 (S.C.J.) at para. 5.

[46] The case law establishes that the disclosure and production of a document from a non-party is a matter of fairness and necessity. The court determines whether it would be unfair to require the moving party to proceed to trial without a document in the possession of a non-party, and balances that against the interests of the non-party, which include concerns about privacy, inconvenience, and exposure to liability: Lowe v. Motolanez, supra; Tetefsky v. General Motors Corp., supra at paras. 41-42; Fairview Donut Inc. v. TDL Group Corp., 2011 ONSC 247 at paras. 10-11. Although production can be ordered from a non-party, it is not routinely sought and the threshold for granting it is high: Olendzki v. W.A. Baker Trucking Ltd., [2006] O.J. No. 256 (S.C.J.). An order under rule 30.10 should not be made as a matter of course and should only be made in exceptional circumstances: Morse Shoe (Canada) Ltd. v. Zellers Inc., 1997 1573 (ON CA), [1997] O.J. No. 1524 (C.A.) at para. 19.

[47] In making the determination whether to permit third party discovery of documents, the court may consider the following factors: (1) the importance of the document to the issues in the litigation; (2) whether production at the discovery stage as opposed to production at trial is necessary to avoid unfairness to the moving party; (3) whether the examination of the opposing party with respect to the issues to which the documents are relevant would be adequate to obtain the information in the document; (4) the availability of the document or its information from another source that is accessible to the moving party; (5) the relationship of the non-party from whom production is sought to the litigation and the parties to the litigation; and (6) the position of the non-party with respect to production: Morse Shoe (Canada) Ltd. v. Zellers Inc., supra; Ontario (Attorney General) v. Ballard Estate (1994), 26 O.R. (3d) 189 (C.A.); McGillivary v. Toronto Police Services Board, 2014 ONSC 865 (Master); Durling v. Sunrise Propane Energy Group Inc., [2008] O.J. No. 5031 (Master); Chiarella v. Simon, [2007] O.J. No. 8 (S.C.J.); Colville-Reeves v. Gray, [2003] O.J. No. 1304 (Master); Boucher (Litigation Guardian of) v. Charles, 2013 ONSC 3120 (Master).

[48] The test under rule 31.10 for the examination of a non-party involves four components, all of which must be established for there to be an examination of a non-party; namely: (1) there is reason to believe that the non-party has information relevant to a material issue; (2) the examining party has been unable to obtain the information from the examined party or from the non-party; (3) it would be unfair to the examining party to proceed to trial without the examination of the non-party; and (4) the examination will not unduly delay the commencement of the trial of the action, entail unreasonable expense for other parties, or result in unfairness to the person the moving party seeks to examine: Rothwell v. Raes, [1986] O.J. No. 2495 (Div. Ct.); Famous Players Development Corp. v. Central Capital Corp. (1991), 1991 7202 (ON SC), 6 O.R. (3d) 765 (Div. Ct.); Din v. Melady, 2010 ONSC 4865 (Master); McDermid Paper Converters Ltd. v. McDermid, 2010 ONSC 5404; Manga Hotels (Toronto) Inc. v. GE Canada Equipment Financing G.P., 2014 ONSC 2699. To satisfy the test under rule 31.10, the party requesting an order to examine a non-party for discovery must show that the party who was examined for discovery refused or constructively refused to provide the information sought from the non-party: Famous Players Development Corp. v. Central Capital Corp., supra.

[49] Rule 34.07 of the Rules of Civil Procedure governs where a person to be examined resides outside Ontario. Rule 34.07 states:

Contents of Order for Examination

34.07 (1) Where the person to be examined resides outside Ontario, the court may determine,

(a) whether the examination is to take place in or outside Ontario;

(b) the time and place of the examination;

(c) the minimum notice period;

(d) the person before whom the examination is to be conducted;

(e) the amount of attendance money to be paid to the person to be examined; and

(f) any other matter respecting the holding of the examination.

Commission and Letter of Request

(2) Where the person is to be examined outside Ontario, the order under subrule (1) shall be in Form 34E and shall, if the moving party requests it, provide for the issuing of,

(a) a commission (Form 34C) authorizing the taking of evidence before a named commissioner; and

(b) a letter of request (Form 34D) directed to the judicial authorities of the jurisdiction in which the person is to be found, requesting the issuing of such process as is necessary to compel the person to attend and be examined before the commissioner.

(3) The commission and letter of request shall be prepared and issued by the registrar.

4. Analysis: First Instance and First Principles

[50] As a matter of first principles, I agree with the Moving Defendants that what the Plaintiffs did was improper from the perspective of class action procedure in Ontario. I need not decide whether the Plaintiffs duped the American court into granting a subpoena, and I need not decide whether based on the evidence before him and American jurisprudence, Justice Keenan came to a correct decision in applying an American law that I agree makes a very helpful contribution to the administration of justice around world. What I need to decide and do decide is that the Plaintiffs circumvented the rules that govern discovery of non-parties in class actions in Ontario.

[51] The Plaintiffs brought a class action in an Ontario court that has rules and jurisprudence about the discovery of non-parties, and instead of following those rules, they circumvented them by seeking the discovery of a non-party by other means. The Plaintiffs submitted that they were not circumventing the rules and rather were just gathering evidence for their Ontario class action and in this regard, they say that they were entitled to avail themselves of 28 U.S.C. §1782. This submission is wrong for a least four reasons.

[52] First, the Plaintiffs were not just gathering evidence. While gathering evidence is an aspect of discovery, discovery is the compelled disclosure of evidence, and it is the compelled disclosure of evidence that is governed by Ontario’s Rules of Civil Procedure. Mr. Staines expressly asked the American court for discovery for the purposes of the Ontario action. He was not just gathering evidence, he was seeking to compel Bloomberg LP, a non-party, to provide the evidence, which it may or may not have been willing or able to provide voluntarily. There is no property in a witness, and the Plaintiffs were entitled to ask Bloomberg LP for evidence, but the Plaintiffs did not pursue that route; rather, they sought compelled discovery from Bloomberg LP and compelled discovery is strictly regulated by the Rules of Civil Procedure.

[53] Second, the Plaintiffs were circumventing Ontario’s policy about compelled discovery for both parties and non-parties. In class actions, discoveries begin after the action has been certified and the common issues determined. As for the discovery of non-parties, the Plaintiffs were circumventing rules 30.10 and 31.10, discussed above, by compelling the disclosure of evidence from a non-party in a manner that did not comply with and that circumvented the provisions of those rules.

[54] Third, even if the provisions of rules 30.10 and 31.10 could have been satisfied in the immediate case, which is far from certain, the Plaintiffs circumvented the jurisprudence about class action procedure. Under class action procedure, the availability and the use of evidence, compelled or otherwise, that goes to the merits of the plaintiff’s claim pre-certification is strictly limited and temporarily regulated. This is not a small matter in the theory and methodology of class actions; a great deal of byzantine argument has been made and jurisprudential blood spilt over the battleground of the gatekeeping role and scope of the certification motion and about when the merits, as opposed to the procedure, of a class action should be the focus of the parties’ and the court’s attention. The Plaintiffs circumvented this class action jurisprudence.

[55] Fourth, if it were the case that the Ontario court is or ought to be indifferent to a litigant availing himself or herself of the resources of 28 U.S.C. §1782 and thereby circumventing Ontario’s policies and procedures about compelled discovery from non-parties and its policies about when discovery occurs in a class action, then that indifference would presuppose that the litigant accurately disclosed to the American court the law in Ontario, which is what the American court would expect. That candid disclosure did not occur in the case at bar.

[56] In the case at bar, the American court should have been told: (a) that Ontario’s class actions are case managed by judges empowered to control the carriage of the action; (b) that the scope and availability of discovery in Ontario changes as the class action proceeds through discrete phases pre- and post-certification; (c) that Ontario’s Rules of Civil Procedure expressly address the matter of discovery from non-parties; and, (d) that the procedure in Ontario for pre-trial discovery differs substantially from the procedure in the United States about the availability of depositions from non-parties

[57] The truth of the matter is not that Ontario courts are generally receptive or generally non-receptive to the assistance of United States courts; the truth of the matter is far more nuanced, and while Canadian courts will always be appreciative of the assistance of American courts, they will only sometimes welcome it depending on the circumstances of each particular case.

[58] As a matter of first principles, what the Plaintiffs did in the case at bar was not compliant with the Rules of Civil Procedure and this court has the jurisdiction to do something about the non-compliance. In my opinion, what happened in the United States ought not to have occurred. It is not unreasonable or unfair for the Defendants to expect that the Plaintiffs would and should abide by the Rules of Civil Procedure.

[59] It is not to allow a collateral attack on the Order made by Judge Keenan to require that a Plaintiff in an Ontario action not circumvent the practices, procedures, and policies in Ontario that make discovery – compelled evidence – from a third party a rare and circumscribed occurrence. The Defendants do not have to meet the standard of injunction jurisprudence or anti-suit injunction jurisprudence to require the Plaintiffs to follow the rules of court.

[60] In saying that what occurred ought not to have occurred, I am not offended by the American court having made its Order, and I would thank it for making its assistance available; but the case at bar is a thanks-but-no-thanks situation until after this court has had an opportunity to consider whether it wishes to seek the American court’s assistance, which it may yet do.

[61] In saying that what occurred ought not to have occurred, I am also not being solicitous or sympathetic to the position of the Defendants who are being sued for $1 billion with liability yet to be determined. Regardless of the outcome of this litigation, all parties are entitled to due process in accordance with the Rules of Civil Procedure and with the jurisprudence established for the regulation of class actions in Ontario.

5. The Canadian Case Law about the Intersection of 28 U.S.C. §1782 and the Rules of Court

Introduction

[62] Approaching this matter jurisprudentially; i.e., based on precedent, both sides argue that the Canadian case law that has discussed 28 U.S.C. §1782 supports their position.

[63] The parties referred me to: (a) Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., 2001 28239 (ON SC), [2001] O.J. No. 237 (S.C.J.), aff’d 2002 63927 (ON SCDC), [2002] O.J. No. 1400 (Div. Ct.), aff’d 2003 30349 (ON CA), [2003] O.J. No. 868 (C.A.), leave to appeal to the S.C.C. refused [2003] S.C.C.A. No. 245 (b) CC Chemicals Limited v. Sternson Limited, 1981 4546 (FCA), [1982] 1 F.C. 350 (C.A.) reversing 1980 4182 (FC), [1981] 1 F.C. 541 (Fed. Ct.); (c) Penty v. Law Society of British Columbia, 1999 BCCA 630; (d) Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2016 BCSC 378; and (e) Catucci v. Valeant Pharmaceuticals International Inc., 2016 QCCS 3431, leave to appeal refused 2016 QCCA 1349. My own research revealed a second decision in Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2016 BCSC 1713.

[64] As a matter of precedent, the two significant cases are Catucci v. Valeant Pharmaceuticals International Inc., supra and Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., supra.

[65] The Catucci case is directly on point to the issues of the case at bar. As for the Vitapharm case, it discusses a Canadian litigant’s resort to 28 U.S.C. §1782, but as I shall explain, the circumstances of Vitapharm were different than the circumstances in the case at bar and Vitapharm does not deal with compliance with Ontario’s rules about the discovery of non-parties.

(a) Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd

[66] In Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., supra, the plaintiffs in seven not yet certified Ontario class actions sued groups of corporations for allegedly fixing the prices of vitamins. Some of the defendants in Ontario were also defendants in ongoing anti-trust litigation in the United States. The documentary and oral discoveries and depositions in the United States were massive with over two million documents and hundreds of party and non-party depositions anticipated. The fruit of the United States’ discoveries were governed by a Protective Order about the confidentiality and the use that could be made of the documents outside of the anti-trust litigation. The plaintiffs in two of the Ontario actions moved pursuant to 28 U.S.C. §1782 to intervene in the anti-trust litigation to obtain the discovery evidence given by the defendants in those United States proceedings. However, some of the defendants in the Ontario action moved to have the plaintiffs discontinue their motion before the American court.

[67] Justice Cumming, who was case managing the Ontario actions, regarded the motion before him as a matter of first impression. He concluded that while he had the jurisdiction to grant the relief requested, he would not exercise that jurisdiction and he dismissed the defendants’ motion. On the jurisdictional point, Justice Cumming stated that court had jurisdiction to deal with the defendants' motion under s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 12 of the Class Proceedings Act, 1992, and more generally it had a plenary jurisdiction to control its own process. He noted that since the court had the jurisdiction to issue an anti-suit injunction, it necessarily had the power to take the lesser step of controlling its own process. (For reasons that will become apparent below, it is important to note that Justice Cumming did not apply the test for granting or refusing an interlocutory injunction in deciding not to make an order in the case before him.)

[68] Justice Cumming addressed whether the Ontario court had a role in the determination by the American court of whether to grant the Canadian litigants access to the ongoing discovery documents and depositions in the United States, and it was in this context that he discussed 28 U.S.C. §1782. Justice Cumming noted that §1782 provided two routes for a Canadian litigant seeking discovery of testimony or documents in the United States in aid of their Canadian litigation. First, the Canadian litigant might obtain letters rogatory and then move in the appropriate U.S. Federal District Court for an order compelling discovery. Second, the Canadian litigant could apply directly to the appropriate U.S. Federal District Court for an order compelling discovery.

[69] The Ontario court obviously had a role to play in the first route described by Justice Cumming, and as I read his decision, he concluded that the Ontario court might also have a role to play if the litigant applied directly to the American court. I say this because: (a) Justice Cumming decided that the Ontario court had the jurisdiction to control what its litigants did extra-territorially; (b) he said that United States' courts had made it clear that they welcomed foreign courts' comments on the propriety of cross-border motions by foreign litigants seeking U.S. discovery; and (c) he said United States courts had taken the position that they should have regard to the foreign country’s laws that addressed evidence gathering and should not countenance the use of U.S. discovery procedures to evade the limitations placed on domestic pre-trial disclosure by foreign tribunals. Further, Justice Cumming noted that English judges had noted the United States courts' invitation to foreign courts to provide guidance and English courts had observed that the domestic court will always be in the best position to both describe and act upon its own discovery practice and the question of whether the proposed U.S. discovery is appropriate in the context of those proceedings. All this suggests to me that Justice Cumming decided that the Ontario court had a role to play when a litigant sought resort to 28 U.S.C. §1782.

[70] Justice Cumming went on to consider whether the Ontario court should require the plaintiffs to discontinue and withdraw the U.S. motion, and, as already noted above, he decided that although the court had the jurisdiction to make this order, he would not make it. He stated at paragraphs 48-51:

48. The plaintiffs' U.S. Motion prima facie has the purpose of saving considerable time and money in the Canadian proceedings. If successful in gaining access to U.S. discovery in the U.S. Litigation, the plaintiffs can determine earlier and with greater certainty the nature and extent of the precise evidence available that is relevant to the Canadian proceedings. To deny access to the pre-sent U.S. discovery could conceivably mean that the plaintiffs over time would have to pursue separately s. 1782 orders in respect of the corporate Niacin defendants in the U.S. Litigation. At the least, success in obtaining access to the present U.S. discovery means that the plaintiffs can much more easily determine and discard what is not relevant for the purpose of the Canadian proceedings.

49. The plaintiffs' action in seeking access to the U.S. discovery is not oppressive or unfair to the defendants in the Canadian proceedings. To the contrary. Such access is consistent with the three policy objectives underlying the CPA - facilitating access to justice, judicial efficiency and behaviour modification. In particular, there will be significant savings in litigation costs through such access.

50. The plaintiffs' request for access to discovery evidence which they believe necessary to prepare their case in Canada, a request made through means lawful in the United States, does not violate the rules and procedure of this court. There is no consequential unfairness to the defendants in the Canadian class proceedings.

51. Therefore, in my view, this court should not require the plaintiffs to discontinue and withdraw the U.S. Motion.

[71] With this background to Justice Cumming’s decision and returning to the case at bar, the Plaintiffs submit that Justice Cumming’s decision in Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., supports their various arguments. However, in my opinion, it does not.

[72] Rather, Justice Cumming’s decision supports the Moving Defendants’ arguments that the court in Ontario has the jurisdiction to grant the relief they request and that the Ontario court has a role to play and an interest in regulating the proceedings in Ontario regardless of what route a plaintiff may take to obtain the assistance of the American court pursuant to 28 U.S.C. §1782.

[73] I appreciate that in the result, Justice Cumming did not grant the relief requested by the Defendants, and I do not doubt the correctness of his decision that there was no breach of the Rules of Civil Procedure; however, Justice Cumming was considering the unique circumstance of a defendant who was subject to discovery both in Canada and in the United States and all this was independent of 28 U.S.C. §1782, which rather provided a means to efficiently connect the work being done on both sides of the border.

[74] In any event, the points remains that Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd. does not address the particular matter of the discovery of non-parties but does support the argument that the Ontario court has the jurisdiction and a role to play when a litigant seeks to resort to 28 U.S.C. §1782.

[75] Returning to the judicial history of Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., after Justice Cumming’s decision, Justice Then granted the defendants leave to appeal to the Divisional Court.

[76] (A review of the Divisional Court’s decision reveals that while the appeal was pending in the United States, Judge Hogan had postponed ruling on 28 U.S.C. §1782, because he wanted to hear from the Canadian appellate courts. Judge Hogan stated that the Canadian appellate opinions were likely to provide valuable guidance to the American court in making its determination. I pause here to parenthetically note that Judge Hogan’s actions support the Defendants’ arguments in the immediate case that Judge Keenan might have likewise welcomed better advice than he got about the law in Ontario.)

[77] Justice Cumming’s decision was affirmed by the Divisional Court. The main judgment was written by Justice Matlow, with Justice Roy concurring. Justice Farley wrote a separate judgment.

[78] Justice Matlow dismissed the appeal from Justice Cumming’s decision on the basis that there is a distinction between seeking discovery and seeking the fruits of the discovery and that the plaintiffs were seeking only the fruits, which were available from the American court. On this basis, Justice Matlow disagreed with the defendants’ submission in Vitapharm that there was any circumventing of the discovery process in Ontario. Justice Matlow’s discussion about a Canadian’s litigant resort to 28 U.S.C. §1782 for discovery in Ontario is found in paragraphs 8-14 of his decision, which begins with the statements that it is trite that only the Ontario court has jurisdiction to control its own process and it would be beyond belief that a U.S. court would purport to assume jurisdiction over an action pending in Ontario; Justice Matlow stated:

8. It would be beyond belief that a foreign court would purport to assume jurisdiction over an action pending in Ontario and even contemplate granting interlocutory relief for discovery. It is trite to assert that only this Court has jurisdiction to control its own process.

9. All that could reasonably be sought from the U.S. court presided over by Judge Hogan by the respondents, and perhaps granted, would be assistance to further their investigations and provide evidence that might be of assistance to advance their claims in the pending litigation here. If relevant evidence could be obtained by them by that means, that evidence would still be subject to the control of this Court with respect to its admissibility.

10. It follows, therefore, that the U.S. motions should be governed by the applicable U.S. law in a U.S. court. Whether to entertain the motions or grant any relief are matters entirely for that court to determine.

11. I appreciate and adopt the following laudable principle of judicial cooperation set out by Cumming, J. in paragraph 27 of his Reasons For Decision:

If both societies are to maximize the benefits of expanding free trade and open markets, the legal systems of both countries must recognize and facilitate an expeditious, fair and efficient regime for the resolution of litigation that arises from disputes in either one or both countries.

12. However, judicial cooperation cannot extend to surrendering or adopting jurisdiction without a proper basis. It would be unseemly for a court in one country to purport to assume jurisdiction over proceedings pending in a court of the other country and I do not construe the observation of Cumming, J. to support such an approach.

13. It follows, therefore, that even if the respondents had sought the intervention of the U.S. court in the litigation pending here, it would not be necessary to grant injunctive relief prior to the hearing of the motions. It would be preferable, in my view, to await the decision of the U.S. court.

14. The jurisdiction of this Court to enjoin litigants from seeking relief from a foreign court for relief that is available only in that foreign jurisdiction is, with respect, doubtful and should await determination in another case if the issue should squarely arise.

[79] It appears that Justice Matlow viewed 28 U.S.C. §1782 as providing something entirely different than discovery in or for the Ontario action. He felt that discovery in an Ontario action was a matter to be controlled solely by the Ontario court. Thus, Justice Matlow’s observations do not support the Plaintiffs’ arguments in the immediate case where they are to be taken at their word that they are seeking the discovery of a non-party for the purposes of the Ontario action. Justice Matlow’s view is that Ontario discovery was something exclusively governed by the Ontario court.

[80] Justice Farley in his separate decision had a different analysis than Justices Matlow and Roy. As noted above, Justice Matlow had relied on a difference in kind distinction between Ontario discovery and the fruits of American discovery, but Justice Farley drew a difference in degree distinction, and he drew a distinction between active and passive discovery, and he concluded that the plaintiffs’ request for passive discovery was unobjectionable but a request for active discovery would be contrary to and a circumvention of Ontario law. Thus, Justice Farley paid attention to the difference between evidence gathering and compelled disclosure of evidence, and he noted that the defendants were being examined for the purposes of the United States anti-trust proceedings as if the Canadian proceedings did not exist. Thus, he stated at paragraphs 24 and 28-30 of the decision:

24. To my view the question for this Canadian court is whether the Canadian plaintiffs (if permitted by Judge Hogan) will be accessing this discovery evidence in the passive sense of merely looking at that which has been produced in the ordinary course in the U.S. Litigation but not in the active sense of asking U.S. counsel to pursue avenues (which U.S. counsel would not have otherwise travelled) for the purpose of assisting the Canadian plaintiffs. If they were to proceed in the active sense, then in substance and effect, the Canadian plaintiffs would be engaging in discovery prior to the time that they are entitled to under our Rules and in a way which would be a breach of those Rules.

25. If the Canadian plaintiffs have access to discovery in the passive sense, then they are merely evidence gathering as opposed to engaging in discovery of the Canadian defendants or non-parties. There is no compulsory disclosure thereby in the sense that someone is being coerced to provide material to the Canadian plaintiffs which is not already required solely for the U.S. Litigation. Further there will be no intrusion into the privacy of these persons since they will not be subjected to any further questioning or document production than they would have been already been required to do even if there were no Canadian proceedings. …. Further the defence position that the Canadian plaintiffs are trying to end run our rule dealing with letters rogatory is untenable in an access to discovery passive sense situation; they are not able to use the coercive power of the court to compel answers and production in that sense but they are able to inspect what would otherwise be the U.S. public record.

26. Notwithstanding that the Canadian plaintiffs may have employed some loose language which could be interpreted as their having requested Judge Hogan to allow them to discover the U.S. defendants (as opposed to having access to that which has already been discovered), it appears clear to me that they in fact are asking him that the U.S. Protective Order be relaxed to allow them to review that which has otherwise been discovered in the ordinary course of the U.S. Litigation (as if the Canadian proceedings did not exist). On that basis, I would dismiss the appeal of the Canadian defendants and their request that the Canadian plaintiffs be enjoined from proceeding with their U.S. Motion.

27. If the Canadian plaintiffs were in fact asking that they be permitted to directly or indirectly engage in discovery in the active sense, then I would have come to an opposite conclusion. Simply put, that request would not be mere evidence gathering but the use of the coercive power to require discovery answer and production of documents which would infringe the privacy rights as discussed in Stavro and Goodman v. Rossi. That would be an end run around our Rules 30, 31 and 36 as discussed above. In the end result I am of the view that the appeal of the defendants should be dismissed on the basis that the Canadian plaintiffs are only seeking access to discovery material which would exist independently of (a) the Canadian proceedings and (b) the Canadian plaintiffs and their counsel.

[81] Justice Farley’s approach does not support the Plaintiffs’ arguments in the immediate case. Justice Farley stated that if he had concluded that the Plaintiffs were seeking active discovery akin to what would have been available to them in Ontario, then he would have enjoined them from proceeding with their U.S. motion.

[82] For my part and returning to the immediate case, it is not necessary to draw apples and oranges distinctions like Justice Matlow or small apples and large apples distinctions like Justice Farley, to reach the decision that the Plaintiffs should be restrained from proceeding in the United States. Taking Mr. Staines at his word, he is seeking discovery from a non-party for the purposes of the Ontario action, and it is evident that he is seeking discovery of a non-party in a manner inconsistent from how a party to an Ontario action obtains discovery from a non-party.

[83] Returning again to Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., the decision of the Divisional Court was appealed. In a short seven-paragraph endorsement, the Court of Appeal dismissed the further appeal of Justice Cumming’s decision. The heart of the Court of Appeal’s decision is found in paragraphs 2 - 4 of the endorsement, where the Court stated:

2. These brief reasons are designed to address particular concerns raised by the appellants in their argument. They should be read in conjunction with the reasons of Cumming J., with which we substantially agree.

3. In our assessment, the facts and circumstances of this case do not give rise to comity concern, nor are there any overriding policy or fairness issues that would warrant the injunctive or declaratory relief sought by the appellants.

4. Properly characterized, the respondents are attempting to gather evidence in a foreign jurisdiction in accordance with the rules of that jurisdiction. The appellants challenge that characterization. They submit that the respondents are not "evidence-gathering" but are instead attempting to obtain, prior to certification, discovery of evidence given under compulsion of the United States discovery rules. The fallacy in this demarcation between the permissible and the impermissible is revealed by considering the circumstance if there was no protective order. Then the productions would be freely available and no complaint could be made if the respondents sought them out. Yet, they would have been produced under compulsion. So, compulsion cannot be the hallmark of improper conduct.

[84] As appears, the Court of Appeal essentially adopted Justice Cumming’s approach to the matter of the matter of obtaining evidence from a party already under the compulsion of American discovery rules. The Court of Appeal noted that the compulsion of the defendants to give evidence was not a factor in the analysis because the defendants were already subject to compulsion discovery in both Canada and the United States. In other words, 28 U.S.C. §1782 was not being used to compel discovery but rather was being used as a means to efficiently connect the forensic work already being compelled on both sides of the border.

[85] To conclude this discussion of the various decisions in Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., I find nothing in the decisions that stands in the way of the order in the immediate case that the Plaintiffs may not take any step in furtherance of the Bloomberg LP subpoena without further order of this court. On close reading all of the decisions support the argument that the Ontario court can and should in the circumstances of the immediate case control the examination for discovery of non-parties in an Ontario class action.

(b) CC Chemicals Limited v. Sternson Limited

[86] CC Chemicals Limited v. Sternson Limited, supra, was a patent infringement action in the Federal Court. In this case, CC Chemicals, a Canadian company, owned the patent of an invention originally patented by the inventor, one Solomon J. Rehmar, of Cleveland, Ohio, United States of America. CC Chemicals alleged that Sternson Limited had infringed the patent. In its defence, Sternson delivered a defence and denied the validity of the patent. The action proceeded to discovery, and Sternson wished to examine Mr. Rehmar Mr. Rehmar was a non-party; however, Federal Court Rule 465(5) provided that the assignor of a patent of invention may be examined for discovery by any adverse party. However, Mr. Rehmar was not a Canadian resident, and CC Chemicals took the position that for Mr. Rehmar to be examined, the adverse party Sternson Limited needed to obtain an order for commission evidence with a letter of request to the American court. Sternson Limited, however, disagreed, and it initiated a unilateral application pursuant to 28 U.S.C. §1782 for an order directing the issuance of a subpoena commanding Mr. Rehmar to attend and submit to a discovery in the Canadian patent infringement action before the Canadian Federal Court. CC Chemicals moved in Canada to stop Sternson Limited’s resort to 28 U.S.C. §1782.

[87] In a kind of “Catch 22” decision, Justice Cattanach granted CC Chemicals’ request and enjoined Sternson Limited from resorting to 28 U.S.C. §1782. Justice Cattanach held that it was improper for Sternson Limited to apply to the American court without first seeking to obtain relief under Rule 465(5), although he also held that the rule would not apply for non-residents like Mr. Rehmar because the Canadian court would have no means to enforce compliance with its order. The Federal Court of Appeal reversed Justice Cattanach’s decision. The Court of Appeal agreed that it was true that the Federal Court did not have jurisdiction under its Rule 465 to compel Mr. Rehmar to attend an examination for discovery in Canada, but it did not follow that the court should enjoin Sternson Limited from resorting to 28 U.S.C. §1782. The Federal Court of Appeal stated at paragraph 24:

24. It is true that, for the reasons given in the Lido case, the Trial Division of the Federal Court could not have ordered the examination of Mr. Rehmar for discovery. This would be so because Mr. Rehmar would not be subject to a subpoena issued in Canada, but for this reason only. I do not see, however, why this should prevent the appellant from going into a United States Court which has jurisdiction over Mr. Rehmar to obtain under applicable United States law the sort of order it could have obtained from the Federal Court had Mr. Rehmar, the assignor of the patent, been within Canada. The sort of procedure invoked abroad is a procedure which is available in the Federal Court action in respect of an assignor of a patent who is subject to service in Canada. The examination conducted abroad will, of course, have no status under Rule 465. That does not mean, however, that it would be illegitimate to conduct it.

[88] Returning to the case at bar, CC Chemicals Limited v. Sternson Limited offers no more wisdom than there is nothing per se objectionable about a litigant in Canada having resort to 28 U.S.C. §1782 to examine for discovery a person who without leave or order of the court could be examined for discovery. None of that has much to do with the examination of non-parties for the purposes of an Ontario action, and for present purposes, CC Chemicals Limited v. Sternson Limited offers little guidance and no precedent for solving the issues of the immediate case.

(c) Penty v. Law Society of British Columbia

[89] In Penty v. Law Society of British Columbia, supra, Craig Clymore, who was an inmate in a penitentiary in Oklahoma, complained to the Law Society of British Columbia about the conduct of Christopher Penty, a member of the Law Society. The Law Society, without the assistance of the British Columbia Supreme Court, i.e., without obtaining letters rogatory, made an application under 28 U.S.C. §1782 to depose Mr. Clymore for the purposes of the Law Society’s disciplinary hearings against Mr. Penty. The Oklahoma Court granted the application, but Mr. Penty sought an order to enjoin the Law Society from deposing Mr. Clymore. In a decision affirmed by the British Columbia Court of Appeal, Mr. Penty’s motion was dismissed.

[90] Unlike the case at bar, where the issue is whether a litigant is circumventing the discovery regime of the rules of court, the issue in Penty v. Law Society of British Columbia was the very different issue of whether the British Columbia Law Society, which is a statutorily created administrative tribunal, had jurisdiction to gather evidence for a disciplinary hearing using 28 U.S.C. §1782. In the case at bar, however, the Plaintiffs rely on Penty as authority to reject the Moving Defendants’ argument that the Plaintiffs have circumvented the court’s rules by unilaterally making a 28 U.S.C. §1782 application. They say that the British Columbia Court of Appeal in Penty made it clear that obtaining the American court’s order should not be characterized as objectionable or illegitimate merely because the Canadian court was not resorted to before an application was made under 28 U.S.C. §1782.

[91] In my opinion, the Penty decision has very little if anything to offer to resolve the problems of the case at bar. In Penty, neither the British Columbia Superior Court nor the Law Society had any rules or policies about the discovery of evidence that were being circumvented by the Law Society making a 28 U.S.C. §1782 application, and the determinative issue in Penty was about the jurisdiction of a creature of statute to use 28 U.S.C. §1782. In Penty, it made perfect sense for the courts to say that obtaining a 28 U.S.C. §1782 order should not be characterized as objectionable or illegitimate merely because the Canadian court was not resorted to. For present purposes, Penty v. Law Society of British Columbia offers no guidance for solving the issues of the immediate case.

(d) Pro-Sys Consultants Ltd. v. Microsoft Corporation

[92] Pro-Sys Consultants Ltd. v. Microsoft Corporation, is a certified competition law class action being managed by Justice Myers in British Columbia, a very experienced and very capable class action judge both at the case management and also at the trial phases of a class action. There are parallel anti-trust actions in the United States, and the parties to the British Columbia action have agreed to an extensive trial management plan allowing evidence to be drawn from certain “eligible U.S. proceedings.” Notwithstanding the provisions of this elaborate trial management plan, the plaintiff moved ex parte in Massachusetts and in Washington for orders under 28 U.S.C. §1782. After the Massachusetts court dismissed the application without prejudice in order for it to determine the attitude of the British Columbia court and after the Washington court granted 28 U.S.C. §1782 applications, both sides applied to Justice Myers for declarations about what use could be made of the evidence. In particular, the defendant Microsoft applied for rulings, which in the main were not opposed by the plaintiff, about what use could be made of the depositions that were outside of the trial management plan order. For its part, the plaintiff wished to renew the application in the Massachusetts court for more depositions. Justice Myers made orders, which for present purposes, need not be described, and then the plaintiff made a second wave of 28 U.S.C. §1782 applications, this time, technically mid-trial. Justice Myers revised his order, again in terms that need not be described for present purposes.

[93] Put shortly, Justice Myers’ case management decisions and mid-trial decisions do not address the questions raised in the immediate case and are really matters of interpreting the trial management plan and conducting a trial, and thus the Pro-Sys Consultants Ltd. decisions are not helpful to either party in the immediate case.

(e) Catucci v. Valeant Pharmaceuticals International Inc.

[94] For reasons that will shortly become apparent, the Plaintiffs strongly rely on Justice Chatelain’s decision in Catucci v. Valeant Pharmaceuticals International Inc., supra in support of their arguments that the Moving Defendants’ motion should be dismissed. As will be seen, the Catucci decision is based on arguments and facts that are very similar to those of the case at bar, and Catucci is indeed a very favourable decision from the Plaintiffs’ perspective.

[95] The Moving Defendants submit, however, that the Catucci decision is distinguishable because it is based on the Civil Code of Québec and a different class action regime in Québec from the regime in Ontario. In my opinion, however, there are no material differences in either the factual context or in the applicable law that distinguish Catucci from the case at bar, and Catucci is a strong and cogently reasoned decision from a very experienced and capable class action judge that supports the Plaintiffs’ arguments that the Moving Defendants’ motion should be dismissed. That said, and although I agree with some of Justice Chatelain’s analysis, I decline to follow Catucci for the following reasons.

[96] The facts of Catucci v. Valeant Pharmaceuticals International Inc. were that the plaintiffs, Mr. Catucci and Ms. Aubin, brought a proposed national class action in Québec against Valeant Pharmaceuticals with respect to stock market misrepresentations about Valeant’s financial statements and business performance that affected the value of its securities. A critical factual issue in the action against Valeant concerns its relationship with a network of mail-order drug distribution companies. For the purposes of the authorization motion (the certification motion in Québec), Mr. Catucci and Ms. Aubin applied in Arizona and were granted an Order under 28 U.S.C. §1782 to examine Gary Tanner, a former Valeant employee. In response, like the Moving Defendants in the case at bar, the defendants in Catucci v. Valeant Pharmaceuticals International Inc., applied for an order (a safeguard order) enjoining Mr. Catucci and Ms. Aubin from taking any act or step in furtherance of the subpoena issued by the Arizona Court without having first obtained the prior authorization of the Québec Court.

[97] As appears the factual background in Catucci is similar to the case at bar, and like the case at bar, in Catucci, there was evidence from Dr. Halberstam explaining the United States’ jurisprudence about 28 U.S.C. §1782.

[98] Justice Chatelain dismissed the defendants motion. She said the issue was whether Catucci and Aubins’ examination of Tanner in accordance with the Arizona Order circumvented the rules of administration of justice under Québec law, which stipulated that pre-trial examinations may be conducted only if they are provided for in the case protocol and that non-parties may be examined with their consent and that of the other party, or with the judge's authorization.

[99] From a legal perspective, Justice Chatelain approached the case as a request for an interlocutory injunction, and she applied the Québec near equivalent to the three-part RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 test for an interlocutory injunction; i.e., in order to decide the defendants’ motion, she asked: (a) whether there was an appearance of right for the order sought? (b) whether irreparable harm will be suffered if the injunction (safeguard order) is not issued? and, (c) if the moving party’s right is unclear, whether the balance of inconvenience favours the moving party? Justice Chatelain’s analysis of these issues are found in paragraphs 42-45, 47-48, and 50 of her decision, where she stated:

A. Appearance of right

42. The fact that the Arizona Order has been issued does not entail however that any evidence gathered pursuant to the examination of Tanner would instantly find its way into the court record for the purposes of the Motion for Authorization. Indeed, contrary to the view expressed by Valeant and PwC, the Court does not believe that an examination in the United States pursuant to a Section 1782 application is tantamount or analogous to an examination or pre-trial discovery of a third party conducted under Article 221 of the Code of Civil Procedure.

43. If and when a request is made to file in the court record any evidence gathered pursuant to the execution of the Arizona Order, as the case may be, the Court will then have the possibility to render an informed opinion, based on the content of the proposed evidence, as to whether or not permission is required to file additional evidence and, if so, whether the additional evidence sought to be filed should form part of the record. Furthermore, in addition to the question of admissibility, the manner in which the purported evidence was gathered could also be a relevant factor in considering the probative value or the weight that should be given to that evidence. These matters are questions for another day however and it would be premature for the Court to opine on these questions, at this time, in a vacuum.

44. Considering the foregoing, the Court does not view the 1782 Application or the Arizona Order as bypassing Quebec legal procedures since there is no presumption that any evidence gathered pursuant thereto will form part of the record. For these reasons, the Court does not believe that it should interfere in the investigation or fact-finding process that was chosen by Catucci and Aubin through the 1782 Application.

45. In sum, considering the extent and far-reaching implications of this case, the availability of a Section 1782 application under U.S. law, the conditions for its issuance and the fact that the 1782 Application has already been granted, Valeant and PwC have not convinced the Court that it should exercise its discretionary powers to prevent Catucci and Aubin from prevailing themselves of a remedy readily available under U.S. law to gather evidence.

B. Irreparable harm

47. Valeant and PwC argue that irreparable harm ensues from the fact that proceeding with Tanner's examination deprives them of this Court's oversight over the discovery process.

48. As already indicated, there is no presumption that any evidence gathered pursuant to the examination of Tanner will automatically be filed in the Court record. Any request to do so, if necessary and as the case may be, will be dealt with in due course in keeping with the parties' obligations respecting the guiding principles of procedure. The Court's duties and powers are not affected by the issuance of the Arizona Order.

C. Balance of inconvenience

50. Valeant and PwC argue that the balance of inconvenience is in their favour as they are merely seeking to have this Court's process and jurisdiction respected. In view of the Court's findings on the previous criteria, this condition for the issuance of a safeguard order is also not met.

[100] As appears from these passages, Justice Chatelain did not regard the evidence gathering in Arizona pursuant to 28 U.S.C. §1782 as to an examination or pre-trial discovery of a third party conducted under Article 221 of the Code of Civil Procedure. She came to this conclusion because the Québec Court would ultimately control the admission of the evidence from the examination and because any evidence gathered pursuant to the examination of Tanner would not instantly find its way into the court record for the purposes of the motion for authorization. It followed, therefore, that there was no contravention of the Québec practice and procedure and no proof of irreparable harm and the balance of inconvenience criteria was thus also not satisfied.

[101] For the reasons expressed above in my discussion of the case at bar as a matter of first instance and first principles, I decline to follow Catucci v. Valeant Pharmaceuticals International Inc. In addition to those reasons, I would not apply an interlocutory injunction analysis to a matter of non-compliance with the Rules of Civil Procedure. Further, in the case at bar, I do not draw the distinction drawn in Catucci v. Valeant Pharmaceuticals International Inc. that what was happening under 28 U.S.C. §1782 was different in kind from discovery of a non-party pursuant to the rules of court.

[102] In the case at bar, the Plaintiffs asked for discovery for the purposes of the Ontario action, and taking them at their word, discovery of a non-party for the purposes of an Ontario action involves the Ontario court determining that it is both necessary and fair to compel a non-party to provide evidence under oath. In the case at bar, the Plaintiffs asked for discovery for the purposes of an Ontario class action at a time in which the Supreme Court of Canada has directed that the focus of the evidence gathering enterprise to be about whether the procedural certification criteria have been satisfied. In the case at bar, the Plaintiffs circumvented the rules about when compelled evidence is available from a non-party in an uncertified class action.

[103] I agree with Justice Chatelain that allowing the 28 U.S.C. §1782 examination to proceed does not entail that the evidence and documents gathered will be admissible, as they might be if the court had authorized the examination pursuant to the rules of court. That truth, however, recognizes that either a further order of the court will be needed or the actual attendance of Bloomberg LP will be required or both an order and an attendance will be required to introduce what otherwise would be hearsay evidence to the Ontario court, and the circumstance that ultimately more orders or rulings will be required supports my conclusion that the Ontario court should order that the examination of Bloomberg LP under 28 U.S.C. §1782 not proceed without further order of this court.

[104] I agree with Justice Chatelain that the domestic court ultimately controls the admissibility, if any, of the evidence from the 28 U.S.C. §1782 examinations of a non-party, but in my opinion, the court should also have a say in how evidence that is ultimately going to be proffered to the court is gathered from those non-parties, and in any event that supervisory approach is the approach mandated by the Rules of Civil Procedure in Ontario and that approach was not followed in the case at bar.

D. Conclusion

[105] For the above reasons, I grant the Moving Defendants’ motion.

[106] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Moving Defendants’ submissions within 20 days of the release of these Reasons for Decision followed by the Plaintiffs’ submissions within a further 20 days.

Perell, J.

Released: January 5, 2017

CITATION: Mancinelli v. Royal Bank of Canada, 2017 ONSC 87

COURT FILE NO.: CV-15-536174

DATE: 20170105

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOSEPH S. MANCINELLI, CARMEN PRINCIPATO, DOUGLAS SERROUL, LUIGI CARROZZI, MANUEL BASTOS and JACK OLIVEIRA in their capacity as THE TRUSTEES OF THE LABOURERS’ PENSION FUND OF CENTRAL AND EASTERN CANADA, and CHRISTOPHER STAINES

Plaintiffs

– and –

ROYAL BANK OF CANADA, RBC CAPITAL MARKETS LLC, BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., BANK OF AMERICA CANADA, BANK OF AMERICA NATIONAL ASSOCIATION, THE BANK OF TOKYO MITSUBISHI UFJ LTD., BANK OF TOKYO-MITSUBISHI UFJ (CANADA), BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., BARCLAYS CAPITAL CANADA INC., BNP PARIBAS GROUP, BNP PARIBAS NORTH AMERICA INC., BNP PARIBAS (CANADA), BNP PARIBAS, CITIGROUP, INC., CITIBANK, N.A., CITIBANK CANADA, CITIGROUP GLOBAL MARKETS CANADA INC., CREDIT SUISSE GROUP AG, CREDIT SUISSE SECURITIES (USA) LLC, CREDIT SUISSE AG, CREDIT SUISSE SECURITIES (CANADA), INC., DEUTSCHE BANK AG, THE GOLDMAN SACHS GROUP, INC., GOLDMAN, SACHS & CO., GOLDMAN SACHS CANADA INC., HSBC HOLDINGS PLC, HSBC BANK PLC, HSBC NORTH AMERICA HOLDINGS INC., HSBC BANK USA, N.A., HSBC BANK CANADA, JPMORGAN CHASE & CO., J.P.MORGAN BANK CANADA, J.P.MORGAN CANADA, JPMORGAN CHASE BANK NATIONAL ASSOCIATION, MORGAN STANLEY, MORGAN STANLEY CANADA LIMITED, ROYAL BANK OF SCOTLAND GROUP PLC, RBS SECURITIES, INC., ROYAL BANK OF SCOTLAND N.V., ROYAL BANK OF SCOTLAND PLC, SOCIÉTÉ GÉNÉRALE S.A., SOCIÉTÉ GÉNÉRALE (CANADA), SOCIÉTÉ GÉNÉRALE, STANDARD CHARTERED PLC, UBS AG, UBS SECURITIES LLC and UBS BANK (CANADA)

Defendants

REASONS FOR DECISION

PERELL J.

Released: January 5, 2017