COURT FILE NO.: CV-13-164-00
DATE: 2022-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc. and Resolute FP Canada Inc.
C. Pendrith, for the Resolute Forest Products Inc.
Plaintiffs
- and -
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt
C. Di Carlo and S. Bass, for the Greenpeace Canada
Defendants
HEARD: February 1, 2022, via video conference at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Decision on Motion
[1] Resolute Forest Products Inc. (“Resolute”) brings a motion requesting an order regarding the conduct of discoveries. Resolute wants an order that it can continue to examine Ms. C. Ferguson, as a representative of the defendant 2471256 Canada Inc. dba Greenpeace Canada (“GP”) for a further 4.5 days. Resolute also claimed relief in respect of a request to admit it has served. GP submits a further day of discovery for Ms. Ferguson is appropriate.
Background
[2] Context is everything in civil litigation. This is defamation and intentional interference with economic relations claim.
[3] GP has finished its discoveries.
[4] The litigants are sophisticated parties. My involvement in this matter started in 2013. I have been formally case managing this file since 2015. It has a long history. I have written a number of decisions regarding interim procedural matters in response to numerous motions brought by both parties. Both parties have appealed a number of these decisions to the Divisional Court. There is a lot at stake for both parties. It is a complex case. In my view, both parties have taken an aggressive but fair approach to the litigation over the years. This explains why the file has taken this long to reach this particular point in its development.
[5] Context is everything in civil litigation. The Covid-19 pandemic has fundamentally changed the way civil litigation has been practiced in Ontario since March 2020. This file was no exception. This motion was heard virtually. I believe I have heard seven motions in person previously on this file. The materials for this motion were filed electronically. I did not have access to the entire formal endorsement record on this file because it has not been uploaded yet. I have kept my own paper binder of endorsements and orders made in the matter which I have referred to in preparing to deal with the matter today. I count 25 case management endorsements that I have made on this file. I know there were several additional occasions where I did not make a formal endorsement following a case management conference because it was not necessary at the time.
[6] Context is everything in civil litigation. Active case management is supposed to permit the pursuit of “outcome” to triumph over the pursuit of “process”. I had hoped the active case management approach that has developed over the years in this file would have had the effect of encouraging counsel to agree to ongoing procedural details to allow the matter to keep moving efficiently. All through the file I have encouraged counsel to first seek a case conference on any disputed matter. I did this to create occasions where frank direct talk could allow the parties to resolve matters in a more cost-efficient manner than trying to motion each other to death. I thought by about 2017 this approach was starting to work more often than not. In my view, the fact this matter had to be actually argued today represents a set back to the collaborative cost-efficient process that had been developing in this file.
[7] I say all this because it is context for what I am going to do on this motion.
Analysis
[8] In my view, this motion was a waste of the court’s time. This negative was a first for this file. Counsel on both sides have been always excellent and helpful to the Court thus far. However, the motion presents a very narrow process question occurring in the middle of a huge complex case. This problem should have been worked out. Responsibility for this failure is shared equally between the parties.
[9] Resolute submits counsel have agreed that it would have six days to examine a representative on behalf of GP. GP concedes it did initially agree to this six-day arrangement. Resolute has conducted a day and half of discovery of the GP representative so far. However, GP argues its agreement was contingent on GP being able to examine a particular Resolute witnesses, Mr. LaFlamme, not in his personal capacity, but in his capacity as a representative of the company. GP argues that Resolute “reneged” on this agreement which entitles GP to limit the days on which Ms. Ferguson will continue to be examined.
[10] GP takes exception to the affidavit filed by Resolute on this motion. It was an affidavit of a counsel who has had carriage of this file for as long as I have been involved in this case. I agree with GP that this was not the best practice for a number of reasons. I would include the fact this case has been actively case managed.
[11] I understand the chronology of this matter. I am relying on my common sense and my long experience with this file. I have read enough in the facta, the records filed by both parties and heard enough on the oral argument from both sides to decide this motion.
[12] I order that a representative of GP, Ms. Ferguson will attend for two more days of discovery. If it is necessary, I say this represents 12 hours more of examination time. I am allowing this as I see it as representing the most proportionate cost-effective response to the particular problem that is posed by the dilemma described in the materials filed by both parties. It is a “down the middle” resolution of what I consider a relatively small problem in the course of this very long matter.
[13] The parties have been flexible in respect of the consent order that was made in October 2019 to govern the conduct of discoveries. The seven-hour limit of Rule 31.05.1 has already been by passed by the agreement of counsel. I understand this happens all the time. Consent to exceed the limit is provided for in the Rule. However, once the limit is exceeded on consent it does not help to refer to the strict provisions of the Rule as being somehow limiting or a way to stop continuing discoveries. Nor does it give licence to be difficult and uncompromising either way.
[14] I want this matter to keep moving. I am exercising my discretion as case management judge. I do not see it as onerous on GP to produce their main witness for two more days in the context of this matter. Also, I think that at this point, two more days is more than sufficient for Resolute to finish its discoveries. I do not accept the argument that Resolute will be prejudiced in the conduct of the file by not having the full six days of discovery. Resolute has excellent counsel. The discovery of GP’s main witness has already been interrupted. Parties have to adapt to changing conditions all the time. I am sure Resolute’s counsel can effectively pivot in this case based on all I have seen in this file since 2013.
[15] With regard to the relief regarding the Request to Admit I agree with the submission in the factum of Resolute at paragraph 4 that “However, after months of refusing to update their response, Greenpeace, in the face of this motion, delivered a response that now complies with the Rules. Greenpeace has effectively conceded this issue on the motion by rendering it moot”. Consequently, I see no need to make any order in response to the notice of motion before the Court about this particular requested relief.
[16] I see my decision as attempt to achieve outcome over process.
[17] If either party offered to settle this motion in writing by having two or more days of discovery of Ms. Ferguson, I would entertain submissions regarding costs. Short of that offer, I see that success was divided on this motion and that no costs would be allowed on this motion. If there will be a request for costs, I invite the parties to first set up a further case conference to discuss the costs question.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: February 2, 2022
COURT FILE NO.: CV-13-164-00
DATE: 2022-02-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc. and Resolute FP Canada Inc.
Plaintiffs
- and -
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt
Defendants
DECISION ON MOTION
Fitzpatrick J.
Released: February 2, 2022
/lvp