Digests

Aird v. Country Park Village Properties (Mainland) Ltd.

T-1849-01

2002 FCT 837, Hargrave P.

1/8/02

14 pp.

Motion to amend statement of claim, and for provision of outstanding discovery answers, documents--Fox Lake Indian Band v. Reid Crowthers & Partners Ltd., [2003] 1 F.C. 197 (T.D.) setting out basic law on amendment--As general rule, amendment should be allowed at any stage in proceeding for purpose of determining real controversies between parties, provided will not result in injustice incapable of being compensated in costs--Must not anticipate whether amendment will be successful at trial, but merely whether or not ought to be filed--Amendments denied as defective only in plain, obvious cases--Amendments sought clearly within this test--Scope for examination for discovery set out in Federal Court Rules, 1998, r. 240: person being examined for discovery shall answer any question relevant to unadmitted allegation of fact in pleading--Leading to general proposition questions exploring relevant issues between parties, in order to deal with unadmitted allegations, proper--Six principles governing scope of discovery set out in Reading & Bates Construction Co. v. Baker Energy Resources Corp. (1988), 25 F.T.R. 226 (F.C.T.D.)--Those guidelines supplemented by additional case law, including Scientific Games, Inc. v. Pollard Banknote Ltd. (1997), 73 C.P.R. (3d) 461 (F.C.T.D.), wherein held Court should exercise discretion where question borderline--R. 241 placing obligation upon person being examined for discovery to inform himself--Finally, production of document not measured in terms of great or marginal relevance, for even marginally relevant document must be produced--But none of these guidelines should be taken to allow such broad discovery as to make process into unaffordable luxury involving protracted, far-reaching discovery of marginal usefulness--Rather placing limit on discovery--Action involving dispute over sub-lease rent payments for sites situated upon leased Indian land, incidental matters--Compagnie Financiere du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.) beginning with proposition party swearing affidavit of documents bound to set out all documents in his possession or under his control relating to any matter in question in action--Rejecting narrow approach to doctrine of production of documents--Stating every document relates to matters in issue, which contains information either directly or indirectly enabling party requiring affidavit either to advance own case or to damage case of adversary--Concept of advancing one's own case or damaging case of adversary analogous to r. 222(2)-- Defendant's appraisal relating to head lease at least marginally relevant, must be produced--Letter of instruction sent months before action commenced must be produced as defendant not satisfying burden of establishing facts to show letter either produced with litigation in mind or produced for dominant purpose of contemplated litigation, with prospect of litigation being reasonable--Financial statements, tax returns, source documents showing expenses for general maintenance, insurance, utilities, garbage pickup, on-site management, common area taxes ordered produced as relevant--Federal Court Rules, 1998, SOR/98-106, rr. 222(2), 240, 241.