Apex Safety Apparel Inc. v. Kel-Tek Safety Apparel, 2011 ABQB 406

Court of Queen ’ s Bench of Alberta Citation: Apex Safety Apparel Inc. v. Kel-Tek Safety Apparel, 2011 ABQB 406 Date: 20110628 Docket: 0901 02516 Registry: Calgary Between: Apex Safety Apparel Inc., Dan Drewe and Karen Prince Plaintiffs - and - Kel-Tek Safety Apparel, a division of Kelsey Sportswear Ltd. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W. A.

Tilleman _______________________________________________________ [ 1 ] In a case management deadlock, the argued issue is whether the court should declare Dan Drewe as the corporate representative for the Plaintiff, Apex Safety Apparel Inc. Initially, it was Dan Drewe (as an officer according to the then-Rules) [1] that swore the Affidavit of Records. Both Dan Drewe and Karen Prince are Plaintiffs and involved with the corporation but Ms.

Prince appears to be much more involved, and the argument is, she would be the better representative. [ 2 ] Following brief written submissions, which I have reviewed, I agree with the Plaintiff and dismiss the Defendant’s motion.

[3] Ms. Karen Prince is prepared now, to speak, and speak fully, as the corporate representative. Her appointment will achieve the goals of proceeding in a timely and cost-effective way. See Rule 1.2 (1) and (2). See also Rules 5.1(1) and 5.3(1)[2]. On top of this,Ms. Prince has been chosen by Apex early; and I find her to be more likely to know Apex’s affairs and its evidence than Mr. Drewe. Ibelieve she can more quickly and timely give answers and responses as required. She will better inform the lawsuit. There will be nodelay.

That’s what the Rules seek to achieve. [4] The right to appoint is the right of the corporation (at least in Alberta) and to make this point (as the new Rules also do)[3] thePlaintiffs point me to Damiani v. Anderson 1977 ALTASCAD 86 , [1977] A.J. No. 432 where our Court of Appeal (at para. 12) referenced comments of then-Chief Justice Harvey:[4] In the case of a corporation which itself cannot speak, someone must speak for it, and the Rule authorizes the corporation itself to name,in the first instance, the person whom it wishes to speak for it and by whose admissions it is willing to be bound.

Leave, however, isgiven to a Judge to name a different officer if he considers that a proper one has not been named. The right which is given to a corporation to select its own mouthpiece for the purpose of making admissions is one which ought notlightly to be taken away as the consequences may be very serious for it. No doubt if a corporation were to select an officer whom it would be difficult and expensive to examine when it had an officer whocould be conveniently examined and who could give the requisite information it might be proper to set aside its selection.

Under our present practice there is no necessity to do this for the purpose of obtaining information, the primary purpose of discovery,and there would therefore appear to be little justification for interfering with the corporation's selection when honestly and reasonablymade.

Then more regard too, perhaps, ought to be paid to the corporation's wishes when the examination is a viva voce one and the questionsdepend on the answers to previous ones, than when they are formally submitted to the company which can then have some knowledgeand perhaps control over the answers. (emphasis added) [5] If the issue in Damiani is the reasonableness vis a vis evidence and bona fides of the corporation’s selection, and I find bothto apply here, then the appointment of Ms. Prince stands. In other words, I found nothing unreasonable or mala fide in appointing Ms.Prince.

Nor do I believe her selection impedes the canvassing of evidence of the corporate Plaintiff as a whole, on top of which, as thePlaintiffs reveal, both Mr. Drewe and Ms. Prince are available, in one capacity or another, for questioning. [6] If I must rely on the operation of Rule 15.6 as it relates to the resolution of the “doubt” (regarding an existing proceeding) orany “difficulty” (of a current matter under the New Rules), then I would use the discretion I have in Rule 15.6 to confirm and allow Ms.Prince’s appointment to remain in place.

With respect, a distinction–even if it was based on a close call preferring one version of therules to another–needs to give way to the common sense goal of moving the litigation forward. That is particularly what the new Rulesas a whole are set up to do. [7] At the end of the day, the real issue is efficiency, meaning in this context the Court needs to feel comfortable that thecorporate representative is fully informed and prepared for questioning. See Rule 5.4(2). From what I have read and heard, she will beand that is what her appointment accomplishes. Heard on the 25th day of May, 2011.

Dated at the City of Calgary, Alberta this 28th day of June, 2011. W. A. Tilleman J.C.Q.B.A. Appearances: Robert A. Rakochey and Beth Younggren for the Plaintiffs Kenneth Filkow and Tracy McMahon for the Defendant [1] See Rule 187.1(1); Alta. Reg. 390/68. [2] New Rules, Alta. Reg. 124/2010. [3] See Rule 5.4(1). [4] See McDougall & Secord Limited v. Merchants Bank of Canada, (AB KB), 1919, 1 W.W.R. 830.