Jetco Heavy Duty Lighting v. Fonteyne, 2012 ABQB 211

Court of Queen ’ s Bench of Alberta Citation: Jetco Heavy Duty Lighting v. Fonteyne, 2012 ABQB 211 Date: 20120329 Docket: 1003 09259 Registry: Edmonton Between: Jetco Heavy Duty Lighting, a Division of Auto-Spares Canada Inc. Plaintiff - and - Vincent Fonteyne, Barbara Fonteyne, Copper Creek Marketing Inc. and J.W. Speaker Corporation Defendants _______________________________________________________ Memorandum of Decision of W.

Breitkreuz, Master in Chambers _______________________________________________________ [ 1 ] I have considered the matters raised in this application at length and have reviewed the written submissions as well as a transcript of the application and will give the following opinion.

[ 2 ] The first issue to be reviewed is the question of whether undertakings must be answered before the examination for discovery is completed. [ 3 ] The application arose from the questioning of Mr. Fonteyne. As indicated above, the examination was not concluded; the parties ran out of time and the matter was adjourned to be completed later. [ 4 ] Nine months went by and the Plaintiff then brought this application to have the undertakings provided.

Some were refused, and others are not objected to, but the defence position is that they need not be provided until the questioning is completed. [ 5 ] Alternatively, defence counsel takes the position that the Plaintiff’s appropriate remedy was to make an application under Rule 5.11(1) to produce relevant material that has been omitted from an Affidavit of Records. [ 6 ] The Plaintiff’s response to that position is under

Part 1 (Foundational Rules) specifically, Rule 1.2(1) which reads: The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way. [ 7 ] And he also referred to Rule 5.1(1)(

c) which encourages early disclosure of facts and records and discourages conduct that unnecessarily or improperly delays proceedings or unnecessarily increases the cost of them. [ 8 ] The case of Ho v. Computeraid Professional Services Ltd. 2007 ABQB 36 meets the issue squarely. At paragraph [2], Master Waller says: The applicant had commenced a discovery but ran out of time and simply adjourned the discovery to be continued at a later date. Prior to the resumption of the discovery after a number of months had elapsed, the applicant brought this motion to compel responses to undertakings.

The respondent declined to respond to any undertakings until the discovery had been concluded. [ 9 ] At paragraph [4], Master Waller says this: I agree that the general rule ought to be that undertakings need not be responded to until the discovery is concluded subject only to further examination arising from the undertakings. This only makes practical sense. It prevents litigation by bifurcated instalments and lessens the demands on valuable court time. [ 10 ] I agree with Mr. Fenna on this point.

To provide undertakings and attend for cross- examination on those undertakings after discoveries are completed is a well-established and time-honored practice in this province. If the authors of the new Rules of Court intended a departure from that practice, I suggest it would have been specifically addressed somewhere in

Part 5. [ 11 ] Presumably what Master Waller meant by “bifurcated” is that a discovery would be adjourned to allow for provision of undertakings, or an application for the provision of those undertakings if the undertakings were objected to, and then the parties would go back to questioning on those undertakings, and then the parties would go back to complete the questioning in the main discovery and this cycle would go on and on indefinitely.

[ 12 ] Mr. Fenna contemplates the situation where if we break out of the long-established routine of examining, completing the examination and then getting the answers to undertakings, and then examining on those undertakings, the process would rapidly spiral out of control and quickly descend into chaos. [ 13 ] I think we might have to deduct a little from this chaotic scenario, perhaps attributable to good advocacy rhetoric, but nevertheless the point is still valid from the point of view of the process becoming protracted, expensive and would not result in any saving of time.

Accordingly, that part of the application is denied. [ 14 ] The other issue relates to the question of the production of a personal defendant for questioning, when that individual is also the officer selected by the corporation for questioning. [ 15 ] The Plaintiff served an Appointment for Examination for Discovery on Mr. Fonteyne in his personal capacity and when the examination commenced, Mr. Fenna refused to allow the examination to also apply to Mr. Fonteyne in his capacity as the selected officer of the corporation, Copper Creek Marketing Inc.

A justification for this is that he was not properly prepared for questioning as the corporate officer.

My only conclusion from the brief and the discussion during the application is that there is some fear that a witness’ answer might be different in his personal capacity than in his capacity as a corporate officer. [ 16 ] In my opinion, the solution to this is simple and practical, but it may result in more expense to the Defendants, depending on their response to this decision. [ 17 ] I have concluded that the only reason separate questioning of the identical person can be justified is because there may be a conflict between the individual’s strategy and the corporation’s strategy, which may cause counsel to think that preparation for the questioning has to be conducted in some fashion as if the same individual is two separate individuals. [ 18 ] If that is so, then the two Defendants, Vincent Fonteyne and Copper Creek Marketing Inc., need to be represented by separate counsel.

I am not directing that that happen; I am only directing that if Mr. Fenna maintains his current position, then he cannot represent Mr. Fonteyne individually and Copper Marketing Inc. at the same time, for the simple reason that Mr. Fonteyne may be giving evidence as an individual that may compromise the corporation’s defence. [ 19 ] Mr. Fenna was successful in the first issue and unsuccessful in the second issue. Mr. Franceschi was unsuccessful in the first issue and successful in the second issue. Therefore, each party should bear their own costs of this application.

Dated at the City of Edmonton, Alberta this 29 th day of March, 2012. W. Breitkreuz M.C.C.Q.B.A.

Appearances: Fausto Franceschi, Fraser Milner Casgrain LLp for the Plaintiff Neil Fenna, Ritchie Mill Law Office for the Defendants: Vincent Fonteyne, Barbara Fonteyne, Copper Creek Marketing Inc. No one appeared for the Defendant: J.W. Speaker Corporation