2023 FC, 2023 FC 1258

Date: 20230919 Docket: T-1295-20 Citation: 2023 FC 1258 Toronto, Ontario, September 19, 2023 PRESENT: Associate Judge Trent Horne BETWEEN: RONSCO INC. Plaintiff and HIS MAJESTY THE KING, THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDNESS AND CANADA BORDER SERVICES AGENCY Defendants ORDER AND REASONS I.

Overview [ 1 ] This is a motion to substitute a discovery witness. [ 2 ] The plaintiff alleges that the defendants’ selected discovery representative is a relatively junior employee, did not adequately prepare for the examination, and frustrated the plaintiff’s ability to have broad discovery of the defendants on central issues. [ 3 ] The plaintiff’s ability to have broad discovery of the defendants was frustrated, in part, because the witness did not make inquiries of others in advance of the examination, and counsel for defendants took many questions under advisement, particularly in respect of an event the plaintiff views as critical.

While I am satisfied that there should be an adverse consequence to the defendants, I am not persuaded that the overall selection and preparation of the witness was so inappropriate that I should intervene and direct that a different witness be made available. II.

Discovery Practice and Procedure [ 4 ] Pursuant to subrule 237(2) of the Federal Courts Rules , SOR/98-106 ( " “ Rules ” " ), where the Crown is to be examined for discovery, the Attorney General of Canada shall select a representative to be examined on its behalf. [ 5 ] For the selected discovery witness, there are certain baseline expectations in the Rules . Pursuant to Rule 240, a person being examined for discovery shall answer to the best of their knowledge, information and belief any question that is relevant to an unadmitted allegation of fact in the pleadings.

To ensure that the discovery proceeds efficiently, Rule 241 sets out a positive obligation for a discovery witness to become informed by making inquiries of present or former employees of a party who might be expected to have knowledge relating to any matter in question in the action. [ 6 ] Particularly in an action like this one with multiple issues and material events, it is unlikely that one discovery witness will have personal knowledge of, or direct involvement in, every document or event that will be canvassed during the discovery. Undertakings are therefore inevitable.

In such cases, adequate preparation for an examination for discovery does not require a witness to anticipate every line of inquiry. A witness us not expected to have encyclopedic knowledge of every event at issue ( Angelcare Canada Inc v Munchkin, Inc , 2021 FC 238 at para 63 ).

But this does not diminish the obligation to thoroughly prepare for an examination for discovery, including consultation with others within an organization who may have specific knowledge of particular events and matters that are disputed in the pleadings. [ 7 ] I also note the Federal Court’s Case and Trial Management Guidelines for Complex Proceedings and Proceedings under the PM(NOC) Regulations , last amended May 18, 2021 ( " “Guidelines” " ). Item 7 in the Guidelines addresses examinations for discovery.

The Guidelines contemplate undertakings, but also state that examinations for discovery shall be conducted by way of a single comprehensive examination. The expectation of a single examination is best achieved when a discovery witness is appropriately chosen and fully prepared. III. Issues Raised in the Pleadings [ 8 ] What follows is a

summary of the claims and defences raised in the fresh as amended statement of claim ( " “Claim” " ) and fresh as amended statement of defence ( " “Defence” " ). This

summary does not make any determination of the claims and defences raised by the parties, rather is intended to highlight the issues in dispute that an informed discovery witness would be expected to be able to address. [ 9 ] The plaintiff ( " “Ronsco” " ) supplies products and services to the rail, mining, and transit industries. A substantial part of its business is supplying freight and transit railway wheels and wheelsets (wheel and axle combinations) to Canadian consumers. [ 10 ] Ronsco imports " rough bore wheels " , which must be machined further before they can be fitted to an axle.

[ 11 ] Ronsco is obliged to declare imported goods, including rough bore wheels, under the Customs Tariff , SC 1997, c 36 ( " “ Customs Tariff ” " ). The Customs Tariff has a

schedule that sets out tariff items, and a description of goods that fall within each tariff item. Some tariff items require payment of duties; others can be imported duty-free. [ 12 ] Ronsco asserts that, on advice from a customs broker in 2005, rough bore wheels could be imported duty-free under tariff item 8607.19.21 ( " “Tariff 21” " ).

Ronsco states that competitors were also importing the same or similar goods under Tariff 21 without penalty or enforcement action from the Canadian Border Services Agency ( " “CBSA” " ). [ 13 ] On July 11, 2017, CBSA informed Ronsco that a trade compliance verification would be conducted for goods it imported in 2015. This included rough bore wheels. [ 14 ] The Customs Act , RSC, 1985 c 1 ( " “ Customs Act ” " ), particularly

section 32.2, imposes a positive duty on importers who have " “reason to believe” " that a tariff classification is incorrect to make a correction, and pay any duties owing as a result. CBSA relies on the voluntary declarations of importers. [ 15 ] On April 20, 2018, Ronsco received an interim report from CBSA which advised that it had determined that Tariff 21 did not apply to the rough bore wheels imported by Ronsco, and that tariff item 8607.19.29 ( " “Tariff 29” " ) applied. Tariff 29 items are assessed a duty of 9.5%.

Ronsco was informed that it would have to make corrections and pay duties going back four years on the basis that it had reason to believe that its initial tariff declaration was incorrect. [ 16 ] In response to the interim report, Ronsco argued that tariff item 8607.19.30 ( " “Tariff 30” " ) was instead applicable.

Ronsco also argued that it did not have, and had never had, reason to believe that the rough bore wheels fell into a category that was subject to payment of duties. [ 17 ] Ronsco says that, in June 2018, its officials met with Doug Band, CBSA’s Director General responsible for the Trade and Anti- Dumping Programs Directorate. It is asserted that during this meeting, Mr Band acknowledged that the wording of Tariff 21 was confusing and outdated, and assured Ronsco that it would only be required to pay duties for the items identified in the interim report, and going forward.

The Defence generally denies these allegations, but does not offer contrary material facts. It appears from the materials as a whole that CBSA may assert that Mr Band misunderstood who was at the meeting, and thought the attendees were representatives of one of Ronsco’s competitors, Sumitomo Canada Limited ( " “Sumitomo” " ). Sumitomo had apparently received an advance ruling that Tariff 21 applied to rough bore wheels.

Ronsco places great weight on this meeting, and the alleged representation that it would not be subject to retroactive duties. [ 18 ] On July 24, 2018, CBSA issued its final trade compliance verification report ( " “Verification Report” " ), which confirmed the conclusions in the interim report, and stating that Ronsco would be required to pay $461,446.21 in duties related to the five transactions covered by the Verification Report.

The Verification Report concluded that Ronsco had reason to believe the goods were incorrectly classified under Tariff 21, that they should have been classified under Tariff 29, and that Ronsco would need to make corrections and pay retroactive duties on all transactions involving the rough bore wheels dating back four years, contrary to what Mr Band previously represented.

The Defence emphasizes that Ronsco did not dispute CBSA’s preliminary finding that Ronsco had reason to believe that the goods were incorrectly classified under Tariff 21, rather Ronsco argued that it did not have reason to believe that the goods would fall within a category on which duty is payable. [ 19 ] In its written argument, and with reference to the discovery evidence of its own representative, Ronsco asserts that CBSA first concluded that the Verification Report should be amended such that Ronsco would not have to pay retroactive duties, but then reversed its position again and decided not to amend the Verification Report.

These material facts are not included in the Claim. [ 20 ] In September 2018, after receipt of the Verification Report, Ronsco made a request to the President of CBSA for further re- determination pursuant to

section 60 of the Customs Act . Ronsco argued that the rough bore wheels were properly classified under Tariff 30, and that it did not have reason to believe that its prior selection of Tariff 21 was incorrect. [ 21 ] In November 2018, Sue Ogilvie, an Appeals Officer with the CBSA’s Toronto Trade Appeals Unit, Finance and Corporate Management Branch, advised that the CBSA’s conclusion regarding Ronsco’s " “reason to believe” " could only be challenged by appealing the administrative monetary penalty that Ronsco would receive, under

section 129 of the Customs Act . Ronsco’s appeals to the CBSA President, and subsequently to the Canadian International Trade Tribunal, were denied. [ 22 ] In October 2019, Ronsco received a notice of penalty assessment ( " “NPA” " ) from CBSA. The NPA found that Ronsco had reason to believe that it had incorrectly selected Tariff 21 for the goods subject to the retroactive corrections. An appeal of this decision was dismissed by CBSA. [ 23 ] In December 2019, Ronsco filed self-corrections for the goods in issue going back four years. CBSA issued detailed adjustment statements ( " “DAS” " ).

A further request for redetermination was dismissed. A further DAS was issued on July 30, 2023, which upheld the earlier DAS, and required Ronsco to pay duties and interest with respect to the corrected importations. [ 24 ] The Claim alleges that there was conflicting information from CBSA as to the correct path to challenge the conclusions with respect to " “reason to believe” " . Ms Ogilvie stated that a challenge should be made under

section 129 of the Customs Act ; Natasha Alimohamed, Director General of the CBSA’s Recourse Directorate, advised Ronsco that, contrary to Ms Ogilvie’s representations, Ronsco ought to have brought an application for judicial review under the Federal Courts Act , RSC 1985, c F-7 . Ronsco did issue an application for judicial review (Court file T-1037-20); that proceeding was placed in abeyance by order of prothonotary Molgat (as that office was then titled) dated November 4, 2020.

Ronsco states that counsel for the respondent in T-1037-20 took the position that, contrary to the advice from Ms Ogilvie and Ms Alimohamed, Ronsco should have challenged CBSA’s conclusion regarding " “reason to believe” " in an appeal to the CBSA President under

section 60 of the Customs Act . [ 25 ] Ronsco asserts that it should not have been required to pay retroactive duties, and that CBSA breached its public law duties. The relief requested in the Claim is an order quashing the July 30, 2022 DAS, general damages, special damages, and compensation for

administrative monetary penalties. The amount claimed exceeds $4 million. [ 26 ] The defendants deny liability, and maintain that Ronsco contravened the Customs Act . In particular, at the time of the importations, the defendants say that Ronsco had reason to believe its declarations of tariff classification for the goods was incorrect because the relevant tariff items were evident and transparent, and it was clear from the wording of the provisions that the goods were not properly classified, as declared by Ronsco, under Tariff 21.

The defendants further state that breach of public law duties is not a recognized tort in Canada, that the claim is time-barred, and that CBSA acted in accordance with the applicable legislation and its mandate to regulate the cross-border movement of goods and to ensure compliance with the Customs Act and the proper collection of taxes and duties. The defendants also deny that Ronsco suffered any compensable damages or loss. IV. Discovery of the Defendants [ 27 ] The defendants’ selected witness is Kelly Bartlett, an Acting Manager, Trade Appeals Processing and Policy, with CBSA.

She was examined for discovery on May 3, 2023. In the organizational structure of CBSA, a manager reports to a director; a director reports to a director general; and a director general reports to a vice-president. [ 28 ] Ms Bartlett has been with CBSA since 2006. In 2018, she was an advisor within the Trade Policy Division, the division responsible for policy advice to the regions for valuation, origin and tariff classification. As an advisor, Ms Bartlett was responsible for policy advice on tariff classification issues, including advice on " “reason to believe” " , and reassessment issues.

At the material dates for this proceeding, she was not an ultimate decision-maker. Ronsco points out that she was not involved in the verification audit of Ronsco in 2017, drafting the interim verification report, or drafting the final verification report. Ms Bartlett did not attend the meeting with Mr Band. She was not involved in the representations made by Ms Ogilvie or Ms Alimohamed, and has never communicated with anyone from Ronsco.

The defendants point out that Ms Bartlett was the primary drafter of the " “issue sheet” " that was prepared in advance of the June 2018 meeting with Mr Band, and was responsible for edits to that document following the meeting. [ 29 ] There is no indication that Ms Bartlett spoke with anyone within CBSA to prepare for the examination. It was confirmed during the discovery that she did not speak with Doug Band, Sue Ogilvie or Natasha Alimohammed in order to prepare.

Ms Bartlett also did not make inquiries of Yannick Mondy, Scott Winter, Charles Slowey, David Hurl, or Lucie Gagne, other persons who had involvement in the matter. Ms Bartlett stated that she read through all the documentation, but “ …. didn’t have extra questions, basically, of understanding.” [ 30 ] Near the outset of the examination, after asking about Ms Bartlett’s responsibilities within CBSA and what she did to prepare, counsel for Ronsco raised a concern that the defendants did not put forward an appropriate discovery representative. [ 31 ] The discovery continued for most of the day.

Near the end of the examination, counsel for Ronsco reiterated the concern that the selected representative was not appropriate. Ronsco now moves for an order that the defendants be required to produce Mr Band as their discovery representative. V.

Substitution of Discovery Witnesses [ 32 ] Subrule 237(3) permits the Court to make an order that some other person be examined for discovery. [ 33 ] The Court will not normally intervene in the Crown’s selection of a discovery representative unless it is demonstrated that the nominee is not informed or capable of being informed of the facts essential to the issue upon which discovery is pursued ( Westaim Corp v Royal Canadian Mint , [1998] FCJ No 1929 at para 18 ( " “ Westaim ” " ) ). [ 34 ] To be successful on a motion under subrule 237(3), it is necessary to provide evidence that the named discovery representative was inadequate ( Raymor Industries Inc v Canada (National Research Council) , 2008 FC 1247 at para 10 ). [ 35 ] In Liebmann v Canada (Minister of National Defence) (1996), 110 FTR 284 at para 31 ( " “ Liebmann ” " ) , the Court identified the following considerations in determining whether a substitution order would be made: 1.

The party being examined must put forward a proper and knowledgable witness; 2. The witness must be able to give broad discovery, including as to supplemental questions; 3. The onus is on the party examining to demonstrate objectively the unsuitability of the witness in an application for a second discovery and indeed the applicant must show that the first witness is either incapable of giving evidence of his own knowledge or by informing himself or that the second witness is in a much better position to give evidence; 4.

Convenience may be a factor, for in some instances it is more desirable and practical to have the individual involved examined, rather than to have a witness inform herself or himself; 5. The expense of a second witness is a factor; 6.

The circumstances of the case, including the responsiveness of the witness, the degree to which the witness has taken pains to inform herself or himself and the materiality of the evidence sought to be canvassed with the second witness are also factors and indeed the discovery of a second or subsequent witness should be restricted where its purpose is predominantly that of a fishing expedition. [Citations omitted.]

[ 36 ] In Teva C anada Limited v Eli Lilly Canada Inc , 2016 FC 1131 , after considering the Liebmann factors, a substitution motion was dismissed, in part because the defendant’s witness was not properly prepared, and the defendant had not established that anyone else was is in a better position to give evidence for the corporation on all the matters in this case. T he Court strongly rebuked the tactic of putting up a “straw witness” (paras 8-12). VI.

Ms Bartlett’s Examination [ 37 ] I have carefully reviewed the entire transcript of the examination for discovery of Ms Bartlett. [ 38 ] There is no suggestion that Ms Bartlett was an uncooperative or difficult witness. In general, she answered questions as best she could; Ronsco submits this was not good enough. [ 39 ] Ms Bartlett was not a complete “straw witness” in the sense of having little or no familiarity with the issues; she was not a passive observer, generally present to watch counsel give answers or undertakings on her behalf.

Ms Bartlett is not a stranger to issues of tariff classification, having worked in the areas of Trade Policy and Trade Appeals at the time of the events leading to this litigation, and currently. She had some involvement in CBSA’s dealings with Ronsco, but was not a decision-maker. Ms Bartlett was able to answer many of the questions put to her. [ 40 ] I do, however, have concerns that Ms Bartlett was not a fully knowledgeable witness who was able to give broad discovery on behalf of the defendants.

She was not a decision-maker, and was not present at most of the meetings that are the subject of the action, particularly the meeting with Mr Band that Ronsco views as a critical event. This alone is not a disqualifying factor.

My concern is that Ms Bartlett did not make inquiries of Mr Band and others in advance of the examination to enable a broad and complete discovery. [ 41 ] Over 70 of the questions put to Ms Bartlett were taken under advisement, a practice prohibited by the Guidelines. [ 42 ] The practice of taking questions under advisement was strongly criticized by prothonotary Aalto (as that office was then titled) in MediaTube Corp v Bell Canada , 2015 FC 391 (“ MediaTube ”) : [8] The use of the phrase “under advisement” on examinations for discovery to prevent a witness from answering a question has become rampant.

There is no provision in the Rules for such a position to be taken in respect of a proper question posed on an examination for discovery. Rules 234-248 establish the procedure for examinations for discovery in Federal Court proceedings. Nowhere in those Rules is the phrase “under advisement” used. Rule 242 governs objections on an examination for discovery. There are four categories of objections as follows: (

a) the answer is privileged; (

b) the question is not relevant; (

c) the question is unreasonable of unnecessary; and (

d) it would be unduly onerous to require the person to make the inquiries to answer the question. [9] “Under advisement” is not an objection. It may be a useful intervention where the issue of relevance may be a matter for further consideration or discussion with opposing counsel. But it is not a substitute for a properly made objection on the enumerated grounds. It has become misused by counsel and is a glib mechanism to avoid having a witness answer a question which may otherwise be relevant. Counsel should refrain from using this as a backdoor means of objecting.

Either object on proper grounds or let the witness answer or, if the question requires information which the witness does not know, give an undertaking. [10] What does “under advisement” mean anyway? Is it an objection? – No; is it an agreement to answer the question immediately after some consideration? – No; or, is it an indication that some answer will be forthcoming now or in the future? – No. It is nothing other than an interruption of the examination. If there were some explanation as to why it was taken “under advisement” perhaps it might mean something.

For example, is it to consider whether the question is clear; to consider whether the question relates to an issue in the case; or, perhaps, to determine whether a document might contain information to assist the witness in answering or whether further investigations must be conducted with the client to obtain the information. The various

definitions of “under advisement” include “careful deliberation or consideration” [see, Random House Kernerman Webster's College Dictionary, 2010 K Dictionaries Ltd. Copyright 2005, 1997, 1991 by Random House, Inc.]. However, there is nothing in this transcript in the Court’s review of it that is in any way informative of why the questions need “careful deliberation or consideration”. [ 43 ] I have a particular concern with the way the examination unfolded when the June 2018 meeting with Mr Band was discussed.

Particularly at about pages 70 to 86 of the transcript, almost none of the questions were answered by Ms Bartlett. Either she did not know the answer, and the question was taken under advisement, or counsel immediately interjected with an under advisement. As a result, the answers to these questions will be in writing, the subject of a motion, or both. This frustrated Ronsco’s ability to get direct answers from the discovery witness on this issue.

I agree with Ronsco’s submissions that taking almost all of this line of inquiry under advisement precluded it from receiving spontaneous and candid answers directly from the witness. [ 44 ] The defendants submit that all of the relevant information that Ronsco seeks can be provided through undertakings or further discovery, and points to the charts of answers that it served after the examination. I do not view this as an adequate or a complete answer. Recall that the Guidelines set out an expectation that examinations for discovery shall be conducted by way of a single examination.

This objective is not achieved through numerous undertakings and multiple rounds of examination. An examining party should expect to receive answers to relevant and proper questions from the witness in the first instance, not later and in writing, crafted with the assistance

of lawyers. VII. Analysis [ 45 ] Subrule 237(2) permits the Crown to select its own representative. The Rule does not require that the selected witness be the most knowledgeable, or set objective criteria for the selection of the witness. The Crown has the ability to select its own witnesses, and it is apparent that the Court will exercise caution before substituting its discretion for that of the parties.

Even if Mr Band is an important figure in the issues to be determined, there is no presumption that he will be the nominated discovery representative. [ 46 ] At a high level, the fact that a selected discovery witness is not a senior member of the organization will not result in a substitution order, nor will the fact that preparation could have been more thorough.

The fact that a number of undertakings were given, or questions taken under advisement, is also not determinative. [ 47 ] In considering the first two Liebmann factors, Ms Bartlett was not an entirely improper witness, but she was not fully knowledgeable and was not able to give broad discovery on all issues, in part because she was not a direct participant in certain events, and in part because she did not make inquiries of others to prepare. [ 48 ] As for the third factor, I acknowledge that Liebmann , and also Westaim , consider whether the witness is capable of being informed of essential facts.

It may be that Ms Bartlett could now meet with Mr Band and others to better prepare, and is capable of having better information on a subsequent follow-up examination. Since Liebmann and Westaim were decided (1996 and 1998, respectively), there has been a culture shift in the Federal Court with respect to discovery procedure generally. The Guidelines reflect this; particularly in case management, great emphasis is placed on proportionality in the discovery process and the guiding principles of Rule 3. It is not a complete answer to say that a witness could be informed.

Even a straw witness could be better informed. [ 49 ] A central issue on the motion is whether Mr Band is in a " “much better position” " to give evidence. Ronsco fairly points out that Ms Bartlett was not involved in drafting the interim verification report or the final verification report, and was not involved in the representations made by Ms Ogilvie or Ms Alimohamed. But neither was Mr Band. Both Ms Bartlett and Mr Band would have to make inquiries of others to prepare for a discovery on these issues.

While Mr Band is certainly in a much better position to give evidence on the meeting he participated in, I am not persuaded that he is in a much better position to give evidence on all the issues that will be canvassed during the discovery. [ 50 ] As for convenience and expense (the fourth and fifth factors), I have no evidence that Mr Band is unable to act as a discovery witness, or that his personal circumstances would preclude him from participating in the discovery process. I gave no weight to the defendants’ submission that it would take time for Mr Band to prepare to be examined.

If Ms Bartlett was a fully prepared witness, this motion would not have been necessary. [ 51 ] As for the sixth factor, Ms Bartlett may have taken pains to review the documents, but there is no indication she did anything to consult with anyone other than counsel in preparation for her examination. The evidence in respect of the July 2018 meeting with Mr Band is certainly material, but is not the only material event disclosed in the pleadings.

There are other material events that Mr Band would have to learn about from others if the requested order was made. [ 52 ] Upon review of the materials filed on this motion, and having heard the parties’ submissions, I am not persuaded that Mr Band is, in the whole, in a much better position to give evidence as a discovery witness. While the outcome of this motion was a close call, I am not satisfied that the facts justify a substitution order.

Doubtless the defendants made a strategic choice in selecting Ms Bartlett as their discovery representative, but I am not persuaded that the consequences of that strategic choice are so prejudicial to Ronsco that a substitution order should be made. [ 53 ] I am, however, satisfied that Ronsco’s ability to have a proper discovery, particularly on the issues relating to its interactions with Mr Band, was frustrated.

I will order that there be a continued discovery of the defendants’ representative, and on terms. [ 54 ] One of those terms will be to require Ms Bartlett to be better informed by making inquiries of at least Doug Band, Sue Ogilvie and Natasha Alimohamed in advance of a continued examination for discovery.

Ronsco did not move for relief under Rule 244, however I am satisfied that I have the authority to make an order that a witness be better informed pursuant to Rules 3, 53, and 385. [ 55 ] Another term in the order will be to prohibit objections to questions relating to events involving Doug Band, Sue Ogilvie and Natasha Alimohamed on the basis that the question was previously asked and/or answered. At the end of the examination, a small number of questions were asked about matters involving Ms Ogilvie and Ms Alimohamed.

To ensure that Ronsco has full discovery on these issues, no question in this respect may be refused on the basis that it could have been asked during the first examination. This will effectively put Ronsco where it should have been in the first instance – receiving answers on these matters directly from a prepared witness. [ 56 ] The order will also prohibit taking any questions under advisement. Questions should be answered unless clearly improper or prejudicial, or would require the disclosure of privileged information (Guidelines item 7(c)).

If a refusal is given, a concise basis for the objection must be stated. VIII. Costs [ 57 ] The Court has full discretionary power over the amount and allocation of costs (subrule 400(1)). [ 58 ] Among the factors I can consider in the assessment of costs is whether a step was improper, vexatious or unnecessary (subrule 400(3)(k)(i)).

[ 59 ] At the conclusion of the motion, I advised the parties that the matter would be taken under reserve. I advised the parties that there would be an adverse consequence to the defendants, but the specifics of that adverse consequence remained to be determined. [ 60 ] Ronsco relies on a bill of costs for the examination of Ms Bartlett, which I understand to be the solicitor-client bill for preparation and attendance involving three lawyers. The amount on the bill, including taxes, is $26,545.67.

Ronsco asks for 50% of this amount. [ 61 ] The defendants submit that 25% of this amount is appropriate, but that I should make an unspecified deduction because fees for multiple counsel are claimed, and only one counsel asked questions during the discovery. [ 62 ] Ronsco was not successful in obtaining the relief it requested, however I am satisfied that it is entitled to costs. [ 63 ] An award of costs can perform more than one function.

Costs can regulate conduct (eg by promoting early settlement), indemnify the successful party, and deter impetuous, frivolous and abusive behaviour ( Sherman v Canada (National Revenue) , 2003 FCA 202 at para 46 ). [ 64 ] There is no ambiguity when it comes to the prohibition on taking questions under advisement. Whether by under advisements or refusals, parties cannot block their witnesses from answering relevant questions on whole areas of inquiry, and then crafting written responses after the fact.

The defendants’ effective transformation of discovery on the meeting with Mr Band into an examination in writing was improper. In light of the clear instruction in MediaTube and the Guidelines, costs recovery under the Tariff, even at the high end of Column V, would be inadequate to compensate Ronsco for its costs associated with this motion, and deter this approach. An amount that exceeds the Tariff is warranted. [ 65 ] Costs of the motion will be awarded to Ronsco in the amount of $7,500.00, payable forthwith.

I am awarding an amount less that what Ronsco requests because a number of questions were answered on the discovery, and not all costs associated with preparation and attendance were thrown away. ORDER in T-1295-20 THIS COURT ORDERS that : 1 . The plaintiff may conduct a continued examination for discovery of the defendants’ representative. 2 .

The defendants shall ensure that, before the continued examination, the person to be examined shall become informed by making inquiries of any present or former officer, servant, agent or employee of the party, including any who are outside Canada, who might be expected to have knowledge relating to any matter in question in the action. This includes, but is not limited to, Doug Band, Sue Ogilvie and Natasha Alimohamed. 3 .

No questions at the continued examination of the defendants’ representative in respect of actions or involvement by Doug Band, Sue Ogilvie and Natasha Alimohamed may be objected to on the basis that the question was previously asked and/or answered. 4 . No questions at the continued examination of the defendants’ representative in respect of actions or involvement by Sue Ogilvie and Natasha Alimohamed in the events described in the pleadings may be objected to on the basis that the question could have been asked during the first examination. 5 .

No questions may be taken under advisement at the continued examination of the defendants’ representative. Questions should be answered unless clearly improper or prejudicial, or would require the disclosure of privileged information. If a refusal is given, a concise basis for the objection must be stated. 6 .

Costs of the motion are payable by the defendants to the plaintiff, fixed at $7,500.00, payable forthwith. blank “Trent Horne” blank Associate Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1295-20 STYLE OF CAUSE: RONSCO INC. v HIS MAJESTY THE KING ET AL PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERNCE DATE OF HEARING: September 18, 2023 ORDER AND REASONS: HORNE A.J.

DATED: September 19, 2023 APPEARANCES : Chris Trivisonno Sean Grassie For The Plaintiff Adrian Johnston Christian Halt For The Defendants SOLICITORS OF RECORD : Conway Baxter Wilson LLP/S.R.L. Barristers and Solicitors Ottawa, Ontario For The Plaintiff Attorney General of Canada Ottawa, Ontario For The Defendants