PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION. Patrick Jay

Transcription

1 Citation: Jay v. DHL Express Date: PESCTD 01 Docket: S1 GS Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Between: And: Patrick Jay DHL Express (Canada) Ltd./DHL Express (Canada) Ltée, Successor to Mayne-Nickless Transport Inc., c/o/b/a/ Loomis Courier Service and Sandra Head Plaintiff Defendants BEFORE: The Honourable Justice Kenneth R. MacDonald Kenneth L. Godfrey, for the plaintiff Janet M.R. Clark and Spencer Campbell, for the defendants Place and date of hearing - Charlottetown, Prince Edward Island March 16, 2005; October 31, 2005 Place and date of judgment - Charlottetown, Prince Edward Island January 3, 2006

2 Citation: Jay v DHL Express (Canada) Ltd PESCTD 01 S1 GS Between: And: Patrick Jay DHL Express (Canada) Ltd./DHL Express (Canada) Ltée, Successor to Mayne-Nickless Transport Inc., c/o/b/a/ Loomis Courier Service and Sandra Head Prince Edward Island Supreme Court - Trial Division Before: MacDonald J. Heard: March 15; October 31, 2005 Judgment: January 3, 2006 [4 pages] Plaintiff Defendants Practice - Discovery of Documents Cases Referred to: Aluma Systems Canada Inc. v. Strait Crossing Inc. (2002) 211 Nfld & PEIR 256 (PEITD) Rules Referred to: Rule 30 Kenneth L. Godfrey, for the plaintiff Janet M.R. Clark & Spencer Campbell, for the defendants

3 MacDonald J.: [1] The plaintiff seeks an order for production of documents by the defendants. Earlier on in this proceeding I had ordered the production of certain documents and at the present hearing the defendants agreed to produce further documentation. [2] What the plaintiff now seeks is the production of a contract between Medis Health and Pharmaceutical Services Limited ( Medis ) and Loomis Courier Service ( Loomis ). [3] This matter arose out of a contract or owner/operator agreement between Loomis and the plaintiff whereby the plaintiff was to be the exclusive servicer/ operator in the Charlottetown area for the customers of Loomis. The plaintiff conducted this operation during the years 1998, 1999 and [4] In later 1999 or early 2000, Sandra Head, on behalf of Loomis, told the plaintiff that he would receive a Line Haul contract to haul goods from Moncton, New Brunswick to Charlottetown. This contract, the plaintiff states, was to be contingent upon Loomis obtaining a new account from Medis, which in fact it did obtain in June, The plaintiff states Ms. Head confirmed that he would obtain the Line Haul contract but later in the month this Line Haul contract was awarded to another company. [5] On August 22, 2000 the plaintiff gave 30 days notice of termination of his contract allegedly due to the fact that he had lost a large part of the Charlottetown route due to the changes of relationship between the parties causing the plaintiff to lose a large part of his original route. [6] The plaintiff in his statement of claim alleges breach of contract by the defendants, which, because of mergers is now DHL Express (Canada) Ltd./DHL Express (Canada) Ltée, ( DHL ). [7] The allegations of breach of contract relate to the Line Haul contract and the original Charlottetown route contract. The Law: [8] Discovery of documents is governed by Rule 30 of the Rules of Court, Rule 30.02(1) stating that every document relating to any matter in issue in an action...be disclosed... [9] In Aluma Systems Canada Inc. v. Strait Crossing Inc. (2002) 211 Nfld & PEIR 256 (PEITD), Jenkins J discussed the effect of Rule 30. At paragraph 5 he stated:

4 Page: 2 [5]...Rule 30 is premised on full disclosure and respect for privilege on production. The scope of relevance is broader at discovery of documents stage than it is at trial. The phrase relating to every matter in question in the proceeding has been given a wide and liberal interpretation. This is designed to meet the objective of avoiding surprise and encouraging settlement by the revelation of facts relied upon by the parties and thus discouraging the need for expensive continued litigation. Documents may be relevant in relation to the discovery rule but not necessarily relevant in the sense of being admissible as evidence at trial. To be relevant for production for inspection, a document must have some bearing on an issue between the parties either to support the case of the party seeking discovery or to disprove the opposite party s case, although it need not be directly on point. It is the possibility of relevance that governs producibility, not relevance itself. Discovery is to be given to a document which may, not must, help the case of the party seeking it. A party is entitled to discovery of a document or record if it directly or indirectly enables the party to advance its case or to damage the other party s case; or which may fairly lead to a train of inquiry which may have either consequence. This is sometimes referred to as the broad relevance test. In this assessment, questions of admissibility and weight are left to the trial judge. At the discovery stage, the threshold is that the motions judge be satisfied upon a hard look that there is an arguable case that the issue to which the document relates will be a matter in question in the proceeding. See Johnston v. Prince Edward Island (1991), 94 Nfld. & P.E.I.R. 4 (P.E.I.S.C.T.D.), at para. 41; Canadian Imperial Bank of Commerce v. Bonnell, [1998] P.E.I.J. No. 18, at para. 10; Gallinger v. Kurylyk (1995), 129 Nfld. & P.E.I.R. 306 (P.E.I.S.C.T.D.); Derco Industries Ltd. V. A.R. Grimwood Ltd. et. al., [1985] 2 W.W.R. 137 (B.C.C.A.); Watson and McGowan, Ontario Civil Practice 2002, at p. 599; and Stevenson & Coté, Civil Procedure Guide at pp [6] Relevance depends on the issues raised in the pleadings: Stevenson & Coté, Civil Procedure Guide,1992, at p. 536; Johnston v. Prince Edward Island, supra, at para [10] The plaintiff s claim is for damages for breach of contract and loss of opportunity, and negligent misrepresentation and negligent mis-statement in relation to the Charlottetown and Line Haul contracts. Generally, the plaintiff s submission is that there may be information in the Medis contract which would assist in establishing the plaintiff s damages. [11] The defendants state that the plaintiff s affidavit does not contain evidence showing what might be relevant in the Medis contract. They argue that the plaintiff s attorney s submission on the motion is evidence and should not be considered. [12] As stated by Jenkins J in the Aluma case, relevancy depends on the issues raised in the pleadings. I find that the plaintiff s pleadings raised the issue of both the Line Haul contract and the Charlottetown route contract. The issue of the Medis

5 Page: 3 contract was also raised. Further, in the affidavit of the plaintiff in support of the motion, there is reference to the importance of the Medis contract. In my opinion there is sufficient material in the pleadings and plaintiff s affidavit to set the groundwork for a finding of relevancy. [13] The plaintiff s attorney, in speaking to the various headings that were shown on the blacked-out Medis contract, was only presenting argument as to the possible use of the contents of the contract and was not presenting evidence. [14] The defendants state that the terms of the Line Haul contract are already known to the plaintiff. While acknowledging that point, the plaintiff further submitted that the Medis contract not only dealt with the Line Haul contract but it would also be relevant to the Charlottetown routes contract, as it would contain information relating to the deliveries the plaintiff lost, where the deliveries were to be made, the type of deliveries and their cost. [15] On discovery the relevance of a document is spoken of as the possibility of relevance, whether it can be said to be arguable that the issue which the document relates to will be an issue at trial or whether the document may help the case of the party seeking discovery. [16] Having looked at the blacked-out portions of the Medis contract, I find that parts of the contract meet the test that has been enunciated. [17] Turning to the Medis contract, the following pages or parts of pages should be supplied to the plaintiffs and the court: 1 all parts relating to PEI are p. 3 2 p. 7 3 p. 8, 9, 10 4 p p p. 13, 14,15 7 p. 16, 17 8 p. 18, 19, 20 9 p. 21, 22, p. 26 as it relates to PEI routes

6 Page: 4 11 on the unnumbered page having routes 3T (Summerside/ Hunter River/ Westend) and Route 3R (Souris/ Southport/Montague) on it 12 on the unnumbered page having Route 3C (Charlottetown) and Route 3 I (Rustico/South Shore/Cornwall) on it. 13 on the unnumbered pages headed Loomis Courier Service and sub-heading New Brunswick Line Haul the headings and the line for Charlottetown 14 on the page headed New Brunswick Vehicle Size the information for routes 417, 418, 451 and 452 with all other portions blacked out 15 The June 12, 2002 letter from Maynelogistique to Marc Carbonneau [18] The plaintiff shall have his costs of this motion. January 3, 2006 MacDonald J