Canadian Federal Court Expresses Frustration with Trivial Refusals During Discovery in Patent Case

Since the spring of 2013, Bell Canada has been litigating claims of alleged patent infringement brought against it by Toronto-based technology companies MediaTube Corp and NorthVu Inc (together, the Plaintiffs).  The manner in which examinations for discovery have been conducted by counsel in this case has drawn a rebuke from Prothonotary Aalto in his reasons for allowing a motion by Bell for an order that representatives of the Plaintiffs must re-attend another examination in person in order to answer certain questions taken “under advisement” at first instance (MediaTube Corp v Bell Canada, 2015 FC 391).

Of the nearly 10,000 questions asked in first examination for discovery, counsel for the Plaintiffs either refused or took under advisement approximately 1000 questions, leading Bell to file this motion.  Bell argued that by taking such a large amount of questions under advisement, counsel for the Plaintiffs were trying to script those answers.  Bell argued it was entitled to direct answers from the witnesses without any such interference by counsel.

The Plaintiffs denied such conduct and argued that the questions that were not answered required further inquiry in order to obtain the relevant information.  With regard to the questions that were taken “under advisement”, counsel for the Plaintiffs argued that these answers required review to ensure they were accurate and did not require clarification.

In his reasons, Prothonotary Aalto sent a strong message against unfounded objections during discovery. Prothonotary Aalto noted that taking a question “under advisement” is not an objection and is inappropriately used when simply preventing a witness from answering a proper and relevant question absent a need for careful deliberation and consideration.  Providing an undertaking is more often the proper procedure. Prothonotary Aalto also commented that refusals motions dealing with hundreds of questions are an abuse of the Court – such motions and “should deal with perhaps no more than 50 or so questions”, except in exceptional circumstances.