Mediatube Corp v Bell Canada, 2015 FC 391

This refusal motion arose in the context of an action by MediaTube Corp and Northvu Inc (“MediaTube”), which claims that the defendants, Bell Canada and Bell Aliant Regional Communications, Limited Partnership (“Bell”) infringed Canadian Patent No. 2,399,477. MediaTube used the phrase under advisement to answer a significant number of questions during examinations for discovery, which Bell alleged was a tactic used to script and avoid answers. The Federal Court (“FC”) agreed with Bell and recognized the increasing and improper use of the phrase under advisement. Although the FC criticized refusal motions for being unnecessarily time consuming and expensive, the FC granted Bell’s refusal motion. Recently, more steps have been taken that serve to limit the use of refusal motions and disallow counsel from using the phrase under advisement in examinations.

Background

Bell sought an order requiring MediaTube to attend in person to answer questions which up until that point were refused or taken under advisement during the examinations for discovery. The examination for discovery of MediaTube had over 9,000 questions and the questions in dispute fell into the following categories: infringement, validity, and disclosure. [5]

In seeking this order, Bell alleged that MediaTube and its counsel were attempting to script answers by taking an abundance of questions under advisement. Bell alleged that MediaTube was acting improperly, misusing the examination for discovery process and that Bell should consequently be entitled to direct answers from the witness on discovery, without interference by counsel. MediaTube denied Bell’s allegations contending that the questions in dispute were reasonably taken under advisement since they required investigation and inquiry from other sources to ensure accurate answers. [2]

“Under Advisement”

The phrase under advisement has been increasingly misused on examinations for discovery as a tactic to prevent witnesses from answering questions. [8-9] The FC cautioned counsel to refrain from using the phrase as a means of objecting. [9] While the Federal Court Rules (the “Rules”) discuss categories of objections (Rule 242(1)), under advisement is not a recognized objection and there is no provision in the Rules permitting its use as a response to a question. [8] The FC held that without an explanation accompanying the phrase, it “is nothing other than an interruption of the examination.” [10] Witnesses should be permitted to answer proper questions. When a witness does not know an answer to a question, their lack of an answer is the answer and an undertaking may be appropriate. The FC cautioned that, “’under advisement’ should not be used as a weapon to interfere in the flow and conduct of an examination.” [22]

Refusal Motions

Refusal motions are brought to compel a person who has been examined to answer a question. The FC discouraged the use of refusal motions, stating that they “have become the scourge of litigation in this Court, particularly, IP litigation.” [16] Refusal motions involving hundreds of questions have become the norm and are increasingly being used as part of a litigation strategy. Refusal motions unnecessarily take up Court time by often discussing trivial or non-essential questions, which in turn disadvantages other litigants. The FC recommended that, except in exceptional circumstances, refusal motions should deal with no more than 50 questions. [16]

The Order

Although the FC discouraged and criticized the use of refusal motions, the FC recognized the inadequacy of parties answering questions under advisement and the importance of discoveries as fact-finding exercises. The FC ordered relevant questions taken under advisement during the oral examination for discovery of MediaTube’s witnesses and which MediaTube agrees to answer to be given by re-attendance.

Commentary

There has been an increase in litigation involving unnecessary interruptions during examinations through the improper use of under advisement as a quasi objection. However, under advisement is not an enumerated ground for objection in the Rules and should not be used by counsel without an explanation. [10] The Rules do not allow questions to be taken under advisement, as questions must either be answered or refused. Furthermore, the FC released a Notice to the Profession in June 2015, which places limits on the discovery process. Of great importance, the Notice explicitly states that, “no questions will be permitted to be taken under advisement.”