ABI Biotechnology Inc. v. Apotex Inc. et al.

• Jurisdiction: Manitoba
• Court: Court of Appeal (Manitoba)
• Judge: Huband, Philp and Helper, JJ.A.
• Citation: (1995), 102 Man.R.(2d) 108 (CA)
• Date: 24 May 1995

ABI Biotechnology v. Apotex Inc. (1995), 102 Man.R.(2d) 108 (CA);

    93 W.A.C. 108

MLB headnote and full text

ABI Biotechnology Inc. (plaintiff/appellant) v. Apotex Inc., Iser Kay, Jack Kay, Craig Baxter, Dr. Bernard Sherman (defendants) and Price Waterhouse Ltd. (defendant/respondent) and Albert Friesen (third party)

(Suit No. AI 95-30-02095)

Indexed As: ABI Biotechnology Inc. v. Apotex Inc. et al.

Manitoba Court of Appeal

Huband, Philp and Helper, JJ.A.

June 21, 1995.

Summary:

Apotex Inc. appointed a receiver and manager (Price Waterhouse) to assume control of ABI Biotechnology. ABI brought an action claiming that the appointment was unlawful, and, alternatively, that the receiver failed to discharge its duties as required. Price Waterhouse moved to require ABI to post security for costs. In support of its motion, Price Waterhouse filed affidavits of a former employee (Tannenbaum) and a current employee (Solman). Attached to Tannenbaum's affidavit were two reports prepared during the time he supervised the receivership. In his affidavit Solman stated that he had reviewed the reports and dis­cussed them with Tannenbaum. In cross-examining Solman on his affidavit, ABI sought to question him on the contents of the reports. Price Waterhouse objected. ABI moved to compel Solman to answer "proper questions arising out of his affidavit".

A Master of the Manitoba Court of Queen's Bench ruled that ABI could not ask questions regarding the reports. ABI appealed.

The Manitoba Court of Queen's Bench dismissed the appeal. The court concluded that in circumstances where ABI was im­pecunious, but its shareholders were not, questions dealing with the merits of the case were not relevant and were not to be per­mitted. ABI appealed.

The Manitoba Court of Appeal allowed the appeal and ordered that Solman answer all relevant and otherwise proper questions arising out of his affidavit.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination of deponent - The Manitoba Court of Appeal discussed the limits of proper questions to be asked of an affiant on a cross-examination on an affidavit - See paragraphs 11 and 12.

Practice - Topic 8105

Costs - Security for costs - Considerations - Queen's Bench Rule 56.01 provided that the court could make an order for security for costs - The Manitoba Court of Appeal considered the wording of the rule and held that in the case of an impecuni­ous corporate party, evidence that share­holders of the corporation had the means to pro­vide security for costs did not pre­clude a consideration of all other relevant factors - The court stated that "precluding the master or judge from considering such matters as the merits of the case, the pur­pose of the application for security for costs, the cause of the corporate party's impecuniosity, the size and nature of the corporation and the hardship incurred if the security is ordered unduly fetters the discretion that a clear reading of the rule bestows" - See paragraph 19.

Practice - Topic 8112

Costs - Security for costs - Where plain­tiff insolvent or impecunious - [See Prac­tice - Topic 8105 ].

Cases Noticed:

Smith Bus Lines Ltd. v. Bank of Montreal (1987), 61 O.R.(2d) 688 (H.C.), not folld. [para. 6].

Thomson v. Thomson, [1948] O.W.N. 137 (H.C.), refd to. [para. 11].

Superior Discount Ltd. v. Perlmutter (N.) & Co. et al., [1951] O.W.N. 897 (Mas­ter), refd to. [para. 11].

Lubotta v. Lubotta, [1959] O.W.N. 322 (Master), refd to. [para. 11].

Toronto Board of Education Staff Credit Union Ltd. v. Skinner (1984), 46 C.P.C. 292 (Ont. H.C.), refd to. [para. 11].

Moyle v. Palmerston (Town) Police Ser­vices Board (1995), O.J. No. 627 (Gen. Div.), refd to. [para. 11].

Seaway Trust Co. v. Markle (1988), 25 C.P.C.(2d) 64 (Ont. S.C. Master), refd to. [para. 12].

Bland v. National Capital Commission et al. (1989), 29 F.T.R. 232 (T.D.), refd to. [para. 12].

Swing Paints Ltd. v. Minwax Co., [1984] 2 F.C. 521 (T.D.), refd to. [para. 12].

Parkinson (Sir Lindsay) & Co. v. Triplan Ltd., [1973] 2 All E.R. 273 (C.A.), refd to. [para. 20].

Mackley v. University of Alberta, [1933] 2 W.W.R. 330 (Alta. C.A.), refd to. [para. 21].

Launer v. Sommerfeld (1964), 48 W.W.R.(N.S.) 224 (B.C.S.C.), refd to. [para. 21].

Bowles v. Western Approaches Ltd. (1978), 9 B.C.L.R. 226 (Co. Ct.), refd to. [para. 21].

Kask v. Shimizu (1986), 69 A.R. 343; 44 Alta. L.R.(2d) 293 (Q.B.), refd to. [para. 21].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, rule 56.01 [para. 18].

Counsel:

S. Green, Q.C., and C.G. Wright, for the appellant;

C.E. Carlson and G.B. Taylor, for the respondent.

This appeal was heard on May 24, 1995, and June 21, 1995, before Huband, Philp and Helper, JJ.A., of the Manitoba Court of Appeal. The decision of the court was pro­nounced on June 21, 1995, and the following reasons were delivered by Helper, J.A., on July 18, 1995.