Morse Shoe (Canada) Ltd. v. Zellers Inc. et al., (1997) 100 O.A.C. 116 (CA)

• Judge: Finlayson, McKinlay and Austin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 16, 1997
• Jurisdiction: Ontario
• Citations: (1997), 100 O.A.C. 116 (CA)

Morse Shoe Ltd. v. Zellers Inc. (1997), 100 O.A.C. 116 (CA)

MLB headnote and full text

Morse Shoe (Canada) Limited (plaintiff/respondent) v. Zellers Inc., Hudson's Bay Company and The Oshawa Group Limited (defendants/appellants, Zellers Inc. and Hudson's Bay Company)

(C25974)

Indexed As: Morse Shoe (Canada) Ltd. v. Zellers Inc. et al.

Ontario Court of Appeal

Finlayson, McKinlay and Austin, JJ.A.

April 16, 1997.

Summary:

Morse Canada sued Zellers for breach of contract. Zellers sought production of docu­ments by Morse Canada's bank (a nonparty) under rule 30.10(1) as gaps in discovery could be filled by the bank's documents. A motions judge dismissed the application. Zellers appealed.

The Ontario Court of Appeal allowed the appeal.

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - Morse Canada sued Zellers for breach of contract - Subsequent to Zellers' alleged breach of contract, Morse Canada went out of busi­ness - Morse Canada's financial position in 1990 and 1991 was very relevant to the issue of its capacity to perform the con­tracts - Zellers sought production of docu­ments by the Morse Canada's bank under rule 30.10(1) - A motions judge dismissed the application - Zellers appealed - The Ontario Court of Appeal allowed the appeal - Although an order under rule 30.10 should only be made in exceptional cases, special circum­stances warranted an order: Morse Canada had gone out of business; its knowledge­able personnel had dispersed; its docu­ments had gaps; Morse Canada had numerous contacts with its banker during the relevant periods; and the bank could probably fill in many of the gaps in Morse Canada's knowledge and docu­ment­ation.

Practice - Topic 5729

Judgments and orders - Final judgments and orders - What constitute - A motions judge dismissed Zellers' application for production of documents by a nonparty under rule 30.10(1) - Zellers appealed - The Ontario Court of Appeal held that the motions judge's order was final and that it had the jurisdiction to hear the appeal notwithstanding that the only opposition to the application and the appeal came from the plaintiff rather than the nonparty - See paragraphs 2 to 6.

Practice - Topic 8984

Appeals - When appeal available - From final judgment or order - [See Practice - Topic 5729 ].

Cases Noticed:

Ontario (Attorney General) et al. v. Stavro et al. (1995), 86 O.A.C. 43; 26 O.R.(3d) 45 (C.A.), refd to. [para. 3].

Belmont (Village) v. Snyders (Joe) Con­struction Ltd. et al. (1989), 36 O.A.C. 235; 44 C.P.C.(2d) 292 (Div. Ct.), refd to. [para. 4].

Bryson et al. v. Kerr (1976), 13 O.R.(2d) 672 (Div. Ct.), refd to. [para. 4].

Buck Brothers Ltd. et al. v. Frontenac Builders Ltd. et al. (1994), 73 O.A.C. 298; 19 O.R.(3d) 97 (C.A.), refd to. [para. 4].

Bassel's Lunch Ltd. v. Kick, [1936] O.R. 445 (C.A.), refd to. [para. 4].

Binkley v. Matera, [1973] 1 O.R. 386 (C.A.), refd to. [para. 4].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 30.10(1) [para. 1].

Counsel:

James A. Hodgson and S. Gordon McKee, for the appellants, Zellers Inc. and Hud­son's Bay Co.;

Dennis R. O'Connor, Q.C., and Aaron A. Blumenfeld, for the respondent.

This appeal was heard on March 17, 1997, before Finlayson, McKinlay and Austin, JJ.A., of the Ontario Court of Appeal.

The following judgment was delivered by Austin, J.A., and released on April 16, 1997.