In Strathearn Consulting Inc. v. Barbra Ann Kirshenblatt et al, 2015 FC 1404, Justice Strickland dismissed Strathearn Consulting’s appeal, pursuant to Rule 51, of a property inspection order.
Strathearn Consulting commenced the underlying action alleging that the Respondent, an architect, had infringed its copyright by using the design of a recently renovated house at 33 Strathern Road to draft architectural plans for a new property built nearby at 21 Vesta Drive.
Prior to examinations for discovery, the Respondent brought a motion, pursuant to Rule 249, for the inspection of the home at 33 Strathearn Road. The Respondent had retained an expert and wanted the expert to inspect 33 Strathearn in order to compare it to the property designed by the Respondent at 21 Vesta Drive. The Respondent’s motion was not opposed by the homeowner of 33 Strathearn Road, (who was not named as a party in the litigation) but was opposed by the Plaintiff. Prothonotary Tabib granted a motion of the Respondent seeking an order for inspection of the property.
The Appellant brought the appeal on the grounds that the Prothonotary was clearly wrong in granting the Inspection Order on the basis of a deficient record and that the order was premature.
Justice Strickland rejected the Appellant’s argument that the Prothonotary erred in granting the Inspection Order on the basis of a deficient record. The Court found that the deficiencies were not evidentiary in nature but rather related to the scope of the inspection. The Court found that the Prothonotary addressed these concerns in the Inspection Order by outlining the parameters of the inspection including to limiting the inspection to the exterior of the house, and ruling that this would be the only inspection.
Justice Strickland, relying on Apotex raloxifene (FCA), also found that the Prothonotary had not exercised her discretion on a wrong principle but had balanced the requirements of Rule 249 and applied them to the evidence and facts before her:
 …The Prothonotary’s reasons demonstrate that she was of the view that the inspection was necessary and that there was a reasonable possibility that it would reveal something useful for the trier of fact. In other words, she did not accept the Appellant’s contention that the series of photographs that it produced was sufficient, she was clearly of the opinion that the site visit might produce something more stating that “because the house is an adaptation of a previously built, original house, it is not unreasonable that a site visit would be better to inform as to what is original, what is new, and how the two work together than would a series of photographs”. I find no issue or error with this conclusion and note that when taking photographs of the house the Appellant may have focused on similarities with the other house while the Respondent’s expert might focus on differences. Further, the stated immediate purpose of the inspection is to inform the expert’s opinion, not merely to provide further photographs. And, as seen from Apotex FCA 2013, the proposed inspection need not be the only means available to the Respondent, nor must an inspection order be premised on an exceptional case.
The Federal Court’s decision is available here.