Parties:

• Applicants: iFIT Inc., The Bikini Body Training Company Pty Ltd., and iFIT Santé & Fitness Inc.
• Respondent: Safe Sweat Fitness Ltd.

Key Issues:

1. Financial Document Production: Should the respondent be ordered to produce financial documents relevant to the accounting of profits claim?
2. Subpoena for Cross-Examination: Should the court issue a subpoena requiring Emre Ozgur or Andrea Kloegman (executives at Safe Sweat Fitness Ltd.) to attend cross-examination on financial documents?

Procedural Background:

• The applicants filed a notice of application on May 18, 2023, asserting trademark infringement and other claims.
• Affidavit evidence was served by the parties according to procedural rules.
• The applicants found the respondent’s affidavits insufficient and requested financial documents and cross-examination of key executives.

Court's Analysis and Decision:

1. Financial Document Production:

   • The applicants cannot use Rule 94(1) to compel the general production of documents, as the rule only applies to cross-examinations of existing affiants.
   • The court emphasized that parties choosing to proceed by application must be prepared with their evidence from the outset.

2. Subpoena for Cross-Examination:

   • Applying the test from Tsleil-Waututh Nation v. Canada, the court found that there was another way to obtain evidence: proceeding by action instead of application.
   • The applicants chose to proceed by application and should not circumvent its limitations through a subpoena.

Conclusion:

• The court dismissed the applicants' motion and ordered them to pay the respondent's costs of $4,000 by January 31, 2024.