5.17: People who may be questioned
5.18: Persons providing services to corporation
5.2: When something is relevant and material
5.3: Modification or waiver of this Part
5.6: Form and contents of affidavit of records

Case Summary

Grosse J. heard the Appeal of Master Farrington’s Decision, whereby Master Farrington granted the Respondent’s Application to question representatives of Shelby Engineering Ltd. (“Shelby”) pursuant to Rule 5.18, and denied the Appellant’s application to compel answers to certain Undertakings. Shelby was not a party to the proceedings, but rather was the Appellant’s consultant.

Grosse J. considered Rule 5.18 and ultimately disagreed with Master Farrington’s conclusion that the Respondent had satisfied the test set out in Rule 5.18 based on the facts. In particular, Her Ladyship considered the fact that the Respondent could obtain the information it required by way of undertakings and noted that the Rules contemplate direct questioning of the Shelby representatives “as the exception or the backstop only.”

Her Ladyship further commented on the nature of Rule 5.18 as follows:

Rule 5.18 is not a third party discovery rule. In Alberta, we do not have pre-trial discovery of mere witnesses. Parties are generally limited to questioning other parties prior to trial. Rules like 5.17(1)(b) and 5.18 are in place in recognition of the fact that a corporation only acts and speaks through people, and often, relevant and material information of a corporation will be spread across multiple people. Rule 5.18 applies only to corporate parties.

Grosse J. also maintained that “the nature of the information sought and the nature of the relationship between the corporate party litigant and the service provider vis à vis that information” will be important considerations in determining whether Rules 5.18(1)(b) and (c) are satisfied. Her Ladyship maintained that reliance on a consultant does not necessarily satisfy the requirements of Rule 5.18.

Justice Grosse then considered the nature of the Undertakings at issue. Some of the Undertakings requested the disclosure of certain documents; at issue was whether the records requested were under the Respondent’s control. In that context, Grosse J. considered Rule 5.6, which requires that all relevant and material records that “are or have been under the party’s control” be included in a party’s Affidavit of Records. Grosse J. also considered Rule 5.2 in the context of some other Undertakings relating to the production of records which “could reasonably be expected to significantly determine one or more of [the] issues.” Finally, Grosse J. ordered that the Appellant would be responsible for reasonable fees and disbursements incurred in retrieving and producing certain of the documents requested, pursuant to Rule 5.3.

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