1.2: Purpose and intention of these rules
3.46: Third party defendant becomes party
5.18: Persons providing services to corporation
5.25: Appropriate questions and objections
6.7: Questioning on affidavit in support, response and reply to application
10.31: Court-ordered costs award

Case Summary

The Applicant/Defendant in this Matter sought to compel the Respondent/Third-Party Defendant’s representative to answer questions and undertakings refused during Questioning. The Respondent cross-applied to amend its Third-Party Statement of Defence and submitted that the amendment, if granted, would defeat the Applicants’ Application to compel answers.

As a preliminary matter, the Applicant submitted that it had an absolute right to cross-examine the Respondent’s affiant and sought an adjournment of approximately one month citing Rule 6.7, which provides for a general right to cross-examine. Rule 1.2 suggests that a pragmatic and flexible approach to Rule 6.7 may be appropriate in exceptional circumstances.

The Court found that the present case was an exceptional circumstance because: 1) the parties, counsel, and the Court committed to a strict pre-trial schedule and reserved significant trial time; and 2) the matter was case managed by Feasby J and therefore the Court was able to assess whether the Applications could be resolved fairly and justly without cross-examination. Feasby J found that cross-examination prior to the hearing of the Application was not required to decide the matter and denied the Applicants’ adjournment request.

The Respondent sought to amend its pleadings to narrow the scope of the dispute to only focus on one project in which it was involved (rather than other projects on which it conducted remediation work); it submitted that it should then not be required to answer any questions related to remediation work.

The Court noted that the scope of Questioning is determined by the pleadings at the time of Questioning. Parties plan their case strategy based on pleadings and prepare for Questioning as the pleadings are, and not as they might be. A party cannot refuse relevant questions and undertakings then amend its pleadings after the fact to avoid giving answers. As such, the Respondent was stuck with the pleadings as they existed at the time of Questioning.

Rule 5.25 requires a person during Questioning to answer relevant and material questions. The questions that the Respondent refused to answer could logically be expected to significantly help determine one or more of the issues raised in the pleadings.

The Respondents submitted that if the Applicants’ wished to obtain information relating to the remediation work, it must meet the requirements of Rule 5.18, i.e., the Respondents should be treated as a stranger to the litigation regarding the remediation work and that the Applicants’ must show that the information they seek is not available from any other party to the litigation.

The Court found this position to be untenable. Rule 3.46 provides that a Third-Party Defendant is “a party to the action between the plaintiff and defendant”. Absent the Third-Party Claim being severed from the main Action, the relevance and materiality for Questioning of Third Parties is determined by all the pleadings in an Action. The Court required the Respondent to answer the refused questions and undertakings.

The Respondent submitted that the burden of discovery fell disproportionately upon its shoulders as a “minor party”. The Court agreed and used its discretion pursuant to Rule 10.31 to allocate the financial burden of answering undertakings through a costs award. The Court found that the Respondent was in a position that was analogous to a stranger in litigation that was subjected to Questioning pursuant to Rule 5.18 where the questioning party bears the costs of the party being questioned. Accordingly, the Court ordered that once the Respondent answered the undertakings, it could apply to the Court for costs.

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