BROOKDALE INTERNATIONAL v CRESCENT POINT ENERGY, 2023 ABKB 120
5.1: Purpose of this Part (Disclosure of Information)
5.17: People who may be questioned
5.2: When something is relevant and material
5.25: Appropriate questions and objections
5.4: Appointment of corporate representatives
This Application concerned objections at Questioning and objections to Undertakings. During Questioning of the Plaintiffs’ corporate representative, the Plaintiffs’ counsel objected to certain questions and Undertakings. The Defendants’ counsel believed the objections to be improper and that the Plaintiffs ought to be compelled to answer. The Plaintiffs opposed the Application, arguing that the questions and related Undertakings sought to obtain evidence on which the Plaintiffs may have relied on during Trial, rather than facts that were independently known by the Plaintiffs and maintained the objections were appropriate.
While dealing with the permitted scope of questions at Questioning, the Court referred to disclosure’s purpose, as defined in Rule 5.1. The Court noted that a person is only required to respond to questions that are material and relevant, and questions in respect of which an objection is not upheld under Rule 5.25(2). The Court then looked to Rule 5.2 to set out when something is relevant and material.
The Court reviewed when counsel can object to an oral or written question, as set out in the parameters of Rule 5.25. In reference to the old Rule 200(1), which allowed for questions “touching the matters in question”, the Court noted the narrowed scope of 5.17(1)(d), which allows for the Questioning of Parties adverse in interest on relevant and material information.
The Court then addressed a corporation’s right to select a corporate representative of its choosing, as allowed by Rule 5.4. A corporate representative needs to provide evidence on the corporation’s behalf, as per Rules 5.4(1) and (3); however, if the corporate representative failed to inform himself or herself or is found unsuitable, the Court has the discretion to appoint an additional or substitute representative pursuant to Rule 5.4(6).
Using the Rules and case law as a guide, the Court reviewed each objection during Questioning and each objection to Undertaking, and determined whether the Plaintiff was required to answer each one or not. The Court also held, among other things, that pursuant to Rule 5.17(1)(d), only individuals who have or appear to have relevant and material information may be questioned; just because a question seems pragmatic, does not suggest the question is also relevant and material; and sometimes one can overcome an objection by simply rephrasing the question.View CanLII Details