The Defendant, ATCO, was ordered by a Master to attend for one day of Questioning. ATCO’s executive, Ms. Southern, did not wish to be questioned, and ATCO appealed to a Justice of the Court of Queen’s Bench. The Chambers Judge, Justice Shelley, dismissed the Appeal. Ms. Southern then was ordered to attend for one day of Questioning in Calgary. ATCO appealed to the Court of Appeal, arguing that the Chambers Judge failed to apply the “relevant and material” test, found at Rule 5.2.

The Court of Appeal stated that a Defendant or its representative cannot escape Questioning simply by arguing that he or she is not liable or did not do what the Statement of Claim alleges. A Plaintiff is entitled to have the Defendant or its representative pledge his or her Oath to their statements. Ms. Southern was not named as a party, but was to be examined as an officer or an employee. The Court observed that the additional test in Rule 5.17(1) was whether she had or appeared to have relevant and material information that was acquired because of the office she held or her employment. The Plaintiff swore that the Defendants did have such information. The Defendants produced some evidence to the contrary on a few issues, but they adduced no complete contradiction. The Court noted that Rule 5.8 contained language that suggested that contradictions and uncertainty was to be expected before Questioning.

ATCO’s Factum contained argument for an exemption from Questioning under Rule 5.3(1). The Court stated that there was no evidence to support the exemption in Rule 5.3(1)(a), which is about abusive, oppressive, improper or tediously lengthy disclosure processes. Rule 5.3(1)(b) is about expense, delay, danger or difficulty in giving disclosure grossly disproportionate to the likely benefit. The Court observed that the language is strong, and being busy does not begin to meet that test. In the result, the Appeal was dismissed, and directions were given with respect to Questioning.