The Applicant sought an Order allowing it to Question an employee of a company related to the Defendant pursuant to Rule 5.18, which allows a person to be Questioned where that person has provided services for the Defendant and can provide the best evidence on the issue.

Both parties conceded that, although the individual sought to be Questioned had provided services to the Defendant corporation, those services were not related to the information which he possessed which was relevant to the Action. Nevertheless, counsel for the Applicant argued that Rule 5.18 applied so long as the individual provided services to the Defendant at some point and he could provide the best evidence on the issues in dispute.

In reaching its Decision the Court referred to former Rule 200 and the jurisprudence surrounding that Rule. Master Mason noted that Alberta case law in respect of Rule 200 permitted Questioning of an individual who did not meet the strict legal definitions of an “officer” or an “employee”, so long as the individual had relevant and material evidence by virtue of the services he or she provided to the party. However, relevant jurisprudence also made it clear that non-party witnesses cannot be subject to Questioning simply because they “may have something to say”.

The Court held that Rules 5.17 and 5.18 codify former Rule 200 and the relevant case law interpreting that Rule. The purpose of Rule 5.18, as identified by the Court, is to:

… allow questioning of persons akin to employees who have gained relevant and material knowledge as a result of providing services to a party corporation. The required connection is implicit in the rule and fundamental to the Alberta approach to questioning non-parties prior to trial.

In denying the Applicant’s request, the Court found that it would be inconsistent with Rules 5.17 and 5.18 to “conclude that service providers who may have acquired relevant and material knowledge outside of the service relationship, can be questioned prior to trial in the same fashion as an employee of a party”. The Court added that it “is the provision of services in relation to the matters at issue in the action that transforms a mere witness into a service provider within the meaning of Rule 5.18”.

The Court also denied the Applicant’s request to obtain the same relief pursuant to Foundational Rules 1.2 and 1.4, holding that Rules 1.2 and 1.4 are “not intended to provide a platform to subvert other rules. Rather, they augment specific rules and allow the court to craft remedies appropriate to particular circumstances as needed”.