kubik j

1.4: Procedural orders
4.10: Assistance by the Court
5.17: People who may be questioned
5.2: When something is relevant and material
5.6: Form and contents of affidavit of records

Case Summary

In an Action that had been characterized by numerous interlocutory applications and extensive questioning on Affidavits, an Application brought by the Plaintiff before Master Robertson proposed significant amendments to the Statement of Claim. Certain amendments were permitted, subject to a stay of proceedings to provide for an opportunity to Appeal the amendments without further advancement of the litigation. The Plaintiff appealed the stay, and the Defendants brought an Application to extend the terms of the stay.

As a preliminary consideration, the Court observed in reference to Rule 1.4(2)(h) that Master Robertson had sufficient jurisdiction to order a stay. Turning to review of the merits of the stay, Justice Kubik agreed with Master Robertson that there would be irreparable harm in the event a stay was not granted. The Court explained that pleadings set the scope of relevance and materiality in accordance with Rule 5.2 and by extension govern document production pursuant to Rule 5.6 and Questioning pursuant to Rule 5.17. In the absence of a stay, it was possible for prejudicial evidence to be discovered on the basis of unsettled pleadings which would not otherwise be discoverable should the scope of pleadings be changed upon Appeal.

As the Court found that Master Robertson was correct in granting a stay, an extension of the terms of the stay necessarily followed to ensure no proceedings would take place until at least the determination of the Appeal of the amendments. In the interim, the Court invoked Rule 4.10 in directing the parties to attend a case conference to set a path forward in line with the foundational Rules.

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