FRANIEL v TORONTO-DOMINION BANK, 2020 ABQB 66
1.2: Purpose and intention of these rules
3.68: Court options to deal with significant deficiencies
5.25: Appropriate questions and objections
7.3: Summary Judgment (Application and decision)
This was an Application for an Order to compel the Defendant to answer questions and provide replies to Undertakings from the Questioning of its corporate representative. Before beginning his analysis, Master Robertson noted that it seemed the Defendant’s position was that it owed no duty of care to the Plaintiff and that it was not obliged to provide candid answers to the questions that were asked – he noted that if this belief guided the objections to the questions it was an error. The scope of questions that a party is allowed to ask is determined by the pleadings, and there was no Application brought by the Defendant to strike pursuant to Rule 3.68 nor an Application for Summary Dismissal pursuant to Rule 7.3. In addition, Rule 1.2 directs all parties to use the Rules to “to provide an effective, efficient, and credible system of remedies and sanctions to enforce these rules and orders and judgments.”
One of the questions the Defendant objected to was regarding who made the decision to refuse the Plaintiff’s compensation, claiming that the answer was subject to litigation privilege. Master Robertson explained that the proper grounds of objection were listed in Rule 5.25(2), and amongst them was “any other ground recognized at law”. He noted that information to identify a witness is not privileged. Further, case law suggested that if a rational strategy existed for wanting to know the answer to a question, then it should be sufficient, and in this instance there was a rational strategy for wanting to know the answer to the question. Master Robertson found the Defendant’s absolute refusal to answer the question troubling and noted that if they continued to assert that the answer was not relevant, they would have a difficult time if they decided to adduce evidence later at Trial.
Master Robertson determined, amongst other things, that an Order would be issued with specific directions regarding the objections that were given to questions and Undertaking requests.View CanLII Details