5.17: People who may be questioned
6.8: Questioning witness before hearing

Case Summary

The Plaintiff, the litigation representative of the deceased, commenced an Action against the Defendant, the trustee for the Estate, for unjust enrichment. The Defendant denied the claim and counterclaimed. The Defendant then brought an Application for Summary Dismissal, as well as an Application for procedural Orders to require the Plaintiff’s accountant, a non-party, to produce documents and attend Questioning pursuant to Rule 6.8, and to require the production of documents by the Plaintiff’s lawyers.

Mahoney J. denied the Defendant’s procedural Application and held that the records sought from legal counsel were not producible as they were not relevant and were privileged. The records requested from the accountant were also not discoverable because they were irrelevant, privileged or both. The Court also took notice of the accountant’s argument that the Defendant had attempted to circumvent Rule 5.17 and obtain pre-Trial Discovery of the accountant through the use of Rule 6.8. Based on the finding that the records did not need to be produced, it was not necessary to “delve into the proprietary” of using Rule 6.8 to examine non-parties for a Summary Dismissal Application. The Application was dismissed.

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