The Applicants examined three individuals who were not parties to the Action pursuant to Rule 6.8, which deals with questioning non-party witnesses, in an effort to obtain evidence to support their Application to extend an interlocutory Injunction preventing the Respondents from soliciting their employees and clients.  During the examinations, the Applicants requested that the non-party witnesses give Undertakings to produce records and information. The Undertakings were taken under advisement and subsequently refused.

The Applicants submit that the non-party witnesses are obliged to answer Undertaking requests in the same way as witnesses under Rule 6.7, which deals with Questioning on Affidavits made in support of an Application. The Respondents rejected this position, taking the position that a non-party witness is to be treated the same as a witness at Trial and that there is no obligation to answer Undertakings. 

Justice Feasby began by highlighted the types of evidence permissible on Applications and concluded that Affidavits given as evidence on an Application stand in place of viva voce evidence being given in Court at Trial. Accordingly, the mode of adducing evidence on an application is “analogous to the approach used at trial” and fundamentally different than, for example, Part 5 Questioning, where “undertakings are an essential feature”. A witness at Trial, however, is not required to give and answer Undertakings.

Turning to Rule 6.8 and the facts at hand, Feasby J. similarly noted that there is a “fundamental difference” between witnesses examined pursuant to Rule 6.7 and Rule 6.8.  This is because witnesses who have sworn an Affidavit have consented to taking an “active role in the litigation”, either because they are parties or have agreed to assist a party through a supporting Affidavit. As such, it is reasonable to ask such witnesses to answer Undertakings. Witnesses who are examined pursuant to Rule 6.8 are “strangers to the litigation” and have “not consented to taking an active role in the litigation”. As such, it is reasonable that they be treated differently than witness who have provided an Affidavit.  In dismissing the Applicants Application, Justice Feasby found that a Rule 6.8 examination should be no more intrusive than necessary and thus not require that undertakings be given.