5.17: People who may be questioned
5.3: Modification or waiver of this Part
5.5: When affidavit of records must be served

Case Summary

The Plaintiff served the Defendants with Appointments for Questioning on an Affidavit of Records, and Appointments for Questioning under Part 5 of the Rules prior to the Defendants’ Application for Summary Dismissal of the Action. The Master set aside the Appointments for Questioning on the basis that a party should not be able to insist on the usual production of documents and Questioning prior to the hearing of a Summary Judgment Application. The Plaintiff appealed.

Justice Macleod observed that an Application for Summary Judgment or Summary Dismissal may be brought prior to completing pre-Trial steps. His Lordship considered whether the obligations or powers under Part 5 of the Rules are stayed or held in abeyance pending the Application. Rule 5.5 makes production of an Affidavit of Records mandatory and Rule 5.17 grants the right to question a party. Only Rule 5.3 grants the Court the ability to modify or waive these rights and obligations. The Rule also sets out the grounds which would warrant modification of the Rules in Part 5, such as acting in a manner that is abusive or improper. No other Rules suspend the operation of Part 5 in the face of a Summary Judgment Application. Macleod J. acknowledged that certain circumstances may make it appropriate to suspend the rights and obligations under Part 5, but to do so without any analysis is contrary to the meaning of Rule 5.3. The Court “before attenuating those powers must engage in some sort of cost benefit analysis”.

In the circumstances, the evidence and factual underpinnings of the Plaintiff’s case were within the Defendants’ knowledge and possession. Therefore, the request to question the Defendants and review the content of the Affidavit of Records was not unreasonable. The Appeals were granted.

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