Gill J

5.18: Persons providing services to corporation

Case Summary

The Plaintiffs sought an Order permitting them to interview representatives of the Respondent’s insurance broker and the Respondent’s accountant, in relation to an Action alleging breach of contract and oppression against the Defendants. The accountants and broker each declined the Plaintiffs’ requests for interviews on the basis that they could not participate without the consent of their client, which consent had been withheld. The Plaintiffs submitted that the information they sought to obtain from the interviews was relevant and material to the issues in the Action. They also took the position that there is no property in a witness. The Respondents agreed that there is no property in a witness, but contended that there was no authority for the Court to compel the Respondent to consent to the interviews. Further, the Respondents suggested that the proper procedure for Questioning was set out in Rule 5.18 of the Alberta Rules of Court, which provides that if relevant and material information cannot be obtained from the examination of officers or employees of a corporation, the parties may agree, or the Court may direct, that the seeking party Question, under oath, a person who has provided services for the corporation.

Gill J. found that there is well established law that there is no property in a witness and that a party should not be able to interfere with another party’s access to potential witnesses. However, in the circumstances, Gill J. found that the issues were more complex and concluded that the Application, if granted, would have the effect of circumventing the Respondent’s refusal to consent and potentially of relieving the accountants and the broker of their perceived contractual or professional obligations. The Application was dismissed and the Plaintiffs were permitted to bring an Application under Rule 5.18 when and if deemed necessary.

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