The Appellants Appealed an Order of Gill J. dismissing their Application to interview some of the professional advisors of the Respondent, including its auditor and insurance broker. In dismissing the Application, Gill J. had suggested that the Appellant was at liberty to bring an Application pursuant to Rule 5.18.

One of the grounds for Appeal was whether the Chambers Judge erred by determining that Rule 5.18 applied to this scenario. The Court of Appeal was reluctant to determine the applicability of Rule 5.18 as the Appellant had not proceeded pursuant to Rule 5.18. However, the Court of Appeal did provide some helpful commentary on Rule 5.18:

…the Rules do not provide for questioning of persons who are merely witnesses. While Rule 5.18 has arguably somewhat expanded or, at least, codified the case law interpreting the prior Rule, it is relevant that the originators of the new Rule did not intend the rule to be used to discover mere witnesses: see the Alberta Law Reform Institute’s Consultation Memorandum No. 12.2 entitled Document Discovery and Examination for Discovery, which states at para 144: “... the person being examined must have some sort of connection with the corporate party akin to that of an employee or officer and have first hand knowledge of events giving rise to issues in the action”.