This was a Decision delivered in Case Management in response to the Application of three proposed examinees to cancel or postpone their Questioning.

The underlying Action was a complex and slow-moving Class Action against the Alberta Government for injuries resulting from the Government’s failure to make timely arrangements for children in its care. The Applicants argued that they should not be obliged to attend for Questioning, as demanded by the Plaintiffs, on the basis that the Plaintiffs had not demonstrated that the Applicants’ possessed additional or superior information to the Government Officer, and that their Questioning was premature pending further steps in the litigation. The Applicants submitted that the proper approach was to await a complete Affidavit of Records from the Government, question the Government Officer and obtain necessary Undertakings, and then proceed to question the Applicants, if necessary. In response, the Plaintiffs argued that they were entitled to question the Applicants, pursuant Rule 5.17, at any time and in any order they deemed strategically appropriate. The Court agreed with the Plaintiffs.

Since the Applicants were not Parties to the Action, the Court held that the Application to cancel or postpone Questioning could only be argued on the basis of Rule 5.19(b), which permits limitations on Questioning where the proposed Questioning is unnecessary, improper or vexatious. The Court held that it was not necessary in the circumstances for the Applicants to adduce Affidavit evidence in support of their position but observed that some basis must be argued to support the conclusion that the proposed Questioning was unnecessary, improper or vexatious. The Court rejected the Applicants’ position that the Plaintiffs bore the burden of demonstrating that the proposed Questioning was proper.

Noting that the Applicants had not argued that their Questioning was unnecessary, improper or vexatious, the Court rejected the Application. In response to the Applicants’ submission that their Questioning was premature in light of outstanding steps, the Court observed that it was preferable to permit various steps to proceed in tandem to avoid unnecessary delay, provided the Plaintiffs accepted the risk associated with proceeding to Questioning without completing such steps. In response to the Applicants’ submission that their Questioning should follow the Questioning and responses to Undertakings of the Government Officer, the Court held that the Plaintiffs were entitled to question witnesses in whatever order they chose, again provided they accepted the risks of such ordering. Absent limitations imposed at the request of a Party, pursuant to Rule 5.19(a), it was not necessary to limit the number or identity of proposed examinees in a general way, as proposed by the Applicants.