fraser, mcdonald and martin jja

5.13: Obtaining records from others

Case Summary

The Appellant, Ms. Manolakos appealed a Decision by the Case Management Judge, who declined to compel production of documents by non-parties, or to order that the non-parties answer certain interrogatories.

The Appeal was allowed in part. The Court observed that the Appellant sought production of the documents in order to establish which assets were matrimonial assets, but not to attack the Respondent’s credibility. The Court confirmed that ordering non-parties to produce documents pursuant to Rule 5.13 does not require exceptional circumstances, and non-parties may be subpoenaed to give evidence at Trial and to attend with the requested documents in hand. The Court observed that discovering documents at that late stage may lead to delay. The Court was satisfied that there was a sufficient factual foundation to meet the requirements of Rule 5.13, and ordered that the documents be produced.

The Court of Appeal noted that the question of whether a Case Management Judge has the jurisdiction to order non-parties to answer interrogatories was not raised before the Case Management Judge, nor was the issue argued at the Appeal. As a result, the Court declined to order that the non-parties answer the interrogatories.

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