mcdonald, wakeling and crighton jja

5.1: Purpose of this Part (Disclosure of Information)
5.19: Limit or cancellation of questioning
5.3: Modification or waiver of this Part

Case Summary

The Defendant appealed the Decision of the Chambers Judge to uphold a Master’s Decision setting aside the Defendant’s Notice of Appointment to conduct Part 5 Questioning of the Plaintiff prior to the Plaintiff’s Application for Summary Judgment.

Crighton J.A., writing for the Court briefly noted that a Master’s decision is reviewable on a correctness standard and that a decision of a Chambers Judge regarding production and discovery is a discretionary decision entitled to deference on review.

Crighton J.A. noted that there is no Rule suspending the usual proceedings relating to Part 5 Questioning once a party files a Summary Judgment Application. Justice Crighton then reviewed Rules 5.1, 5.3, and 5.19 and found that those Rules discouraged unnecessary delay, and permitted the Court to cancel unnecessary appointments or make any Order warranted in the circumstances if the delay resulting from complying with a Rule is grossly disproportionate to the likely benefit. The Court then found that it was implicit in the Chambers Judge’s reasons that he had concluded that Part 5 Questioning would add a disproportionate expense if undertaken prior to the Application for Summary Judgment. For this reason, there was no error in the Chambers Judge’s Decision and the Court of Appeal dismissed the Appeal.

View CanLII Details