5.25: Appropriate questions and objections
5.3: Modification or waiver of this Part
6.31: Timing of application and service
6.32: Notice to media
6.34: Application to seal or unseal court files

Case Summary

The Defendants sought an Order to compel the corporate representative of the Plaintiff to provide answers to questions arising from the Cross-Examination on an Affidavit. The Plaintiff brought an Application seeking a temporary Sealing Order in relation to certain Records. 

In relation to the Defendants’ Application, the Affidavit had been filed by the Plaintiff in support of its Application Staying the Counterclaim pending Arbitration. The Plaintiff refused to answer questions that went to the merits of the Counterclaim. Section 7 (1) of the Arbitration Act, RSA 2000, c A-43 mandates that the Court shall grant a Stay of proceedings if the parties have contracted to have their disputes Arbitrated. Section 7(2) outlines exceptions to section 7(1) whereby the Court may refuse to grant a Stay. One of the exceptions found in section 7(2) is if the matter in dispute is appropriate for Summary Judgment (the “Summary Judgment Exemption”). The Defendants argued that a Stay Application brought the Summary Judgment Exemption into play. The Defendants further argued that since a Stay is analogous to a Summary Dismissal, all of the issues raised in the Affidavit and Counterclaim were relevant and subject to Questioning.

The Court held that in order for the Defendants to rely on the Summary Judgment Exemption, the Defendants were required to actually bring a Summary Judgment Application, including supporting Affidavit evidence. Without such an Application before the Court, the Defendants could not rely on the Summary Judgment Exemption. As well, the Court held that a Stay Application is not analogous to a Summary Dismissal, but is akin to an Application regarding forums conveniens. The Defendants’ Application to compel answers was denied.

In regard to the Plaintiff’s Application, the Court held that the Records were confidential, contained trade secrets, and the release of the Records would cause serious harm to the Plaintiff. Additionally, the salutary effects of temporarily sealing the documents outweighed any deleterious effects. Compliance with Part 6, Division 4 of the Rules was not addressed by the Plaintiff at the hearing of the Application. Thus, the Court held the temporary Sealing Order would expire in 7 days if the Plaintiff had not complied with the Rules, and if the Plaintiff had complied with the Rules the Sealing Order would remain in effect pending the outcome of the Stay Application and, if successful, the Arbitration.

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