The Respondent, Royal Trust Company of Canada in its Capacity as the Trustee of the Honourable Patrick Burns Memorial Trust, brought an Action for oppression against the Appellants, and sought documents and information to determine the next steps in the Action. The Appellants, P Burns Resources, applied to dismiss a part of the Action by way of Summary Judgment. The Respondent then sought to cross-examine on the Appellants’ Affidavit of Records and to conduct Questioning pursuant to Part 5 of the Rules of Court. A Master set aside the appointment for Cross-Examination and Questioning, stating that Summary Judgment provisions are ineffective if a Respondent is entitled to insist on the usual production and discovery process before a Summary Judgment Application is heard. The Respondent then issued further Appointments for Questioning. In response, the Appellants expanded their Summary Dismissal Application to include the entire claim, and refused to attend the Appointments. The Respondent sought an Order requiring the Appellants’ attendance at the appointments, which the Master once again refused.

The Respondent appealed both of the Masters’ Decisions to a Justice of the Court of Queen’s Bench. The Chambers Judge overturned the Master’s Decisions, noting that the Master made no inquiry into the nature of the Action before proceeding on the basis that, in the face of a Summary Judgment Application, the Rules related to Questioning and production should be put on hold. P. Burns Resources appealed.

The Court of Appeal agreed with the Chambers Judge, and stated that the there is no “default position” that the usual production and questioning procedures under Part 5 of the Rules be put on hold pending a Summary Judgment Application. Rule 5.3 provides that a Court may modify or waive any right or power under Part 5, if the harm of complying with the Rule would be “grossly disproportionate” to the likely benefit. Part 5 does not cease operation in face of a Summary Judgment Application. Rather, whether to alter it is in the discretion of the Court. The Court’s discretion must be exercised taking into consideration the purposes of Part 5, including facilitating resolution of issues and discouraging unnecessary conduct and Costs, as provided in Rule 5.1(1).

The Court of Appeal held that, although there will be cases where the circumstances dictate that a Summary Judgment Application should proceed without expending additional time and expenses to satisfy all disclosure requirements under Part 5, this was not such a case. The Court noted that the Chambers Judge considered the nature of the Action, and held that the Justice’s Decision contained no reviewable error. The Appeal was accordingly dismissed.