5.19: Limit or cancellation of questioning
5.2: When something is relevant and material
5.25: Appropriate questions and objections

Case Summary

The Applicant, Pembina Pipeline Corporation (“Pembina”), applied to limit the number of its current and former employees that the Defendants (collectively referred to as “Coney”) would be allowed to question in the underlying litigation. Specifically, Pembina sought an Order declaring that four of the employees that Coney sought to examine should not be produced for Questioning (the “Proposed Witnesses”).

Justice Romaine noted that while the Rules do not expressly limit the number of corporate witnesses an adverse party may question, Rule 5.19(a) allows the Court to limit that number. Her Ladyship noted that the issue for the Court to grapple with was where to draw the line between legitimate and necessary questioning and questioning that is merely “fishing” for evidence without a reasonable basis or that has been proposed for illegitimate strategic reasons.

Romaine J. reviewed Rules 5.2 and 5.25 and held that during Questioning a person is only required to answer relevant and material questions, and that a question is deemed relevant and material only if the answer to that question could reasonably be expected either: (a) to significantly help determine one or more of the issues raised in the pleadings, or (b) to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the pleadings.

In this context, Justice Romaine reviewed each of the Proposed Witnesses and determined that Coney’s proposed Questioning of the Proposed Witnesses could not be justified. Her Ladyship concluded that Coney had not established that the Proposed Witnesses had any relevant and material information on the issues in the underlying litigation and granted Pembina’s application accordingly.

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