The Plaintiffs applied to compel the Defendants to provide Answers to Undertakings. The issue was whether the information sought was relevant and material to the issues in the Claim.

With respect to Rule 5.2, Master Robertson noted that in determining whether something is relevant and material the starting point is to consider the Pleadings. The Court also noted that it is not just some aspect of the Pleadings in isolation, but rather all of the Pleadings. The question is whether the information sought could reasonably be expected to significantly help determine one or more of the issues raised in the Pleadings, or to ascertain evidence that could reasonably be expected to significantly help determine one or more of the issues raised in the Pleadings.

Master Robertson observed that the Court must be cautious not to allow the Applicant to go on a fishing expedition to find some evidence to support the allegations it is making. There must be some underlying factual foundation upon which the allegation is based. Master Robertson noted that the Court’s role at this stage was to find the balance between information sought by the Plaintiffs, whether the inquiries are relevant and material, and to try to ensure that the information is properly available to the Trial Court.

The Court also addressed the issue of which Pleadings should be reviewed. The question was whether information should be provided based on the Pleadings that were in place when the Questioning was conducted, as they stood at the time of argument, or at the time of the Decision. The Court concluded that

… if a particular request were not appropriate at the time of the questioning, but would be appropriate now based on the amended pleadings, the undertaking request should be answered. The difference in timing might be a consideration for costs.

Master Robertson considered the areas of inquiry at length and made determinations on each separate group of Undertaking requests.