5.17: People who may be questioned
5.2: When something is relevant and material
5.25: Appropriate questions and objections
5.30: Undertakings
6.7: Questioning on affidavit in support, response and reply to application

Case Summary

The Plaintiffs brought an Application to compel responses to Undertakings. The Undertakings had been refused by the Defendant’s deponent in Affidavits filed with respect to a class action certification hearing. The Court reviewed the principles applicable to cross-examination on an Affidavit pursuant to Rule 6.7, noting that a deponent acts as witness for the purpose of a pending Application. Accordingly, the scope of Undertaking obligations borne by a deponent is limited to information or documents referenced or relied upon in the deponent’s Affidavit, or information relating to an important issue in the Application, the collection of which would not be unduly onerous.

The limited scope of Questioning pursuant to Rule 6.7 was emphasized by reference to the relatively broader scope of Questioning under Part 5 of the Rules. Through Rule 5.17, Part 5 engages the parties or representatives/affiliates of parties to the subject matter of the Action. Part 5 Questioning is for the informational benefit of the questioning party, and as such, the questioned individuals are expected to be fully informed on all matters relevant and material to the issues in the Action pursuant to Rules 5.2 and 5.25, failing which Rule 5.30 provides access to information not within a questioned individual’s immediate knowledge.

Ultimately, the Court concluded that the information sought by the Plaintiffs by way of the Undertakings was not sufficiently related to the issue of certification which was the substance of the Application, and the Application to compel responses to Undertakings was dismissed.

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