The Defendant applied to Question the Plaintiff’s solicitor who was involved in negotiations of a commercial deal which was in dispute. The Defendant sought to Question the solicitor as the Plaintiff’s employee under Rule 5.17(1)(d).

Master Prowse considered the changes in the Rules from the former Rule 200 to the current Rules 5.17 and 5.18, and noted that Rule 5.17 is “largely a restatement” of former Rule 200. Master Prowse observed that, under Rules 5.17 and 5.18, it is no longer necessary to classify a “consultant” as an officer or employee of the Plaintiff in order for that person to be questioned. With respect to a consultant providing services to a corporation, the Court must first determine whether the consultant is actually an officer or employee of the corporation. The narrow definition of “employee” in Rule 5.17 may be gleaned from authorities in employment and tax law. If the consultant is not an officer or employee, they may nevertheless be examined under Rule 5.18 if the applicant has satisfied certain “public policy criteria”:

(a) a party cannot obtain relevant and material information from an examination of the adverse party under Rule 5.17,

(b) it would be unfair to require the party seeking the examination of the service provider to proceed to trial without having the opportunity to ask the service provider about the information sought, presumably because it deals with a key issue in the litigation, and

(c) the questioning of the service provider will not cause undue hardship, expense or delay to, or unfairness to, the adverse party or the service provider.

Because Rule 5.17 was enacted concurrently with Rule 5.18, the Rules should be interpreted together. Master Prowse noted that litigants should utilize the public policy criteria in Rule 5.18 to “seek the examination of a consultant service provider than to refer to the voluminous case law under old Rule 200”.

Master Prowse summarized the process to follow in an Application to Question a solicitor or other service provider of an adverse party:

(i) If the lawyer is or was an employee of the adverse party, then she/he may be examined for discovery under Rule 5.17;

(ii) If the lawyer is not an employee of an adverse corporate party, but provided services to the adverse corporate party, then the application to compel the lawyers attendance at discovery should proceed under Rule 5.18; and

(iii) If the lawyer is not an employee, and the adverse party is an individual as opposed to a corporation, the court should have reference to the criteria listed under Rule 5.18 in deciding whether to allow questioning to take place, even though the application is not proceeding under Rule 5.18.

The Court acknowledged that the solicitor had provided services to a natural person rather than a corporation, but that the criteria under Rule 5.18 should be applied. Therefore, the definition of “employee” under Rule 5.17 should only be broadened to cover the solicitor if all three criteria under Rule 5.18 could be satisfied. Master Prowse held that the Defendant was unable to demonstrate that he could not obtain material and relevant information without examining the solicitor, and it was not unfair for the Defendant to proceed to Trial without having the opportunity to Question the solicitor. Accordingly, the Defendant’s Application to Question the Plaintiff’s lawyer under Rule 5.17 was dismissed.