RK v GSG

The Appellant sought to overturn two interlocutory decisions of the Case Management Judge (“CMJ”). One of the issues on Appeal was whether the CMJ erred in striking the questioning transcript of a non-party from the record for an upcoming Summary Dismissal Application.

The Appellant argued that the CMJ incorrectly applied Rule 6.22 and should have focused on Rule 6.8 instead. The Court of Appeal held that even if one sets Rule 6.22 to the side and looks only to Rule 6.8 as urged by the Appellant, the Appellant failed to comply with Rule 6.16(2) and the basics of fair procedure when he proceeded to question the non-party without notice to the Respondent. Although the Appellant’s counsel conceded that notice to the Respondents should have been given, they contended that the CMJ’s assessment of proportionality between the error and remedy was unreasonable. The Appellant argued, among other things, that the Respondent could have independently questioned the witness. However, the Court of Appeal held that the CMJ’s choice of remedy was not unreasonable, and the fact that the Respondent could have conducted its own questioning was not determinative. Given the broad discretion afforded to case management, there was no basis to intervene.

In the result, the Appeal was dismissed, and costs were awarded to the Respondent.